Assize of buildings (Richard I)

Additions to the Chronicles in the Liber de Antiquis Legibus.

[Fitz-Aylewin's Assize of Buildings, I. Richard I.]

In the year of Our Lord 1189, in the first year, namely, of the reign of the illustrious King Richard, Henry Fitz-Aylewin (who was the first Mayor of London) being then Mayor, it was by the discreet men of the City [thus] provided and ordained, for the allaying of the contentions that at times arise between neighbours in the City touching boundaries made, or to be made, between their lands, and other things; to the end that, according to the provisions then made and ordained, such contentions might be allayed. And the said Provision and Ordinance was called an "Assize."

To prosecute which Assize, and carry the same into effect, twelve men of the City were elected in full Hustings; and were there sworn, that they would attend faithfully to carry out the same, and at the summons of the Mayor to appear, unless by reasonable cause prevented. It is necessary however, that the greater part of the twelve men aforesaid should be present with the Mayor in carrying out the matter aforesaid.

It should be known, that he who demands the Assize, must demand it in full Hustings; and the Mayor shall assign him a day within the next eight days, for such Assize by the twelve men aforesaid, or by the greater part of them, in manner already mentioned, to be determined.

[ (fn. 1) But if a house, stone-wall, drain, rain-gutter, or any other edifice, shall during the time of petition for the said Assize be built, immediately, at suit of the party petitioning, [the other] shall be forbidden to proceed any further with such building. And if, notwithstanding such prohibition, any carpenters, stonemasons, or other workmen, or even the owner of the said building, shall persist in so building, they shall be sent to prison.]

But if the Hustings be not sitting, as at the time of the Fair of Saint (fn. 2) Botolph, harvest-time, and the Fair held at Winchester, and a person shall deem it necessary to demand the said Assize, the same shall be granted unto him gratuitously by the Mayor, some of the citizens being present with such Mayor, and be determined by the twelve jurors aforesaid, in manner already stated, or the greater part of them, and that always in presence of the Mayor.

The Provision and Ordinance aforesaid, which has been called an "Assize," is to the following effect:—

When it happens that two neighbours wish to build between themselves a stone-wall, each of them ought to give one foot and a half of his land; and so at their joint cost they shall build a stone-wall between them, three feet in thickness and sixteen feet in height. And if they wish, they shall make a rain-gutter between them, at their joint cost, to receive and carry off the water from their houses, in such manner as they may deem most expedient. But if they should [not] wish to do so, either of them may make a gutter by himself, to carry off the water that falls from his house, on to his own land, unless he can carry it into the King's highway.

They may also, if they agree thereupon, raise the said wall, as high as they may please, at their joint cost. And if it shall so happen that one wishes to raise such wall, and the other not, it shall be fully lawful for him who so wishes it, to raise the part on his own foot and a half, as much as he may please, and to (fn. 3) build upon his part, without damage to the other, at his own cost; and he shall receive the falling water in manner already stated.

And if both shall wish to have (fn. 4) arches, such arches must be made on either side, of the depth of one foot only; that so the thickness of the wall lying between such arches may be one foot. But if one shall wish to have an arch, and the other not, then he who shall wish to have the arch shall find free-stone, and cause it to be cut, and the arch shall be set at their joint expense.

And if any one shall wish to build of stone, according to the Assize, and his neighbour through poverty cannot, or perchance will not, then the latter ought to give unto him who so desires to build by the Assize, three feet of his own land; and the other shall make a wall upon that land, at his own cost, three feet thick and sixteen feet in height; and he who gives the land shall have one clear half of such wall, and may place his (fn. 5) timber upon it and build. And they shall make a gutter, to receive and carry off the water falling from their houses, in such manner as is before mentioned as to a wall built between neighbours at their joint expense. But it shall always be lawful for one desiring so to do, to raise his own part at his own cost, without damage to the other. And if they shall wish to have arches, they shall make them on either side, in manner already stated. But nevertheless, he who shall have found the land, shall find the freestone, and shall have it cut; and the other at his own cost shall set the same.

But this Assize is not to be granted unto any one, so as to cause any doorway, inlet or outlet, or shop, to be narrowed or restricted, to the annoyance of a neighbour.

This Assize is also granted unto him "who demands it as to the land of his neighbour, even though such land shall have been built upon, provided the wall so built is not of stone.

If any person shall have his own stone-wall upon his own land, of the height of sixteen feet, his neighbour ought to make a gutter under the eaves of the house that is situate upon such wall, and to receive in it the water falling from the said house, and lead it on to his own land, unless he can carry it off into the highway; and he shall, notwithstanding, have no interest in the aforesaid wall, when he shall have built [a wall] beside it. And in case he shall not have so built, he still ought always to receive the water falling from the house built on such wall upon his own land, and carry it off without damage of him unto whom the wall belongs.

Also, no one of those who have a common stone-wall built between them, may, or ought to, pull down any portion of his part of such wall, or lessen its thickness, or make arches in it, without the assent and will of the other.

Also, concerning necessary-chambers in the houses of citizens, it is enacted and ordained, that if the pit made in such chamber be lined with stone, the mouth of the said pit shall be distant two feet and a half from the land of the neighbour, even though they have a common stone-wall between them. But if it shall not be lined with stone, it ought to be distant three feet and a half from the neighbour's land. And as to such pits, the Assize is afforded and granted unto every one who shall demand the same, in reference as well to those of former construction as to new ones, unless the same should happen to have been made before the Provision and Ordinance aforesaid, which was enacted in the first year of the reign of King Richard, as already mentioned. Provided always, that by view of such twelve men as are before-mentioned, or the greater part of them, it shall be discussed whether such pits have been reasonably made or not.

(fn. 6) In the same manner, proceedings must be taken where disputes arise as to any kinds of pits made for receiving water, whether clean or foul.

Also, if any person shall have windows looking upon his neighbour's land, although he may have been for a long time in possession of the view from such windows, and even though his predecessors may have been in possession of the windows aforesaid, nevertheless, his neighbour may lawfully obstruct the view from such windows by building opposite to the same, or by placing [anything] there upon his own land, in such manner as may unto him seem the most expedient; unless the person who has such windows, can shew any writing by reason whereof his neighbour may not obstruct the view from those windows.

Also, if any person has corbels in his neighbour's wall, the whole of such wall belonging to his said neighbour, he may not remove the aforesaid corbels, that he may fix them in any other part of the said wall, except with the assent of him to whom such wall belongs; nor may he put more corbels in the wall aforesaid than he had before.

Be it known, that if a person builds near the tenement of his neighbour, and it appears unto such neighbour that such building is unjust and to the injury of his own tenement, it is fully lawful for him to impede the erection of such building, pledge and surety being given unto the Sheriffs of the City that he will prosecute; and thereupon such building shall cease, until by the twelve men aforesaid, or the greater part of them, it shall have been discussed whether such building is unjust or not. And then it becomes necessary that he, whose building is impeded, shall demand the Assize.

On the day appointed, and the twelve men aforesaid being duly summoned, the Mayor of the City, with the twelve men aforesaid, ought to visit the tenements of the persons between whom the Assize is demanded, and there, upon view of the twelve men aforesaid, or the greater part of them, after hearing the case of the complainant and the answer of his adversary, to settle such matter.

But either party may, on the day appointed, (fn. 7) essoin himself, and have his day at the same place on that day fortnight.

But if the party complaining shall make default, his adversary shall depart (fn. 8) without day, and the sureties of the complainant shall be amerced by the Sheriffs. But if it shall be the person against whom the complaint is made, that makes such default, the Assize shall nevertheless proceed, according to the award of the twelve men aforesaid, or the greater part of them ; and the award that shall be given by them ought by the Sheriffs to be intimated unto him who has so made default, to the end that the award so made may within the forty days next ensuing be carried into effect.

Also, be it known, that so often as such award shall not within forty days have been carried into effect, and complaint shall have been made thereon unto the Mayor of London, in such case, two men of the Assize, or three, ought by precept of the Mayor to proceed to the spot; and if they shall see that so it is, then shall he against whom such proceedings of Assize were taken, be amerced by the Sheriff; and the Sheriff, at the proper cost of such person, is bound to carry such judgment into effect.

Also, if a person has a wall built between himself and his neighbour, entirely covered at the summit of such wall with his own roofing and timber, although his neighbour may have in the aforesaid wall corbels or joists for the support of his (fn. 9) solar, or even arches or aumbries;—in whatever way such neighbour may have the same in such wall, whether by grant of him who owns the wall so covered, or of his predecessor, or even without their knowledge, he may claim or have no more in the aforesaid wall than he has in possession, without the assent of him who owns the wall so covered; and he ought to receive the water falling from the house built upon such wall, under the eaves of the said house, as before-mentioned in this Book, and to carry it off at his own cost.

Also, if a person owns two parts in a wall, and his neighbour owns only a third part, still, such neighbour may place his roofing on his own part and build, as freely as he who owns the [other] two parts of such wall. And in the same manner ought rain-gutters to be made between them, as already noticed in reference to those who have a wall wholly in common between them; provided always, that such portion be sixteen feet in height.

Also, be it known, that the Assize aforesaid shall not proceed, unless it shall be testified that he against whom the Assize is demanded, has been summoned. And if the same shall be testified, then upon appearance of him who demands the Assize, and of the twelve men of such Assize, or the greater part of them, the Assize shall proceed, whether the party summoned shall appear or not. Still however, he may essoin himself upon the day aforesaid, and have his day upon that day fortnight, in manner already stated.

Also, be it known, that if it shall be testified by the Sheriffs, that he against whom the Assize is demanded was not in the City, then upon such day the Assize shall stand over, and the Sheriffs shall inform those who dwell in the tenement as to which such Assize is demanded, that he whose tenement it is, must be warned to appear upon that day fortnight; upon which day, whether he shall appear or not, in case he shall not have essoined himself, the Assize shall proceed.

Also, if it shall so happen, by reason of some impediment, that the men of the Assize do not proceed unto the land as to which such Assize is demanded, then it will be necessary for such Assize to be demanded afresh, either in the Hustings, or in such other way as is the usage at a different season, as already stated in this Book.

But if they proceed unto the land, the parties pleading being present, and the greater part of the twelve men aforesaid being absent, then although the Assize will have to stand over, they may continue the proceedings of that day upon the morrow, or upon such day, within the following fortnight, as they may please.

It should be remembered, that in ancient times the greater part of the City was built of wood, and the houses were covered with straw and stubble, and the like. Hence it happened, that when a single house had caught fire, the greater part of the City was destroyed through such conflagration; a thing that took place in the first year of the reign of King Stephen, (as (fn. 10) set forth in the Chronicles before-written in this Book,) when, by reason of a fire that broke out at London Bridge, the Church of Saint Paul was burnt; from which spot the conflagration extended, destroying houses and buildings, as far as the Church of Saint Clement Danes. After this, many of the citizens, to the best of their ability to avoid such a peril, built stone houses upon their foundations, covered with thick tiles, and [so] protected against the fury of the flames; whence it has often been the case that, when a fire has broken out in the City, and has destroyed many buildings, upon reaching such houses, it has been unable to do further mischief, and has been there extinguished; so that, through such a house as this, many houses of the neighbours have been saved from being burnt.

Hence it is, that in the aforesaid Ordinance, called the "Assize," it was provided and ordained, in order that the citizens might be encouraged to build with stone, that every one who should have a stone-wall upon his own land sixteen feet in height, might possess the same as freely and meritoriously as in this Book already stated; it always being the duty, that is to say, of such man's neighbour, to receive upon his own land the water falling from the house built upon such wall, and at his own cost to carry off the same. And if he shall wish to build near the said wall, he is bound to make his own gutter under the eaves of the said house for receiving the water therefrom. And this, to the end that such house may remain secure and protected against the violence of fire when it comes, and so, through it, many a house may be saved, and preserved unharmed by the violence of the flames.

If any person shall wish to build the (fn. 11) whole of a wall upon his own land, and his neighbour shall demand against him an Assize, it shall be at his election either to join the other in building a wall in common between them, or to build a wall upon his own land, and to have the same as freely and meritoriously, as in manner already stated. His neighbour however may, if he wishes, build another like wall, and of like height, near unto the wall aforesaid: and in such case, rain gutters, or a gutter, shall be made between them, in the same manner as already stated in reference to a wall held in common.

It should be remarked, that when the men of the Assize shall visit the land as to which such Assize is demanded, the parties litigating being present, one of the men aforesaid ought always to ask him against whom the Assize is demanded, if he knows aught by reason whereof such Assize ought to stand over. And if he shall say that he does not, such Assize shall immediately proceed. But if he shall say that he has a deed from him who demands the Assize, or from some ancestor of his, and shall make profert thereof, [benefit of] the same shall immediately be allowed him. But if he shall say that he will have such deed at a certain day and time, then a day shall be given him on that day fortnight; upon which day he may essoin himself, and shall have his day at the end of another fortnight. Upon which day, if he shall produce the said deed, [benefit of] the same shall be allowed him; but if upon such day he shall not appear,—or if he shall appear and not produce the deed, the Assize shall immediately proceed, without further delay.

It should be remarked, that this Assize proceeds in every way, as before stated in this Book, both as to pleading and defending, as well against persons under age as against those who are of full age; that so, by reason of the tender age of any person the Assize aforesaid shall not be prevented. But forasmuch as such a person has no discretion whereby to know how to plead or defend himself in any plea, it is necessary that his guardian and he should be jointly summoned; that so, his guardian may wholly make answer for him, in every way that he would have had to plead, if such cause had been his own; and then, whatever shall be done upon award, shall remain firm and established, without reclaim on part of him who was so under age, when he shall have come of age.

Also, if any one shall make a pavement unjustly in the King's highway, to the nuisance of the City and of his neighbour, such neighbour may rightfully prevent it, through the Bailiffs of the City; and so it shall remain, until the matter shall have been discussed and determined by the men of the Assize.

It should also be known, that it does not pertain unto the men of the Assize to take cognizance of any case of occupation where a person has had peaceful possession for a year and a day.

(fn. 12) Although a person shall have been in possession for a long time, the water that drops from his house,—it not having a wall of stone,—falling upon the vacant land of his neighbour, still, such neighbour may build upon the said land, whenever he shall please, and may remove the eaves of the said house. And in such case, the person [building] must carry off the water that drops from the said house, without detriment to his neighbour. The same is to be done also as to rain-gutters that discharge themselves upon vacant ground.

But if a person's rain-gutter shall discharge itself into the gutter of his neighbour, or shall run through the middle of his tenement, such neighbour may not stop up that gutter; and even if he shall pull down that house, and shall not think proper to build it anew, he shall still be bound to receive upon his own land the water falling from such gutter as before he used to do. But it must be fully understood by the men of the Assize, that the water discharged by such gutter was so received and carried off.

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