Plaintiff's claim dismissed for failure to prove ownership or right to recover repair costs.

[*431] 1978 April

(NICOLAIDES, AG. D. J. )

IN THE DISTRICT COURT 0F PAPHOS

Argyri Leonida,

Plaintiff,

and

Eleni Demetriou,

Defendant.

(Action No. 350/77).

Immovable property Easements Support Whether owner of servient tenement under obligation to repair that part of his building which provides support for his neighbour, And whether owner of dominant tenement entitled to the recovery of amount spent for the repairs.

Nuisance Private nuisance Easement Interference with Amounts to a nuisance Interference with easement of support Right of owner of dominant tenement to recover damages Who failed to prove that she had any claim against owner of servient tenement.

E. Korakides, for the Plaintiff.

Chr. Georghiades, for the Defendant.

JUDGMENT

The following judgment was delivered by: -

NICOLAIDES. AG. D.J.: In the present action [*432] the plaintiff prays for:-

a) A declaration of the Court that the defendant is not entitled to use her property adjacent to the property of the plaintiff in such a manner as to cause damage to the plaintiff and

b) Damage amounting to £40.-.

The plaintiff is the regis treed owner of a house situate at Philoussa village in which she lives together with her parents. The said house has very recently transferred by way of gift in the name of the plaintiff by her father.

The defendant is the owner of an adjoining house. It is an undisputed fact that one of the walls of the defendant’s house (hereinafter called "the said wall") has been used as a forth wall of one of the rooms of the plaintiff’s house since time immemorial, and that on the said wall the rafters of he roof of the said plaintiff’s room rested.

The defendant after her marriage, some twenty years ago, left the village and has since been residing with her family in Limassol.

The plaintiff alleged in her statement of claim that the defendant, before departing from the village, caused the earthen roof of her house to fall down by removing the rafters. As a result, the rainwater which was falling over the years, often flooded the place and the [*433] said wall fell into disrepair, eventually becoming ruinous and in an unsafe condition. Under the imminent danger of the roof of the plaintiff's room falling down the plaintiff’s father arranged for the repair of the said wall at a cost of £40.-, the recovery of which the plaintiff claims by the present action.

On the other hand, the defendant alleged That the roof of her house fell down without any negligence on her part and that in any event she was under no obligation to repair the said wall.

In proof of her claim, the plaintiff, who incidentally never appeared in Court at any stage of the present proceedings, called two witnesses, while the defendant, who gave evidence herself called no witnesses. The plaintiff's father in giving evidence stated that the rafters of the roof of the plaintiff's room have rested on the said wall even before his birth, some 67 years ago. The witness stated further that the defendant who acquired her house some 30 years ago; before her departure from the village removed the rafters of her house by herself thus causing the falling down of the earthen roof of her house. As a result of the said act of the defendant, rainwater floor of her house continually and consequently the said wall fell gradually into disrepair.

Some time before the institution of the present action, the witness informed the defendant accordingly and she (the defendant) caused the earth from the roof which [*434] had fallen to the ground to be removed and a ditch to be dug. As the above steps proved unsatisfactory he informed the defendant again and then he employed a worker who did the necessary repairs to the wall. The witness admitted that he actually paid for the repairs but he does not have any claim against the plaintiff. He stated, further that as the defendant refused to pay him her contribution for the repairs, he instructed an advocate fox the institution of legal proceedings against her.

In cross-examination he admitted that he and not the plaintiff suffered the damage and that he was not aware whether the plaintiff claimed any sum from the defendant at any time.

The second plaintiff's witness, a certain Ioannis Sergiou stated that he is a contractor and that he built the said wall. He stated further that the wall fell into disrepair due to the fact that the rainwater remained on the floor of the house of the defendant.

The defendant in giving evidence stated that she left Philoussa village twenty years ago. Her house remained unoccupied and without maintenance since then and as a result of this, its roof fell down. When the defendant was informed of this by the plaintiff’s father she caused the earth which had fallen off her roof to be removed. The defendant alleged that she had never been informed that the said wall was in a ruinous and dangerous condition. [*435]

After considering the evidence of the witnesses very carefully and having watched their demeanour while giving evidence, I find myself unable to accept the evidence of the plaintiff's father. His testimony is contrary to reason and full of contradictions. He failed to impress me as a witness of truth and I reject his testimony.

From the evidence before me and in the light of the above, I find that the true facts of the present action are as follows:-

The litigants are the owners of two adjoining houses situate at Philoussa village. As it is usual in villages in Cyprus, one of the walls of the house of the defendant was used by the plaintiff and her predessesors in title as a fourth wall of one of the rooms of her house and on the same wall the rafters of the roof of the said room rested. This right was acquired by the plaintiff before her father was born i.e. more than 67 years ago. The defendant after her marriage, some twenty years ago, left the village and has been staying with her family in Limassol since then. The defendant's house was left unoccupied and consequently fell into disrepair and its earthen roof fell down leaving the floor of his house unprotected. As a result, rainwater which was falling over the years, damaged the wall on which the rafters of the plaintiff’s room rested and rendered it ruinous and in an unsafe condition. The defendant was informed about this by the plaintiff’s father and she [*436] took some steps to remedy the situation which, however, proved unsuccessful. Under the circumstances the plaintiff's father had the said wall repaired at a cost of £40.=

Having dealt with the factual aspect of the case I will now proceed to consider the legal aspect.

The points which need to be decided are:-

a) Does the plaintiff, have any right on the said wall of the house of the defendant?

b) Does the defendant have any obligation towards the plaintiff for the repairs of her wall?

c) Does the plaintiff have any right against the defendant and in particular is she entitled to the recovery of the amount spent for the repairs of the said?

It is an undisputed fact that the rafters of the house of the plaintiff rested on the wall of the defendant since the time the two houses were built. The plaintiff's father in giving evidence stated that the two houses were erected before he was born.

Section 11 (1)(b) of the Immovable Property (Tenure Registration and Valuation) Law Cap. 224 provides the following about the acquisition of an casement over immovable property of another person: [*437]

"No right of way or any privilege, liberty, easement, or any other right or advantage whatsoever shall be acquired over the immovable property of another except;

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) Where the same has been exercised by any person or by those under whom he claims for the full period of thirty years without interruption.............."

Section 12(l) of the same Law provides:-

"Where any right, privilege, liberty, easement or other advantage has been acquired as in sub-section (1) of Section II of this Law in respect of any immovable property, the same shall be deemed to be attached to such property and to be included in any dealing made with such property,"

Section II was construed in the case of Christodoulos (alias Tooulis) Yianni Voskou v. Michael HjiPetrou, 1964 C.L.R. 21 where it was held that the length of user, irrespective of any change in the owner or possessor of the dominant tenement, is what is material in the acquisition of easement by long user.

In the case of Socratis Sofocli Hadji-Demos thenous v. Alexandres Georghiou,

(1969) 1 C.L.R. 187 [*438] at page 192 it was clarified that the test to be applied in cases of long user is that there must be positive evidence of open and peaceable enjoyment of the right for the full period of thirty years.

Furthemore in Gale on Easements, 14th edition, at page 300 we read:-

"A question of equal practical importance arises where the owner of one house claims a right to to have it supported by the adjoining house belonging to his neighbour. There is no natural right to such support, but it may in the case of buildings belonging to different owners be claimed by prescription in which case the enjoyment must have been as of right and therefore, open or by implied grant reservation. "

In the light of all the above it. is clear that an easement was acquired over the property of the defendant by prescription, i.e. by open and peaceable enjoyment of the right for the full period of thirty years.

The second question which poses for determination is whether the fact that the plaintiff has certain rights on the said walls creates an obligation to the defendant towards the plaintiff for repairs of the said wall.

The nature of the right has been summarised by Sir Wilfrid Greene M.R. in the case of Bond v. Norman. [*439] Bond v. Nottingham Corporation, (l940) 2 All E.R. 12 at page 18:

"The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into decay. If it does so, and support is removed, the owner of the dominant tenement has no cause for com plaint. On the other hand, the owner of the dominant tenement is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour’s building. He is entitled to enter and take the necessary steps to ensure that the support continues by effecting repairs, and so forth, to the part of the building which gives the support. But what the owner of the servient tenement is not entitled to do, is, by an act of his own, to remove the support without providing an equivalent. There is no qualification upon his ownership of his own building that he is bound to deal with it, and can only deal with it subject to the rights in it which are vested in his neighbour and can deal with it subject only to those rights".

The learned counsel for the plaintiff argued that although the wall on which the rafters lay belongs entirely to the defendant, the wall is subject to an [*440] easement in favour of the plaintiff and therefore the defendant has the obligation to have it maintained as a dividing wall.

On the point Fry J. in the case of Watson v. Gray, 49 L.J. Ch. 243 observed:-

"The question is what are the rights of the parties in the wall dividing their premises? No doubt the prior conveyance under which the plaintiff derives his title, would include the walls of his yard if unqualified. But there is an express provision with respect to that wall, that it should be deemed to be a party wall. The question then is, what is the meaning of the word party-wall? The term is rather a popular than a legal one. It seems to me it may be used in four different senses. It may express a wall standing on land belonging to the owners of adjoining premises as tenants in common, as the term is used in Wiltshire v. Sidford, end Cubitt v. Porter; or secondly, it may be used to describe a wall divided as to ownership longitudinally; one vertical half is belonging to the owner of the premises on one side, the other to the owner on the other, as in the case of Watts v. Hawkins; or it may denote a wall entirely the property of the one, but subject to rights vested in the other. In [*441] that sense the word is used in

many of the building Acts; or lastly, it. my mean a wall owned in longitudinal sections, as in the second case, but where the

moiety of each owner is subject to easements vested in the owner of the other moiety."

And in Gale on Easements, (supra) at page 302 we read:-

"Before 1926 the term 'party wall' (in relation to a wall separating two properties) might mean -

(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) a wall belonging entirely to one adjoining owner, but subject to an easement in the other to have it maintained as a dividing wall.

(4) ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

In England certain walls were declared after 1925 by the Law of Property Act 1925 to be party walls. By that Act it was provided that where, immediately before 1926, a party wall or other party structure was held in undivided shares, or where, under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed [*442] to be made a party wall or structure, that structure is to be severed vertically as between the respective owners, and the owner of each part has rights or support and user the rest of the structure if a valid tenancy in common had been created, or if it existed at the commencement of the Act had continued.

Where a wall was held in severalty before 1926, or its ownership becomes divided after 1925 and it is not declared to be a party wall (in which case the statutory provisions last mentioned will not apply) there seems no authority for saying that the rights of the respective owners of the portions of the wall differ from those of the proprietors of any other two walls which abut on each other. Unless prevented by some easement having been acquired, either party would be at liberty to pare away or even entirely to remove his portion, notwithstanding the other half might be unable to stand without the support of it (See Gale on Easements (supra) p. 303) .

In Cubitt v. Porter

(1828) 8 B.& C. 257 Bayley J. said:-

"If the wall stood partly on one man's land partly on another’s either party would have a right to pare away the wall on his side, so as to weaken the wall on the other, and to produce a destruction of that which ought to be the common property of the two." [*443]

At the utmost, the fact of the close union of walls could only impose a duty of greater caution that might otherwise be required in removing the materials. Reasonable care should be used in removing any portion of he wall. (See Kempston v.Butler (1861) 12 Ir. C.L.R. 516; Southward and Vauxhall Water Co . v. Wandsworth Board of Works, 67 L. J. Ch. 657).

In the Law of Easements by J.L. Goddard and N.L. Goddard, 7th edition at page 353 we read:-

"When speaking of easements generally, it was pointed out that the dominant owner has a right to enter the servient tenement for the purpose of doing any repairs either to that tenement or to the subject of the easement therein that may be required for the maintenance or his enjoyment. It is to be remarked that the question of that right arose with reference to the easement of support for one building from another. The question in the case had reference to a party wall, and it was argued that, under the circumstances, of the case, a covenant to repair the wall by the grantor of the lease of the dominant tenement must be implied: The decision of the Court, however, was against any implication of such a covenant, and it was said that it might be open to doubt whether the support of the plaintiff’s house by the party wall was, strictly speaking, in [*444] the nature of an easement or not, but assuming that the right of support in that case was in the nature of an easement founded on implied grant, it was well established that there is no obligation to repair on the part of the servient owner, but that the owner of the dominant tenement must repair, and he may enter on the servient tenement for that purpose."

(See also the case of Colebeck v. Girdlers' Company, 45 L.J.Q.B. 225).

And in page 23:-

"It is clear that the only obligation cast by law, upon the servient owner is, that he shall passively submit to the exercise of some privilege on his land, and that he shall not do anything inconsistent with the right of the dominant owner thereto. There may, it is undeniable, be rights lawfully imposed upon a land owner obliging him to execute a work for his neighbour's benefit, but such rights are not easements, and depend on entirely different principles of law. Many instances, of this kind will readily suggest themselves, as, for instance, an obligation to maintain a wall or fence, or to repair a road."

In the case of Pomfret v. Ricroft,

85 E.R. 454, it has been decided that, if a man grants a water-course [*445] and afterwards stops it, or demises a house and estovers, and afterwards destroys the wood, the party injured has a right of action, for those are wilful acts of the grantor of the right, and it is a misfeasance in him to annul or avoid his own grant; and so if a grantor of a right of way intentionally stops,it, an action will lie for the misfeasance, but for the bare nonfeasance in not repairing the way when it is out of repair no action will in general lie.

In the light of all the above, it is apparent that although there is an easement on the defendant's property she has not any obligation for repairs.

On the other hand, it is also clear that the plaintiff the owner of the dominant tenement has the right to enter the servient tenement for the maintenance and repair of the dividing wall.

It is a general rule of law that a person who suffers a nuisance is entitled to abate it. He may enter onto his neighbour's land in order to put an end to the nuisance. Thus if there is a disturbance of an easement the owner of the dominant tenement may exercise this

right of abatement. (See Baten's case (1610) 9 Rep. 53b; Perry v, Fiszhowe 15 I. J. Q.B. 239; see also Ward v. Kirkland (1966) 1 All

E.R. 609).

I shall now proceed to examine whether the plaintiff has any right against the defendant and in particular whether she is entitled to the recovery of [*446] the amount spent for the repairs of the said wall.

It is an undisputed fact that due to the remaining of the rainwater on the unprotected floor of the defendant's house, the said wall fell into disrepair and became ruinous and in an unsafe condition needing immediate repairs. Both the plaintiff and her father were fully aware of the fact that the rainwater was remaining without a way of escape and they informed the defendant accordingly. Some time before the wall subsided the defendant took some steps to abate the nuisance, steps which proved unsuccessful. As a result the water and the nuisance created, was there but the plaintiff did nothing to abate it.

I believe that the issue of nuisance, is actually consituted by two sub-issues

1) Whether the above conduct of the defendant who allowed the rainwater to remain on her property, constitutes a nuisance, and

2) if a nuisance was created, whether the defendant is entitled to any remedy.

Nuisance is an act or omission which is an interference with, disturbance of annoyance to a person in the exercise or employment of his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land. This is a private nuisance.

The conduct of the defendant which

results in the nuisance is of itself not necessarily or usually [*447] unlawful. A private nuisance nay be caused by a person

doing or his own land something which he is lawfully entitled to do. His conduct becomes a nuisance whan the consequences of his acts or omissions extend to the land of his neighbour by causing physical damage to his neighbour's lend or buildings or works or vegetation upon it, or by interfering unduly with his neighbour in the enjoyment of his land. (See the observation of Lord Ever sited M.R. in Thompson-Schwab v. Costaki

(1956) 1 All E.R. 652).

It is also a nuisance to interfere with some easement or other right used or enjoyed with the neigh hour’s land. In such a case, liability for the nuisance is established by proving the encroachment or the damage to the land as the case may be. Negligence is not arele ment in determining liability. (See the case of Sedleigh Denfielf v. O’Callaghan,

(194) 3 All E.R.349) .

In nuisances causing physical demage to land, actual, not merely prospective, damage is essential to a cause of action. Until damage is caused no nuisance exists, only the potentiality of a nuisance. (See Sedleigh Denfield v. O’Callaghan (supra). In other cases of nuisance, no actual financia1 or physical damage need be proved. When the nuisance consists of an encroachment, the law will presume damage. The same rule applies to nuisances which consist of interference with casements. In the case of Nicholls v. Ely Beet Sugar Factory Ltd.,

105 L.J. Ch. 279, Lord Wright M.R. observed: [*448]

"Disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation of proof or specific damages."

It seems that there is a distinction as to the foundation of the right of action for a private nuisance and an action for the disturbance of an easement. No proof of any right in addition to the ordinary right of property is required in the case of the former. On the other hand, to maintain an action for a disturbance of an easement, proof of the accessorial right must be given. Novertheless in both cases the remedies for any infringement of them are similar.

But that kind of behaviour constitutes disturbance of an easement? Naturally, it is not every interference with the full enjoyment of an easement that amounts in Law to a disturbance. There must be some sensible abridgment of the enjoyment of the tenement to which it is attached although it is not necessary that there should be a total destruction of the easement. The injury complained of must be of a substantial nature. (See Gale on Easements (supra) p. 351).

On the other hand in the case of Overseas Tanship (U.K.) v. Miller Steamship Co. Pty., (1966) 2 All E.R. 709, it was held that if the kind of damage is not reasonably foreseeable, then that kind of damage is too remote a consequence. [*449]

The occupier of the lend is liable for a nuisance, even though he has not created it, if he has continued it during the period of his occupacy.

In the case of Smeaton v. Ilford Corporation, (1954) 1 All E.R. 52, Upjohn J. commended.:-

"In order to establish liablility for continuing a nuisance by failing to prevent it, one must necessarily prove that the person so falling must be in a position to take effective steps to that end."

And this amounts to a duty to abate the nuisance, which is in the nature of a duty of care to neighbours. This duty extends the nuisance of omission, where the nuisance arises from a state of nature and the occupier unreasonably fails to prevent damage occurring to his neighbour, (See the case of Goldman (Allan William) v. Hargrave (Rupert William Edeson), (1966) 2 All E.R. 989.).

On the other hand, as a general rule, everyone who is damaged by a private nuisance is entitled to abate it, i.e. to bring it to an. end by his own act. It seems that in modern times it has beer held that the existence of the right of abatement does not exclude the right to bring, an action for damages (see the ease of Smith v. Giddy 73 L. J. K.B. 894), although it has been also stated that the right of abatement is

alternative to damages and that the exercise of che right of abatement destroys any right of action in respect of the

nuisance. It has also been [*450] held that where nuisance exists the abator need not wait until actual damage has happened, if in the nature of things it is certain to happen.

This is the legal position and I would not have the slightest hesitation to give judgment in favour of the plaintiff if she was succesful in proving that she has a claim against the defendant. But the plaintiff failed to appear before me or to give evidence herself or to call any witnesses in order to establish that she has any claim against the defendant whatsoever. On the contrary the evidence adduced supports the opposite view in so much as her father in his testimony admitted that he instructed the advocate to institute the action and furtherdown he stated that it was he who paid for the repairs of the wall and that the claim is his own and not his daughter’s, the plaintiff. Except for the evidence of the plaintiff's father no other evidence was adduced on this point. It is therefore abundantly clear that the plaintiff failed to establish that she has any claim against the defendant for any sum whatsoever.

On the other hand the plaintiff prays in her statement of claim for "a declaration of the Court that the defendant is not entitled to use her property In such a manner as to cause damage to the plaintiff." It is a general rule of law that every person shall enjoy and use his property in a manner compatible with the rights of other persons. Therefore it seems to me that such a declaration is, under the circumstances, without any object [*451] and that of and when the defendant will cause damage to the plaintiff legal proceedings can be instituted against her.

For this reason I find no other way but to dismiss the actione However, in view of the complexity of the case I have decided in the exercise of my judicial discretion not to make any order as to costs.

Action is therefore dismissed with no order as to costs.

Action dismissed,

No order as to costs.