Rathinavelu Mudaliar and Another vs Kolandavelu Pillai

Sankaran Nair, J.—The defendant is the appellant. It is found by the lower Courts that the appellants''s father having purchased the site in

1880, pulled down in 1883 the old dwelling houses and built a substantial terraced house which rose in height a good deal over the adjoining house

of the plaintiff, his neighbour on the east. He constructed a cornice partly for decoration and partly as a protection against the weather for the lower

part of the wall. It is nearly a foot beyond the wall and overhangs the ground between, belonging to the plaintiff and also the roof of his house. The

ground it overhangs has been found to be in the possession of the plaintiff from 1883, and as the cornice has not been in existence for 20 years no

easement has been acquired by the defendant; the lower Courts have accordingly declared that the plaintiff is entitled to remove the defendant''s

cornice when a new wall which the plaintiff is building reaches it, in BO far as it stands in his way of raising the wall.

It is contended before us on behalf of the appellant that though he may not have acquired any right under the Easements Act, yet as the cornice

has been in existence for more than 12 years, the plaintiff is not entitled to interfere with it. The case in Mohanlal Jechand v. Amratlal Bechardas

ILR 3 Bom. 174 dearly supports the appellants. It was found in that case that the roof of the defendant''s house overhanging the space which

belonged to the plaintiff between that house and the plaintiff''s to the extent of about 3 feet in width had been in that position for more than 20

years. The learned Judges considered that it was an occupation of space rather than an enjoyment of an easement and treating it as a case similar

to the case of possession of an upper chamber of a house while the ownership and possession of the ground floor remains in another, held that the

plaintiff could not after 12 years recover possession of the space occupied by the defendant''s projecting roof.

The case in Nritta Kumari Dassi v. Puddomoni Bewah ILR 30 Cal. 503 is not in point. There the learned Judges held that no right of easement

can be acquired by prescription to a cornice which has been erected merely for the purpose of ornamentation. The claim before us is not one of

easement, as the projection has not been in existence for 20 years. Further in that case the defendant built his wall ""so as to absorb or include"" the

plaintiff''s cornice which he might be well entitled to do, even if the plaintiff had acquired a right by prescription to retain his cornice. See Corbett v.

Hill L.R. 9 Eq. 671 as the space above and below the cornice might still continue to belong to the defendant. The defendant did not attempt

apparently to interfere with the plaintiff''s cornice.

The English cases support the view taken by the learned Judges in Mohanlal Jechand v. Amrahlal Bechardas ILR 3 Bom. 174. As pointed out

by the Vice - Chancellor in Corbett v. Hill L.R. 9 Eq. 67, ""the ordinary rule of law is, that whoever has got the solum - whoever has got the site -

is the owner of every thing up to the sky and down to the centre of the earth. But this presumption of general ownership arising from the possession

of the surface may be rebutted.

If a man were to erect any building overhanging the land of another, he would commit trespass and an action would lie against him Fay v

Prentice I.C.B. 828. Limitation accordingly would begin to run and he would acquire a right to the space occupied by lapse of time. Whether such

trespasser acquires a right only to the space occupied by his projection or whether he acquires a right to the space above and below the protrusion

depends upon the nature of the possession and the other circumstances of the case, Corbett v. Hill L.R. 9 Eq. 671 and Laybourn v. Gridley L.R.

1892 11 Ch. 53 are instances where the ownership acquired by grant of the overhanging protrusion or building was held not to convey the

ownership of the space overhead. In Harvey v. Walters L.R. 8 C.P. 162 the plaintiff had become entitled by user to a right of having the eaves of

his buildings project over the defendants'' land, but the plaintiff pulled down the buildings and in re-building them, carried the wall to a greater

height and increased the height of the eaves from the ground and the Judges intimated an opinion that the original projection was the real trespass

and the new projection above it was only a user of the space already taken possession of by the original trespass.

In the case before us the Judge has found that the ground directly below the cornice is still in the possession of the plaintiff and considering the

purpose for which the cornice was constructed the defendant in my opinion has Act acquired any right to the space either above or below his

projection. But according to the cases already referred to, he has acquired a right to the space occupied by his cornice and is entitled to retain the

cornice in its present position.

Merely nailing a board so as to overhang another''s land may not be a trespass as decided in Pickering v. Rudd 4 Camp. 219. With reference to

the observations of Lord Ellenborough in this case see Kenyon v. Hart 6 B. & S. 249 and Pollock on ''Torts,'' 6th edition, page 333. But it has

been held that a man has no right to carry electric wires at a height of 34 feet across the portion of the atmosphere which lies above the land

belonging to another, Finchley Electric Light Co. v. Finchley Urban District Council L.R. (1902) Ch. 866.

I am therefore of opinion that limitation began to run when effective possession was taken by the defendant by building his cornice and that the

plaintiff''s claim to remove the cornice is barred and the decrees of the lower Courts should be modified accordingly by dismissing that part of his

claim.

Each party will bear his own coat in this appeal.

Moore, J.

I concur.