LIABILITY FOR A LANDSLIP.

Dominion, Volume 1, Issue 261, 28 July 1908, Page 4

LIABILITY FOR A LANDSLIP.

AN IMPORTANT POINT. APPEAL ALLOWED. The Court then delivered its judgment in the case between Johanna Byrno (appellant) and George Judd (respondent). Shortly put, the facts in this case were:— One Jeremiah O'Brien owned certain freehold land in the city of Wellington from 1880 or 1881 till his death on. January 9, 1896. By his will lie devised the land to Johanna Byrno for her life. Judd purchased the adjoining land in ; 1899. In the "eighties" O'Brien made all excavation on his own land which removed the lateral support of tho land purchased by Judd. To prevent damage or a slip he substituted a wooden support for tho natural support. This breastwork remained during O'Brien's life, and ho from time to time repaired it. Seven years after O'Brien's death tho breastwork having through exposure to wind ?nd rain perished ceased to bo a support and a big slip of Judd's land occurred. To savo his land Judd\had to erect , a concrete wall and to mako it a support for his land, and ho claimed for tlie slip • assessing His- damages at the cost of tli'o wall, £117.105. . Two questions were, raised: (1) Was the life tenant liable? ' (2) Were the .executors of;O'Brien liable? The Magistrate had held that as the life tenant did not excavate there was no-lia-bility on her part, and that if O'Brien were guilty of a tort, tho right of action died with him. The Chief Justice wlio heard the appeal from the decision of tho Mneistrite held that no action could lie against tho oxecutors, because no tort was committed in O'Brien's lifetime. It appeared to his Honour that on principlo the life t-cnarit was liable. Allowing tho support to, f*U into disrepair was, ho thougnt, equivalent to removing it. ' Tho case was ordered to bo remitted to' tho Magistrate to assess the damages on tho assumption that Byrne was liable for the -slip unless it could be shown by her that thero was some viq major which was tho causo, of tho slip, and th»t th« cause was not neglect to keop the breastwork in order. ' ....

Mr. Justice Donniston, who presided at! tho hearing, said it was admitted -that- on tho appellant's contention a landowner might excavate his .land.. in a_ way .which, .in.,th.c ordinary course, must inflict serious injury to his neighbour's land with substantial benefit to-himself ; might shovp up such.,bank'in such a 'way as to. prevent' i.ho injury occurring in his own life timo; and if ho had in tho meantime parted with tho land, such neighbour was without a remedy. This seemed a startling rosult ; hut'any'view of tho law as to lateral or subjacent support of adjoining'lands'led to cases-of hardship. Up to a comparatively recent date thero had been much.diversity of judicial opinion on the subject; ' No oxactly similar ease, as far as he was aware, had ever been decided. "What had been done or had happened which it was tho duty of tho appellant to'take 'care to prevent? Tho Chief Justice had said that the slip had taken place through tho neglect of tho present owner. He called the obligation. to maintain it a right of property or servitude which could not bo annulled by transfer of tho adjoining land. But it wa3 not: a servitude, a landowner could not create a servitude in respcct of another and dominant tenement without the agreement of the other. Even such an agreement would not create- a servitude.- In the present case tho appellant found a perfectly lawful state of things existing, and did nothing to alter that state of things. Wherein had that offended ? ■ The same considerations to a great extent applied to tho argument based on nuisance with which the Court was strongly pressed. Had Mr, O'Brien neglected to maintain the breastwork, he would not have been liable till:there was a subsidence; and then his liability would have arisen not from so neglecting to maintain, but from the original excavation followed by the subsidence. In his opinion, if the Court allowed tho respondents to succeed, it would creato a right of action whicli had never'been recognised in a Court of law, and which -he could not find justified in any principle. Justices Edwards, Cooper, and CJiapman concurred.

The appeal was allowed, with costs in tho Court below £10 and , disbursements and costs in tho Court of Appeal on tho lowest scale. • Mr. Devino appeared on behalf of tho appellant, and Mr. Skerrott, K.C., (with him Mr. Weston) for tho respondents