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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Phipps v Pears & Ors [1964] EWCA Civ 3 (10 March 1964) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1964/3.html Cite as: [1964] 2 WLR 996, [1965] QB 76, [1964] 2 All ER 35, [1964] EWCA Civ 3, [1965] 1 QB 76

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
From his Honour Judge Lind-Smith Warwick County Court

		Royal Courts of Justice
		10th March 1964

THE MASTER OF THE ROLLS: In the 1920's there were two old houses in Warwick, standing side by side, Nos. 14 and 16, Market Street. They were both owned by a Mr Field. About 1930 he pulled down No.16 but left the old No.14 standing. He erected a new house at No.16, Market Street with its flank wall flat up against the old wall of No.14. He did not bond the two walls together, but the new wall was built up touching the old wall of No.14.

On 17th July, 1931, Mr Field conveyed the new No.16, Market Street to Helena Field, but remained himself owner of the old No.14. Helena Field disposed of No.16 and eventually in 1951 Mr Phipps (the present plaintiff) bought it, as it was, standing then alongside the old No.14. Mr Field died and his personal representative in 1957 conveyed No.14, Market Street to the Governors of the lord Leycester Hospital.

So there were the two houses - new No.16 and old No.14 - standing side by side. In 1962 the Warwick Corporation made an order for the demolition of old No.14, Market Street because it was below the required standard. It was, I suppose, unfit for human habitation. In consequence, in September 1962 the Governors of the Lord Leycester Hospital demolished it. And when they did so, there was left exposed the flank wall of new No.16. This was in a very rough state. It had never been pointed. Indeed, it could not have been because of the way it was built, flat up against the old No.14. It had never been rendered or plastered. So it was not weatherproof. The result was that the rain got in and during the winter it froze and caused cracks in the wall. Mr Phipps seeks to recover for the damage done.

In his particulars of claim Mr Phipps alleged that No.16 had a right of support from No.14 and that the defendants had withdrawn that support. But he failed on this point because the Judge found that No.16 did not depend on No.14 for its support. "There was, in fact, no support the one for the other. They were independent walls, untied one to the other".

Then Mr Phipps said - or rather it was said on his behalf - that at any rate his house No.16 was entitled to protection from the weather. So long as No.14 was there, it afforded excellent protection for No.16 from rain and frost. By pulling down No.14, the defendants, he said, had infringed his right of protection from the weather. This right, he said, was analogous to the right of support. It is settled law, of course, that a man who has his house next to another for many years, so that it is dependent on it for support, is entitled to have that support maintained. His neighbour is not entitled to pull down his house without providing substitute support in the form of buttresses or something of the kind, see Dalton v. Angus (1881) 6 A.C. 740. Similarly, it was said, with a right to protection from the weather. If the man next door pulls down his own house and exposes his neighbour's wall naked to the weather whereby damage is done to him, he is, it is said, liable in damages.

The case, so put, raises the question whether there is aright known to the law to be protected - by your neighbour's house - from the weather. Is there an easement of protection?

There are two kinds of easements known to the law: positive easements, such as a right of way, which give the owner of land a right himself to do something on or to his neighbour's lands and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour's) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways on to the adjoining building or the adjoining land, and is thus doing something to the neighbour's land, exerting a thrust on it, see Dalton v. Angus (1881) 6 A.C. at p.793 by Lord Selborne, Lord Chancellor.

But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution. Because the law has been very chary of creating any new negative easements.

Take this simple instance: Suppose you have a fine view from your house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if your neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as a right to a prospect or view, see Bland v. Moseley (1587) cited by Lord Coke in Aldred's case, 9 Coke's Reports, 536. The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view. Such a covenant is binding on him by virtue of the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant. But it is not binding on a purchaser who has no notice of it, see Leech v. Schweder (1874) L.R. 9 Ch, Ap. 475.

Take next this instance from the last century. A man built a windmill. The winds blew freely on the sails for thirty years working the mill. Then his neighbour built a schoolhouse only twenty-five yards away which cut off the winds. It was held that the miller had no remedy for the right to wind and air, coming in an undefined channel, is not a right known to the law, see Webb v. Bird (1863) 10 C.B., N.S., 268, 13 C.B., M.S., 84. The only way in which the miller could protect himself was by getting his neighbour to enter into a covenant.

The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development, see Dalton v. Angus (1881) 6 A.C. at p.824 by Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would put a brake on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather. The only way for an owner to protect himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees. Such a covenant would be binding on him in contract: and it would be enforceable on any successor who took with notice of it. But it would not be binding on one who took without notice.

There is a further point. It was said that when the owner, Mr Field, conveyed No.l6 to Helena Field, the plaintiff's predecessor, there was implied in the conveyance all the general words of Section 62 of the Law of Property Act, 1925. The conveyance included all "easements, rights and advantages whatsoever appertaining or reputed to appertain to the land". On the conveyance of No.16, Market Street to the plaintiff's predecessor, there passed to him all these "advantages" appertaining to No.16. One of these advantages, it was said, was the benefit of having the old No.14 there as a protection from the weather. I do not think this argument avails the plaintiff for the simple reason that, in order for Section 62 to apply, the right or advantage must be one which is known to the law, in this sense, that it is capable of being granted at law so as to be binding on all successors in title, even those who take without notice, see Wright v. Macadam, 1949, 2 K.B., 747. A fine view, or an expanse open to the winds, may be an "advantage" to a house but it would not pass under Section 62. Whereas a right to use a coal shed or to go along a passage would pass under Section 62. The reason being that these last are rights known to the law, whereas the others are not. A right to protection from the weather is not a right known to the law. It does not therefore pass under Section 62.

In my opinion, therefore, the plaintiff has not made out any right to the protection he seeks. I find myself in agreement with the County Court Judge: and I would dismiss the appeal.

LORD JUSTICE PEARSON: I agree and have nothing to add.

LORD JUSTICE SALMON: I also agree.

MR TOYN: In those circumstances I ask for the costs of the appeal on behalf of the respondents.

THE MASTER OF THE ROLLS: That must be so, I think.

MR FINLAY: I do not think I can resist that but I am instructed to ask for leave to appeal.

THE MASTER OF THE ROLLS: No, we cannot give you leave.

MR FINLAY: If your Lordship pleases.