case is not one of an easement, but one of natural right of support for the soil, which has been repeatedly decided not to be lost, even when the owner of the surface has parted with a lower stratum of soil (y). Nor is this right affected by the character of the surface, the owner of Snowdon or Skiddaw is as much entitled to support for his soil as an owner of land in Romney Marsh. Now it is a maxim of English law, that whatever is affixed to the soil becomes, in contemplation of law, a part of it (z). Therefore, if a man were to throw up an artificial mountain, or raise houses to any height upon his land, in the contemplation of law they would be part of the land itself. It is true, that he could not impose upon the owner of the adjoining land the burden of the additional support required, until a right thereto was acquired by prescription or implied grant (a). But if the owner of the adjoining soil be himself the person erecting the mound or building which throws upon it the burden of additional support, there is then no person to object to such (y) Dugdale v. Robertson, 3 K. & J. 695; Smart v. Morton, 5 Ell. & Bl. 30; Caledonian Railway Company v. Sprot, 2 Macq. 449. In this case the House of Lords intimated that the same result would follow on the demise of the lower story of a house, reserving the upper story. Wentworth's Office (z) "Quicquid plantatur solo, solo cedit." of an Executor, 14th edit. p. 145. For the explanation of this maxim, vide Broom's Legal Maxims, 3rd edit. p. 387. So in the Roman Law, omne quod solo inædificatur, solo cedit."-Inst. II., Tit. I. 29. 66 (a) Wilde v. Minsterley, 2 Roll. Abr. 565; Wyatt v. Harrison, 3 B. & Ad. 871; Partridge v. Scott, 3 M. & W. 220. Such a right does not come within the Prescription Act, 2 & 3 Will. IV. c. 71, but can only be acquired by the modes known to the common law. Bonomi v. Backhouse, E. B. & E. 622; Dom. Proc. 7 Jur., N. S. 809. additional burdens, and the new erections will at once become part of the land, and be invested with the ordinary legal rights thereof, one of which is the right to support. And these ordinary legal rights will of course remain on any severance of the property, except excluded or varied by agreement. On the same principle rests the case of Robins v. Barnes (b), which is one of the cases cited by Mr. Gale as supporting his opinion on this question. It is there said, "If A. is seised in fee of a house which hath certain windows by prescription, and B. hath another house close adjoining to that, and B. tortiously erect a structure on his own frank tenement which overhangs the house of A. and thereby stops his light, and, after, B. purchase in fee the house of A., and afterwards grant by lease to C. the house which was the house of A., C. has no remedy to abate this nuisance;" and in another report of the same case (c), it is stated that the court agreed, "That though one of the houses had been built overhanging the other wrongfully before they came into one hand, yet after, when they came both into the hand of Allen, that wrong was now purged, so that if the houses came afterwards into several hands, yet neither party could complain of a wrong before." The first part of the decision is perfectly clear, that the grantee of the house could not claim an easement not enjoyed by the house at the time of his purchase. The second is to the effect, that on the purchase by the owner of the overhanging house of the tenement which it overhung, and whose (b) 1 Roll. Abr. 936. Extinguishment, D. pl. 7. rights it thereby infringed, the house became as against all the world part of the land, and its overhanging position was therefore no injury to any man in the eye of the law. The other branch of cases in which the right to window lights arises by implied grant, is that in which the owner of two tenements, one of which enjoys a quasi-easement over the other, disposes of them simultaneously without any valuable consideration to two different persons, either by his will or by a voluntary conveyance. In this case the quasi-dominant tenement will retain its easement, or rather a similar easement will be created de novo in its favour, provided that such easement be continuous and apparent (d). For here we really have the case which the French law, by a fiction, presumes to exist in every case of the severance of two such tenements, that of the owner of an entire heritage imposing upon the different portions of his estate mutual services and obligations, which he intends to accompany such portions when divided among the different objects of his bounty. The doctrine of a grantor not being able to derogate from his grant does not affect these cases, as here all that each donee takes is from the free bounty of the donor, and this bounty is to be measured by his intentions either expressed or presumed in the absence of expression. In the case of Polden v. Bastard (e), where two (d) Apparent would no doubt be held to mean that which is apparent upon a careful inspection by a person ordinarily conversant with such matters. Vide Pyer v. Carter, 1 H. & N. 922; Gale on Easements, 3rd edit. p. 85. (e) 4 Best & Sm. 258. tenements had been severed by will, the Court of Queen's Bench decided that a discontinuous easement would not pass with one of such tenements, unless words were used in the will expressly creating the casement de novo. But Blackburn, J., said, "If with this cottage there had been enjoyed a continuous easement, then, by what is called the law of the disposition of two tenements, an easement would have passed at the time of the severance." And in Pearson v. Spencer (f), where two properties had been devised to different devisees, the same judge said, "We do not think that, on the severance of two tenements, any right to use ways, which during the unity of possession have been used and enjoyed in part, passes to the owner of the dissevered tenement, unless there be something in the conveyance to show an intention to create the right to use those ways de novo. We agree with what is said in Worthington v. Gimson (g), that in this respect there is difference between continuous easements, such as drains, &c., and discontinuous easements, such as a right of way. Pheysey v. Vicary (h) is an authority that the same rule, in this respect, applies to a will as to a deed." In this respect the Roman law resembled our own ; for although as a rule it allowed no servitude to be retained by the vendor except specifically reserved (i), yet when two properties were devised to different de (f) 1 Best & Sm. 571. (g) 2 El. & El. 618; 29 Law J. Rep., N. S., Q. B. 116. (h) 16 M. & W. 484. (i) Quidquid venditor, servitutis nomine, sibi recipere vult, nominatim recipi oportet. Dig. viii. 4, 10. visees, continuous quasi servitudes seem to have continued to exist (k). As in this branch of cases the implied grant of the easement does really arise from the implied intention of the owner of the two properties, it is proposed to apply and confine to this branch the name of "disposition of the owner of two tenements," given by Mr. Gale to all the cases of implied grant contained in this section. Perhaps the implied intention of the previous owner may not have been without weight in the decisions cited previously, that on a sale simultaneous, or nearly, so, of two tenements, the quasi easements which the one enjoys and to which the other is liable are converted into legal easements. For, without the aid of some such principle, it would seem that the right of the purchaser of the quasi servient tenement to take it discharged from such liability is as strong as that of the purchaser of the quasi dominant tenement to have the advantage of such enjoyment. Previously to the framing of the Prescription Act, the number of cases of the acquisition of the right to window lights by implied grant was much larger, for until that time, in all cases in which easements were gained by occupancy, they were considered, by a fiction (k) Binas quis ædes habebat unâ contignatione tectas: utrasque diversis legavit: Dixi, quia magis placet tignum posse duorum esse, ita ut certæ partes cujusque sint contignationis, ex regione cujusque domini fore tigna: nec ullam invicem habituros actionem, jus non esse immissum habere.-Dig. viii. 2, 36. A curious rule is laid down as to the case where one house is given to a legatee, the other to the heir; the heir may raise his house to the detriment of the lights of the other house, but must leave it light enough for daily use. Dig. viii. 2, 10. E |