and of the land

or less, than half of the property of a wall, the Legislature Ownership of has sanctioned rather than invaded the unequal claim. party walls, Now as the act declares that a party wall shall be built whereon they half upon the ground of one owner, and half upon that stand. of the other (m), it might possibly result, that the owner of the ground adjoining the new wall might claim a moiety of the soil, and so encroach upon the property of his neighbour. Wherefore, by Sect. 30(n), with regard to any sound party wall against which an external wall shall have been built, and which shall have been suffered to remain, so far as relates to the rebuilding thereof, it is enacted, that if while such party wall continues sound, the adjoining buildings be pulled down or rebuilt, and such party wall be pulled down, then the owner of such adjoining building shall not be entitled to more than his just proportion of the materials thereof, nor to more than his just proportion of the ground on which such party wall was built, nor shall he build on more than his just proportion of the said ground, unless he shall have agreed with and satisfied the owner of the building so previously rebuilt for his half thereof(o). The external wall, therefore, shall not count so as to enable the adjoining owner to reckon from the middle of the original sound party wall to the exterior of the external wall, unless he make compensation; for otherwise he would encroach upon the land of his neighbour. The only instance in the act of an exception

(m) Schedule D., Part III., " Site of Walls."

(n) See the section, post, Append.

(0) Disputes are referred to the official referees; for if the said owners cannot agree concerning the division of the said materials, or of such ground, or of the building thereon, or concerning the reimbursement of the party first rebuilding as aforesaid, then the price, and all matters in difference, including the sale and purchase of the ground in question, shall be settled by a reference to the official referees, whose award shall be final.

to this rule, (and even then it is more like a suspension of
right than an extinguishment of it) is where a party wall
has been legally built by an individual owner, and the ad-
joining owner, being liable, has not paid his contribution.
Here, until the expenses are duly paid, the right of soil
and the sole property of the wall are declared to be
vested entirely in the person at whose expense such
party structure shall have been built. And the Legisla-
ture thus divests the original right till the money is
reimbursed (p). The same principle obtains with respect
to contribution: for by the 46th section, the person
building a party wall is to recover a sum of money pro-
portionate to the value of so much of the party structure
made use of, whether it be a new wall, or an unsound
wall rebuilt, or a wall built in lieu of a timber partition,
or a wall used by an adjoining owner after having been
built or rebuilt. So again, the same principle is carried
on in respect of houses of different rates which adjoin to
each other. For, if a building of a lower rate be enlarged
or altered so as to become one of a higher rate, the owner
of the same must make a proportionate compensation to
the building owner according to the increased rate of
his structure. This modification was admitted in dis-
putes concerning contribution under the 14 Geo. 3,
c. 78, where the evidence made it clear that the rates
of adjoining buildings were unequal (q). But beyond
the boundaries of the statute, no such arrangement can
of course be insisted on.

Ownership of Party Walls.]-Then it may be added, that in the country, or beyond the reach of

(p) Sect. 46, at the end. See likewise sect. 38, where there is a similar provision concerning party walls raised next to vacant ground. (q) 2 Taunt. 66, Philp v. Donati..

party walls.

the statute 7 & 8 Vict. c. 84, the wall will usually Ownership of be found to belong in equal moieties to both owners, and the cases in London and its neighbourhoodwhich may happen to deviate from this rule, will probably at no distant period be rare exceptions. The common law leans strongly towards the equal divisionin the one case, and the Schedule of the new Act above referred to expresses the same arrangement particularly in the other. The 38th section also follows the same rule where an owner proposes to build upon vacant ground, and seeks the consent of the neighbouring owner to build the party wall at their joint cost (r). Whereas the 30th section, and the reimbursing clause, maintain the exception above adverted to in cases where it is clear that there cannot be an equal right to each portion of the party wall. And, of course, an external wall, being built wholly upon the ground of a single owner cannot be the subject of joint property. However, as we shall see by and by, this ownership of the external wall will not allow of opening windows or other apertures without the consent of the adjoining owner (s). It should not escape remark that the word, "owner," means "every person in possession or receipt either of the whole or any part of the rents or profits of any ground or tenement, or in the occupation of such ground or tenement, other than a tenant from year to year, or a tenant at will" (t).

A wall is not the less an external wall because another house adjoins to it. There was a dispute between a lessor and lessee as to the repairs of a house

(r) See 2 Sir Wm. Bl. 959, Barlow v. Norman, where the same law obtained under the old acts, 12 Geo. 3, and 14 Geo. 3.

(s) Sect. 37.

(t) Sect 2, "Interpretation Clause."

Ownership of party walls.

which had been damaged by the act of a corporation. The lessor had covenanted with his tenant to keep in repair all the external parts of the demised premises except the glass and lead of the windows. The premises were in the High-street, Exeter, and they adjoined the Swan Inn there. The Corporation of Exeter pulled down the Swan Inn, and, in so doing, exposed the wall which had divided the Swan Inn from the house in question. It was said likewise, that the injudicious manner of removing the beams belonging to the Swan was the cause of the wall of the house being unsafe. Upon that the lessee removed, and upon his landlord's refusal to repair or rebuild, he did the necessary repairs himself, and brought his action upon the covenant. The jury found for the plaintiff. But it was contended, upon a rule to enter a verdict for the defendant, amongst other points, that the wall pulled down was not an external wall within the meaning of the covenant; for that the external parts were those which were exposed to the air and to the view of the landlord. But the Court gave judgment against the objection. "We think," said Lord Denman, "that it (the wall) was an external part of the premises before the Swan was pulled down, but certainly afterwards. The external parts of premises are those which form the inclosure of them, and beyond which no part of them extends: and it is immaterial whether those parts are exposed to the atmosphere, or rest upon and adjoin some other building which forms no part of the premises let" (u).

(u) 2 Ad. & El. N. S. 225, Green v. Eales.

CHAPTER II.

Of Party and other Walls under the Building Act, 7 & 8 Vict. c. 84,

66

THE chief principle of the Building Acts seems to have Building Acts. been the preservation of dwellings from fire, and the main cause of them arose, most probably, from the great Fire of London, in 1666. For, in 1667, 19 Car. 2, we find an act for rebuilding the city of London (a); and again, in 1670, 22 Car. 2, another act, entitled, " An additional Act for the Rebuilding of the City of London, uniting of Parishes, and Rebuilding of the Cathedral and Parochial Churches within the said City" (b). Again, in 1707, 6 Anne, we have an act to prevent mischiefs that may happen by fire (c). In 1724, party walls in particular had given rise to so much inquiry and to such litigation, that the mode of reimbursement came to be a matter of more accurate legislation (d). In 1759, the widening of streets attracted attention, and an act was passed which made regulations for this purpose (e). In this statute also party walls, the ruinous condition of buildings, and the state of pavements were subjects of attention (ƒ). Another act, giving still more extensive powers, passed in 1763 (g); and one other to amend and make more effectual the 33 Geo. 2, c. 30, succeeded

(a) 19 Car. 2, c. 3.

(b) 22 Car. 2, c. 11.

(c) 6 Ann. c. 31. See likewise 7 Ann. c. 17.

(d) 11 Geo. 1, c. 28.

(f) See Sect. 24, et seq.

(e) 33 Geo. 2, c. 30.

(g) 4 Geo. 3, c. 14.