Acquisition of right to space occupied by a projection and limitation period for claiming removal of the projection.

Sankaran Nair, J.

1. The defendant is the appellant. It is found by the lower courts that the appellants 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 of 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 defendants cornice when a new wall which the plaintiffs building reaches it, in so far as it stands in his way of raising the wall.

2. It is contended before us on behalf of the appellant that though he may not have acquired any right under the Basements 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 Bechardos I.L.R. 3 B. 174 clearly supports the appellants. It was found in that case that the roof of the defendants house overhanging the space which belonged to the plaintiff between that house and the plaintiffs 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 lap per chamber of the house white 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 defendants projecting roof.

3. The case in Mutta Kumari Dassi v. Puddomani Bewah I.L.R. C. 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 plaintiffs cornice, which he might be well entitled to do, even if the plaintiff, had acquired a right by prescription to retain his cornice see Corbet 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 plaintiffs cornice.

4. The English cases support the view taken by the learned judges in Mohantal Jechand v. Amaratlal Bechardos I.L.R. B. 174, as pointed out by the Vice-chancellor in Corbet v. Hill L.R. 9 Eq. 673 "the ordinary rule of law is, that whoever has got the solum - whoever has got the site is the owner of everything 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. Fray v. Prentice L.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 acquired a right to space above and blow the protrusion depends upon the nature of the possession and the other circumstances of the case. Corbett v. Hill L.R. Eq. 673 and Laybourn v. Gridley (1892) 2 Ch. P. 53 are instances where the ownerships, acquired by grant of the overhanging protrusion or building was held not to convey the ownership of the space overhead.

5. In Harvey v.