1897 LIST V. THARP. buildings upon the land at an expense of not less than 100,000l. CHITTY J. 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, CHITTY J. and thereupon commenced to execute the works specified in the notice. 1897 LIST V. THARP. 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 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 "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." Byrne, Q.C., and R. Cunningham Glen, in support of the motion. The plaintiff was in possession of the land under clause 6 of the agreement. Under that clause he was entitled to the possession, and when he entered on the land he was lawfully in possession, and he was an adjoining owner within the meaning of sub-s. 29 of s. 5 of the Act, and as such adjoining owner was entitled to notice under s. 90 of the Act; and the defendant, as "building owner," had no right to interfere with the party-wall until he had given the plaintiff the notice required by the Act: Fillingham v. Wood (1); Caudwell v. Hanson. (2) [CHITTY J. referred to Beddington v. Atlee. (3)] (1) [1891] 1 Ch. 51. (2) (1871) L. R. 7 Q. B. 55. (3) (1887) 35 Ch. D. 317. 1897 LIST v. THARP. Levett, Q.C., and Christopher James, for the defendant. The CHITTY J. plaintiff was not an adjoining owner within the meaning of sub-s. 29 of s. 5. He was a mere licensee under Sir Charles Oppenheimer; he was in possession only for the purpose of erecting the buildings, and, his possession being thus limited, he was not in possession within the meaning of the definition in the Act. As the lease was granted to the plaintiff before the work on the wall was actually begun, his rights became merged in the lease, and he was in no better position than Sir Charles Oppenheimer. We submit that the notices served on Sir Charles were sufficient under the Act, and that we were not bound to serve them on the plaintiff; and, putting aside for the time the question as to whether the wall in question was a "party fence" wall or a "party-wall or party structure," the interim injunction ought not to be continued. Byrne, Q.C., in reply. Cur, adv. vult. 1897. Jan. 13. CHITTY L.J. (1) The question is whether the defendant was bound before commencing the work on 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 :-] Clause 5 of 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. 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 (1) The learned judge had been of Appeal since the hearing of the appointed a Lord Justice of the Court case. CHITTY J. only for the purpose of erecting the buildings, and, consequently, 1897 LIST v. THARP. 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 private dwelling-house only. 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 his 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. 1897 LIST I see no reason for questioning the conclusion arrived at in CHITTY J. Beddington v. Atlee. (1) 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. Solicitors: W. H. Southern; Stibbard, Gibson & Co. v. THARP. (1) 35 Ch. D. 317. G. M. |