SUPREME COURT.

Dominion, Volume 1, Issue 4, 30 September 1907, Page 6

SUPREME COURT.

A LANDSLIP AND LITIGATION. IMPORTANT JUDGMENT. At the Supromo Court on Saturday, before His Honour the Chief Justice, the case of George Jucltl, settler (appellant), v. Johanna Byrne, devisee under the will of the lab Jeremiah O'Brien, and Richard Duignan, executor (respondents), was heard. This was an appeal from the dceision of Dr. M'Artliur, S.M. In the lower Court, appellant (who was pla-ntiff) claimed £117 10s. damages, mit jiidgment went for the respondents (the defendant.'>. There was, His Honour said, apparently no dispute 1 about' the facts. O'Brien was the owner of certain freehold land from ISSO or ISSI Tint!! bis death, 011 January 9, IS'JG. By bis will, lie devised the land to ,'oliauna Byrne for her life. In 1599. iudd purchased the adjoining land, the freeholder thereof. /'Brien had, in the 'SO's, made an xcavation on his own land, whicli (amoved tho lateral support of the and purchased .by Judd. To pre--ent damage or a slip lie substituted • wooden support for the natural support. From time to time O'Brien epaired tho breastwork. Seven years ■iter his death,'tho breastwork, hav;icr, through exposure to wind and •am, perished, ceased to be. a support, ifnd a big slip of Judd's land iccurred. To save his land Judd had :o orect a concrete wall, and lie claimed for the slip, assessing his lamagcs at the cost of tho wall. It was clear, the Chief Justicc ■leld, that no action could lie against the executor, because 110 tort wac l,;omniitted in .O'Brien's lifetime. The 'aw was that an owner could make

excavations on his own land so long •,s no damage was sustained by that •f his neighbour and that no action nould lie for excavations until ,dam.go • accrued. The question, then, /as whether the' successor in title,

iavilig obtained the land with this artificial support, pould stand by and dlow it to perish and bo free froir liability. If artificial support had not been substituted for the original soil, 10 doubt a slip would have occurred ifter the first heavx shower of rain', md an action could have been commenced against O'Brien. Tho slip in quostio).! had occurred because the artificial support had been neglected, and not maintained by > the present iwner, who, in the opinion' of the CJourt, was, on principle, liable.

His Honour then proceeded to disr.:ss the' position of land so far as support was concerned. Tho groat English : judges who had had to conjider what both lateral and subadja■;ent support signified' had, ho said, lesignated the support as a right of property. ' Others had designated ■ atcral support a servitude imposed ;n tho land. It could-not bo suggested that this right' of property or icrvitudo could be annulled by trans'er of tho adjoining land. In tho present case, when the life tenant one of tho respondents)' got possession of the lancl, ■ there was support So' appellant's land. If sho had removed the- support! it could not havo ■icon contended that sho would not \avo been liable. . Allowing this artiicial support to fall into disrepair ras, 111 the opinion of the Court, iquivaleut to removing it. The point vas: Was iti her duty to maintain tho lateral support existing? If it lad been' tho natural support, and iho or her predecessors in title had Mono nothing to weaken it, then she .vould liavo had no duty regarding it. But if it would have been the duty of her predecessor in titlo to maintain this artificial support, the Court must hold that, in taking land .vith such support, sho, assumed a duty to maintain it. It appeared to His, Honour that, if. it were hold there was no liability on the part of either the first owner. or his succossor, then this " right of property," this'"servitude," was got rid of, and an adjoining owner, whose property had 1 been damaged, was without redress. If, however, it were held that the original excavator, if alire, were liable, then an onerous responsibility was cast on one who had been an owner of land and. had aiade excavations. Such a seller might be ruined, and that without my wrong or neglect on his part. ■30. had no right to go on the land he. had sold'to repair the artificial' support he had made. . Of what tort, therefore, was ho guilty? It might be said that ho-could havo protected himself by covenants or by reserving a right to repair the wall, but the inconvenience of. such, a procedure Jid not need, to bo pointed out. S'urthor, to hold him liablo seemed to the Court to bo severing tho-right of support of tho land from the land, making it cease to be a servitude, and making it only a personal responsibility of a prior owner'. 'Would an owner who erected on his land a flap-door for his cellar be liable if a successor in titlo let it fall into disrepair and someone was injured? Was not this artificial support ana'lopioiiS' to this flap-door? . Concluding a lengthy judgment, His Honour said: —" In a town liko Wellington, so hilly and so'precipitous,' the case is of immense importance. If an owner of land can miiko excavations and leave them supoorted so as to V prevent an action in -.lis lifetime, or whilst lie remains ownor, and the^incoming. owner is not liable, then a very serious inroad has been made on the rights of property. According to principle, the right of appellant should be sustained. I admit there no precedent for sustaining it, and that tho two cases referred to are, so far as some of the expressions of the Judges are concerned, against it; but, in reason and logic, land according to the law af real property, his right ought to be maintained." , His Honour allowed the appeal so far as tho lifo tenant (Johanna liyrno) was' concerned, and remitted tho case to tho Magistrate to assess damages on tho assumption that she was-, lift bio for the slip, unless it could he shown by her that thero was some " vis major" which was the cause of the slip, and not the neglect to keep the breast-work in order. The judgment, so far as' theioxccutor (Richard Duignan) was . concerned, woald stand.

"Seeing that this was a caso of what may bo termed first impression," said His Honour, " and that I cannot say the Magistrate was wrong in following the dicta and judgment of two judges of the High Court of Justice, I shall not allow costs." I

Leave to appeal without security of costs was granted on tho appeal of Mr. Dovine, who appeared for respondents. Mr. Skerrott, 'K.C. (with him Mr. Weston) represented the appellant.