Iredale v. Loudon, (1908) 40 SCR 313

Supreme Court of Canada

Iredale v. Loudon, (1908) 40 S.C.R. 313

Date: 1908-06-16

James Iredale (Plaintiff) Appellant;

and

Mary Jane Loudon and Others (Defendants) Respondents.

1908: March 16, 17; 1908: June 16.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Title to land—Room in building—Adverse possession—Statute of Limitations—Incidental rights—Implied grant—License or easement.

Possession of an upper room in a building supported entirely by portions of the story beneath may ripen into title thereto under the provisions of the Statute of Limitations.

I., one of several owners of land with a building thereon, sold his interest to a co-owner and afterwards occupied a room in said building as tenant for his business. The room was on the second story and inside the street door was a landing leading to a staircase by which it was reached. I. had the only key provided for this street door and always locked it when leaving at night. He paid rent for the room at first and then remained in possession without paying rent for twelve years. The annual tax bills for the whole premises were generally, during that period, left in the room he occupied and were sent by him to the managing owner who paid the amounts. In an action to restrain the owners from interfering with his possession of said room and its appurtenances.

Held, reversing the judgment of the Court of Appeal (15 Ont. L.R. 286) and restoring with a modification that of the trial judge (14 Ont. L.R. 17) Idington and Maclennan JJ. dissenting, that I. had acquired a title under the Statute of Limitations to said room and to so much of the structure as rested on the soil to which he had acquired title.

Held, per Davies J. He had also acquired a proprietory right to the staircase and the portions of the building supporting said room.

Per Fitzpatrick C.J. and Duff J. The Statute of Limitations does not as against the party dispossessed annex to a title acquired

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by possession incidents resting on the implication of a grant. I. had, therefore, acquired no rights in the supports.

Per Idington and Maclennan JJ. The use of the landing and staircase was, at most, an easement and must continue for twenty years to produce the statutory title, and to give title to the supports there would have to be actual possession which was not the case here.

APPEAL from a decision of the Court of Appeal for Ontario^[1] reversing the judgment at the trial^[2] in favour of the plaintiff.

The facts are sufficiently stated in the above head-note.

W.N. Tilley for the appellant. An upper room in a building is land for purposes of the Statute of Limitations; Preston on Estates, vol. 1, pages 8 and 506; and the staircase and landing are land as well; Rains v. Buxton^[3]; Bevan v. London Portland Cement Co.^[4]; Midland v. Wright^[5].

A title in fee may be acquired to a tunnel or underground way; Bevan v. London Portland Cement Co.⁴; and consequently in a stairway.

The right of support is an incident to the ownership of the room and goes with the title acquired in the latter; Harris v. Ryding^[6], at p. 76; Humphries v. Brodden^[7].

W.D. McPherson K.C. for the respondent. The plaintiff had not the actual, continuous, visible occupation of the premises which is necessary to bar the title

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of the owner. See McConaghy v. Denmark^[8]; Harris v.Mudie^[9].

The parties here were relatives and the plaintiff never acted as if he was trying to acquire title. For both reasons his assertion of the right now will not be favoured. Hemmingway v. Hemmingway^[10]; Sanders v. Sanders^[11].

It is doubtful if a title can be acquired in an upper room such as this. A lease of a room gives the lessee no interest in the land. Shawmut National Bank v. City of Boston^[12]; Harrington v. Watson^[13].

In any case title to nothing more than the room itself could be acquired. See Doe d. Freeland v. Burt^[14], in which it was held that the demise of a yard did not carry with it the use of a cellar under the yard.

Moreover, the right of support and the right to use the landing and staircase are easements calling for twenty years’ possession to bar the owner’s title. Dalton v. Angus^[15]; Littledale v. Liverpool College^[16].

THE CHIEF JUSTICE.—I am in favour of allowing this appeal for the reasons given by Mr. Justice Duff.

DAVIES J.—I agree with the judgment of the trial judge in this case and think the appeal should be allowed and his judgment restored.

The questions to be determined are whether or not the evidence shewed the plaintiff to have had such an open and exclusive possession for such a length of time of the up-stairs flat of the building in dispute

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with the passage way leading exclusively to it as gave him a statutory title to this flat and passage way as against the defendants, and, if so, whether or not as against them he had a right to an injunction restraining them from carrying out their declared intention of pulling down the lower part of the house and so destroying the upper flat and stairway.

I am unable to draw any distinction between the possession of the plaintiff with respect to the upstairs rooms and the stairway. I agree with the trial judge and with Garrow J., in the Court of Appeal, that

the outer door, landing, stairway and workshop all formed part of one and the same parcel, the outer door of which plaintiff was accustomed to lock when leaving, forming in fact the outer door of his shop, and that his title to each and all should stand or fall together.

I also agree on the legal aspect of the case with what I would gather to have been the conclusion of Mr. Justice Osler, though he expresses it in a guarded way, that the right of support by the lower story of the building which was essential to the continued existence of the plaintiff’s acquired rights in the stairway and workshop was a proprietary right in his property rather than a positive easement.

I have read and carefully considered the numerous authorities cited by counsel having more or less a bearing upon the legal questions in dispute, and, while no case can be found exactly deciding that a title to a set of chambers or rooms or flat in a building not resting on the soil directly can be acquired or gained by possession under the Statute of Limitations, still there are so many dicta on the point by distinguished and learned judges that I have reached the conclusion that such a title to such a limited part of a building can be so acquired.

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Of course the rights so acquired are subject to the conditions which limit all questions of rights by length of enjoyment only.

I did not understand it to be contended that a valid grant could not be made of an upper room or flat in a building which would give the grantee such a right as amounted to ownership of the space within the room or flat or part of the building granted with, as against the grantor, a right of support and a necessary right of passage to the premises.

It would seem clear from the authorities that such is the case. Reilly v. Booth^[17].

Mr. McPherson did, however, as I understand his argument, contend that the statute did not operate to enable an estate to be acquired by possession in a part of a building not connected directly with the soil and that even if it did the right to support was an easement not within the statute and could only be acquired by twenty years’ possession, and not by twelve.

It is true that the Statute of Limitations does not transfer the rights of the dispossessed owner to the squatter. It only purports to extinguish by lapse of time any rights to possession which ought to have been exercised during the period limited. Tichborne v. Weir^[18]; In re Nisbet and Potts Contract^[19]. But nevertheless the squatter does obtain after the expiration of the statutory period a title recognized by law and the right to use the premises for all lawful purposes as against every one whose title is barred or extinguished.

Then, does such a right and title so acquired carry

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with it the right of support from the underlying part of the building? It was laid down in the judgment of the Court of Exchequer Chambers in Bonomi v. Backhouse^[20] in 1859, that the right of support for buildings, when acquired, is precisely similar in its character to the natural right of support for the soil.

By parity of reasoning it seems to me such right of support applies to the upper part of a building as against the lower. It is not contended that such right would not exist in the case of a grant of the upper part and I can see no reason why it should not exist with respect to land and premises acquired by possession unless it is held to be a positive easement within the 35th section of the statute and only to be acquired by the time prescribed in that section.

By that statute, land is declared to extend to messuages and all other hereditaments whether corporeal or incorporeal. It, therefore, clearly includes a flat or room or part of a house as well as a whole house. I can see no good reason or justification for confining the meaning to a part of a building directly connected with the soil. Once that conclusion is reached, that an upper room or flat is land within the statute and capable of being acquired by possession for a period of twelve years, then it appears to me we are, ex necessitate, bound to hold that the right of support is a proprietary right passing with the premises acquired by possession, essential to its existence and inseparable from it. If it is not so but is on the contrary a positive easement within the thirty-fifth section, then it would not be acquired until twenty years had elapsed. The result would be that an exclusive right to the use of the rooms would have been acquired under the

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fourth section after twelve years’ open and exclusive possession but that such right would be made illusory and liable to be defeated at any time during the eight years between the twelve years and the twenty years by the owner, whose right to the rooms had been extinguished, pulling down the whole structure or otherwise withdrawing the support. I cannot think that a fair construction of the Act. The true construction of the two sections, I think, is to hold that the easements specially legislated for in the thirty-fifth section are positive and affirmative easements only. Otherwise we would have the strange anomaly created by two sections of the same statute, one section declaring that a title might be acquired to part of a building by twelve years of open exclusive possession, and the other that no title was acquired to that right of support which is essential to the former’s existence, and that a subsequent owner whose title was extinguished to the house or part of the house above him, could destroy it altogether by taking away that which had been its natural and necessary support during the whole period necessary to acquire the possessory title.

These rights of support are doubtless of the nature of an easement, but they may be likened rather to those of a riparian proprietor in the water flowing past and bounding his land.

Surely the rights of a riparian proprietor, if a squatter became such a proprietor, would follow as a consequence upon his possession when it had ripened into a statutory title and so, I take it, a possession of a house or flat which, after the statutory period of twelve years had ripened into a title, would carry with it what was absolutely essential to its existence, namely, a right to support from the subjacent part of the same house.

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So far as the authorities are concerned since the case of Dalton v. Angus^[21], in the House of Lords, the question may be considered an open one, though, as is said in Gale on Easements, p. 357, at present the balance of authority so far as the number of dicta goes must be held to be against the view that such an easement was a positive one. As I have already said, I think, so far as the right of support is concerned, in circumstances such as those now before us, it would be held to be a proprietary right and follow as a necessary incident of the land or premises to which it is attached.

IDINGTON J.—Seven persons owned some land in Toronto. Appellant was one of them and the others were his brothers and sisters. He managed the estate on behalf of all. While doing so he occupied, as a tinsmith shop, the room in question which formed part of that estate, and consisted of a second story of an old frame building having a frontage of 13 feet 6 inches on Bay street and depth of 62 feet and was adjoined on either side by other parts of the said estate. This room was reached by a stairway, closed in on one side by the outside frame wall of the building, and on the other side by a partition between it and a closed shop or shed underneath this upper room. The landing at the foot was just big enough to swing therein an ordinary door that closed, when desired, the entrance from the street. The size of the landing at the top is not clearly shewn. There was, however, between that landing and this room across the entrance thereto another door. There was in it, as well as in the street door, a slot to receive mail matter,

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which might be deposited through either as found convenient.

The appellant and his co-owners agreed he should sell to them his seventh share in the whole property and he accordingly conveyed the same in 1882 to the respondents and ceased to meddle in the management.

He continued to use the room in question and stairway as he had previously done but paid rent therefor at the rate of $6 a month. There was no lease in writing.

The management of the entire property passed to the hands of his sister Martha and from the father’s death in 1890 she seems to have failed to ask for rent and he, confessedly not supposing he was dispossessing any one, or acquiring any new right, as consistently failed to pay or offer to pay rent.

The appellant claimed he had acquired a title to this room and stairway by virtue of such possession as he had had and of “The Real Property Limitations Act” of Ontario and asked the Court to enjoin the owners of the soil and shop below his from altering, removing or dealing with the same in such a way as to interfere with the use of the room and stairs in question.

This was adjudged him by the learned trial judge, but the Court of Appeal reversed that judgment, dismissed the action and declared the respondents herein entitled to the possession of the premises in question.

I agree in this result which accords with the intention of all parties.

It may in one sense be truly said that intention is out of the question, for the statute provides, in the absence of an entry, for intention being expressed

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only in two ways, by payment of rent or a written acknowledgment.

Yet when we are asked to give to equivocal acts of possession such effect as to convert what was only a right in the nature of a license or easement into exclusive possession which will operate under the statute to the extinction of an owner’s right we are permitted to consider the intention.

Was the use of the stairway as a means of access to the room in question anything but that which would be exercised by virtue of a mere license or easement?

Had the appellant ever any other cause, than such use, for its occupation? Did he ever occupy it in any other way? Can such a mode of occupation ever be said to be of that exclusive sort that will so satisfy the statute as to extinguish the title of the owner?

In general the right to use a stairway is only an easement. The nature of the thing is such that it can be and often is made to serve many adjoining freeholds or leaseholds. It is hardly ever used as a place of occupation though occasionally landings leading thereto in large cities may be found so used in the way of business stands.

As to a street door leading thereto how does that affect the nature of the occupation? Even if each of numerous tenants had a key and locked the street door each time one entered how could it change the nature of an occupation thus enjoyed by many? What difference can it make if only one?

It is the exclusion of the owner that is first to be considered.

The cases shew that a succession of exclusive occupancies may extinguish, when that is continued for

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the requisite time, the title of the owner. These successive occupants may be one or many alternately.

Then why may not a dozen or more tenants, using one door to enter a stairway in like manner, at the end of any ten years, be held to have extinguished the owner’s title to the stairway?

I put it thus as a case I suspect quite common in large blocks and as what seemed to be quite in line with the sort of occupancy the appellant first acquired here.

I should be loathe to say anything that would thus jeopardize the rights of landlords in a very large class of cases.

The mere setting out of a pot or a pan occasionally on the stairway or landing of the stairway, by or for a customer coming in appellant’s absence, is to my mind evidence (if any importance be attached to it at all) more against than for the appellant.

It indicates that the door at the head of the stair may have been locked as a rule, in case the appellant left his shop. Else why not leave them inside? And further it suggests what is highly probable that the outside door was neither locked nor shut during the day.

That the appellant had a key and locked it usually at night adds nothing. A dozen tenants in a well kept place might all do so and have keys. It would be rather perilous for landlords who often rent their rooms without seeing them for years and as a matter of course treat the stair as an easement, for which no rent is exacted, but the entrance to which is enclosed by a door that prudence demands the tenant or tenants should keep locked at night.

Suppose the many combined or dwindled to one

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and the doors at each were kept locked by night, and if you please, by day, as suited the dwellers, yet using it only for a passageway, could such an easement be converted thereby without more into an exclusive occupancy that in ten years would obliterate the owner’s title? Or suppose a number using in common such a stair for ten years, each using it for different rooms, but to the continuous exclusion of all others: Could they acquire thereby a title?

Suppose this stairway was only the stairway to a room on some one else’s property and originally let to that some one else as a stairway, could it with every other feature that is shewn to have been peculiar to this one and to its use to serve this room ever have been dreamt of as a subject of acquisition in the way now suggested?

If the respondents had chosen to build on their land adjoining this stairway and used as a means of access to such new building the way over this stairway I would not have supposed in such a case and on the bald sort of evidence we have before us trespass would have lain at the suit of the appellants as against the respondents.

The slot in the door at the head of the stair to my mind speaks volumes in this regard. The history of the stairway so far as we have it also indicates it was for a tenant’s use in getting access to the room in common with others or otherwise as might be required having regard to the general development of the property.

Having come to the conclusion that the right to use this entrance and stairway was at the beginning but that of license or in the nature of an easement I hold it remained so.

In relation to that and the intention of the appel-

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lant in its use we may be permitted to consider the question of intention in the. sense it was regarded in the case of Littledale v. Liverpool College^[22].

Applying the evidence of intention to be derived from the annual incident of appellant looking as a matter of course to the respondents’ paying the taxes, we certainly are assured that the character of the right exercised was throughout the same.

It is moreover of some significance that the assessment regularly and properly made as we may presume it to have been should have led to such results.

Doubtless the respondents appeared on assessment and tax schedules as owners and the appellant as tenant according to the requirements of the Assessment Act, or the appellant never would have thought of sending the tax bills to his sister.

His own evidence which supplements an admission that the taxes were so paid is as follows:—

Were the tax bills ever sent to you to pay?

A.—They were left in my shop.

Q.—What did you do with them? A.—I either took them myself or sent them to my sister.

The only question about which I have had any concern was in regard to the landing at the foot of the stairway, but as it formed only a necessary part of the whole of which the only occupancy consisted of acts of user characteristic of the use of that of an easement, I conclude it must go with the stairway.

Hence no right has been acquired thereto. Sufficient length of time has not elapsed to give a prescriptive right to an easement in the stair or entrance.

The appellant’s title, such as it is, must be in this way only if at all to the room.

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In regard to a novel claim thereto of this kind I think, in the entire absence of semblance of precedent for such a claim, we must, to begin with, apprehend correctly the nature of the right to support for such a room. Whose was the support? Did the appellant ever acquire any right therein?

We heard much urged of a “natural right” to support. An industrious search for legal foundation for such a claim has failed to discover any or any legal right to support, but that which the court came to rest the right on in the case of Dalton v. Angus^[23], and which leaves, I submit, no well-founded pretension for any such thing as a “natural right,” save in the case where two adjoining parcels of land have been acquired in a state of nature; and then this natural support is something which he digging has no right to meddle with.

Whether in the ultimate analysis of reason therefor the right is resolved or not into an implied grant or implication in the grant or an application of the legal force of the maxim sic utere tuo ut alienum non Ioedas I will not pause to inquire.

I merely notice it to say that there is a manifest difference between that case or such a right springing therefrom, and the right that may be sought to be imposed upon the artificial works of a man who, in the making or exercising of dominion over that which he has created, can hardly be said to have conferred upon any one a natural right to use or enjoy the fruits of the labour of him so creating; and especially so to rest thereupon a means of depriving him of his property. Truly it seems a queer case to which to extend

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the use of the above maxim coined as the expression of a rule primarily adopted for executing justice.

It seems to me self-evident that any one seeking in any way to enjoy any right dependent on the use of such a creation, whether that creation is in turn dependent upon mother earth for a support or not, must trace his right to a grant or license of some sort, express or implied.

I am not oblivious of the fact that the use of the phrase “natural right” to support has been countenanced in some cases in a way apparently inconsistent with what I am expressing.

I think, however, that the case of Dalton v. Angus^[24] should as a result of the discussion and exposition of the law therein, though possibly not necessarily of the decision, put an end to its use in that way.

The following summary of Gale on Easements (7 ed.), at p. 357, does not inaccurately express the legal result thereof to be kept in mind so far as we are concerned here, in apprehending as I have said we must the nature of the right to support that the appellant had for his alleged room and of the legal right or title the respondents had in and to that support and to its removal if and when they so desired.

The paragraph reads as follows:—

But the decision of the House of Lords may be taken as finally establishing the rule, that twenty years’ enjoyment of support to a building, whether from the adjacent or from the subjacent land, being peaceable, open and as of right, will (either by a right springing out of the enjoyment of the common law, or under the “Prescription Act,” or under the doctrine of presumed grant) confer the right to have the support continued; that, if the right is based on the presumption of a grant founded on the enjoyment, the presumption is absolute and cannot be rebutted by shewing that no grant has in fact been made; and that, if notice be material, then,

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in the absence of any wilful fraud or concealment, the outward appearance of the building is sufficient notice to all persons concerned of the amount of support which it requires.

This is an affirmative statement of the result of twenty years’ enjoyment and in this the converse case to be considered I may add as the result of looking into the authorities that nowhere has it been held, short of express grant or license, that such a right of support upon or derived from artificial structure has been ever held to exist merely by reason of user for less than twenty years.

Such being the case how can it be said to have been shewn that the appellant had in relation to this room that kind of occupation which this court held in McConaghy v. Denmark^[25], must be the case of one setting up a possessory title under the statute, i.e., “an actual, continuous and visible character” or as expressed in Sherren v. Pearson^[26], at p. 585 “an occupation exclusive, continuous, open or visible and notorious.”

I am unable to attribute to the acts of the appellant herein any such meaning.

A possession that depends for its daily continuance on the enjoyment of that support which is in the absolute dominion of him against whom the time is supposed to be running and which had not yet earned for the alleged adverse possessor when the full time in question is supposed to have run, the right longer to continue that support is hardly within what one must feel was the sentiment lying at the very foundation of Statutes of Limitation.

Granting as possible that the possession of a flat may ripen into a title, when the enjoyment of that

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possession rested upon some right of support already acquired and continuing as of right in the possessor during the currency of that ripening of the possession of the flat, yet this is far from that.

Nor can I see how the supposed acquisition of the upper part by that length of possession that goes merely to extinguish the legal estate the owner had, can ever draw to it as if appurtenant thereto any right in the easements of support necessary to the enjoyment of the upper part any more than any other mere easement as distinguished from an incident of the property unless such easement by the terms of its grant enure to or operate in favour of the actual possessor.

That other titles than those acquired by virtue of the Real Property Limitation Acts do generally carry with them a right of support helps not in the slightest degree.

One rests on express or implied consent. The other on the absolute negation of any right in another but only within certain limits of which the boundaries are defined by the acts of the trespasser thus and thereby become legal possessor.

Beyond his actual possession he takes nothing, acquires nothing, for the statute operates to extend his dominion only so far as the rights of him who has ceased to possess have been extinguished by the possession of another, and nothing beyond has been rendered subject to his will.

I did not overlook the fact that expressions exist in some authorities shewing the title acquired to be the equivalent of that held by him who had got a grant of the land and thus apparently extending this right beyond what I state.

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The case of Tichbourne v. Weir^[27], where it was argued that the adverse possessor, whose possession had thus extinguished the rights of a lessee, must be held by virtue of those authorities to be as if assignee of the lease, clears up the position. It was held no such position was tenable.

Wilkes v. Greenway^[28], bears out so far as it goes the view I have expressed and is not inconsistent with the strict meaning of the authorities referred to.

Statutes now exist giving presumptively to a conveyance of land the widest effect in regard to carrying with the title thereto all the easements appurtenances and all else used or enjoyed therewith by him conveying. That cannot prevail here by virtue of possession, yet it is in truth what seems to be claimed as the result thereof. Such was not what a mere conveyance of the land meant when the Real Property Limitations Act was enacted.

There is another view presented by some and that is that the adverse possessor must be held to be claiming by his acts of possession everything accessory to as well as the particular parcel itself.

I perceive the force of that reasoning, or assertion rather, but when it has, if ever, to be accepted as the claim made and resulting in so wide an acquisition, we must abandon I think the tests I have cited which at present ought to bind this court as to the nature of the occupancy.

But before passing the contention I have just alluded to, I may notice its relation to a point made, and doubted or denied in argument, that an estate in law can be created in an upper chamber. This point was passed with such sort of discussion without con-

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necting or pressing its relation to this contention I am now considering. It may well be that having such an estate created by grant its creation in that way implies the right to the use of the easement or support. Then it may well be argued that an adverse possession of that estate thus created may when the necessary time has run to ripen it by extinction of the owner’s rights carry with it all that its original creation implied.

I do not say in the absence of argument (and as in my view it is unnecessary for this case to decide) how such a condition of things might result in law.

I merely state it thus that it may not be supposed to have been overlooked and to apply what I am about to put as its possible relation to the case in hand.

It may be said in a way somewhat analogous to the case of the estate thus granted that the tenant at will has entered by the consent of the owner, used the support as an easement whilst paying rent and when he ceased doing so the adverse possession was that which the owner had thus stamped upon it including the easement of support which he himself conceded and cannot be supposed to be separated when the statute began to run.

Assume some such position arguable at all I deny that the relation of landlord and tenant or aught implied therein can be imported into the condition of things the statute is supposed to deal with.

It is the trespasser, or he who at all events holds in law no other relation to the owner that is supposed to be acquiring by time a right, no matter how or what the relation may have been.

I prefer in any such conceivable cases to hold the

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other alternative that the statute does not effectively apply to such an alleged possession.

In any event this right of support for an upper room is a right that cannot be called accessory to anything the owner had and of which he is being deprived. It was not an easement he held. It was not by virtue of any easement which he had that he was enabled to enjoy the upper room. No such thing was dreamt of. It was part of his property as a whole. It is only to such—claiming as the appellant does—that there is need to create and then annex an easement for his supposed acquisition of property.

This aspect of his supposed rights seems supportable only by a most vicious sort of reasoning in a circle.

To repeat, it is confusing the rights that flow from grants with those which result from a statutory negation.

The surface and underground cases pressed upon us have no analogy for the reasons I have already set forth supplemented by the facts that in none of them can it be said the claim depended on any such right as set up but found non-existent here. And the result, limiting the title so acquired to that part of the estate really occupied, instead of extending it to that further up ad cœlum seems to make against, instead of for the contention, that something outside that actually possessed became accessory thereto, by virtue of necessity for the support thereof.

I think the appeal should be dismissed with costs.

MACLENNAN J.—I dissent from the judgment allowing this appeal.

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DUFF J.—It is, I think, too late to dispute the proposition that an upper room not resting directly upon the soil but supported entirely by the surrounding parts of a building might at common law be the subject of a feoffment and livery as a corporeal hereditament, that is to say, as land; Co. Litt. 48 b.; Sheppard’s Touchstone 202; 1 Preston Estates 8, 506; Yorkshire Fire & Life Ins. Co. v. Clayton^[29]; or that the exclusive use or possession of such a room may validly be granted for a limited or an unlimited time; Reilly v. Booth^[30].

That such a room may be the subject of a tenancy at will or for a term is not of course to be questioned by anybody.

Now I cannot understand a tenancy of a corporeal hereditament under which the tenant does not get as against the landlord the exclusive possession of some defined or definable portion of land or of a building or other structure erected upon land. I am then, I must admit with great respect, unable to follow the argument that possession of an upper room under such a tenancy, does not involve a discontinuance of possession on part of the owner as well as such a possession by the tenant as may under the Statute of Limitations ripen into a possessory title. If you have a subject which is land and such a possession of that subject I think the ground is clear for the operation of the statute. This indeed seems to be involved in the enactments both of section 8, which provides that when a person is in possession of land as a tenant from year to year or other period without a lease in writing the right of the person entitled to the land sub-

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ject to the tenancy shall be deemed to have first accrued for the purposes of the statute at the determination of the first of such periods, and of section 7, which contains a similar provision relating to land held under a tenancy at will. The legislature seems in these sections to have recognized expressly the possession of a tenant at will or from year to year as involving a discontinuance of possession within the meaning of the statute by the person entitled to the land subject to the tenancy, and I can find nothing in the statute which detracts from the force of this recognition.

The courts have had no difficulty—if we except the technical point suggested but rejected by Mellish L.J., in the case to which I am about to refer—in applying the statute to seams of coal, although unopened, held under a tenancy at will. In Low Moore Co. v. Stanley Coal Co.^[31], the Court of Appeal (Lord Cairns L.C., Lord Coleridge C.J. and Mellish L.J.) affirming the judgment of the Court of Exchequer (Bramwell, Pollock and Amphlett BB.) decided that a tenant at will of seven seams of coal who had entered upon the first two seams only, had for the purposes of the statute (by reason of his tenancy and his possession of the first two seams under it) possession of the remaining five seams, and that at the expiration of the statutory period he had acquired by virtue of that possession a possessory title. The scope of his tenancy was held for the purposes of the statute to define the scope of his possession. So here the plaintiff’s tenancy is not disputed and once the subjects of that ten-

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ancy are determined the scope of his possession is for the same purposes fixed.

It is argued that here there can be no possession within the meaning of the statute, inasmuch as the existence of the plaintiff’s shop and therefore his possession of it depends upon the physical support afforded by the subjacent parts of the structure. But that argument seems to prove far too much. The upper of two strata of soil, divided horizontally, depends for its maintenance upon the support of the lower, which may in turn depend upon the support of strata below. Can it be said that the upper stratum is, because of this physical dependence, incapable of a separate exclusive possession? I confess I cannot understand how that can be maintained; indeed the case I have just cited seems to be conclusive upon the point. The seams of coal in question there depended upon the support of the soil below, which remained in the possession of the owner; Trustees, Executors and Agency Co. v. Short^[32]; to the same extent as the maintenance of the plaintiff’s shop depends upon the support it receives from the lower story.

The decision as regards this branch of the controversy, must therefore turn upon the answer to the question: What were the premises let to the plaintiff?

After a good deal of doubt and fluctuation of opinion I agree with Mabee J. and Garrow J.A. on that point. Since there was no express agreement defining the premises let, we are left to ascertain what they were by inference from the acts of the parties and the surrounding circumstances. The entrance and stairway were during the whole period of the plaintiff’s possession used as a means of access to the plaintiff’s shop, and the actual use of them was as an ad-

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junct of the shop only. I think, moreover, that the proper inference from all the evidence is that there was one key only of the street door which remained in the plaintiff’s possession, and I do not think the significance of these facts is affected by the circumstance that this door was usually left open during the daytime. The entrance and stairway were used by the plaintiff and his customers as such approaches would be used in the ordinary course, and I think that as much control as would usually be exercised over such approaches by any tenant to whom they should be let with the shop as part of the demised premises was exercised by the plaintiff. The view most consistent with all these circumstances would seem to be that the approaches and the shop were treated as a unum quid, and that the former were part of the premises let to the plaintiff.

But the plaintiff has failed to satisfy me that he has vested in him as the holder of a possessory title to the shop a right of support from the lower story. The Statute of Limitations, when the statutory conditions concerning possession are satisfied, bars the right of the owner of the paper title to make an entry or to bring an action for possession, and moreover extinguishes his title. The possession of the intruder is thus protected, but the statute does not profess to annex to a possessory title so acquired any incidental rights which rest only upon the implication of a grant or of what in law is the equivalent of a grant, and it is, I think, a settled rule that such rights cannot, as against a dispossessed owner, be derived from the statute. Wilkes v. Greenway^[33].

Apart from such an implication has the owner of an upper story of a building any such right of sup-

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port? I think he has none. So far as concerns this case the controversy whether such a right of support, when it exists, is properly described as an easement or as a right incident to the property in respect of which it is enjoyed is I think to quote Lord Blackburn in Dalton v. Angus^[34], at page 809, “a question as to words rather than as to things.” The substantial point to be determined here is whether it is a right which may arise from the natural situation of the property itself—(as the rights of a riparian proprietor in respect of the flow of a stream)—or one which must have its origin in a grant or the legal equivalent of a grant. That this last is so as regards the right of support for a building from the subjacent or adjacent soil is very clearly settled law, and I cannot resist the conclusion that the right in question here must stand upon the same footing. I venture with very great respect to say that I agree, in this, with the view expressed by Lord Selborne in Dalton v. Angus³⁴, at pages 793 and 794, and seemingly concurred in by Lord Watson (see p. 831).

It follows I think that the plaintiff is not entitled to prevent the defendants demolishing their part of the building merely because some part to which he has acquired a possessory title would thereby lose the support which it now receives; and I did not understand Mr. Tilley to argue that failing to establish a right of support he is on any other principle entitled to prevent the defendants destroying their part of the building.

The plaintiff is therefore not entitled to an injunction in the broad terms of the order granted by Mabee J., but he is I think entitled to an order restraining

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the defendants from interfering with so much of the structure as rests upon that part of the soil itself to which he had acquired a possessory title.

Appeal allowed with costs.

Solicitors for the appellant: Thompson, Tilley & Johnston.

Solicitors for the respondent: McPherson & Co.