(802.)

[IN THE COURT OF APPEAL.]

LANE v. COX.

[DECEMBER 19TH, 1896.]

Landlord and Tenant-Dangerous Condition of Demised Premises— Landlord under no Covenant to Repair-Injury to Person using Premises Liability of Landlord—Negligence.

A landlord who lets an unfurnished house in a dangerous condition, he being under no liability to keep it in repair, is not liable to his tenant, or to a person using the premises, for personal injuries happening during the term, and due to the defective state of the house.-(L. R. [1897], C. A., vol. i. p. 415.)

(803.)

HOBSON v. GORRINGE.

[L ECEMBER 10TH, 11TH, AND 19TH, 1897.]

Trade Fixture-Hiring Agreement-Gas Engine-Mortgage of Trade Premises-Entry of Mortgagee into Possession-Right of Removal by Owner.

In determining whether or not a chattel has become a fixture, the intention of the person affixing it to the soil is material only so far as it can be presumed from the degree and object of the annexation.

Holland v. Hodgson (1872), L. R., 7 C. P., 328, explained.

Wood v. Hewett (1846), 8 Q. B., 913, and Lancaster v. Eve (1859), 5 C. B. (N.S.), 717, distinguished.

A gas engine was let out on the hire and purchase system under an agreement in writing, which provided that it should not become the property of the hirer until the payment of all the instalments, and should be removable by the owner on the failure of the hirer to pay any instalment. The engine was affixed to freehold land of the hirer by bolts and screws to prevent it from rocking, and was used by him for the purposes of his trade. Default having been made in the payment of the instalments, the engine was claimed by the owner, and also by a mortgagee of the land, who took his mortgage after the hiring agreement and without notice of it, and had entered into possession while the engine was still on the land.

Held, that the engine was sufficiently annexed to the land to become a fixture, and that any intention to be inferred from the terms of the hiring agreement that it should remain a chattel did not prevent it from becoming a fixture; and consequently that it passed to the mortgagee as part of the freehold.

Held, further, that even if a licence to remove the engine could be

implied from the mortgagee leaving the mortgagor in possession, the entry of the mortgagee into possession determined such licence.

Gough v. Wood & Co. (1894), 1 Q. B., 713, and Cumberland Union Banking Co. v. Maryport Hæmatite Iron and Steel Co., [1892] 1 Ch. 415, discussed.-(L. R. [1897], C. D., vol. i. p. 182.)

(804.)

[CHANCERY DIVISION.]

LIST v. THARP.

DECEMBER 16TH AND 17TH, 1896, AND JANUARY 13TH, 1897. London Building Act, 1894 (57 & 58 Vict. c. ccxiii.), s. 5, sub-ss, 29, 32; 8. 90-Party Structure Notice-Adjoining Owner-Possession of Premises under Building Agreement.

The word " owner in s. 5, sub-ss. 29 and 32, and in s. 90 of the London Building Act, 1894, as therein defined, includes a person who has entered upon land and erected buildings under an agreement for a lease, although no lease had been executed, and although the agreement is expressed not to operate as a demise, but to give only a right to enter upon the premises for the purpose of performing the agreement.

A person in that position is accordingly entitled as an "adjoining owner" to receive from an adjacent "building owner" the notice and particulars of proposed works required by s. 90 of the Act, and it is not sufficient to give notice to the intending lessor.

Injunction granted, in these circumstances, to restrain a building owner from proceeding with his works without the statutory notice to the intending lessee of the adjoining premises.

Motion on behalf of the plaintiff to continue an interim injunction, which had been granted, restraining the defendant from heightening a wall dividing his premises from those of the plaintiff.

The plaintiff was a sub-lessee from Sir Charles Oppenheimer, who was the lessee from the Crown under a long lease granted by the Commissioners of Woods and Forests of a piece of land on which certain premises known as No. 36, St. James' Place, which had been pulled down, had stood; and the defendant was lessee for a term having about eleven years to run of the adjoining premises, No. 37, St. James' Place, holding under a lease granted by a Mrs. Byng.

By an agreement dated December 12, 1894, between Sir Charles Oppenheimer of the one part, and the plaintiff of the other part, Sir Charles Oppenheimer agreed to demise the land of which he was lessee to the plaintiff for a term of ninety years, from September 29, 1895, at a rent of £550 a year; and the plaintiff agreed within the time therein specified to erect buildings upon the land at an expense of not less than £100,000. Clause 6 of the agreement provided that the plaintiff should forthwith upon the signing of the agreement be entitled to possession of

the land. Clause 7 reserved to the surveyor and all officers and workmen of the surveyor, and of Sir Charles Oppenheimer acting under the authority of the surveyor, a right to enter upon the land at all times during the erection of the buildings for the purpose of examining the same, and otherwise as therein mentioned. By clause 18 it was stipulated that nothing in the agreement should be construed into a demise at law of the premises so as to vest any estate in the plaintiff, but that he should only have a right to enter upon the premises for the purpose of performing the agreement. The agreement further made the production of a certificate signed by the architect of the Commissioners a condition precedent to the granting of the lease.

Pursuant to the agreement the plaintiff entered upon the land, and proceeded to erect the buildings thereon. The defendant as the building owner of the adjoining premises, No. 37, St. James' Place, being desirous of executing certain works on the wall dividing his premises from those of the plaintiff, in February, 1896, gave to Sir Charles Oppenheimer the notices required by s. 90 of the London Building Act, 1894, by which it is enacted that "a building owner shall not, except with the consent in writing of the adjoining owner and of the adjoining occupiers . . . . exercise any of his rights under this Act in respect of any party fence wall, unless at least one month, or exercise any of his rights under this Act in relation to any party wall or party structure other than a party fence wall, unless at least two months before doing so he has served on the adjoining owner a party wall or party structure notice, stating the nature and particulars of the proposed work and the time at which the work is proposed to be commenced;" but the defendant omitted to give any such notice to the plaintiff.

The defendant, as building owner, obtained, in July, 1896, in the manner prescribed by the Act, an award in his favour in an arbitration between Sir Charles Oppenheimer and himself, and thereupon commenced to execute the works specified in the notice.

At the date of the award the plaintiff had erected the buildings stipulated for by the agreement, but no lease had at that time been granted to him. The lease was subsequently granted to him on August 4, 1896.

One of the questions on the hearing of the motion was whether the wall in question was a "party fence wall" or a "party wall or a party structure;" but the principal question was whether the defendant was bound, before commencing the work on the wall, whether "party fence wall" or "party wall," to give notice to the plaintiff, under s. 90 of the Act as being an 66 owner "within the meaning of s. 5, sub-ss. 29 and 32 of the Act. Sub-s. 29 is as follows: "The expression owner' shall apply to every person in possession or receipt of the whole or of any part of the rents or profits of the land or tenement, or in the occupation of any land or tenement, otherwise than as a tenant from year to year or for any less term or as a tenant at will."

Sub-s. 32 is as follows: "The expression adjoining owner' means the owner or one of the owners, and adjoining occupier' means the occupier or one of the occupiers of land, buildings, storeys or rooms adjoining those of the building owner."

1897. Jan. 13. CHITTY, L. J. The question is whether the defendant was bound before commencing the work of the wall in controversy to give notice to the plaintiff under the London Building Act, 1894. It turns on sub-s. 29 of the 5th section, which enacts that unless the context otherwise requires: [His Lordship read the sub-section and, after stating the facts as above set out, proceeded:-]

66

Now, regard being had to the statutory definition of the expression 'owner," the first inquiry is whether the plaintiff was, in February, 1896, in possession of the land. It appears to me that the only answer must be that he was. Clause 5 of the agreement is precise; he was entitled to the possession, and having entered upon the land, he was lawfully in possession accordingly. The reservation in the 7th clause of a right of entry for the surveyor and others during the erection of the buildings, shews that the term "possession" is used in the 6th clause in its ordinary sense: the power is reserved as against the plaintiff's possession. It was argued that he was in possession only for the purpose of erecting the buildings, and, consequently, that as his right to possession was thus limited, he was not in possession within the meaning of the definition in the Act. But I cannot accept this argument. A man is not the less in possession because as between himself and the person from whom he receives it, he is under a contractual obligation to use the property for some particular purpose; as, for instance, when he is under covenant to use a house for the purpose of a private dwelling-house only.

66

The next inquiries are whether the plaintiff was in occupation of the property as a tenant from year to year, or for any less term, or as a tenant at will." Here, again, the agreement itself supplies the answer: nothing in the agreement was to be construed into a demise at law or to vest any estate in the plaintiff. Consequently he was not tenant from year to year, or for any less term; nor was he tenant at will. The provision in clause 18 of the agreement that he was only to have the right of entry for the purpose of performing the agreement, I have already dealt with incidentally. It cannot, in my opinion, be made use of for the purpose of cutting down the right to the possession which was previously imposed by express terms. After his entry on the land he was in possession as between himself and Sir Charles Oppenheimer, though he was bound by the contract as to the user of the land. And as against strangers he had all the ordinary rights and remedies incidental to possession.

It was further argued for the defendant that, inasmuch as the plaintiff had taken his lease before the work on the wall was actually begun, and as the prescribed notices had been given to Sir Charles Oppenheimer, the plaintiff was in no better position than Sir Charles, and, accordingly, was not in a position to insist on the notices being given to himself. In substance this argument was that the plaintiff's rights had become merged in the lease. In my opinion this argument is not sound. As between himself and the defendant, I think that, notwithstanding the lease, the plaintiff is entitled to refer bis title back to the agreement under which he had possession at the time, and that the question between him and the defendant is not affected by any doctrine of merger.

I see no reason for questioning the conclusion arrived at in Beddington

v. Atlee. The plaintiff in February, 1896, had, by virtue of the building agreement, an equitable interest of great value in the land and the buildings which he had thereon erected.

Such being my opinion, it becomes unnecessary to decide at the present stage of the proceedings any question as to the character of the wall, whether it was a party-wall or a party fence wall in the whole or in part. (L. R. [1897], C. D., vol. i., p. 260.)

(805.)

[QUEEN'S BENCH DIVISION.]

VENNER v. M'DONALD.

[DECEMBER 15TH, 1896, AND JANUARY 15TH, 1897.]

London-Building Notice-Temporary Erection-" Structure "--London Building Act, 1894 (57 & 58 Vict., c. ccxiii.), s. 145.

Where a building or the builder or other person

By section 145 of the Building Act, 1894, structure or work is about to be begun causing or directing the work to be executed shall serve on the district surveyor a building notice respecting the building or structure or work."

The owners of a certain large building situate in London, called the Agricultural Hall, which was used for the purpose of public exhibitions or shows, were possessed of certain moveable seating consisting of tiers of wooden platforms, and capable of accommodating upwards of 3,000 persons, which seating they from time to time erected for the accommodation of the spectators at such of the exhibitions as required it :

Held, that such seating was not a "building structure or work" within the meaning of the above section, and that the owners of the hall were not thereby required to serve a building notice on the district surveyor upon each occasion on which they re-erected the seating.-(L. R. [1897], Q. B. D., vol. i., p. 421.)

(806.)

[QUEEN'S BENCH DIVISION.]

REG. v. JUSTICES OF LONDON-EX PARTE THE EAST LONDON WATERWORKS.

[JANUARY 18TH, 1897.]

Rating-Appeal-Notice of Objection-Objection to Rateable Value only-Appeal to Quarter Sessions-Refusal to entertain Appeal as to Gross Value.

In this case cause was shown against a rule for a mandamus to the Quarter Sessions for London, commanding them to hear and determine