IMPORTANT JUDGMENT

New Zealand Times, Volume LI, Issue 11784, 21 March 1924, Page 8

IMPORTANT JUDGMENT

SUBSIDING SECTION SIR JOHN SALMOND DISCUSSES RESPONSIBILITY. PLAINTIFF SUCCEEDS. A judgment of imnortance to property owners was delivered by Sir John Salmond! in the Supreme Court yesterday The plaintiff in the action was Ernest Samuel Knight and the defendant Ernest Bolton. The case, which he had to con aider, was set out by His Honour as follows: —“The plaintiff and the defendant are the adjoining owners and occupiers of two sections of land in the City of Wellington. Tho plaintiff acquired his title in 1906 and fine defendant in 1911. Both title© were acquired independently front or through a previous owner in whom bottti sections wore originally vested. Tne defendant's land is on a higher level than that of the plaintiff, there being a perpendicular face several feet in height between the two properties. This free is supported by a wooden retaining wall formed of posts and sheathing, andl standing upon the boundary line. On the plaintiff's side of this retaining wall and a few inches therefrom stands a brick wall considerably' lower than the wooden wall. The plaintiff alleges that the defendant's land immediately in contact with the wooden retaining wall is not a natural formation, but consists of an artificial accumulation of soil placed there by the defendant's predecesoor in title for the purpose of levelling the ooction. The plaintiff further alleges that the weigh!; of this artificial accumulation, pressing against the wooden retaining wall, has forced the Wall forward against the adjoining brick wall of the plaintiff, with tho result that tho brick wall has been fractured and displaced, and that there is a serious and imminent danger that the brick wall, the wooden retaining wall, and the accumulation of material behind it, will all give way and fall upon the plaintiff's property. To prevent such an accident the plaintiff has taken temporary measures of self-protection by shoring up tho brick wall with timber supports placed l between it and his adjoining dwelling house. In this action he claims damages for the injury already done to the brick wall, together with an injunction against the continuance of the danger so complained of. A PLEA THAT "COULD NOT BE SUSTAINED."

"The defendant pleaded, in the first place, that the fracture and dislocation of the plaintiff's brick wall is not due to any pressure exercised by the wooden retaining wall, but is due to inherent defects in the foundations of the brick wall itself. The evidence satisfied His Honour that this plea could not bo sustained. The brick wall had been fractured and forced out of position by the forward movement and pressure of the wooden retaining wall. The defendant further contends that his land behind the retaining wall is for practical purposes in its natural condition, not having been built up behind the wall by any appreciable or substantial accumulation of soil capable of exercising any destructive pressure upon the' retaining wall. In other words, the defendant alleges that the perpendicular face between his section and the plaintiff's has been created by the cutting down, or excavation, of the plaintiff's section, and not by any artificial raising of the defendant's The defendant contends accordingly that inasmuch as any falling away of his own section into or towards. the plaintiff's section is due to the act of the plaintiff or his predecessors in title in depriving the defendant's section of its natural support, the defendant is under no duty to provide any artificial support and is under no liability for any resulting subsidence. Tho evidence, however, is against the defendant on this point. I am satisfied that although there nas been some cutting down of the level of the plaintiff's section at the boundary, and although the perpendicular face for part of its height has been so produced, tnere is a substantial part of tne boundary in which the face has for a substantial part of its height been artificially created in the manner alleged by the plain tiff, and that the mischief now complained of is due t to the lateral pres sen re and slippings of the material so accumulated by the defendant's predecessor in title behind the retaining wall for the purpose of levelling tho section. PLAINTIFF PROVES HIS CASE. "As to the facts, therefore, I find that the plaintiff has proved hie ca6o. It is contended by the defendant, however, that even on those facts He is under no legal liability. It remains, therefore, to consider the law on this matter. The plaintiff's cause of action is nuisance. He complains of the actual or apprehended escape into his land from that of the defendant of a dangerous thing kept by the defendant, namely, an artificial heap of soil. He contends that the defendant, as the occupier of the adjoining land, is under a legal obligation to prevent the slipping of that soil into his neighbour's land, just as he is undor a duty to prevent, the eepape of sewage or of fire. The defendant contends, on the contrary, that he is under no liability, because the dangerous accumulation of soil complained of was not brought upon the land by himself, but was already there when he first acquired the land, having been brought there by a predecessor m title. He contends that as he is not responsible for haring created the .dangerous state of things complained of, he is not under any obligation to put an end to it, or under any liability for mischief so resulting to his neighbour. I am unable to accept any such restriction of the mutual obligations and liabilities of adjoining occupiers. As I understand, the matter, the obligation of an occupier to prevent the escape into his neighbour s land of dangerous things artificially brought upon his own land, extends to things 60 brought by his predecessors in title no less than to things so brought by himself LIABILITY FOR SUBSIDENCE.

Tho next contention raised by tho defendant is that he is not liablo for the su'bsidonoe or slipping of his land, since ft Is due to a circumstance wholly unknown to him, namely, the fact that his mnd wus not in its natural condition, but had .been madlo up by on artificial accumulation of soil. In other words, tho defendant contends that even if an occupier is liable for the ©scape of dangerous things brought on his land by a predecessor in title, this liability does not extend to dangerous things, the existence of which is unknown to him and the existence of which he has no reason to believe. I do not doubt that in the present case the defendant was ignorant of the fact that the vertical face between his own property and that of the plaintiff was due not to the excavation of the plaintiff's land, but to the artificial raising of the level of the defendant's. If, therefore, tho defendant’s land had given way suddenly and without warning, and had fallen with destructive effect upon the plaintiff's land, or house, a serious question would have arisen whether thre defendant wquld have been liable in damages. In the present case the defendant had ample warning of tho mischief complai.ied of. No less than flvo years ago tho first premonitory symptom of the collapse of tho wooden retaining wall was observed by the plaintiff and called to the defendant’s attention. One of the posts of the retaining wall gave way and fell forward until it touched and cracked iho plaintiff's brick wall at one poiht. Tho defendant thereupon took measures to prevent further aubddonoo by tying back the post with wire. These measures were, however. insufficient. Further damn:?© had ensued to the plaintiff's wall, and there is serious danger of a collapse of loth walls and of the soil behind. In theso circumstances I think that the defendant is liable for the damage so done. W© had notice that his land was slipping into the plaintiff's lands he wilfully or negligently failed to take adequate measures to prevent it, and he oannot be hoard to say that by mistake of law or

fact he thought that it was none of hfif business and that ho was under no obt ligation As to the plaintiff’s claim foff an injunction, the question as to the d©* fendant’.? knowledge of tho true facts is irrelevant. It i.s his duty, in accordance with the facts an they actually are, to prevent the danger of which the plaintiff complains, and the plaintiff is entitled to an injunction accordingly. "THE BETTER COURSE." “I do not propose, however, at the pr®» sent stage either to grant an injunction or to assess damages. 1 think that the better ©ours© is merely to make a declaration as to the rights of the partieethereby affording them an opportunity of mutual agreement as to the proper step© to be taken by way of erecting a substantial retaining wall or otherwise, for the purpose of putting the boundary between these two properties into a safe and satisfactory condition. If the parties cannot agree, damages will be assessed and on injunction granted on further consideration. I declare accordingly that the obligatioi of preventing the subsidence and collapse of the wooden retaining wall and tho accumulation of soil behind that wall lies upon the defendant, rrd that the plaintiff is entitled to damages for the injury already done to his property. The plaintiff will have the costs of the action on the lowest 6cal* with an allowance of £7 7s for a second day of trial, and the action is adjourned for further consideration." Mr H. IT. Cornish appeared for th« plaintiff and Mr C. A. L. Treadwell flo* the defendant