Odger's English Common Law

590 DISTURBANCE OF EASEMENTS, &C.
house, 1 where he said, ' The right to support of land and the right to
support of buildings stand upon different footings as to the mode of
acquiring them, the former being primd facie a right of property analogous
to the flow of a natural river, or of air, though there may be cases in which
it would be sustained as a matter of grant, whilst the latter must be
founded upon prescription or grant, express or implied ; but the character
of the rights when acquired is iu each case the same.' Land which affords
support to land is affected by the superincumbent or lateral weight, as by
an easement or servitude ; the owner is restricted in the use of his own
property in precisely the same way as when he has granted a right of
support to buildings. The right therefore, in my opinion, is properly
called an easement." 2
In the case, from which the above passage is cited, the House of Lords
-decided that a twenty years' enjoyment, nee vi, nee clam, nee precario,
was sufficient at common law to confer a right of support to buildings as
against neighbouring land. In dealing with the question whether the
•enjoyment of such support was not, in effect, a secret enjoyment, Lord
Selborne said, " There are some things of which all men ought to be presumed
to have knowledge, and among them (I think) is the fact that>
according to the laws of nature, a building cannot stand without vertical
•or (ordinarily) without lateral support." In the same case Lord Selborne
(with whom Lord Coleridge, 0. J., concurred) laid it down that such a
right of support was an easement within the meaning of section 2 of the
Prescription Act ; and in a subsequent case it was held that the right of
support for buildings could also be acquired against buildings as opposed
to land, and was within section 2 of the Act. 3
This principle was applied in Ireland to impose a liability upon the
-owner of a building separated from that of the plaintiff by an intervening
house. It was there held that, as the evidence showed that the injury was
caused by the rebuilding of the defendant's premises, he was liable for the
damage suffered by the plaintiff, even though the rebuilding had been
performed with due skill. 4
(b) Right to the Flow of Water.
Next as to the right to the use and enjoyment of running
Primd facie the
water possessed by a riparian proprietor. 5
owner of each bank of a stream is the owner of half the land
covered by the stream, but there is no property in the water.
1 (1858), E. B. & E. at pp. 664, 655 ; affirmed (1861), 9 H. L. Cas. £03 ; and see
Spoor v. Green (1874), L. it. 9 Ex. 99, 111.
2 Per Lord Selborne, L.C., in Dalton v. Angus (1881), 6 App. Cas. at p. 792 ; and
see the remarks of Lord Campbell in Humphries v. Brogden (1850), 12 Q. B. at
,p. 742.
» Lemaitre v. Davis (1881), 19 Oh. D. 281.
4 Latimer v. Official Co-operative Society (1885), 16 L. B. Ir. 305, distinguishing
Solomon v. The Vintners' Co. (1859), 4 II. & N. 585.
6 A riparian proprietor is a person who owns land abutting on a river.