The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1839-03-15 00:00:00

BIBLE, or 110 BIBLE ?

CASE OF IMPORTANCE TO OWNERS AND
BUILDERS OF HOUSES.
Before Mr. HALL, and another Magistrate, at the Police
Court, on Wednesday.

This was an information laid by Mr. Dixon, proprietor of
certain premises on the north-east side of Cleveland-square,
against Mr. Ambrose Buxton, proprietor of the adjoining
premises, charging the latter with making use of a party-wall,
by the insertion of beams, &c., contrary to the 9th and 10th
clauses of the Liverpool Building Improvement Acts, sth
and 6th William IV. The case excited very considerable in-
terest amongst house-owners and builders, as well as amongst
surveyors, who, it will be found, entertained opposing opi-
nions on the peculiar merits of the case.
Mr. Counsellor VENABLES appeared for the defendant ;
Mr. Robert NORRIS, solicitor, for the informant.
Before the case was gone into, Mr. HALL stated that the
Building Act empowered magistrates in petty sessions to
inflict penalties for its infraction ; but he was at a loss to
know why such power should be given to them • for it ap-
peared to him that the questions to be considered-under it
could be competently decided only by builders or surveyors.
Even when a penalty was inflicted, such cases were seldom
finally decided, as the parties might still proceed to another
court, the borough court or the sessions, or consent to a re-
ference to competent persons. He, therefore, suggested that
it might be more satisfactory to both parties to appoint a
referee or referees, who should have the liberty to call in a
barrister, or a surveyor.
Mr. NORRIS said, that his client had every confidence in
that Bench, and did not therefore, wish to avail himself of
the suggestion.

Mr. VENABLES said that, on the part of Mr. Buxton, he
had no objection to refer the matter to the sessions or the
borought court, assured as he was of a verdict wherever the
case was tried, as the party-wall was, he should prove, on
the soil and property of the defendant. There appeared'to
him indeed, to be nothing to refer, on his part.
After some further conversation, Mr. NORRIS not acceding
to Mr. HALL'S suggestion, the case proceeded.
The clauses of the act alluded to were read, setting forth a
penalty for " cutting into, or maiming" any party-wall.
Mr: NORRIS said, his client was the owner of a party-wall
on his premises in Cleveland-square ; and he had first to
prove that fact, and secondly, that the defendant had cut
into the same. If he succeeded he should be intitled to the
judgment of that court in behalf of his client, and the con-
sequent infliction of the penalty on the defendant. Mr,
Venables had made an offer to have the case tried in another
place ; but he, (Mr. N.) repeated that he had perfect confi-
dence in the judgment of that court. He should prove that
his client had exercised acts of ownership as regarded the
wall in question, for from 35 to 37 years. (The premises of
the two parties form, in front, the north-east angle, or corner
of Cleveland-square.) He then called—
Mr. Jonah Dixon.—l am a joiner, and was employed about
the division-wall of the building in 1802, and in the building
and joiner's work. In building Mr. Dixon's new premises,
the joists were put into that wall, and they are there still.
We also raised the wall about four feet higher, and so it still
remains, undisturbed. Lhave since looked at the same wall
used by Mr. Buxton. They (defendant) have placed the
gutter to carry away the water wholly on the wall. The house
adjoining the wall was formerly occupied by Mr. Fisher, and
is now rebuilt by Mr. Buxton. The wall has been cut into
in fresh places, for the support of three floors of timber, the
holes for the spars being fresh holes. Mr. Buxton is com-
pleting a house and shop there.
Cross-examined.—lt might have been the outside wall of
Mr. Buxton's house before any premises were built on Mr.
Dixon's land, which is a freehold. Mr. Fisher and Mr.
Dixon were very good friends, and Mr. Dixon obtained leave
to lay his beams into the wall.

Re-examined.---I do not know positively that Mr. Fisher
gave leave. We went into the wall at any rate. They would
not have laid them in without leave.

Mr. Stewart, surveyor, said he knew the wall. (A plan
was here produced.) This shows the form. In my judgment
it was a party-wall. It was so used years ago, and is so yet.
I thought it was so from Mr. Dixon's floors being supported
by it in the usual way. The upper part of Mr. Dixon's chim-
ney rests partly on this wall. I know nothing of what Mr.
Dixon previously enjoyed. Mr. Dixon's front wall, (at the
angle of the square) runs in the same direction as the party-
wall, and projects upon it about half the breadth of the latter
at the junction in the corner.

Cross-examined.—The upper part of Mr. Dixon's chimney
is not laid on to the wall. I cannot tell whether Mr. Dixon
advanced his frontage into the square, so as to form, by the
encroachment, the linement with the party-wall stated.
Mr. VENABLES then said, that he should show that the
wall was solely Mr. Buxton's, and that it was consistent with
this fact that the chimney should be set partly on that wall,
and also that the joists might be inserted in it ; for both these
were done solely by sufferance. Mr. Buxton was owner of
the soil, and consequently owner of the wall built upon it.
The question was, was the wall demised to Mr. Buxton, and
granted as freehold for 75 years ? This he should prove.
The chimney and the insertion of the joists were merely in the
nature ofeasements, ,and could not contravene an original
right.
Mr. HA LL here enquired of Mr. Stewart whether it was
not frequently found on pulling down buildings. that joists
had been inserted in the walls, supporting the floors of the
adjoining houses, without leave having been given, and thus
obtained easements. Mr. Stewart replied that such was
certainly often the case.
_ _

Mr. VENABLES then produced a lease of the property to
Mr. Buxton, dated Nov. 3, 1838,—with a plan of the ground
and premises, the frontage of which was 16 feet 6 inches.
He also produced several other leases of the, same pro-
perty previously, to several successive parties from the year
1776. The last was a lease -to Mr. Fisher, and all of them
were similar, with plans of the premises, and a like front
measurement in all of 16 feet 6 inches.

Mr. Rushton, Corporation District Surveyor, said, I exa-
mined the wall in
.question, and from appearances judged it
to be a wall belonging to Mr. Buxton. I took a few slates
off, and found it had originally been an outside wall. The
new part was raised partly upon the old slates, and partly
upon the cornice. The wall was a dressed wall, and it
was carried out in what was called " the Flemish bond."
Mr. Dixon's premises appear to have encroached upon the
square and npon Mr. Buxton's front, a brick breadth, cover-
ing the Flemish bond. I have no doubt but that it is not a
party wall. I have frequently known spars inserted in walls
that were not party walls, without leave being given ; that is,
on sufferance.

Cross-examined—They (Dixon) could not have set out his
wall in the square had it not been for the Flemish bond. Mr.
Rushton here produced a map of the town of Liverpool so
far back as the year 1769, which he had procured from the
Town Hall ; but after some conversation, its admissibility as
evidence for the defendant was disallowed, and it was with-
drawn.

James Wood, building-surveyor of the northern district.
I particularly observed the Flemish bond, and that the wall
was dressed as an exterior wall. There was also a back wall,
tied into the wall in question. The latter was much " wea-
thered." I agree with the last witness, that it has been a
gable end wall, and not a party wall.
Cross-examined.—lt was evident to me that it was an out-
side wall.

Mr: William Furness. I am a builder. I measured 'the
front of Mr. Buxton's house. The frontage, including the
wall in question, was 16 feet 6 inches. The wall was so much
" weathered," that it appeared to have stood the storms of
many winters. I believe it to be the property of Mr. Bux-
ton. It bore every indication of being an exterior wall.
This closed the defence.

Mr. HALL said, that the present case was not like one
arising out of the building of two houses in one day, but re-
lated to a house built many years ago. It was necessary, in
calling upon the Court, to assume that this was a prescrip-
ccriptive right, that the informant should show an an-
tecedent right. But this was destroyed by the evidence
adduced for the defence. The old man, Jonah Dixon, had
shown that, although Mr. Dixon had had the use of the wall
for 30 years, that was only by easement. It was proved, too,
that so far back as 1776, the frontage of Mr. Buxton's pre-
mises measured the same as now, including the wall in ques-
tion. From the testimony of the witnesses, and the leases
put in, it clearly appeared that it was an exterior wall ; and
as regards the insertion of the floor timbers into it, even their
own witness, Mr. Stewart, had admitted to him (Mr. Hall)
that this practice was frequent, as mere easement, without
conferring a right in perpetuity.
Mr. VENABLES to Mr. Norris.—" You may amuse your-
self with ' the hole in the wall ;' but if you take a single
ounce of flesh more than your due, you will throw yourself
open to an action." (A laugh.)
Mr. HALL said the informant had gone back only to 1802;
the defendants much further. The defendants had shown a
regular possession by successive lessees, with a like specified
frontage throughout, namely, 16 feet 6 inches, including the
wall. He could see no ground upon which he was called
upon to consider the wall in question a party wall, or raise
an inference of previous possession of it as such by Mr.
Dixon. He was, therefore, of opinion that the plaintiff had
failed to prove the facts set forth in the information, and the
defendant consequently stood acquitted.
Mr. VENABLES inquired whether Mr. Hall would allow
the defendants' expenses.
Mr. HAI4 said he had no power.