till, damage is sustained in consequence of the withdrawal of that support" (h). "The taking away the soil is not in se wrongful. It only becomes so when followed by injurious consequences to the neighbour; and if, therefore, such injurious consequences can be averted by efficient means, as by the substitution of artificial for the natural support previously afforded by the soil, the removal of the soil is in no respect wrongful” (i). The easement of support presumptively incident to land Support of buildings by from the subjacent and adjacent tenements is limited to subjacent and the land in its natural state, and does not extend to the adjacent land. additional weight of buildings placed upon the land (j). But an easement of support for houses and buildings as against the owner of the subjacent and adjacent land, to a distance sufficient to support the buildings, may be acquired by a special title of grant or prescription. "The right to support of land and the right to support of buildings stand upon different footings, as to the mode of acquiring them; the former being primâ facie a right of property, analogous to a right to the flow of a natural river or of air, though there may be cases in which it would be sustained as matter of grant; whilst the latter must be founded upon prescription or grant, express or implied; but the character of the rights when acquired is in each case the same " (k). As against a stranger, showing no right in the adjacent land, and therefore, primâ facie a wrongdoer, the owner of a house might claim damages for a disturbance of the support upon his mere possessory title; for "if a house is de facto supported by the soil of a neighbour, this appears sufficient title against anyone but that neighbour, or one (h) Lord Blackburn, Dalton v. Angus, L. R. 6 Ap. Ca. 808, citing Backhouse v. Bonomi, 9 H. L. C. 503; ante, p. 242. (i) Per cur. Bower v. Peate, L. R. 1 Q. B. D. 325; 45 L. J. Q. B. 449. (j) Wyatt v. Harrison, 3 B. & Ad. 871; Partridge v. Scott, 3 M. & (k) Per cur. Bonomi v. Backhouse, Support of building by grant. claiming under him. Against a person having the right to the adjoining soil, it would be necessary to show a title to the support of the soil" (7). "Where the case is not that of two independent landowners, but of the owner of two closes conveying one of those closes to another person, there he can do nothing derogating from his own grant; and if he has conveyed it for the express purpose of having buildings erected upon it, he then enters into an implied contract that he will do nothing to his soil which will prevent the soil he granted being able to serve the purpose for which, to his own knowledge, he has conveyed it; and the person who has acquired the soil under these circumstances has the additional right of having support for the buildings, or for whatever else may be the object for which he has purchased the soil" (m). This implied grant of support for buildings may be modified by express provisions regarding it; and it may be modified or restricted by circumstances known both to the grantor and the grantee at the time of the grant; as where it is known to the grantee that the grantor reserves the servient tenement for purposes which may affect the support of the adjacent buildings. Where land was sold in lots for building according to a general plan, it was held that each lot carried with it the right of excavating according to the plan, subjecting the right of support to such excavation; so that the purchaser of each lot could only complain of excess or deviation from the general plan (n). Where statutory authority is given to construct works in or upon land, the right of support for such works is in general impliedly given, subject to the express provisions of the Acts as to compensation to the (1) Jeffries v. Williams, 5 Ex. (m) Wood, V.-C., North Western 32 L. J. C. 353; Siddons v. Short, L. R. 2 C. P. D. 572; 46 L. J. C. P. 795. (n) Murchie v. Black, 19 C. B. N. S. 190; 34 L. J. C. P. 337; Rigby v. Bennett, L. R. 21 C. D. 559. owner of the land upon which the burden is imposed; as in Acts for the maintenance of sewers, or gas works, or waterworks, which require and authorise the laying of pipes through the land of others (0). The right of support for railways and railway works is now regulated by the express terms of the Railways Clauses Act, 1845, which reserves the minerals to the vendor of land taken, subject to a right in the railway company to acquire them if necessary for the support of their works (p). The easement of support for a building may also be Support by acquired by prescription; that is, from the long con- prescription. tinuance of the building without interruption of the support. It is an easement within the meaning of the Prescription Act (q). The owner of the servient tenement has no practicable means of interrupting the support without excavating his own tenement; for no action will lie merely for imposing a pressure upon his tenement by building upon the adjacent land; but a prescriptive title may, nevertheless, be acquired (1). support. The extent of the right of support for a building de- Extent of pends upon the construction of it; the owner acquires by use, and prima facie by a grant, such support as the building in fact derives from the adjacent land, though the support may be materially extended by some peculiarity of the interior construction, provided there be no intentional concealment. But he cannot claim an extraordinary extent of support for some special construction that is concealed from the adjoining owner (s). Nor can an extraordinary extent of support be claimed by reason of the house having been built upon excavated ground, of which (0) Re Corporation of Dudley, L. R. 8 Q. B. D. 86; 51 L. J. Q. B. 121; Normanton Gas Co. v. Pope, 52 L. J. Q. B. 629. See Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17); Public Health Act, 1875 (Support of Sewers), Amendment Act, 1883 (46 & 47 Vict. c. 37). (p) Ante, p. 241. (7) Selborne, L. C., Angus v. Dalton, L. R. 6 Ap. Ca. 740; Lemaitre v. Davis, L. R. 19 C. D. 281; 51 L. J. C. 173; post, p. 286. (r) Dalton v. Angus, L. R. 6 Ap. Ca. 740; 50 L. J. Q. B. 689. (8) Angus v. Dalton, L. R. 6 Ap. Ca. 740; 50 L. J. Q. B. 689; Lemaitre v. Davis, L. R. 19 C. D. 281; 51 L. J. C. 173; post, p. 291. Damage to buildings by support. the owner of the servient tenement had no means of knowledge; but in such case the support might be acquired by a continuance of the house without interruption after the owner of the servient tenement had become fully aware of the facts (t).—The easement of support acquired for an existing building cannot be enlarged by increasing the height and weight of the building; and if the support fails through the increased weight there is no ground of complaint (u). But the right to additional support for the building in its altered state may be acquired by enjoyment of it without interruption for a time sufficient to acquire an original prescriptive title (v). The right of support for the surface of land in its natural disturbance of state is not lost or impaired by building upon it; the owner may still claim for a disturbance of the surface, so far as it is not caused nor aggravated by the additional weight of the building. If it be found as a fact that the weight of the building did not contribute to the injury, the existence of the building upon the land is immaterial to the cause of action (). And in such case damages may be assessed for the injury to the building consequent upon the wrongful disturbance of the surface, though there is no separate cause of action on account of the building (x). -The owner of a house without an easement of support may claim damages for an injury to the house by an improper use of the adjacent land in excess of the natural and reasonable use; or for carrying on works upon the land in a negligent and improper manner having regard to the neighbouring property (y). The negligence depends in some measure upon the knowledge of the adjacent (t) Partridge v. Scott, 3 M. & W. 220; Browne v. Robins, 4 H. & N. 186; 28 L. J. Ex. 250. (u) Murchie v. Black, 19 C. B. N. S. 190; 34 L. J. C. 337. (v) Angus v. Dalton, L. R. 6 Ap. Ca. 740; 50 L. J. Q. B. 689. (w) Browne v. Robins, 4 H. & N. 186; 28 L. J. Ex. 250; Hunt v. Peake, Johns. 705; 29 L. J. C. 785. (x) Hamer v. Knowles, Stroyan v. Knowles, 6 H. & N. 454; 30 L. J. Ex. 102. (y) Jones v. Bird, 5 B. & Ald. 837; Dodd v. Holme, 1 A. & E. 493; see Chadwick v. Trower, 6 Bing. N. C. 1; Gayford v. Nicholls, 9 Ex. 702; 23 L. J. Ex. 205. owner of the existence and condition of the building, which may impose upon him the duty of exercising his rights in such a manner as will cause as little damage to it as possible (). Where a person disturbs the support of his neighbour's house by works upon his own land, he is not excused merely by reason that he engaged a contractor to do the works and to do them without injuring the house (a); though he is not liable for damage done merely by the negligence of the contractor or his workmen in doing the works (b). An easement of support for a house or building by the Support for building by adjoining building may be acquired, by grant or pre- adjoining scription, similar to the easement of support for a building building. by the adjacent land; so that the owner of the servient building would be precluded from removing it without substituting some other sufficient support (c). There is no presumptive right of mutual support between adjoining houses, in the absence of a special title; the owner of each house may pull it down, provided he do so in a careful and proper manner, without incurring liability to the owner of the other (d). grant. Where houses have been built together by the same Implied owner in a manner obviously requiring mutual support, and are afterwards conveyed in separate tenements, there is implied in the conveyance, if no intention appears to the contrary, a grant and reservation of mutual rights and obligations of support between the several tenements (e). Where the porch and pediment of a house was built partly over the front of the adjoining house, upon a (z) Dodd v. Holme, 1 A. & E. 493; Chadwick v. Trower, 6 Bing. N. C. 1. (a) Bower v. Peate, L. R. 1 Q. B. D. 321; 45 L. J. Q. B. 446; Dalton v. Angus, L. R. 6 Ap. Ca. 740; 50 L. J. Q. B. 689; Lemaitre v. Davis, L. R. 19 C. D. 281; 51 L. J. C. (b) Butler v. Hunter, 7 H. & N. 826; 31 L. J. Ex. 214. (e) Lemaitre v. Davis, L. R. 19 C. D. 281; 51 L. J. C. 173. (d) Peyton v. Mayor of London, 9 B. & C. 725. (e) Richards v. Rose, 9 Ex. 218; 23 L. J. Ex. 3. |