These statutory provisions do not exclude the ordinary right of a purchaser to support from adjacent land situate beyond the purchasing limits; and, therefore, where a vendor has sold land to a railway company for the erection of a bridge or a viaduct, he cannot excavate his own adjoining land, situate beyond the purchasing limits, so as to deprive the bridge or viaduct of the necessary adjacent support.(o). The 81st section of the 8 Vict. c. 80, enacts "that a railway company shall from time to time pay to the owner, lessee, or occupier of mines extending so as to lie on both sides of the railway, all such additional expenses and losses as shall be incurred by such owner, etc.," by reason of the severance of the surface land, or of the continuous working of the mines being interrupted, or by reason of the same being worked so as not to prejudice the railway, and in case of dispute as to the amount "of such losses and expenses," the same shall be settled by arbitration. An arbitrator may, under this section, include damage not actually incurred, but which will be necessarily incurred by the mine-owner, by reason of the severance, and the interruption in the working of his mines, if it be reasonably ascertainable(p).

It has been held that clauses in Canal Acts, requiring coal owners to give notice to canal companies of their intention to work their mines within a certain distance of the canal, and giving liberty to the company to inspect the works, and to prohibit the owners, upon compensation being made, from working within that distance, were framed for the purpose of enabling the company to purchase out the rights of the coal owners, if they thought their canal works likely to be endangered by the nearer approach of the miners; that if the company declined the purchase, the coal owners were left to their common law rights, as if no canal had been made, and they might take every part of their coal in the same manner as they might have done before the Act passed, their former rights in that respect not having been taken away by the Act, which has only appropriated the surface of the land, and so much of the soil as was necessary for the cutting and making of the canal, leaving the coal, etc., to the owners, to be enjoyed in the same manner as before(7.)

"The difficulty which arose upon the Dudley Canal Act was this, that the wording of the clause there, 'doing no damage,' was coupled

(0) Elliot v. North-east Rail. Co., 32 Law J., Ch. 402. N. E. R. Co. v. Crosland, 32 Law J.

Ch. 353.

(p) Whitehouse v. Wolverhampton Rail., L. R., 5 Exch. 6. (g) Wryley Canal Co. v. Bradley, 7 East, 371.

with the power of the company to purchase, and it seemed, in the judgment of the court, to be a useless and frivolous clause, unless they gave a wider interpretation to the words 'working without doing damage,' because, they said, if it is to be a simple and absolute clause that no damage shall be done, it is a very idle thing to put the company upon the terms of purchasing "(r). But where there is no clause in the Act requiring the railroad or canal proprietors to procure immunity from damage by purchasing the minerals, and authorizing them to make the purchase, the mine-owner cannot work his mine so as to destroy or injure the railroad or canal(s). And the same principle applies if the works and excavations of the mine-owner, endangering a railway structure, are situate beyond the purchasing limits, so that the clause does not apply(t). If a mine-owner, having worked up to the purchasing limits, gives notice to the company, and the company decline to purchase the minerals, and the mine-owner proceeds with the working of the mine under the railway, and the soil sinks, and the railway drains and drainage works become choked up or destroyed, and the surface-water from the railway percolates through the earth, and floods the mine, the railway company is in general bound by statute to make good the damage and rebuild the drains, and this from time to time, as the earth subsides through the working of the mine(u).

125 Servitude of support from one house to another, where several houses

common

have been built together, so as to require mutual support.-Where a number of houses have been built together by one owner, so as to require and receive mutual support, there is, either by a presumed grant, or by a presumed reservation, a right to such mutual support for their protection or security, so that if the houses are afterwards sold and conveyed to different individuals, this mutual dependence of one house upon another, and right to mutual support, continues(); and if several adjoining landowners, by common consent and agreement, build their houses together, so that the house of one of them rests upon and requires the support of the adjoining house, there would be an implied grant of a right to mutual support; and this right would continue, notwithstanding alterations in the ownership of

(r) Wood, V.-C., North-East. Rail. Co. v. Elliott, 29 Law J., Ch. 811.

(s) Reg. v. Aire & Calder Nav. Co., 30 Law J., Q. B. 337.

(f) North-East. Rail. Co. v. Elliott, 2 De G. F. & J. 423; 30 Law J., Ch. 160; 22 Law J., Ch. 402.

(u) Bagnall v. Lond. & North-West. Rail. Co., 7 H. & N. 423; 31 Law J., Exch. 121. (v) See Rogers v. Sinsheimer 50 N. Y. 646; Partridge v. Gilbert, 15 N. Y. 601.

the houses by sale, mortgage, devise, etc.(x). But if two houses are built against each other, with separate and independent walls, resting upon separate and independent foundations, so as to stand independently of each other, one house has no right to an easement of support from the other(y).

126 Accessorial servitude of support where the separate floors of a building are granted to several different proprietors.—If the owner of a house conveys the upper story to a purchaser, there is an implied grant of support from the lower stories, so that the owner of the latter cannot interfere with the walls and beams upon which the upper story rests, and prevent them from affording proper support(z). And if a man builds a house, and forms each story or flat into a separate dwelling, and sells or lets the different stories of the house to different individuals, there is an implied grant to every purchaser or hirer of the rooms of all such adjacent and subjacent support as may be necessary for the maintenance and enjoyment of each respective dwelling. And when the different floors and flats of the same house are held as separate freeholds by different individuals, the owner of the lower rooms and foundations is in general bound to uphold and maintain the main walls and necessary supports of the rooms above(a).

"Where I have a chamber below, and another has a chamber above mine, as they have here in London, in this case I may compel him who has the chamber above to cover his chamber for the salvation of the timber of my chamber below; and in the same manner he may compel me to sustain my chamber below, by the reparation of the principal timber, for the salvation of his chamber above"(b). There is a writ in NATURA BREVIUM to a mayor, to command him that has the lower rooms to repair the foundation, and him that has a garret to repair the roof; and that is grounded upon a custom (c).

If the owner of a house grants the upper rooms to be holden and enjoyed for life or in fee, reserving to himself the lower rooms, he

(x) Richards v. Rose, 9 Exch. 221. See Brooks v. Curtis, 50 N. Y. 639. As to the rights and liabilities of the several owners of adjoining buildings in respect to party walls under the statutes of Pennsylvania, see Dunlop Laws of Penn. (ed. 1847) ch. 31, p. 39; act of 1721; Roberts v. Bye, 30 Penn. St. 375.

(y) Solomon v. Vintners Co., 4 H. & N. 598. Peyton v. Mayor of London, 9 B. & C. 736. Kempston v. Butler, 12 Ir. C. L. R. 516.

(z) Caledon. Rail. Co. v. Sprot, 2 Macq. 450.

(a) Richards v. Rose, 9 Exch. 221; 23 Law J., Exch. 3.

Humphries v. Brogden, 12 Q. B.

747. McConnel v. Kibbe, 33 Ill. 175. See Rhodes v. M'Cormick, 4 Iowa, 376.

(b) Anon. Keilw. 98, pl. 4. Anon. 11 Mod. 8. Graves v. Berdan, 26 N. Y. 498, 501. But see Loring v. Bacon, 4 Mass. 575; Cheesebrough v. Green, 10 Conn. 318; Ottumwa Lodge v. Lewis, 34 Iowa 67.

(c) Tenant v. Goldwin, 6 Mod. 314; 2 Ld. Rayın. 1093; Fitz. Nat. Brev. 127.

impliedly undertakes not to do anything which will derogate from his own grant. If, therefore, he were to remove the supports of the upper room he would be liable to an action(d). And if he conveys the house to another by deed, reserving a lower story to himself, with powers of enlarging and altering such lower story, those powers must be exercised so as not to interfere with or endanger the necessary support to the rooms above, unless the right of support is expressly renounced by the grantee of the upper stories(e).

By the French law, "when the different stories of a house belong to different proprietors, and the titles to the property do not regulate the mode of reparations and reconstructions, they must be made in the following manner:-The main walls and the roof are at the charge of all the proprietors, each in proportion to the value of the story belonging to him. The proprietor of each story makes the floor belonging thereto; the proprietor of the first story erects the staircase which conducts to it; the proprietor of the second story carries the stairs from where the former ends to his apartments; and so of the rest"(f).

127 Grants of the privilege of a free passage of light and air to newlyopened windows across the adjoining land of the grantor must be authenticated by deed, or established by implied grant, or by prescription. If a parol license or permission is granted to a neighbor to open a window overlooking the adjoining ground of the defendant, the parol license will not prevent the defendant from building a wall on his own land, and thereby shutting out the light and air from the newly-opened window. If, therefore, permission not under seal is given to a defendant, to open a window in his house overlooking the plaintiff's garden, and the plaintiff, after the window has been opened, finding that his privacy has been invaded, builds a wall on his own ground which blocks up the offending window, and the defendant then enters upon the plaintiff's land, and knocks the wall down, he will be responsible in damages for a trespass, and cannot justify his entry upon the plaintiff's land under color of the parol license to open the window(g).

128 When the privilege of free passage for light and air across adjoining land passes as accessorial to a grant or conveyance. If the owner of a house and the surrounding land sells the house without the land,

(d) Parke, B., 5 M. & W. 71.

(e) Smart v. Morton, 5 Ell. & Bl. 47.

Cod. Civ. liv. 2, tit. 4, art. 664.

C) Bridges v. Blanchard, 1 Ad. & E. 549. Wood v. Leadbitter. Lee v. Stevenson, ante, p. 99.

AD. VOL. I.-8

free passage for so much light and air as may be reasonably necessary for the beneficial occupation and enjoyment of the house is impliedly granted by the vendor across his own adjoining unsold land, unless the privilege is excluded by the express terms of the conveyance. The vendor, therefore, cannot build on his own adjoining land so as to obstruct the access of light and air to the windows of the house. Having granted the house, he can do no act in derogation of his own grant. And if he sells and conveys the house to one man, and the adjoining land to another, the purchaser of the adjoining land cannot build so as to darken or obstruct the windows of the house, although such adjoining land may have been described as building-land, and the intention to build thereon may have been known to the purchaser at the time he purchased it(h). But where the owner in fee of an ancient house, and of the land surrounding the house, sold such surrounding land without the house, and the purchaser built thereon, so as to obstruct the access of light and air to the windows of the ancient house, it was held that the owner had no remedy for the injury, and that there was no implied restriction on the right of the purchaser to build as he pleased on his own land(i).

Where the shell of an unfinished house was sold, with openings in the walls for the insertion of windows and doors, it was held that the vendor could not, after the sale and conveyance of the unfinished structure, build on his own adjoining land, so as to obstruct the access of light and air to the spaces left for windows, or place obstacles in the way of the exercise of a right of way to the apertures intended for doors. And when two separate purchasers buy two unfinished houses from the same vendor, and at the time of the purchase the spaces for windows and doors are marked out, this is a sufficient indication to the purchasers of the rights they are respectively to enjoy; so that they cannot subsequently interfere with each other's enjoyment of the windows and doors as marked out and impliedly agreed upon at the time of the sale(k). So if two lessees of houses derive title from the same lessor, the one cannot, by buildings or erections, encroach upon

(h) Palmer v. Fletcher, 1 Lev. 122. Bayley, B., Canham v. Fisk, 2 Cr. & J. 128. Swansborough v. Coventry, 9 Bing. 305. Janes v. Jenkins, 34 Md. 1. Story v. Odin, 12 Mass. 157. Hubbard v. Town, 33 Vt. 295. Lampman v. Milks, 21 N. Y. 505. Gerber v. Grubell, 16 Ill. 217. Simmons v. Cloonan, 2 Lans. (N. Y.) 346, 351. Oregon Iron Co. v. Trullinger, 3 Oregon, 1, 6. United States v. Appleton, 1 Sumn. 492, 502. Maynard v. Esher, 17 Penn. St. 222, 226. To the contrary see Mullin v. Stricken, 19 Ohio St. 523; Haverstick v. Sipe, 33 Penn. St. 368; Morrison v. Marquardt, 24 Iowa, 35.

(i) White v. Bass, 7 H. & N. 722; 31 Law J., Exch. 283.

(k) Compton v. Richards, 1 Price, 27. Glave v. Harding, 27 Law J., Exch. 286.