s. 5(15, 16).

the matter of an award with reference to a party structure 57 & 58 Vict. difference, the Queen's Bench Division considered that the c. ccxiii. County Court judge had not treated the question whether or not the floors in question were storeys as a question of fact, but had been influenced by an erroneous view of the law in having held that the topmost storey of a building must necessarily mean a room enclosed by four vertical walls, and that as a consequence rooms built in the roof could not be considered as forming a storey.

wall.

(15) The expression 'external wall' means an outer External wall or vertical enclosure of any building not being a party wall.

'External wall.'-What is a 'party wall' is defined by the next subsection. And, but for the exception that the expression external wall is not to mean a party wall, party walls would be included in the term, the external parts of premises being those which form the enclosure of the premises, and beyond which no part of the premises extends. It would therefore but for this exception be immaterial whether the external walls were exposed to the atmosphere, or rested upon and adjoined some other building, which formed no part of the premises. See Lord Denman, C. J., in Green v. Gates, 2 Q. B. 225. (16) The expression 'party wall' means(a) A wall forming part of a building and used or constructed to be used for separation of adjoining buildings belonging to different owners or occupied or constructed or adapted to be occupied by different persons; or

(b) A wall forming part of a building, and standing to a greater extent than the projection of the footings on lands of different owners.

Party wall.-Party walls are defined in Gwilt's 'Encyclopædia' as 'such as are formed between buildings to separate them from each other, and prevent the spreading of fire,' by Crabb in his 'Technological Dictionary' as 'partitions of brick made between buildings separately occupied to prevent the spread of fire.' The definition of party wall in the present section is taken from the Local Government Board model byelaws, and is an extension of the former definition in the Metropolitan Building Act, 1855. In addition to the definition in subsect. 16, sect. 58, post, p. 121, enacts that when a wall is, after the commencement of the Act (ie. after January 1, 1895), built as a party wall in any part, or where a wall built before or after such date becomes after such date a party wall in any part, the wall shall be deemed a party wall for such part of its length as is so used. It is difficult, however, to see what useful object is served by this enactment, having regard to the decision of the Court in Knight v. Pursell (11 Ch. D. 412; 48 L. J. Ch. 395;

C

'Party wall.

57 & 58 Vict. c. ccxiii. s. 5 (16).

40 L. T. (N.S.) 391; 27 W. R. 817; 43 J. P. 622), where the
Court held that it was only so much of a wall as had buildings
upon each side of it that was a 'party wall' within the mean-
ing of the definition in sect. 3 of the Metropolitan Building
Act, 1855. Where, therefore, the owner of land upon which
was a boundary wall had built against such wall some closets,
and the owner of the adjoining land erected upon his side of
the wall a substantial structure, it was held that the wall was a
'party wall' within such definition, so far as there were build-
ings upon each side of it. In Knight v. Pursell, Fry, J., said,
'It appears to me, on reading the definition of a party wall
contained in the 3rd sect. of the Act, that the intention is
to define a party wall, not by reference to the rights of owner-
ship which the adjoining proprietors may have in any particular
wall in dispute, but by reference to the mode in which the wall
is used. It is a question, not of title, but of user. The object
of the Act is to limit the acts of private owners for the general
benefit of the public, to prevent the spread of fire, and for
similar purposes.
And, therefore, in order to determine
whether this wall is a party wall, it is not necessary to consider
what rights of ownership the plaintiff and defendant have,
but what is the physical condition, position, and user of the
wall.' With regard to the contention that the Act could not
have been intended to take away the control of the wall from
the proper owner of it, his lordship said that Acts of Parliament
often took away some control of owners over their property for
public purposes, and that he therefore considered the wall in
question to be a party wall, but only so far as it was used by
the plaintiff on the one hand and the defendant on the other as
a support for their buildings. So, too, in The Standard Bank of
British South Africa v. Stokes, 9 Ch. D. 68 ; 47 L. J. Ch. 554;
38 L. T. (N.S.) 672; 43 J. P. 91; 26 W. R. 492, Jessel, M.R.,
said that in his opinion the meaning of the sect. 83 of the Metro-
politan Building Act, 1855, which regulated the rights of building
and adjoining owners with respect to party structures, was that
the section defined all the rights which the building owner was
to have in relation to such a structure, and that such rights were
exclusive, and he had no other rights. The effect, therefore, of
the Act so far as the owner of premises which adjoin other
premises, and are separated therefrom by a party wall, is con-
cerned in the event of his being desirous of doing work which
will affect such party wall, is to enable him to do such things
to the wall as are specified in the Act irrespective of whether or
not he has any property in or easement over the wall, or any
common law rights in respect thereof. On the other hand, so far
as the adjoining owner is concerned, that is to say, the owner of
the premises upon the other side of the party wall, sect. 101 of
the Act preserves any easement he may possess in relation to
such wall and all other rights over it. Consequently, whatever
rights the Act may confer upon the building owner, in the
exercise of such rights he must have regard to the common
law rights of the adjoining owner.

In this view it may be useful to consider what are the rights at common law of the owners of adjoining properties in respect of party structures separating such properties. Now there are four different senses in which the term party wall may be used, and these are given by Fry, J., in his judgment in Watson v. Gray, 14 Ch. D. 192; 49 L J. Ch. 243; 42 L. T. (N.S.) 295. He there said, with regard to the meaning of the word 'party-wall' in a conveyance: What is the meaning of the term "party-wall" as there used? The words appear to me to express a meaning rather popular than legal, and they may, I think, be used in four different senses. They may mean first a wall of which the two adjoining owners are tenants in common, as in Wiltshire v. Sidford (1 M. & R. 404) and Cubitt v. Porter (8 B. & C. 257). I think that the judgments in those cases show that that is the most common and the primary meaning of the term. In the next place the term may be used to signify a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners, as in Matts v. Hawkins (5 Taunt. 20). Then, thirdly, the term may mean a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements. The term is so used in some of the Building Acts. Lastly, the term may designate a wall divided longitudinally into two moieties, each moiety being subject to a cross easement in favour of the owner of the other moiety. In whichever of these senses the term is used, some difficulty arises. In the case of a longitudinal division between the two neighbours, each of them, as was said in Cubitt v. Porter, has a right to pare away one moiety of the wall, and if this was done the moiety of the other owner might be of very little use to him. Again, if the wall belongs to the adjoining owners as tenants in common, it may become the subject of a partition, and then exactly the same difficulty would arise. To meet this difficulty the fourth meaning of the term "party-wall" suggested was by the learned author of the note to Wiltshire v. Sidford.'

In Wiltshire v. Sidford it was held that trespass does not lie by one part owner of a party-wall against the other part owner; and the note mentioned by Fry, J., refers to the statement of Littledale, J., in delivering his judgment in Wiltshire v. Sidford, that 'the property in the wall follows the property in the land. It does not follow that either party might pull the wall down, for each has a right to use the property of the other,' and with reference to this the note is: 'Supposing the respective proprietors of adjoining houses to be each tenant in severalty of his own moiety, with cross-easements in the moiety of the other, if either party took down his own moiety, he would be liable to an action on the case for any injury which might thereby result to his neighbour; and this in some cases might be more beneficial than a tenancy in common; for upon such tenancy in common being destroyed upon a writ of partition

57 & 58 Vict.

c. ccxiii. s. 5 (16).

57 & 58 Vict.

c. ccxiii. s. 5 (17).

'Cross wall.'

(which, being a writ of right, and not of grace, either party, it is conceived, might prosecute), it would seem that the other would have no protection against the injury which was inflicted in Wigford v. Gill, Cro. Eliz. 269.' In Wigford v. Gill the owner of land had erected a mill dam partly upon his own and partly upon his neighbour's land, and the neighbour had pulled down so much of the dam as was upon his land, the consequence of which was that the rest of the dam fell down and the water ran out. The report says 'All the Court held it was justifiable. So if one erects a wall upon his own lands and the land of his neighbour, and the neighbour pulls down the wall upon his land, and therefore all the wall falleth down, this is lawful.'

See also Jessel, M.R., in The Standard Bank of British South Africa v. Stokes, 9 Ch. D., at pp. 71 and 72.

In Weston v. Arnold (L. R. 8 Ch. App. 1084) the Court of Appeal held that a wall might be a party-wall to such height as it belonged in common to two buildings, and cease to be a partywall for the rest of its height.

See also Mayfair Property Company v. Johnston, and the notes to section 87, post, p. 163.

The latter portion of the definition of 'party-wall' appears to have reference to the provisions contained in sect. 81 (6), which enable a building owner, after notice and subject to payment of compensation, to project the footings of the external wall and the foundations thereunder into the land of the adjoining owner. If so the definition applies to any wall a portion of which, greater than the actual footings, is on land belonging to a person who is not the owner of the land on which the rest of the wall is.

(17) The expression 'cross wall' means a wall used or constructed to be used in any part of its height as an inner wall of a building for separation of one part from another part of the building that building being wholly in or being constructed or adapted to be wholly in one occupation.

Cross wall. This expression is defined in substantially the same terms as in the Act of 1855, except that the reference to a building being constructed or adapted to be wholly in one occupation is new. The interpretation must be read in connection with Rule 1 under the heading 'Ceilings,' in Part 2 of the First Schedule to this Act, which provides that no wall subdividing any building shall be deemed to be a cross-wall unless it is carried up to the floor of the topmost storey, and unless in each storey the aggregate extent of the vertical faces or elevations of all the recesses, and that of all the openings therein taken, together does not exceed one-half of the whole extent of the vertical face or elevation of the wall. It will not apply to internal partition walls unless they are made use of as 'return' walls, for the purpose of giving lateral support to external or party walls, as there is nothing in the Act to prevent partition walls not so used being constructed of materials other than

those which are incombustible. See Rule 8 (Preliminary) in 57 & 58 Vict. the First Schedule.

c. ccxiii. s. 5 (18-20).] (18) The expression 'party fence wall' means a wall 'Party used or constructed to be used as a separation of adjoin- fence wall. ing lands of different owners and standing on lands of different owners and not being part of a building but does not include a wall constructed on the land of one owner the footings of which project into the land of another owner.

Party fence wall. The previous Acts contained no definition of party fence walls. From this definition it will be seen that the expression does not include a wall which is part of a building. A party fence wall is, therefore, neither a 'party wall' nor a 'party structure,' within the meaning of the Act.

:

In Gwilt's 'Encyclopædia' a party fence wall is defined as 'a wall separating open ground in one occupation from that in another each owner having a right up to the centre of the wall.' By sect. 197 (17), all party fence walls not exceeding seven feet in height measured from the top of the footings of the walls are exempted from the provisions of Parts VI. and VII. of the Act, which Parts deal with the construction of buildings. The latter portion of the definition apparently means that more than the footings upon one side of the wall to which it refers must be upon the lands of different owners.

(19) The expression party arch' means an arch Party separating adjoining buildings storeys or rooms belong- arch.' ing to different owners or occupied or constructed or adapted to be occupied by different persons or separating a building from a public way or a private way leading to premises in other occupation.

'Party arch. This definition is new. Party arches are defined by Crabb in his 'Technological Dictionary' as Arches built between separate tenements.'

(20) The expression party structure

6

a Party

party wall and also a partition floor or other structure structure.' separating vertically or horizontally buildings storeys

or rooms approached by distinct staircases or separate entrances from without.

Party structures.--See the definition of 'Party wall' ante, p. 17, and the notes thereto.

In Holland v. Wallen, 70 L. T. (N.S.) 396; 10 R. 583, it was argued that a building divided by concrete floors was divided by 'party walls' within the meaning of sect. 27 (4) of the Metropolitan Building Act, 1855. This definition, while making such floors 'party structures,' makes it clear that they are not intended when the expression 'party wall' is used.

Since the expression 'party wall' is confined to walls which