Approvement of part of a common.

Every landowner is entitled of common right, and as a natural incident of his ownership, to have his soil supported in its natural state by the soil of the adjacent lands (b). This right does not, however, entitle him to any additional support required for any buildings which he may erect on his land (c): but he may by grant, express or implied (d), or through long continued enjoyment become entitled to such further support. The right to further lateral support for any buildings or additional buildings erected on any land may be acquired by twenty years' open and uninterrupted enjoyment: but conflicting opinions have been given by the judges and in the House of Lords on the question whether this right is a positive easement involving an actual physical burden on the supporting soil, a negative easement merely restricting the use of that soil, or simply an enlargement of the right of lateral support arising from the ownership of the land supported (e). When land is sold with any buildings erected thereon or for the purpose of erecting any buildings or additional buildings thereon, the vendor impliedly agrees to confer upon the purchaser the right of support for such buildings by any adjoining lands, which the vendor retains, and the purchaser is entitled to such right of support accordingly (f).

Right of lateral support.

(u) See Williams on Commons, 2 sq., 17, 24, 31 sq., 103 sq., 123, 150 sq., 168 sq., 170, 212 sq.

Stats. 20 Ben. 111. c. 4; 13 Edw. I. c. 46: see Williams on Commons, 103 sq.

(y) Stat. 56 & 57 Vict. c. 57.

. passed 22nd Sept. 1893. (z) Pickering v. Noyes, 4 B. & C. 639.

See Wms. Real Prop. 7. 17. 27, 36, 38 and n. r , 58, 64 - 66, 160 -462, 464, 21st ed.

See Daltan v. Angus, 6 App. Cas. 740; New Moss Colly., Ltd v. Manchester Corpn., 1908, A. C. 117; Gale on Basements, 216 (335, 4th ed.).

(c) Wyatt v. Harrison, 3 B. & Ad. 871: Partridgt v. Scott, 3 M. & W. 220: Gale on Easements, 218 (343, 4th ed.).

(d) See oases cited in note (f) . below, p. 130.

(e) Dalton v. Angus, 6 App. Cas. 740.

Sale of land with build-ings or for building purposes.

It appears that the right of support of some building by another building erected on adjoining land and not belonging to the owner of the building so supported is an easement to be acquired by grant or prescription (g). The common user, for the purposes of support, of a wall separating the houses or buildings of two different owners is evidence prima facie that the wall and the land on which it is erected belongs to them as tenants in common in equal shares (h). But this presumption may be rebutted by evidence that the wall was actually built half on one owner's land and half on the other's at their joint expense, or entirely on one owner's land or otherwise; and in such case the ownership of the wall and the rights of support thereby will be according to the facts proved (i). The term "party wall" may be applied in any of such cases, but its primary meaning appears to be that of a dividing-wall held in common (k). In the metropolis the rights of landowners, whose properties are divided by a party wall, are regulated by the London Building Act, 1894. (l)

Support of buildings by buildings on adjoining land.

Party walls.

(f) North Eastern Ry. Co. v. Elliot, 1 J. & H. 145, 153; affirmed, 2 De G. F. & J. 423; and nom. Elliot v. North Eastern Ry. Co., 10 H. L. C. 333, 356, 362; Siddons v. Short, 2 C. P. D. 572; Dalton v. Angus, 6 App. Cas. 740, 792, 826; Rigby v. Bennett, 21 Ch. D. 559; Grosvenor Hotel Co. v. Hamilton, 1894, 2 Q. B. 836, 841, 842.

(g) Lemaitre v. Davis, 19 Ch. D. 281; Tone v. Preston, 24 Ch. D. 739. 742; and see Union Lighterage Co. v. London Graving Dock Co., 1902, 2 Ch. 557.

(h) Cubitt v. Porter, 8 B. & C. 257; and see Watson v. Gray, 14 Ch. D. 192; Mayfair Property Co. v. Johnston, 1894, 1 Ch. 508. At common law, either owner has the right to repair such a party wall; Colebeck v. Girdlers' Co , 1 Q. B. D. 234, 243.

(i) Matts v Hawkins, 5 Tauut. 20; and see Watson v. Gray, 14 Ch.D. 192,195; Jones v. Pritchard, 1908, 1 Ch. 630; Mason v. Eulham Corpn., 1910, 1 K. B. 631, 637.

(k) See Watson v. Gray, ubi sup.

Where the lands of two different owners are separated by a ditch and a bank or hedge, it is presumed, in the absence of evidence to the contrary, that the bank or hedge and also the soil of the ditch belong to the owner of the land on the side where the ditch is not: but no such presumption arises where there is a ditch-on both sides of a hedge (m).

Boundary hedges and ditches.

If an undivided share in land be sold, which is held under a tenancy in common created less than forty years before the sale, the title to be shown, in the absence of special stipulation, is the title to the entirety from a date forty years at least before the contract down to the creation of the tenancy in common, and thenceforward the title to the share sold only (n). But where the share sold has been held as an undivided share for more than forty years, only forty years' title to the share, as such, can be required. Of course in either case the abstract must commence with a good root of title (o). If one tenant in common buy the share of another, and stipulate generally for the delivery of an abstract of title or stipulate expressly that a good title shall be shown, he is entitled to production of the same title as if he were a stranger (p). But if he make no such stipulation, and the tenancy in common were created less than forty years before the sale, it appears that he can only demand production of the title to the share sold since the creation of the tenancy in common (q). The vendor of an undivided share in land must of course be careful to describe it as such and to state accurately the proportion to which he is entitled; as if he should purport to sell the entirety or a larger share than he has (r), the purchaser would be entitled at his option either to reject the title altogether (s), or to take what the vendor could convey and demand compensation for the deficiency (f).