MERCHANT TAYLORS' COMPANY. Mr. Skirrow's Report.
ROBERT DONKIN'S CHARITY.
Under the management of the Master and Wardens of the Merchant Taylors' Company and the Rector and Churchwardens of St. Michael, Cornhill.
Report on Inquiry held on the 8th day of January 1875.
My Lords and Gentlemen,
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.
In the great fire of London of 1666 the leases, deeds, and
other documents (with the exception of some books of
records) relating to the Charities of the parish, are said to
have been destroyed.
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
From time to time the Parson and Churchwardens
demised Nos. 144 and 143, and the Company demised No.
145, Bishopsgate, to various persons respectively.
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
In 1871 the Charity Commissioners established a scheme
for the Charity, so far as it related to the Parish of
St. Michael, Cornhill.
With regard to No. 145, leases have been granted thereof
from time to time by the Company.
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.
In two subsequent leases the house is similarly described,
the last of which was granted to Robert Fowler, M.D. (who
occupies the same) for 21 years from Lady Day, 1863.
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.
On the 8th January 1874, the doorway in question was
bricked up by the surveyor of the trustees of the Charity,
but such brickwork was thrown down by someone on the
afternoon of the same day.
Application was then made at the Guildhall Police
Court for a summons against Dr. Fowler, for destroying
the wall, which was however refused, on the ground that a
question of title was involved.
Ultimately the trustees of the Charity fastened iron
plates over the doorway, which were standing at the time
of my view.
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.
In the Appendix will be found a photograph of the
premises in question, but it is too dark to be of much use.
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
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,
"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
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.
All which I submit, &c.,
15th January 1875.