Support Flashcards
Right of support
Natural right attached to ownership of land in its natural state. Only applies to neighbouring land. Frequently linked with nuisance, negligence and trespass.
Can have easements in grant or prescription (20 yrs uninterrupted use, you get a right) but we dont have prescription since 1976 when it was put on register for torrence principle.
Horizontal / Lateral support
(falls sideways) Would land have subsided on its own? if so then damages for loss of support and consequential losses. If not, no right of support claim BUT can claim nuisance. Hard to prove it would have subsided naturally laterally.
Vertical Support
Burrowing under land can be trespass. If house falls, would land have subsided in natural state? often assumed because of gravity.
Cleland v Berberick
because of dfd sand removal, actions of wind and water were facilitated. Court found for plf that excavation was primary cause (aided by storms) of land collapse.
Right of support is that someones land should be left in natural state without interference by direct or indirect actions of nature facilitated by direct action of adjoining landowner. Support includes indirect ie not to facilitate wind/rain by excavations on adjoining land.
Bremner v Bleakley
Sand in holes. Not enough chain of causation, if wind naturally blows sand off and neighbor prevents return, no action. Things deposited on dfds land become incorporated with it - ferae naturae.
Gillies v Bortolullzi
contractor excavating on next door land, wall falls down. Lateral support right only for natural land, not with weight of buildings. But they were liable for vertical because they dug under the land.
Rytter v Schimtz
Not entitled to lateral support for increased pressure by building, but usually are for vertical. Right to support is strict. No need to show intent or trespass.
Pugliese v National Captial Commission
Moves from rights based inquiry (right of withdrawal and support) to a balancing of intersts in context of nuisance and negligence.
Construction of sewer lands cause water table to lower below properties and caused damage.
No absolute right to support of subterranean water no flowing in defined channel. Nor is right to extract absolute.
Negligence - need duty of care, proximity as foreseeable risk. Duty to avvoid causing foreseeable injury. Interference with right to support of underground water likely gives negligence action.
Nuisance - must consider whether conduct is reasonable considering the fact that he has a neighbor.
