City of London Livery Companies Commission. Report; Volume 4. Originally published by Eyre and Spottiswoode, London, 1884.
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MERCHANT TAYLORS' COMPANY. Mr. Skirrow's Report.
ROBERT DONKIN'S CHARITY.
In pursuance of a minute of your Board, dated 27th November 1874, I inspected and now report as to the right of the Company, in a matter of a doorway from No. 145, Bishopsgate Street, into Lamb Alley, and submitted for decision by your Board.
The inquiry, which was attended by Mr. F. Boyle, the solicitor, and Mr. Reilly, the surveyor of the Rector and Churchwardens, and Mr. F. Fisher, the solicitor, and Mr. J. Ansen, the surveyor of the Company, took place at the Secretary's office of the Company, in Threadneedle Street, on the 8th January 1875, a view of the premises having been previously had by the above persons and myself. Oral and documentary evidence was received at the inquiry, but not upon oath.
It appears from these books of records, that on the 10th March 1548, Edward VI. granted (amongst other things) to William Crofton, and Thomas Langton, and their heirs "all those two messuages or tenements and the gate entry and ground under the south part of one of the said messuages lying and being in the parish of St. Buttolph Without, Bishopsgate Street."
These premises, being 144 and 143, Bishopsgate Street Without, were by the above or a similar description, and at different times conveyed to different persons, and having ultimately become vested in the Waterbearers' Company were conveyed by a deed of 7th October 1568, to Robert Donkyn (now called Donkin) and his heirs.
Robert Donkin, by will dated 12th March, 13th Elizabeth 1570 (an office copy of which was produced at the inquiry) devised his messuage or house which he had purchased of the Waterbearers (being 144 and 143, Bishopsgate Street, to the Parson and Churchwardens of St. Michael, Cornhill, and to their successors, &c., the profits to be applied by them and the parishioners to certain charitable purposes. And the testator also devised to the Master and Wardens, &c. of the Merchant Taylors' Company his property in Bell Alley, in the parish of St. Botolphe (including No. 145, Bishopsgate Street Without) for certain other charitable purposes.
By a lease of December 1780, the Parson and Churchwardens demised Nos. 144 and 143 to Sydney Brooks for 30 years, at a rent of 38l. a year, and on this lease a plan is drawn, a tracing of which is to be found annexed to case A. Subsequent leases were granted of the same premises, the last of which bears date in September 1853, and grants the same premises to Thomas Bax for 21 years from the 29th September 1853, at a rent of 155l. a year.
By a lease of 30th March 1787 the house was let for a term, which expired in 1842, such lease stating the house to have been then lately built (i.e., rebuilt) by the lessee, and describing it as abutting east on Bishopsgate Street, west on other ground of the Company, north on Lamb Alley, and south on Sun Street.
On these leases there is a plan, and on the plan of the lease of 30th March 1787, the north wall of No. 145 is drawn perfectly straight, the whole of its length thus part of such wall extending beyond the covered passage of Lamb Alley towards the west.
But this is clearly incorrect, as the north wall runs, with a slight curve, the whole length of the covered passage, as may be seen on the tracing of the plan drawn upon the lease of December 1780, of Nos. 144 and 143. This curve, which I pointed out to the surveyors, extended the whole length of the covered passage, and measured four inches at its greatest width, as represented by the dotted line.
The lease to Mr. Bax, of Nos. 144 and 143, expiring at Michaelmas 1873, the trustees for the parish agreed to grant him a new lease of the same premises for 21 years, at a rental of 240l., and the surveyors of the trustees, being instructed to draw a plan of such premises, surveyed the same, and discovered that a doorway had been broken from No. 145 into Lamb Alley, about the middle of the covered passage, by Dr. Fowler, the tenant of No. 145, but with the assent of the Company, for the convenience of his pauper patients, he being the parish doctor.
This state of facts being known to the trustees, a correspondence took place between them and the Company, and Mr. Reilly, the surveyor of the trustees, and Mr. J. Ansen, the surveyor of the Company, having met, the latter contended that the whole of the wall on the north side of 145 from the basement up to the lintel (a.) (see plan on case B) was the exclusive property of the Company, and Mr. Reilly that the trustees were possessed of half of such wall.
The opinion of counsel was taken by the trustees, and also by the Company, to be found on cases A. and B., and ultimately the trustees agreed by letter to submit to the arbitration of the Charity Commissioners the matter in dispute as to the doorway.
The colored plan attached to case B., and which was made by the Company's surveyor, represents correctly enough the exterior of No. 145 and No. 144, and the entry and gate between them, but not so correctly the ground plan of the north wall of No. 145, as such wall is designated by a straight instead of a curved line, as already mentioned.
Assuming that originally the "gate entry and ground under the south part of No. 144" was a private way, it certainly was dedicated to the public very many years ago, but no one can tell the exact time, and consequently, if the whole of the north wall of Lamb Alley (which extends not only the whole width of No. 144, but also forms part of the separate wall of No. 145 farther down the alley) belongs exclusively to No. 145, the Company had a perfect right to make or permit to be made by their tenant a doorway through such wall into the public alley.
There is a gate into the alley, which was erected about 50 years ago, upon which a lock was placed about 24 years ago by Mr. Bax, the then tenant of Nos. 144 and 143. This was done to prevent nuisances being committed in the entry, and Mr. Bax gave one key of the gate to the parish watchman and afterwards, about five years ago, another key to Dr. Fowler, the tenant of No. 145, retaining one himself. The Commissioners of Sewers repair the flags of the alley throughout its entire length, and Mr. Bax, the tenant of Nos. 144 and 143 has, at all events, for upwards of 20 years, painted or whitewashed the whole of the north wall of No. 145, extending his operations, however, beyond the covered passage to the other part of the north wall, which exclusively belongs to No. 145, and faces the back part of the south wall of Nos. 144 and 143, for his own convenience, i.e., by way of increasing the light.
Mr. J. Anson, the Company's surveyor, stated at the inquiry that the Company did not admit the right of Mr. Bax to paint or whitewash the north wall of No. 145, and that Dr. Fowler had a right to a key of the gate, as the alley is a public way, which latter fact is admitted to be true by both sides.
The Company's claim in respect of the north wall of No. 145 is somewhat peculiar, for Mr. J. Anson also stated that the Company also claimed an exclusive right to the north wall of No. 145, so far as it extends along the covered passage, from the basement to the lintel marked (a), admitting that from the lintel (a) up to 18 inches above the roof of No. 144 (No. 145 is higher than No. 144) the wall is a party wall, and above that height that the wall of No. 145 is the exclusive wall of the Company.
Mr. J. Anson also maintained that the description of the premises in the leases granted by the Company "as abutting on Lamb Alley," included the north wall to the lintel (a), so far as it extended along the covered passage, and more particularly as under this passage there is no cellarage but only the solid earth.
Mr. Reilly, the surveyor of the trustees of the parish Charity, stated that he believed the frontage of Nos. 145 and 144, as depicted on the plan in case B, had continued in its present state and aspect for upwards of 200 years, and it will be seen that even from the basement to the lintel (a) (the only part of the north wall in dispute) the stucco or cement covers part of the north wall, though perhaps not quite half thereof, and is shaped and coloured to comport with No. 144, to say nothing of the most important point, that the north wall of No. 145 under the covered passage is not straight as it would probably have been had it been a continuance of the wall extending beyond the covered passage and the exclusive property of the Company, but runs with a curve therefrom extending at the widest point four inches into the entry, as already mentioned. The law of the case is free from doubt, for it is stated by Bayley, J., in Cubitt v. Porter, 8 B. & C. 266, that—
"Evidence of common user by both parties justifies a presumption, either that the wall was originally built on land belonging in individual moieties to the owners of the respective premises and at their joint expense, or that it had been agreed between them that the wall and the land on which it stood should be considered the property of both as tenants in common, so as to insure to each a continuance of the use of the party wall."
It is also decided by Matts v. Hawkins, 5 Taunton, p. 20, that if two persons have a party wall, one half of the thickness of which stands on the land of each, they are not therefore tenants in common of the wall or of the land on which it stands, although the wall was erected at the joint expense of the two proprietors, and see also Bradbee v. Christ's Hospital, 4 M. & G. 761. Weston v. Arnold, 8 Chancery Appeal cases, 1084, merely decides so far as it has reference to the matter in question, that a party wall may be a party wall to such height as it belongs in common to two buildings, and cease to be a party wall for the rest of its height.
Under these circumstances I am of opinion that neither the Company nor Dr. Fowler had any right to make the doorway in question, the trustees of the parish Charity being either entitled to the moiety of the wall adjoining the alley, or the tenants in common thereof with the Company of such wall from the ground up to the full height at all events of No. 144.
At the inquiry the offer made on behalf of the trustees of the parish Charity to grant a right to reopen and use the doorway for a consideration of two guineas a year (in the event of the Commissioners finding against the Company) was accepted by the Company, provided that such doorway did not jeopardise the policy of insurance effected or to be effected upon Nos. 144 and 143, and subject to such proviso I recommend this course to be adopted.
The only remaining point is with regard to costs. Each party has consulted surveyors and taken the opinion of counsel and been professionally represented at the inquiry, but in mitigation at all events to some extent of the general rule that the successful party is entitled to costs, it is to be remembered that the dispute is not between individuals but between two Charities, and that the doorway was made and used for 15 continuous years to the full knowledge of the tenant of Nos. 144 and 143, and without objection and without the trustees of the parish Charity investigating or informing themselves during so long a period of the condition of this particular piece of property, for they admit that their non-interference arose from ignorance of fact.