THE CIVIL ENGINEER AND ARCHITECT'S JOURNAL. 



3 



covenant has been substantially complied with ? The defendant was onlj' bound 

 to kepp up the house as an old house, not to give the plaintiff the benefit of 

 new work." The Jury found for the defendant. Again, in Gutteridge v. 

 Munyard, the same erudite .Judge remarked — " Wherever an old building is 

 demised, and the lessee enters into a covenant to repair, it is not meant that 

 the old building is to be restored, in a renewed form, at the end of the term, 

 or of greater value than it was at the commencement. What the natural ope- 

 ration of time, flowing on effects, and all that the elements bring about in di- 

 minishing the value, constitute a loss, which, sa far as it results from time and 

 nature, falls upon the landlord. But the tenant is to tske care that the tenements 

 do not suffer more than the operation of time and nature would effect. He is 

 bound, by seasonable applications of labour, to keep the house, as nearly as 

 possible, in the same condition as when it was demised. If it appear that he 

 has made these applications, and laid out money from time to time upon the 

 premises, it would not, perhaps, be fair tojudge him very rigorously by the 

 reports of a surveyor, who is sent on the premises for the very purpose of find- 

 ing fault." 



Again, in Stanley v. Twogood, where the covenant was to preserve, keep, 

 and have the house in good and tenantable order and repair, Tindal, C. J., 

 held that the question was, whether the house was in a substantial state of re- 

 pair, as opposed to mere fancied injuries, such as a mere crack in a pane of 

 glass, or the like. That although the state of repair at the time of the demise 

 was not to be taken into consideration, yet it would make a difference whether 

 the house were new or old at the time of the demise. 



In Marke v. Noyes, Abbott, C. J., held that under a covenant substantially 

 to repair, uphold, and sustain, the tenant was bound to keep up the inside pain- 

 ing. This, it will be perceived, is requiring such a tenant to do more than 

 the incumbent of a benefice. The decision does not appear to have been very 

 deliberate, and is not altogether consistent with those subsequent judgments of 

 Tindal, C. J., and therefore I think cannot be safely relied on. It is usual in 

 leases specially to provide for painting at stated intervals. 



From these cases it will be seen, that principles of law are not strictly en- 

 forced in considering what are dilapidations ; that of minute defects the law 

 takes no notice, " de minimis non curat lex." Therefore, unless the premises 

 have been much neglected or misused, and are in a much worse condition than 

 they ought to be, it will not be safe for a landlord to take legal measures 

 against his tenant: alihough, where there are substantial dilapidations, these 

 minute defects may and should all be taken into account. 



The following explanation of the law, with regard to the manner 

 in which the tenant is bomid to repair dilapidations or restore 

 their value, does not appear to be supported by any legal decision of 

 the judges, and this we regret, for it is a point of great moment to 

 the profession. Certainly, most of the decisions of Tindal (Chief 

 Justice), have a tendency this way ; and there is very little doubt 

 that if the question was to come before that judge, he would take 

 the same view of the law as laid down by Mr. Gibbon. 



Where any part has fallen away, the tenant is not bound to replace it with 

 new materials, but only with materials of the same value and in the same 

 condition as those deficient ought to have been, had they only been subject to 

 ordinary decay and wear, except from accident or exposure to the weather. 

 In determining this, reference must be had to the age of the building at the 

 time of the lease granted, and to the duration of the lease, and so much ought 

 to be deducted from the cost of new materials as it may be supposed they 

 would bo depreciated in value by ordinary wear during the period the materials 

 to be supplied have formed part of the building. Mr. Woosis thinks, that in 

 hardly any case could the landlord require more than three-fourths of the new 

 value, and none would occur in which ouefourth ought not fairly to be de- 

 manded. 



Chapter III. explains the law regarding dilapidation by tenant, 

 without impeachment of waste. 



Chapters IV. and V. point out the law when the property is 

 mortgaged, and held by joint tenants and tenants in common. 



Chapter VI. relates to party-walls and fences. The author ex- 

 plains numerous points of law concerning the Building Act, which 

 probably has caused more misunderstanding and litigation than any 

 other Act of Parliament ; several attempts have been made to amend 

 it, but all to no purpose. We shall give one extract from this 

 chapter, to point out an error regarding the time at which it is impe- 

 rative to deliver accounts concerning the re-building of party-walls :— 



Within ten days after the party wall is built, or se soon after as conveniently 

 maybe, the builder is to leave at the adjoining house, &o., a true account of 

 the number of rods in the party wall, &c., for which the owner of the adjoining 

 building is liable to pay, of the deductions to «hich he is entitled, and an ac- 

 count of all other expenses and costs. 



The express directions of the Act are— that the account shall be 

 ielivered wit/ii/i ten days after the party-wall shall be built; it says 

 nothing about " or so soon as convenienllv can be." This ought to 

 be impressed upon the minds of every architect or surveyor, for we 

 know instances in which parties have foiled in recovering the value, 

 in consequence of the omission to deliver the account within the 

 ten days. 



Chapter VII. explains the law relative to churches; Chapters 

 VIII. and IX. highways, bridges, sewers, sea walls, &c.; and 



Chapter X.is one of considerable importance; it explains the law 

 touching nuisances, in which the author has taken considerable pains 

 and trouble to collect numerous decisions as to what may be consi- 

 dered a nuisance. We shall give two or three extracts to show the 

 able manner Mr. Gibbon has treated the subject. 



In determining what acts are nuisances, we must ascertain the extent of the 

 possessions of our neighbour; end here we may refer to the maxim of law, 

 that he to whom the soil belongs is entitled to all the space of air above to 

 the sky, and of the earth below to the centre. His rights extend perpendicu- 

 larly above and below his own land, and not laterally, so as to claim any MiQ 

 from the earth beneath or the air above the adjoining land. It is, therefore, 

 not only a nuisance to cause an encroachment or injury to the soil of a neigh- 

 bour, as if .lohn build a house overhanging the land of Thomas, whereby 

 the rain falls upon Thomas's land, and injures it ; but also if John corrupt or 

 annoy the air over Thomas's land by noisom.e smells or deaftming noises, it is a 

 nuisance. But if John, by building or otherwise, exclude from the land of 

 Thomas theTair flowing over his own land, and the light which comes through 

 that medium, he does no more than he has a right to do. 



It is not every disagreeable smell or noise which I cause on my land, and 

 which the wind wafts to my neighbour's, that will give him a riglit of action ; 

 it must aiise, it would seem, from some permanent cause, and occasion him 

 continual annoyance and discomfort; and that to a degree sufficient to depre- 

 ciate the value of his dwelling-house, and render it less eligible in consequence 

 of the neighbourhood. I cannot be restricted in the fair and reasonable use of 

 my land by any delicacy of sense or peculiarity of habit of my neighbour. A 

 swine-sty, limekiln, privy, smith's forge, tobacco-mill, tallow furnace, and glass- 

 house, set up neara private residence, have respectively been held nuisances. 

 And so a mill for steeping sheep-skin=, by which the air was corrupted ; a 

 building for manufacturing acid spirit of sulphur, which occasioned noisome 

 and offensive smells ; a place for slaughtering horses. It is not essential that 

 the stench raised should be unwholesome ; it is sufficient if it renders the en- 

 joyment of life and property uncomfortable. * * 



Easements over a neighbour's land can only be acquired by grant or by pre- 

 scription, which raises the presumiition of a grant. Grants of easements are 

 either express or implied. An express grant needs not observation ; a grant 

 of an easement is implied in the following case. Where a man, having built 

 a house upon his own land, conveys that house to another, he thereby impliedly 

 grants the easement of light over his own land to the windows of the house, 

 as it then stands, and neither he, nor any person claiming under him, will be 

 permitted to derogate from his grant, and build upon the adjoining land to the 

 obstruction of the light. And, in like manner, where an unfinished house is 

 granted with openings for the windows, or ground is leased upon condition that 

 the lessee shall build thereon in a specified situation accor.lingto a certain plan, 

 the gantor or lessor, or those claiming under him, cannot build upon the ground 

 adjoining, so as to darken the w ndovvs of the house, when finished according 

 to the plan. And where a house and the land adjoining are conveyed at the 

 same time to different persons, and the land is desciibed as building land, the 

 purchaser of the land cannot build so as to obstruct the windows of the house, he- 

 cause it must be presumed that the easement of light was conveyed as appurtenant 

 to the bouse, and the land was convened subject to that easement. ♦ • 



The prescriptive period of twenty or of forty years must be the period next 

 before the commencement of the action or suit in which the claim is brought 

 into question. And, therefore, where a party biings an action for the obstruc- 

 tion of his light, he must prove that ho has had the unhiterrupted use of the 

 light for the twenty years immediately preceding the action. 



The usage must have been uninterrupted, but no act or matter is deemed an 

 interruption, unless it has been submitted to, and acquiesced in, for one jear 

 after the party interrupted has had notice thereof, and of the party making or 

 authorising the same to be made. Thus, if windows have existed for twenty 

 years, an occasional obstruction will not affect the prescription ; but if any 

 such obstruction has continued unabated for a year, the prescription will be 

 wholly destroyed. In like manner, if the owner of the house has pulled dow n 

 his house, and not rebuilt it with windows in the same situation within a year, 

 or has blocked up the windows for a year, his right will be gone. Though a 

 disuse of the right for a shorter period would not, I apprehend, be deemed an 

 abandonment thereof, so as to interrupt or destroy the prescription. 



A prescription for the use of light may be destroyed by an alteration of the 

 manner in which it is enjoyed, as by altering the size or situation of the aper- 

 tures through which it is received. Thus, where a party, having the right te 

 light, carried out the wall of his house, and made a bow window in the new 

 wall, in the same elevation as the former one, it was held that the easement 

 was gone, since he had no right to receive the light through the new window. 

 But it has been considered that the enlargement otan ancient window will not 

 of itself destroy the prescription, so as to entitle the owner of adjoining land to 

 obstruct the passage of light into any part of the space occupied by th«" -tncient 

 window. And where a building, which had been a malt-house, tr r con- 

 verted into a dwelling-house, Macdonald, C. B., ruled that it was stil l.'ntitled 

 to so much light as was sufficient for the purpose of making malt, though not 

 to any greater quantity. And where a party was entitled to lights by 

 means of blinds fronting a garden, and took away the blind.s, and thereby 

 opened an uninterrupted view into the garden, Lord Kenyon held that the pro. 

 prietor of the garden was not justified in making an erection which diminished 

 the light heretofore coming into the house through the blinds. From the 

 modern decision of Garritt v. Sharpe, it would seem that, in all these cases, 

 it ought to be left to the jury to say whether the nature of the aperture 13 

 essentially changed. Where there is a right to pen Ijack water by means of a 

 dam, and the dam is destroyed, the party has no right to erect another dam in' 



