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Reply to Query CLXIII. (Vol. VI., p. 187).
LIGHT AND AIR-ENLARGEMENT OF ANCIENT LIGHTS.
The neighbouring owner has no right to prevent the enlargement of the windows. If not restrained by provisions in the Building Acts, or under local by-laws, an owner may build with what materials and in what shape he pleases, and have as many windows as he likes, so long as he respects the legal rights of his neighbours. He may build or alter an old building into a structure of plate glass and iron columnsall window; this injures no other person's rights. But to prevent the access of additional light, a neighbour may, if he can, lawfully obstruct the additional parts. He must not affect the old, or he at once becomes liable, and if he cannot obstruct the additional without interfering with the light to the ancient windows, the neighbour has no redress. This question touches a very prevalent but erroneous impression in some quarters. As nothing proposed to be done in this instance can possibly damage the neighbour's existing rights to light (if any) over the owner's premises, the latter may lawfully make his structure all window. He gets no right by so doing, nor does he hurt any neighbour; if, however, the additional access is not interrupted before the nineteen years and one day have expired, the latter gets a complete legal right to the access enjoyed on the expiration of the full twenty years. If the access cannot be interrupted physically then, the lapse of time converts the enjoyment into a right, but no action lies against anyone for merely doing that which will in the prescriptive period ripen into a legal right. The only redress here is to obstruct the additional light by screens or buildings, if they can be erected without interfering with existing rights. FREDERICK A. PHILBRICK, Q.C., Associate.
Reply to Query CLXIV. (Vol. VI., p. 234).
OLD ROAD-FORMATION INTO NEW STREET.
This appears to be a case of "stand and deliver," and A will be badly advised if he does not resist. There is no law which can compel A to give the land without compensation. I have been unable to find any cases which would support such a claim, but there is one reported in "Professional Notes," vol. iv., page 385, which is against such a claim.
Let A submit the plans with the frontage 22 feet or more from the centre of the road, and retain the land until the Council purchases it. If the Council refuse to pass the plans, a solicitor will know how to advise him.
ROBT. GODFREY, Fellow.
Replies mist, in all cases, be authenticated by the full name of the Member supplying
the information asked for.
Reply to Query CLXV. (Vol. VI., p. 234).
RATING OF SHOOTING RIGHTS.
(1) The right of shooting is an incorporeal hereditament and not severable from the land, therefore is entitled to the exemption of twothirds.
(2) The owner must be considered occupier, as he preserves. As such the value of the land for tillage, pasture, or growth of underwood is enhanced, and, since the two interests are not severed, one assessment should include both (see Rating Act, 1874).
J. R. EVE, Fellow.
Reply to Query CLXVI. (Vol. VI., p. 235).
PAYMENT OF RATES ON SPORTING RIGHTS.
By the Public Health Act, 1875, Sec. 211, general district rates shall be levied on the occupier of all kinds of property by law assessable to any rate to the relief of the poor, and shall be assessed on the full net annual value, except (inter alia) that the occupier of land shall be assessed in respect thereof in the proportion of one-fourth part of such net annual value. The Rating Act, 1874, abolished certain exemptions from rating contained in the Act of 43 Eliz., c. 2, sec. 1, and enacted that where a right of sporting is severed from the occupation of the land and not let, and the owner of the right receives rent for the land, the right shall not be separately valued or rated, but the rateable value of the land shall be estimated as if such right were not severed; and if the rateable value is increased by reason of its being so estimated, the occupier of the land may deduct from his rent the rate paid by him in respect of such increase as certified by the Assessment Committee. The Act further provides that, subject to the foregoing, the owner of any right of sporting, when severed from the occupation of the land, may be rated as the occupier thereof.
From the above it would appear that the property liable to pay district rates is the property assessable to the relief of the poor under the Rating Act of 1874, and that sporting rights are assessable by that Act as a property distinct from land, and that, although where not let they are to be added to the value of the land for rating purposes, a separate rate will be set upon them upon application to the Assessment Committee. I think, therefore, that the editor of the "Justice of the Peace" is correct in considering (for rating purposes) that sporting rights are property other than land," and must be rated at their full net annual value. Where the owner is the occupier of the land he would, I consider, be liable to be rated both on the value of the land and the value of the sporting (if any), although he did not sport either by himself or his agents, but he could get the value of the sporting separated by the Assessment Committee, and claim the exemption for rating purposes allowed upon the land.
L. BURD, Fellow.
If there be no enclosure award to settle the question, equity seems to suggest that the parties should agree to make the middle of the present thorn hedge the permanent boundary line between road and field.
R. R. RowE, Fellow.
If the road is of the width specified by the inclosure award the presumption is that the ditch, fence, and bank belong to the owner of the adjoining field, although they may have originally been constructed at the cost of the parish. The highway authorities lay themselves open to an action for damages the moment they interfere with the bank, except in the case of encroachment, which is less than equidistant from the centre of the awarded width. This does not apply in the case of railways where the hedge, ditch, and fence are the property of the Company. The owner of the field is bound to maintain a fence sufficient to restrain his own stock from trespassing, though he is not liable for damage done by the stock of others who may stray on to his land, and thence find their way on to the highway.
GILBERT MURRAY, Fellow.
Reply to Query CLXVIII. (Vol. VI., p. 236).
1. The adjoining owner is not entitled to compensation.
2. Section 87 does not empower the adjoining owner to require security for "such compensation." The compensation referred to is the work referred to in Sub-section 7, Section 83, though the use of the word "compensation" in Section 87 is calculated to mislead.
3. Certainly, upon a proper award.
4. In the case of Stokes v. Standard Bank the question of underpinning was discussed, and the word "raise" was interpreted as wide enough to cover it.
If the querist will read pages 80, 87, and 88 of volume 24 of "Transactions," he will find something on all the questions raised, and in the subsequent discussion also.
C. HERBERT BEDELLS, Fellow.
For convenience of reference I have indicated the last four paragraphs containing the questions as (a) to (d) respectively.
(a) The "adjoining owner" is not entitled to compensation for loss
of occupation. For cases refer to Thompson v. Hill, L.T.R. (N.S.), C.P. xxii., 820; Bryer v. Willis, L.T.R. (N.S.), C.P. (year 1870), p. 643; Smith v. Copestake "Architect," 12 Dec., 1874.
(b) The 87th Section mentions "security. . . for the payment of "all such costs and compensation in respect of such work as may be "payable by the building owner," but nowhere else, that I can find, makes any mention of such " compensation" so payable. It appears to me to be a provision of security against possible neglect of the duty of the building owner to rebuild and make good after he may have pulled down.
(c) The notice does not empower the building owner "to pull down "and rebuild the wall because it is of insufficient strength for the new building." The notice itself, according to the statement of facts given, did not state that the building owner intended to do so, or claimed the right to do so, otherwise than by giving notice and claiming the right "to do all other necessary work incidental thereto." This wording may or may not be sufficient for the purpose; on this point I am in considerable doubt. But whether the wording of the notice was, or was not, sufficient for the purpose of the notice, the notice in itself would not be sufficient for the purpose of completing. the building owner's statutory rights, unless the adjoining owner expressed his consent thereto" (Sec. 85, sub.-secs. 1 and 6). If the building owner did not express "his consent thereto " a statutory difference has arisen, which the Act directs to be settled by surveyors. Either one surveyor is to be appointed by both owners, or two surveyors are to be appointed (one by each owner) which two surveyors are to appoint a third surveyor. And then such one surveyor, or such three surveyors, or any two of them, "shall settle any matter in dispute" between the owners by award (Sec. 85, sub-sec. 7). But it must be here noted that such award is only valid as to such matters of difference as arise from the Act, and does not extend, for instance, to such questions as ancient lights, although such questions may be the subjects of awards, if they be referred to the same surveyors, or to others, as arbitrators, by a separate and proper instrument of reference. The Building Act confers certain rights on "building owners," and "adjoining owners," but subject, firstly, to notices to be given, and secondly, to assents to be expressed, or, in the event of differences, to the award of a surveyor or surveyors, as in the Act set out. See Parts III. and IV. of the Act. The statutory award may be appealed against in the County Court, and in some circumstances in the High Court (Sec. 85, sub-s. 8, 11, and 12).
(d) As to question in last paragraph, the Act does not expressly mention the right to "underpin," but Sir George Jessell (M.R.), in the case of The Standard Bank of Africa, ingeniously got over the difficulty by holding that the right to raise (Sec. 83, sub-s. 6) includes the rights to increase the height by "extending the wall in a downward "direction." I have not the reference to the Law Reports of the case, but it is mentioned in the Builder, p. 307, March 23rd, 1878.
ARTHUR HARSTON, Fellow.
It must not be forgotten that a party wall is a wall in joint ownership, and, like a wife, must be taken for better or for worse. Its object is to prevent the waste of room occasioned by two walls, but it is necessary for one owner to exercise his rights, the adjoining owner must put up with the inconvenience.
I once had a somewhat similar, although stranger, case to that mentioned, and although I advised my client that, notwithstanding the inconvenience and loss to which he was put, I did not think he could recover from his neighbour, he consulted his solicitor and took counsel's opinion, which he considered favourable to him, but when he pressed his solicitor to push forward the case he told him that, on further consideration, both he and the counsel thought he would have no case. Personally, I should have been glad for the case to be fought out, as it was as strong as any claim of this description.
By Section 87 the adjoining owner can require security for any works authorised by the Act, but nothing is said as to compensation.
There appears to me a doubt as to the validity of the notice as to pulling down the wall if not defective, as the case is fully met by Sec. 83, and should have been included in the notice. This will probably be argued with the third surveyor.
In the case of Standard Bank of Africa v. Stokes, it was held that underpinning was heightening downwards; at any rate, that the same rights as to heightening applied to deepening, and as inserting footings to an old wall would be underpinning it includes this. But here, again, the notice should have been more explicit, and admits of argument. J. DOUGLAS MATHEWS, Fellow.
Reply to Query CLXIX. (Vol. VI., p. 237).
LAND TAX ON QUIT RENTS.
My experience during the last 50 years with reference to quit rents is that I have never had any application in respect of a deduction for land tax on quit rents receivable on behalf of the various manors for which my firm has been concerned,—and in all instances where there is any land tax on the property it has been paid by the copyholder as one of his obligations.
In valuing for enfranchisements, whether acting for the copyhold tenant or the lord, we have never made any deduction in respect of land tax payable by the copyholder, nor have our valuations ever been questioned in this respect by the Copyhold Commissioners-now the Board of Agriculture.
In the Instructions of the Commissioners, dated 1888, for the guidance of the valuers in enfranchisement cases, it is stated as follows:-"In estimating the annual value of the property no deduc