s. 95. and sound or not so far defective or out of 57 & 58 Vict. (c) If any party structure be cut into by the building (d) If any footing chimney breast jambs or floor be cut away in pursuance of the powers by this Part of this Act vested in a building owner the expense of such cutting away and of making good any damage by this Part of this Act required to be made good shall be borne by the building owner. (e) If any party fence wall be raised for a building the expense of raising such wall shall be borne by the building owner; (f) If any party fence wall be pulled down and built as a party wall the expense of pulling down such party fence wall and building the same as a party wall shall be borne by the building owner; If at any time the adjoining owner make use of any party structure or external wall (or any part thereof) raised or underpinned as aforesaid or of any party fence wall pulled down and built as a party wall (or any part thereof) beyond the use thereof made by him before the alteration there shall be borne by the adjoining owner from time to time a due proportion of the expenses (having regard to the use that the adjoining owner may make thereof) : (i) of raising or underpinning such party structure or external wall and of making good all such 57 & 58 Vict. c. ccxiii. ss. 96, 97. Account of expenses to be delivered to adjoining owner. Adjoining owner may object to account. Part of this Act required to be made good and carried up; (ii) Of pulling down and building such party fence wall as a party wall. Compensation.The provisions of this section correspond with those of the Metropolitan Building Act, 1855, sect. 88, now repealed. Under that section it was held that the building owner was not liable to compensate the adjoining owner for damage done to his house in pulling down and rebuilding a defective party structure, since the work was done for the benefit of both. Bryer v. Willis, 19 W. R. 102; 23 L. T. (N.S.) 403; 35 J. P. 471. But he is not protected from the consequences of doing such work negligently; see the note to sect. 101, post. What is, the due proportion is to be ascertained in case of difference in the manner provided by sect. 91, ante, p. 177. Party structure.-This expression, as defined by sect. 5, subsect. (20), ante, p. 21, includes a timber partition. But the right of the building owner is only 'to pull down any timber or other partition which divides any buildings, and is not conformable with the regulations of this Act, and to build instead a party wall conformable thereto;' see sect. 88, subsect. (3), ante, p. 167. As to buildings which are to be deemed to be conformable to this Act, see sect. 88, subsect. (11), ante, p. 168. Until the adjoining owner has paid his contribution the structure is to remain the sole property of the building owner 'at whose expense it was built;' see sect. 99, post. 96. Within one month after the completion of any work which a building owner is by this Part of this Act authorised or required to execute and the expense of which is in whole or in part to be borne by an adjoining owner the building owner shall deliver to the adjoining owner an account in writing of the particulars and expense of the work specifying any deduction to which such adjoining owner or other person may be entitled in respect of old materials or in other respects and every such work shall be estimated and valued at fair average rates and prices according to the nature of the work and the localities and the market price of materials and labour at the time. 'Month.'-This means calendar month; see the Interpretation Act, 1889, sect. 3. 97. At any time within one month after the delivery of the said account the adjoining owner if dissatisfied therewith may declare his dissatisfaction to the building c. ccxiii. ss. 98-100. owner by notice in writing served by himself or his agent 57 & 58 Vict. and specifying his objection thereto and thereupon a difference shall be deemed to have arisen between the parties and shall be determined in manner herein before in this Part of this Act provided for the settlement of differences between building and adjoining owners. 'Month'-i.e. calendar month; see Interpretation Act, 1889, sect. 3. "Differences.-The settlement of differences between building and adjoining owners is provided for by sect. 91, ante, p. 177. 98. If within the said period of one month the adjoining owner do not declare in the said manner his dissatisfaction with the account he shall be deemed to have accepted the same and shall pay the same on demand to the party delivering the account and if he fail to do so the amount so due may be recovered as a debt. Recovery of expenses.-This section enables expenses to which it relates to be recovered as a 'debt.' And by sect. 166, post, all expenses under the Act, the recovery of which is not otherwise provided for, may be recovered in manner provided by the Summary Jurisdiction Acts. Presumably, therefore, expenses which do not exceed reasonable amounts under this section may be recovered in the manner provided for the recovery of civil debts by those Acts. Building owner may recover if no appeal made. 99. Where the adjoining owner is liable to contribute Structure to the expenses of building any party structure then to belong to building until such contribution is paid the building owner at whose expense the same was built shall stand possessed contribution of the sole property in the structure. The Property in structure.-Some difficulty may arise if the building owner builds on or otherwise makes use of a party structure, in respect of which the adjoining owner has not paid his contribution, to the exclusion of the adjoining owner. sole ownership of the structure is only to last until the adjoining owner does pay his contribution. That done, it would seem that the adjoining owner again becomes a tenant in common, and it may be that he again has a right to remove whatever prevents him from using his share of the wall. For the works which the adjoining owner may require, see sects. 89, 90, and 93, ante, pp. 172, 173, and 183. owner until paid. owner liable to expenses 100. The adjoining owner shall be liable for all Adjoining expenses incurred on his requisition by the building owner and in default payment of the same may be recovered from him as a debt. incurred on his requisi 57 & 58 Vict. c. ccxiii. S. IOI. Saving for lights in party walls, &c. Expenses incurred on requisition of adjoining owner.The works which an adjoining owner is empowered to require the building owner to execute are those specified in sect. 89 (1), ante, p. 172, sect. 90 (5), ante, p. 173, and sect. 93 (2), ante, p. 183. Recovery of expenses.—Sect. 166, post, p. 254, enacts that all expenses under the Act, the recovery of which is not otherwise provided for, may be recovered in manner directed by the Summary Jurisdiction Acts. In addition, therefore, to the procedure for recovery of such expenses by action in the County Court or in the High Court, the procedure provided by the Summary Jurisdiction Acts for the recovery of civil debts will be available. 101. Nothing in this Act shall authorise any interference with an easement of light or other easements in or relating to a party wall or take away abridge or prejudicially affect any right of any person to preserve or restore any light or other thing in or connected with a party wall in case of the party wall being pulled down or rebuilt. This section is a declaration of the principle that the Act, speaking generally, does not affect the common law rights of the adjoining owner. This principle is of importance in considering whether an adjoining owner has a remedy against the building owner by action, or can only claim to exercise the rights given him by the Act. The building owner and the adjoining owner are tenants in common of a party wall, and each has at common law the rights of an ordinary owner of property, see Stedman v. Smith, and Watson v. Gray, ante, p. 170; and Cubitt v. Porter, and Wiltshire v. Sidford, ante, p. 19; and see note to sect. 5, subsect. (16), ante, p. 17. But the Act, by expressly giving to the building owner powers with respect to party walls, has limited the building owner's rights and powers to those so expressly given; for the rule is that where a statute gives to an owner of property with respect to that property powers which he could have exercised without express statutory authority, the powers given must be treated either as superfluous or as implying a prohibition against the more extensive rights which he might have as an owner of property. Per Lindley, L. J., London Association of Shipowners and Brokers v. London and India Docks Joint Committee (1892), 3 Ch., at p. 251; reported also 67 L. T. (N.S.) 238; 62 L. J. Ch. 294; 7 Asp. M.C. 195. When, therefore, a person does work to a party structure, and thereby becomes a building owner,' as defined by sect. 5, subsect. 31, he loses the rights which he had as tenant in common of the party structure, and acquires instead those given to him by the Act. On the other hand, the 'adjoining owner,' to whom the Act gives rights which he does not possess as an owner of property, the right given to him by sect. 89 57 & 58 Vict. being in addition to his rights at common law, retains his c. ccxiii. common law right to prevent the building owner from inter- s. 101. fering with the property, except so far as he is expressly empowered to do so by the Act, and except so far as he does so in accordance with the regulations of the Act. In the case of Crofts v. Haldane, L. R. 2 Q. B. 194; 8 B. & S. 194; 36 L. J. Q. B. 85; 16 L. T. (N.S.) 116, it was contended that the building owner might raise a party structure to any height, and that the adjoining owner's only remedy, if his ancient lights were obstructed by such raising, was by arbitration of surveyors under sect. 85 (7) of that Act. But it was held that the Act did not authorise the raising of a structure so as to obstruct ancient lights in the adjoining owner's premises, because, per Lush, J., there was no intention (by the Act) to interfere with rights, such as easements of adjoining proprietors : the Act was simply to regulate the construction of buildings, and to prescribe the mode in which adjoining owners might proceed when dealing with party structures, and that therefore an action would lie against the building owner. And in considering the effect of sect. 83 of the Metropolitan Building Act, 1855, Jessel, M.R., said: The next section, the eighty-third, has this prefix-" Rights of building and adjoining owners. The building owner shall have the following rights in relation to party structures that is to say," Does not that mean he is to have no other? Is not that the definition of the rights he is to have, meaning those are all the rights he is to have?' and later on he said, 'Being such a building owner he has these rights, which, in my opinion, are exclusive, and he has no other rights.' Standard Bank of British South America v. Stokes, 9 Ch. D. at 73 and 74. Reported as Standard Bank of British South Africa v. Stokes, 47 L. J. Ch. 554; 38 L. T. (N.S.) 672; 43 J. P. 91. In that case a building owner, relying on the common law right of a tenant in common to do work beneficial to the common property (Cubitt v. Porter, 8 B. & C. 257), had undermined a party wall, in respect of which he had served a party wall notice, and in respect of which 'a difference had arisen,' before the surveyors appointed by him and the adjoining owner had come to a determination. It was held that he had no right to do anything to the party wall, except such things as were expressly authorised by the Metropolitan Building Act, 1855, and that, having begun before the determination of the surveyors, the adjoining owner was entitled to move for an injunction to restrain him from interfering with the party wall in question. A building owner who did not comply with the requirements of the Act of 1855 was held to have lost the protection given him by the Act, and to be liable in an action. Williams v. Golding, L. R. 1 C. P. 69; 35 L. J. C. P. 1; 1 H. & R. 18; 11 Jur. (N.S.) 952; 13 L. T. (N.S.) 291; 14 W. R. 60. In that case a builder employed by the building owner to do |