IN

THE PRINCIPLE OF BETTERMENT IN ITS

LEGAL ASPECT.

N the following remarks I propose to consider the subject of 'Betterment' purely from a legal point of view, and to confine the term to the sense in which it has been much used and much canvassed in this country during the last few years. In America betterment' is applied to cases where the property of one man is improved by or at the expense of another man. But in England we use the term exclusively in a technical sense and in reference to cases where the property of certain individuals derives a special enhancement in value from an improvement made for the public benefit and at the public expense.

The first Report of the Royal Commission on the Housing of the Working Classes,' presented in 1885, defined betterment in relation to the subject-matter of the Report as 'the principle that rates should be levied in a higher measure upon the property which derives a distinct and direct advantage from an improvement, instead of upon the community generally, who have only the advantage of the general amelioration in the health of the district' (p. 47). This principle was recognized by our Legislature in one solitary instance more than two centuries ago. It was again to a small extent adopted in 1879 and 1882. But during the last four years it has become the subject of wide discussion in consequence of the proposal on the subject for which the London County Council sought the sanction of the Legislature in the Bill introduced by them into Parliament in the Session of 1890 to enable them to widen and improve the Strand. The controversy to which this proposal has given rise has hitherto prevented the Bill from becoming law; but the Council are bent on carrying out their policy if possible. It may therefore be useful to examine the question from the standpoint of pure law, and to inquire how far, if at all, the doctrine of 'betterment' is in accord with the principles of justice and equity. In so doing, we shall naturally be led into the discussion of the concrete law of our own and other countries upon the subject and upon other kindred topics. Concrete law is not always in harmony with abstract law, and where the two are out of accord, we should not hesitate to point out the fact. But the legal systems of civilized countries are for the most part in agreement with the recognized principles of justice

and equity; these principles being generally at the base of the systems, though, in some cases, positive laws have moulded, rather than followed, the received notions as to what is just and equitable.

In dealing with a comparatively novel subject, it is useful and sometimes even inevitable that we should proceed by analogy. As Sir Edward Coke says (Co. Litt. 191 a) argumentum a simili is good in law. The same may be said of argumentum a contrario. And in seeking to arrive at a right conclusion on the, comparatively speaking, new point which we are investigating, it will not be otherwise than pertinent to review the well-established law on the subject of what we may call 'worsement,' or the injuriously affecting of neighbouring property by the execution of public works, and also to consider the doctrines of law in reference to similar questions between private parties, and to note what are the legal rights or obligations of a man whose property is damaged or improved by the mode in which another individual deals with property of which this latter individual is de facto in peaceable possession. We shall then, I think, come to the conclusion that the principle of betterment is, in law, just and equitable, but that, like the counter principle of worsement' or the injuriously affecting of property, it ought to be applied only in clear cases and subject to strict regulations and conditions, if we would prevent it from becoming iniquitous and oppressive.

It will be convenient to remark, before proceeding further, that throughout this dissertation, I use the word 'property' as a short and convenient, though not, technically, very accurate expression, to denote real property of any kind, and any tenure, including hereditaments held merely for a term of years or any less chattel interest.

In all communities which have attained to any degree of civilization, the maxim Sic utere tuo ut alienum non laedas must necessarily be more or less recognized and acted upon. But in no legal system is it enforced in its full rigour. Take, for instance, our own law. A owns a piece of land adjoining B's house and garden. If B's house has stood there for twenty years, A cannot build on his land so as materially to diminish the light from any of B's windows which have been in existence during the whole of that period. But short of this he has a perfect right to build so as to overlook B's windows or his garden, and so substantially diminish the market value of the house as an agreeable residence; and, if B's windows have been in existence a day short of twenty years, he may also build so as entirely to block them up; although his doing so will not inflict one penny less of injury on the house than would have been inflicted by blocking up windows which had been in existence for a score of years and upwards. A may also with

impunity diminish the value of B's house by using his own land for any unsightly or otherwise unattractive purpose, which falls short of being an actual legal nuisance. The maxim, in fact, in its trite form, is hardly correct. It should rather run thus: Sic utere tuo ut aliena jura non infringas. What a man's jura with regard to his own property are, must, of course, in the absence of express or implied contract depend on the general law prevailing in the country wherein the property is situated. But whatever they may be, the infringement of the rights by dealings with the property itself on the part of a person temporarily in occupation of it, or by dealings with neighbouring property on the part of a person entitled to that neighbouring property, gives a right of action to the aggrieved individual, and a remedy in the shape either of pecuniary damages or of an injunction to restrain the injurious act, according to the circumstances of the case, and, sometimes, according to the option of the plaintiff.

The law as to 'worsement' or the injuriously affecting of property by neighbouring land being taken for public works, and these works being executed upon it, is founded upon the existence, as between neighbouring individual proprietors, of the rights to which allusion has been made. When in the interests of the community at large, and in accordance with the doctrine Salus rei publicae suprema lex, the compulsory taking of land, nolente volente the owner, is sanctioned by the Legislature for the purpose of some undertaking of public importance which cannot be carried out without this compulsion, it becomes necessary, on the one hand, to extinguish all rights of action which would otherwise have arisen in consequence of the carrying out of the undertaking in the manner contemplated by the Legislature, and, on the other hand, to provide an alternative remedy for the individuals who are deprived of these rights of action. The persons whose land is actually taken for the undertaking are the parties primarily aggrieved, and methods are always provided by which they may obtain not only the full price for the land actually taken, but also compensation for any damage which they may personally sustain by reason of other land of theirs being injuriously affected either through its severance from the bulk of the estate by the abstraction of the land taken for the undertaking, or in any other respect through the carrying out of the undertaking. But in the special Acts passed for public undertakings prior to 1845, and in the Lands Clauses Consolidation Act of that year (sect. 68), there is also to be found provision for compensation to persons who have none of their property actually taken for the purposes of the undertaking, but whose property is nevertheless injured

by the carrying out of the undertaking in the manner sanctioned by the Legislature. As this provision is the exact reverse of the principle of 'betterment,' it is important to examine closely the conditions under which the compensation is given. In the first place, it is confined to cases where the deterioration of the property is occasioned by some act or matter in connexion with the undertaking, which would have been actionable in the absence of statutory authorization, but which is within the powers given by the Legislature to the promoters of the undertaking, and for which, therefore, no right of action lies (Glover v. North Staffordshire R. Co., 16 Q. B. 912). The Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15) contains a clause (sec. 29) that nothing in that Act or in any special Gas Act shall prevent a Gas Company from being liable to an indictment for nuisance or to any other legal proceeding in consequence of making or supplying gas. Where, therefore, adjacent property is deteriorated by a nuisance arising from gas works, the remedy is to be sought in an action for damages, and compensation cannot be obtained under the 'worsement' provision of the Lands Clauses Act (Broadbent v. Imperial Gas Co., 7 De. G. M. & G. 436; aff. 7 H. L. Ca. 600; 5 Jur. N. S. 1319). Nor can this compensation be obtained for injury done by an act of the promoters of the undertaking which is not within their statutory powers, or by a negligent and improper use of those powers. In such cases also the remedy is an action for damages (Rex v. Hungerford Market Co., I A. & E. 668; Laurence v. Great Northern R. Co., 16 Q. B. 643; Biscoe v. Great Eastern R. Co., L. R. 16 Eq. 636; Norton v. London and North Western R. Co., 9 Ch. D. 623). In the next place, the injury for which the compensation is given must be to the property itself, or have some reference to the property or its incidents. The language of the provision on the subject in the Railways Clauses Consolidation Acts, 1845 (8 & 9 Vict. c. 20, ss. 6, 16; c. 33, s. 6), with respect to railways in all parts of the United Kingdom is somewhat wider than the corresponding provisions of the Lands Clauses Consolidation Acts, 1845 (8 & 9 Vict. c. 18, s. 68; c. 19, s. 20), with respect to public undertakings generally. Where no land of the aggrieved party is actually taken, the Lands Clauses Acts only contemplate compensation being awarded to him in respect of the property of his which is injuriously affected by the works of the undertaking. The Railways Clauses Acts, on the other hand, direct that he shall receive, in like manner as if land of his had been actually taken, full compensation for all damage sustained by him, by reason of the exercise, as regards his property which has been injuriously affected, of the statutory powers given to the promoters of the undertaking. But in the case of The

Caledonian R. Co. v. Walker's Trustees (7 App. Ca. 259), decided in 1882, Lord Selborne laid down the following propositions as applicable to the wider provisions of the Railways Clauses Acts :'(1) When a right of action which would have existed if the work in respect of which compensation is claimed had not been authorized by Parliament, would have been merely personal, without reference to land or its incidents, compensation is not due under the Acts; (2) When damage arises, not out of the execution but only out of the subsequent use of the work, then also there is no case for compensation; (3) Loss of trade, or custom, by reason of a work not otherwise directly affecting the house or land in or upon which a trade has been carried on, or any right properly incident thereto, is not by itself a proper subject for compensation; (4) The obstruction by the execution of the work of a man's direct access to his house or land, whether such access be by a public road or by a private way, is a proper subject for compensation.'

It should be observed that these axioms do not apply where property, besides being in part injuriously affected, is in part actually taken to be used for the works about to be executed. It has always been held that where some land of a person is actually taken by a public company or body for the purposes of their undertaking, that person is entitled to compensation for items of pecuniary loss sustained by him in connexion either with the land taken or with any adjacent land of his, for which he would not have been entitled in connexion with adjoining land of his, if no land of his had been actually taken for the undertaking. (Re Stockport, Timperley & Altrincham R. Co., 10 Jur. N. S. 614; 33 L.J. Q. B. 251; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, at pp. 446, 458; Cowper Essex v. Local Board for Acton, 14 App. Ca. 153.) Some diversity is also inevitably introduced into the application of the axioms by the fact already noticed of the language of the English and Irish and Scotch Railways Clauses Acts, 1845 (which of course only relate to railways), as regards the damage for which compensation is obtainable, being much wider than that of the two Lands Clauses Acts, 1845, for the United Kingdom, which relate to all public undertakings. An instance of this diversity is afforded by the case of Re London, Tilbury & Southend Railway Company and Trustees of Gowers Walk Schools (24 Q. B. D. 40; aff. 326). The railway company had interfered with the access of light to windows, some of which were ancient lights and some not; and it was held that under the Railways Clauses Act, 1845, they were bound to pay compensation for their interference not only with the old lights but also with the new; although, of course, no action could have been brought