Digitized by Microsoft® Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® KD 919.Y59*" """'^''"*^ library *"lSlllliiSi'iiiK.',?,l.''"'sa'":e, and tresp 3 1924 021 773 399 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® AN ESSAY ON WASTE, NUISANCE, AND TEESPASS, CHIEFLY WITH EEFEKENCE TO BEMEDIES IN EQUITY; TKEiTIlfO OF IHE LAW OP TIMBEE, MINES, LIGHTS, WATEE, SUPPOET, THE CONSTEUCTION OF PUBLIC WOEKS, &c., &c. GEORGE V. TX)OL, M.A., OF LINCOLK'e INN, BAEBISTKE-AT-LAW, lATE FELLOW Or TBIKITY COLLEOE, CAMBRIDGE. LONDON: W. MAXWELL, 32, BELL YARD, LINCOLN'S INN, 3L8&J JSooterikr anS ^ubltsljer. HODGES, SMITH, & CO., DUBLIN ; BELL Si BRADFUTE, EDINBURGH, 1863. Digitized by Microsoft® -LONDO^ : LRADBUTiY AND EVANS, PRINTERS, WHITEFarARS. Digitized by Microsoft© CONTENTS. Table of Cases CHAPTER I. "WASTE; Legal Waste 1 Equitable "Waste 15 General matters relating to "Waste 17 "Waste in Timber and other Trees and Underwood . . . . 22 Waste in Minerals, &c 53 Waste in Buildings .... . ... 56 Landlord and Tenant .... .... 62 Mortgagor and Mortgagee . 68 Ecclesiastical Corporations 70 CHAPTER II. NUISANCE. Nuisances in General ... 83 Nuisances to Dwelling-houses 97 Nuisances relating to Water 123 Nuisances relating to Support 149 "Various Nuisances . . .,,... 171 a 2 Digitized by Microsoft® IV CONTENTS. CHAPTER III. TKESPASS. PAGn Jurisdiction 175 Taking part of the Substance of the Inheritance . . . . 182 Lord of a Manor and Copyholders . . . 187 Various acts of Trespass ........ 189 Protection of Eeal Property during Litigation 196 CHAPTER IV. CONSTRUCTION" OF PUBLIC ATOEKS. General Considerations ......... 205 Lands Clauses Consolidation Act— (a). "With respect to the Purchase of Lands by Agreement . 214 (b). "With respect to the Purchase and Taking of Lands other- wise than by Agreement 218 (c). MisceUaaeous 228 Constniction of a Eaihvay — (a). Special Act 237 {b). General Act 240 Digitized by Microsoft® TABLE OF CASES. A. Abbott, Gale v., 109, 113 Abergavenny, Morgan v. , 2 Abney, Cherrington ii. , 111, 112 Abraball v. Bubb, 9, 17, 33 Abraham v. Great Northern Railway Company, 171, 226 Ackroyd, Loudon and ITorth- Western Eailway Company v., 167 Acland v. Atwell, 78, 79 Acton V. Blundell, 136 Adams, Ponsouby ■«., 67 Agar i). Regent's Canal Company, 210, 211 213 Aiken, PoweU, v., 19, 137, 183, 194 Aire and Calder Navigation, R. v., 166 Alderton, Harrow School v. , 2, 5 Aldred's Case, 99, 113 Aldred v. North Midland Railway Company, 238 Alexander, Crockfordu, 190 — V. Godley, 23 • — V. "West End and Crystal Palace Railway Company, 231 Allen, Box v., 96 — , Nicholl'u.,238 — , O'Neill ■«., 103 Alleyne, Norbnry (Lord) v., 67 AUgood, Campbell v., IS Alston V. Eastern Counties Railway Company, 229, 236 — V. Grant, 100 _, Lee v., 17, IS, 19, 26, 27 Alton, Large v., 173 Ambergate Railway Company, Mid- land Railway Company v., 239 Amherst (Earl) v. Leeds (Duke of), 3, 18, 21, 48, 59, 67 Anderson, Daniel v., 173. Ses Add. Andover (Lady) v. Robertson, 99 Andrews v. Hulse, 14, 58, 188 Angerstein v. Hunt, 64 Annandale (Marquis of) v. Annandale (Marchioness of), 51 Annesley, Tooker «. , 43 Anon., 87 Auwyl V. Owens, 201 Arcedeckne v. Kelk, 112 Archer, Plymouth f., 31, 55 Arkwright v. Gell, 130, 131 Armstrong v. Waterford and Limerick Railway Company, 230 Arthington v. Fowkes, 187 Askwith, Darcy (Lord) v. 1, 54 AspinwaU v. Leigh, 9, 51 Astley, V. Manchester, Sheffield, and Lincolnshire Railway Company, 239 Aston V. Aston, 16, 38, CO Astry V. Ballard, 54 Atkyns v. Temple, 2 — , Wright v., 9, 70 Attorney- General v. Bentham, 99 — V. Birmingham Railway Company, 206, 210 — V. Borough of Birmingham, 96, 138, 207 — V. Borough of Southampton, 173 Digitized by Microsoft® TABLE OF CASES. Attorney-General v. Cleaver, 87, 97, 114, 122 — v. Conservators of tlie Thames, 96. Sec Add. — V. Corporation of Liverpool, 206 — V. Dorset Central Eailway Com- pany, 247 — r. Doughty, 99, 100 — V. Eastern Counties Eailway Com- pany, 246 — V. Eastlake, 20 — V. Electric Telegivaph Companv, 86, 172, 179, 196. See Add. — V. Forbes, 86, 96, 172 — V. Geary, 77 — 11. Great Northeni Railway Com- pany, 245 — V. Johnson, 86, 96, 171 — V. London and Southampton Eail- way Company, 87, 172, 244 ■ — V. London and South- Western Eailway Company, 214, 246, 247 — V. Luton Board of Health, 86, 96, 138 — V. Manchester and Leeds Eailway Company, 87, 138, 172 — V. Marlborough (Duke of), 17 — 0. Nichol, 87, 88, 89, 97, 98 — V. Sheffield Gas Consumers' Com- pany, 86, 87, 89, 172, 182 — r. Vincent, 14 Atwell, Acland v., 78, 79 Aubrey i). Fisher, 22, 39 Austen, AVaterpark (Lord) v., 7, 54 Auworth V. Johnson, 63 Aylett V. Dodd, 67 B. Back V. Stacey, 98 Backhouse, Bouomi v., 150, 151, 171 Bacon v. Smith, 5 Bagnall v. London and North-West- ern Eailway Company, 224, 227. See Add. Baines v. Baker, 85, 97, 122 Baker, Baines v., 85, 97, 122 — , Cowper (Earl) v., 186 — , Holtzapfelli).,57 Ballard, Astryt;., 54 Balston v. Bensted, 136 Bamford v. Turnley, 119, 121 Bampton, Deuch «. , 14 Bankart v. Houghton, 173 Bankes, Haward v., 135 Banks, Kaye v., 33 — , Withciington v.., 68 Barber, Cooper v., 123 Barber v. Eichardson, 106 Barker v. North Staffordshire Eail- way Company, 228, 231, 232 Barlow, Hole v., 119, 121 — , Phimps v., 28, 44 Barnard, Sheriff, v., 64 — , Vane v., 16, 34, 59, 82 — V. Wallis, 191 Barnett v. Guildford, 181 Barnsley Canal v. Twibell, 157 Barr, E. v., 106 Barrett v. Barrett, 22, 24 Barry v. Barry, 3, 20, 21, 34 Bartlett v. Phillips, 75, 78, 79 BarweD v. Brooks, 115, 121 — , Ennor«., 88, 118, 126 Bass, "White v., 102. See Add. Basset v. Basset, 2 Bastard's Case (Lady), 179, 195 Basterfield, Eich v., 97 Bateman v. Johnson, 98, 177 Bates, Beaufort (Duke of) v. 64 Bathurst (Earl) v. Bm-den, 65, 99 Baylis, Caldwallw., 14, 58 Bean, EenshawD., 112 Beardmer v. London and North- West- ern Eailway Company, 98, 225, 238, 245 Beardmore v. Ti'edwell, 121. See Add. Beaufort (Duke of), Re, 221 — V. Bates, 64 — V. Morris, 136 — V. Patrick, 236 Beaumont, Field v., 56, 185 Beck, Clowes v., 186, 189 Beckett, Leake v., 69 Bedford and Cambridge Eailway Com- pany, Underwood 11., 232 Bedford (Duke of) v. Trustees of the British Museum, 66 Beere v. Head, 20 Digitized by Microsoft® TABLE OF CASES. vu Beestou v. "Weate, 131 Belfast (Lord), Geast v., 63, 64 Belliaven, Caledonian Railway Com- pany v., 154 Bell, Consett v. , 43 — V. Hull and Selby Railway Com- pany, 212, 246 — V. Midland Railway Company, 172 Bellasyse, Wombwell d. , 34, 35, 51 Bembow, Heme v., 63 Bennett v. Great "Western Railway Company. See Add. — V. Sadler, 64 Bensted, Balston, v., 136 Bentbam, Attorney-General «., 99 — , Ryder 1)., 98 Bentinck v. Norfolk Estuary Com- pany, 237, 239 Beresford, Fishmongers' Company v. , 18, 19 Berriman v. Peacock, 23 Berry v. Heard, 6, 28 Best, Brown I'., 126 — V. Drake, 180 Betham, Jenkin v. , 77 Bewit, Whitfield u, 17, 20, 27, 28, 41, 54 Bidder v. Croydon Board of Health. See Add. Binckes v. Pash, 112 Bird, Webbi;., 103, 105, 107, 113, 151, 169 — V. Relph, 72, 77, 78, 79, 80 Birkenhead, &c., Railway Company, Graham u, 210, 248 Birmingham (Borough of), Attorney- General u, 96, 138, 207 Birmingham Canal Company v. Hawkesford, 157 — V. Lloyd, 137 — , Swindells v., 164 — , Whitehouse v., 227 Birmingham Gas Company, Hipkins v., 126 Birmingham Railway Company, Attorney-General v., 206, 210 Birmingham and Oxford Junction RaUway Company, Burkenshaw f . , 222 Birmingham and Oxford Junction Railway Company, R. v. , 236 Birmingham, Wolverhampton, and Stour Valley Railway Company, Inge v., 229 — , Stamps!)., 219, 228 Bishop V. Bishop, 43 — V. North, 191 Bissett V. Burgess, 78 Blackett v. Bradley, 170. See Add. — V. Gillett, 172 — , Greenwich Hospital (Commis- sioners of) v., 14 Blackmore, Dobson'!)., 171 Blackwall Railway Company, Mott •v., 172, 238 Blagrave, Powysi)., 13, 16, 47, 57, 58 Blake, Fingal (Lord) v., 198, 201 — , London and Brighton Railway Company v., 246 — V. Peters, 48, 58, 60. See Add. Blakemore v. Glamorganshire Canal Company, 189, 207, 210 Blanchard v. Bridges, 100, 112 Blaney (Lord) v. Mahon, 69 Blewett V. Jenkins. See Add. Blewitt V. Tregonning, 71, 103, 106, 107 Bliss D. Hall, 121 Bloom, Jesus College v. 17, 18 Blundell, Acton v., 136 Boldero, Lushington v., 27, 36, 45, 48, 49 Bolt, London (City of) v., 97 Bolton (Duchess of), Powlettu, 28, 31 — (Duke of), Williams v., 28, 30 Bolton and Preston Railway Com- pany, North London Railway Com pany i;., 181, 193 Bond, Gray!)., 106 Bonomi v. Backhouse, 150, 151, 171 Bostock V. North Staffordshire Rail- " way Company, 91, 122, 238 Bourne it. Taylor, 188 Bower, Mexborough (Lord) v., 137 — , mvihrev., 102 Bowes, Strathmore v., 34, 38 Bowles' (Lewis) Case, 7, 9, 28 Digitized by Microsoft® vm TABLE OF CASES. Bowser v. Maclean, 188, 194 Box V. Allen, 98 Bradbury v. Manchester and Leeds Railway Company, 172 Bradby, Se, 228 Bradford (Corporation of), Ferrand ■v., 124, 222, 229 Bradley, Blackett v., 170. See Add. — , London and ISTorth "Western Rail- way Company v. , 226, 227 — , Wyrley Canal Company v., 155, 164 Brandling, Newmarcb i). , 172 Branthwaite, Lewis v., 188 Bray v. Tracey, 4 Brett, Pratt u, 64, 65 Brettle, Lowndes »., 180 Breynton v. London and North- Western Railway Company, 238, 247 Bridges, Brown v., 19 — , Blanchardii., 100, 112 — V. Stephens, 8, 16, 39, 53 — V. "Wilts and Somerset Railway Company, 228 Bridgnorth (Corporation of), Ellis v., 173 Briggs V. Oxford (Lord), 53 Bright V. "Walker, 106, 107, 109 Brighton and Lewes Railway Com- pany, Langford v. , 229 Briscoe v. Drought, 130, 131, 134 Bristol (Corporation of), "Wedmore v. See A dd. Bristol Dock Company, R. v. , 226 — and Exeter Railway Company, Doe«)., 208, 236, 238 — and South "Wales Railway Com- pany, "Wintle v., 207, 244 Broadbent v. Imperial Gas Company, 87, 98, 122, 173, 207, 214, 223 — V. Ramsbotham, 136 Brocklebank v. "Whitehaven Junction Railway Company, 235 Brocklehurst, "Wardle v., 1 29 Brogden, Humphries u , 150, 151 Bromfield, Ex parte, 51 Brooks, Bai-wellu, 115, 121 Brown v. Best, 126 Brown, Bridges (Lady) u, 19 Brown, Devenishw. , 214 Brown, Field v., 44, 50 BroAvn v. Mallett, 171 Brown v. Robins, 150, 151, 169 Brown, Stockton and. Darlington Railway Company v., 239 Brown v. "Windsor, 169 Browne, Hunt v., 7, 64 Bruce v. Great "Western Railway Com- pany, 227 Bryan v. Clay, 77 Brydges v. Kilburn, 21 — V. Stephens, 40 Bubb, Abrahallv., 9, 17, 33 Buckingham (Duke of), "Ward v., 65 Bullen V. Denning, 22 Bullock V. Dommitt, 57 — , Pigott V. 18, 28 Bunbury v. Hewson, 77 Burchall, Dodd v. See Add. Burchell v. Hornsby, 62 Burden, Bathurst (Earl) v., 65, 99 Burges v. Lamb, 32, 34 Burgess, Bissettn., 78 Burkenshaw v. Birmingham and Ox- ford Junction Railway Company, 222 Burlington (Earl of). Doe v., 2 Burne v. Madden, 67 Bury 11. Pope, 103 Bush V. Field, 152 Bushi). "Western, 138 Busk, Tm-ner i". , 57 Butcher v. Butcher, 181 Butler V. Kynersley, 46, 48, 49 Buxton V. Calcott, 173 Byles, R. v., 228 Byron (Lord), Robinson r., 138, 176, 189 ' Cade V. Newnham, 173 Calcott, Buxton t>., 173 Caldwall V. Baylis, 14, 58 Caledonian Railway Company v. Bel- haven, 154 — V. Colt, 223, 246 — «. Lockhart, 227. See Add. — V. Ogilvy, 225, 227 — , R. v., 238, 245 — r. Sprot, 100, 150, 152, 161 Digitized by Microsoft® TABLE OF CASES. IX Caledoniau Railway Company, v. St. Helensburgh, 216 Calvert v. Gason, 7 Cameron Coal Company, Turner?). , 1 81 Campbell v. Allgood, 13 — , Squire v., 85, 96, 99, 172, 238 Canterbmy (Archbishop of), Hilcoats v., 222 Cardale, Pennington v., 74 Cardinall v. Molyneux, 81 Carlisle (Bishop of), Fleming v., 9 Carlyon v. Lovering, 129 Carmichael, Creago., 64 Carnej', Forbes v., 67 Carnochan v. Norwich and Spalding Eailway Company, 229 Carroll, Doran v., 3, 65, 66 Carter, Pyeru, 100, 102 — , Smyth v., 21, 61, 64 Casamajor v. Strode, 190 Case V. Midland Eailway Company, 172 Castlemaine ». Craven, 41, 57 Cater, Jackson r., 67 Caukwell v. Russell, 112 Cavey v. Ledbitter, 121 Chadwick, Magoru, 130, 131, 132 Chalk V. "Wyatt, 87 Chamberlaine v. Chester and Birken- head Railway Company, 205 — V. West End and Crystal Palace Railway Company, 225. See Add. Chamberlayne v. Dummer, 16, 22, 33, 36, 38 Champness, Dayrelli). , 11 Chandler v. Thompson, 99, 112, 113 Chandos (Duke of) v. Talbot, 22 Chaplin, Jesselw., 98 Charing Cross Railway Company, Gardners)., 232 — , St. Thomas's Hospital v., 230, 240 Charlton's Case, 34 Chasemore v. Richards, 135 Chatterton v. "White, 54 Chauntler v. Robinson, 169 Cheetham, Leeds v., 57 Cherrington v. Abney, 111, 112 Chester and Birkenhead Railway Company, Chamberlaine v., 205 — , Stanley v., 215 Chester and Holyhead Railway Com- pany, Craiiford v. , 239 — , Hughes u, 173, 191 Child, Steven D., 121 Ching, Penwarden v., 105 Cholmeley, Cockerell v., 32 — , Paxton ■!)., 32 Cholmondeley, Cooke v., 13 Chorley "Water "Works, Corporation of Liverpool v., 206, 207 Churchman v. Tunstall, 172 Clarence Railway Company, Coats r. , 172, 247 — , Great North of England v., 173 Clark V. Dew, 200 Clarke v. Manchester, Sheffield, and Lincolnshire Railway Company, 2471 — , Reynolds r., 83, 175 Clavering v. Clavering, 55, 56 — , Lyddalu, 12, 50 Claverinth (Lady), Pitu., 190 Claxton V. Claxton, 9, 52 Clay, Bryan d., 77 Cleaver, Attorney-General ». , 87, 97, 114, 122 Cleeve v. Mahany, 97, 121 Clegg !). Dearden, 137, 184 — V. Edmonson, 56 Clemson, Taylor v., 240 Clothier v. "Webster, 227 Clowes V. Beck, 186, 189 Clutton Union (Guardians of). Dud- den «., 126 Coates, Gregg v., 57 Coats V. Clarence Eailway Companj', 172, 247 Cochrane, Ewart v., 100 Cockburnti. Erewash Canal Companv, 227 Cockerell v. Cholmeley, 32 Cockermouth and "Workington Rail- way Company, Sanderson v., 247 Coffin V. Coffin, 20, 35, 37, 38 Cogan, Martin v., 6i Cohen, "White v., 87, 97 — V. Wilkinson, 210 Colchester, &c., Railway Company, Gooday v., 216 Cole, Greene v., 5 Digitized by Microsoft® TABLE OF CASES. Cole V. Peyson, 27 — V. West End and Crystal Palace Railway Company, 231 CoUett, Courtney D., 189 Collinge, Doe v., 75 CoUins, Keogh v., 67 — , "Wenmoutlu!., 173 Collinson v. Newcastle and Darling- ton Railway Company, 246 CoUyer, Smith i>., 175, 185, 197 Colne Valley and Halsted Railway Company, Selbyv., 247 Colt, Caledonian Railway Company v., 223, 246 Comptou (Lord), Oxenden «. , 51 Compton V. Richards, 102 Condran, Wrixont;., 187 Congleton (Lord), Hargrove v., 64 — V. Mitchell, 187 Conn, Lurting »., 64 Conservators of the Thames, Attorney- General V. See Add. Consett V. Bell, 43 Const V. Harris, 21 Cook V, Whalley, 17 Cooke V. Cholmondeley, 13 — , Smith!)., 18 Cooling, He, 172 Cooper V. Barber, 123 — V. Huhhuck, 112. See Add. — , Norton v., 68 Copestake, Hutchinson?'., 112 Copley, i). , 34 Coppinger v. Gubbins, 3, 7, 21, 54 Cordwainer's Company, Kearns v. See Add. Cornish v. New, 14 Cory V. Yarmouth Railway Company, 172 Co.sterd's Case, 72, 78 Cother v. Midland Railway Company, 214 239 Cotterill v. Griffiths, 112 Cotton, Garth*., 5, 8, 9, 11, 17, 18, 27, 29, 36 Cottrill, Mortimer v., 175 Coulson V. "White, 175 Courthope v. Mapplesdeu, 185 Courtney «. CoUett, 189 Courtown (Earl of), Logan v., 210 Courtown r. "Ward, 55 Coutts V. Gorham, 100 Coventry, Swansborough ». , 102 Coward,' South "Western Railway Company v. , 229 Cowper (Earl) v. Baker, 185 Cox V. Goodfellow, 69 — V. Matthews, 100 Craven, Castlemaine v., 41, 57 Crawford, Mansfield i)., 54 Crawfurd v. Chester and Holyhead Railway Company, 239 Creag v. Carmichael, 64 Cribbin, Hanks d., 106 Cripps, Neale v., 181, 202 Crisp, "White v., 171 Crockett, Thorneycroft ». , 68 Crockford v. Alexander, 190 Cromford Canal v. Cutts, 157 — and High Peak Railway Company, V. Stockport and Disley Railway Company, 206, 207 Crook V. "Wilson, 102 Crosland, North Eastern Railway Company v. See Add. Cross V. Lewis, 105 — , R. v., 121 Crossan, De Salis v. , 55 Crowder v. Tinkler, 85, 97, 122 Crowley v. Ely (Lord), 7 Crowther, Elwell^., 95, 138, 150 Croydon Board of Health, Bidder v. See Add. Crystal Palace Gas Company, Selby v., 179, 196 Cubitt, Newton «., 172. See Add. Cuckheld Board, lie, 214 Cuddon V. Morley, 14 Cudlip V. Rundle, 63 Cuuliffe V. "Whalley, 172 Curwen, Lonsdale (Earl of) v., 183 Cutts, Cromford Canal v., 157 D. Dadson v. East Kent Railway Com- pany, 232 Dakin v. London and North "Western Railway Company, 228 Dalton II. Gill, 14 Digitized by Microsoft® TABLE OP CASES. XI Dand v. Kingscote, 191 Daniel v. Anderson, 173. See Add. — V. North, 106 — , Peter 11., 148 Darcy (Lord) v. Askwith, 1, 54 Dare v. Hopkins, 28, 31 Davenport v. Davenport, 178, 195, 201 Davies v. Davies, 9 — V. MarshaU, 95, 100, 112 ■ — , Prim v., 7 Davis D. Marlborough. (Duke of), 17 Davy, MOlett?)., 68. Dawson v. Paver, 96, 123, 130, 214 Day V. Merry, 37 — , WUliams v., 17 Dayrell v. Champness, 11 Deardeu, Clegg v., 137, 184 Deeble, Linehaniv., 106, 107 Deere v. Guest, 180, 191 DeHeld, SoItaui>., 83, 86, 91, 97, 122 Delapole v. Delapole, 42 Dench v. Bampton, 14 Denning, BuHen v. , 22 Dennis, Loffts v., 57 Denton v. Denton, 13 Derby, Hanson v., 69 — (Earl of), Nash v., 26 De Salis v. Crossan, 55 — V. , 55 Devenish r. Brown, 214 Devonshire (Duke of) v. Elgin, 130 Dew, Clark v., 200 Dewey, E. v., 122 Dewhjrst v. Wrigley, 138 Dickenson v. Grand Junction Canal Company, 135 Dickin v. Hamer, 43, 55 Dimes v. Petty, 171 Direct London and Portsmouth Rail- way Company, "Webb v., 218 Dixey, Songhurst ti. , 63 Dobson V. Blackmore, 171 Dodd, Aylett u, 67 — -0. Burchall. See Add. — V. Holme, 150, 151 — V. Salisbury and Yeovil Railway Company, 239 Doe V. Bristol and Exeter Railway Company, 208, 236, 238 Doe V. Burlington (Earl of), 2 — V. CoUinge, 75 — d. Hudson v. Leeds and Bradford Railway Company, 229 — V. London and Croydon Railway Company, 235 — V. Manchester (Mayor of), 237 — r. Manchester, &c.. Railway Com- pany, 229 — V. North Staffordshire Railway Company, 222, 238 — V. Scarborough, 5 — V. Taniere, 74 Dommitt, Bullock i-., 57 Donald, Natural Manure Company v., 109, 123 Dor, Pyne v., 8 Doran v. Carroll, 3, 65, 66 — -v. Wiltshire, 32 Dorman ■!■, Dorman, 172 Dors, MitchelU-., 176, 183 Dorset Central Railway Company, Attorney- General u, 247 Doughty, Attorney-Geneftili)., 99,100 Douglas V. London and North West- ern Railway Company, 214 Dover Gas Company v. Mayor of Dover, 172 — Harbour ("Warden of) v. London, Chatham, and Dover Railway Com- pany, 238 — Harbour (Warden of) i). South Eastern Railway Company, 206 — (Mayor of), Dover Gas Company v., 172 Downshire v. Sandvs, 9, 34, 35, 40 Drake, Best v., 180 Drought, Briscoe r., 130, 131, 134 Drury v. Kent, 78, 204 — r. Molins, 64 Dublin and Drogheda Railway Com- pany, Little «., 227 Duce, Hodgson v., 180 Dudden v. Guardians of the Clutton Union, 126 Dudley v. Horton, 212 Dudley Canal Company v. Graze- brook, 157, 166 Dudley (Earl), Stourbridge Canal Company J)., 166 Digitized by Microsoft® xu TABLE OF CASES. Dugdale v. Robertson, 101, 154 Diimmer, Chambeiiayne f., 16, 22, 33, 36 Duplessis, Knight «., 27, 197 Durham (Bishop of), Jefferson i'., 72, 75, 76, 78 Durham Company v. Wawn, 15 Dylar's Estate, Re, 239 E. East India Company, Fishmongers' Company v., 99, 111 — 1). Vincent, 100, 111 East Kent Railway Company, Dad- son v., 232 East and West India Docks v. Gattke, 225, 227 — , Ranking)., 233 Eastern Counties Railway Company, Alston, v., 229, 236 — , Attorney-General 4>., 246 — , Hawkes v., 217 — , Manning r., 221 — V. Marriage, 233 — , Petley?)., 190 — , Petre (Lord), v., 215 — , R. v., 210, 224 Eastlake, Attorney General, v., 20 Easton, Hood v., 68 Eckersley, Tipping v., 66, 91, 138 Edinburgh, Perth, and Dundee Rail- way Company r. Philip, 218 Edmonson, Cleggt"., 56 Edwards ». Grand junction Railway Company, 215 Electric Telegi-aph Company, At- torney-General v., 86, 172, 179, 196. See Add. Elger, Smith r., 99 Elgin, Devonshire (Duke of ) i)., 130 Ellers, Worden «'. , 64 Elliotson V. Feetham, 121 EUiott North Eastern Railway Com- pany J)., 131, 137, 149, 150, 152, 164 Ellis V. Corporation of Bridgenorth, 173 — V. South Western Railway Com- pany, 246 Elmhirst v. Spencer, 87, 138 Elwell V. Crowther, 95, 138, 150 Ely (Lord), Crowley v., 7 Embrey v. Owen, 124 Emmott V. Mitchell, 182 Ennor v. Barwell, 88, 118, 126 Epsom and Leatherhead Railway Company, Wood v., 239 Erewash Canal Company, Cockburn v., 227 Eton College v. Great Western Rail- way Company, 240 Evans, Lancashire and Yorkshire Railway Company v. , 227 Eve, Kimpton v., 63, 64 Evelyn's (Lady) Case, 6, 9, 11, 33 Eversfield v. Mid Sussex Railway Company, 239 Ewart V. Cochrane, 100 Eyre, Grierson r,, 18 F. Fail-field v. Weston, 69 Falmouth (Lord) v. Innys, 130 Farlow, Ex^oarte, 233 Farrant v. Lovel, 67, 68 Farrow v. Vansittart, 191, 212 Feetham, Elliotson D., 121 Ferguson v. , 63 Ferrand v. Bradford (Corporation af ), 124, 222, 229 — V. Wilson, 8, 40, 43, 50, 53 FeiTers (Earl), Tamworth v., 38 Fetherstone, Hoskins v., 78, 79 Field V. Beaumont, 56, 185 — V. Brown, 44, 50 — , Bush «., 152 — , Huzzey «., 172 ^- V. Jackson, 212 Finch V. Resbridge, 138 Fingal (Lord) v. Blake, 198, 201 Firmstone v. Wheeley, 136 Fisher, Aubrey r., 22, 39 Fishmongers' Company v. Beresford, 18, 19 — V. East India Company, 99, 111 Fitzwilliam (Earl of) v. Moore, 80 Flamang's Case, 177, 182 Fleming i\ Bishop of Carlisle, 9 Digitized by Microsoft® TABLE 01^ CASES. Xlll Fletoliei' 1). Great Westeni Railway Company, 164, 167 — , Palmer v., 100, 101, 150, 151 — , Walker v., 136, 183 Flight V. Thomas, 108 — V. Todd, 97 Fooks V. Wilts, &c.. Railway Com- pany, 228 Forbes, Attorney-General v., 86, 96, 172 — V. Carney, 67 Ford V. Tynte, 2 Fowkes, Arthington ■!;. , 187 Fox V. Pursell, 100, 110 Francis, Strachey ■ii. , 72, 76, 79 Frazer v. Kershaw, 15 French r. Macale, 64, 67 Frewen v. Phillips, 109 Frewin v. Lewis, 96, 212 G. Gage u. Newmarket Railway Com- pany, 218 Gale V. Abhott, 109, 113 Galgay v. Great Southern and Western Railway Company, 136 Galland, Pinnington v., 101, 154 Gardner v. Charing Cross Railway Company, 232 — , Hanson v., 176, 187 — -, Onley v., 110 Garrett v. Sharp, 111, 112 Garth v. Cotton, 6, 8, 9, 11, 17, 18, 27, 29, 36 Gason, Calvert v. , 7 Gattke, East and West India Docks v., 225, 227 Gawthom v. Stockport, Disley, and Whaley Bridge Railway Company, 246 Gayford v. NichoUs, 150, 151 Gaynon, Wood v., 67 Geary, Attorney-General «. , 77 Geast V. Belfast (Lord), 63, 64 Gell, Arkwright v., 130, 131 Gent V. Harrison, 9, 18, 28, 43, 44 Gibbs V. Trustees of Liverpool Docks, 227 Gibson v. Smith, 188 — V. WeUs, 62 Giles V. Grove, 172 — V. London, Chatham) and Dover Railway Company, 232 Gill, Dalton«., 14 Gillett, Blackettr., 172 Gilmour, Miner r., 123, 125 Gladstone v. Salisbiu'y (Mari|uis of), 53, 171 Glamorganshire Canal Company, Blakemorer., 189, 207, 210 Glave V. Harding, 102 Cleaves v. Partit, 77 Glover r. North Staffordshire Railway Company, 223, 22i Goble, Martin «., Ill Godfrey u. Watson, 68 Godley, Alexander ■?). , 23 Goldwaine, Johnson d., 63, 64 Goldwin, Tennantv., 102 Gooday v. Colchester, &c.. Railway Company, 216 Goodfellow 11. Cox, 69 Goodman v. Kine, 70 Goodwyn v. Spray, 15 Gordon v. Woodford, 22 Gorham, Coutts v., 100 Goring v. Goring, 64 Gorton ii. Smart, 122 Grafton (Duke of) v. Hilliard, 114 Graham v. Birkenhead, &c., Railway Company, 210, 248 Grand Junction Canal Company, Dickenson ii., 135 — , London and Birmingham Railway v., 171, 173, 244, 246 Grand Junction Railway Company, Edwards v., 215 — V. White, 221 Grant, Alston v., 100 Granville (Lord), Hilton v., 170, 188 Grayi". Bond, 106 Gray v. Liverpool and Bury Railway Company, 210, 240 Grazebrook, Dudley Canal Navigation Company v., 157, 166 Great North of England v, Clarence Railway Company, 173 — , Abraham v., 171, 226 Digitized by Microsoft® XIV TABLE OF CASES. Great Northern Railway Company, Attorney- General «., 245 — , Langhami)., 228, 229 — , Lawrence v., 137, 227 — , Lindsay (Earl of) v., 216 — , Manchester, Sheffield, and Lin- colnshire Railway Company v., 238 Poynderw., 228 — , Sahsbmy (Marquis of) i;. 236, 237, 246 — , R. v., 224 Great Southern and "Western Railway, Galgayf., 136 — , Mann v., 246 ^, Moore v., 224 — , Tuoheyi-., 224 Great "Western Railway Company, Bennett v. See Add. —, Bruce v., 227 — , Eton College «., 240 — , Fletcher «., 164, 167 — , Jones v., 229 — , Mouchet t)., 230 — ■!). R., 237 — , Spackman o. , 231 Greatrex v. Hayward, 130, 134 Green v. Jenkins, 74 — , Jones 1)., 67 Greene v. Cole, 5 Greenhalgh v. Manchester and Bir- mingham Railway Company, 215, 248 Greenwich Hospital (Commissioners of) V. Blackett, 14 Gregg V. Coates, 57 Gresley v. Mousley, 53 Grey v. Duke of Northumberland, 170, 183, 188 Grey de "Wilton (Lord) v. Saxon, 64 Grierson v. Eyre, 18 Griffiths, Cotterellv., 112 Grosvenor (Lord Robert) v. Hamp- stead Junction Railway Company, 230 Groves, Giles u, 172 — , Rose v., 86 Gubbins, Coppinger v. 3, 7, 21, 54 Guest, Deere u, 180, 191 Guildford (Lord), Barnett v., 181 Gyles, "Woodward «)., 04, 67 H. Habergham, Stansfleld v., 9, 17 Hadfield v. Manchester and Leeds Railway Company, 172 Haigh V. Jaggar, 183, 185, 197, 201 Haines, Roberts v., 150 — V. Taylor, 86, 95, 122 Hale V. Hale, 11 HaU, Bliss D., 121 — , Hammond i-., 135 — , Johnstone v., 64, 66 — , South Staffordshire Railway Com- pany v., 224, 227 HaUiwell v. PhilUps, 36 Hambly v. Trott, 19 Hamer, Dickin o. , 43, 55 Hanulton v. "Worsefold, 185 Hammond v. Hall, 135 Hampstead Junction Railway Com- pany, Lord Robert Grosvenor v., 230 Hampton v. Hodges, 70 Hancock v. Yorlsi, Newcastle, and- Berwick Railway Company, 171 Hanks v. Cribbin, 106 Hanson v. Derby, 69 — V. Gardner, 176, 187 Harbridge v. "Warwick, 102, 113, 151 Harcourt, Somersetshire Canal Com- pany v., 236 — V. "White, 19 Harding, Glave v., 102 Hardy v. Martin, 67 — V. Reeves, 68 Hargreave v. Meade, 169 Hargrove v. Lord Congleton, 54 Harnett v. Maitland, 63 Harris, Const v., 21 — V. Eyding, 152, 153 Harrison, Gent v., 9, 18, 28, 43, 44 — , Humphries v., 69, 70 — , "Wyatt v., 149 ,150, 151 Harrow School v. Alderton, 2, 5 Harvey, Jenkins v., 103 — , Knowle, v., 72 Haward v. Bankes, 135 Hawkes v. Eastern Counties Railway Company, 217 Digitized by Microsoft® TABLE OP CASES. XV Hawkesford, Birmingham Canal Com- pany v., 157 Haynes v. Haynes, 220 — , McSwineyu., 148, 172 — , K. v., 171 Haysvard, Greatrexv., 130, 134 Head, Beere v., 20 Heard, Berry «., 6, 28 Heathoote, v. North Staffordshire Eailway Company, 210 Hedger, London (Mayor of) v., 64 Hedges ». Metropolitan Railway Com- pany, 210, 232, 236 Hempthill v. McKenna, 172 Henderson, Shand v., 248 Hereford (Bishop of), v. Scory, 75 Heriot's Hospital (Feoffees of), 238 Heme v. Bembow, 63 Herring v. St. Paul's (Dean and Chapter of), 23, 74, 75, 77, 79 Hertz V. Union Bank of London, 100 Hervey v. Smith, 122 Heward, Weeks v., 96, 128 Hewson, Bunhury i). , 77 Heydon v. Smith, 53 Hide V. Thornhorough, 151 Hilcoats V. Archbishop of Canterbury, 222 Hill, Jones D., 63 — , Mason v., 123 — , Wolf II., 31, 32 HiUiard, Grafton (Duke of) v., 114 Hilton V. Lord GranviUe, 170, 188 Hipldns V. Birmingham Gas Com- pany, 126 Hippesley v. Spencer, 69 Hitohens, Sutton Harbom- Company v., 226, 227 Hobart, Ripon (Earl of) v., 88, 96 Hoddinott, Sampson v., 124, 130, 131 Hodges, Hampton «., 70 — , Pitman v., 69 Hodgson V. Duce, 180 — V. Powis (Earl), 210 Holden v. Weekes, 75, 78, 79, 80 Hole V. Barlow, 119, 121 — V. Thomas, 15 Holme, Dodd v., 150, 151 Holtzapfell v. Baker, 57 Holwoi-thy, Whitechurch v., 188 Holyoake v, Shrewsbury and Bir- mingham Eailway Company, 207 Hony V. Hony, 19 Hood V. Easton, 68 Hope Scott, Talbot v., 176, 180, 190, 198, 201 Hopkins, Dare v., 28, 31 — V. Monk, 69 Hopton, Pillsworth v., 175 Hornsby, Burchell v., 62 Horsefall v. Mather, 63 Horton, Dudleys, 212 Hoskins v. Fetherstone, 78, 79 — V. Phillips, 228 Houghton, BankartsJ., 173 Howard, Wright v., 123 Howley v. Jebb, 55 Hubbuck, Cooper t"., 112. See Add. Hudson V. Maddison, 86 Hughes V. Chester and Holyhead Eailway Company, 173, 191 — V. Trustees of Morden College, 196 — V. Williams, 68 HuU Dock Company, Jubb i)., 234 Hull and Selby Eailway Company, Bell v., 212, 246 Hulse, Andrews v., 14, 58, 188 Humphries v. Brogdeu, 150, 151 • — V. Harrison, 69, 70 Himgerford Market Company, R. v., 219, 233 — , Wilkes f., 225 Hunt, Angerstein «. , 64 — V. Browne, 7, 64 — , Oldaker v., 96, 138 — V. Peake, 149, 150, 151 — , Wicks 1)., 95, 137 Huntley v. Russell, 2, 72, 77, 78, 80 Hurley, NorthamB., 126, 129 Hussey v. Hussey, 12, 50 Hutchinson v. Copestake, 112 Hutton V. London and South West- em Eailway Company, 229 Huzzey v. Field, 172 lUingivorth v. Manchester and Leeds Railway Company, 86 Digitized by Microsoft® XVl TABLE OF CASES. Impei'ial Gas Company, Broadbent v., 87, 98, 122, 173, 207, 214, 223 Inge V. Birmingham, "Wolverhamp- ton, and Stour Valley Railway • Company, 229 Inhabitants of Oxfordshire, E. v., 135 Innocent «•. North Midland Railway Company, 229 Innys, Falmouth (Lord) v., 130 Isham, Pan ton o. , 62 Isle of "Wight Ferry Company, Liud v., 248. See Add. Iveson V. Moor, 85 J. Jackson v. Cater, 67 — Field r., 212 Jaggar, Haigh?;., 183, 185, 197, 201 Jay, Salters' Company v., 110 Jebb, Howley u., 55 Jefferson v. Durham (Bishop of), 72, 75, 76, 78 — V. Jefferson, 5, 24 Jefl'rey t>. Smith, 15, 18 Jeukin v. Beetham, 77 Jenkins, Blewitt v. See Add. Jenkins v. Green, 74 — V. Harvey, 103 Jersey (Earl of), "Williams v., 95, 173 Jessel V. Chaplin, 98 Jesus College v. Bloom, 17, 18 Johnson, Attorney-General v., 86, 96, 171 — , Auworth v., 63 — , Bateman v., 98, 177 — V. Goldvvaine, 63, 64 — , New River Company v., 135, 226 Johnstone v. Hall, 64, 66 Joley V. Stocldey, 64 JoUard, Stansell?'. , 151 Jones V. Great "Western Railway Company, 229 — V. Green, 67 — V. Hill, 63 — V. Jones, 197 — , Kinder D., 177, 185, 188 — V. Tapling, 112. See Add. Jones D. The Royal Canal Company, 95 — , Thomas v., 65 Jubb V. Hvdl Dock Company, 234 Kaye v. Banks, 33 Kearns v. Cordwaiuer's Company. See Add. Kelk, Arcedeckne v., 112 Kejnp ■!•. London and Brighton Rail- way Company, 172, 212, 218, 246 — V. "West End and Crystal Palace Railway Company, 240 — V. Sober, 64, 66 Kenlyside v. Thornton, 62 Kenrick, Markers-., 62 — , Smith r., 135, 136 Kent, Drui-y J)., 78, 204 Keogh V. Collins, 67 Kerrison v. Span'ow, 96, 138 Kershaw, Frazerw., 15 Kilburn, Biydges v., jn Kilmorey v, Thackera},, 65 Kimpton v. Eve, 63, 64 Kinder v. Jones, 177, 185, 188 Kine, Goodman v., 70 - King, Rochdale Canal Company v., 91, 138 — ■ V. Sakars, 78 — V. Smith, 69 — V. "Wycombe Railway Company, 220, 231 Kingham v. Lee, 6, 16, 47 King's Lynn (Mayor of) v. Pember- ton, 210 Kingscote, Dand?)., 191 Kingston v. Kingston, 21 Kiunersley v. North Staffordshire Railway Company, 235 Kitchin, Norbury (Lord) »., 124 Knight V. Duplessis, 27, 197 — V. Moseley, 72, 76, 77, 78, 79, SO — , Padwicki)., 106 — , "Winchester (Bishop of) v., IS, 19, 53, 80 Knowie v. Harvey, 72 Knowles, Stroyanw., 150 Kynersley, Butler v., 46, 48, 49 — , Ormonde n., 16, 17, 46 Digitized by Microsoft® TABLE OP CASES. XVI 1 Laing, "Whalleyu, 134 Lamb, Burgesj;., 32, 34 Lambert II. Lambert, 65, 66 — , Mason v., "J "J Lancashire and Yorkshire Eailway Company v. Evans, 227 — , E. v., 237 Lancaster Canal Company, Thiok- nesse v., 218, 224 Lancaster and Carlisle EaUway Com- pany, Simpson v., 219 Lancaster and Preston Junction Eail- way Company, E. v., 227 Langford v. Brighton and Lewes Eailway Company, 229 Langham v. Great Northern Eailway Company, 228, 229 Langtou Gas Company, R. v., 172 Lansdowne v. Lansdowue, 18, 19, 33, 57, 176 Large i). Alton, 173 Lathropp v. '""arsh, 63, 64 Lawley D. La, .ley, 33 Lawrence v. Great Northern Eailway Company, 137, 227 — V. Obee, 110 Leake v. Beckett, 69 Leamy v. Waterford Eailway Com- pany, 172 Ledbitter, Caveyv., 121 Lee V. Alston, 17, 18, 19, 26, 27 — , Kinghami!., 6, 16, 47 — V. Milner, 206, 208, 211, 223, 227 — V. Stevenson, 129 — , "Wynstauley v., 91, 97, 98, 98, 110 Leeds and Bradford Eailway Com- pany, Doe d. Hudson v., 229 Leeds v. Cheetham, 57 — (Duchess of) ii. Lovat (Lord), 53. See Add. — (Duke of) V. Amherst (Earl), 3, 18, 21, 48, 59, 67 — and Selby Railway Company, E. v., 158, 167 Leigh, Aspinwall v. , 9, 51 Leighton v. Leighton, 33 Leominister Canal Company v. Shrewsbury and Hereford Eailway Company, 216, 240 Lessees of Lord Berkeley, Morris v. , 100 Lester, PoUockc, 86, 118 Letts, London and Blackwall Eail- way Company v., 226 Levy, Potts 1!., 87 Lewis Bowles' Case, 7, 9, 28 — 11. Branthwaite, 188 — , Cross v., 105 — , Frewin v., 96, 212 — v. Marsh, 150 Liford's Case, 15, 23 Ligo V. Smith, 3 Limehouse Board of "Works, London and Blackwall Eailway Company v., 173 Lind V. Isle of Wight Ferry Company, 248. See Add. Lindsey (Earl of) v. Great Northern Railway Company, 216 Lineham v. Deeble, 106, 107 Lippiucott V. Smyth, 214 Lister v. Lobley, 229 Litchfield v. Ready, 181 Little V. Dublin and Drogheda Eail- way Company, 227 — v. Newport and Hereford Railway Company, 243 — V. Wingfield, 106 Litton V. Robinson, 9, 11, 69 Liverpool (Corporation of), Attorney- General i)., 206 — V. Chorley "Water-Works, 206, 207 — (Mayor of), Standish v., 229 Liverpool and Bury Railway Com- pany, Gray v., 210, 240 Liverpool and Manchester Railway Company, Preston?)., 216 — , R. v., 234 Lloyd, Birmingham Canal Company v., 137 — V. Passingham, 190 — , E. v., 84 — V. Trimleston (Lord), 190, 197, 198 Lobley, Lister r., 229 Lockhart, Caledonian Eailway Com- pany v., 227. See Add. b Digitized by Microsoft® TABLE or CASES. Loffts V. Dennis, 57 Logan V. Courtown (Earl of), 210 London (Bishop of) v. Webb, 71, 82 — (City of) V. Bolt, 87 — V. Pugh, 64, 67 — (Mayor of) v. Hedger, 64 — V. Pewterers' Company, 109 — , Peyton »., 169 Loudon and Binningham Railway Company v. Grand Junction Canal Company, 171, 173, 244, 246 — , E. v., 245, 246 — , Semple v., 86, 122, 172 — , Spencer !)., 85, 172, 246 London and BlackwaU Eailway Com- pany V. Letts, 226 — V. Limeliouse Board of Works, 173 — , PincMn v., 220, 233, 236 — , Schwinge v., 236 London and Brighton Eailway Com- pany V, Blake, 246 — , Kemp v., 172, 212, 218, 246, — , PhiUips v., 224 London, Chatham, and Dover Eailway Company, Giles v., 232 — , Warden of Dover Harbour d., 238 Loudon Dock Company, E. v.. 225, 234 London and Greenwich Railway Com- pany, E. u, 231 London and Worth Western Eailway Company v. Ackroyd, 167 — , Bagnall ■;;., 224, 227. See Add. — , Beardmer v., 98, 225, 238, 245 — V. Bradley, 226, 227 — , Breynton v., 238, 247 — , DakiujJ., 228 — , Douglas v., 214 — , E. v., 210, 228 — V. Smith, 225, 227 — , Stuart (Lord James) »., 218 London and Southampton Eailway Company, Attorney General v., 87, 172, 244 — V. Northam Bridge and Eoads, 172, 244, 248 London and South Western Eailway Company, Attorney General v., 214, 246, 247 London and South Western Eailway Company, Huttou v. , 229 — , E. v., 220 — , Seymour v., 236 — , Wandsworth Board of Works v. , 207, 225 Lonsdale (Earl of) «. Curwen, 183 Lord V. Commissioners of Sidney, 123 Lovat (Lord) v. Leeds (Duchess of), 53. Ses Add. Lovel, Earraut v., 67, 68 Levering, Carlyon v., 129 Lowe V. Lucey, 187 Lowndes v. Brettle, 180 Lucey, Lowe v., 187 Ludlow, Ex parte, 50 Lugger, Warren i). , 77 Lurting v. Conn, 64 Lushington e. Boldero, 27, 36, 45, 48, 49 Luton Board of Health, Attorney- General v., 86, 96, 138 LuttreU's Case, 11, 112 Lyddal i). Clavering, 12, 50 Lynn and Ely Eailway Company, Tawney v., 219 M. Macale, Erenchu, 64, 67 Maclean, Bowser v., 188, 194 Macord, Roberts v., 113 Madden, Burne v. , 67 Maddison, Hudson v., &S Magor V. Chadwick, 130, 131, 132 Maguire, Eobinson i). , 69 Mahany, Cleever., 97, 121 Mahon, Blaney (Lord) v., 69 — V. Stanhope, 35, 36 Maitland, Harnett v., 63 Maldon, Witham, and Braintree Eail- way Company, Sadd v., 219, 239 Mallett, Brown v., 171 Manchester (Commissioners of ), E. v., 219 — (Mayor of), Doe v. , 237 Manchester and Birmingham Eailway Company, Greenhalgh v. , 215, 248 Manchester and Leeds Eailway Com- pany, Attorney-General v., 87, 138, 172 Digitized by Microsoft® TABLE OP CASES. XIX Manchester and Leeds Railway Com- pany, Bradbury;;., 172 — , Hadfield*., 172 — , lUingwortli r. , 86 — , Priestly v., 171, 244, 246 — , E. v., 244 — , Webb v., 219, 239 — , Sheffield, and Lincolnshire Eail- way Company, Astley v., 239 — , darken., 247 — , Boev., 229 — II. Great Northern Railway Com- pany, 238 — , R. v., 234, 244 — , Eamsden v. , 225 — V. Worksop Board of Health, 96, 136, 138 Mann v. Great Southern and Western Railway Company, 246 — V. Stephens, 36 Manning v. Commissioners of West India Docks Act, 222 — V. Eastern Coimties EaUway Com- pany, 221 — V. Wasdale, 125 Manser v. North Eastern Railway Company, 247 Mansfield v. Crawford, 64 Mapplesden, Courthope v., 185 Marker v. Kenrick, 62 Marlborough (Duke of), Attorney- General v., n — , Davis «>., 17 — V. Marker, 33, 35, 36, 51 — V. St. John, 44, 71, 72, 77, 79, 80 Marriage, Eastern Counties Railway Company ii., 233 Marsh, Lathroppn., 63, 64 — , Lewis v., 150 — V. Wells, 58 Marshall, Davies v., 95, 100, 112 Marten v. Goble, 111 Martin ■;;. Cogan, 64 — , Hardy D., 67 — V. Nutkin, 85, 122 — V. Roe, 77 Mason V. Hni, 123 — V. Lambert, 77 — V. Mason, 50 Mason v. Stokes Bay Railway Com- pany. See Add. Mather, Horsefall»., 63 Matthews, Cox«., 100 Maxwell v. MitcheU, 67 M'Cann, Whiter, 3, 57, 63 M'Kenna, Hempthflls)., 172 M'Namara, Williams v., 33 M'Weath, Wilson©., 173 M'Swiney v. Haynes, 148, 172 Meade, Hargreave u., 169 Medway Navigation (Proprietors of) V. Earl of Romney, 123 Merchant Taylors' Company, Trus- cott »., 110 Merry, Day i;., 37 Mersey Docks Board -(J. Penhallow, 227 Metcalfe, Wise'w., 77 Metropolitan Association v. Petch, 97 Metropolitan Board of Works, Reddin v., 231 Metropolitan Railway Company, V. Hedges, 210, 232, 236 — , Newton v., 229 — , Somers v. See Add. Mexborough (Lord) v. Bower, 137 MeyneU v. Surtees, 236 Micklethwaite v. Micklethwaite, 16, 33, 34, 35, 37, 47, 60 Mid Sussex Railway Company, Evers- fieldi)., 239 Midland Railway Company v. Amber- gate Railway Company, 239 — , Belli)., 172 — , Case v., 172 — , Cother v., 214, 239 Mildmay v. Mildmay, 42 Mill®. New Forest Commissioners, 109 Millett V. Davy, 68 Mills, Eose v., 171 Mibier, Lee ii.,206, 208, 211, 223, 227 Miner v. Gilmour, 123, 125 Minsterley, Wdde v., 149, 150, 151 Mitchell, Congleton v., 187 — V. Dors, 176, 183 — V. Emmott, 182 — , Maxwell «., 67 Mogg V. Mogg, 175, 187 6 2 Digitized by Microsoft® XX TABLE OF CASES. Mold V. Wheatcroft, 233, 237 Molins, Druryi'., 64 Molony v. Quail, 67 Molyneux, Cardinall u. , 81 — V. Powell, 3, 11, 21 Monk, Hopkins v., 69 Montfort, Sutton i). , 98, 106 Moor, Iveson v., 85 Moore, Fitzwilliam (Earl of) v. , 80 — V. Great Southern and Western Railway Company, 224 — V. Orr, 54 — V. Eawson, 105, 111 — V. Webb, 129 Morden College (Trustees of), Hughes v., 196 Moreland v. Richardson, 81 Morgan v. Abergavenny, 2 Morley, Cuddoni;. , 14 Morris, Beaufort (Duke of) v., 136 — V. Lessees of Lord Berkeley, 100 — V. Morris, 3, 18, 19, 21, 35, 61, 64 Morse v. Ormonde, 46 Mortimer v. Cottrell, 175 — v. South Wales Railway Company, 224 Mortou, Smarts, 150, 152 Mosely, Knight!;., 72, 76, 77, 78, 79, 80 Mott V. Blackwall Railway Company, 172, 238 Mouchet ■(/. Great Western Railway Company, 230 Mousley, Gresley v., 53 Moxhay, Tulks;., 36, 105 Murgatroyd v. Robinson, 129 Murray, Sandys v., 187 N. ITadin, Ex parte, 234 Nash V. Derby (Earl of), 26 — , Purcell v., 7, 54 National Manure Company v. Donald, 109, 123 Neale v. Gripps, 181, 202 Nelson, Scott u, 83, 175 Nene Outfall (Commissioners of), K. „. 226 New, Cornish v., li — Forest Commissioners, Mill®., 109 — River Company v. Johnson, 135, 226 Newcastle (Duke of) v. Vane, 27 — and Darlington Railway Com- pany, Collinson v. , 246 Newdigate v. Newdigate, 35, 36 Newman, Saunders >■., 123 Newmarch v. Brandling, 172 Newmarket Railway Company, Gage i>., 218 Newnham, Cadeu , 173 Newport and Hereford Railway Com- pany, Little v., 243 Newton v. Cubitt, 172. See Add. — V. Metropolitan Railway Com- pany, 229 Newtown, Quilterr., 173 Nichol, Attorney- General t)., 87, 88, 89 97 98 NichoU V. Allen, 238 Nicholls, Gayfords)., 150, 151 Nicklin v. Williams, 171 Noble, Richards u, 14, 17 Nolan, White «. , 7 ' Norburj' (Lord) v. Alleyne, 67 — V. Kitchen, 124 Norfolk (Duke of), v. Tenant, 225, 227 — Estuary Company, Bentinck v., 237, 239 North, Bishop v., 191 — , Daniel v., 106 — , Potter?;., 104 North British Railway Company v. Tod, 2;i8, 240 North Eastern Railway Company v. Crosland. See A dd. — V. EUiott, 131, 137, 149, 150, 152, 164 — , Manser «., 247 North Midland Railway Company, Aldredi;., 238 — , Innocent v., 229 — , R. v., 224 — , River Dun Navigation Company v., 236 North Staffordshire Railway Com- pany, Barker®., 228, 231, 232 Digitized by Microsoft® TABLE OP CASES. XXI North Staffordshire Railway Com- pany, Bostock v., 91, 122, 238 — , Doe v., 222, 238 — , Glover r., 223, 224 — , Heathcote u, 210 — , Kiunersley «. , 235 — , Skerratt v., 229 North Union Railway Company v. Bolton and Preston Railway Com- pany, 181, 193 — , R. r., 224 Northam v. Hurley, 126, 129 — Bridge and Roads v. London and Southampton Railway Company, 172, 244, 248 Northumberland (Duke of), Grey v. , 170, 183, 188 Norton v. Cooper, 68 — , Simmons v., 3, 21, 27, 64 Norway D. Rowe, 56, 175, 185, 190, 197 Norwich and Spalding Railway Com- pany, Carnochan "., 229 Nottingham Old Water Works, R. i;. , 224 Nutkin, Martin v., 85, 122 0. Oakley, Thomas v., 18, 19, 176, 185 Obee, Lawrence v., 110 O'Brien v. O'Brien, 33, 38 Ody, Wells v., 169 OgUvy, Caledonian Railway Company V. 225 227 Oldaker v. Hunt, 96, 138 O'Neill r. Allen, 103 Onions, Smallmani;. , 15 Onley v. Gardiner, 110 Onslow V. , 63 Ormonde 1!. Kynersley, 16, 17, 46 — , Morse v., 46 Orr, Moore v. , 54 Oxenden v. Compton (Lord), 51 Oxford (Lord), Briggs v., 53 Oxford and ' Birmingham Railway Company, R. «. , 236 Oxford, Worcester, and Wolverhamp- ton RaQway Company v. South Staffordshire Railway Company, 240 Oxford, Worcester, and Wolverhamp- ton Railway Company, Sparrow v. , 220, 231, 235, 236, 240 Owen, Emisrey v., 124 Owens, Anwylr., 201 P. Packington's Case, 34, 38 Padwick v. Knight, 106 Paget's Case, 4 Palmer, Re, 233 — «. Fletcher, 100, 101, 150, 161 — , Parrotti;., 7, 14, 17, 18, 53, 56 Panton v. Isham, 62 Parfitt, GleavesD., 77 Parish Clerks' Company, Plasterers' Company v., 109 Parks, Whitehead 11., 129 Parrott v. Palmer, 7, 14, 17, 18, 53, 56 Parteriche v. Powlett, 68 Partridge v. Scott, 150, 151 Pash, Binckesj)., 112 Passingham, IJoyd v., 190 Patrick, Beaufort (Duke of) u, 236 Paver, Dawson v. , 96, 123, 130, 214 Paxton, Cholmeley v. , 32 Peacock, Berriman v. , 23 Peake, Hunts;., 149, 150, 161 Pearce o. Wycombe Railway Com- pany, 240 Pearson v. Spencer, 101 Pease, R. v., 226 Pemberton, Mayor of King's Lynn v., 210 Penhallow, Mersey Docks Board v. , 227 Pennington v. Cardale, 74 Penny v. South Eastern Railway Com- pany, 225, 226 Pentland v. Somerville, 38 Peuwarden v. Ching, 105 Perks V. Wycombe Railway Company, 191, 222. See Add. Perrott v. Perrott, 11, 40 Petchii. Metropolitan Association, 97 Peter v. Daniel, 148 Digitized by Microsoft® TABLE OF CASES. Peters, Blake v., 48, 58, 60. See Add. Peterson, Eolfe v., 6i, 67 Petley v. Eastern Counties Railway Company, 190 Petre (Lord) v. Eastern Counties E ail- way Company, 215 Petty, Dimes v., 171 Pewterers' Company, London (Mayor of) v., 109 Peyson, Cole «. , 27 Peyton v. London (Mayor of), 169 Philip, Edinburgh, Perth, and Dundee Railway Company v., 218, 238 Phillips ». Barlow, 28, 44 — , Bartlett v., 75, 78, 79 — , Frewen v., 109 — , HalliweUv., 36 — , Hoskinsw., 228 — V. London and Brighton Railway Company, 224 — V. Smith, 24, 62 Pidgeley v. EawUng, 23 Pierce, Sayer v., 56 Piers V. Piers, 34 Piggott V. Sti-atton, 99 Pigott V. BuUock, 18, 28 PiUsworth v. Hopton, 175 Pinchiu v. London and Blackwall Railway Company, 220, 233, 236 Pinnington v. GaUand, 101, 154 Pit V. Lady Claveriuth, 190 Pitman v. Hodges, 69 Plasterers' Company r. Parish Clerks' Company, 109 Plymouth v. Archer, 31, 55 Pollock V. Lester, 86, 118 Ponsonby v. Adams, 67 Pope, Bury v., 103 Portland (Duke of), Radcliffe v., 99, 100, 113 Potter V. North, 104 — , Stockport Water "Works u, 119 126 Potts V. Levy, 87 — V. Potts, 38 Powell V. Aiken, 19, 137, 183, 194 — , Molyneuxu, 3, 11, 21 Powis (Earl), Hodson v., 210 Powlett V. Bolton (Duchess of), 28, 31 Powlett, Parteriche v., 68 Powleyi;. Walker, 63 Po\vys V. Blagrave, 13, 16, 47, 57, 58 Poynder v. Great Northern Railway Company, 228 Pratt V. Brett, 64, 65 Preston v. Liverpool, Manchester, and Newcastle Railway Company, 216 Price, Rogers v. , 65 Priestley v. Manchester and Leeds Railway Company, 171, 244, 246 Prim V. Davies, 7 Proprietors of the Medway Naviga- tion V. Romney (Earl of), 123 Pryor, Rosewell v., 100 Pugh London (City of) v., 64, 67 — , V. Vaughan, 13 Pulteney v. Skelton, 63, 64 — V. Warren, 18 PurceU V. Nash, 7, 54 — , Fox v., 100, 110 Pyer v. Carter, 100, 102 Pyne v. Dor, 8 Q. Quail, Molony r., 67 QuUter v. Newtown, 173 R. R. V. Aire and Calder Navigation, 166 — V. Barr, 106 — V. Birmingham and Gloucester Railway Company, 245 — V. Birmingham and Oxford Junc- tion Railway Company, 236 — V. Bristol Dock Company, 226 — v. Caledonian Railway Company, 238, 245 — ■ V. Commissioners of Manchester, 219 ■ — V. Commissioners of Nene Outfall, 226 — V. Commissioners of Thames and Isis Navigation, 225 — V. Commissioners of Woods, 219 — V. Cross, 121 — V. Dewey, 122 Digitized by Microsoft® TABLE OF CASES. XXlll R. V. Eastern Counties Railway Com- pany, 210, 224 — V. Great Northern Railway Com- pany, 224 — , Great "Western Railway Company v., 237 — V. Haynes, 171 — V. Hungerford Market Company, 219, 233 — V. Inhabitants of Oxfordshire, 135 — V. Lancashire and Yorkshire Rail- way Company, 237 — V. Lancaster and Preston Junction Railway Company, 227 — V. Langton Gas Company, 172 — V. Leeds and Selby Railway Com- pany, 158, 167 — V. Liverpool and Manchester Rail- way Company, 234 — V. Lloyd, 84 — V. London and Birmingham Rail- way Company, 245, 246 ■ — V. London Dock Company, 225, 234 — V. London and Greenwich Railway Company, 231 — V. London and North Vestern Railway Company, 210, 228 — V. London and South Western Railway Company, 220 — V. Manchester and Leeds Railway Company, 244 — V. Manchester, Sheffield, and Lin- colnshire Railway Company, 234 — V. North Midland Railway Com- pany, 224 — V. North Union Railway Company, 224 — V. Nottingham Old "Water "Works, 224 — V. Oxford and Birmingham Rail- way Company, 236 — V. Pease, 226 — ». Ryan, 171 — V. Scott, 246 — V. Sharpe, 246 — South Eastern Railway Company ■„. 244 — V. South Holland, 220 — V. South Wales Railway Company, 240 R. V. Southampton Railway Company, 234 — V. Sutton, 122 — V. Trafford, 137 — ■., 137 Train, R. o., 172 Tredwell, Beardmore v., 121. See Add. Tregonning, Blewittr., 71, 103, 106, 107 Trimleston(Lord), Lloyd v., 190, 197, 198 Trott, Hamblyi)., 19 Truscott v. Merchant Taylors' Com- pany, 110 Trustees of the British Museum, Bedford (Duke of) II., 66 Trustees of Liverpool Docks, Gibhs v., 227 Tulk V. Monhay, 36, 105 Tullitt ». TuUitt, 44, 50 Tunstall, Churchman v., 172 Tuohey f. Great Southern and "Western Railway Company, 224 Turner ». Busk, 57 — V. Cameron Coal Company, 181 — V. Sheffield and Rotherham Com- pany, 225 — V. Spooner, 99, 112, 113 — , Wentworthv., 20, 51 — 1). Wright, 9, 17, 48 Turnley, Bamfordv., 119, 121 Twedale v. Twedale, 69 Twibell, Barnsley Canal v., 157 Twort V. Twort, 15 Tyler ». Wilkinson, 106, 123 Tynte, Ford v., 2 H. Udal V. Udal, 4, 28 Underwood v. Bedford and Cambridge Railway Company, 232 Union Bank of London, Hertz v., 100 Usborne v. Usborne, 69 Usher, WardeU v., 24 V. Vane u. Barnard, 16, 34, 59, 82 — , Newcastle (Duke of) v., 27 Vansittart, Farrow v., 190, 212 Vantandmo, R. v., 122 Vaughan, Pugh w., 13 — V. Taff Tale Railway Company, 227 — , Viner v., 55 VauxhaU Bridge Company v. Spencer (Earl), 215 Vice V. Thomas, 56, 181 Vincent, Attorney-General v., 14 — V. East India Company, 100, 111 — V. Spicer, 30, 34, 36 — V. Vaughan, 55 Vintners' Company, Solomon v., 161, 169 Vooght V. Winch, 123 W. Wainwright v. Eamsden, 234 Waldo V. Waldo, 28, 41, 44 Wale V. Westminster Palace Hotel Company, 214 Walker, Bright v., 106, 107, 109 — V. Fletcher, 136, 183 Digitized by Microsoft® XXVlll TABLE OF CASES. Walker, Powleyu., 63 "Wallis, Barnard J!., 191 Walsh, White v., 7, 54 Walters. Selfe, 86, 88, 97, 114, 115, 118 Wandsworth Board of Works v, Lon- don and South Western Eailway Company, 207, 225 — , Tinkler D., 96 Ward 11. Buclcingham (Duke of), 65 — , Courton (Lord) v., 65 Wardell v. Usher, 24 Wardle v. Brocklehurst, 129 Ware v. Regent's Canal Company, 207, 223, 238 Warren v. Lugger, 77 ■ — , Pulteney «., IS — V. Rudali, 13, 58 Warth, Rook I)., 50, 57 Warwick, Harbidges., 102, 113, 151 Wasdale, Manning))., 125 Waterford and Limerick Railway Company, Aimstrong v. , 230 — , Leamy v., 172 Waterhouse, Sharp «., 130 Waterpark (Lord) v. Austen, 7, 54 Watson, Godfrey v., 68 Waud, Wood!)., 123, 124, 126, 130, 131, 139 Wawn, Durham Company v., 15 Weale v. West Middlesex Water Works Company, 206 Weate, Beeston v., 131 Webb V. Bird, 103, 105, 107, 113, 151, 169 — V. Direct London and Portsmouth Railway Company, 218 — , London (Bishop of) v., 71, 82 — V. Manchester and Leeds Railway Company, 219, 239 — , Moore v., 129 Webster, Clothier d., 227 — V. South Eastern Riiilway Com- pany, 180, 190, 197 Wertmnre v. Corporation of Bristol. See Add. Weekes, Holden v., 75, 78, 79, 80 — V. Slake, 187 Weeks v. Heward, 96, 128 Weir, Shaw v., 64 Weller ». Smeaton, 138 Wellesley v. Wellesley, 35, 45, Wells, Gibson »., 62 — , Marsh v. , 58 — V. Ody, 169 Wenmouth v. Collins, 173 Wentworth v. Turner, 20, 51 West End and Ciystal Palace Eailway Company, Alexander v., 231 — , Chamberlaine v., 225. See Add. — , Cole v., 231 — , Kemp v., 240 West India Dock Act (Commissioners of). Manning v., 222 West Middlesex Water Works Com- pany, Weale v., 206 Western, Bushti., 138 Westminster Palace Hotel Company, Wade v., 214 Weston, Fairfield i-., 69 Whalley, Cookf., 17 — , Cunliffe v., 172 — V. Laing, 134 Wheatcroft, Mold v., 233, 237 Wheeley, Firmstone v., 136 White V. Bass, 102. See Add. — , Chatterton v., 54 — V. Cohen, 87, 97 — , Coulson v., 175 — V. Crisp, 171 — , Grand Junction Eailway Com- pany v., 221 — , Harcourtf. , 19 — V. M'Canu, 3, 57, 63 — B. Nolan, 7 — V. Walsh, 7, 54 Whitechurch v. Holworthy, 188 Whitehaven Junction Eailway Com- pany, Brocklebank v., 235 Whitehead v. Parks, 129 Whiteliouse v. Birmingham Canal Company, 227 Whitfield V. Bewit, 17, 20, 27, 28, 41, 54 Wickham v. Wickham, 42 Wicks V. Hunt, 95, 137 Wild V. Straddling, 3 Wilde V. Minsterley, 149, 150, 151 Wilkes V. Hungerford Market Com- pany, 225 Digitized by Microsoft® TABLE OF CASES. "Wilkin, Wright v., 201 "Wilkinson, Cohen v., 210 — , Tyler «;., 106, 123 "Willey V. South Eastern Railway Company, 228 "Williams v. Bolton (Duke of), 28, 30 — V. Day, 17 — , Hughes v., 68 — V. Jersey (Earl of), 95, 173 — V. McNamara, 33 — , Moklin v., 171 — , Eoper v., 67 — V. South "Wales Railway Company, 219 — V. St. George's Harhour Company, 216 — V. "Williams, 9 — , "Wright v., 129 "WUson, Crook©., 102 — , Ferrand v., 8, 40, 43, 60, 53 — 11. McNeath, 173 — , Rowbotham«.,150, 161, 162, 171 — V. Stanley, 107, 109 — V. Townend, 97, 118 "Wilts and Somerset Railway Com- pany, Bridges v., 228 — Fooks V. , 228 "Wiltshire, Doran»., 32 "Wiiich, Vooghtj"., 123 "Winchester (Bishop of) v. Knight, 18, 19, 33, 53, 80 — V. "Wolgar, 71, 81 ■ — ■ (Dean and Chapter of), "Wither v., 74, 75, 77, 79 "Windsor, Brown*., 169 — , Storey v., 18 Wingfield, Little v., 106 "Wintle V. Bristol and South "Wales Railway Company, 207, 244 "Wise V. Metcalfe, 77 "Wither, Stockman v., 78 — V. "Winche.«ter (Dean and Chapter of), 74, 75, 77, 79 "Witherington v. Bauks, 68 "Witherley v. Regent' .s Canal Com- pany, 227 "Wolft). Hill, 31, 32 Wolgar, Winchester (Bishop of) r., 71, 81 Wombwell v. Bellasyse, 34, 35, 51 Wood V. Epsom and Leatherhead Railway Company, 239 — V. Gaynon, 57 — , Rowe v., 68 — V. Sutcliffe, 67, 91, 96, 128, 138. 139 — V. Waud, 123, 124, 126, 130, 131, 139 Woodford, Gordon v., 22 Woodman v. Robinson, 81, 173 Woods (Commissioners of ), R. v., 219 Woodward v. Gyles, 64, 67 Woolrych, Staintoni)., 136 Worcester (Dean and Chapter of). Re, 74 Wordeut). Ellers, 64 'vVorksop Board of Health, Manches- ter, ShefEeld, and Lincolnshire Railway Company 7,'., 96, 136, 138 Worsefold, Hamilton «., 185 Worsley v. Stuart, 2, 64 Wright V. Atkyns, 9, 70 — V. Howard, 123 — , Turner v., 9, 17, 48 — V. Wilkin, 201 — V. Williams, 129 Wrigley, Dewhirst v., 138 Wrixon v, Condran, 187 Wyatt, Chalk v., 87 — V. Harrison, 149, 150, 151 Wycombe Railway Company, Hew- son »., 231 — , Kiagv., 220, 231 — , Pearce v., 240 — , Perks v., 191, 222. See Add. Wynstanley v. Lee, 9X, 97, 98, 110 Wyrley Canal Navigation v. Bradley, 155, 164 Yarmouth Railway Company, Cory v., 172 York, Newcastle, and Berwick Com- pany, Hancock v., 171 — R. 1)., 210 York and North Midland Railway Company v. R., 209, 210, 237 Young, Torriano v., 62, 63 Digitized by Microsoft® Digitized by Microsoft® ADDENDA ET CORRIGENDA. 27 n. 4. Add, Blewett v. Jenkins, 12 C. B. N. S. 16. 48 n. 5. BlaJce v. Peters, V.-C. K., reported 10 "W. R. 826. 53 n. 9. Lord Loved v. Duchess of Leeds, reported 2 Dr. & S. 75. 55 n. 3. Add, SpeTicer v. &wr, M. R 10 W. B. 878, 31 L. J. Ch. 808. 58 n. 5. Blake v. PeUrs, V.-C. K., reported 10 W. R. 826. 60 n. 3. Do. do. 86 n. 7. Add, Attorney-Oeneral v. Conservators of the Thames, 1. N. R. 121 ; Kearns v. Cordwainer's Company, 6 C. B. N". S. 388. 86 n. 9. Attorney-General Y. Electric Telegraph Company, reported 30 Beav. 287. 88 n. 7. See, now, 25 & 26 Vict. c. 42. 96 n. 4. Add, Bidder v. Croydon Board of Sealth, 6 L. T. N. S, 778. 96 n. 9. Add, Attorney- General v. Conservators of the Thames,. V.-G. W., 1 N. R. 121 101 n. 4. Add, Daniel v. Anderson, 31 L. J. Ch. 610. Dodd T. Burclmll, 31 L. J. Ex. 364. WliUe T. Bass, reported 7 H. & N. 722. Add, Cooper v. Hubbuck, 6 L. T. N. S. 826. Add, Jones v. Tapling, in error, 31 L. J. C. P. 342. Beardmore v. Tredwell, reported 31 L. J. Ch. 892. Add, Bidder v. Croydon Board of Health, 6 L. T. N. S. 778. Add, 'North Eastern Sailviay Company v. Crosland, 1 N. R. 72. Bennett v. (rreai W^esferro Railway Company, IN. R. 164. Blackett v. Broadley, reported 1 B. & S. 940. iVewtora V. Cuhitt, reported 12 C. B. N. S. 32. 102 n. 7. 108 n. 2. 112 n. 8. 121 n. 6. 138 n. 5. 158 n 2. 164 n. 6. 170 n. 7. 172 n. 5. Digitized by Microsoft® XXXU ADDENDA ET COEHIGENDA. Page 172 n. 6. Attorney-General v. ElectricTelegrapTi Compcmy, reported 30 Beav. 287. 179 n. 9. Do. do. 191 n. 6. Perks v. Wyoomie Railway Company, on appeal, 1 N. E. 1. 196 n. 2. Attorney-Gen'ral v. Electric Telegraph Company, reported 30 Beav. 287. 216 nn. 2 & 3. Add, Bedford and Cambridge Railway Company v. Stanley, V.-C. W., 5tli December, 1862. 220 n. 6. Add, Lind v. Isle of Wight Ferrii Company, 1 N. E. 13. Mason v. /Stokes Bay Railway Company, 1 N. E. 84. 222 n. 6. Perks v. Wycombe Railway Company, on appeal, 1 'N. E. 1. 223 n. 5. Add, Caledonian Railway Company v. Lockhart, 3 Macq. 808. 224 n. 2. Add, Bagnall v. London and North Western Railway Company, 7 H. & N. 423, in Ex. C. 10 W. E. 802, 31 L. J. Ex. 480. 225 n. 7. Chamberlaine v. West End and Crystal Palace Railway Company, on appeal pending. 225 line 14. As to whether the landowner's remedy is by injunction, damages, or compensation, see Wedmore v. Corporation of Bristol, 1 N". R. 120. 234 line 8. It seems that where no part of the lands of a tenant from year to year are taken, but his interest in the lands is injuriously affected by the works, compensation is to be assessed under the 68th section, before a jury or arbitrators, and not by justices.- Somirs v. Metropolitan Railway Company, 31 L. J. Q. B.. 261. 245 line 9. See Attorney-General v. Conservators of the Thames, 1 N". E. 121. Digitized by Microsoft® TEEATISE ON WASTE, NUISANCE, AND TRESPASS. CHAPTER I. c"^^i- WASTE. 1. Legal Waste. 2. Equitable Waste. 3. General matters relating to Waste, i. Waste in timier and other trees and underwood. 5. Waste in minerals, ttc. 6. Waste in buildings. 7. Laiullord and Tenant. 8. Mortgagor and Mortgagee. 9. Ecclesiastical Corporations. Sect. 1. -LEGAL WASTE. Seot.l. The principle upon which waste depends is waste, what thus stated in the case of IjOt^ Darcy v. Askwiih.^ " It is generally true that the lessee hath no power to change the nature of the thing demised ; ' Hob. 234. Digitized by Microsoft® LEGAL WASTE. Chap, I. Sect. 1. Substantial M"linratiDg waste. he cannot turn meadow into arable," nor stub a wood to make it pasture, nor dry up an ancient pool or piscary, nor suffer ground to be sur- rounded, nor decay the pale of park, for then it ceaseth to be a park, nor he may not destroy or drive away the stock or breed of anything, because it disherits and takes away the perpetuity of succession, as villains, fish, deer,' young spring of woods, or the like, but he may better a thing of the same kind, as by digging a meadow to make a drain or sewer to carry away water." It appears, however, that the consequences of waste do not attach, unless substantial damage is done to the inheritance, which may be either, (1) By diminishing the value of the estate ; (3) By increasing the burthen upon it; (3) By impairing the evidence of title.'' An act which increases the value of the estate = Toth. 114, 209, 210 ; Atkyns V. Temple, ■Cha.n. Eep. 13; Basset V. Basset, Fin. Rep. 189 ; WorsUtj v. Stuart, 4 Bro. P. C, 2nd edit. p. 377 ; Dulce of St. Albans v. Skipwith, 8 Beav. 354. ^ As to reclaiming deer, see Morgan v. Abergavenny, 8 C. B. 768 ; Ford y. Tijnte, 2 J. & H. 150 ; and for battery of villains, 22 Vin. Abr. 488 < Doe V. Barl of Burlington, 5 B. & Adol. 507 ; Earrow Sclwol V. Alderton, 2 B. & P. 86 ; Huntley v. Russell, 13 Jur. 837 ; 18 L. J. Q. B. 239 ; 13 Q. B. 672. Digitized by Microsoft® LEGAL WASTE. Chap, I. may be waste, if it damages the inheritance in either the second or third of the above modes. Such acts are termed Meliorating waste." Waste is either voluntary or permissive, waste maybe ^ voluntary or Voluntary waste consists in the commission of p'^'™'^"*^- ■acts which the tenant has no authority to do, such as pulling down buildings, felling timber, or opening mines. Permissive waste arises from the omission of acts which it is the tenant's duty to do, as, for example, suffering buildings to go to decay, by wrongfully neglecting to repair them.' An action of waste is said by Lord Coke to lie Action of waste. against tenant by the curtesie, tenant in dower, tenant for life, or years, or half-a-year, or guardian in chivalry by him that hath the imme- diate estate of inheritance for waste done to his disherison.' The remedy against waste by guardian in Againafwhom ai-rinu lny at chivalry, tenant in dower, and tenant by the '=°mmoniaw. ^ 2 Will. Saunders, 259 ; Simmons T. Norton, 7 Bing. 640 ; Wild T. Straddling, Finch, 135 ; Ligo v. Smith, 2 Vern. 263 ; MoUnncx v. Powell, 3 P. W. 268, n. ; Barry v. Barry, 1 J. & "W. 651 ; Duke of Leeds v. Earl Amherst, 2 Ph. 117 ; Morris v. Morris, 3 D. & J. 323 ; CoppingerY. Gubbins, 3 J. & L. 397; 9 Jr. Eq. 304 ; Doraii v. Carroll, 11 Ir. Ch. 397. « Co. Litt. 63 a ; 1 Inst. 145 ; White v. M'Cann, 1 Ir. C. L. 205. 7 Co. Litt. 53 a. B 2 Digitized by Microsoft® LEGAL WASTE. Chap. I. Who may bring the action. curtesie, was given by tlie common law because their estates were created by the law itself. But until the statutes of Marlbridge " and Gloucester," there was no protection against tenants for life or years, because they came in by act of the parties, and the settlor might have provided against the commission of waste by them." It will have been remarked that the action can only be brought by one who has the immediate estate of inheritance, i. e., an immediate rever- sion or remainder in fee or in tail. Thus, " If a lease be made to A. for life or years, remainder to B. for life, and A. commit waste, the action cannot be brought by him in the remainder, or reversion in fee or in tail, so long as the estate of B. continues.'' But if B. should afterwards die or surrender his estate, the reversioner or re- mainderman may bring an action against A. for the waste so done by him, for by the death or surrender of B. the impediment is removed.' So 8 52 H. 3, c. 23. » 6 Edw. 1, c. 5. ' 2 lust. 301. 2 Co. Litt. 54 a; Udal v. Udal, Aleyn, 81 ; 2 Eol. Abr. 829 ; £ray v. Tracy, Cro. Jac. 688 ; W. Jones, 51. 3 Moore, 387 ; Pagefs Case, 5 Eep. 76 b ; Bray v. Tracy, Cro. Jac. 688 ; W. Jones, 51. Digitized by Microsoft® LEGAL WASTE. Chap. I. Sect. 1. if a "lease for life be made, remainder for years, the reversioner or remainderman may bring the action notwithstanding the mesne remainder." No person can maintain the action unless he had an estate of inheritance in him at the time of the waste committed, and therefore it does not lie by an heir for waste done in the lifetime of his ancestor,' nor by the grantee of a reversion for waste done before the grant to him." ° But for waste done before a recovery the quondam tenant in tail might have brought waste after the recovery.' The foregoing observations are to be under- Action on the stood in the first instance of the action of waste," but they appear to be also applicable to the action on the case which has been substituted for it." It is presumed in law that the tenant can pre- waste by a stranger. * Co. Litt. 54 a ; 2 Inst. 301 ; 2 Rol. Abr. 829. 5 2 Inst. 305 u ; Bacon v. SmitJi, 1 Q. B. 345 ; 6 P. & D. 651. ^ 2 "Will. Saunders, 252 ; Notes to Greene v. Cole. 7 Oarth V. Cotton, 3 Atk. 751 ; 1 Tes. S. 624, 546 ; 1 Dick. 183 ; 1 W. & T. Lead. Ca. ; Doe v. Scarborough, 3 A. & E. 15, 923. 8 Abolished 3 & 4 WiU. 4, c. 27, s. 26 ; the most recent examples of this action are Harrow School v. Alderton, 2 B. & P. 86 ; Bedfem v. Smith, 1 Bing. 382. " Jefferson v. Jefferson, 3 Lev. 131 ; Bacon v. Smith, 1 Q. B. 345 ; 4 P. & D. 651. Digitized by Microsoft® b LEGAL WASTE. '-'"'^''- -'• vent a stranger from committing waste. In such a case, therefore, the reversioner has an action of waste against the tenant and the tenant has tres- pass over against the wrong-doer.' Moreover, when the waste consists in cutting down and carrying away a tree or the like, the reversioner may have trover for it, the special property of the tenant in the tree ceasing upon severance.'' The reversioner has also an action against the stranger for the injury done to the reversion.^ Teiiratintaii \ tenant in tail after possibility of issue ex- atter poasibility. •*- "^ tinct, cannot bring an action for waste as a remainderman of inheritance, because he is in effect but tenant for life, but he may commit waste when he comes himself into possession.'' Hu=bandof The husbaud of a lessee for life is solely re- lessee. sponsible for acts of waste committed during the coverture.' Copyhoida It is said that an action for waste will lie by a ' 2 Inst. US; see Lady Evelyn's Case, 2 Freom. 55; 2 Swanst. 172. • Berry v. Heard, Cro. Car. 242 ; Anon., 1 Ve&. J. 93 ; see post, Sect. 4. 5 3 Lev. 130; 3 Lev. 209 ; 1 Taunt. 183; see as to injunction, post, "Trespass," Sect. 1. ^ 2 Rol. Abr. 825, 826 ; Co. Litt. 28 a, 53 b ; 2 Inst. 301, and post, p. 9. ' Kinglmm v. Lee, 15 Sim. 396. Digitized by Microsoft® LEGAL WASTE. Chap. I. Sect. 1. cop3'holder in remainder against a copyholder for life, but not by the lord of a manor against bis copyhold tenants." It has been settled (in Ireland), after consider- abf/areTrr"' able doubt, that the holder of a lease for lives, renewable for ever, is not at liberty to commit destructive waste : but it seems that he may com- mit meliorating waste.' There is incident to every estate for life or for without im- *' peacnment of years, the right to take estovers, that is to say, so ^^° "' much wood, stone, &c., as is required for use on the tenement for repairs, husbandry, and such like purposes. But it is a common practice in family settlements to provide that in addition to this privilege the estates of the tenants for lives shall be " without impeachment of waste." The effect of this clause is both to discharge any action for waste,* and also to give the tenant the property in timber, minerals, &c., severed by ^ Scriven, 4th edit. p. 424 — 444. The latter part of the pro- position is probably erroneous, Parrott t. Palmer, 3 M. & K. 639. 7 Coppinger v. GuUins, 3 J. & L. 397 ; 9 Jr. Eq. E. 304 ; Calvert v. Oason, 2 Sch. & Lef. 561 ; Pureell v. Nash, Wliite v. Walsh, Lord Waterparkv. Austin, 1 Jon. 625; Sunty. Browne, Sa. & Sc. 178 ; Prim v. Davies, 1 Hog. 11 ; White v. Nolan, 1 Hog. 21 ; Crowley v. Lord Ely, 2 MoU. 515. " Lewis Bowles' Case, 11 Rep. 82 b ; 1 Eol. Eep. 177 ; Hob. 132. Digitized by Microsoft® LEGAL WASTE. Sect. 1. Term of years without im- peachment of waste. himself or others during the continuance of his estate." It probably makes no difference whether the estate which is made unimpeachable of waste is freehold or a long term of years determinable on the death of the lessee for life.' But where a long term of years unimpeachable of waste is settled on one for life with limitations over, it would seem that the tenant for life is not entitled to waste. Thus/ where a wooded property was demised by way of mortgage for 1000 years without impeachment of waste, and the term subsequently became vested in one for life with limitations over, it was declared that the tenant for life was entitled as between herself and the persons claiming in remainder, to cut down and apply for her own benefit such timber as was fit and proper to be cut in the course of a due and husbandlike management of the woods in question. This is the right of an ordinary lessee for life of a wooded property, impeachable of waste,^ a tenant for life " Co. Litt. 220 a ; Pyne v. Dor, 1 T. E. 55. Tlie authorities are collected in a learned note, 2 Swanst. 145. 1 Garth V. Cotton, 1 W. & T. Lead. Ca. ; 8 Atk. 751 ; 1 Ves. 524, 546 ; 1 Dick. 183. 2 Bridges v. Ste^iliens, 2 Swanst. 150, n. 3 Ferrmid v. Wilson, 4 Hare, 344. Digitized by Microsoft® LEGAL WASTE. f without impeachment of waste being entitled to ^^"- ^' Sect. 1. do more." There seems indeed to be no reason why the tenant for life of such a term should have larger powers to commit waste than would have belonged to her if the subject of settlement had been the fee. It is hardly necessary to observe that a tenant Tenant for ma •^ ^ in remainder. for life in remainder without impeachment of waste cannot authorise waste to be committed before his estate has come into possession.' Tenant in tail after possibility of issue extinct," Traantintaii *^ "^ after possibility. and tenant in fee simple subject to an executory devise over/ are not punishable of waste at law, * Smythe v. SmytJie, 2 Swanst. 251 ; BovyiisMre v. Sandys, 6 Ves. 107. ^ Lewis Bowled Case, 11 Eep. 79 ; Lady Evelyn's Case, 2 Swanst. 172 ; Plemwig t. Bishop of Carlisle (cited in Garth v. Cotton), 1 Dick. 209. See, however, Aspinwall v. Leigh, 2 Vem. 218 ; 1 Eq. Ab. 400 ; Claxton T. Claxton, 2 Vern. 152 ; Bavies v. Davies, 2 Ir. Eq. R. 415. As to whether timber, &c. ■svrongfully severed vests in tenant for life in remainder without impeachment of waste, or in a subsequent remainderman of inheritance, see Gent v. Harrison, J. 517, and post, Sect. 4. 6 Skelton v. Skelton, 2 Swanst. 170 ; Abrahallv. Buhi, 2 Freem. 53 ; 2 Show. 69 ; 2 Eq. Ab. 757 ; 2 Swanst. 172 ; Williams V. Williams, 12 East, 209; 15 Ves. 425; (note Lord Eldon's query) ; and see ante, p. 6. 7 Turner v. Wright, J. 740 ; on appeal, 2 D. F. & J. 284, reviewing BoUnson v. Litton, 3 Atk. 209 ; 6 Cru. Dig. 428, 429 ; Vin. Abr. 475 ; Stansfield v. Hvherglum, 10 Ves. 273 ; Wright Digitized by Microsoft® 10 LEGAL WASTE. Chap. I. S.ect. 1. Jurisdiction iu equity. No action at law. and seem to be in effect in the same position as tenant for life without impeachment of waste. " In restrainingwaste by persons having limited interests in property, the courts of equity have generally proceeded on the ground of the common law rights of the parties, and the difficulty of ob- taining immediate preservation of property from destruction or irreparable injury by the process of the common law; but upon this subject the jurisdiction has been extended to cases in which the remedies provided in those courts could not be made to apply.'" Thus,' as early as the time of Richard II., a remainderman in fee obtained an injunction to stay waste by a tenant for life although the existence of an intermediate life estate formed a temporary impediment to the action at law. Another case in which equity interposes, although no action would lie, is where a person who may be injured by the waste has no remedy at law by reason of the weakness of his estate, as, T. AtTcyiis, 17 Ves. 255 ; 19 Ves. 299 ; 1 Ves. & B. 313 ; T. & E. 143 ; Gr. Coop. Ill ; Lord St. Leonards' Law of Property, 876—388. 8 Mit. PL, 4tli edit. 114. 1 Moore, 554 ; see 2 Inst. 301. Digitized by Microsoft® LEGAL WASTE. IT for example, where there is tenant for life remain- der for life with or without impeachment of waste with remainders over, the court will restrain the first tenant for life on the bill of the remainder- man for life,' even although the remainderman of inheritance may approve of the waste which is being done.' So where there was tenant for life remainder to the first son for life without im- peachment of waste with remainders over, and the first son by leave of the lessee at will of the father came upon the land and felled trees, although in that case no action of waste or trespass lay, he was enjoined at his father's suit.^ Again, an injunction to stay waste has been granted on behalf of an infant en ventre sa mere.'' And in the leading case of Garth v. Cotton,'' Lord Hardwicke held that trustees to 1 Dayrdl v. Cliampness, Eq. Ab. 400 ; 1 Inst. 53 ; Cary, 27—36 ; EosiccU's Case, 1 Roll. Ab. 377 ; Tmaj v. Tracy, 1 Tern. 23 ; Perrot v. Pcrrot, 3 Atk. 95. 2 Dayrell v. Chainpness (cited Garth t. Cotton), 1 Dick. 197, 198 ; see Mohjacux \. Powell, 3 P. W. 268, n. ; Eden on Injunc- tions, 163. 3 Lady Evehjiis Case, 2 Freem. 55 ; 2 Swanst. 272 ; see ante, p. 5 ; Anon-., 1 Ves. J. 93. ■4 LuttrclTs Case, cited Sale v. ffale, Free. Ch. 60 ; 2 Vern. 710 ; 2 Atk. 117 ; Robinson v. Litton, 3 Atk. 209. 5 1 Ves. 52i, 546 ; 1 Dick. 183 ; 3 Atk. 751 ; 1 "W. c& T. Lead. Ca. Chap I. Digitized by Microsoft® 13 LEGAL WASTE. "°^''- ^- preserve contingent remainders might have an injunction against a tenant for life and a remote remainderman colluding to commit waste whilst the mesne remainders were in expectancy. inrant tenant Of course no action lies by a remainderman in tail m possea- •' against a tenant in taU in possession committing waste ; and it has been decided that where the tenant in tail is an infant, the guardian may com* mit waste, although by changing the nature of the property from realty to personalty it may, in the event of the infant's death under twenty-one, benefit the next of kin at the remainderman's expense. This was held in Saville v. Saville," where the guardian was proceeding to cut down a great quantity of timber whilst the infant was in very bad health, so that he died shortly afterwards. It was said that if such an application had been made on behalf of the infant himself the result might have been different.' And to the same effect Lord Hardwicke in a subsequent case ° laid it down, — " An infant tenant in tail has the same right as one of full age as regards the remainder- « Ca. temp. Talbot, 16 ; 1 Yes. S. 548 ; Amb. 371 ; and see 2 Ves. S. 362, and post, Sect. 4. ' HViSsey v. Hussey, 5 Madd. 44. ^ Lyddal v. Clavering, Amb. 371. Digitized by Microsoft® LEGAL WASTE. 13 man, though indeed the guardian is solely ""^^^ ^- accountable for his management to the infant at the full age, or to any one who stands in his place." A feme tenant in tail in possession and her Fomeooverta tenant in tail. hushand contracted to sell standing timber. The feme died and the husband who was now become tenant by the curtesie was restrained from cutting the timber on the bill of the infant heir in tail.' "Where a legal estate is vested in trustees upon Legal estate in trusteea. trust for a tenant for life with remainders over, and the tenant for life is actively committing waste, the trustees have a right to interfere, and it is their duty to do so if persons unborn are interested.' But they have no such right or duty in respect of permissive waste, and are, therefore, not subject to any liability by reason of the tenant for life allowing the premises to get out of repair.^ In Campbell v. AllgoodJ' it was said that trustees ^^ent^°""^ timber. ' Roberts v. Roberts, Hard. 96. 1 Pugh V. Vaiujhan, 12 Boav. 517 ; Powys v. Blagram, Kay, 495 ; 4 D. M. G. 448 ; see Denton v. Denton, 1 Beav. 388. 2 Powys V. Blagrmie, ut sap. ; see Cooke v. Cfholmondeley, 4 Jur. 'E. S, 827 ; Warren v. UvdaM, ex parte Oodfrey, 29 L. J. Ch. 543 ; IJ. & H. 1. 3 17 Beav. 623. Digitized by Microsoft® 1-4 LEGAL WASTE. fciect. 1. Copyholds Tenant iu commou. who cut down ornamental trees without the con- sent of the parties interested, or the authority of the Court, were bound to show that it was abso- lutely necessary for the well-being, salubrity, and comfort of the residence that the trees should be so cut. An injunction for waste will lie by a copy- holder against his lessee," by a copyholder in remainder against a copyholder for life," and, according to the later authorities, by a lord of a manor against his copyhold tenants," or their undertenants,' and an interlocutory injunction has been granted, although the answer denied that the lands were cop3'hold.° The Statute of Westminster the second gave one tenant in common, or joint tenant, an action against another for acts which would be waste in a tenant for years or tenant for life.' It seems ■* Dalton V. Gill and Finder, Cary, 89, 90. 5 Cornish v. Nexo, Finch, 220 ; Caldwell v. Baylis, 2 Mer. 408 ; Scriven, 4tli edit. p. 426. * Attorney-General v. Vincent, Bunb. 192; Denchv. Banvpton, i Ves. 700 ; Richards v. NoMe, 3 Mer. 673 ; Pairott v. Pahner, 3 My. & K. 639; Mit. PL, 4th edit. 139; s&fiArvdrewsY. Hulse, 4 K. & J. 392. 7 Cuddon V. Morley, 7 Hare, 202. 8 Commissioners of Greenwich Hospital v. Blackett, 12 Jur. 151. s 2 Inst. 403. Digitized by Microsoft® LEGAL WASTE. that a parson might restrain waste by one who was tenant in common with him,' but formerly such injunctions were in general refused on the ground that the party aggrieved ought to apply for a partition.^ An injunction will now, how- ever, be granted where the wrong-doer is insol- vent,^ or occupying tenant to the other/ or where the waste is of a very aggravated character, amounting to destruction/ Sect. 2.— EQUITABLE WASTE. A VEET remarkable instance of the interference of a court of equity to stay waste, where no action would lie, is where a tenant for life, with- out impeachment of waste, is restrained from exercising his legal power. If such a tenant is committing acts of a character especially destruc- tive to the inheritance, or still more, acts of 1 2 Inst. 403 ; LiforcPs Case, 11 Eep. 46. ' Goodwyn v. Spray, 2 Dick. 667. 3 Smallmmi t. Onions, 3 Bro. C. C. 620 ■1 Twort V. Twort, 16 Ves. 128 ; see Moore, 71, pi. 194. 5 HoUy. Thomas, 7 Ves. 589; Durham Co. v. Wawn, 3 Beav. 119 ; 2 Eailw. Ca. 395 ; and see Jeffrey v. Smith, 1 J. & "W. 298 ; Frazer v. Kershaw, 2 K. & J". 496. 15 Chap. I. Sect. 1. Tenant for life withuut ini- peachment of waste. Digitized by Microsoft© Soot. 2. 16 EQUITABLE WASTE. ^'"'''- '■ wanton or malicious mischief, the Court holds that his legal power to commit waste is being used unconscientiously, and has assumed juris- diction to restrain him.' The aggravated acts of waste which fall within this principle are termed Equitable waste. The most important of them are, (1) Pulling down the mansion-house,' or other houses or buildings on the estate ; ° (3) Felling ornamental or very young trees," or destroying underwood.' It has been said that the jurisdiction is to be considered as founded on a breach of trust reposed in the tenant for life, that he will use his legal estate only for the purpose of fair enjoy- ment.° But this mode of expressing the doctrine has met with disapproval.'' ^ Mit. PI. , 4th edit. p. 140 ; MickUthwaite v. MicJclethwaite, 1 D. & J. 524. ? Vane v. Barnard, 2 Vern. 738 ; Free. Ch. 454 ; Gilb. Eq. Eep. 127 ; 1 Eq. Ab. 399 ; 1 Salt. 161. 8 Aston V. Aston, 1 Yes. S. 265 ; Bolt v. Somerville, 2 Eq. Ab. 759. ' Chamierlayne v. Dumnur, 1 Bro. C. 0. 166 ; 3 Bro. C. C. 648. 1 Aston V. Aston, 1 Ves. 265 ; Brydges v. Stephens, 6 Madd. 279. 2 Ormonde v. Kynersley, 5 Madd. 369. 3 KingJiam v. Lee, 15 Sim. 399 ; Powys v. Blagrave, Kay, 501 ; 4 D. M. G. 448. It seems to have escaped notice that Digitized by Microsoft® EQUITABLE WASTE. 17 Chap. I. Tenant in tail after possibilitj'- of issue extinct/ Sect. 2. tenant in fee with an executory devise over,' and other pe^ona within the an heir taking by resulting trust until the hap- ^ame piin- pening of a contingency," are within the principle of equitable waste; but a tenant in tail restrained by statute from barring his issue and those in remainder is not/ Sect. 3.— GENERAL MATTERS RELATING TO gect. s. "WASTE. When the legal owner of the things severed ccount. comes into equity to stay future waste, he may at the same time have an account of past waste, in order to prevent multiplicity of suits ; ' but Ormonde v. Eynersley, was ultimately reversed, 7 L. J. Cli. 150 ; 8 L. J. Ch. 67, and post, p. 46. ^ Ahrahall v. Bulb, 2 Freem. 53 ; 2 Eq. Ab. 757 ; 2 Show. 69 ; 2 Swanst. 172 ; GartliY. Cotton, 1 W. & T. Lead. Ca. ; Cook V. WJiMlley, 1 Eq. Ab. 400 ; Williams v. Dmj, 2 Ch. Ca. 32 ; Free. Ch. 454. = Turner t. Wright, J. 740 ; on appeal, 2 D. F. & J. 234. ^ Stansfield v. RabercjTiam, 10 Yes. 278. ' Attoriuy-General v. JDuke of Marlborough, 3 Mad. 498 ; Davis V. Duke of Marlborough, 2 Swanst. 108. s Whitfield r. Bewit, 2 P. "W. 240 ; Jesus College v. Bloom, 1 Amb. 54 ; 3 Atk. 262 ; Lee v. Alston, 1 Bro. C. C. 194 ; 3 Bro. C. C. 37 ; 1 Ves. J. 78 ; Parrot v. Paliner, 3 M. & K. 632 ; Richards y. Noble, 3 Mer. 673. Digitized by Microsoft® 18 GENERAL MATTERS Sect. 3. Remainderman life. where, from the determination of the estate of the wrong-doer, or some other such reason, there is nothing on which the injunction could operate, and complete relief may be obtained in an action at law, as a general rule a biU for an account will not lie.' Mines are an exception to this rule, because they are a species of trade.' A person, however, suing in respect of the equit- able property only in the things severed, may have an account wholly irrespective of an in- junction.'' A mesne remainderman for life, although en- titled to an injunction to protect his enjoyment, has no interest to call for an account.^ In an action of trover, damages are recovered s Jesus College v. Bloom, 1 Amb. 54 ; 3 Atk. 262 ; S7mth t. Cooke, 3 Atk. 381 ; Parrot v. Palmer, 3 M. & K. 6i2 ; Pulteney V. Warren, 6 Ves. 89 ; Grierson v. Eyre, 9 Ves. SiS ; Qent v. Harrison, J. 521 ; see Fishmongers' Co. v. Beresford, Beat. 613 ; Lee v. Alston, ut sup. 1 Bishop of Winchester v. Knight, 1 P. "W. 406 ; 2 Eq. Ab. 226, pi. 7 ; Jesus College v. Bloom, 1 Amb. 54 ; 3 Atk. 262 ; Story V. Windsor, 2 Atk. 630 ; Jeffery v. Smith, 1 J. & "W. 298 ; see Thomas v. Oakley, 18 Ves. 184. 2 Garth Y. Cotton, 3 Atk. 751 ; 1 Ves. S. 524, 546 ; 1 Dick. 183 ; 1 "W. & T. Lead. Ca. ; Lansdowne v. Lansdoinie, 1 Mad. 116 ; Duke of Leeds v. Earl Amherst, 2 Phil. 117 ; 16 Sim. 431 ; Morris v. Morris, 3 D. & J. 323, and many other cases. 2 Pigott V. Bullock, 3 Bro. C. C. 638 ; 1 Ves. J. 479. Digitized by Microsoft® RELATING TO WASTE. 19 Chap, I. Seot. 3. for the waste done ; but in a suit in equity, the account taken is of the produce only." If a tenant for life has within six years ren- statute of Limi- tations. dered accounts to the remainderman of timber, &c., severed during a period ending more than six years before a bill is filed for an account of such timber, &c., and the value of it, the Statute of Limitations cannot be pleaded to the bill.' A bill will in general lie against an executor for an account of waste committed by his tes- tator f but where the waste had been committed Delay. during forty-three years preceding the tenant's decease, and the bill was not filed until six years after, the account was refused on the ground of delay as to all the waste in his lifetime, but granted with an injunction as to waste by the executors.' It is not necessary to wait before applying for when applica- tion for an In- < Lee V. Alstrni, 1 Bro. C. C. 194 ; 3 Bro. C. C. 37 ; 1 Ves. J. 78 ; Morris v. Morris, 3 D. & J. 323 ; see Brown v. Lady Bridges, Toth. 114; Powell v. Aiken, 4 K. & J. 351; 21 & 22 Vict. G. 27, sect. 2. 5 Hony V. Sony, 1 S. & S. 568. ^ Bishop of Winchester v. Knight,.! P. "W. 407; Lansdowne V. Lansdowne, 1 Mad. 116 ; Thomas v. Oakley, 18 Ves. 186 ; see Hambly v. Trott, Cowp. 376 ; 3 & 4 Will. 4, c. 42, § 2. 7 Fishmonger^ Co. v. Beresford, Beat. 613 ; Earcourt v. White, 6 Jur. N. S. 1087. 2 Digitized by Microsoft® 30 GENEBAL MATTEES Chap. I. an injunction until a serious act of waste has been Sect 3 junction should Committed ; it is sufficient if waste is done only be made. , .,..,_ . « . . ., in a slight degree, manifesting an intent to do more, or if it is merely threatened ; ' and delay is not so prejudicial to the plaintiff in cases of waste, as in other applications for injunctions.' Hearsay evidence is admitted on an interlo- cutory application.' Parties. ijj^g remainderman of an undivided share of the inheritance may have an injunction and an . account.'' Where a tenant for life made a lease of coal- mines of such a character as to amount to a forfeiture of his estate, it was held that he could not join with the remainderman in a bill to restrain the lessee from working them.' A- bill by a remainderman in tail of two estates, who was also a remainderman for life of a third estate, and the remainderman in tail of this estate joined as co-plaintiff against the tenant for 8 Barn. Cha. 497 ; 2 Atk. 183 ; 3 Atk. 216, 485 ; Coffin v. Coffin, Jac. 71 ; Barry v. Barry, IJ. & "W. 651. ^ Attorney-General v. Eastlake, 11 Hare, 228. 1 Beere v. Head, 7 Ir. Ec[. 60. ' Co. Litt. 53 b ; Whitfield v. BewU, 2 P. W. 241. ■• Wentworth v. Turner, 3 Ves. 3. Digitized by Microsoft® RELATING TO WASTE. 21 life, without impeachment of waste of the three cbap. i. estates, which formed one tract of lands, to ^°*"^' restrain cutting ornamental tindher, and for an account according to the respective titles, was held not to be multifarious." Where there is a case for an injunction to stay waste, and the injunction will operate for the benefit of parties not before the Court, notwith- standing a demurrer grounded on the absence of these parties, the Court will interpose.' Lord Hardwicke laid down the rule, that the forfeiture for waste and all penalties ought to be waived in a biU for restraining waste.' An injunction and an account will lie for meliorating waste,' but not in general for per- missive waste.' * KingsUm v. Kingston, 2 Moll. 412. = Crnist Y. Harris, T. & E. 514. " 1 Atk. 450 ; Mit. PL, 4th edit. p. 139. ' Brydges v. Kilbum, 5 Yes. 689; Barry y. Barry, 1 J. feW. 651 ; Duke of Leeds v. Earl Amherst, 2 PMl. 117 ; Smyth t. Carter, 18 Bear. 78 ; Morris v. Morris, 3 D. & J. 323 ; Cop- pinger v. Ouhhins, 3 J. & L. 397 ; 9 Ir. Eq. 304 ; Molineux t. Powell, 3 P. W. 268 n. ; Doran v. Carroll, 11 Ir. C. L. 379 ; Simmons v. Norton, 7 Bing. 648. 8 See post, Sect. 6, Waste in BuUdings. Digitized by Microsoft® 22 WASTE IN TIMBER AND OTHER Sect. 4.— WASTE IK TIMBER AND OTHER TREES AND UNDERWOOD. What is timber. Oak, ash, and clm are timber in all places, and other trees by the custom of particular counties ;' thus,' birch trees are considered to be timber in Yorkshire and Cumberland ; beech, cherry, and aspen in Buckinghamshire ; beech also in Gloucestershire and Bedfordshire ; beech and ■willows in Hants. In some places whitethorn, holly, blackthorn, horse-chesnut, lime, yew, walnut, crab, and hornbeam; in other districts pollards, or other timber trees which have been lopped, are, contrary to general estimation, also considered timber. It appears that a tree, to be considered timber for the purpose of exemption from tithe, must have attained the age of twenty years, whatever its solid contents or other quali- fications may be." 9 Co. Litt. 53 a. ' Cru. Dig., 4tli edit. tit. III. chap. II. sec. 7 ; Barrett v. Barrett, Het. 36 ; Bulleii v. Denning, 5 B. & C. 842 ; Duke of Chandos v. Talbot, 2 P. W. 606 ; see Gmrdmi v. Woodford, 6 Jur. N. S. 59. 2 2 Inst. 643 ; Aubrey v. Fisher, 10 East, 446 ; see Chamber- layne v. Dummer, 3 Bro. 0. C. 549 ; Smythe v. Smythe, 2 Swanst. 252. Digitized by Microsoft® TREES AND UNDERWOOD. 23 The general property " of timber trees is in the '^"^''- ^- lessor, who has the inheritance of the land, but Property in the lessee for life or years has a special interest *=<:. and property in the fruit and shade ' so long as they are annexed, so that if a man cut down timber trees, the lessee shall have trespass. Moreover, the lessee has a general property in hedges, bushes, trees, &c., which are not timber," and he may cut or lop them for his own benefit in a reasonable manner, but not so as to prevent the future growth. ° Even if the lease be of lands, trees, &c., expressly mentioning the trees, this does not give the lessee a right to fell them.' A copyholder being considered to be a tenant copyholder. at will, has in general the same possessory interest in the trees as a lessee of freeholds, the property being in the lord. But by custom ' Com. Dig. 'Biens' (H) ; 11 Eep. 48 ; BerringY. Dean and Chapter of St. Paul's, 3 Swaust. 492 ; Berriman v. Peacock, 9 Bing. 384 ; Alexander v. Godley, 6 Ir. C. L. 458. * 4 Eep. 62 b ; Dy. 90 ; 1 Eol. 181. 5 4 Rep. 62 ; 1 Eol. 181. 6 2 Eol. Abr. 815; Co. Litt. 53 a; Hob. 219; PidgeleyY. Bawling, 2 Coll. 275. ^ Serring v. Dean and Chapter of St. PauVs, 3 Swanst. 612 ; citing Liford^s Case, 11 Eep. 46 b ; Dy. 374, pi. 18 ; Shep- herd's Touch. 95. Digitized by Microsoft® 24 WASTE IN TIMBER AND OTHER Ch4p. I, Sect. 4. The leasee a nurseryman. Waste in trees, the proprietary rigM may be attached to a copyhold of inheritance, or to a copyhold for life, with power to renew or nominate a suc- cessor." A nurseryman who plants fruit or other trees for the purpose of his trade, may remove them during, or at the expiration of the term of his lease, provided they have not become of larger growth than could be dealt with by him in the ordinary way of his trade.' " The' destruction of germens or young plants destined to become trees,' which destroys the future timber, is waste ; the cutting of apple- trees in a garden or orchard, or the cutting down a hedge of thorns,' which changes the nature of the thing demised, or the eradicating or unseasonable cutting of whitethorns," which de- stroys the future growth, are all acts of waste. On the other hand, those acts are not waste which are not prejudicial to the inheritance,' as " Scriven, 4th edit. p. 419 ; Jefferson v. Jefferson, 3 Lev. 131. « Warden v. UsJier, 3 Sc. N". R. 508. 1 Phillips V. Smith, 14 M. & W. 589. 2 Go. Litt. 43. 3 Co. Litt. 53 a. ' Vin. Abr. ' "Waste ' (E). ^ Barret v. Barret, Het. 36. Digitized by Microsoft® TREES AND UNDEEWOOD^ 25 the cutting of sallows, maples, beeclies, and thorns, alleged to be of the age of thirty-three years, hut not timber either by general law or particular local custom. So likewise the cutting even of oaks or ashes where they are of seasonable wood, i. e., where they are cut usually as underwood, and in due course are to grow up again from the stumps, is not waste. Now, if we apply the principles to be extracted from all these authorities to the present case, we have no difficulty in saying that the cutting of these willows does not amount to waste. They are not timber-trees, and when cut down they are not, so far as appears by the evidence, destroyed, but grow up again from their stumps, and pro- duce again their ordinary and usual profit from such growth; therefore, neither is the thing demised destroyed, nor is the thing demised changed as to the inheritance, for profit remains as before, derivable from the reproduction of the wood from the stumps of the willows cut down. Nor are the trees in such a situation as to make the cutting of them waste, by what is called collateral respect, as where trees not timber are situated so as to become useful for the protection Chap. I. Sect. 4. Digitized by Microsoft® 26 WASTE IN TIMBEE AND OTHER Chap. I. Sect. 4. of a house," and so become as it were a part of the house, as in Hob. 219, willows growing within the site of a house. Nor are they willows within view of the manor house, which defend it from the wind, or in a bank to sustain a bank (12 H, 81), or like whitethorns used for the like purposes, or where they stand in a field depas- tured, and are used for the shade of the beasts depasturing, and so are intended permanently to remain in that particular form, for the advantage of those to whom the inheritance may thereafter come." A tenant may take sufficient wood to repair the walls, pales, fences, hedges, and ditches as he found them, and he may also take for agri- cultural and household purposes what is known as plowbote, firebote, and housebote.' Such cuttings are commonly called estovers, and are justifiable, or not, according to the application made of them, and to whether they are or are not of utility to the estate on which they are cut. Thus, estovers cut on one estate, cannot be applied to the repairs on another ; ° and a tenant « Co. Litt. 53. : Co. Litt. 63 b. 8 Lee V. Alston, 1 Bro. C. C. 167 ; 3 Bro. C. C. 37 ; 1 Ves. J. 78 ; Nash v. Earl of Derby, 2 Vern. 537. Digitized by Microsoft® TREES AND UNDEEWOOD. 37 may not sell wood to form a fund for defraying '^°'^^^ ^- Sect. i. the expense of past or contemplated repairs, or exchange it for other wood more fit ; even if he huys the same wood back again, it is waste.' In Cole T. Peyson,' a tenant for life was re- strained from cutting good timber trees for fuel ; it appears, however, that a lessee may cut timber for the repair of the house,'' and under some circumstances when it impedes the growth of underwood.^ A copyholder is entitled to estovers by custom, and possibly without." When timber is severed accidentally,' as by f™Pe^j|2ber tempest, or is wrongfully cut down by a person having a limited interest, or by a mere tres- passer, it belongs to him who has the first estate of inheritance, and he may bring trover » Co. Litt. 53 b ; Simmons v. Morton, 7 Bing. 640 ; Whitfield V. Bewit, 2 P. v. 241 ; post, Sect. 9 ; Eden on Injunctions, p. 147 ; Cm. Dig. 'Estate for Life.' ' Ch. Rep. 106. ' Eden on Injunctions, p. 146. 3 Knight v. Duplessis, 2 Ves. S. 360, 556 ; 16 Ves. 179. * Scriven, ' Copyholds,' 4th edit. p. 419. * Ihihe of Newcastle v. Vane, 2 P. W. 241 ; Oa/rth v. Cotton, 1 "W. & T. Lead. Ca. ; 1 Ves. 524, 546 ; 3 Atk. 751 ; 1 Dick. 183 ; Lee v. Alston, 1 Bro. C. C. 196 ; Beiuiek v. Whitfield, 3 P. "W, 268 ; see iMshington v. Boldero, 15 Beav. 7. Digitized by Microsoft® 28 WASTE IN TIMBEB AND OTHER ^^''^- ^- for it, or recover the sum for which it has been Sect. 4. , , ft sold.' In Gent v. Harrison,' a vested estate for life without impeachment of waste was interposed between the estate in possession, which was impeachable of waste, and the first estate of inheritance. The tenant in possession having wrongfully cut timber, it was contended that the property vested in the owner of the estate for life in remainder without impeachment of waste, and not in the owner of the inheritance. Wood, V.C, inclined strongly to the contrary opinion, but the point did not call for decision. And to the same eifect seems Piggot v. Bullock,^ where underwood which was cut for sale by a tenant for life, who was under an express restriction from so cutting, was held to vest in the owner of the in- heritance and not in a subsequent tenant for life. ^ 4 Eep. 62 a ; 5 Rep. 76 b ; 11 Eep. 46 ; Zems Bowles' Case, 11 Eep. 79 ; 1 Rol. 177 ; 3 Lev. 209 ; Berry v. ffeard, Cro. Car. 242 ; W. Jones, 255 ; Udal v. Udal, M. 81 ; Wliitfield v. Bewit, 2 P. "W. 240 ; Williams v. Duke of Bolton, 3 P. W. 268 ; Powlett v. Duchess of Bolton, 3 Ves. 374 ; Dare v. MopMiis, 2 Cox, 110 ; Gent v. Harrison, J. 524. ' J. 517 ; see 1 Ves. J. 484; and as to timber rigMfally cut, Waldo T. Waldo, 12 Sim. 107 ; Phillips t. Barloio, 14 Sim. 263. « 1 Ves. J. 479. Digitized by Microsoft® TREES AND UNDERWOOD. Sf> When timber trees on copyhold land are sepa- Chap. I. rated from the soil by whatever act or casualty, copyhoids. in the absence of special custom, the tenant's possessory right ends, and the lord may take them. But as to pollards, dotards, bushes, &c., the law is otherwise ; and if thrown down, they belong to the tenant." In the common case of a family settlement, not"iiowedto" where there is a tenant for hfe with remainder to own wioDg. ^ his children successively in taU with remainders over, the owner of the first estate of inheritance, before any children are born, may be a remote relation who has little chance of ever succeediag to the estate. Although equity will not prevent such a remainderman from enjoying the benefit of the rule of law where he has not been a party to the waste, he will not be permitted to join with the tenant in possession in committing waste for their common benefit. This was de- cided in Garth v. Cotton.'' There Mr. Garth, the plaintiffs father, was tenant for 99 years, if he should so long live, impeachable of voluntary 9 Com. Dig. 'Biens' (H); Scriven, 4th. edit. p. 422, n. (j), and authorities there cited, which see also as to trees not timber. > 3 Atk. 751.; 1 Ves. 524, 546 ; 1 Dick. 183 ; 1 W. & T. Lead. Ca. Digitized by Microsoft® 3a Chap, I. Sect. 4. WASTE IN TUJBEE AND OTHER _ waste/ with remainder to trustees to preserve contingent remainders, with remainder to his first and every other son in tail, with the remainder to the defendant in fee. Before Mr. Garth had any children he entered into an agreement with the defendant to cut down timber and divide the profits between them. Afterwards he had a son born, who, after his father's death, succeeded in compelling the defendant to refund his share of the timber money. In Williams v. Duke of Bolton' the tenant for life doing waste had himself the next estate of inheritance. The facts were that the Duke was tenant for life with contingent remainders to his, first .and other sons in tail, with remamderto Mrs. Orde for life, with remainder to her first and other sons in tail, with remainders over, with remainder to the Duke in fee. There were trus- tees to preserve all the contingent remainders. The Duke cut timber whilst the contingent estates were in expectancy. Lord Thurlow was of opinion that although the Duke had a vested remainder, yet as it was not competent for him to ^ Vincent v. Spicer, 22 Beav, 380. 3 1 Cox, 72 ; 3 P. "W. 268. Digitized by Microsoft® TREES AND UNDERWOOD. 31 cut down the timber in respect of his life estate, he '^'"''- '• — Sect. 4. could not take advantage in respect of his estate in remainder of his own wrong, and he was or- dered to pay the value into court. In a subse- quent suit* after the Duke's death, the money was directed to be laid out in land to be settled to the uses of the estate on which the timber was cut. So also a tenant for life without impeachment Tenant for lifo without im- of waste wiU not be permitted to derive an undue peactment ^ not permitted T , /. , T . « , , to derive ad- advantage irom the exercise oi a power or trust vantage from sales or ex- for sale, or exchange of the settled estates. Thus "^"sea. in Lady Plymouth v. Archer,' land was devised upon trust for sale, the produce to be invested in other lands, which when purchased were to be to the use of Lord Archer for life without impeach- ment of waste, with remainders over : and there was a declaration that the rents and profits of the lands until sold were to be to the use of the same persons who would be entitled to the lands to be purchased. Lord Archer was not allowed to cut timber upon the estate to be sold, * Po-wlett V. Duchess of Bolton, 3 Tes. 374 ; see Dare t. Hop- kins, 2 Cox, 110. ♦ * 1 Bro. C. C. 159 ; WolfY. Hill, 2 Swanst. 149. Digitized by Microsoft® 32 WASTE IN TIMBEB AND OTHEE Chap. I. Sect. 4. because, as he would have a right to cut timber upon the estate to be bought, that would be to give him double waste. In a case " before Lord Eldon, trustees for the purchase of real estate were made successively tenants for life without impeachment of waste of the estate to be pur- chased. His lordship said, " If the timber bear a very considerable proportion to the value of the whole purchase, the tenant for life, especially as he is one of the trustees, cannot possibly be permitted to take it. The Court may be driven to take this course ; that trustees laying out the fund in a timbered estate without applying that reasonable and discreet attention, that in a fair view ought to be applied to the interests of all parties, should be considered in a court of equity as not buying any timber for their own benefit.'' And where trustees are selling under a power of sale, a tenant for life without impeachment of waste is not entitled to the price of the timber. ' Equitable waste The principle upon which a tenant for life in trees, &c. without impeachment of waste is restrained from ^ Burges v. Lamb, 16 Ves. 174. ' Wolfv. Sill, 2Swanst. 149 ?i. ; DoranY.Wiltshire, 3 Swanst. 689 ; dwlmeley y. Paxton, 3 Bing. 207 ; 5 Bing. 48 ; 3 Euss. 565 ; 2 Moore & Payne, 127 ; 10 B. & C. 664 ; nom. Cocherell Digitized by Microsoft® TREES AND UNDEBWOOD. 33 cutting ornamental timber . is thus stated ' by ch^''- i- Turner, L. J. : " If a devisor or settlor occupies a mansion house with trees" planted or left standing for ornament around or about it, or keeps such a mansion house in a state for occu- pation, and devises it or settles it so as to go in a course of succession, he may reasonably be pre- sumed to anticipate that those who are to succeed him will occupy the mansion house ; and it cannot be presumed that he meant it to be denuded of that ornament which he has himself enjoyed." ' And it appears that if an owner in fee settles Settlor tenant ■^•^ for life. the estate on himself for life with remainders over, he will not be allowed any larger privileges V. Uholmeley, 1 Euss. & Myl. 418 ; 1 CI. & F. 60 ; Sug. H.L. C: 491 ; Lord St. Leonards' Powers, 8th edit. p. 864 ; see 22 & 23 Vict. o. 35, s. 13. * MickUthwaite v. Micklethwaite, 1 D. & J. 524 ; see Marker V. Marker, 9 Hare, 1. ' The distinction between timber and otter ti'ees does not seem to be material ; see Common Order, Seton on Decrees. ' In addition to the cases on this snbject elsewhere referred to, the reader may consult Abrahall v. Buhh, Freem. Rep. 53 ; 2 Swanst. 172 ; 2 Eq. Ab. 757 ; Bishop of Winchester's Case and Lady Mlevyn's Case, 2 Eq. Ab. 757; A7ion., Freem. Eep. 278; 2 Eq. Ab. 758 ; Rolt v. Somerville, 2 Eq. Ab. 759 ; Kaye v. Banks, Dick. 431 ; Leighton v. Leighton, 1 Bro. C. C. 168 ; O'Brien v. O'Brien, Amb. 107 ; Chamberlayne v. Xhimvnwr, 1 Bro. C. C. 166; 3 Bro. C. C. 549; Williams v. M'Nwnum-a, 8 Ves. 70 ; Lawley v. Lawley, Jac. 71 n. ; Lamsdovme. v. Lams- dovme, 1 Mad. 116. n Digitized by Microsoft® 34 Chap. I. Sect. 4. Trees must be counected witli mansion house. WASTE IN TIMBEK AND OTHER than he would have had if the settlor had been a stranger,^ and consequently he will not be per- mitted to cut timber planted by himself for or- nament before the date of the settlement.' Trees to be protected under this principle must be connected with a mansion house ;■* they need not, however, be in immediate proximity to it ' if they form part of any avenue or vista ; and in a case' which has perhaps gone farther than any other. Lord Eldon protected cl umps and _rows_of_ firs which were plan ted _for__orna ment on a common, at a distance of at least two miles from the house, and separated from it by the land of other owners, the reason appearing to be that they were connected with a drive. A tenant for life, however, cannot entitle himself to cut orna- mental timber by puUing down the house wrong- ^ ViTicent V. Spicer, 22 Beav. 380 ; Vane v. Barnard, 2 Vern. 738 ; Prec. Gh. 454 ; Barnj v. Barry, IJ. & W. 652. ^ The author so understands the dictum in Coffin v. Coffin, Jao. 71 ; but this and a similar dictum of Lord Erskine in V. Coplay, 1 Mad. Ch. Pr. 200 ; 3 Mad. Eep. 525 ; may possibly be referred to ti-ees planted by a tenant for life after the settlement ; see, however, Ficrs v. Piers, 1 Ves. S. 521. ^ MicTclethwaite v. MicMethwaite, 1 D. & J. 504. ' Strathmore v. Bowes, 2 Bro. G. C. 88 ; Packington's Case, 3 Atk. 215; Charlton's Case, there cited. " Downshire v. Sandys, 6 Ves. 110 ; see Wombwell v. Bella- syse, 6 Ves. 110 b ; Burges v. Lamb, 16 Ves. 174. Digitized by Microsoft® TREES AND UNDERWOOD. 35 Sect. 4. fully, or by taking it down rightfully, if the settlement contemplates that it should be rebuilt, or that the grounds should be let on building leases/ But where a house which had formerly been a principal mansion house, but had gone to decay, was restored by the tenant for life, this was held not to give protection, as against him, to the timber about it.' A ride cut through a wood will not protect more a ride through ° ■*- a wood. than is necessary for the purposes of the ride." Trees are treated as ornamental if they have what trees are — __ . orninneiital. been planted or left standing for orname ntby the settlor, but not otherwise ; so that a subsequent owner will not be allowed to fell such trees, how- ever distasteful their appearance may be to him, and on the other hand, trees ornamental in fact wiU not be pr otected unless the settlor dedicated them to the purpose of ornament.' But, " If a ' Wellesley v. WellesUy, 6 Sim. 497 ; Morris v. Morris, 15 Sim. 505 ; 11 Jvir. 196 ; 3 D. & J. 323 ; MicUsthwaite y. MicMethwaite, 1 D. & J. 529. s NewdigaU v. NewdLigate, 8 Bli. N S. 734 ; 1 Sim. 131 ; 2 CI. &r. 601. ' Wonibwell v. Bellasyse, 6 Ves. 110 a ; Surges v. Lamh, 16 Ves. 183 ; HalliwellY. Phillips, 6"W. E. 408 ; 4 Jur. N". S. 607. ' Z>ownshirs v. Sandys, 6 Yes. 110 ; Wombwell v. Bellasyse, 6 Ves. 110 a ; Mahon t. Stanhope, 3 Mad. 523 n. ; Coffin v. Coffin, Jac. 70 ; Marker v. Marker, 9 Hare, 17. D 2 Digitized by Microsoft® 36 WASTE IN TIMBEE AND OTHER Chap. I. Sect. 4. Preserving for ornament. tempest has produced gaps in a piece of orna- mental planting, by which unequal and discordant breaks and divisions are occasioned, it would be going too far to hold that cutting a few trees to produce an uniform and consistent, instead of an unpleasant a,nd disjointed effect, should be consi- dered waste." ^ And although the Court will in general abstain from exercising a judgment upon matters of taste, yet where' a deed of settlement provided that enough of the most ornamental timber should always remain to leave the beauty of the place unimpaired,* Turner, V.C., held that an inquiry might be had whether certain trees could be cut without impairing the beauty of the place as it stood at the date of the settlement. It has been justly said,^ that the fact of plant- ing for ornament is capable of being easily ascer- 2 Mahon v. Stanhope, 3 Mad. 523 n. ; lAishington v. Soldero, 6 Mad. 149; v. CopUy, 3 Mad. 525 ; 1 Mad. Ch. Pr. 200. 3 Marker v. Marker, 9 Hare, 1 ; see Mann v. Stephens, 15 Sim. 379 ; Tulk v. Moxhay, 11 Beav. 571 ; 2 Phil. 774 ; 1 H. & T. 105. '' See, as to other special clauses, Clmmlerlayne v. Bummer, 1 Bro. C. C. 166 ; 3 Bro. C. C. 548 ; Garth t. Cotton, 1 "W". & T. Lead. Ca. ; Newdigate v. Newdigate, 1 Sim. 131 ; Vince-nt v. Spicer, 22 Beav. 380. ' iMshmgtonv. Boldero, 6 Mad. 149; seeffaUiwell v. Phillips, 6 W. E. 408 ; 4 Jiir. N. S. 607. Digitized by Microsoft® TREES AND UNDERWOOD. 37 tained, but the fact of preserving for ornament — chap^l — ■^ Sect. 4. is less obvious, and is to be collected from the conduct of the settlor. The leaving trees standing beyond the usual and provident period of cutting, the cleaning out of trees, and sur- rounding them with pleasure walks and seats, and other circumstances from which an in- ference arises that the settlor regarded the trees with other views than as mere subjects of profit, are to be considered as prima facie evi- dence, that trees were left standing for ornament, and more especially when actually connected with that object from their situation. It is doubtful whether the Court can ever go back beyond the time of an absolute owner of the estate for the purpose of ascertaining whether timber is to be treated as ornamental.' The same principles apply to trees planted or rees planted r r rr J r or left standing left standing for shelter to the mansion house,' o^tJeMlSde objects from or for the purpose of excluding objects from view.s ■'iew. In the case' of a house on the coast of Devonshire, * MicTclethwaiU v. MicTcUthwaite, 1 D. & J. 513. ' MicTcUthwaite v. Mickleihwaite, 1 D. & J. 514 ; and most of the previous cases. Seton on Decrees. 8 Day V. Merry, 16 Ves. 375. 9 Coffin V. Coffin, Jac. 70. Digitized by Microsoft® 38 WASTE IN TIMBER AND OTHEE Sect. 4. Immature trees. How a tenant for life without inipyachmeut of waste may cut. there were added to the usual form of injunction the words " or which in any manner protected the same from the effects of the sea." But this clause was struck out on appeal as going too far. Possibly legitimate protection from the effects of the sea would be included in the term shelter. A tenant for life without impeachment of waste may fell anything which is timber, but not sap- lings and young trees not fit to be cut for the purposes of timber.' In Smythe v. Smythe' Lord Eldon said, "A tenant for life without impeachment of waste is clearly not compellable to cut timber in such way as a tenant in fee would think most ad- vantageous, but is entitled to cut down anything that is timber. This motion requires an affidavit pledging the deponent that the trees about to be cut are not fit for timber. It is settled that a ' Packington s Case, 3 Atk. 216 ; Aston v. Aston, 1 Ves. S. 266 ; O'Brien v. O'Brien, 1 Amb. 107 ; 1 Bro. C. C. 167 ; Chamber- layne v. Dumnwr, 1 Bro. C. C. 166; 3 Bro. C. C. 649 ; Strath- more V. Bowes, 2 Bro. C. C. 88 ; Tamworth v. Ferrers, 6 Yes. 419 ; Potts V. Potts, 3 L. J. Ch. 176. 2 2 Swanst. 252 ; Coffin v. Coffin, Jac. 72. Lord Eldon at an earlier period seems to have placed a greater restriction on the tenant for life, Tamworth v. Ferrers, 6 Ves. 420 ; and see Pentland v. Somerville, 2 Ir. Ch. 289. Digitized by Microsoft® Sect. 4. TREES AND UNDERWOOD. 39 tree which a tenant in fee acting in a husband- like manner would not cut, may be cut by a tenant for life unimpeachable of waste, provided that it is fit for the purpose of timber. A tenant for life unimpeachable of waste might cut down all these trees without question at law ; and to subject him in this Court to the rules which a tenant in fee might observe, for the purpose of husbandlike cultivation, would deprive him of almost all his legal rights. If the trees are so far advanced as to become timber the tenant may cut them down though they are in a state to thrive, and though cutting them down would injure the saplings. It is not suf&cient to state that this is thriving wood and fit for the purposes of timber. I cannot determine whether a tree measuring less than nine cubic feet is or is not fit for purposes of timber. If the plaintiff files an affidavit, stating that trees measuring less than nine cubic feet are not fit for the purposes of timber, that must be met.'" In Bridqes Y. Stephens," a lady having a life TeTiantforiifeof '' a terai of years interest in a mortgage term of 1000 years without ^lohmei^'of waste. ' See Aubrey t. Fisher, 10 East, 446. '' 2 Swanst. 150 ». ; see ante, p. 8. Digitized by Microsoft® 40 WASTE IN TIMBER AND OTHEE Chap. I. Trustees of a term without impeachment of waste. Underwood. impeachment of waste, was held to be entitled as between herself and the persons claiming in remainder to cut down and apply for her own benefit such timber as was fit and proper to be cut in the course of a due and husbandlike management. As it was a wooded property, this appears to be the right of an ordinary tenant for life impeachable of waste.' Trustees of a term without impeachment of waste are bound to a more provident execution of their powers than tenants for life are, and will in general not be allowed to cut timber.' In Brydges v. Stephens' it was said that upon the same principle on which the Court restrained the cutting of timber of insufficient growth, it would restrain the cutting of underwood not of sufficient growth, according to the custom of the country. A tenant for life impeachable of waste may not fell even trees which are over ripe and decaying," but as it is for the benefit of all parties interested * Ferramd v. Wilson, 4 Hare, 344. ' Downshire v. Sandys, 6 Ves. 115. 7 6 Mad. 279. 8 Perrot v. Perrot, 3 Atk. 95 ; see now 19 & 20 Vict. c. 120, s. n. Digitized by Microsoft® TREES AND UNDERWOOD. 41 in the estate that such timber should be cut and "'"^''- ^- Sect. 4. sold, the Court or Chancery has from an early Decaying timber. period given authority to do so, and directed a proper application of the proceeds. Timber felled under the direction of the Court, or in such manner as the Court approves," is said to be rightfully cut. In an early case ' of this nature it was held that ^P^"°Joduoe°d the tenant for life should not have any share of omamentai) righttully cut. the money arising from the sale of the timber, but that care was to be taken to leave enough timber on the estate for repairs and botes, and that what- ever damage was done to him on the premises should be made good. In another case,'' occurring about the same time, A. was tenant for life with remainder to trustees, to preserve, &c., remainder to C. (the plaintiff) in tail with remainder over, with power for A., with the consent of the trustees, to fell timber, and the money arising therefrom was to be invested in land, to the same uses, &c. A. felled timber to the value of 3000Z. without the consent of the trustees, who never intermeddled. 5 Waldo V. Waldo, 12 Sim. 107. 1 £ev}ic/c V. Whitfield, 3 P. W. 268. 2 Castlemaine v. Craven, 2 Eq. Ab. 768 ; 22 Vin. Abr. 523. Digitized by Microsoft® 42 WASTE IN TIMBER AND OTHEB Chap, I. Sect. 4. C. asked for an injunction and account. His honour (Sir J. Jekyll) said that the timber might be considered under two denominations, to wit, such as was thriving and not fit to be felled, and such as was unthriving and what a prudent man and a good husband would fell, &c. And the value of the former was to go as waste to the plaintiff, who was the first remainderman of inhe- ritance, and the value of the other was to be invested according to the settlement, &c. Tenant for ufo The frame of the settlement in that case was entitled to dividends. perhaps the reason of the latter part of the order being so drawn as to give the tenant for life an interest, but this course afterwards became general. Thus in Delapole v. Dekvpole' upon the bill of an infant tenant in tail against his father the tenant for life ; an inquiry was directed what timber was proper to be felled, and whether it would be for the benefit of all parties that it should be felled and sold, and the money laid out in other estates to be settled to the same uses. This case was the stronger as the will by which the property was settled contained a proviso that ^ 17 Ves. 150 ; see also Mildmay v. Mildmay, i Bro. C. C. 76 ; Wickham v. Wickham, 19 Ves. 419. Digitized by Microsoft® TEEES AND UNDERWOOD. 43 Chap. I. Sect. 4. in case any person becoming entitled in posses- sion should cut down any trees his estate should cease. Latterly the practice seems to have followed the case of Tooker v. Annesley," where an inquiry was directed whether there were any and what timber trees standing in the woods and plantations on the testator's estate, which were in a state of decay, and which would not improve by standing, or the standing of which would be prejudicial to the other trees, and which it would be for the benefit of aU parties interested in the estate to have felled and sold ; and the Master having reported upon this inquiry, it was ordered upon further directions, that the trees mentioned in the Master's report should be felled and sold, and the proceeds brought into court and invested, and that the dividends should be paid to the tenant for life. In like manner a dowress would receive one Adowress. third of the income.* < 5 Sim. 237 ; Ccmsett v. £eU, 1 Y. & C. C. C. 573 ; Tolle- mache v. Tollemaehe, 1 Hare. 456 ; Ferrand v. Wilson, i Hare, 381; Gent v. Barrison, J. 523 ; Seton on Decrees. ' DicMn Y. Samer, 1 Dr. & Sm. 284 ; Bishop v. Bishop, 5 Jut. 931; 10 L. J. Ch. (K S.) 302. Digitized by Microsoft® 44 WASTE IN TIMBER AND OTHER Sect. 4. Applicatiou of corpus of fund. Leases and Sales ofSettled Estates Act. '^^''^- '■ If the estate of a tenant for life without im- peachment of waste comes into possession before any remainder of inheritance, he is entitled to receive the corpus of the fund produced by timber rightfully cut.' An application to the Court for the sale of timber (not ornamental) may now be made under the Leases and Sales of Settled Estates Acts.' The manner of dealing with the purchase -money prescribed in sect. 23 does not seem to be en- tirely in accordance with the rules previously existing. It is said that the Court of Chancery would have no dif&culty on a proper application in directing timber on glebe land to be cut and the produce to be applied for the benefit of the living.' Application of When a fund is formed by a tenant for life fund produced ... by ornamental Without iDipeachment of waste committing equi- Timber on glebe. « Waldo V. Waldo, 12 Sim. 107 ; Phillips v. Barlow, 14 Sim. 263. Timber money has been said to be of the nature of real estate until something is done to convert it, Field v. Brown, 27 Beav. 90 ; see Tullitt v. Tullitt, Amb. 370 and post. As to timber •wrongfully cut, see Gent v. Harrison, J. 517. ' 19 & 20 Vict. u. 120,0.11. 8 Duke of Marlborough v. St. John, 5 De G. & S. 179. Digitized by Microsoft® TEEES AND UNDERWOOD. 45 Chap. I. table waste, as by wrongfully cutting ornamental timber, it is quite clear that he wiU not be allowed ^^^^^r ^„„g. _ , ■ . fully cut. to take any interest in it." Some of the authori- ties treat it as belonging to the first owner of the inheritance, and others as following the uses of the settlement. In Bolt V. Somerville,^ the defendant's wife was ■«.»'* ^- s™""'- vule. tenant for life, remainder to the plaintiff for life, both without impeachment of waste, with remain- ders over. The defendant cut ornamental timber and committed other equitable waste. The bill was brought to compel the defendant to account for the money raised by these particulars and to put the estate in the same plight and condition as before. The defendant demurred : Lord Hard- wicke said, " My only doubt is as to the trees that have been cut down, for if this biU had been brought before such trees had been cut down as were for the ornament or shelter of the estate this Court would have interposed ; but here the mischief is done, and it is impossible to restore it to the same condition as to the plantations, and, s Wellesley v. WellesUy, 6 Sim. 497 ; Lushington v. Boldero, 15 Bear. 1. 1 2 Eq. Ab. 759. Digitized by Microsoft® 46 WASTE IN TIMBEE AND OTHER Chap. I. Sect. 4. therefore, it can lie in satisfaction only; and I cannot say the plaintiff is entitled to a satisfac- tion for the timber which is a damage to the inheritance." And the demurrer was allowed as to this part of the bill. It is not stated whether the inheritance was represented in this suit. Sutler Y. This case was followed in Butler v. Kynersley.' Kynersley. There Kynersley was tenant for life without im- peachment of waste, remainder to his sons in tail, remainder (subject to the life interest of Clarke in a moiety) to the Marchioness of Ormonde (Clarke's daughter) for life without impeachment of waste, remainder to her children in tail, with remainder (subject to a term of 1000 years for raising money) to Clarke in fee. There were never any sons of Kynersley or children of the Marchioness of Ormonde. In 1805 and 1806 Kynersley felled orna- mental timber. In 1807, Clarke and the Marquis and Marchi- oness of Ormonde obtained an injunction to stay such waste. ' 5 Mad. 369, nom. Ormonde v. Kynersley (see Morse v. Ormonde, 5 Mad. 99). In House of Lords, 2 Bli. N. S. 374, on reference back, 7 L. J. Ch. 160 ; 8 L. J. Ch. 67 (decided 1830). Digitized by Microsoft® TREES AND UNDERWOOD. 47 In 1809, Clarke by deed conveyed all his in- °°*''- ^- Sect. 4. terest in the estate to the Marquis of Ormonde and his heirs. In 1815 Kynersley died. In 1816 the Marquis and Marchioness of Ormonde filed a bill against the personal repre- sentative of Kynersley, praying that an account might be taken of the produce of the said orna- mental timber, and that the defendant might be compelled to pay the same to the plaintiffs or into court, for the benefit of the person or persons ultimately to be entitled to the inheritance of the estates. It was urged for the plaintiffs that " In equi- table waste the legal title to the timber was in the tenant for life ; if, therefore, the analogy of law were to be followed, the timber felled would belong to him. But a Court of equity attached a trust upon him ; ^ and for whom was this trust to be created? for all persons who might be succes- sively interested under the limitations to which the estate was subject." Nevertheless the biU ' See 5 Mad. 369 ; KinghamY. Lee, 15 Sim. 399; Powysy. Blagrave, Kay, 501 ; 4 D. M. G. Hi ; Mickleihwaite v. MickU- thwaite, 1 D. & J. 504. Digitized by Microsoft® 48 Chap. I. Seat. 4. WASTE IN TIMBER AND OTHER _ was dismissed on the ground that the property in the timber belonged to Clarke, who at the time of the cutting had a vested inheritance in fee, and that the conveyance of this estate by the deed of 1809 did not pass any interest in waste already committed. It is curious that three cases have since oc- curred in which neither Bolt v. Somerville nor Butler V. Kynersley was cited, and in which it has been decided or assumed that the proceeds of ornamental timber wrongfully cut follow the uses of the settlement." The principle of Butler v. Kynersley seems to be that as regards ornamental timber the tenant for life is to be deemed impeachable of waste, and that the property is to go as the law under such circumstances would carry it. It is not easy to see what would be the result of this doctrine in a case like Turner v. Wright,* where the wrongdoer had the fee subject to an executory devise over. < Wellesley v. Wdlesley, 6 Sim. 503 (1834) ; DuTce of Leeds v. Earl Amherst, 16 Sim. 431 ; 2 Phil. 125 (1846) ; LmTiington v. Boldero, 13 Beav. 418; 15 Beav. 1 (1851); see note, 15 Beav. 9. 5 J. 740 ; 2 D. F. & J. 234. See Blake v. Peters, Addenda. Digitized by Microsoft® TKEES AND UNDEEWOOD. 49 Chap. I. Ornamental timber may also be cut rigbtfuUy. It was said in Butler v. Kynersley' arguendo, tbat omamentai timber right- " There were cases in wbich the Court had fuiiycut. directed timber which was in the nature of orna- mental timber to be feUed ; and in those instances it had directed the produce of the sale to be sub- ject to the same limitations as the estate." The principle upon which ornamental timber may be thinned is laid down in Lushington v. Boldero,' where an inquiry was directed — whether timber cut by the defendants had been planted or left standing for ornament or shelter, and whether any and which of the timber and other trees so cut and sold, injured or impeded the growth of any other trees adjoining thereto, which were of so much importance to the purposes of ornament and shelter intended by the devisor, that the removal of the timber or other trees so cut or sold was essential to such purposes of ornament or shelter. It was said that the fact of trees being decayed or injuring the adjoining timber did not by itself justify their removal, because trees most essential for ornament or shelter, and best entitled « 7 L. J. Gh. 150 ; 8 L. J. Ch. 67. ' G. Coop. 216 ; 6 Mad. 149. Seton on Decrees, 3rd ed. 891. Digitized by Microsoft® so WASTE IN TIMBER AND OTHER Chap. I. Sect. 4. Property in or- nam ental timber rightfully cut. Timber cut on the estate of an infant. Timber cut on the estate of a lunatic. to the protection of the Court, might be decayed and might injure the trees adjoining. As the equitable restraint upon a tenant for life without impeachment of waste is only to pre- vent him from making an unconscientious use of his legal power, there seems to be ground for contending that the property in all timber right- fully cut, whether ornamental or not, vests in him in equity as well as at law. Where there is an infant tenant in tail in pos- session, the Court will authorise the cutting of all timber which is fit and proper to be cut in a due course of management," and the produce will be considered as personal estate.' But where the infant has the fee the produce seems to be real estate.' The committees of a lunatic may cut timber for repairs as a prudent owner would do,^ and where decaying timber was properly cut on the estate ' ^ SmilU V. Saville, Ca. temp. Talb. 16 ; 1 Ves. S. 548 ; Amb. 371 ; Lyddal v. Clarcring, Amb. 371 (see Sook v. Warth, 1 Ves. S. 461) ; Eussey y. Husssy, 5 Mad. 44 ; Ferrand r. Wilson, 4 Hare, 382. 9 Tullitt V. Tullitt, Amb. 370 ; 1 Dick. 322. 1 Mascm t. Mason, Amb. 371 ; 1 'West. 449. See Field v. Brown, 27 Beav. 90. 2 Ex parte Liidlmo, 2 Atk. 407. ' Apparently held in fee simple. Digitized by Microsoft® TREKS, AND UNDERWOOD. 51 of a lunatic, the produce of the sale was dealt '^^^- ^- with as personal assets." If a tenant for life is restrained from felling Practice. timber by an interlocutory injunction which is not ultimately sustained, in the event of his dying before the injunction is taken off, he will lose the value of the trees which he would otherwise have cut. The plaintiff, therefore, in such a case is required to give security to the tenant for life for the value of all the trees which he may be so pre- vented from cutting.' It appears that if a tenant for life liable to waste sells timber, he cannot prevent the vendee from cutting it." In two early cases remaindermen whose estates Two early cases. gave them a right of waste were allowed to cut timber before coming into possession, the cir- cumstances being such as would probably not be held now to entitle them to that privilege. In the first,' a term was demised to trustees for '' Sx parte Bronifield, 1 Ves. J. 453 ; Oxenden v. Lord Oompton, 2 Ves. J. 69, 261. See Marquis of AnnandaU v. Marchioness of Annaiidale, 2 "Ves. S. 383. * WombweltY. Bellasyse, 6 Ves. 110 d ; MarTcer v. Marker, 9 Hare, 22. * Wentworth v . Turner, 3 Ves. 3. 1 Aspinwall v. Leigh, 2 Vern. 218 ; 1 Eq. Ab. 400. B 2 Digitized by Microsoft® 53 WASTE IN XIMBEE AND OTHER Sect. 4. Timber estate. the payment of debts, and by will of the same date the reversion was devised to the plaintiff for life without impeachment of waste, with remainders over. The trustees being in posses- sion, the Court allowed the plaintiff to cut timber to the amount of 500Z., upon an allegation that he was in great want, and that much timber was decaying. Again,' one Morris Claxton devised lands to his widow for life, remainder to the plaintiff in fee upon condition that he should pay certain legacies, and upon default over. The widow refused to allow the plaintiff to cut any timber during her lifetime, in order, as the biU alleged, that he might be compelled to commit a forfeiture by non-payment of the lega- cies. The Court allowed the plaintiff to take sufficient timber for payment of the legacies, making compensation to the widow for breaking the ground, &c. It must be borne in mind that general propo- sitions respecting waste in trees are subject to exceptions when applied to what are called timber estates, where for many purposes severed * Claxton V. Claxton, 2 Vern. 152. Digitized by Microsoft® TREES, AND UNDERWOOD. 53 timber is to be treated as annual rents and °''^''- ^- Sect. 4. profits. several miuerals. Sect. 5.— WASTE IN MINERALS, &c. Sect. 5. The ownership of severed minerals vests in a ^■^^^"^'p °^ similar manner to that of severed trees,' and by custom a copyholder may have a right to take any material, such as limestone, marl, clay, or gravel, as well as trees for repairs, or the neces- sary purposes of his occupation,'' and it is pos- sible that such a privilege exists without refer- ence to custom.^ By custom, also, the proprie- tary right in minerals, &e., may be attached to a copyhold of inheritance, or for life, with power to renew or nominate a successor, so that a copy- holder may sell theni off the manor. " If there be a grant of lands,' or of lands and ' Ferrand v. Wilson, i Hare, 373 ; Briggs v. Lord Oxford, 1 D. M. & G. 363 ; Bridges v. Stephens, 2 Swanst. 150, n. ante, p. 8 ; Lord Lovat t. Duchess of Leeds, 10 "W". R. 398. ' Bainbridge on Mines, 17 ; Parrott v. Palmer, 3 My. & K. 636 ; Gresley v. Momley, 10 W. R. 225. ' Bainbridge on Mines, 22 ; Gilb. Ten. 327 ; Scriven, Copy- holds, 4tli edit. 619. ^ Heydon v. Smith, 13 Rep. 68. * Scriven, 4tli edit. p. 427 ; Bishop of Winchester v. Knight, 1 P. W. 406 ; Marquis of Salisbury v. Gladstone, 10 W. E. 930. * Sawnders' Case, 5 Rep. 12 a. Digitized by Microsoft® 64 WASTE IN ^°^' ^- mines expressly ,° a tenant for life or years may Sect. 6. Eight of tenant work mines already open, but may not open new for life or years. ones. Lord Coke says, that if there be no open mines, and a lease is made of the land, together with ail mines thereon, then the lessee may dig for mines therein, otherwise the grant would be void ; but the dictum is of doubtful authority. Turbary. Some Irish cases show that a demise of land and bog does not authorise a tenant in cutting turf for sale, unless it has always been so cut; but if the demise be of the bog alone, the rule may be different.' Estovers. If there are open limestone quarries on the land demised, it is said that the tenant may work them for estovers, but not for sale, the analogy to open mines not holding in such a case.* There « Co. Litt. 54 b; Astry v. Ballard, 2 Lev. 185 (in a MS. note to the copy of Leviuz, in Lincoln's Inn Library, it is said that the word "mines" did not occur) ; S. C, 2 T. Jon. 71 ; 3 Keb. 709, 723, 761, 765 ; 2 Mod. 193 ; Lord Darcy v. Ask- toith, Hob. 234 ; Whitfield v. Bcioit, 2 P. "W. 242 ; Kcriven, Copyholds, 4th edit. p. 427, notes. ' ClwMerlmi v. White, 1 Ir. Eq. 200 ; Wliite v. Wahsh, Jon. (Ir.) 626 ; Lord Waterpark y. Austen, Jon. (Ir.) 627 ; Coppinger V. Gubbins, 3 J. & L. 397 ; Moore v. Orr, 8 Ir. C. L. 347 ; Hargrove v. Lord Congleton, 12 Ir. C. L. 362, 368. 8 Mansfield v. Crawford, 9 Ir. Eq. 271 ; Purcell v. Nash, Jon. (Ir.) 625. Digitized by Microsoft® MINERALS, ETC. 55 may also be estovers of other constituent parts of ^'^'"'' ^' the inheritance, as turf,' gravel and clay,' and coal.'' A tenant for life impeachable of waste has a ?^p™'if°Ji"of right to contmue the working of mines, claypits, &c., where the settlor, or a preceding tenant in tail, has done it, and he may sink new shafts for the purpose of following up a vein of coal ; but it is very doubtful whether such a tenant for life has a right to open pits or mines which have been abandoned, or the preparations for opening which have not been completed. And there seems to be no authority on the question whether a new vein or bed may be worked by means of an old shaft.' A tenant for life without impeachment of waste Tenant for life without im- has of course a right to open new mines." wile™™'"' The rights of a dowress in mines opened after nowresa. her husband's death have been discussed, but not decided.' ' Be Salis v. Crossan, 1 Ball & Beat. 188; lord Coiirionv. Ward, 1 Sch. & Lef. 8 ; Be Salis v. ■ , 2 MoU. 516 ; ffowley V. Jebb, 8 Ir. C. L. 435. 1 Co. Litt. 53 b. 2 2 Rol. Abr. 816. 3 Clavering v. Clavering, 2 P. W. 388 ; Tiner v. Vaughan, 2 Beav. 467. * CounUss of Plyrrwwth v. Lady Archer, 1 Bro. C. C. 159. 5 Bickin v. Mamer, 1 Dr. & Sm. 284. Digitized by Microsoft® 56 WASTE IN cbj^.1. a court of equity will not try the right to the possession of a mine because an account of the mesne profits will have to be taken." ^^^y- It is a clear rule that parties seeking relief in mining cases are bound to be very prompt in making their application ; ' and in Parrott v. ■ Palmer' which was a bill filed by the lord of a manor against certain tenants and their under- lessees, the laches of the plaintiff, which was con- siderable, was held to have disentitled him to an account, as well as to an injunction. Sect. 6. Sect. 6.— WASTE IN BUItDIITGS.s Loss by fire. At the common law, where a house was burned down by negligence or mischance, it was waste ; but as to such fires the landlord's action against 6 Vice v. Thomas , 4 Y. & C. 538 ; Sayer v. Pierce, 1 Yes. S. 232. 7 Clavering v. Clavering, 2 P. W. 388 ; Norway v. Howe, 19 Yes. 143 ; Field v. Beaumont, 1 Swanst. 208 ; Oleggy. Edmond- son, 3 Jur. K. S. 299. 8 3 My. & K. 636. 5 See also next section. Digitized by Microsoft® BUILDINGS. 57 the tenant has been taken away by statute.' A ^^^- ^- . . .,, Sect. 6. lessee who covenants generally to repair, is still bound to rebuild after a fire ; ' and whether the lessee is bound to rebuild or not, he remains liable to pay the rent.^ A devisee for life, with a condition against committing any manner of waste, and for keeping the premises in good and tenantable repair, became lunatic, and they were subsequently destroyed by accidental fire. In order to pre- vent the risk of forfeiture it was held that the premises ought to be rebuilt at the expense of the lunatic's estate.' When a tenant for life suffers buildings to go Permissive ° ° waste. to decay, that is permissive waste, and courts of equity do not in general interfere with it,' but ' Co. Litt. 536 ; 6 Anne, u. 31 ; 14 Geo. 3, u. 78 ; and see Re SUingUy, 3 Mac. & Gor. 221 ; Eeok v. Warth, 1 Ves. S. 460 ; White T. M'Ccmn, 1 Ir. C. L. 205 ; Gale on Easements, 3rd edit. p. 339. 2 Bullock V. Domndtt, 6 T. E. 650. ' Holtzapfell v. Baker, 18 Ves. 115 ; Leeds v. Cheetham, 1 Sim. 146 ; Zoffts Y. Dennis, 7 W. R. 199. •■ Re Skingley, 3 Mac. & Gor. 221 ; Powys v. Blagrave, Kay, 502 ; 4 D. M. & G. 448 ; Cfregg v. Coafes, 23 Beav. 33. ' Powys V. Blagrave, Kay, 495 ; 4 D. M. & G. 448 ; Oastle- maine v. Graven, 2 Eq. Ab. 758 ; 22 Vin. 523 ; Turner v. Bu^k, 22 Vin. 523 ; Wood v. Qaynon, 1 Amb. 395 ; Lansdowne Digitized by Microsoft® 58 WASTE IN CH-^f- 1- they may do so under special circumstances. Thus, in Caldwall v. Baylis,^ copyholds were devised to A. for life, and after his decease to B. in fee ; hut if he should die in the lifetime of A., then to the plaintiffs as tenants in common. A. permitted the premises to go to decay during the life of B., who had intended to commence pro- ceedings against him in consequence of his neglect, hut desisted upon his promise to repair forthwith. B. died, and A. having neglected to perform his promise either during B.'s lifetime, or since his death, the buildings grew ruinous for want of the needful repairs. An injunction was granted to restrain A. from permitting or suffer- ing any further waste.' In Marsh v. Wells' a person entitled to leasehold property subject to a V. Zansdowne, 1 Mad. 116 ; 1 J. & W. 522 ; Warren v. Rudall, Ex parte Godfrey, 29 L. J. Ch. 543, 1 J. & H. 1. As to motion at law, see Sect. 4, Lord Hardwicke is reported to have charged » tenant for life without impeachment of waste, with sums for the repairs of tenants' houses. Parteriche v. Powlet, 2 Atk. 383 ; Blahe v. Peters, V.-C. E. See Addenda. « 2 Mer. 408. ' Permissive waste is a cause of forfeiture of copyholds ; but equity will in general relieve against it. Scriven on Copy- holds, 4th edit. pp. 442, 463 ; Andrews v. Eulse, 4 K. & J. 392. 8 2 S. & S. 87 ; Powys v. Blagmve, Kay, 603 ; 4 D. M. & G. 448. Digitized by Microsoft® BUILDINGS. 59 previous life interest therein, renewed the lease chap. i. with the consent of the tenant for life, and cove- ^°°'' ^' nanted to repair, the tenant for life having neglected to keep the premises in repair, his estate was held liable to indemnify the cove- nantor. The legal powers of a tenant for life without Equitable waste *-> ^ in houses. impeachment of waste to deal with the buildings as he pleases, are very much limited by the doctrine of equitable waste. In the Raby Castle Case,' which, although not the earliest, is the leading authority on this subject, the tenant for life was pulling down the principal mansion- house, and he was decreed to repair and rebuild it, and put it in the same plight and condition it was in at the time of his entry thereon. The decree not having been performed in Lord Barnard's lifetime, an issue was directed to charge his assets with the value of the damages.' In Rolt V. Somerville,'' several houses, out- buildings, and lead water-pipes were ordered to J°|^ ''• *'"«•- 9 Vane v. Barnard, Prec. Ch. 454 ; 2 Vem. 738 ; Gilb. Eq. Eep. 127 ; 1 Eq. Ab. 399 ; 1 Salkeld, 161. ' 2 Eq. Ab. 759 ; Jhike of Leeds v. Earl Amherst, 14 Sim. 357 ; 2 Pbil. 117. 2 2 Eq. Ab. 759. Digitized by Microsoft® 60 WASTE IN CHAf. I. be restored ; and in Aston \. Aston,' Lord Hard- wicke said, " If tenant for life without impeach- ment of waste pulled down farmhouses, in general I should no more scruple restraining him than I should from pulling down the mansion-house (unless where he pulled down two to make into one, in order to bear the burthen but of one), it tending equally to the destruction of the thing settled." MkuSZtueJ' ^^ Micklethwaite v. Micklethwaite," the de- fendant was tenant for life, "without impeach- ment of or for any manner of waste, other than and except voluntary waste in pulling down houses or buildings, and not rebuilding the same, or others of equal or greater value." He sold the mansion-house for old materials, and com- menced pulling it down with the view of building a new one. The bill asked, amongst other things, that the defendant might be decreed to complete a suitable mansion,' and to give sufficient security, to be approved of by the Court, for its com- pletion ; and that an account might be taken of 3 1 Ves. S. 265 ; Blake v. Peters, V.-C. K. See Addenda. < 1 D. & J. 604. M D. & J. 504. Digitized by Microsoft® BUILDINGS. 61 the proceeds o£ the sale of the materials of the ob^^- i- mansion-house, and that such proceeds might he "'*" ^' invested. The defendant had commenced pre- parations for huilding the new house, and upon his undertaking to continue them with reasonable despatch, the cause was ordered to stand over generally, with liberty to apply. Where ° a tenant for life, without impeachment of waste, pulled down the mansion-house, and rebuilt it on another part of the property, using the old materials for that purpose, he was not charged with equitable waste, but it was sug- gested that he might have been so charged if the old. materials had been sold. The estate had been improved by the building of the new mansion, and the pulling down of the old one, but the Court did not proceed upon that.' s Morris v. Morris, 6 "W. R. 427 ; 7 W. R. 249 ; 3 D. & J. 323. 7 See 2 "Will. Saunders, p. 259 ; Eden on Injunctions, p. 150 ; ante. Sect. 1, Meliorating Waste ; Smyth v. Carter, 18 Beav. 78. Digitized by Microsoft® 63 LANDLORD Chap. I. Permissive waste. Sect. 7.— LANDLORD AND TENANT.^ The relation of a tenant to his landlord as respects the treatment of the premises de- mised, is usually defined by the custom of the country, or by express agreement, the tenant remaining in addition under the obligations im- posed by the common law, except so far as they may be excluded by the terms of the tenancy.' Thus, an action for waste lies against a tenant for years, although his lease contains a covenant relating to the same subject,' also against a tenant holding over after the determination of his lease,'' or the expiration of a notice to quit.' An action on the case for permissive waste will not lie against a tenant at will,* nor against a tenant from year to year, their obligation, in the absence of special agreement, only being to use * See also Sect. 6. 9 Phillips V. Smith, U M. & "W. 589. ' Kenlyside v. Thornton, 2 "W". Bla. 1111 ; Marker y. Kenrick, 17 Jur. ii. ^ Torriano v. Young, 6 C. & P. 8. 5 Burchell v. ffomsty, 1 Camp. 360. ' Litt. s. 71 ; Co. Litt. 63 a ; 5 Eep. 13 b ; Cro. Eliz. 777, 784 ; Panton v. Isham, 3 Lev. 359 ; 1 Salk. 19 ; Gibsonv. Wells, 1 B. & P. N. E. 290. Digitized by Microsoft® AND TENANT. 63 the premises in a husbandlike manner.' "Whether chaf. i. such an action lies against tenants for years or for life is also doubtful." Strictly speaking, acts contrary to the ob- venant.^'"^""" ligation of a tenant to deal with the premises according to the custom of the country or express agreement, are not waste unless they are also breaches of the common law, but being of a like mischief with acts of waste, they are restrained upon a like principle.' Injunctions have been applied for to restrain a cases in which injunctions have tenant:— been atpUcd lor. From removing dung, crops, &c., from the premises : ° * Ferguson v. — , 2 Esp. 590 ; fforsefall v. Mather, Holt, N". P. 0. 7 ; Powley v. Walker, 5 T. E. 373 ; JlerTie v. Bembow, 4 Taunt. 764 ; Auworth v. Johnson, 5 C. & P. 239 ; Torriano v. Young, 6 C. & P. 8. See White v. M'Cann, 1 Ir. G. L. 205. « Litt. s. 71 ; 5 Eep. 13 b. ; Cro. Eliz. 777, 784; 2 Inst. 145 ; Co. Litt. 63 a ; 2 Eol. Ab. 828 ; 1 "Will. Saunders, 323 c ; Cvdlip V. Rundle, Garth. 203 ; Heme v. JBemhow, 4 Taunt. 764 ; Jones V. ffiU, 7 Taunt. 392 ; 1 Moore, 100 ; Harnett v. Maitland, 16 M. & W. 257 ; ReSMiigUy, 3 Mae. & Gor. 221. See Jarm. Conv., 3rd edit. p. 409, and White, v. M'Cann, 1 Ir. C. L. 205. ' Songhurst v. Dixey, Toth. 255 ; Kimpton v. Eve, 2 Ves. & B. 352. ^ Johnson v. Goldwaine, 3 Anst. 749 ; citing Grant v. Lord Belfast ; Pulteney t. Skelton, 5 Ves. 147, 260 ; Laihropp v. Marsh, 5 Yes. 259 ; Onslow v. — , 16 Ves. 173 ; Kimpton v. Eve, 2 Ves. & B. 349. Query whether this doctriue applies only to outgoing tenants. Eden on Injunctions, 198. Digitized by Microsoft® 64 LANDLORD t'a*''- 1- From sowing the land with pernicious Sect. 7. , „ seeds : From breaking up ancient meadow or pas- ture,' a bowling green,'' or rabbit warren : ' From removing buildings and landlord's fixtures : ' From converting the premises to a different use,° as to the purposes of a school : ' 9 Pratt T. Brett, 2 Mad. 62. » Co. Litt., 53 b. ; Toth. 114, 209, 210 ; Ct. Rep. 13 ; Fin. 189 ; Johnson v. GoMwaine, 3 Anst. 749 ; Woodward t. Gyles, 2 Tern. 119 ; Bolfe v. Peterson, 2 Bro. P. C. 2iid edit. p. 436; WorsleyY. Stuart, 4 Bro. P. C, 2nd edit. p. 377 ; Simmons v. Morton, 7 Bing. 640 ; Lathropp y. Marsh, 5 Ves. 259 ; Pultevsy V. STcelton, 5 Ves. 260 ; Lord Grey de Wilton v. Saxon, 6 Tes. 106 ; Lrwry v. Molins, 6 Ves. 328 ; Goring y. Goring, 3 Swanst. 661 ; DuTce of St. Albans v. SMpvnth, 8 Bear. 354 ; Martin v. Coggan, 1 Hog. 120 ; Joley v. Stookley, 1 Hog. 247 ; Morris v. Morris, 1 Hog. 238 ; Shew v. Weir, 1 Ir. Eq. 213 ; Creag y. Carmichael, 7 Ir. Eq. 334 ; French Y. Macale, 2 Dr. & "W. 269. 2 CUy of London Y. Pugh, 4 Bro. P. C. 395. ' Angerstein v. Hvmt, 6 Ves. 488 ; not waste at common law, see Lurting v. Conn, 1 Ir. Ch. 273. ^ Geast V. Lord Belfast, 3 Anst. 749 ; Mayor of London v. Eedger, 18 Ves. 355 ; Kimpton y. Eve, 2 Ves. & B. 349 ; Sheriff Y. Barnwrd, 8 Sim. 165 ; Pratt y. Brett, 2 Mad. 62 ; Smyth y. Carter, 18 Beav. 78 ; Duke of Beaufort v. Bates, 10 "W, R. 149, 200. = Brydges Y. Kilbume, 5 Ves. 689, 691 ; Bennett v. Sadler, 14 Ves. 526 ; Warden v. Mlers, cited Eden on Injunctions, p. 199 ; Hunt Y. Browne, Sausse & Scully, 178. « Kemp Y. Soier, 1 Sim. N". S. 617; on appeal, 19 L. T. 308 ; Johnstone v. ffall, 2 K. & J. 414. Digitized by Microsoft® AND TENANT. fifi From destroying timber or other trees, un- C"*''- 1- T , » , Sect. 7. derwood, or fences : From turning goats into a young wood : ' From allowing the hanks of a river ° or fish- pond ' to get out of repair : From removing mineral suhstances deposited by a stream." In Ward v. Duke of Biickingham^ in the House of Lords, upon a lease of alum works, with a covenant by the lessee to leave stock of a certain amount upon the premises, there being a fair ground of suspicion that he did not intend to perform his covenant in that respect, a decree in the nature of a decree quia timet was made to prevent a breach. Some of the foregoing are cases of waste at Distinction be- tween wasto the common law, and others of breaches of l^eeMut."^ °* agreement. This distinction has been drawn ; that whereas acts of pure waste are restrained on 7 Pratt V. Brett, 2 Mad. 62 ; Lwrribert v. Lambert, 2 Ir. Eq. 210 ; Boran v. Carroll, 11 Ir. Ch. 379. * Eogers t. Price, 13 Jur. 821 ; see Doe d. Sogers v. Price, 19 L. J. C. P. 121. s Lord Kilrrwrey v. Thackeray, 2 Bro. C. C. 65. 1 Earl Sathiirst t. Burden, 2 Bro. C. C. 69. 2 Thmnas v. Jones, 1 Y. & C. C. C. 526. 3 Cited by Lord Eldon, 10 Ves. 161. Digitized by Microsoft® Of) LANDLOED "'""*■ L the ground of irreparable damage, in cases of Sect. 7. ... contract the person entitled in possession subject to the lease has a right to insist on the performance of the stipulations, modo etformd, irrespective of the question of damage." This privilege, how- ever, appears in some cases to be confined to the immediate reversioner. Thus, where" a lessee for 999 years covenanted not to use the premises as a school, and the reversion was afterwards devised to A. for life, with remainder to his children in tail, with remainder to B. for life, with remainder to her first son in tail, with remainders over, and the lessee broke the covenant in collusion with A. who was a bachelor, it was held that B. and her son could not have an injunction before they became entitled to the receipt of the rents. Altered state of Where the agreement broken was entered into the property. with reference to a state of the property which has ceas.ed to exist through no fault of the tenant, the landlord will be left to his remedy at law.' ^ I{emp V. Sober, 1 Sim. N. S. 520 ; on appeal, 19 L. T. 308. This doctrine perhaps only applies to stipulations giving rights clearly in excess of the Common Law rights of the parties. See Lambert v. Linithert, 2 Ir. Eq. 210 ; Doran v. OarrolJ, 11 Ir. Ch. 379 ; and see 3 D. M. G. 321. ' Johnstone v. Eall, 2 K. & J. 414 ; see Tipping v. Eckerslcij, 2 K. & J. 264. ^ Duke of naJj'on! v. Trustees of the British Museum, 2 My. Digitized by Microsoft® AND TENANT. 67 An injunction will be granted tc> a ground Chap. I. Sect. T. landlord to stay waste in an underlessee.' underussee. If the lessee is at liberty to plough meadow Liquidated •' X o damages. land, or otherwise convert the premises upon paying an additional rent, of course he will not be restrained from doing so." In connection with this subject it may be Jf^t^S^od. noticed, that where a lease was made reserving the trees, an injunction was granted to restrain the landlord from cutting ornamental trees on a lawn, the tenant having laid out money in a plan of improvement to which the landlord had con- sented, and of which these trees formed part.' & K. 552 ; Rope,r v. Williams, T. & E. 18 ; Wood v. Sidcliffe, 2 Sim. N". S. 163. ? Farrant t. Lovell, 3 Atk. 723 ; see Lord Norbury v. Alleyne, 1 Dr. & Walsli, 337 ; Eeogh v. Collins, Hay & J. 805. 8 Aylett V. Dodd, 2 Atk. 239 ; Woodward v. Oyles, 2 Vern. 119 ; Ponsonby y. Adams, 2 Bro. P. C. 2nd edit. 431 ; Solfe v. Peterson, 2 Bro. P. C. 2nd edit. 436 ; Hardy t. Martin, 1 Cox, 26 ; Forbes v. Carney, "Waliis, 38 ; Jones v. Cfreen, 3 Y. & J. 298 ; Molony t. Quail, 4 Law Eec. N. S. 107 ; Maxwell v. Mitchell, 1 It. Eq. E. 359 ; Burne v. Madden, LI. & G. temp. P. 493 ; Smith v. Ryan, 9 Ir. L. 235 ; French t. Macale, 2 Dr. & "Warren, 269 ; City of London v. Piigh, 4 Bro. P. C, 2nd edit. 395. 9 Jackson V. Cater, 5 Ves. 688 ; see J>u!ce of Leeds v. Farl Amherst, 2 PhU. 123. Digitized by Microsoft® Chap. I. Sect. S. HOETGAGOE Sect. 8.— MOETGAGOR AISTD MOBTGAGEE. In general a mortgagee in possession must p'osselS'" not commit waste,' and he is bound to do neces- sary repairs. ° When the security is insufficient he may, however, cut timber or open and work mines at his own risk in case of loss, and apply- ing the profits (if any) in reduction of the prin- cipal and interest due;" but if the security is sufficient, and he has no authority from the mortgagor,* he will, under similar circumstances, be charged with his receipts and disallowed his expenses." If the mortgage be of an open mine, the mortgagee is entitled to work it as a prudent owner would do, and he is not bound to advance money for speculative improvements. ' Farrant v. Lovel, 3 Atk. 723 ; Sardy v. Reeves, i Ves. 480 ; Sandon v. Sooper, 6 Beav. 249 ; Anon. 1 L. J. Ch. 119. 2 Godfrey v. Watson, 3 Atk. 518 ; Seton on Decrees, vol. i, p. 898. ^ Lord St. Leonards' Handy Book, p. 92; Witherington y. Banhs, Sal. Ca. Ch. 30 ; Millett v. Davy, M. E., 19tli Nov., 1862. ■• Norton v. Cooper, 25 L. J. Ch. 151. * Thorneyeroft r. CrocMtt, 16 Sim. 445 ; ITood v. Easton, 2 Giff. 692 ; see Hughes v. Williams, 12 Ves. 493. " Rowe V. Wood, 2 J. & W. 556. Digitized by Microsoft® AND MORTGAGEE. 09 Where' a mortgagee in possession committed Chap. I. waste pending a redemption suit, he was ordered on motion to deliver up the premises to the mortgagor. If the mortgagor is in possession, and the ^'"'^Sgg,"^ '" security is insufficient, he will be restrained from cutting timber." The meaning of the term ' in- sufficient' is thus explained' by Wigram, V.-C. : " I think the question which must be tried is, whether the property the mortgagee takes as a security is sufficient in this sense — that the security is worth so much more than the money advanced — that the act of cutting timber is not to be considered as substantially impairing the value, which was the basis of the contract be- tween the parties at the time it was entered into." And a mortgagor in possession (at all events when the security is insufficient) must ' Sanson^. Derby, 2 Vera. 392 ; and s^eSoiinsonv. Maguire, 9 Ir. Eq. 268. 8 Bobinson v. Litton, 3 Atk. 210 ; Lm-d Blaney v. Malion, 22 Vin. Ab. 521 ; Ushorne v. Usbarne, HopMtis t. Monk, Twe- dale V. TwedaU, cited 1 Dick. 76 ; Pitman v. Hodges, 1 Fowl. Ex. Pr. 241 ; Cox v. Ooodfellow, 8 Ves. 105 a ; Eimiphries v. Harrison, 1 J. & W. 581 ; Hippesley v. Speneer, 5 Mad. 422 ; Fairfield v. Westmi, 2 S. & S. 96. 5 King v. Smith, 2 Hare, 241 ; see Leake v. Beckett, 1 Y. & J. Digitized by Microsoft® 70 MOETGAGOE AND MOETGAGEE. Chap. I. Sect. 8. Underwood. only cut underwood as a crop, in the ordinary course, i. e., in a husbandlike manner, at the usual seasons and of the usual growth. A mort- gagor who had become bankrupt was altogether restrained from cutting underwood until assignees had been appointed.' After a decree for an account under a bUl of foreclosure, the mortgagor may be restrained from committing waste, although an injunction is not prayed by the bill." Sect. 9. Sect. 9.— ECCLESIASTICAL CORPORATION'S. Powers of alien, ation at the common law. At the common law a dean and chapter, and any other corporation aggregate, might of themselves alone have alienated their estates as fully as a person seised in fee in his natural ' Ha/mpton v. Hodges, 8 Ves. 105 ; Ilv/mphries v. Harrison, 1 Jac. & W. 581. 2 Wrirjht v. Atkyns, 1 Yes. & B. 313 ; Ooodmom v. Einc, 8 Beav. 379. Digitized by Microsoft® ECCLESIASTICAL CORPORATIONS. 71 capacity might have done. But bishops, deans, ^'"'^' ^' Sect. 9. parsons, and other such corporations sole, if they ■wished to bind their successors, must have had the confirmation of others who had the power of confirming in that behalf, and then their grants were as good as the grants of corporations aggre- gate.' Grants made by bishops required con- firmation by the dean and chapter ; those made by deans required confirmation by the bishop and chapter ; and those made by parsons, or vicars, required confirmation by the patron and ordinary. It follows that at the common law a parson, by^Jo^pSraTtoM with the proper consents, having unlimited power of alienation, might dispose of timber and open mines, the patron and ordinary taking care of the interests of the Church." But corporations sole, acting without confirmation, seem never to have had more extensive privileges as to timber. ^ Watson's Clergyman's Law, 4th edit. p. 424 ; Co. Litt. 44 a ; Jarm. Conv., 3rd edit. vol. iv. p. 244 ; Burn's Ecclesi- astical Law, 4tli edit. vol. ix. pp. 298, 368 ; BUvntt v. Tre- gowning, 3 A. & E. 566. ^ Tlie DiCka of MarlhorougTi v. St. John, 5 De G. & Sm, 174 ; see Bishop of Winchester v. Wolgar, 3 Swanst. 493 ; Bishop of London y. Wehb, 1 P. W. 527 ; 2 Eq. Ab. 768. Digitized by Microsoft® 73 ECCLESIASTICAL Cbap. I. Sect. 9. Statutes. Enabling statute. mines, &c., than an ordinary tenant for life ; ' for example, they may work mines already open, but not open new ones." It seems, however, that some acts, which are waste between landlord and tenant, are not necessarily waste in a parson/ The statute law upon this subject is somewhat intricate. By the 35 Edw. 1, stat. 3, parsons were pro- hibited from felling trees in the churchyard, except for repairs of the church and chancel/ By what is called the Enabhng Statute,' 38 H. 8, c. 38, corporations sole (except parsons and vicars) were authorised to grant leases, binding on their successors, respect being had to certain qualifications therein mentioned, some of which were, (1) That the term should not exceed ° Co. Litt. 341 a ; IDulee of Marltormigh v. St. John, 5 De G. & Sm. 174 ; Knight v. Moseley, 1 Amb. 176 ; Strachcy v. Fran- cis, 2 Atk. 217 ; Jefferson v. Bishop of I>urhain, 1 B. & P. 105. ^ Knight y. Moseley, 1 Amb. 176 ; Huntley v. Ritssell, 13 Q. B. 572 ; 18 L. J. Q. B. 239 ; 13 Jur. 837. ' Duke of St. Albans -v. Skipxoith, 8 Beav. 354; BirdY.Relph, 4 B. & Ad. 826. 5 Thompson's Entries, 240 ; Knowle v. Earvey, 3 Buls. 158 ; 1 Eol. 335; 2 Eol. Abr. 813; Costerd's Case, 2 Eol. HI; Slrachey v. Francis, 2 Atk. 216. 9 Co. Litt. 44 a. Digitized by Microsoft® CORPORATIONS. 73 twenty-one years, or three lives; (2) That the ^^^^ — Sect. 9. accustomed rent at least should be reserved ; (3) That the lease should not be without im- peachment of waste. It may be remarked, that in early times the ^tlfjt^'^"^ legislature was constantly struggling to check the accumulation of lands in mortmain, and we therefore naturally find that the extensive powers of alienation, which the clergy possessed at the common law, were left uncontrolled. But after the change in the constitution of the Church, and the other social changes which accompanied the Reformation, the endowments required more protection ; and, accordingly, first bishops,' and by another group of statutes," deans and chapters, parsons, vicars, &c., were altogether restrained from alienating their estates, except by way of lease, and in such maimer as was by the several Acts provided. Leases framed in accordance with the restrain- confirmation stiU required. ing statutes, did not bind the successors without confirmation, where confirmation was necessary before. The forms of such leases were, in many 1 1 Eliz. c. 19 ; see Jac. 1, c. 3. 2 13 Eliz. u. 10 ; 14 Eliz. c. 11 ; 18 Eliz. c. 11. Digitized by Microsoft® 74 ECCLESIASTICAL Sect. 9. respects, similar to that prescribed by tlie En- abling Statute ; but it was not expressly enacted that lessees under the restraining statutes, should be impeachable of waste .^ ^oonformiTy"*" I* SBems that leases not made in conformity with the statutes -,i ,i . n i i voidable. With thcsB Statutes are voidable only, and not void." ftfaM^g's'ii- "Whatever difficulty there may have been in tutes on rights . . „ . of waste. preventing corporations aggregate from commit- ting waste when their powers of alienation were unrestricted, it was soon decided that a dean and chapter are restrained by the equity of 13 Eliz. c. 10, for making leases dispunishable of waste," and it is said that 1 Eliz. c. 19, concerning the leases of bishops (made with confirmation), must have the same construction.^ i^cumbent"^ ^7 It would Seem to follow that the incumbent of a living has now no power to grant a mining lease, ' Co. Litt. 44 Id. Eecent Acts relating to this subject are 5 & 6 Vict. c. 27 ; 5 & 6 Vict. c. 108 ; 21 & 22 Vict. c. 67 ; 24 & 25 Vict. c. 105 ; see Jenlcins v. Qreen, 27 Beav. 437, 440 ; 28 Beav. 87. * Doe V. Taniere, 12 Q. B. 998 ; Pennington v. Cardale, 3 H. 6 N". 666. ^ ife Dean and Chapter of Worcester, 6 Eep. 37 a ; Herring v. Dean and Olmpter of St. PauVs, 3 Swanst. 492; Wither Y^Dean and Chapter of Winchester, 3 Mer. 421. " Watson's Clergyman's Law, 462. Digitized by Microsoft® Sect. 9. COEPOEATIONS. 75 even with the consent of the patron and ordinary. '^^'^- '• For such a lease could only take effect, if at all, under the 13 Eliz. c. 10, and this statute, as construed in the case of the Dean and Chapter of Worcester, does not allow of a lease being made without impeachment of waste, even if the diffi- culty as to the reservation of the accustomed yearly rent could be got over.' But the question has been treated as a doubtful one.^ Ecclesiastical corporations aggregate or sole Ecclesiastical ■*• oo o Commiasioners. may, however, grant leases for long terms of years for mining and other purposes, with the sanction of the Ecclesiastical Commissioners." Timber growing on the estates of an ecclesias- Timber to be D o xised for repau-a. tical corporation is a fund for the benefit of the church. It may be felled for the repairs of the ecclesiastical buildings.' So also, " A rector may cut down timber for the repairs of the parsonage house or the chancel, but not for any common 7 Bishop of Hereford v. Scory, Cro. Eliz. 874. 8 Cmtntess ofRvMmuVs Oase, 1 Lev. 107 ; 1 Sid. 152; Doe v. CoUinge, 7 C. B. 939; BartUtt v. Phillips, 4 D. & J. 414; Holden y. WeeTces, IJ. & H. 278. 9 5 & 6 Vict. c. 108 ; 21 & 22 Yict. o. 57. 1 Jefferson v. Bishop of Durham, 1 B. & P. 115 ; Wither v. Dam and. Chapter of Winchester, 3 Mer. 421 ; Herring v. Dean and Chapter of St. PauTs, 3 Swanst. 492. Digitized by Microsoft® 76 ECCLESIASTICAL ^""^^ '■ purpose ; and this he may be justified in doing S6ct 9 under the statute 35 Edw. I., stat. 2, entitled, Ne rector prosternat arbores in cemeterio. If it is the custom of the country, he may cut down underwood for any purpose, but if he grubs it up it is waste. He may cut down timber likewise for repairing any old pews that belong to the rectory; and he is also entitled to botes for repairing barns and outhouses belonging to the parsonage." " The statute which Lord Hardwicke cites autho- rises timber to be cut in the churchyard for the repairs of the church and chancel only, but it may be cut on the glebe for the purposes which he mentions. The rector may also dig stones there for similar repairs.^ There has been some controversy whether the timber cut must be specifically applied towards the actual repairs for which it was wanted. The rule seems to be that it may be cut and sold for the purpose of buying other timber more suitable 2 Strachey v. Francis, 2 Atk. 216 ; Barn. Cha. 399 ; Jefferson V. Bishop of Durham, 1 B. & P. 105. ^ Knight v. Moseley, 1 Amb. 176. The answer averred that the quarries were opened before. Digitized by Microsoft® COEPORATIONS. 77 for the repairs intended, but not to defray the chap^j^ — Sect. 9. general expenses of repairs." An incumbent is bound to put the buildings, folTas'S hedges, fences, &c., in a good state of repair, and ^''"^^ to keep them so, and the obligation will (if neces- sary) be enforced by sequestration of the revenues of the benefice. The incumbent for the time being may sue a predecessor or his representa- tives in respect of the dilapidations which he may suocessormay J- -^ ^ sue 111 ecclesias- have left, either in the Ecclesiastical Courts, or law court™™"" (except in the case of a bishopric) at Common Law.' It is well settled that the successor can- not recover damages for mismanagement of the glebe land," but there is some authority that he may do so for things severed, as timber or * Knight V. Moseley, 1 Amb. 176 ; Witlierv. Dean and Chapter of Winchester, 3 Mer. 421 ; A itomey-General v. Geary, 3 Mer. 613 ; Serriug v. Dean and Cliapter of St. PauVs, 3 Swanst. 492 ; Duke of Marlhoroxigh v. St. John, 5 De G. & Sm. 178 ; see ante, Sect. 4, Estovers. * Gibbon's Law of Dilapidations and ZSTiiisances ; TT'jse v. Metcalfe, 10 B. & C. 299 ; Bird v. Relph, 4 B. & Ad. 826 ; 2 A. & E. 773 ; Bunhury t. Hewson, 3 Excb. 558 ; Warren v. Lugger, 3 Exch. 579 ; Mason v. Lamlert, 12 Q. B. 795 ; Huntley v. Rmsell, 13 Q. B. 572 ; 13 Jur. 837 ; 18 L. J. Q. B. 239 ; Bryan v. Clay, 1 E. & B. 38 ; Jenkin v. Betham, 16 C. B. 437 ; Martin v. Roe, 7 E. c& B. 237 ; Cleaves v. Parfitt, 7 C. B. N. S. 838. « Bird V. Belph, 4 B. & Ad. 826 ; 2 A. & E. 773 ; DuTce Digitized by Microsoft® 78 ECCLESIASTICAL Chap. I. Sect. 9. Writ of pro- hibition. InjunctionB. gravel.' In the administration of the prede- cessor's estate, this claim is postponed to that of simple contract creditors at law, but apparently not in equity.* Lord- Coke frequently asserted that a writ of prohibition ' lay at common law against a bishop or parson committing waste, and on one occasion he is reported to have said, " and so it shall be in the case of a dean arid chapter." Other pre- ventive remedies, however, if any such ever existed, have in practice been replaced by in- junctions. The right to an injunction to restrain bishops resides in the Attorney- General on behalf of the Crown, their patron, and possibly, to some extent, in the Metropolitan.' So a dean and St. A Wans v. Skipwith, 8 Beav. 354 ; see HosJciiis v. Fetherstone, 2 Bro. G. C. 52. ^ Bird v. Belph, 4 B. & Ad. 826 ; 2 A. & E. 773 ; Huntley V. Russell, 13 Q. B. 572 ; 13 Jur. 837 ; 18 L. J. Q. B. 239 ; see post, p. 79, Bartlett v. Phillips, 4 D. & J. 414 ; Rolden v. Weekes, IJ. & H. 278 ; Knight v. Moseley, 1 Arab. 176. 8 Bissett V. Burgess, 23 Beav. 278. ^ Stockman t. Wither, 1 Rol. 86 ; Bishop of Salisbury's Case, Godb. 259 ; see also 2 Buls. 279 ; CostercTs Case, 2 Eol. Ill ; Brury v. Kent, Hob. 36 ; 2 Eol. Abr. 813 ; King y. Sakars, 3 Bui. 91 ; Moore, 917 ; Acland v. Atwell, 3 Swanst. 499 ; Jefferson Y. Bishop of Durham, 1 B. & P. 105. ' Knight v. Moseley, 1 Amb. 176 ; Jefferson v. Bishop of Digitized by Microsoft® COEPOBATIONS. 79 Chap. I. Sect. 9. chapter may be restrained at the suit of the Crown, but not at that of a stranger.' In the case of a parson or vicar, the application should be made by the patron,' or, if he is a consenting party to the waste, by the ordinary." We have seen that no action lies for ploughing piougUnggiebo *■ ° meadow, glebe meadow," and as a general rule, the Court of Chancery will not interfere to stay it:' but widow of rector. the widow of a rector who was committing this and other acts of waste during a vacancy was restrained at the suit of the patroness.' In Bartlett v. Phillips' (a special case), the ^PS"°fj,7°'' Court was of opinion that the produce of past waste should be laid out for the permanent improvement of the vicarage. Subsequently, in Ihi/rliam, 1 B. & P. 116, 131 ; Wither v. Dean and Chapter of Winchester, 3 Mer. 421. ^ Wither v. Dean and Chapter of Winchester, 3 Mer. 421 ; Herring v. Dean and Chapter of St. PauVs, 3 Swanst. 492 ; Eden on Injunctions, p. 204 ; see Acland v. Atwell, 3 Swanst. 499. 3 Strachey v. Francis, 2 Atk. 216 ; 1 Barn. Cha. 399 ; Hoshins v. Fetherstone, 2 Bro. C. C. 552 ; Knight v. Mosehy, 1 Amb. 176 ; Duke of St. Allans v. SkipwUh, 8 Beav. 354 ; Duke of Marlborough t. St. John, 5 De G. & Sm. 174. ^ Holden v. Weekes, 1 J. & H. 278. 6 Bird V. Relph, 4 B. & Ad. 826 ; 2 A. & E. 773. " Duke of St Allans v. Skipwith, 8 Beav. 354. " Hoskins v. Fetherstone, 2 Bro. C. C. 62. s 4 D. & J. 414. Digitized by Microsoft® 80 ECCLESIASTICAL Chap. I. School-house iu churchyard. Holden v. Weekes' Wood, V.-C. held that a patron could not claim an account and invest- ment of the produce of past waste as of right, hut the dictum of Lord Hardwicke, upon which that decision was based, may perhaps have meant only that the patron could not have such an account for his own benefit." At all events, on a proper application, the Court would direct timber growing on glebe-land to be cut and the produce applied for the benefit of the living.'' In an Irish case ^ it was said that the Court of Chancery had no jurisdiction to interfere at the instance of a parishioner to restrain the incum- bent from erecting a schoolhouse in the church- yard. Stress was laid in the judgment upon the facts that 177 heads of families wished the school to be erected, and were unable to procure a site through the opposition of the plaintiff, who was s IJ. & H. 278. ' Knight v. Moseley, 1 Amb. 176 ; see Bird v. Relph, 4 B. & Ad. 826 ; 2 A. & E. 773 ; Himtley v. Russell, 13 Q. B. 672 ; 13 Jur. 837 ; 18 L. J. Q. B. 139 ; and BisTwp of Winchester v. Knight, 1 P. W. 406. 2 Duke of Marlborough v. St. John, 5 De G. & S. 179. ^ Earl Fitzwilliam v. Moore, 3 Ir. Eq. 615 ; Flan. & Kel. 287. Digitized by Microsoft® CORPORATIONS. 81 the principal landowner in the parish, and sup- ""'"•■ ^- ported a school, ah-eady existing. A churchwarden has been allowed under special fi'?""8 '*"= ■I- nttmgs of a circumstances to maintain a bill on behalf of him- " ™° ' self and the parishioners, to restrain an in- cumbent from improperly altering the fittings of the church." Two curious cases have arisen out of long ^ftiiouum-'"'^''' episcopal leases made without impeachment of waste. waste, in the reign of Edward VI., and therefore before the restraining statutes. In the Bishop of Winchester v. Wolgar' the lease was of land, in the manor of Havant, in the county of Southampton, and is expressly stated to have been made with the confirmation of the dean and chapter. In. the year 1629 the assignee of the lease was restrained from felling timber at the suit of the then bishop, " regard being had of the common weal, and the commodiousness of the said timber for the maintenance of the shipping ; and for that if the Lord Bishop him- * Cardinall v. Molyneux, 2 Giff. 635, on appeal, 4 L. T., N. S. 605 ; see Woodman v. Rohinson, 2 Sim. N. S. 204 ; and as to right of burial, Moreland v. Richardson, 24 Beav. 33. ' 3 Swanst. 493 ; see Freem. 55, and compare S^nytlie v. Smythe, 2 Swanst. 251. Digitized by Microsoft® 82 ECCLESIASTICAL COEPOEATIONS. Chap. I. Sect. self should commit any excessive waste or spoil of woods, the same ought to be prohibited or restrained by law." In the Bishop of London v. Webb,'' the lessee, when there were yet about twenty years of the term to run, articled with some brickmakers to carry away the soil of about twenty acres to the depth of six feet. Lord Macclesfield said, that this was within the principle of Loi'd Barnard's Case,' and that the lessee should not destroy the field to the ruin of the inheritance of the Church. It is not, how- ever, easy to see how the principle there referred to can be applied to a contract for a pecuniary consideration. Keoentacts. Various Acts havc recently been passed, by which the management of episcopal and capitular estates will hereafter be regulated." « 1 P. W. 527 ; 2 Eq. Ah. 758, (decided 1718). ? Vane. v. Barnard, 2 Vern. 738 ; Prec. Ch. 454 ; Gilb. Eq. Rep. 127 ; 1 Eq. Ab. 399 ; 1 Salk. 161. E 14 & 15 Vict. c. 104 ; 17 & 18 Vict. c. 116 ; 22 & 23 Vict. c. 46 : 23 & 24 Vict. c. 124 ; 24 & 25 Vict. c. 131. Digitized by Microsoft® NUISANCES IN GENEEAL. 83 CHAPTER II. NUISAJ!fCE, 1. Nwisa/iwes in General. 2. Nuisances to houses. 3. Nuisamces relating to Water. i. Nuisances to Sights of Sup- port. 5. VariotiS Nuisances. SECT, 1.— NUISANCES IN GENERAL. ^^^ i_ Injuries to easements, and such injuries to Nmsanoe. natural rights of property as do not directly in- terfere with the possession of the .soil, are nuisances.' A nuisance may be of a public or of a private pubuo or nature. This distinction was discussed in the case of Soltau v. De Held,' where an injunction was applied for to restrain the ringing of the bells of a Roman Catholic church close to the ' As to the refined distinction between direct and indirect injuries to real property, see Reynolds v. Clarke, 2 Ld. Raymond, 1399 ; Scott v. Shepherd, 1 Smith, Lead. Ca. ; Scott v. Nelson, 5 Ir. L. 207. 2 2 Sim. N. S. 133, Digitized by Microsoft® 84 NUISANCES '^°*^' ^'- plaintiff's residence.^ Kindersley, V.C, there Sect. 1. " . said — " I conceive that to constitute a puhuc nuisance, the thing must be such as in its nature or its consequences is a nuisance, an injury, or a damage, to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others. For examplej take the case of the operations of a. manufactory, in the course of which operations volumes of noxious smoke or of poisonous effluvia are emitted. To aU persons who are at aU within the reach of those operations, it is more or less objectionable, more or less a nuisance in the popular sense of the term. It is true that to those who are nearer to it, it may be a greater nuisance, a greater inconvenience than it is to those who are more remote from it ; but still to all who are at all within the reach of it, it is more or less a nuisance or an inconvenience. Take another ordinary case, perhaps the most ordinary case of a public nuisance, the stopping of the King's Highway, that is a nuisance to all who may have occasion to travel that highway. It may be a much greater nuisance to a person 3 Sex V. Lloyd, 4 Esp. 200. Digitized by Microsoft® IN aENEBAL. 85 who has to travel it every day of his life, than it ^''*''- "• Sect. 1. IS to a person who has to travel it only once a year, or once in five years, but it is more or less a nuisance to every one who has occasion to use it. If, however, the thing complained of is such that it is a great nuisance to those who are more immediately within the sphere of its operations, but is no nuisance or inconvenience whatever, or is even advantageous or pleasurable to those who are more removed from it, then I conceive it does not come within the meaning of the term Public Nuisance." The case before me is a case in point."' Courts of equity interfere in cases as well of Jurisdiction. private as of pubhc nuisance, in the first at the suit of the party injured, in the second at the suit of the Attorney- General, both to restrain the exercise of a nuisance, and to prevent one from being created." An individual, however, may sue in respect of a public nuisance from which he sustains special damage, either alone,' or with the " See Squire v. Camphell, 1 My. & Cr. 486. 5 See Martin v. NutUn, 2 P. W. 266. ^ Mitford Pleading,?, 4tli edit. p. 144. ' Iveson T. Moor, Com. 58 ; Baines v. Baker, 1 Amb. 158 ; 3 Atk. 750 ; Crowder v. TinMer, 19 Ves. 617 ; Spencer v. Digitized by Microsoft® 86 NUISANCES Chap. II. Sect. 1. Owners of neighbouring Circumstances under whicli a court of equity will interfere. Attorney- General, by information and bill.* In the Attorney-General y. The United Kingdom Electric Telegraph Company," the defendants dug a trench along a public footpath. The Attorney- General filed an information to restrain the public nuisance, at the relation of the owner of the soil, who also preferred a bill complaining of the same act as a trespass. Owners of neighbouring tenements ought not to join as co-plaintiffs in a suit to restrain an act which is a separate nuisance to each of them.' A Court of equity will only interfere in a case of nuisance where the thing complained of is a nuisance at law," and whether the nuisance be Lmidon and Birmingham Railway Company, 8 Sim. 193 ; SaTnpsmi v. Smith, 8 Sim. 272 ; Semple v. Lmidon and Bir- mingham Railway Company, 1 Rlwy. Ca. 480 ; Haines v. Taylor, 10 Beav. 75 ; 2 Phil. 209 ; Walter y. Selfe, 4 De G. & S. 315 ; Soltau V. De Held, 2 Sim. W. S. 133 ; Rose v. Groves, 6 Scott, N. C. 645 ; see lllingworth v. Manchester and Leeds Railway Company, 2 Rlwy. Ca. 187. * Attorney-General v. Johnson, 2 Wile. C. C. 87 ; Attorney- General T. Forles, 2 Myl. & Cr. 123 ; Attorney-General v. The Sheffield Gas Consuiners' Company, 3 D. M. G. 304 ; Attorney- General T. Tlu. Lutmi Board of Health, 2 Jur. N. S. 180. s 10 "W". E. 167. ■ Hiidson V. Maddison, 12 Sim. 416 ; Pollock v. Lester, 11 Hare, 266. The author apprehends that, notwithstanding these cases, the practice is not uncommon, see post, p. 115. 2 Soltau V. De Held, 2 Sim. W. S. 133 ; Semple v. London and Digitized by Microsoft® IN GENERAL. 87 Cbap. ir. public' or private* a judgment at law should in Sect. 1. general be obtained before the hearing. It was said by Lord Kingsdown, in Broadhent Kstt must be •^ ° ' established at V. Itnperial Gas Company,^ " The rule I take to be clearly this ; if a plaintiff applies for an in- junction to restrain a violation of a common law right, if either the existence of the right or the fact of it s violation be disputed," he must esta- blish that right at law ; but when he has esta- blished his right at law, I apprehend that, unless there be something special in the case, he is entitled, as of course, to an injunction to prevent a recurrence of that violation." But the Court court of Cnancery may of Chancery, in its discretion, may decide any ofiawor"fact°'' Birmingham Railway Company, 9 Sim. 209 ; 1 Rlwy. Ca. 120 ; Attorney-General v. Londmi and Southampton Railway Ootut pany, 9 Sim. 78 ; 1 Elwy. Ca. 283 ; Attorney-General v. Man- chester and Leeds Railway Company, 1 Elwy. Ca. 436. ^ Attorney-General v. Cleaver, 18 Ves. 211 ; Attorney-General V. Sheffield Gas Consumers' Company, 3 D. M. 6. 304. As to purprestures or encroachments on the Queen's soil, see Mit. PL, 4th edit. p. 145. 4 Anon., 2 Ves. S. 414 ; ChalTc v. Wyatt, 3 Mer. 688 ; Elm- hirst V. Spencer, 2 Mac. & Gor. 45 ; Broadbent v. Imperial Gas Cmnpany, 7 D. M. G. 436 ; 7 H. L. C. 600 ; White v. Cohen, 1 Dr. 312. See Davies v. Marshall, 1 Dr. & Sm. 557 ; Gale v. Ahlott, Y. 0. K. 21st July, 1862. ' 7 H. L. C. 612 ; cf. Attorney-General v. Nichol, 16 Ves. 338 ; 3 Mer. 687. « Potts V. Levy, 2 Dr. 272. Digitized by Microsoft® Chap. II. Sect, 1. Inter] ocu to i-y injunction. Damages an inadequate compensation. NUISANCES questions of law or fact if the plaintiff and de- fendant both desire it.' An interlocutory injunc- tion will, of course, be granted before the trial at law, where there is danger of irreparable mischief being done in the meantime.' The observations of Lord Kingsdown were probably not intended to abrogate the old rule that the Court of Chancery will not interfere where damages would be an adequate compen- sation. That was distinctly laid down by Lord Eldon in a case of darkening windows.' Lord Eldon there said :— " The foundation of this jurisdiction interfering by injunction is that head of mischief alluded to by Lord Hardwicke, that sort of natural injury to the comfort of the existence of those who dwell in the neighbouring house, requiring the application of a power to prevent as well as remedy an evil for which damages more or less would be given in an action at law. The position of the building, whether opposite, at right angles, or oblique, is not mate- ' WalUr T. Selfe, 4 De G. & Sm. 315 ; 15 Jur. 418 ; on appeal, 19 L. T. 308 ; qy. as to prejudicing tlie right of appeal. And see JEnnor t. Barwell, 2 Giff. 410 ; on appeal, 4 L. T. N. S. 597. 3 Earl of Ripmi v. Eolart, 3 My. & K. 169, &c., &o. ' Attorney-Oeneral v. Nichol, 16 Ves. 338 ; 3 Mer. 687. Digitized by Microsoft® IN GENERAL. 89 rial. The question is, whether the effect is such "''"• "• an obstruction as the party has no right to erect, and cannot erect without those mischievous con- sequences which upon equitable principles should be not only compensated by damages, but pre- vented by injunction." Lord Eldon, therefore, in that case clearly refers the jurisdiction of the Court to the extent of the injury, and to the pre- ventive power of the Court of Chancery, as being superior to the remedy which can be obtained at law. In Attorney-General v. The Sheffield Gas Con- aeraiTsSffieid Burners' Company,' Lord Justice Turnerj after citing company!""*'^ the above passage, continued — " But it is said, however that may be in a case of private nuisance, which was the case to which Lord Eldon was addressing himself in the case of the Attorney- General V. Nichol, it is different in the case of a public nuisance, and that it is the duty of this Court to interfere in all cases of public nuisance. The argument is put thus : it is said that no injury or inconvenience which is merely trifling would amount to a nuisance at law, that the very fact of there being a nuisance at law imports that 1 3 D. M. G. 319. Digitized by Microsoft® 90 NUISANCES Chap. II. Sect. 1. the injury is great, and the inconvenience con- siderable, and, therefore, it is said that the inter- ference of this Court must take place whenever there is a nuisance at law. I confess, however, that looking at the principles on which, as I apprehend, this Court interferes, it does not appear to me that there can be any sound dis- tinction between cases of private and public nuisances. It is not on the ground of any criminal offence committed, or for the purpose of giving a better remedy in the case of a criminal offence, that this Court is or can be called on to interfere. It is on the ground of injury to pro- perty that the jurisdiction of this Court must rest; and taking it to rest upon that ground, the only distinction which seems to me to exist between cases of public nuisance and private nuisance is this, that in cases of private nuisance the injury is to individual property, and in cases of public nuisance the injury is to the property of mankind. " I think, therefore, that the same principle must govern the question as to the interference of the Court, whether the case be one of private or of public nuisance. What then is the principle by which the Court ought to be governed ? I take Digitized by Microsoft® IN GENERAL. 91 it to be this : whether the extent of the damage *^"'^''' ^'' Beet. 1. and injury be such that the law will not afford an adequate and sufficient remedy. The same prin- ciple which governs the Court in other cases, in which its jurisdiction is more generally applied, seems to me to apply in such cases as the present. In cases of specific performance the jurisdiction of this Court is founded on the inadequacy of the remedy at law. If the specific performance of a covenant be asked, it is not every covenant which this Court will perform, but such covenants only as cannot be adequately compensated in damages." So again, in cases of trespass, it is not every trespass against which this Court will enjoin ; but such trespasses as are, or are assumed to be, irremediable, or at all events material ; and so I take it to be in cases of nuisances.'' ' Although the principle thus laid down is very Application to ° -^ pnrticular state clear, the case which we are now considering °f''"='^- shows the difficulty which may sometimes arise in applying it to a particular state of facts. The ' See Tipping v. EckersUy, 2 K. & J. 270 ; and ante, p. 65. 3 Wynstanleyv. Lee, 2 Swapst. 333 ; SoltauY. BeBeld, 2 Sim. N. S. 158 ; Wood v. Sutcliffe, 2 Sim. N. S. 168 ; Bostoek v. North Staffordshire Railway Company, 5 De G. & Sm. 584 ; JioeJidaU Canal Company v. King, 2 Sim. N. S. 78. Digitized by Microsoft® 92 NUISANCES cn/p. II. — defendants were a gas company who had no au- thority to break up the roads, and an information and bill was filed seeking to restrain them from so doing, a rival gas company being relators and plaintiffs. The Court differed in opinion. Turner, L. J., considered that the injunction ought not to issue, on the ground that the inconvenience occa- sioned by laying down the pipes would only last for two or three days, and further said — " As to the continual taking up of the pavement con- sequent on these pipes having been laid down, that inconvenience will also, as it appears to me, be partial and temporary only. It will be an inconvenience occurring from time to time in different parts of the town, and not an injury affecting the general body of the inhabitants to any such extent as ought, in my opinion, to induce the interference of this Court. It is not to be left out of consideration in determining this question, that to some extent the law has provided a remedy in respect of these inconveniences. There is some remedy under the Highway Act ; and there are boards of surveyors .having control of the streets who, it is to be remembered, concur in these measures being taken ; and as to any injury Digitized by Microsoft® IN GENERAL. 93 which private individuals may sustain, the law is open to them by actions on the case." On the other hand the Lord Justice K. Bruce took the following somewhat different view. " It has been argued that the annoyance (if any) felt, and possible to be feared, must be small, slight, and unfit for this Court's interference. But the fre- quent recurrence for ever, or during a period probably long and unascertainable, of an annoy- ance slight in itself (slight I mean if occurring but upon a single occasion, or occurring only at very rare intervals), may much interfere with the reasonable convenience and comfort of life. Upon the evidence now before us it is, I think, reason- able to believe that during a period probably long and unascertainable, the defendant's proceedings under consideration, unless judicially prevented, will unlawfully be of frequent recurrence, and will unlawfully create, from time to time, often incon- venience to persons who as travellers or passen- gers may have occasion to use the public streets and highways in Sheffield, to shopkeepers and other inhabitants of the town, and to the plain- tiffs ; nor, if we now refused an injunction, can it reasonably, I think, be denied that in respect of OSAP. II. Sect. 1. Digitized by Microsoft® 94 NUISANCES CHAr. II. Sect. 1. these unlawful proceedings, actual and intended, redress, remedy, or punishment may from time to time, for many years to come, be sought at law criminally and civilly, as well summarily as other- wise, to a very inconvenient and burthensome extent of diversified litigation, at the instance of a variety of persons." And finally Lord Cran- worth, L. C, said — " I am of opinion that no case is made out for an injunction. With reference to the future evil of tearing up the streets for the purpose of repairs and the possibility of accidents, I can only say here that I must deal with those considerations exactly in the same way, and inquire whether there is such a probability of serious injury as would induce this Court to interfere ? Everybody who has lived in this town has probably lived in a house where there have been gas pipes running along the front of it. Speaking for myself, I can say that I have expe- rienced it for some twenty or thirty j^ears and more, and I have never found any nuisance from such a source. I do not mean to say that evils may not occasionally occur, but I think that the interests of mankind require that these things should be disregarded. I concur, therefore, with Digitized by Microsoft® IN GENERAL. 95 Lord Justice Turner, in thinking that this bill chap. ii. and information ought to be dismissed, though I ^^''*" ^" entirely concur with both the Lords Justices that nothing should be said about the costs." Moreover the Court will not interfere unless Kestormg en- joyment of the surrounding cii'cumstances leave it practicable "^ to restore the enjoyment of the right.' The application should not be made until an Timeatwhioii application actual nuisance has been committed, or at aU should be made, events until it is quite clear that the works going on will inevitably result in a nuisance ; ' but due diligence must then be used, and a man may so encourage another in the erection of a nuisance as to render himself liable to be restrained from recovering damages at law for such nuisance when completed.'' "When public functionaries go beyond the line Nuisance by public func- of their authority and assume a power over pro- *^°'™*^- perty which the law does not give, they are considered as no longer acting under the autho- ■< Wood V. Sutdiffe, 2 Sim. N. S. 163. 5 Eaiiies v. Taylor, 10 Beav. 75; 2 PMl. 209 ; Wicks Y. Hunt, J. 372 ; see Elwelly. Crowther, 10 W. E. 615; 6 L. T. X. S. 596. * WilliaTtis Y. Earl of Jersey, Cr. & Ph. 91 ; Davies v. Ma/r- shall, 1 Dr. & S. 557 ; /owes v. The Royal Canal Company, 2 MoU. 319. Digitized by Microsoft® 96 NUISANCES IN GENERAL. Ch ap. II. j-ity of their commission, and are treated, whether Sect. 1. they are a corporation or individuals, merely as persons dealing with property illegally.' Bills to restrain nuisances have been entertained against the following functionaries : — Commissioners of Sewers;" Conservators of the Thames ;° Justices of the Peace;" Drainage Commissioners ;'' Com- missioners of Woods and Forests;" Boards of Health ; * Trustees of Turnpike Eoads.° 7 Frewin v. Lewis, 4 My. & Cr. 255 ; Birley v. Constables of Chorlton-upon-Medlock, 3 Beav. 499. 8 Box v. Allen, 1 Dick. 49 ; Kerrison v. Sparrow, 19 Ves. 449. ' Atiorney-Oeneral V. Johnson, 2 Wils. C. C. 87. 1 Attorney-General v. Fortes, 2 Myl. & Cr. 123. ' Earl o/Biponv. Eoiart, 3 Myl. &K. 169 ; Dawson v. Paver, 5 Hare, 415. 3 Squire v. Campiell, 1 Myl. & Cr. 459. » OUaher v. Hwit, 6 D. M. G. 376 ; 3 Eq. Eep. 671 ; Atim- ney-Qeneral v. The. Luton Board of Health, 2 Jut. IS. S. 160 ; Tinkler v. The Wandsworth Board of Health, 6 W. R. 50, 390 ; Manchester, Sheffield, and Lincolnshire Bailway Company v. The Worjcsop Board of Health, 23 Beav, 198 ; Attorney-General V. The Borough of Birmingham,, 4 K. & J. 628 ; Seton on Decrees, 3rd edit. 894. 6 Weeks v. Reward, 10 W. R. 557. Digitized by Microsoft® NUISANCES TO DWELLING-HOUSES. 97 Chap. II. Sect. 2. Sect. 2.— NUISANCES TO DWELLING-HOUSES. In the case of nuisance to dwelling-houses, the Jurisdiction. jurisdiction is founded on the injury to the ordinary comfort,^ or safety ' of the inmates. The bill is usually brought by the occupier ; but wiio may sue ill equity. when the house is unoccupied, the owner may sue," and he may possibly be allowed to do so in cases where an action would lie by reason of the nuisance being an injury to the reversion." "With respect to a landlord's liability to be when landlord may be sued at sued for a nuisance, the rule at law 'is, "If a i^wfora ' nuisance by his landlord lets premises not in themselves a ""^"^ ' nuisance, but which may or may not be used 6 Attorney-General v. Nichol, 16 Yes. 338 ; 1 Mer. 687 ; Attorney-Oeiieral V. Clearer, 18 Ves. 210; Wynstanley y. Lcc, 2 Swaust. 333 ; Walter v. Selfe, 4 De G. & Sm. 315 ; Soltau v. De Held, 2 Sim. N. S. 133. " Crowderv. Tinkler, 19 Ves. 617; see £aines v. Baker, 3 Atk. 750 ; 1 Amb. 158 ; City of Lmidon v. Bolt, 5 Ves. 128. ^ Wilson V. To^imend, 1 Dr. & S. 324 ; Cleeve v. Maliany, 9 W. E. 881. s See and compare White v. Cohen, 1 Dr. 312 ; and Wilson v. Townend, 1 Dr. & S. 329 ; Meiropoliian Assoeiation v. Fetch, 5 G. B. N. S. 504 ; 27 L. J. C. P. 330. 1 Mieh V. BasUrfield, i C. B. 783 ; Todd v. Flight, 9 C. B. N. S. 377. Digitized by Microsoft® 98 NUISANCES Chap. II. Sect. 2. Windows. by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are so used or not, the landlord cannot be made responsible for the acts of the tenant." One of the nuisances to dwelling-houses which most frequently calls for the interference of the Court, is the interruption by erections on one man's land of the access of light and air to the windows of his neighbours.^ Lord Eldon said,' " There is little doubt that this Court will not interfere upon every degree of darkening ancient lights and windows. There are many obvious cases of new buildings, darkening those opposite to them, but not in such a degree than an injunction could be maintained, or an action upon the case ; which, however, might be main- " Bateman v. Johnson, FitzGibbon, 106 ; Ryder v. Bcntham, 1 Yes. S. 643 ; WynstanUy v. Lee, 2 Swanst. 333 ; Sutton v. Montfort, i Sim. 559 ; J3ac!c v. Slacey, 2 Russ. 121 ; Bcardmer V. London and North Western Railway Company, 5 Elwy. Ga. 728 ; see, under C. L. P. Act, Jcssel v. Chaplin, 2 Jur. N. S. 981. 3 Attorney-Oeneral v. Niehol, 16 Ves. 338 ; cf. observations of Lord Kingsdo-wn (cited ante), in Broadhent v. Imperial Oas Oo7npany, 7 H. L. 0. 612. Digitized by Microsoft® TO DWELLING-HOUSES. 99 tained in many cases which would not support an ^^''^- ^^- Sect. 2. injunction." In Smith v. Elger," where a building had been erected at a distance of thirty feet from the plaintiff's windows, and not more than half the height of the plaintiff's house, it was doubted whether the Court would interfere even if it was a legal nuisance. In an early case,' a wall built at a distance of only seventeen feet from an ancient window was allowed to remain. The shutting out of a pleasant prospect is no shutting out a *-" ^ ■*■■*■ prospect. ground of interference.*^ And conversely an in- vasion of privacy by the opening of a new window invasion of privacy. in a neighbour's house, gives no right of suit or action' (unless it be in breach of an agreement °); the remedy is to block the new window up. The right to the passage of light to new win- Eight to new windows from dows may of course be given by express agree- afverMice' ""^ » 3 Jur. 790. * Fishmongers' Companij v. East India Company, 1 Dick. 165 ; see RadcUffe v. Duke of Portland, V. C. S., 10 W. E. 687. ^ Aldred's Case, 9 Kep. 58a ; Attorney-General v. Doughty, 2 Ves. S. 463 ; Fishmonger^ Cmnpany v. East India Company, 1 Dick. 163; Attorney-General v. Bentlmm, 1 Dick. 277; Squire V. Camplell, 1 My. & Cr. 486 ; Bathurst v. Burden, 2 Bro. C. C. 64; see Piggott v. Stratton, J. 859, 1 D. F. J. 33. ' 7 Chandler v. Thompson, 3 Camp. 80 ; Turner v. Spooner, 1 Dr. & Sm. 467. 8 Lady Andover v. Fobertson, 26 L. T. 23. H 2 Digitized by Microsoft® 100 NUISANCES CgAP. II. Sect. 2. ment ; " it may also arise from privity of title. Thus, where a man erected a house on his own lands, and then sold the house to one, and after- wards the land adjoining to another, it was resolved that as the builder himself could not stop the lights, as that would be to derogate from his own grant, so neither could any person claiming under him.' And when a man was known to have taken certain premises for the purpose of carrying on a trade especially requiring light, it was said that the landlord would not be allowed to diminish the light in the slightest degree.' ^'antee'*''^ This principle was generalised in Ewart v. Cochrane,' where Campbell, L. C, said, "I con- sider the law of Scotland, as well as the law of ' Morris V. Lessees of Lord Berkeley, 2Ves. S. 452 ; Attorney- General V. Doughty, 2 Yes. S. 453 ; East India Company v. Vineent, 2 Atk. 83. 1 Palmer v. Fletclmr, 1 Lev. 122 ; 1 Sid. 167, 227 ; Cox v. Matthews, 1 Vent. 237 ; Hosewell v. Pryor, 12 Mod. 635 ; 2 Salk. 460 ; 1 Ld. Ray. 713 ; CouttsY. Gorham, 1 Moo. & Mai. 396 ; Blaneliard v. Bridges, 4 A. & E. 176 ; DaviesY. Marshall, 1 Dr. & Sm. 557 ; see Alstm, v. Grant, 3 E. & B. 128. 2 Jlertz T. Union Bank of London, 24 L. T. 137, 186 ; Fox v. Pursell, 3 Sm. & G. 242 ; Badeliffe v. Diih of Pm-tland, 10 \Y. R. 687. 3 4 Macq. 117 ; Pyer \. Carter, 1 H. & N. 916 ; Caledonian Railway Company v. Sprat, 2 Macq. 449 ; and see post, p. 152. Digitized by Microsoft® TO DWELLIKG-HOUSES. 101 Chap. II. Sect. 2. England, to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, any- thing which was used, and was necessary for the comfortable enjoyment of that part of the pro- perty which is granted, shall be considered to follow from the grant if there be the usual words in the conveyance. I do not know whether the usual words are essentially necessary, but where there are the usual words, I cannot doubt that that is the law." A more difficult question is, whether easements Bight of aa grantor. used for the enjoyment of the part of the pro- perty which is retained can be considered to be reserved out of the grant, in opposition to the usual maxim, that a grant is to be construed most strongly against the grantor. It is settled Basements of necessity. that a reservation of easements of necessity can be so implied,^ but there is considerable difficulty respecting lights.' In Palmer v. Fletcher' Kelynge, J., said, * Pennington v. Galland, 9 Exch. 1 ; Ricliards v. Rose, 9 Exch. 220 ; Pearson v. Spcrmer, 1 B. & S. 571 ; Dugdale v. Robertson, 3 K. & J. 695 ; and see post, p. 152. * "Habitare potest et Kclibus obscurajjs," Dig. Lib. viii. Tit. ii. §x. 6 1 Ley. 122 ; 1 Sid. 167, 227. Digitized by Microsoft® 103 NUISANCES Chap. II. Sect. 2. Houses built as part of the same plau. " Suppose the land had been sold first and the house after, the vendee of the land might stop the lights." Twysden, J., to the contrary said, " Whether the land be sold first or afterwards, the vendee of the land cannot stop the lights of the house in the hands of the vendor or his assignees." The authorities in favour of either opinion are collected below.' In Gompton v. Richards," two houses were built by the same proprietor about the same time as part of the plan of a new crescent, and were sold in an unfinished state at the same sale to different persons ; the openings which were intended to be suppUed with windows being sufficiently visible;" upon these facts a con- ' For opinion of Kelynge, J., Tenant v. Ooldwin, 2 Ld. Eay- mond, 1093 ; White v. Bass, 5 L. T. N. S. 843. For opinion of Twysden, J., Riviere v. Bower, By. & Moo. 24 ; Crook v. Wilson, 3 "W. R. 378 ; Gale on Easements, 3rd edit. p. 82. The fact tliat tlie windows are more than 20 years old wUl not raise the presumption of a lost agreement or entitle the owner to the benefit of Lord Tenterden's Act, Harhidge v. Warwklc, 3 Exoh. 552. It has been urged that to deprive a grantee of the land, of the right of building, is as much a derogation fi'om the grant, as it is in' the converse case to deprive a grantee of the house of the access of light and air. Gibbon's Law of Dilapida- tions and Nuisances, 377. ' 1 Price, 27 ; see Sirttnsborouffh v. Coventry, 9 Bing. 305 ; RiclmrdY. Rose, 9 Exch. 218; PycrY. Carter, 26 L, J. Exch. 258 " Qlave V. Harding, 27 L. J. Exch. 286. Digitized by Microsoft® TO DWELLING-HOUSES. 103 dition was implied that nothing should afterwards — ^^''^' ^^' — ° Sect. 2. be done by either purchaser, by which his neighbour's windows might be obstructed. There are three modes of establishing a title Rigtt to ancient ^ windows. to an easement by user, (1) By sufficient evidence of enjoyment during the whole time of legal memory ; (2) By proof of enjoyment for such time and under such circumstances as wOl justify the finding of a lost grant or agreement since the commencement of legal memory ; (3) By proof of enjoyment for such time and under such cir- cumstances as will satisfy the provisions of Lord Tenterden's Act.' The first mode of proof does not require that e"™^™°^*' the evidence should be carried back to the accession of Richard I. (1189), which has long been fixed as the date at which legal memory begins, because evidence of enjoyment for a shorter time is sufficient to raise a presumption of enjoyment for the whole period. Thus it was said by Parke, B., in Jenkins v. Harvey,' "A 1 2 & 3 Will. 4, c. 71. 2 1 Cr. M. & E. 894 ; 2 Cr. M. & R. 393 ; 5 Tyr. 326 ; Sury T. Pope, Cro. Eliz. 118 ; Blcv:M v. Tregonniiuj, 3 A. & E. 556 ; WeU V. Bird, 10 C. B. N. S. 268, in error, 8 Jur. N. S. 621 ; aNeill Y. Allen, 9 Ir. C. L. 132. Digitized by Microsoft® 104 NUISANCES Preseription. °'"^^- "• — clear usage from the year 1777 for a lessee to Sect. 2. _ *=" _ •' receive certain tolls, coupled with the proof of its being a valuable right in 1752, was amply sufficient to warrant the jury in presuming the practice to have existed time out of mind." A title made out in this manner is a title by Pre- scription, in the strict sense of the word ; but the term is frequently used of titles made out in the 2nd and 8rd modes. Prescription supposes a deed or document creating the right, to have existed before the time of legal memory ; ' and the title is conclusively defeated if the com- mencement of the enjoyment can be shown to have been subsequent to that epoch. In order to prevent an old title from failing in this manner, the Courts introduced the fiction, which is the basis of the second mode of proof. We have already pointed out that no action lies against a man for opening a new window which overlooks his neighbour's lands ; and conse- Ljght a negative quentlv light is an exception to the general rule e.isement, a. ^ o x o that the exercise of an acquired easement must, in the first instance, have been illegal ; for this Presumptinn of lost grant or agi eenient. 5 Potter V. North, ] Vent. 387 ; Best ou Presumptions, p. Digitized by Microsoft® TO DWELLING-HOUSES. 105 Chap. II. Sect. 2. reason it is called a negative easement.* Now, in the case of affirmative easements, if the owner of the land over which they are being exercised brings no action, and takes no step to obstruct the acts of enjoyment for twenty years, his acquiescence gives rise to the presumption of a grant of the easement having been made and lost ; and, by analogy to this doctrine, although the right of light perhaps does not lie in grant, and acts of enjoyment give no cause of action, yet if the owner of the neighbouring land allows the windows to remain unobstructed for twenty years, this is a sufficient foundation for the pre- sumption of an agreement or covenant by him not to obstruct them." No larger right, it would seem, can be acquired ^quS'^ tyfrS under this fiction than what some person in lost grant or agreement, existence during the usage shown, or a little earlier, and able to resist it, was capable of ■• Gale on Easements, 3rd edit. p. 18. 6 Cross V. Lewis, 2 B. & C. 686 ; Moore v. Rawson, 3 B. & C. 332 ; Penwarden v. Ching, 1 Moo. & Mai. 400 ; Stokoe v. Singers, 8 E. &B. 31 ; Weib v. Bird, 10 C. B. IST. S. 268, in error, 8 Jur. W. S. 621. The biirden of a covenant not to build does not run with the land at law {Spencer''s Case, 1 Smith, Lead. Ca.). As to equity see Tulk v. Moxhay, 2 PhQ. 774. Digitized by Microsoft® 106 NUISANCES '^°^''- ^^- creating." Thus, enjoyment adverse to a tenant Sect. 2. for life or years/ or a rector/ will not bind the inheritance. den's A™/"^" The anomaly of requiring a jury to find the existence of a grant or agreement where, in all probability, no grant or agreement ever existed, led to Lord Tenterden's Act,' which was intended to answer the same purpose. The preamble is, " Whereas, the expression, ' Time immemorial, or, time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such ^ Blewitt V. Tregonning, 3 A. & E. 583 ; Bright v. Walker, 1 C. M. & R. 211 ; Padmick v. Knight, 22 L. J. Ex. 198 ; see TyUr V. Wilkinson, 4 Mason, 402 ; Little v. Wingjkld, 11 Ir. C. L. 87. ^ Daniel v. North, 11 East, 372. As to acquiescence by reversioner see Gray v. Bond, 2 Bro. & B. 667 ; Rex y. Ban; 4 Camp. 16 ; Hanks v. Cribbin, 7 Ir. C. L. 489 ; Lineliam v. Deeble, 9 Ir. C. L. 309 ; 12 Ir. C. L. 1. 8 Barbery. Richardson, 4 B. & Aid. 579. For plea of grant by a dean and chapter before the resti'aining statutes, Bletoitt y. Tregonning, 3 A. & E. 556 ; and see Sutton v. Lord Mouiitfort, 4 Sim. 659. 3 2 & 3 WiU. 4, u. 71. Digitized by Microsoft® TO DWELLING-HOUSES. 107 enjoyment, which is in many cases productive of '^"-"'- "■ Sect. 2. inconvenience and injustice ; for remedy thereof be it enacted, &c."' The third section provides with regard to light, § 3. Light. " That when the access and use of light to and for any dwelling-house, workshop, or other building, shall have been actually enjoyed there- with for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." By the construction placed upon this section construction of Act. together with the fourth, it appears that there must be twenty years from the commencement of i>u™ti<"i.of ^ *' interruption. the right of enjoyment to the commencement of the suit, and that no interruption is to be con- sidered as preventing the twenty years from 1 The title "by lost grant has not been taken away by this Act. " The jury may .still find a grant to have been made, if they are satisfied that it was made in point of fact " (per Parke, B., Bright V. Walker, 1 C. M. & E. 222), but qu. whether the presump- tion of a grant may be made as before {JSlewitt y. Tregonning, 3 a: & E. 556 ; Webh v. Bird, 10 C. B. N". S. 268 ; 8 Jur. N. S. 621 ; Deeble v. lAneham, 12 Ir. C. L. 1 ; Wilson v. Stanley, 12 Ir. C. L. 345). Digitized by Microsoft® 108 NUISANCES Chap. II. Sect. 2. Twenty years' enjoyment binding ou the inheritance. Leaseo of ser- vient tenement. Lessee of domi- nant tenement. Right ap^ainst owner of a par- ticular estate. running, unless it has a duration of one year, so that if there has been an enjoyment for nineteen years and a fraction, and then an interruption takes place, the right may be established at the end of the twentieth year." The statute makes twenty years' enjoyment of light without interruption binding upon the inheritance of the premises upon which the re- striction is to be imposed, unless such user is had under some written consent. So that by negli- gence, or wilfully, a lessee may allow a valuable right to be acquired against his landlord's pro- perty ; and it is difficult to say what remedy, if any, the landlord has. It would probably be held that a right of light acquired by a tenant would enure to the benefit of the reversion; and questions may hereafter arise whether an interruption acquiesced in by a tenant, or a written consent accepted by him, would deprive the reversioner of the benefit of the statute. It has been decided that no title to an easement can be acquired under this statute against a lessee, except under circumstances which would give a valid right against the rever- FKgU V. Thomas, 11 A. & E. 695 ; 8 CI. & F. 231. Digitized by Microsoft® TO DWELLING-HOUSES. 109 sioner.^ As twenty years' enjoyment of light gives chap^il p6Ctj. it. such a right against a reversioner, it of course also gives a good title against a lessee. This was de- cided in Freiven v. Phillips* where, in the case of two lessees holding under the same reversioner, it was held that the enjoyment by one of the access of light over the premises of the other for twenty years conferred on the lessee so enjoying the light an absolute right. The demand and payment of rent for the use Hentnotaa iuterruptioa. of light is not an interruption under this section, but it may prevent the enjoyment from being such as to satisfy the statute.' It is in general necessary that rights claimed Legal origin. under this statute should be such as might, by possibility, have had a legal origin," but light va&j be an exception. 3 Bright v. Walker, 1 C. M. & E. 220 ; Wilson v. Stanley, 12 Ir. C. L. 845. ■> 11 C. B. N. S. 449 ; see Dart, V. & P., 3rd edit. pp. 246, 247. * Plasterers' Company v. Parish Clerics' Company, 6 Exch. 630 ; see Mayor of London v. Pewterers' Company, 2 Moo. & Rob. 409. As to what will constitute an interruption within the meaning of this statute, see Gale v. Abbott, 10 W. E. 748, Dart, V. & P., 3rd edit. p. 248. « Rochdale Canal Company v. Radclijfe, 18 Q. B. 287 ; Mill V. New Forest Cmnmissioners, 18 C. B. 60 ; National Manure Company v. Donald, 4 H. & N". 8. Digitized by Microsoft® 110 NUISANCES — ^^^^- '-^- — Unity of possession of the dominant and Sect. 2. Unity of pos- servient tenements will prevent a statutory right session. from arising, unity of ownership being necessary to extinguish a similar right at common law.' Custom of When a title to light is made under the statute, London, *^ an obstruction cannot be justified by the custom of London. But if the right exists only at the common law, the custom remains." Lossofrigiitby We have now to consider how the privilege of blocking up window. receiving light through a particular window may be lost. Where an ancient window had been blocked up with bricks and mortar for twenty years, Lord Ellenborough said that the case stood as if it had never existed ;" but blocking windows for a less period than twenty years will not destroy the right, unless it be done so as to manifest an intention of permanently abandoning the right of using them, or so as to lead the neighbour to incur expense or loss, with reasonable belief that they had been permanently abandoned.' 7 Onley v. Gardner, 4 M. & W. 499 ; Co. Litt. 114 t ; Gale on Easements. 8 Salters' Company v. Jay, 3 Q. B. 109 ; Truscott v. Merchant Taylor^ Company, 11 Exch. 856 ; see Wijiistanley v. Lee, 2 Swanst. 333 ; Fux v. Pursell, 3 Sm. & G. 242. ' LaivrancA v. Obee, 3 Camp. 614. 1 Stokoe V. Singers, 8 E. & B. 31. Digitized by Microsoft® TO DWELLING-HOUSES. Ill The right may also be lost by pulling down or — ""'"'• "• — altering the buildings in which the windows are puiungdowu''^ . ^ the building. placed. In Mooi'e v.Baivson,^ Littledale, J., said — " If a man pulls down a house and does not.make any use of the land for two or three 5'-earsor converts it into tillage, I think he may be taken to have abandoned all intention of rebuilding the house ; and consequently that his right to the light has ceased. But if he builds upon the same site ' and places windows in the same spot or does anything to show that he did not mean to convert the land to a different purpose, then his right would not cease." An owner who rebuilds or alters his Effect of altera- tions. house is of course not entitled to more light than before,* and the windows through which he re- ceives it must be substantially in the former place, and be neither larger nor more numerous.' If it happens that the new windows are partly in the same positions as the old ones and partly not, such portions of the new apertures as were open 2 3 B. & C. 332, 339 ; 2 C. & P. N. P. C. 466. 2 Fishmongers' Company v. East India Convpany, 1 Dick. 163. ■• Marten v. Goble, 1 Camp. 320 ; Garrett v. Sharp, 3 A. & E. 325. * Oherington y. Abney, 2 Veni. 646 ; East India Company v. Vincent, 2 Atk. 283. Digitized by Microsoft® 112 NUISANCES CnAP. ir. Sect. 2. Obstruction on tte owner's premises. before remain privileged.' But if there is no mode of obstructing the unprivileged portions alone, and the substituted lights are substantially different from the former ones in size or position, the owner of the servient tenement may obstruct the whole,' until the windows are restored to their former condition, when it seems, according to recent authorities, that the obstruction must be removed." When the owner of a house has removed an obstruction to light which had existed on his own premises for more than twenty years, it has been suggested that the adjoining owner may be en- titled to erect an obstruction as great •,' it is settled, however, that heavy sashes and frames " Luttrelts Case, 4 Rep. 87 a ; Chmidlcr v. Thompson, 3 Camp. 80 ; Oarrclt v. Shnrpe, 3 A. & E. 325 ; Blanchard v. Bridges, 4 A. & E. 176. ' CheriiigioiiY. Abney, 2 Vcrn. 046 ; RensJiMwy. Bean, 18Q.B. 112 ; Wilson v. Townend, 1 Dr. & S. 324 ; JDavies v. Marshall, 1 Dr. & Sm. 557 ; Turner v. Spooner, 1 Dr. & Sm. 467 ; Iliiteh- inson v. Copestake, 8 C. B. N. S. 102. ' Caukwell v. Russell, 26 L. J. Exoh. 34 ; Coopers. Jluhluck, 30 Beav. 160 ; Jones v. Tapling, 11 C. B. N. S. 283, in error noi; yet reported, now in H. L. ; BiiieLxs v. Posh, 11 C. B. N. S. 324. » Cutter ill V. GriffitM, 4 Esp. 69 ; Arccdechie v. Kelk, 5 Jur. N. S. 114. Digitized by Microsoft® TO DWELLING-HOUSES. 113 may be replaced by others of a lighter construe- — '^°^''- "■ — tion.' "Windows which have the privilege of receiving Passage of air. light have also, the privilege of receiving air, so that a neighbour may not obstruct them by a transparent screen or sky-light.° A prescription for the access of currents of air for trade purposes, such as drying timber^ or serving a windmill," can only be established (if at all) by such evidence as would justify the jury in finding that the en- joyment had existed from time immemorial. No action lies against a person for appropriating the benefit of such currents, and it is impossible to obstruct them without an unreasonable amount of labour and expense ; for these reasons no pre- sumption can be made of a lost agreement not to obstruct, and Lord Tenterden's Act does not apply to any negative easement except hght.° Differences of opinion have existed as to- the riokbummg. 1 Cliatidler v. Thompson, 3 Camp. 80 ; Turner v. Spoonsr, 1 Dr. & Sm. 467. 2 AldrecVs Case, 9 Eep. 58 b ; Radclijfe v. D'aTcc of Portland, V.-C. S., low. B. 687 ; Gale v. Ahlott, T.-C. K., 10 W. E. 748. 3 Roberts T. Macord, 1 Moo. & Bob. 230. ■> Webb V. Bird, 10 C. B. W. S. 268, in error, 8 Jur. N. S. 621. " Harbidge v. Warxmck, 3 Esch. 657 ; Webb v. Bird, 10 C. B. N. S. 268, in error, 8 Jur. N. S. 621. Digitized by Microsoft® 114 NUISANCES Burning, tem- porary. '^"^''- "■ manner and place in which bnckbuming may be Kcct. 2. carried on so as not to be a legal nuisance. The earliest case upon the subject seems to be The Duke of Grafton Duke ofGraftouY. HilUard." The defendants there V. UiUiard, had entered into articles of agreement for a ninety- four years' lease of a certain field called Brickfield, part of a farm called Hay Hill farm in the parish of St. George, Hanover Square ; there was brick- ciayoftheiand. earth upon part of the ground, which the defend- ants agreed by their articles not to burn except between the 1st of July and the last day of August. Lord Hardwicke refused on an interlocutory mo- tion to restrain them from burning this earth into bricks upon the land, observing, according to Lord Eldon's note, that the manufacture of bricks, though near the habitations of men, if carried on for the purpose of making habitations for them, is not a public nuisance. By the report in Ambler, Lord Hardwicke dwelt upon the fact that if it should appear at the hearing that it was no nuisance, he would be unable to make the defen- dants amends, as their time for burning would Lord Eldon's note. Report in Ambler. 6 4 De G. & Sin. 326 ; 16 Jur. 418 n. ; Attorney-General v. Clearer, 18 Ves. 219 ; 1 Amb. 159 ; Walter v. Selfe, 4 De G. & Sm. 324 ; 19 L. T. 308. Digitized by Microsoft® TO DWELLING-HOUSES. 115 have expired. In Walter v. Selfe,' Lord St. Leo- °''^''- "■ ^ "^ _ Sect. 2. nards stated that he had a MS. note from which Lord st. Leo- nards* note. he was induced to think that the decision went upon the fact that although there might be a nuisance, yet no nuisance was proved to exist. There were several plaintiffs, and the kiln was at the distance of sixty yards from the house of the nearest. "We next come to Barwell v. Brooks.^ sarmii^. Brooks. An exparte injunction had been granted to restrain the defendants from burning bricks on their own land, within 200 yards of the plaintiff's property, called East Cowes Castle, which he had recently purchased of Lord Shannon. On a motion to dissolve, made on the 27th April, 184-3, the de- fendant's affidavits stated that he had bought his land at a high price (not apparently from Lord Shannon or any person connected in title with him), for the purpose of a building speculation, that the bricks would not be burned in the parti- cular situation which gave rise to the complaint for more than a few months, that an old kiln existed at the same place, and that the plaintiff's real object was to impede the defendant's specu- 7 19 L, T. 308. 8 1 L. T. 75-454 ; 15 Jut. 418 n. I 2 Digitized by Microsoft® 116 NUISANCES — ''I''"*' "■ lation. The defendant said that he had taken Soot. 2. precautions to avoid unnecessary inconvenience to the plaintiff, and that the building scheme had been propounded and the plan made known to the plaintiff previously to his purchase, which he had made at a low price. The plaintiff averred that the bricks which had formerly been burned on defendant's property had been burned in a different and less objectionable place. The Vice- Chancellor of England held that the injunction ought to be dissolved, saying that the defendant by his answer stated that after he had made his pur- Notice. chase he communicated to Lord Shannon, then the owner of the plaintiff's mansion, the objects with which the farm had been bought, and he at once circulated a printed plan of his scheme of build- ing upon it, in which was stated the advantage of getting brick-earth upon the estate. That he then called the farm East Cowes Park, which ceased to be used as a farm, but was laid out as building land. That at the time of the plaintiff's purchase he Imew of the defendant's circular, and the plan of building and brickmaking was shown to him. None of these circumstances were men- tioned in the bill. That was indefensible, for had Digitized by Microsoft® TO DWELLING-HOUSES. 117 those facts appeared in the bill, the injunction ^"'''^- "■ Sect. 2. would not have been granted. By this suppres- sion of facts, the defendant had misconducted himself towards the Court. An injunction is only granted from necessity, for prima facie it is unjust, and all that had been disclosed by the answer should have been stated. He did not think the Bummg, tem- porary. defendant had unfairly stated in his answer that the brickburning would be temporary, because it was quite obvious that it would only last until the ground had been built upon. Neither was the plaintiff quite fair in the matter of the plan. The injunction was dissolved. The plaintiff then filed amended and supplemental bills denying notice and acquiescence, and renewed his application for an injunction. The points discussed were : 1. Whether there had been acquiescence ? 2. Whe- ther brickburning was a nuisance ? 3. Whether a Court of equity would restrain a qualified use of it for the temporary purpose of building ? There is no report of the judgment, but the injunction was granted as to a particular piece of land spe- cified in the order. This order and a subsequent order of committal for a breach of it were carried by appeal to Lord Lyndhurst, when by agreement Digitized by Microsoft® 118 NUISANCES ^«*-^- II- the injunction was made perpetual, and it was Sect. 2. referred to Mr. Swanston to award compensation Clay of the land, and costs. The clay burned seems to have been clay of the same land, but it is not clearly so stated. Walter v. seife. In Walter V. Selfe," the kiln was situated about forty-eight yards from the plaintiff's house, and the evidence established that the comfort of the occupier was materially interfered with. The Clay of the land, earth bumcd was of the clay of the land. Both parties asking the Court to decide without the intervention of a Court of law, the injunction was granted. An appeal was dismissed by Lord St. Leonards on the ground that the parties had bound themselves to abide by the decision of the Court below.' Poiioci: V. Lester. In Pollock V. Lestev," the defendant had a house and about an acre of ground on the opposite side of a high road to the houses of the plaintiffs, and at a distance of about sixty yards from the nearest of them. He pulled down Clay of the land, the house and dug up the clay in order to 8 4 De G. & Sm. 31 5 ; 15 Jnr. il8. ' 19 L. T. 308. This is not the present practice, Ennor v. BarwM, 4 L. T. K. S. 597. 2 11 Hare, 266. Digitized by Microsoft® TO DWELLING-HOUSES. 119 burn it. An interlocutory injunction was granted t!°^''- 1'- Sect. 2. on the undertaking of the defendants to proceed at law. The next case, Hole v. Barlow," has been the ^oie v. Bmu>w. subject of much comment. The plaintiff occupied a house in a newly formed road abutting upon a field belonging to the defendant, and upon which the defendant, preparatory to the building of cer- tain houses thereon, had excavated the clay and ciayoftheiand. converted it into bricks, which he carried to be placed in three clamps for burning near to the plaintiff's dwelling-house, one of them being within thirty feet of it. Two questions were left to the jury : 1. Was the place in which the bricks were burned a proper and convenient place for that purpose ? and if not, 2. Was the nuisance such as to make the enjoyment of life and property uncomfortable ? This direction was held to be correct. The jury returned a verdict for the de- fendants. This was followed at Nisi Prius in Bamford v. Bamfani v. Turnley,* where the plaintiff purchased a house on Notice. 3 4 0. B. N. S. 334 ; see Stockport Water Works v. Potter, 7 H. & N. 160 ; 7 Jiir. N. S. 880. ^ 2 Fos. & Fin. N. P. C. -231. Digitized by Microsoft® 130 NUISANCES Obap. II. Clay brought from other certain conditions and particulars of sale mention- ing " that the adjoining land was fit for brickmak- ing." The defendant had bought the adjoining land of the same owner, and had commenced brickmak- ing thereon, accumulating heaps of ashes for the purpose, which he brought from other places, not working up only the brick-earth excavated on his own land. The jury were directed that if the spot was a proper and conyenient spot, and the burning of the bricks was a reasonable use by the defendant of his own land, he was entitled so to use it, whether the plaintiff's comfort was inter- fered with or not. In the Exchequer Chamber,'' however, it was ruled that as an offensive trade would be indictable as a public nuisance if carried on in a place where it greatly incommoded a multitude of persons, so it would be actionable if carried on in a place where it greatly incommoded an individual, however convenient the spot might be for the purposes of the trader. But it was said that acts necessary for the common use and occupation of lands and houses, such as burning weeds, emptying cesspools, making noises during repairs, &c., although very annoying to a neigh- = 6 L. T. N. S. 721. Digitized by Microsoft® TO DWELLING-HOUSES. 121 bour, might be lawfully done, if done in a reason- ""*''■ "• Sect. 2. able way. Hole v. Barloiv was expressly over- ruled." It will be observed that in Barwell v. Brooks, Notice. Hole V. Barlow, and Bamford v. Turnley, the par- ties complaining of the nuisance had taken their houses knowing that the adjacent land was a likely place for brickmaking. But this alone would seem Doctrine of ■*■ ^ commg to a not to be suf&cient to deprive them of their remedies for the nuisance either in equity or at law. Lord Tenterden, indeed, once ruled ' that if a noxious trade is already established in a place remote from habitations, and public roads and houses are afterwards made and built so near to it that it becomes a nuisance, the party is still entitled to continue his trade. But this is probably not now law. At all events more recent cases ° have decided that where a trade is at its com- mencement a nuisance to occupiers of houses in the neighbourhood, succeeding occupiers have an * See further as to brick-'bu.riiing, Cleeve v. Mahany, V.-C. K., 9 W. E. 882 ; CaveyY. LedUtler, 3 Fos. k Fin. N. P. C. li ; Beardnwre v. Tredwell, V. C. S., compromised on appeal L. C. 26th July, 1862; Steven y. Child, N. P. 30th July, 1862. ^ Rex V. Cross, 2 C. & P. 488. 8 EUiotsony. Feetham, 2 Bing. N. C. 134; Bliss v. Hale, 4 Bins. N. C. 183. Digitized by Microsoft® 12a NUISANCES TO DWELLINGt-HOUSES. Chap. II. Sect. 2. Varioua uuisaucea to dwelling- houses. equal right to complain of it, unless a right to carry it on has been acquired by prescription. Other instances of nuisances to dwelling-houses where equitable relief has been sought, are soap- boiling,' coke ovens," smoke of a steam engine,' gas works,'' bell-ringing,' manufacture of gun- powder,' obstructing a chimney,' holding a re- gatta." A brewhouse is not necessarily a nuisance,' nor is a hospital for infectious diseases." For nuisances in general, see page 171, and see Appendix. ' Attom&y-GeneralY. Cleaver, 18 Ves. 211. ' Semjple v. London aiid Birminghmi Railway Company, 1 Elwy. Ca. 120 ; see King v. Dewey, 5 Esp. 217. ' Sampson T. Smith, 8 Sim. 272. 2 Haines v. Taylor, 10 Beav. 75 ; 2 Phil. 209 ; Sroadbent v. Imperial Gas Company, 7 D. M. G. 436 ; 7 H. L. G. 600. ' Soltau V. De Held, 2 Sim. N. S. 133. See Martin v. Nutkin, 2 P. W. 266. * Oroioder v. TinleUr, 19 Ves. 617. 5 Herveyy. Smith,'! K. & J. 389. ^ Bostoek V. North Staffordshire Railway Company, 5 De G. & Sm. 584 ; 4 E. & B. 798. ' Attorney-General v. Cleaver, IS Ves. 219 ; Gorton v. Smart, 1 S. & S. 66. " Baines v. Baker, 1 Amb. 158 ; 3 Atk. 750 ; Rex v. Sutton, 4 Bur. 2116 ; Rex T. Vantamdillo, 4 M. & S. 73. Digitized by Microsoft® NUISANCES EELATING TO WATEE. 123 Chap II. Sect. 3.— NUISANCES RELATING TO WATER. Sect. 3. The right to the use of running water is thus Eipiu^iaa ° propnetcrs. stated in Wright v. Hoivard." " Prima fade the proprietor of each bank of a stream is the pro- prietor of half the land covered by the stream,' but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream, and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water which would other- wise descend to the jiroprietors below, nor throw the waters back upon the proprietors above." '^ 5 1 S. & S. 190 ; Mason v. Eill, 5 B. & Ad. 1. As to riglit of proprietors of land on the banks of a navigable river, Vooght V. Winch, 2 B. & Aid. 662 ; Proprietors of Medway Navigation V. Earl of Romney, 4 L. T. N. S. 87. As to law of Lower Canada, see Miner v. Qilmmir, 12 Moore, P. C. 131. And as to law of America, Tyler v. WilMnson, i Mason, 397. ' Qy. whether riparian rights depend on the ownership of the soil of the stream. Wood v. Waud, 3 Exch. 748 ; Lord v. Commissioners of Sidney, 12 Moore, P. C. 473. ^ As to backwater, see Dawson v. Paver, 5 Hare, 415 ; Cooper V. Earlier, 3 Taimt. 99 ; Saunders v. Newman, 1 B. & Aid. 268 ; National Marnure Company v. Donald, 4 H. & N. 8. Digitized by Microsoft® CHiP. II. Saot. 3. Excessive use. Beasonable use. 124 NUISANCES This must be understood of operations in excess of the reasonable use of the water which the law allows to every proprietor; and it may be re- marked that in order to sustain an action, it is Actual damage, not necessai'y for the injured proprietor to show that he has incurred loss.' The question of what is considered in the English law to be a reasonable use of water by a riparian proprietor, was discussed in Embrey v. Owen." The plantiffs were millowners, and the defend- ants, who were upper riparian proprietors, used from time to time to divert a part of the water for the purpose of irrigation, and then return it, some small amount being lost by absorption and evaporation. The Court abstained from laying down that it would in every case be deemed a lawful enjoyment of the water if it was again returned into the river with no other diminution than that so caused, but it was held that as the irrigation in the case then under consideration '^ Wood V. Waud, 3 Exch. 748 ; Einh-ey v. Owen, 6 Exch. 353 ; Savipson v. Hoddinoit, 1 C. B. W. S. 590 ; Fcrrand v. Corpora- tion of Bradford, 2 Jur. N. S. 175 ; Tohin v. Stoioell, 9 Moore, P. C. 71 ; Lord NorUiry v. KUchin, N. P. 29tli July, 1862. * 6 Exch. 353 ; see further, on the subject of irrigation, on V. Hoddlnott, 1 C. B. N. S. 590. Digitized by Microsoft® RELATING TO WATEK. 125 took place not contiiyipusly, but only at intermit- — ^°^''" ^' — tent periods, and no damage was done thereby to the working of the mill, and the diminution of the water was not perceptible to the eye, it was such a reasonable use of the water as not to be prohibited by law. The loss of water in this case was not more than 5 per cent. In Miner v. Gilmour,^ Lord Kingsdown stated MinerM.QUmour the law of Lower Canada, which he said did not materially differ on this question from that of England in the following terms : " By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land ; for instance, to the reasonable use of the water for his domestic purposes and for his cattle,^ and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, pro- vided that he does not thereby interfere with the rights of other proprietors either above or below 5 12 Moore, P. C. 131. « Manning v. Wasdale, 5 A. & E. 758. Digitized by Microsoft® 126 NUISANCES Chap. II. Sect. 3. Source of a Btreatu. Fouling a stream. No actual damage. him. Subject to this condition lie may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation.' But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury." If the stream begins to flow in a defined chan- nel directly it Springs from the ground, these principles become at once applicable, so that the owner of the land in which it has its source cannot interrupt or appropriate it.° A riparian proprietor has further a right to have, the water of a natural stream run through his land in its natural purity. In Wood v. Waud,^ the jury found that the defendants had fouled the water of the stream by pouring in soap-suds, woolcombers' suds, &c. ; but that such pollution of the natural stream had done no actual damage to the plaintiffs, because it was ^ See Northam v. Hurley, 1 E. & B. 665, a case of graat. 8 Sudden v. Gitardimis of the Clutton Union, 1 H. & N. 627; see Ennor v. Barwell, 2 Gift. 410 ; on appeal, i L. T. N. S. 597 ; BrovmY. Best, 1 WUs. 174. 9 3 Exch. 748 ; Stockport Water WorTcs v. Potter, 7 Jur. N". S. 880 ; 7 H. & N. 160 ; HiiMna v. BirmingJiam, d-c, Gas Com- pany, 5 H. & N. 74 ; 6 H. & N. 250. Digitized by Microsoft® RELATING TO WATEB. 127 Chap. II. Sect. 3. already so polluted by similar acts of millowners above the defendants' mills, and by dyers still further up the stream, and some sewers of the town of Bradford, that the wrongful act of the defendants made no practical difference ; that is, that the pollution by the defendants did not make it less applicable to useful purposes than such water was before. The Court thought, not- Damage iu law. withstanding, that the plaintiffs had received damage in point of law. They had a right to the natural stream flowing through the land in its natural state, as an incident to the right to the land on which the watercourse flowed," and that right continued except so far as it might have been derogated from by user, or by grant to the neighbouring landowners. It was a case, therefore, of an injury to a right. The defendants, by continuing the practice for twenty years, might establish the right to the easement of discharging into the stream the foul water from their works. If the dyeworks, and other manufactories and other sources of pollution above the plaintiffs, should be afterwards discontinued, the plaintiffs, 1 Ante, p. 123 n (1). Digitized by Microsoft® 128 NUISANCES — 9S±^J]: who would otherwise have had in that case pure Sect. s. water, would be compellable to submit to this nuisance, which then would do serious damage to them. lujuiictian. The Same plaintiffs recovered a farthing damages in an action which they brought against another firm for polluting the same stream, and then applied for an injunction. This was re- fused on grounds which will be found stated hereafter.' weeisy.Heward. In the rcccut casc of Weeks v. Heward^^ the defendants were polluting a stream which sup- plied certain watercress-beds of the plaintiff. The bill prayed in effect that they might be restrained from draining foul water, or per- mitting it to flow, to the spring and watercress- beds of the plaintiff, and from causing any damage or injury to such watercress-beds. An interlocutory motion for an injunction was re- fused, on the ground that the defendants had as much right to use the stream for drainage, as the plaintiff had for growing watercresses, in the absence of any prescriptive right. 1 Wood V. Sutdife, 2 Sim. N. S. 163. 2 10 W. K. 657. Digitized by Microsoft® RELATING TO WATER. 199 Chap. IF. Sect. 3. This case does not throw any doubt on the right of a riparian proprietor to receive the water unpolluted. If this right was asserted (which is not quite clear) the Court might well refuse to restrain a violation of it, if the only damage alleged was to an user of the water by the plaintiff which was considered to be itself excessive. A claim to foul a natural stream by pouring Loraienter- ■^ -^ ° den's Act. dirty water ^ or throwing rubbish " iato it, is ^"^""s- within Lord Tenterden's Act.' Eights to water may be created by deed, or Eight to water created by deed. parties may thereby modify the rights which they would have had as riparian proprietors." An artificial stream, produced by the drainage ^^^^'^f^^^' or other operations of one proprietor, is often not a burden merely, but also a benefit to the owner of a lower tenement through which it is con- ducted. The upper proprietor may gain by long rroprietors. 3 Wright v. Williams, 1 M. & W. 77. ■• Carlymi v. Lovering, 1 H. & W. 798. 5 2 & 3 Will. 4, u. 71 ; see Murgatroyd v. Hobimon, 7 E. & B. 391 ; Moore v. Webb, 1 C. B. ]S". S. 673. ^ Nortkam v. Hurley, 1 E. & B. 665 ; Whitehead v. Parks, 2 H. & N. 870 ; Lee v. Stevenson, i Jur. N. S. 950 ; Wardle v. Brocklchurst, 6 Jm. N. S. 374. Digitized by Microsoft® 180 NUISANCES Chaf. II. Sect. S. Intermediate proprietors. Pollution. Distinction between natural and artificial enjoyment a right to continue the discharge, but the lower proprietor does not so acquire a right to insist on such continuance.' In the absence of contract' an intermediate owner may, in the first instance, intercept the water, but, after twenty years' user, the lower proprietor gains a right to the flow as against him.' Neither the upper proprietor nor the intermediate owners may poUute the stream, as that would be throw- ing a greater burden upon the owners below;' but, of course, they may acquire a right to do so by long user. It seems that a natural stream does not cease to be so by reason only of its flowing in an arti- ficial bed, and on the other hand, although a stream which is created by the will or for the convenience of man, may seek out a natural channel for itself, the adjoining landowners do ' Lord FalTnoutli v. Innys, Mos. 87 ; Dawson v. Paver, 5 Hare, 415 ; ArkwrigU v. Gell, 5 M. & W. 203 ; Ormtrex v. Hayioard, 8 Excli. 291 ; Sharp v. Waterlumse, 3 Jui-. N. S. 1022 ; Sampson v. Hoddinott, 1 C. B. N". S. 590 ; Briscoe v. Drought, 11 Ir. C. L. 250. ^ Ditke of Devonshire v. Elgin, 20 L. J. Gh. 495. 9 Wood V. Waud, 3 E.xuh. 748 ; ArkwriqU v. Gell, 5 M. & W. 203 ; Briscoe v. Drought, 11 Ir. C. L. 250. 1 Magor v. Chadmck, 11 A. & E. 571 ; Wood v. Watid, t3 Exch. 748. Digitized by Microsoft® RELATING TO WATER. 131 not thereby acquire the rights of riparian pro- chap, ii^ Sect. 8. prietors." In Arkwriqht Y. Gell,' a stream of water from ArkwrigMv. a mineral field had flowed for more than twenty years through an artificial sough or level to the plaintiff's cotton mills. Persons in the same legal position as the owners of the field con- structed another sough on a lower level so as to drain a further part of it, whereby the plaintiff's stream was diverted. It was held that no action lay for this diversion. The cases were reviewed in Wood v. Waud," wooa v. wand. and the rule laid down that no action will lie for an injury by the diversion of an artificial stream of water, where, from the nature of the case, it is obvious that the enjoyment of it depends upon temporary circumstances, and is not of a perma- nent character, and where the interruption is by a person who stands in the situation of a grantor, or (in the case of a modern stream) is a pro- 'or V. Chadwick, 11 A. & E. 571 ; Beeston v. Weate, 5 E. & B. 986 ; North Eastern Railway Company v. Elliott, 1 J. & H. 164 ; 2 D. F. & J. 423 ; Briscoe v. Drought, 11 Ir. C. L. 250 ; see Wood r. Waud, 3 Exch. 748 ; Sampson v. Hoddi- nott, 1 C. B. N. S. 590. 3 5 M. & "W. 203 (decided 1839). * 3 Exch. 748. k2 Digitized by Microsoft® 133 NUISANCES Chap. II. Sect. 3. wick. prietor and occupier of land above, through which the ■watercourse passes. It was thrown out, however, that possibly neither the grantors nor any other person might be at liberty to pollute the stream whilst it continued to run, apparently for the reason that this would increase the burden thrown upon the lower owner. Mapror V. Chad- Again in Magor v. Chadwick,^ it appeared that the stream claimed by the plaintiffs flowed from the mouth of an adit or underground passage, in adjoining lands not belonging to the plaintiffs, and which had been . originally made more than fifty years before by the owner of a certain mine for the purpose of clearing the water from it, but that the mine had not been worked for more than thirty years past, that after the working was discontinued the plaintiffs availed themselves of the water coming along tliis channel to brew beer, and after clearing the adit themselves had for more than twenty years obtained from it pure water for that purpose, and had erected a brewery there at a great expense. The defendants were owners of other mines, and » 11 Ad. & El. 571 (decided 1840). Digitized by Microsoft® RELATING TO WATEE. 133 liad lately used the old adit for the purpose of draining them, and had thereby fouled the water, and made it unfit for brewing. It was not shown that they were connected with or claimed under the owners of the adit or of the first mine or of the lands through which the water flowed. The defendants contended that a custom pre- vailed in Cornwall, by virtue of which an adit once made might at any time be again employed for that purpose. The jury negatived the custom. The learned judge (Patteson, J.) directed the jury that in the absence of custom artificial water- courses ' are not distinguishable in law from such as are natural, and that twenty years' enjoyment would therefore warrant the jury in finding in favour of the right. A rule nisi for a new trial on the ground of misdirection was discharged. Lord Denman saying that the custom was not expressly pleaded, and that the defendants were not the makers of the adit, but were strangers and wrong- doers. It was suggested that those who formed the channel might have a superior right to the plaintiffs. ^ Meaning apparently artificial channels, and not, as it lias been sometimes taken, streams artificially produced. Chap. II. Sect. 3. Digitized by Microsoft® 134 NUISANCES Chap. II. Sect. 3 GreatrtiX v. Hayward. Whalley 1 Lalng Defiuition of a "Wtitercourse. So in Greatrex v. HaywardJ it was held that the flow of water for twenty years from a drain made for the purpose of agricultural improve- ments, does not give a right to the neighbour so as to preclude the proprietor from altering the level of his drain. In Whalley v. Laing^ the plaintiffs made a cut from a canal, by the permission of the owners, and conducted water through it to their own premises. Afterwards the defendants discharged foul water into the canal from their works, the owners of the canal not forbidding it, whereby the water which the plaintiffs drew off became less fit for use. It was held that the action could not be maintained on the pleadings as they stood, and it was the opinion of some of the learned judges that the facts disclosed no cause of action. A watercourse is said' to be "a flow of water possessing that unity of character by which the flow on one person's land can be identified with ? 8 Exch. 291 (decided 1853). 8 2 H. & N. 476 ; 3 H. & N. 675, 901. ^ Briscoe v. Drought, 11 Ir. C. L. 250 ; per Chris- tian, J. Digitized by Microsoft® EELATING TO WATER. l35 that dn his neighbour's." Such a flow will gene- °^"- "■ rally, and perhaps necessarily, take place in a defined channel either above or below ground.' We have now to deal with water which does not J"^'?'' °?' nowmg m a flow in this manner, but is either diffused over the surface or percolates underground. The owner of land lying on a lower level is Drainage. bound to receive the water which drains naturally from land on a higher level ; but the upper pro- prietor, by a particular system of drainage or otherwise, may cause such water to flow on to his neighbour's premises in ah injurious manner so as to give a cause of action.'' The general law respecting the right to streams is not appUcable to water which does not flow in any defined channel. Any landowner may collect Property in and appropriate as much of such water as he pleases, either from the surface or by digging a well,' or he may drain it away for the better culti- 1 Dickenson v. Grand Junction Canal Company, 7 Exch. 300; Chasemore v. Richards, 7 H. L. C. 349 ; Sex v. Itihabitants of Oxfordshire, 1 B. & Ad. 301. ' Haward v. Banlces, 2 Burr. 1113 ; Smith v. Kenrick, 7 C. B. 515 ; 18 L. J. C. P. 172. ' Hammond v. Sail, 10 Sim. 551 ; Oliasemore v. Eiduirds, 7 H. L. C. 349 ; New Biver Company v. Johnson, 6 Jur. N. S. 374. Digitized by Microsoft® 136 Cbap. II. Sect. 8. Water in miues. NaiSANCES vation of his lands/ or in the course of mining or other works," notwithstanding that the effect may be to leave his neighbour's land dry. Although, as a general rule, a man is bound not to allow his drainage water to flow on to his neighbour's land injuriously, yet the owner of a coal mine who works it in an ordinary and proper manner ' is not responsible for a flow of water which may thus be occasioned into a neighbouring mine,' the miner's maxim being that water is a common enemy, against which every man must protect himself. The practice is said to be that each owner works to the end of his boundary on the dip of his beds, and leaves a barrier of his own mineral on the rise.° If an upper owner trespasses upon the barrier of a lower owner he is liable for the conse- '' Balston v. BensUd, 1 Camp. 463 (overruled) ; Rawstron v. Taylor, 11 Excli. 369 ; Broadhent v. Samsbotham, 11 Exch. 602. As to public drainage, see Manchester, &C., Company v. WorTcsop Board of HeaWi, 23 Beav. 198 ; Stainion v. Woolrych, 23 Beav. 225. 5 Acton V. Blundell, 12 M. & W. 324 ; Galgay v. 0. S. and W. Railway, 4 Ir. C. L. 456. « Walker v. Fletcher, 3 Bli. 172.- ' Fir-mstone v. Wheeley, 2 Dowl. & L. 203 ; Smith v. Ken- riclc, 7 G. B. 515; 18 L. J. C. P. 172; Sulce of Beauforl-v. Morris, 6 Ha. 346 ; 2 Phil. 683. ^ Bainbridge on Mines, 426. Digitized by Microsoft® RELATING TO WATER. 137 quential damage as well as for the value of the — °"^''- "• — Scot. 3. coal, but he is not bound to fill up the excavation which he has made,' But in Lord Mexborough V. Bower,^ the tenant of a colliery was restrained by his landlord from allowing a communication, which the tenant had opened with an adjoining mine in breach of covenant, to remain open. The existence of water in a drowned mine may Diowned mine. produce an indirect benefit to the adjacent tene- ments. But as such a state of things is obviously accidental and temporary, no right can be ac- quired by prescription to resist the withdrawal of the water.'' Altering the ancient course of flood water so as Flood water. to throw it in greater quantity upon a neighbour's land, appears to be a nuisance of a similar kind to diverting a stream flowing in a bounded channel.' s Clegg v. Dsarden, 12 Q. B. 576 ; Powell v. Ailcen, 4 K. & J. UZ. 1 7 Beav. 127. 2 Birmingham Canal Company v. Lloyd, 18 Ves. 616; North Eastern Railway Company v. Elliott, 1 J. & H. 145 ; 2 D. F. & J. 423, now in H. L. 3 Bex V. Trafford, 1 B. & Ad. 874 ; Traffmd^. Rex (in error), 1 M. & Sc. 401 ; 8 Bing. 204 ; 2 C. & J. 265 ; 2 Tjr. 201 ; see WioTcs T. Hiunt, J. 372 ; Lawrence, v. Great Nortliem Railway Company, 16 Q. B. 643. Digitized by Microsoft® 138 NUISANCES Chap. II. Sect. 3. Injunctions, Substantial damage. Rochdale Canal Company V. King. Injunctions of course lie to protect the legal rights of riparian proprietors to the flow' or purity" of a stream, but substantial damage must be shown to exist either in the way of loss of enjoyment of the stream/ or, as in The Rochdale Canal Company v. King,' by loss of the profit which the plaintiffs could have obtained by licensing the infringement. There the Eochdale Canal Company was a company established for the purpose of making and maintaining a canal, which the public had a right to use on the pay- ment of tolls. Special privileges were given to particular persons of drawing off a certain quan- ' Gary, 36 ; Finch y. Sesbridge, 2Verii. 390; JBwshv. Western, Prec. Ch. 680 ; Weller v. Smeaton, 1 Bro. C. C. 672 ; RoWnsmi V. Lord Syron, 1 Bro. C. C. 688 ; 2 Cox, 4 ; Eerrison v. Sparrow, 19 Ves. 449 ; G. Coop. 305 ; DewUrstY. Wrigley, 1 C. P. Coop. 319 ; Elwell v. CrowtJier, 10 W. E. 615 ; 6 L. T. N. S. 696. * Elmhirst v. S-pewxr, 2 Mac. & Gor. 45 ; Wood v. SutcUffe, 2 Sim. N. S. 163 ; Oldaker v. Eunt, 6 D. M. & G. 376 ; 3 Eq. Eep. 671 ; Attorney General v. Luton Board of Health, 2 Jur. N. S. 180 ; Manchester, Sheffield, and Lincoln Railway Cumpany T. Worksop Board of Health, 23 Beav. 198 ; Attorney-Oe/neral V. Borough of Birmingham, 4 K. & J. 628 ; Seton on Decrees, 3rd ed. 894. * Elmhirst t. Spencer, 2 Mac. & Gor. 45 ; Wood v. SutcUffe, 2 Sim. N. S. 163 ; Attorney-General v. Manchester and Leeds Railway Company, 1 Rlwy. Ca. 436, 7 2 Sim. N". S. 78 ; 14 Q. B. 122 ; 16 Beav. 630 ; Rochdale Canal Company v. Radcliffe, 21 L. J. Q. B. 297 ; see Tipping V. Eckersley, 2 K. & J. 264. Digitized by Microsoft® RELATING TO WATEB. 139 Chap. II. Sect. 3. tity of water for particular purposes, and the surplus was given to the Duke of Bridgewater. The company obtained a shilling damages from a mill-owner on the bank, who was drawing off water for an unauthorised purpose, but not so as to obstruct the navigation. They then applied for an injunction, which was resisted on the ground that the subject matter was too trifling for the interference of a Court of Equity. Lord Cranworth, V.-C, dissented from that proposition, saying that if the title of the plaintiffs was once clearly established, the right was one of great value, though the damages recovered in each par- ticular action might be very small or merely nominal; for the necessities of the defendants would oblige them to pay a water-rent for the right required. The principles upon which injunctions of this woodT. sut- cliffe. kind depend are fully considered in the case of Wood V. Sutcliffe.' The facts were that the plaintiffs had acquired by long enjoyment the right of using the water of the stream for washing wool and generating and condensing » 2 Sim. N. S. 163 ; Wood v. Waud, 3 Exch. 748. Digitized by Microsoft® 140 NUISANCES Farthing damages. Legal right. '^°'*^- ^^- steam. The defendants, who were dyers, had poured the refuse of the matters used in their business into a drain, communicating with the stream, and so polluted it, for which the plain- tiffs brought an action against them, and reco- Tered a farthing damages. Afterwards a bill was filed, and upon a motion for an injunction, Kin- dersley, V.-C, said : " I conceive that if parties have established such a legal right as the plain- tiffs in this case have established, and another person comes and erects works on the same stream, above their works, and, by his manufac- turing process, so fouls the water of the stream as seriously and continuously to obstruct the effective carrying on of their manufacture ; and, if the granting of an injunction will restore, or tend to restore those parties to the position in which they previously stood, and in which they have a right to stand; and if the injury com- plained of is of such a nature that damages will ?de"Sate?on>'' ^°* ^^ ^^ adequate compensation, that is, such a pensa lo . compensation as will in effect, though not in specie, place them in the position in which they previously stood ; and if, moreover (for there are DuodUigeno Several conditions), they use due diligence in Bestoring position. Digitized by Microsoft® EELATINa TO WATER. 141 vindicating their rights, they have, in general, a °°*''- "■ right to come to a Court of Equity and say : ' Do not leave us to bring action after action for the purpose of recovering damages, but interfere, with a strong hand, and prevent the continuance of the acts we complain of, in order that our legal right may be protected and preserved to us.' I say, in general; because, whenever a Court of Equity is asked for an injunction in cases of such a nature as this, it must have regard not only to the dry, strict rights of the plaintiff and defendant, but also to the surrounding circumstances ; to the rights or interests of other persons which mav be Rights or ° r J interests of more or less involved: it must, I say, have regard °"'^'' p^™"''- to those circumstances before it exercises its jurisdiction (which is unquestionably a strong one) of granting an injunction. I have used the Nature of terms 'seriously obstruct,' because I cannot assent to the proposition that, on the mere dry fact of the plaintiffs having the abstract right, a Court of Equity will, as a matter of course, on that right being established at law, grant an injunction if the right be infringed ever so minutely. On the other hand, I am far from saying that because, in the action at law, the jury has given only a Digitized by Microsoft® 143 XUISANCES '•''''^''' "• shilling, or a farthing damages, that is a ground Sect. 3. , T , . . . . for concluding that the injury is not serious, and that the case is one in which an injunction ought not to be granted. I have used, also, the terms ' continuously obstruct,' by which I mean to indicate ' obstruction frequently recurring,' not ' never ceasing.' " Having stated the conditions which are requisite to induce the Court to grant an injunc- tion in such a case, I proceed to consider how far those conditions are satisfied in the present case. One of those conditions is that the injunc- tion, by stopping the acts complained of, will restore or tend to restore the party complaining, to the enjoyment of that right which he has established against the defendant. I say ' restore or tend to restore,' because I conceive it is no answer to an application of this sort, for the others polluting defendant to say that other persons, as well as the stream. he, are polluting the stream, and that therefore the injunction will not restore the plaintiff to the enjoyment of his legal right, inasmuch as it will not prevent those other persons from continuing to pollute the water ; for the plaintiff must sue each of the wrong-doers separately; unless, Digitized by Microsoft® RELATING TO WATER. 143 Chap. II. Sect. 3. indeed, they are acting in partnership or in con- cert together; and the obtaining of an injunction against any one of the wrong-doers, though it may not actually restore, does tend to restore the plaintiff to the enjoyment of his right, as it is a step towards obtaining an injunction against each of them. " Now the plaintiffs require water for three purposes ; namely, washing wool, generating steam, and condensing steam ; for the first two of which, purity is an essential quality. Not only the defendants, but the Messrs. Eipley, and other persons, have manufactories on the banks of the stream, above the plaintiffs' mUls. The works of Messrs. Eipley, who are dyers, were established long before the plaintiffs' mUls were ; but the works of the other persons were esta- blished at a comparatively recent period. Besides Pollution inevit- ■*■•'■*■ able by reason those various works, a very large and dense tion. °^°^ population has gradually grown up on or near to the banks of the stream. No doubt, however, there was a time, and probably not a very remote one, when the stream, or that portion of it which lies between Messrs. Eipley's works and the plaintiffs' mills, flowed through open fields, pure Digitized by Microsoft® 144 NUISANCES Chap. II. Sect. 3. and unpolluted, to the plaintiffs' mills. But whenever human beings congregate in large numbers on the banks of a stream, the inevitable consequence is, that a great quantity of sewerage is discharged into the stream, which necessarily has the effect of polluting it. Therefore, to some considerable extent, the pollution of this stream is inevitable. Not all the courts of law and equity in the kingdom can prevent it; for they cannot remove the mass of human beings who are congregated on the banks of the stream. The plaintiffs themselves have been obliged to submit to the inevitable consequence of this increase of population, and have been compelled to procure pure water from another source, by sinking a well on their own premises for that purpose ; and for many years before the defen- dants commenced their works, the plaintiffs ceased to use the water of the stream for washing wool, and used it only occasionally, that is to say, when the machinery of the weU was out of order, even for the purpose of gene- rating steam. Therefore, if this injunction were granted, it would not have the effect of restoring, or tending to restore, the plaintiffs to the position Digitized by Microsoft® RELATING TO WATER. 145 in wMcli they originally stood; for the water ^^''^' ^' Sect. 3. would still flow to their mills in so polluted a state that they could not use it, as they origi- nally did, for either washing wool or generating steam. "On the other hand, to grant the iniunction injuuction a ' <^ *> great mjury to ITT .T pp , p • T*'- • p .the defendants. would nave the enect or seriously mjurmg, li not ruining the defendants. Weighing, then, the injury that may accrue, to the one party or the other, by granting or refusing the injunction, I think that, if my decision were to turn upon tliis point alone, I should be bound to refuse it. "Another condition which, as I have said, is damages an ' ' adequate cotn- necessary in order to induce a Court of Equity to interfere, by injunction, in a case similar to that now before me, is that the mischief com- plained of is such that it cannot be properly and adequately compensated by pecuniary da- mages. " Now let us see how the matter stands in this respect. Many years before the defendants' works were commenced, Mr. Dixon, Messrs. Greenwood, and other individuals, had works in what is, aj)tly enough, called the nest of facto- Digitized by Microsoft® 146 NUISANCES Chap, II, Soot. 3. ries immediately above the plaintiffs' mills ; and they, also, having polluted the stream, the plaintiffs threatened to bring actions against them : whereupon they entered into deeds of arrangement with the plaintiffs, by which, in order to avoid litigation, they agreed to pay the plaintiffs at the rate of 21. per annum per horse- power, for the right of polluting the water. Now, if such an arrangement as that can be made, ought I to grant an injunction in order to compel the defendants to enter into it, when the bringing of an action would be almost (I will not say quite) as efficacious ? If the plaintiffs desire to apply to the defendants a certain pressure, in order to bring them to terms, I think that I ought to leave plaintiffs to that pressure which may be applied by means of an action or actions at law. If the plaintiffs brought an action, and, the matter being repre- sented to the jury, the jury were satisfied that the defendants ought to come to terms, they might give the plaintiffs 501. or lOOZ. damages, instead of a farthing, a shilling, or forty shillings. On the ground, therefore, that the plaintiffs themselves have shown that the injury they com- Digitized by Microsoft® EELATING TO WATER. 147 plain of is one which, in some way, may be com- ^''^''- ^'- Sect. 3. pensated by money, I think that I ought not to grant the injunction. " But I do not rest my decision upon either of Grouud of the grounds which I have mentioned. The principal ground upon which I conceive that I must refuse this injunction, is that the plaintiffs have not used due diligence in vindicating their diligence, rights. They stood by whilst the defendants were constructing their works, and they suffered the defendants to use their works after they were constructed, from the beginning of 1845, until the beginning of 1850, a period of nearly five years, without giving them any hint that they were doing anything that they had not a lawful right to do ; and if there had been nothing else in this case, I should have been of opinion, on this ground alone, that the plaintiffs were not entitled to the injunction. "I incline to think also that the injunction other gi-ounda. ought to be refused on the ground that the injury complained of is capable of being compensated in money ; and in my opinion it ought also to be refused on the ground that the granting of it would inflict serious damage on the defendant l2 Digitized by Microsoft® 1^8 NUISANCES EELATING TO WATER. — "°'^''' ^'^' without doing any real practical good to the Sect, 3. plaintiffs." watercmSse. In M'Swmey V. Haynes," the plaintiff was the proprietor of extensive mills, which he had enjoyed, together with the mill-stream and the waters incident thereto, for upwards of twenty years. An ancient weir extended across the river from the mouth of the plaintiff's mill-race to the defendant's grounds on the other side of the stream, and turned into the mill-race the whole of the stream when necessary. The plaintiff was accustomed to repair the weir. The defendant having ploughed near to the bank on his side, a heavy flood burst through, making an entirely new passage for the stream, and leaving the plaintiff's mill-race dry. The plain- ■ tiff claimed to go on to the defendant's land, in order to make the necessary repairs, and the defendant was restrained on an ex parte motion from preventing him from so doing. 2 1 Ir. E(i. 322 ; Peter v. Daniel, 5 C. B. 568. Digitized by Microsoft® NUISANCES EELATING TO SUPPORT. 149 Chap. II. Sect. 4.— NUISANCES RELATING TO SUPPORT. Sect. 4. The Common Law gives to every land-owner SoU. Lateral support. the right to have his own soil in its natural state supported by the adjoining soil or by some equi- valent, so that no one is entitled to remove his own soil in such a manner as to cause his neigh- bour's land in its natural state to fall in.' In mining districts, the surface and the strata soU. Vertical sup- lying under it frequently belong to different p""^'- persons. Originally there must have been unity of title, either in the Crown or a subject, from the surface to the centre of the earth, and the mutual rights will generally have been ascertained and settled at the time of the severance. But where the soil lying over the minerals belongs to one man, and the minerals to another, no evidence of title appearing to regulate or qualify the enjoy- ment, the owner of the surface unincumbered by 3 Wilde v. MinsterUy, 2 Roll. Abr. 564 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Sunt v. Peake, J. 705 ; North Ecistern Mil- way Company v. BUioit, IJ. & H. 154 ; 2 D. F. & J. 423 ; now on appeal to the House of Lords. Digitized by Microsoft® 150 NUISANCES Sect. 4. Modem build- ings. buildings, and in its natural state, is entitled to have it supported from below." Excavated soil. A man may so weaken his soil by mining or other excavations under it, that the surface shall require more lateral support than before. It is not settled whether there is a natural right to such additional support, but if not it may pro- bably be gained by long enjoyment." These rights of lateral and vertical support extend to buildings not so heavy as sensibly to increase the tendency of the soil to subside." But there is no right of support from the adjacent land for new buildings which exceed that weight.' ■• Lems Y. Marsh, 8 Hare, 97 ; HumpTiries v. Brogden, 12 Q. B. 739; Smart y. Morton, 5 E. & B. 30 ; Rmuhotham y. Wilson, 6 E. & B. 593 ; 8 E. & B. 123 ; 8 H. L. C. 318 ; Rolerts T. Haines, 6 E. & B. 643 ; 7 E. & B. 625. * Partridge, v. Scott, 3 M. & W. 220 ; Browne t. Robins, i H. & K". 186 ; see post, Ancient Buildings. ^ Smart v. Morton, 5 E. & B. 30 ; Roberts v. Haines, 6 E. & B. 643 ; 7 E. & B. 625 ; Bonmni v. Backhouse, E. B. & E. 622; 9 W. R. 769 ; Brotmi v. RoKvji, 4 H. AST. 186 ; Hunt v. Peake, J. 705 ; Stroyan v. Knowles, 6 H. & N. 454. See as to letting down the bed of a watercourse, ElwellY. Crowther, 10 W. R. 615; 6 L. T. N. S. 696. ' Wilde V. Minsterlcy, 2 Roll. Abr. 564 ; Palmer y. Fletcher, 1 Sid. 167, 222 ; Wyait y. Harrison, 3 B. & Ad. 871 ; Dodd v. Holme, 1 A. & E. 493 ; Partridge y. Scott, 3 M. & "W. 220 ; Oayford v. NichoUs, 9 Exoh. 702 ; Caledonian Railway Company y. Sprot, 2 Macq. 449 ; North Eastern Railipay Company y. Elliott, IJ. & H. 154 ; 2 D. P. & J. 423 ; now on appeal to the House of Lords. Digitized by Microsoft® EELATINGr TO SUPPORT. 151 It has been intimated, however, that there may ^'"'^- ^^- be such a right of vertical support." There are many and clear dicta to the effect that ^^n^*'" ^um- •Till, T n 1 1.1T. t* Lateral support a right to lateral support lor heavy buildings from from soii. the adjacent soil maybe acquired by twenty years' enjoyment.' These dicta are not easy to recon- cile with principle. The right appears to be a negative easement, and therefore not within Lord Tenterden's Act,' and it is going very far to say that the forbearance of the neighbour in not digging along the boundary of his land so as to let the house down, is a sufficient reason for pre- suming a grant or covenant not to do so." The same considerations apply with equal or Ancient tuiid- greater force to vertical support. There is very port'"*' °"^" little authority as to this.^ ers V, Taylor, 2 H. & N. 828. ' Wilde V. Mmsterley, 2 KoU. Abr. 564 ; Palmer v. Fletcher, 1 Sid. 167, 222 ; Stamell v. Jollard, 1 Sel. N. P. llth edit. 457 ; Wyait V. Harrison, 3 B. & Ad. 871 ; Dodd v. Holme, 1 A. & E. 493 ; PartridgdY. Scott, 3 M. & W. 220 ; HidcY. Tliornborough, 2 C. & K. 250 ; Humphries v. Brogden, 12 Q. B. 739 ; Oayford V. Nicholls, 9 Exch. 702 ; Roiohotham v, Wilson, 6 E. & B. 593 ; 8 E. & B. 123 ; 8 H. L. C. 348 ; Bonomi v. Backhmise, E. B. & E. 622 ; 9 W. E. 769 ; seeBrovm v. Robins, 4 H. & N". 186 ; Solo- mon V. Vintners' Company, 4 H. & W. 583 ; Hiint v. Peake, J. 710. ' Harbidge v. Wartvick, 3 Excli. 557. 2 Webi V. Bird, 10 C. B. N. S. 268 ; in error, 8 Jur. N. S. 621. 3 Eowbotham v. Wilson, 6 E. & B. 593 ; 8 E. & B. 123 ; 8 H. L. C. 348 ; Rogers v. Taylor, 2 H. & K. 828. Digitized by Microsoft® 153 NUISANCES Chap. II. Sect. 4. Eiglit of sup- port by aever- ance. Caledonian Railway Com- pany V. Sprot. It is of importance to bear in mind that even if the buildings or other works are modern, yet if the land on which they are placed, and the subjacent or adjacent strata can be shown to have belonged to the same person, a right of support, in excess of the ordinary common law right, may, and fre- quently will, have arisen from the manner of the severance.* This is explained in the Caledonian Railway Company v. Sprat,'' where it is said, " If the owner of a house were to convey the upper story to a purchaser, reserving all below the upper story, such purchaser would, on general principles, have a right to prevent the owner of the lower stories from interfering with the walls and beams upon which the upper story rests, so as to prevent them from affording proper support. The same principle applies to the case of ad- jacent support, so far, at all events, as to prevent a person. who has granted part of his land from so dealing with that which he retains, as to cause that which he has granted to sink or fall. " Mogers v. Taylor, 2 H. & N. 828. * 2 Macq. 449 ; see Bush v. Field, Gary, 128 ; Harris v. Eyding, 5 M. & W. 60 ; Smart v. Morton, 5 E. & B. 30 ; Mow- totham V. Wilson, 6 E. & B. 593 ; 8 E. & B. 123 ; 8 H. L. C. 348 ; North Eastern Railway Company v. Elliott, 1 J. & H. 154 ; 2 D. F. & J. 423 ; now on appeal to the House of Lords. Digitized by Microsoft® RELATING TO SUPPORT. 153 ' How far such adjacent support must extend Chap. II. Sect. 4. IS a question which in each particular case will depend on its own special circumstances. If the Extent of sup- poi-t for lana line dividing that which is granted from that s^'^'^^^'^ which is retained traverses a quarry of hard stone or marble, it may be that no adjacent support at all is necessary. If, on the other hand, it traverses a bed of sand, or a marsh, or a loose gravelly soil, it may be that a considerable breadth of support is necessary to prevent the land granted from falling away upon the soil of what is retained. Again, if the surface of the land granted is merely a common meadow or a ploughed field, the necessity for support will probably be much less than if it were covered with buildings or trees. And it must further be observed, that all which a grantor can reasonably be considered to grant or warrant is such a measure of support, subjacent or adjacent, as is necessary for the land in its condition at the time of the grant, or in the state for the purpose of putting it into which the grant is made.' Thus, if I grant a meadow to another, retaining both " Harris v. Rydincj, 5 M. & W. 63. Digitized by Microsoft® 154 NUISANCES Extent of sup- port for laud retained. tlie minerals under it, and also the adjoining lands, I am bound so to work my mines, and to dig my adjoining lands as not to cause the meadow to sink to or fall over. But if I do this, and the grantee thinks fit to build a house on the edge of the land he has acquired, he cannot com- plain of my workings or diggings, if by reason of the additional weight he has put on the land they cause his house to fall. If, indeed, the grant is made expressly to enable the grantee to build his house on the land granted, then there is an im- plied warranty of support, subjacent and adja- cent, as if the house already existed."' We have seen that the grantor is presumed to grant such support as is necessary for the land granted in its condition at the time, or in the state for the purpose of putting it into which the grant is made. The measure of the support which he is presumed to retain appears in general to be only that which is necessary for the land retained in its condition at the time of the severance. '' Sec Caledonian Railway Company v. Bdliavcn, 3 Macq. 56. 8 Dugdale v. Robertson, SK. & J. 700 ; PinningtoriY. Galland, I Exch. 1. Digitized by Microsoft® RELATING TO SUPPORT. 155 In Acts of Parliament authorising the con- Chap, II. struction of canals or railways over a mineral working minerals near to district, proYisions are commonly inserted enabling and under n ■^ '' ^ railway or canal. the company to postpone the purchase of the minerals until such times as the colliery owners may wish to Work them. One of the earliest cases which arose on clauses of this nature was Wyrley Canal Navigation v. Bradley.' Sect. 6 ^^ilSiey?''^ of the Canal Act provided that the company should not be entitled on purchasing lands, to any coal mines, &c., under the same, but that such mines should belong to the same persons as would have been entitled to them if the Act had not passed; and sect. 61 enacted that when the owner of any raine should be desirous of working the same within ten yards of the canal, he should give notice to the company, who might thereupon stop the proposed working and make compensa- ^j^^^ tt°P"'" i 1 -It ill 11 raiuerals. tion, or otherwise the owner was thereby autho- rised to work such jjart of the mine as lay under the canal, or within the distance aforesaid. It appeared in evidence that the defendants gave notice of their intention to work within the « 7 East, 368. Digitized by Microsoft® 156 NUISANCES °'"^''^ -'■'-• specified distance, and the company declined to purchase. The defendants thereupon continued working the mine in the usual way, till damage happened by the partial giving way of the sides and bottom of the canal. Upon these facts the learned judge nonsuited the plaintiffs, and upon a motion to set the nonsuit aside, " All the court were of opinion that the meaning of the Act of Parliament in requiring the coal-owners to give notice of their intention to work the mines within a certain distance of the canal, and the liberty given to the company to inspect the works and prohibit the owners, upon making compensa- tion to them, for working within that distance, was for the purpose of enabhng the company to purchase out the rights of the coal-owners if they thought their canal works likely to be endangered by the nearer approach of the miners, but if the company declined the purchase, as they had done in this case, the coal-owners were left to their common law rights, as if no canal had been made, and they might take every part of their coal in the same manner as they might have done before the Act passed ; their former rights in that re- spect not having been taken away by the Act, Digitized by Microsoft® EELATING TO SUPPORT. 157 which had only appropriated the surface of the ^''^''- ^^' land and so much of the soil as was necessary for the cutting and making of the canal, leaving the coal, &c., to the owners, to be enjoyed in the same manner as before ; and the legislature had only given the land-owners a compensation for so much of the soil as they had deprived them of. And this they said was not like the case where damages were recovered against the late Earl of Lonsdale for undermining a person's house, for there the party claimed under a grant from the owner of the land, and the injury done was against the land-owner's own grant." The Act in the Dudley Canal Navigation Com- ^^^f^nd no ' pany v. Grazebrook,' contained similar provisions don?tothe navigation. as to notice and purchase ; but by the clause Dudley canai v. Grazebrook. reserving the rights of mine-owners, it was en- acted that subject to the conditions and restric- tions in the Act contained, it should be lawful for the owners to work their mines " provided no injury he done to the said navigation." The com- pany having declined to purchase the subjacent 1 1 B. & Ad. 59 ; Birmingham Canal Omnpany v. Hawkes- ford, 7 East, 371 ; see Cromford Canal v. Cults, 5 Rlwy. Ca. U2 ; Banisley Canal v. Twibell, 13 L. J. Ch. 434. Digitized by Microsoft® 158 NCISANCES Sect. 4. minerals after due notice, the defendants proceeded to work them in the ordinary and usual mode, and damage ensued to the canal. The Court said that the only doubt that the defendants were justified in doing what they had done arose upon the proviso before mentioned. That it could not mean that the owners were to be responsible at all events for any injury or damage done to the canal, for then the company would never purchase the minerals. That the reasonable mode of reconciling the different parts of the Act was to say " either that the party working the mines is to do no unnecessary damage or injury to the navigation, or no extra- ordinary damage or injury by working them out of the ordinary and usual mode." Compensation. Qf go^j-se in cases like the above, the company in the first instance do not give compensation for the minerals lying within the specified distance. But where'' no liberty was given to the company to purchase upon notice, but it was enacted that mines might be worked by the owner, so that no damage should thereby be done to the 2 Rm V. Zeeds and Selhy Railway Cmnimny, 3 A. & E. 683. Digitized by Microsoft® RELATING TO SUPPORT. 159 railway, and in case any damage should occur it ^"'"''- "• Soct. 4. was to be repaired by the owners, or at their expense, a different rule was laid down. The owner of the land, and the minerals under it, sold the surface to the company, no compensa- tion being made for the minerals, or any present or future effect the railroad might have in regard to them. It was subsequently found that in order to get the minerals without letting down the railroad it was necessary to work in an unusually expensive way, and the owner there- upon claimed compensation. It was held that he came too late, for the claim ought to have been brought forward when the land was sold. By the Bail way Clauses Consolidation Act^ it Railway clauses *' '' Consolidation is enacted with respect to mines lying under or ^'^*" near a railway to the following effect. Sect. 77. The Company shall not be entitled to any mines under any lands purchased by them (except such part as may be required for the construction of the works), unless the same shall have been expressly purchased, and all such 3 8 & 9 Vict. u. 2,0. Digitized by Microsoft® 100 NOTSANCES Ch/lP. II. Sect. 4. mines shall be deemed to be excepted out of the conveyance, unless they shall have been expressly named therein. Sect. 78. If the owner of any mines or minerals lying under the railway, or within forty yards therefrom, shall be desirous of working the same, he shall give thirty days' notice to the company, whereupon the company may cause the mines to be inspected, and if it shall appear that the working of such mines and minerals is likely to damage the works of the railway, and the company is willing to make compensation to the owner, he shall not work or get the same. Sect. 79. If before the expiration of thirty days the company do not state their willingness to treat with such owner, it shall be lawful for him to work the said mines, or any part thereof for which the company shall not have agreed to pay compensation, " so that the same be done in a manner proper and necessary for the bene- ficial working thereof, and according to the usual manner of working such mines in the dis- trict where the same shall be situate." And if any damage is done to the railway by improper Digitized by Microsoft® RELATING TO SUPPORT. 161 Working, it is to be repaired at the expense of "°^''- ^^- Sect. 4. the owner. This last clause appears to ratify the rule laid down in the authorities above cited, that, if the company is unwilling to give compensation for the minerals lying within the prescribed distance, the owner may work them in a reasonable way, without regard to any damage which may result to the railway. We next come to a very important case which common law right of sup- turned upon the common law right of the com- ^'"^'' pany to support independently of any statute. In the Caledonian Railway Company v. Sprot* ^l^j^"™^^ the defendant sold the land to the company by ^™'' "' ^''"'' private arrangement, and conveyed it (reserving the mines) by a deed in Scotch form." By the 11th section of the company's original Act it was enacted, that owners might receive satis- faction for the value of their lands, and for damages to be sustained by making and com- pleting the works in gross sums, that any pro- prietor might reserve the minerals out of his 4 2 Macq. 449. ■' It is not stated whether this deed had any special statutory efiect. See 6 H. & N. 692. Digitized by Microsoft® 162 Chap. II. Sect. 4. NUISANCES bargain and sale to the company, but that it should not be lawful for him to work them with- out giving good security to the company for all damages which might thereby ensue. Lord Cranworth, in advising the House of Lords, said, "The first observation which occurs on this section is, that though under its provisions and other clauses of the Act, Mr. Sprot might have been compelled to sell the land in question to the company ; yet when by arrangement between him and the company, it was settled what should be the price paid, and the conveyance is made accordingly; the effect of the transaction, so far as relates to the conveyance of the land and the rights acquired under it, must depend on the terms of the deed, subject only to the provision in the clause regulating or restrictiag the right of working the mines. " By virtue of the conveyance the company acquired, by grant from Mr. Sprot, an absolute right to the surface of the land, and, by implica- tion, a further right to such subjacent and adja- cent support as was necessary, taking into account the purpose to which the land was to be put. Mr. Sprot, on the other hand, retained Digitized by Microsoft® RELATING TO SUPPORT. 163 his former right of working the mines, subject chap. ii. to the rights which he had impliedly granted of ^°'' *' subjacent and adjacent 'support, and subject also to the statutory restriction in the 11th clause, preventing him from working the mines under the land conveyed, without first giving to the company good and sufficient security for aU damage which might accrue to it from such working." This case estabHshes the important rule, that a company have the same right of support as an ordinary grantee, except so far as that right may be qualified by statutory provisions. It will have been observed that the Act did not contain any clause giving the company an option to purchase subjacent minerals when they were about to be got. The principle of the earlier cases, as we have seen, was that when the company had this option as to minerals lying within a specified distance, it was a strong circumstance to show that if they refused to purchase, the risk of working such minerals in the usual way was to be borne by them ; and this principle has appa- rently not been shaken. Thus, where a company, Fletchers. Great Western constituted under the Lands Clauses and Eailway pa"™^ ^°°'- M 2 Digitized by Microsoft® 164 NUISANCES ''• • Clauses Consolidation Acts, had purchased hy Sect. 4. agreement from owners in fee, and it was con- tended on their behalf, that the grantors were not entitled to work the minerals lying under and within forty yards of the railway, in any manner likely to endanger it, although the com- pany were unwilling to purchase, the argument did not prevail, because the 78th clause of the Eailway Clauses Consolidation Acts varies the common law rights of the parties to the con- veyance with respect to operations within the specified distance. Sile'""'"" ^t was suggested in this case' that there might be a distinction between cases where the con- veyance to the company was an ordinary private assurance, and where it was made under the powers of the Lands Clauses Consolidation Act ; but nothing seems to turn upon this.' North Eastern We have next the case of the North Eastern Railway Com- pauy t,. BUiott. ji^Uway Company v. Elliott.' There the Durham ^ Fletcher v. Great Western Railway Company, 4 H. & N". 242 ; 5 H. & N. 689 ; Swindills v. Birminglmm Canal Naviga- tion, 9 G. B. IS. S. 241. ' North Eastern Railway Company v. Elliott, 2 D. F. & J. 423 ; but see Wyrley Canal Company v. Bradley, 7 East, 368. 8 IJ. & H. 145 ; 2 D. F. & J. 423 ; now on appeal to the House of Lords. Digitized by Microsoft® RELATING TO SUPPORT. 165 Junction Act, 1834, enacted, by section 27, that __c=Apai^ ... Sect. i. nothing in the Act contained should extend to give the company any coal under any lands pur- chased, but that all such coal should be deemed to be excepted out of the purchase of such lands, and might be worked by the owner, as if the Act had not passed, " so that no damage or obstruction be done or thereby occur, to or in such railway, or other works." And by section 28, it was enacted that when the person working should approach within twenty yards of any masonry or building belonging to the company^ he should give notice, and the company might then declare an election to purchase ; and in default, the owner might work the minerals, " provided the same be worked in the usual and ordinary manner of working mines, and that no avoidable damage be done to the said masonry and buildings." Sect. 27 seems to express the ordinary right of a grantee at common law, and sect. 28 received a construction similar to that placed upon sect. 78 of the Eailway Clauses Consolidation Act. The defendant was restrained from working within the twenty yards until he should have Digitized by Microsoft® 16G NUISANCES ^^' ^^' given notice to the company, pursuant to the Sect. 4. 28th sect. ; and from working at any time beyond the twenty yards in such a manner as to affect the stability of the railway. Can's "ompaiiy Again, in the Stourbridge Canal Company v. V. Earl Dudley. Earl Dudley' the Act (16 Geo. 3, c. 38), pro- vided, that if an owner wished to work any mines within twelve yards of the canal, he was to give notice, and the company might then purchase, or otherwise the owner might work such mines provided " no injury be done to the said navi- gation." The company having omitted to pur- chase after notice, the mines were worked within the twelve yards, in the usual and ordinary mode ; but, nevertheless, damage was done to the navi- gation. It was held, on the authority of the Dudley Canal Company v. Grazehrook, that the company were not entitled to recover against the owner, mdcaidir Oil the other hand, in Reg. v. Aire and Galder Navigation. .»-r • ■ i j_i in . -, Navigation, the owners had power to get the minerals, doing no injury to the canal, but there were no clauses giving the company an option to » 30 L. J. Q. B. 108. ' 30 L. J. Q. B. 337. Digitized by Microsoft® RELATING TO SUPPORT. 167 purchase any of the minerals. It was known at "°^- "• the time of the conveyance that there were coals under the lands conveyed, and the purchase money was agreed upon and paid with that know- ledge. The company, under the powers of their Act, prevented the working of certain beds of coal, on the ground that it would be injurious to the canal. It was held, following Rex v. Leeds and Selby Railway Company, that the owner had no right to further compensation. Lastly, in The London and North Western London and North Western Railway Company v. Ackroyd,^ an owner in fee pa^n™AokJSyd. granted to the company the right of making and for ever maintaining and using a tunnel. The Tunnel. company endeavoured to establish a right to support from minerals lying within forty yards, without making compensation, under the 78th sect, of the Railway Clauses Consolidation Act. Wood, V.-C, was of opinion that the case was entirely within the authority of Fletcher V. Great Western Railway Company, and that the contention of the company had therefore failed. 2 10 W. E. 307. Digitized by Microsoft® 168 NUISANCES Chap. II. Sect. 4. Eesult of the authorities. Compensation. Support of ancient build- ings by adjoin- ing buildings. The result, therefore, seems to be, that as to minerals lying beyond the specified distance, the company have an absolute right of support ; but that as to minerals lying within the specified dis- tance, if the company have power to purchase and omit to do so after due notice, the owner may work such minerals in the usual way, without being an- swerable for any subsidence which may take place. The 81st section of the Railway Clauses Con- solidation Act^ enacts, that the company shall from time to time make compensation for any minerals not purchased by the company, which cannot be obtained, by reason of making and maintaining the railway. This clause may perhaps apply to minerals lying beyond the specified distance, and which are necessarily left for the lateral support of the railway and works. Whether a right to the support of ancient buildings by the adjoining buildings can be acquired by enjoyment, is very doubtful. Such enjoyment will in general be secret, and even if not, there is no way of obstructing it, except by the neighbour who is injured pulling down his ' 8 & 9 Vict. c. 20. Digitized by Microsoft® RELATING TO SUPPORT. 169 house. On the other hand, where the dominant '^°*^- "• messuage visibly overhangs the adjacent soil, some action may lie," so as to make this an affirmative easement, and therefore to bring it within Lord Tenterden's Act. There is no clear authority on the point; but the tendency of recent decisions is adverse to the acquisition of such an easement by long enjoyment only.^ Mutual rights of support between buildings Eight of sup- port between may, like other rights of the like kind, proceed s^^'eranle."^ from an original unity of title. Thus, in Richards V. Rose,' it is said : " We are all of opinion that where houses have been erected in common by the same owner upon a plot of ground, and therefore necessarily requiring mutual support, there is either by a presumed grant, or by a presumed reservation, a right to mutual support ; so that the owner who sells one of the houses, as •< Wells V. Ody, 1 M. & "W. 452. '^ Peyton v. Mayor of London, 9 B. & C. 725 ; Brown v. Windsor, 1 Or. & J. 20 ; ChauntUr v. Robinson, 10 L. J. Ex. 170 ; Solomon t. Vintners' Company, 4 H. & N. 585 ; Sargreave V. Meade, 10 Ir. C. L. 117 ; see Webb v. Bird, 10 C. B. N. S. 268 ; 8 Jur. X. S. 621 ; Brown v. Robins, 4 H. & N. 186 ; Rogers V. Taylor, 2 H. &N. 828. * 9 Exch. 218 ; see Peyton v. Mayor of London, 9 B. & C. 725. Digitized by Microsoft® 170 Chap. II, Sect. i. Custom of miniug. NUISANCES against himself, grants such right, and on his own part also reserves the right; and conse- quently the same mutual dependence of one house upon its neighbour still remains." In Hilton v. Lord Granville,' the defendant claimed under an alleged custom, and also by prescription, the right to do anything that was necessary for the purpose of working mines in a certain manor, making compensation to the tenants for damage done to the surface, but not for damage done to buildings. A jury found the existence of the custom as alleged ; but on de- murrer in the Queen's Bench, it was said that the custom and prescription claimed were de- structive of the substance of the tenant's estate, and that even if a grant could be produced re- serving a right in the lord to deprive his grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and absurd. The custom and prescription were therefore held to be bad. This decision maintains its authority as to the ' i Bear. 130 ; 1 Cr. & Ph. 283 ; 5 Q. B. 701 ; 10 L. J. Ch. 398 ; 13 L. J. Q. B. 193 ; Blackett v. Bradley, 31 L. J. Q. B. 65 ; see Grey v. Buke of NorfhumherlaTid, 13 Ves. 236 ; 17 Ves. 281 ; Baiiibridge on Mines. Digitized by Microsoft® EELATING TO SUPPORT. 171 invalidity of the particular custom there in ques- """'• "■ Sect. i. tion, although it is now settled that a grant, reserving a right in the grantor to work mines so as to let down the surface granted, is perfectly good.' In cases of subsidence, the Statute of Limita- statute of Limitations. tions begins to run from the time when the damage occurs, and not from the time when the excavation was made.' Sect. 5.— VARIOUS NUISANCES. Other cases of nuisanee which have been brought before the Court are : — Obstructions and other Damage to, A Navigable Eiver.' A Canal.' ^ Marquis of Salisbury v. Qladstone, in House of Lords, 9 "W. R. 930. 9 Eowlotham v. Wilson, 6 E. & B. 593 ; 8 E. & B. 123 ; 8 CI. 348. ' Nicklin y. Williams, 10 Exch. 269 ; Bonomi v. Backhouse, E. B. & E. 622 ; in H. L. 9 W. R. 769. ^ Attorney-Oeneral v. Johnson, 2 Wil. 0. C. 87 ; Priestly v. ManclwsUr and Leeds Railway Company, 2 Rlwy. Ca. 184 ; see Bdbson T. Blackmore, 9 Q. B. 991 ; Brown v. Mallett, 5 C. B. 599 ; S. Y. Bayne,s, 7 Ir. L. 2 ; iJ. v. Ryan, 8 Ir. L. 119 ; Dimes v. Petty, 15 Q. B. 276 ; Abraham v. Great Northern Railway Company, 15 Jur. 895 ; Hancock v. Yorh, Newcaslle, and Berwick Railway Company, 10 C. B. 348 ; White v. Crisj), 10 Esch. 312 ; Rose v. Mills, 4 M. & S. 101. 3 London and Birmingham Railway Campany v. Grand Junction Canal Company, 1 Rlwy. Ca. 224 ; Bradbury v. Man- Sect. B. Digitized by Microsoft® l73 VARIOUS c°^''- "■ A Mill Eace." A Ferry/ A Highway.' A Sect. 6. Private Eight of Way.' A Private Siding to a Eailway.° A Colliery Wayleave.' The Entrance Chester aTid Leeds Railviay Company, 6 De G. & Sm. 624 ; Case T. Midland Railway Compcmy, 27 Beav. 247. * Coats V. ClareTwe Railway Company, 1 Russ. & Myl. 181 ; M' Swiney v. Eaynes, 1 Eq. 322. * Churchman v. Tunstall, Hardr. 162 ; 2 Anst. 608 ; Cory v. Yarmouth, iuUey v. Horton, i L. J. Ch. 104 ; Frevrin v. Lewis, 4 My. & Cr. 249. * Kemj} V. London and Brighton Railway Company, 1 Elwy. Ca. 495. Digitized by Microsoft® CONSIDERATIONS. 213 Chap. IV. Sect. 1. tween parties circumstanced as in this case. I look at the great powers which are necessarily given to these companies ; the variety of interests with which those powers may interfere, if not strictly exercised according to the provisions of the Acts ; the necessity of immediate interposi- tion ; the injury to the parties, if there be not a jurisdiction constantly open, by which their re- spective rights may be ascertained : and then it appears to me that this is of all others a situa- tion of things in which this Court ought to exercise that jurisdiction." " Now the course I have always adopted in cases where the ques- tion turns upon a legal right, is to put the parties in a situation to try as quickly as pos- sible that legal right, and to protect the pro- perty to be affected until the legal right can be ascertained." It rests in the discretion of the Court either to injunction framed m restrain an infringement of the plaintiff's rights specTfioau™^ °^ in general terms, which was the course pursued in Agar v. The Regent's Canal Company, or else so to frame the order as to let the parties know what the Court considers their respective rights to be. The former plan is generally less convenient. Digitized by Microsoft® 314 Chap. IV. Sect. 1. LANDS CLAUSES but it may be adopted when an injunction is required before the question of right is ready for discussion." Sect. 2. Parties to sell and convey. Clause 7. Agreements before the pass- ing of tbe Act. Sect. 2.— LANDS CLAUSES CONSOLIDATION ACT.? (a. ) Wiifi respect to the PurcJmse of Lamds iy AgreemeiU. By the 7th clause it is made lawful for tenants in tail," and for life/ and for other persons having such limited interests as therein mentioned,' to sell and convey the fee simple. The promoters of an undertaking frequently enter into agreements with the landowners, in ^ Oother v. Midland Railway Company, 2 Phil. 469 ; 5 Rlwy. Ga. 187, 192 ; Attorney- General v. London and South Western Railway Company, 3 De G. & S. 439 ; 7 Elwy. Ca. 624 ; Daw- son V. Paver, 5 Hare, 430 ; Broadhent t. Imperial Gas Com- pany, 7 D. M. G. 442 ; 7 H. L. C. 600. ' 8 & 9 Vict. c. 18. As to undertakings to wMcli tMs Act may apply, although, not expressly incorporated ivith the special Act, Wale v. Westminster Palace Hotel Company, 8 C. B. N. S. 276. * The tenant of an inalienable estate tail with the reversion in the Crown, was held to be entitled to sell and convey the estate tail, but not the reversion, Re Cuckfidd Board, 19 Beav. 153. ^ As to tenancy for life with a proviso against alienation, Dcvenish v. Brown, 2 Jur. N. S. 1043. When the tenancy for life is equitable only, the trustees must join in the conveyance, L'qipiriA:ott v. Smyth, 6 Jur. N. S. 311. ' Doiiijlass V. London and North Western Railway Company, S K. & J. 173. Digitized by Microsoft® Sect. 2. CONSOLrOATION ACT. 215 order to induce them to withdraw their opposition to the passing of the bill. Many instances have occurred of the company, when incorporated, re- fusing to perform such contracts. In a case of this sort" Lord Gottenham said, "The question ^Zd'^i^J^^ion is not whether there be any binding contract at pany. law, but whether this Court will permit the company to use their powers under the Act in direct opposition to the arrangements made with the plaintiffs prior to the Act, upon the faith of which they were permitted to obtain such powers. If the company and the proprietors cannot be identified, still it is clear that the com- pany have succeeded to, and are now in possession of, all that the proprietors had before ; they are entitled to all their rights, and subject to aU their liabilities. If any one had individually projected such a scheme, and in prosecution of it had entered into arrangements, and then had sold 2 Edwards v. Grmid Junciim, Railway Oo7npany, 7 Sim. 337 ; 1 My. & Cr. 650 ; Stanley v. Chester and Birlcenliead Railway Company, 9 Sim. 264 ; 3 My. & Cr. 773 ; Lord Petre v. Eastern Coimties Railway Company, 1 Ehvy. Ca. 462. See also (xren- halgh v. Manchester and Birminglm/m, Railway Company, 3 My. & Cr. 784 ; Tauxhall Bridge Company x. Earl Spencer, Jac. 64 ; Fry on Specific Performance, 61. Digitized by Microsoft® S16 LANDS CLAUSES """''■ ^^- and assigned all his interest in it to anotlier, there would be no legal obligation between those who had dealt with the original projector and such a purchaser ; but in this court it would be otherwise. So here, as the company stand in the place of the projectors, they cannot repudiate arrangements into which such projectors had entered ; they cannot exercise the powers given by Parliament to such projectors, in their corpo- rate capacity, and at the same time refuse to comply with those terms, upon the faith of which all opposition to their obtaining such powers was withheld." Qualifications of It is Settled by two decisions' of the House of Lord Cotten- ham's doctrine. Lgrds that this doctrine does not apply, unless (1.) The company has taken the benefit of the agreement ; (2.) The agreement is for some- thing warranted by the terms of the incorpora- tion. 2 Preston v. Liverpool, Manchester, and Newcastle Railway Cmnpany, 5 H. L. C. 605 ; 1 Sim. N. S. 586 ; 17 Beav. 114 ; see jEarl of Lindsey v. Great Northern Railway Company, 10 Hare, 664; Gooday v. Colchester, tCc, Railway Company, 17 Beav. 132 ; Williams V. St. George's Harlour Company, 24 Beav. 339 ; 2 D. F. & J. 547. Caledonian Railway Company v. St. Helens- hurcjh, 2 Macij. 391 ; see Leominster Canal Company v. Shrews- bury and Hereford Railway Company, 3 K. & J. 654. Digitized by Microsoft® CONSOLIDATION ACT. 21Z Moreover, in considering these cases, Lords '^"^''- ^^- Cranworth and Brougham expressed a strong Disapproval disapproval of the whole doctrine, upon the ground that the Act, when passed, becomes the charter of the company, prescribing its duties and declaring its rights, so that all persons becoming shareholders have a right to con- sider that they are entitled to all the benefits held out to them by the Act, and liable to no obligations beyond those which are there indicated. It is, however, settled, that an existing com- Existing com- " pany applying pany applying to Parliament for powers to make make tether fit 1 . ■,. -, works. further works, may enter into a valid contract with a landowner for the purchase of any part of his land on which they propose to construct their works.' Such contracts will in general be construed to ^o^^*"*^ °°'"^' be conditional on the Act passing, and perhaps also on the land specified being required. It may be doubted whether the directors would * Sawkes r. EasUrn Counties Railway Company, 3 De G. & S. 743 ; 1 D. M. G. 737 ; 5 H. L. C. 331. A query was thrown out in this case whether the directors of a company could accept a defective title. Digitized by Microsoft® S18 CHAP, IV. Sect 2. LANDS CLAUSES have power to bind the shareholders in such a contract absolutely/ Notice to treat. Clause 18. Second notice. (b.) With respect to the Purchase and Taking of Lands otherwise than hy Agreement. When the promoters shall require to purchase or take ° any lands which they are authorised to purchase or take, they shall give notice to the parties' interested therein, or enabled by the Act to sell and convey the same. The notice usually describes the property by reference to the deposited plans. It should, of course, be accurately drawn.' The promoters are not bound to comprise the whole of the land which they may require in the ^ Webb V. Direct London and Portsmouth Raihvay Company, 1 D. M. G. 521 ; Lord James Stuart t. Lmidon and North Western Railway Company, 1 D. M. G. 721 ; Gage v. Ncjo- mwrket Railway Compamy, 18 Q. B. 457 ; Edinburgh, Perth, and Dundee Railway Company v. Philip, 2 Macq. 514 ; Scot- tish North Eastern Railway Company v. Stewart, 3 Macq. 382 ; Fry on Specific Performance, p. 287. * The word "take" refers to clauses 58 to 67. See 9 Hare, 445. ' It is not necessary to serve the owner of a mere easement, as a wayleave over the property ; Thicknesse v. Lancaster Canal Company, 4 M. & W. 484. " See Form, Hodges' Law of Railways, App. 231 ; Kemp v. London and Brighton Railway Company, 1 Elwy. Ca. 495. Digitized by Microsoft® CONSOLIDATION ACT. 219 first notice, but they may from time to time, ^"^''" ^ — Sect. 2. untU. their powers expire, serve fresh notices for taking any additional land which may be re- quisite for the works;" but after once giving a Reoeaing ' o o from a notice, they cannot withdraw it and give a second notice for taking less,' nor can they abandon it altogether, even on the ground of a deficiency of funds." But where the Commissioners of Woods were authorised to lay out 200,000Z. in the formation of Battersea Park, and they served notices to treat in order to ascertain the expense of carrying out a particular plan, the claims sent in proving to be largely in excess of the funds available, it was held that the commissioners might recede from the notices.' And it appears that promoters " Stamps V. Birmingham, Wolverhampton and Stour Valley Railway Company, 7 Hare, 261 ; 6 Elwy. Ca. 123 ; Simpson v. Lancaster and Carlisle Baihoay Company, 15 Sim. 580 ; Webb V. Manchester and Leeds Railway Company, i My. & Gr. 116 ; Willia/ms v. South Wales Railway Company, 3 De G. & S. 354 ; Sadd v. Maldon, Witlumn, and Braintree Railway Company, 6 Exch. 143. 1 Tawney v. Lynn and Ely Railway Company, 4 Elwy. Ca. 615 ; 16 L. J. Ch. 282. 2 R. V. Commissioners of Manchester, 4 B. & Ad. 333 ; R. v. Bungerford Market Company, 4 B. & Ad. 327. ' R. T. Cmnmissionei-s of Woods, 15 Q. B. 761 ; see 8 & 9 Vict. c. 38. Digitized by Microsoft® 220 LANDS CLAUSES Chap. IV. Sect. 2. who have given notice to take part of a property, and are then required, under the 92nd section, to take the whole, may withdraw their notice and refuse to take any part." Liberty to maka A questiou has been raised, whether promoters a tunnel. -*■ ^ wishing to make a tunnel under lands, or to" throw an arch over them, can compel the landowner to sell them the liberty of doing so, or whether they are under the necessity of purchasing the entire close.' Specific per- There has been much difference of opinion lormance. ■'■ whether, after the service of a notice, the land- owner and the company are brought within the ordinary jurisdiction of the Court as to the specific performance of contracts.* Waiver of notice. Where a landowner had waived the service of a notice, he was not allowed to take an objection for the want of it.' ^ R. V. London mid South Western Railway Conymny, 12 Q. B. 775 ; 5 Elwy. Ca. 669 ; King v. Wycombe Railway Company, 28 Beav. 104 ; see further as to 92nd sect, post, p. 230. ' Pincliin v. London aiul Blachuiall Railway Company, 1 K. & J. 34 ; 5 D. M. G. 851 ; see Sparrovi y. Oxford, Worcester, aiul Wolverhampton Railway Compiany, 2 D. M. G. 108. " The cases are collected in Haynes v. Saynes, 1 Dr. & Sm. 426. ? R. V. South Ilolland, 8 A. & E. 429. Digitized by Microsoft® CONSOLIDATION ACT. 221 The Act then provides for the manner in which, ^°'^''- ^^- in case of dispute, compensation shall be settled compensation. for the interest in lands which the party is enabled to sell, or for any damage that may be sustained by him by reason of the execution of the works. In estimating such compensation, regard is to clause es. be had not only to the value of the land to be severance. purchased or taken, but also to the damage, if any, to be sustained by the owner by reason of the severing ° of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the parliamentary powers. Moreover, the 68th section provides that, if clause es. any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for, or injuriously affected by, the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction, such compensa- 8 Smdh Wales Railway Company v. Riclmrds, 18 L. J. Q. B. 310 ; Manning v. Eastern Counties Eaihvay Company, 12 M. & "W. ,237 ; Grand Junction Railway Company v. While, 2 Elwy. Ca. 559 ; in Re. Duke of Beaufort, 6 Jua-. ST. S. 979. Digitized by Microsoft® 222 LANDS CLAUSKS Chap. IV. Soct. 2. Assessment of purchase- money. Site of a church. Subjacent minerals. Lands injuri- ously affected. tion shall be assessed in manner therein men- tioned.' The general rule is to assess the purchase- money according to the value of the land at the time of the notice : but under a particular Act, the assessment was made according to the value of the land at the time of passing the Act.' Where a company took the site of a church under their powers, the purchase-money was assessed on the footing of the commercial value of the land, and not according to the return which the church made in pew-rents, &c., when dedicated to spiritual purposes." The right to compensation in respect of sub- jacent minerals has been already discussed.' With respect to the compensation payable for lands which are injuriously affected, but not taken, the law is now settled in accordance with ' This clause refers to the entry and user spoken of in clause 86, and to land injuriously affected where no adjoining lands of the same owner have heen taken ; Doe v. North Staffordshire Railway Company, 20 L. J. Q. B. 249 ; Burkenshaw v. Bir- mingham and Oxford Jmction Railway Company, 5 Exch. 475 ; Perks T. Wycombe Railway Company, 10 W. K. 788. See, as to Waterworks Act, Ferrand v. Bradford, 21 Beav. 412. ' Manning V. Commissioners West India Dock Act, 9 East. 166. 2 Hilcoats V. Arehhishop of Canterbury, 10 C. B. 327. 3 Ante, p. 158. Digitized by Microsoft® Works. CONSOLIDATION ACT. 223 the opinion of the learned judges who advised "''■^''- ^^- Sect. 2, the Lord Chancellor in Broadbent v. The Im- perial Gas Company ' (that is to say) : " The cases relating to railways seem to us to Broadbent t. ° •' Imperial Sas establish, that compensation is given in'respect of the calculable damage caused or to he caused in or by the execution of the permanent works of the company authorised by statute — for instance, obstructing ways or injuring lights — (as to when future damage may be assessed, see the judgment of Baron Parke in Lee v. Milner') ; that an injurious act, unauthorised by statute, or done by the company negligently in abuse of their statutory powers, is the proper subject of an action ; and that any act other than the erection of the permanent works, if properly done by the company in piirsuance of the statute, whatever damage it may cause, is considered sufficiently compensated for by the public benefit expected to follow, and is neither a subject of action nor of compensation." 4 7 D. M. G. 459 ; 7 H. L. C. 600 ; Glover v. North Stafford- shire Railway Company, 16 Q. B. 912 ; Ware v. Regent's Caiml Company, 3 D. & J. 227 ; Caledonian Railway Company v. Colt, 3 Macq. 833. 6 2 M. & W. 824, post, p. 226. Digitized by Microsoft® 224 LANDS CLAUSES __5^^!iiZi_ There is authority to the effect that the com- Sect. 2 . Cases in which pensation clauses apply under the following cir- compeusation clauses apply. eumstancGS : For injury to the access to property, as by obstructing a private road/ or altering a public road on -which the claimant's land abuts.' For obstructing the access to a ferry .° For obstructing the flow of water to a mill' or tanyard.' For drowning a mine by the diversion of a brook.'' For causing drainage water to flow on to the premises.^ ^ Glover v. North Staffordshire Railway Company, 16 Q. B. 912 ; Thichnesse v. Lancaster Canal Company, 4 M. & W. 472 ; South Staffordshire Railway Company v. Hall, 3 Mac. & Gor. 353. ^ R. V. Eastern Counties Railway Company, 2 Q. B. 347 ; 2 lilwy. Ca. 736 ; Phillips v. London and Brighton Raihcay Company, V.-C. S., July, 1862 ; Moore v. Great Southern and Western Railway Company, 10 Ir. C. L. 46 ; Tuohey v. Great Southern and Western Railway Company, 10 Ir. C. L. 98. ^ R. v. Great Northern Railway Company, 14 Q. B. 25. 3 R. V. Nottingham Old Water Works, 6 A. & E, 355. ^ Mortimer v. South Wales Railway Company, 5 Jur. N". S. 784. 2 R. V. North Midland Railway Company, 2 Elwy. Ca. 1 ; see Bagnall t. London and North Western Railway Company, 10 W. K 232. ^ R. "V. North Union Railway Company, 1 Elwy. Ca. 729. Digitized by Microsoft® CONSOLIDATION ACT. S.35 Chap. IV. Sect. 3. For obstructing the access of light and air, and perhaps for causing dust and dirt to drift on to the claimant's premises." For loss of tolls to the owner of a towsag path by reason of a diversion of the river.' For damage caused by vibration during the construction of the works.* The following are instances in which the con- Sf complnsa^ fcion clauses do pensation clauses seem not to be applicable : not apply. For crossing a highway by a railroad on a level,' ■■ Duke of Norfolk v. Tennant, 16 Jur. 398 ; Beardmcr v. London and North Western Railway Company, 1 Mao. & Gor, 112 ; East and West India Bocks v. Gattke, 3 Mao. & Gor. 155 ; see Turner v. Sheffield and Botherham Company, 10 M. & W. 425. ^ Hex V. Commissioners of Thames and Isis NavigaMaa, 5 A. & E. 804. This is a very doubtful authority; see 2f Elwy. Ca. 718. ^ Penny Y. South Eastern Eailioay Compa.ny, 7 E. & B. 660. ' Caledonian Railway Company v. Ogilmj, 2 Maoq. 229 ; R. V. London Doek Company, 5 A. & E, 163 ; London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216 ; East and West Indian Dock Company v. Gattke, 3 Mac. & Gor. 155 ; Wilkes v. Hunyerford Market Company 2 Bing. N. C. 281. But see Chamlerlaine v. West End and Crystal Palace Railway Conniiany, 10 W. K. 645. Where a railroad passed imder a pubHo road by a tunnel the oompany had to make compensation to the owner of the soil. Ramsden v. Manchester, d-c. , Raihoay Company, 1 Exch. 723. See Board of Works for Wandsworth V. London and South Western Railway Company, V.-C. K. 10 W. K. 814. Digitized by Microsoft® 226 LANDS CLAUSES Chap. IV. frighteiniig horses on the highway/ or polluting Sect. 2. ^ navigable river/ although the inconvenience to the claimant may amount to such special damage as would support an action. For the loss of tithes on the land taken for the works," unless the tithe owner is protected by the special Act.'' For intercepting the percolation of water to a well.' For loss of privacj^ by reason of the premises being overlooked by passengers on a railway.'' For vibration caused by the passage of trains, after a railway is opened for traffic.' Howoompenaa- Generally speaking, compensation is to be assessed once for all, for the injury authorised to be caused to the rights of the landowners ; and if any extraordinary unforeseen damag-e occurs, 8 Sex V. Pease, 4 B. & Ad. 30 ; see 8 & 9 Vict. c. 20, s. 63. ^ R. V. Bristol Dock Oonnmny, 12 East, 429 ; see Sutton Harhour Company v. Hitcheiis, 13 Beav. 408 ; 1 D. M. G. 161 ; AhrahaniY. Great Northern Railway Company, IS Jiir. 855. ' Rex V. Commissioners of Nene Outfall, 9 B. & C. 875. ^ London and Blaelcwall Railvay Company v. Letts, 5 Hare, 605 ; 3 H. L. C. 470 ; see 7 & 8 Vict. u. 85, s. 22. ■'' New River Company v. Johnson, 6 Jur. N. S. 374. ■• Penny v. South Eastern Railway Company, 7 E. & B'. 660. 5 Penny v. South Eastern Railway Comxiany, 7 E. & B. 660 ; see London and North Western Railway Company v. Bradley, 3 Mac. & Gor. 336. asseesed. Digitized by Microsoft® CONSOLIDATION ACT. 237 the suffering party is without remedy." But pro- °°^''- ^^- moters are liable to an action for negligence in ^.^tj^^g^i^.t the construction, or maintenance of the works, or in the general management of the undertaking.' In one case Lord Cottenham restrained a Restraining a landowner. landowner from having compensation assessed according to the Act, on the ground that the promoters disputed their liability to pay any;" but this decision has been clearly overruled." " Caledonian Railway Company v. LocTchart, 3 Maoq. 808 ; LittU T. Dublin and Droglieda Railway Company, 7 Ir. C. L. 82 ; see Lee v. Milner, 2 M. & W. 824. ' Lawrence v. Great Northern Railway Company, 16 Q. B., 64-3 ; Bagnall v. London and North Western Railway Company, 7 H. & N. 423, 452 ; 10 "W. E. 802 ; Br%i.ee v. Great Western Railway Company, 31 L. J. Q. B. 101 ; Clothier v. Webster, 31 L. J. C. P. 316 ; Vaughan v. Taff Yale Railway Company, 5 H. & N. 679 ; WMtehouse v. Birmingham Canal Company, 27 L. J. Exch. 25 ; Witherley v. Regent's Canal Company, 12 C. B. N. S. 2 ; Cockbum v. Brewash Company, Q. B. As to the liaTjility of public commissioners or trustees, see Gihbs v. Trustees of Liverpool Docks, 1 H. h'S. 439 ; 3 H. & N". 164 ; Mersey Dock Board T. Penhallow, 7 H. & N. 329. ^ London and North Western Railway Company v. Smith, 1 Mac. & Gor. 216. s East and West India Dock Company v. Gattke, 3 Mac. & Gor. 155 ; Loiulon and North Western Railway Company v. Bradley, 3 Mac. & Gor. 336 ; South Staffordshire Railway Com- pany T. Hall, 3 Mac. & Gor. 353 ; Lancashire and Yorkshire Railway Com/pany v. Evans, 15 Beav. 322 ; Sutton Harbour Company^, Hitchens, 13 Beav. 408 ; 1 D. M. G. 161 ; Caledonian Railway Company v. Ogilvy, 2 Macq. 229 ; see DuTce of Norfolk V. Tenant, 16 Jur. 398 ; R. v. Lancaster and, Preston Junction Digitized by Microsoft® 238 LANDS CLAUSES (o.) Miscellaneous, Chap. IV. ^ ' Sect, 2. It is provided that if tlie promoters shall be Entry. Clauses S4 & 85. desirous of entering ' upon and using any lands before the amount to be paid has been deter- mined, they shall first deposit ^ in the bank the sum claimed by any party who shall not consent, or such sum as a surveyor' appointed by two justices shall determine, and give a bond with two sureties to be approved " by two justices in a penal sum equal to the deposit, conditioned' for Bailway Company, 6 Q. B. 759 ; R. v. London and North Western Railway Company, 3 E. & B. 443 ; Re Bradby, 4 E. & B. 1014 ; Re Byles, 11 Exch. 464. ' As to entry for the purpose of surveying, Foohs v. ^Yilts, Somerset, and Weymouth Railway Company, i Elwy. Ca. 210. " As to deposit before valuation, Stam^js v. Birmingham, any, 3 S. & G. 30. ^ Meynell v. Surtees, 1 Jur. JST. S. 80; Alston v. Eastern Counties Raihoay Company, 1 Jm-. N. S. 1009 ; Duke of Beau- fort 'v. Patrick, 22 L. J. Ch. 489 ; Somersetshire Coal Canal Com- pany V. Ilarcourt, 24 Beav. 571 ; on appeal, 2 D. & J. 596 ; Digitized by Microsoft® CONSOLIDATION ACT. 237 Where lands are in the possession of a re- chap. iy. ceiver of the court, the promoters should apply jt^oeiTer! for leave before taking proceedings under the Act/ Sect, 3.— CONSTRUCTION OF A KAILWAY. sect. 3. (a.) Special Act. In pursuance of the Standing Orders, plans of piaus. the projected railway and of the lands which the company may require to take or use, with a book of reference containing the names of the owners, lessees, and occupiers of such lands, have to be deposited with the clerks of the peace of the respective counties.' The special Act usually enacts to the effect General powers, that it shall be lawful ' for the company to make Mold V. Wheatcroft, 27 Beav. 510 ; Doe v. Mancliester, 12 C. B. 474, 5 De G. & S. 249 ; Marqids of Salishury v. Great Northern Railway Company, 5 C. B. N". S. 174 ; Jolly v. Great Northern Railway Compiany, 8 Jur. M". S. 1019. 7 TinkY. Rwndlc, 10 Beav. 318; Richards y. Richards, J. 255. 8 A landowner is not in general expected to examine the plans deposited in a neiglibouring county, Bentinck v. Norfolk Mstuary Company, 26 L. J. Cli. 404 ; 3 Jur. H". S. 204. " These words are permissive only so that a mandamus will not lie to compel the company to construct the line, York and North Midland Railway Company v. R., 1 E. & B. 178, 858 ; Great Western Railway Company y. iJ., 1 E. & B. 874 ; R. v. Lancashire and Yorkshire Railway Company, 1 E. & B. 228 ; Digitized by Microsoft® 238 CONSTRUCTION OF '^"^''- '^- and maintain the railway and works in the line,' ^^''^■^- and upon the lands'' delineated in the plans and described in the books of reference, and to enter upon and take and use ' such of the Scottish North Eastern Railway Company v. Stewart, 3 Macq. 382 ; Warden and Assistants of Dover Harbour v. London, Chatham, and Dover Railway Company, 7 Jur.' N. S. 453 ; Edinburgh, Perth, and Dundee Railway Company v. Philip, 2 Macq. 514 ; Nieholl v. Alien, 1 B. & S. 916. ' That is, in the datum line, subject to the powers of deviation given by the general Act. Tlie North British Railway Company V. Tod, 12 CI. & F. 722 ; Breynton v. London aiid North Western Railway Company, 2 C. P. Coop. 108 ; R. v. Caledonian Rail- way Company, 16 Q. B. 19 ; Beardmer v. London and North Western Railway Company, 1 Mac. & Gor. 112 ; Ware v. Regents Canal Compajiiy, 3 D. & J. 212 ; sec Feoffees of Heriots Hospital, 2 Dow. 301 ; Sqidre v. Campbell, 1 My. & Cr. 459 ; Moit v. BlacTcwall Railway Company, 2 Phil. 632 ; Aldred v. North Midland Raihcay Company, 1 Elwy. Ca. 404. The plans de- posited are not binding further upon the company. For provi- sions in earlier Acts, see Doe v. Bristol and Exeter Railway Company, 6 M. & "W. 320 ; Doe v. North Staffordshire Railway Company, 20 L. J. Q. B. 249. ' In Manchester, Sheffield, and Lincolnshire Railway Company V. Great Northern Railway Company, 9 Hare, 284, two Acts of Parliament conferred on different companies the power of purchasing compulsorily the same plot of land. ' A canal company was authorised to take lands " to and for the use of the navigation, but to or for no other use or purpose whatsoever." It was held {duhitante Erie), that they could not lawfully let out boats for hire on a reservoir formed in part upon land taken under the powers of the Act from the estate of an ancestor of the plaintiff. The plaintiff had a right of fishing and fowling on the reservoir. Bostock v. North Staffordshire Railway Company, 4 E. & B. 798 ; 5 De G. & S. 584, and 2 Jur. N. S. 249, V.-C. S. A landowner has no equity to have his land Digitized by Microsoft® A RAILWAY. 239 said lands as shall be necessary' for such '^"*''- ^^- Sect. 3. purpose. Of course the company will not be allowed to qui"td°foi- tho .1 11 1,1 ...11. , ^ piirpoaes of tho take any land, even although it is delineated and Act. described in the plans and book of reference, unless it is required bond fide for an authorised purpose.' Questions have arisen upon the construction J™ctiona. of certain special Acts as to the extent to which a new company could exercise their compulsory powers over land already vested in an earlier reconveyed, if the liue is aljandoned, beyond what is given by the 127th and 128th sections of the general Act, Astley t. Manchester, Sheffield, and Lincolnshire Sailway Company, 2 D. & J. 453. ■* This means necessary for the stations and other conveni- ences, as well as for the actual line. Cothcr v. Midland Railway Company, 5 Rlwy. Ca. 187 ; 2 Phil. 469 ; Crawfurd v. Chester and Holyhead Bailway Company, 11 Jur. 917 ; Ricliards v. Scarlorimgli Piihlic Market Company, 23 L. J. Ch. 110 ; Be Dylar's Estate, 1 Jui-. N. S. 975 ; Midland Eailiuay Company V. Ambergate, &c.. Railway Company, 10 Hare, 359 ; Sadd v. Maldon, Witham, and Braintree Railway Company, 6 Ex. 143. The words stations and conveniences are now often inserted in the Act. * Welh V. Manchester and Leeds Railway Company, 4 My. & Cr. 116 ; Eversfield v. Mid-Sussex Railway, 1 Giff. 153 ; 3 D. J. 286 ; Bentinclc v. Norfolk Estuary Company, 26 L. J. Ch. 404 ; 3 Jur. IST. S. 204 ; Stockton and Darlington Railway Com- pany V. Brown, 9 H. L. C. 246 ; Wood v. Epsom, and Leathef- head Railway Company, 8 C. B. H. S. 731 ; Dodd v. Salisbury and Yeovil Railway Company, 1 Giif. 158. Digitized by Microsoft® of rofercuce. 240 CONSTRUCTION OP C"^''- i^- company, with whose line they proposed to make Scot. 3. . ... a junction. Sjieciai cLiusos, Landowners who wish to prevent the promoters from using their powers of deviation/ or to bind them in any other special way, should have appropriate clauses inserted in the special Act/ (b.) General Act. jristakcs in Clause 7 of the Railway Clauses Consolidation plans and books Act' provides for the correction of mistakes in the plans and books of reference. With regard to this, Wood, V.-C, has said,' "I think the diffi- culty which was intended to be corrected by the 7th section of the Railways Clauses Act is, that ^ R. v. South Wales Railway Company, 6 Elwy. Ca. 489 ; Oxford, Worcester, and Wolverham]}toii Railway Company v. South Staffordshire Railway Cmn2}any, 1 Dr. 255. ' Sects. 11 to 15 of General Act ; see Pcarce v. Wyconibe Railway Company, 1 Dr. 244. ' No^-th British Railway Company v. Tod, 12 d. & F. 722 ; Leominster Canal Navigation v. Shrcusliiry and Hereford Rail- way Company, 3 K. & J. 664. Examples of sucli clauses may be fornid iix Eton College v. Gi~eat Western Railway Company, 1 Ehvy. Ca. 200 ; Gray v. Liverpool and Bury Railway Company, 9 Beav. 391 ; Sparrow v. Oxford, Woreester, and Wolverhampton Railway Company, 9 Hare, 436 ; 2 D. M. G. 94 ; St. Thomas's Hospital V. CJiaring Cross Railway Company, 1 J. & H. 400. 8 8 & 9 Vict. c. 20. ' Kemp V. West End Railway Company, 1 K. & J. 689 ; Tay- lor T. Cleinson, 2 Q. B. 978. Errors of this description are often very numerous. Eeport of Select Committee of the House of Lords on Compensating Landomiers (1845), p. 23, Digitized by Microsoft® A EAILWAY. 241 there might be some omission, either of the land in the plan, or of the owner in the book of refer- ence, rendering identification difficult. Probably what was intended, reddendo singula singulis, was some omission of land in the plan, or of the owner, lessee, or occupier in the book of refer- ence. The Act prescribes, that the land shall be marked on the plan, and the names of the owners be described in the book of reference. It might happen that the land might be marked on the plan, and aU descriptions omitted in the book of reference, or there might possibly be no num- ber, or a wrong acreage ; and, at the same time, there might be coupled with such a statement a list of persons' names utterly incapable of afford- ing any identification, from being entirely erro- neous. This might happen from the repetition which sometimes occurs in transcribing, by the person copying putting into the next line the name of the person in the former line, or some error of that kind; and, therefore, the legisla- ture seems to me to have meant no more than this, that where there should be such an erroneous description that the company cannot act on their general empowering clauses, because they cannot Sect. 3. Digitized by Microsoft® S48 CONSTEUCTION OF '^"^p- IV- satisfy persons that tlie land in question was described in the plan and in the book of refer- ence, they may then go before a magistrate to get that state of things corrected. I think the 7th section means no more than that ; and I should be laying too much stress on the inferential view that that section may afford with reference to the construction of the 19th section of the special Act, if I were to say that the words are so plain as that this section can be modified in the manner which this 7th section indicates, as having been possibly the intention of the legislature that it should be modified. On the other hand, there are difficulties which are not inconsiderable, that may arise from this construction : a person might be omitted altogether as owner, and not have the slightest notice that his land is required, which seems to have been the case here ; and the legis- lature may be misled by supposing that he is named in the book of reference, and that he has had notice. It turns out in point of fact that the plaintiffs here have not had any notice whatever, and knew nothing about it. However, I think if the legislature intended to obviate such an evil, that intention should have been more clearly Digitized by Microsoft® A RAILWAY. 243 pointed out than it is in these clauses, which do °"'^''' ^^- not, in my opinion, reach the evil, if such it be. In the case of actual fraud, I apprehend this Court would have jurisdiction to interfere. It has been held, that, notwithstanding an Act of Parliament, the Court may reach fraud in ob- taining an Act of Parliament, or a judgment of the Court; but here no question of that kind arises: the case is simjDly one of negligence." The company were allowed to exercise their com- pulsory powers, although the names of the plain- tiffs, who had a term in the property of 80 years, were altogether omitted from the book of refer- ence, and there was reason to suppose that if they had had notice Parliament would have given them special protection. By the 13th clause, where in any place it viaducts and •^ •' ^ tunnels. is intended to carry the railway on an arch or clause is. arches, or other viaduct, as marked on the plan, the same shall be made accordingly, no deviation being allowed; and similarly with respect to a tunnel.' Clause 49 provides, that bridges constructed Bridges over roads. 1 MttU V. Newport and Hereford Eailway Company, 17 Jur. 209. R 2 Digitized by Microsoft® S44 CONSTRUCTION OF Sect. 3. CTause 49. to carry the line over turnpike " and other roads, shall be of the span and height thereby provided according to the nature and width of the road.' The descent in the road, so as to carry the same under the bridge, is not to exceed certain gradients specified. It seems that no additional Footpath. .(^i(jth is allowed for a footpath," and that the company may lower a road without lowering the footpath, if that is the more beneficial course.' Bridges over the Clause 50 provides for the width of and line. ascent * to bridges, by which cross-roads are carried over the railway.' ' A turnpike road, is a road which is repaired hj means of tolls collected upon it. Northam Bridge and' Roads v. London and Southampton Railway Company, 6 M. & "W. 428 ; 1 Rlwy. Ca. 653. ^ Attorney-General v. London and Southampton Railway Company, 9 Sim. 78 ; 1 Elwy. Ca. 302 ; Wintle v. Bristol and South Wales Union Railway Company, 10 W. E. 210. As to right of the company to construct temporary bridges during the progress of the works, see London and Birmingham Railway Company v. Grand 'Junctioii Railway Company, 1 Elwy. Ca. 224 ; Priestley v. Manchester and Leeds Railway Company, 2 Ehvy. Ca. 134. 4 Re Righy, 19 L. J. Q. B. 153. ^ R. V. Manchester and Leeds Railway Company, 3 Q. B. 628. * Attorney-General v. London and Southampton Raihoay Company, 1 Elwy. Oa. 283. '' South Eastern Raihoay Company v. R., 20 L. J. Q. B. 428. Digitized by Microsoft® A EAILWAY. 245 It appears that the company are not authorised — "''^''- ^^- — Sect. 3. under any circumstances to make the approaches Approaches. to the bridges narrower than the corresponding parts of the road were before.' It may be remarked that clause 14, prescribing certain gradients, levels, &c., refers to the con- struction of the line itself, and not to cross- roads.' If the company find it necessary to interfere ^°="^'- . . Clause 53, et aei. With any road, either public or private, so as to make it impassable for, or dangerous, or extra- ordinarily inconvenient to passengers or carriages, or to the persons entitled to the use thereof, they are first to provide a sufficient road in substi- tution' for it; and unless the original road is restored, the substituted road, or some other sufficient substituted road, is to be put into a permanently substantial condition, equally con- * M. V. London mid Birmingham Railway Company, 1 Elwy. Ca. 317 ; M. v. Birmingham and Gloiicester Railway Oovvpany, 2 Q. B. 47. s Beardmer v. London and North Western Railway Company, 1 Mac. & Gor. 112 ; R. v. Caledonian Railway Company, 20 L. J. Q. B. 147. 1 A road already existing was held not to be a substituted road under tliis section, Attorney-Oeneral v. Great NortUrn Railway Company, 4 De 6. & S. 75. Digitized by Microsoft® 346 CONSTRUCTION OF ""*''■ ^^- venient ' as the former road, or as near thereto as circumstances will allow.' Doing aa little It is provided by the 16th clause, that in the damage as can ^°' exercise of their powers, the company shall do as little damage as can be. As a general rule, the company, acting bond fide, are the judges of the most convenient mode of executing the works.** But Lord Lyndhurst restrained a company from making an arch of less than certain dimensions 2 As a driftway as well aa for passengers and carriages, R. V. London and Binningliam Railway Company, 1 Elwy. Ca. 317. ^ Sjiencer v. London and Birmingham Railway Com2Mny, 1 Elwy. Ca. 159 ; R. v. London and Birmingham Railway Comxiany, 1 Rlwy. Ca. 317 ; Kemp v. London and Brighton Raihoay Company, 1 Elwy. Ca. 495 ; London and Brighton Railway Comjxmy v. Blake, 2 Elwy. Ca. 322 ; Attorney- General V. Eastern Counties Railway Company, 3 Elwy. Ca. 337; At- torney-General V. London and South Western Railway Company, 3 De G. & S. 439 ; Bell v. Eull and Solly Railway Company, 2 Elwy. Ca. 279 ; R. v. Scott, 3 Q. B. 543 ; EllisY. Smith WesternRail- way Coinpany, 2 H. & N. 424 ; Gawthorn v. Stockport, Disley, and Whaley Bridge Railway Company, 3 Jur. N". S. 573 ; Caledonian Railway Coin2)any v. Colt, 3 Macq[. 833 ; Marquis of Salisbury V. Great Northern Railway Company, 5 C. B. N. S. 174. This section does not refer to the conversion of a road into a railway. Tanner v. South Wales Railway Company, 1 Jm'. N. S. 1215. As to who is to be considered an " oiraer" under these clauses, see Collinsony. Newcastle and Darlington Raihoay Company, 1 C. & K. 646 ; Manny. Great South aiid Western Railway , 9 Ir. C. L. 105. ■* London and Birmingham Railway Company v. Grand Junction Canal Company, 1 Ehi'y. Ca. 225 ; Priestley v. Man- chester and Leeds Railway Company, 2 Elwy. Ca. 134 ; R. V. Sharpie, 3 Elwy. Ca. 33 ; see Richards V. Richards, J. 255. Digitized by Microsoft® A RAILWAY. 247 over a mill-race.' And the Court will also inter- ""^''- '^- fere where there is a binding agreement respecting the construction of the works between a land- owner and the company .° With reference, however, to such agreements, company oon- tractiug itself when not incorporated with the special Act, ""'""tspowers. Lord Langdale said,' " I do not think it perfectly- clear, that a company having a power given to it plainly for the pubUc good, but which may effect an injury on an individual, in respect of which compensation can be given, has a right to con- tract itself out of those powers. On a proper occasion these matters ought to be most carefully considered. I certainly have never felt the least disposition to extend the powers of railway com- panies ; and I believe it would be for their own and for the public advantage if these powers ^ Coats V. Clarence Railway Company, 1 E. k M. 181 ; Majiser v. North Eastern Bailway Company, 2 Ehvy. Ca. 380 ; see Attorney-General v. London and South Western Railway Company, 3 De G. & S. 439 ; Attorney-General Y. Dorset Central Raihoay Company, 3 L. T. N. S. 608. '' Sanderson v. Coekermouth and Workington Railway Com- pany, 11 Beav. 497 ; on appeal, 19 L. J. Ch. 503 ; Clarke T. Manchester, Sheffield, and Lincolnshire Railway Company, 1 J. & H. 631. ' Breynton v. London and North Western Railway Company, 10 Beav. 238 ; 2 C. P. Coop. 108 ; see Selby v. Colne Valley and Halsted Railway Company, 10 W. E. 661. Digitized by Microsoft® 248 CONSTEUCTION OP A RAILWAY. Chap. IV. Sect. S. were less than they seem to be ; but if they have powers given them for the public benefit, such, for instance, as to make a road under instead of. across a railway, I do not feel satisfied they have the right or power to contract themselves out of it by a private agreement with any individual whatever." Application for Persons Seeking to restrain the operations of Injunction. a company in the construction of the'works, are bound to be prompt in making their application. Where, after a company had opened the line for traffic, it was decided that a bridge should have been built where a certain road was crossed on a level, and the proprietors of the road moved for an injunction to stop the traf&c, the motion was ordered to stand over upon the company under- taking to build a bridge forthwith." ' Shand v. Henderson, 2 Dow. 519 ; Greenlmlgh v. Manchester and Birmingham Railway Company, 9 Sim. 416 ; 3 My. & Cr. 784; Graliamy. Birkenhead, t£r., EaiUvay Company 2 Mac. & Gor. 146 ; Lind v. Isle of Wight Ferry Company, 1 B". E. 13. ° Proprietors of Northam Bridge and Roads v. London and Southampton Railway Company, 1 Klwy. Ca. 653. Digitized by Microsoft® INDEX. ACCESS, compensation for obstructing the, to a ferry, 224 to land, 22i of light and air, 225 ACCOUITT. See Limitations, Siahitb of. in cases of trespass, 176, 184 in cases of waste, who may hare, 17, 20 against an executor, 19 of what it is taken, 19 of timber (not ornamental) rightfully cut, 41 of ornamental timber rigiitfully cut, 49 of ornamental timber wrongfully cut, 44 ACQUIESCENCE, in a nuisance, 95, 105 by a reversioner, 106, 108 ACTION" OF WASTE, 3 on the case, for waste, 5 AGREEMENT, breaches of, 63, 65, 91, 99, 104, 137 with a landowner in restriction of compulsory powers, 247 AIE, intercepting currents of, 113 compensation for obstructing the access of, 225 BACKWATER, 123 BANKS OP A RIVER, repairs of the, 66 BARRIERS IN MINES, 136 BELL-RINGING, 122 Digitized by Microsoft® 350 INDEX. BOARDS OF HEALTH, 96. See Addbhda. BOND, given under Lands Clauses Consolidation Act, 228 BOWLIFG-GEEEN, breaking up a, 64 BEBWHOUSE, not necessarily a nuisance, 122 BKICK-BTJRNING, 113 BRIDGES, construction of, along and across a railway, 243 temporary, 244 BUILDINGS, waste in, 3, 56, 64 equitable waste in, 59 alteration of, with respect to rights of Hght, 110 right to support for, from subjacent and adjacent soil, 150 from adjacent buildings, 168 BURIAL, right of, 81 CANAL, fouling a, 134 nuisance to a, 171 CASE, action on the, for waste, 5 CHIMNEY, obstructing a, 122 CHURCH, altering the fittings in a, 81 warming a, 173 compensation for the site of a, 222 CHURCHYARD, timber in a, 76 incumbent erecting a school-house in a, 80 nuisance in a, 173 right of burial in a, 81 COKE-OVEN, 122 COLOUR OP TITLE, 177 right of way claimed under a, 190 Digitized by Microsoft® INDEX. 251 COMMISSIONEES, ecclesiastical, 75, 82 of sewers, 96 drainage, 96 of woods and forests, 96 COMPENSATION under the Lands Clauses Consolidation Act, 221 for severance, 221 for land taken, 222 for minerals, 158, 222 for land injuriously affected, 222 for making a tunnel under a public road, 225 how to be assessed, 226 when the liability to pay any, is disputed, 227 payable to a lessee, 233 CONSERVATOES OE THE THAMES, 96. See Addenda. CONTEACT, breaches of, 63, 65 in restriction of compulsory powers, 247 COPYHOLDEE. See Loed of a Manok. in remainder may have an action for waste, or an injunction against the copyholder for life, 6, 14 can restrain waste by his lessee, 14 interest of a, in trees, &c. , 23, 29 entitled to estovers, 27, 53, 187 COVENANT, breaches of, 63, 65, 91, 99, 137 CUSTOM of London, 110 of the country, 62 DAMAGE, recurring, 91 special, 85, 205 substantial, 2, 207 temporary, 114 to water rights, 124, 126 in the construction of public works, rightfully done, 221 wrongfully done, 246 DAMAGES, liquidated, 67 when an inadequate compensation, 88, 144, 206 DATUM LINE, 233 Digitized by Microsoft® 252 INDEX. DEEE, destroying and reclaiming, 2 DELAY. See Laohes. DILAPIDATIONS. See Permissite "Waste, Eoolesiasmoai Cokporations. DOWEESS, rights of a, in mines, 55 in timber, 43 DEAINAGE, in general, 128, 129, 134, 135, 224 commissioners of, 96 DROWNED MINES, 137, 224 DUST, compensation under the Lands Clauses Act for damage caused by, 225 EASEMENT, affirmative or negative, 104 acquisition of an, by severance, 99 by user, 103 injury to an, 83 owner of an, not entitled to a notice under the Lands Clauses Act, 218 whether the owner of the soil can be compelled under the Lands Clauses Act to sell an, 220, 225, 232 ECCLESIASTICAL COMMISSIONERS, 75, 82 ECCLESIASTICAL CORPORATIONS, 70 their powers of alienation at Common Law, 70 their rights of waste at Common Law, 71 episcopal leases without impeachment of waste, 81 statutes relating to, 72, 74, 82 leases not made in conformity with the statutes, voidable, 74 mining leases by, 74 may cut timber for repairs, 75 liable for dilapidations, 77 not generally liable for mismanagement, 77 application of the produce of waste by, 77, 79 prohibition to restrain, 7 8 injunction to restrain, 78 enjoyment of an easement adverse to, 106 an incumbent erecting a school-house in the churchyard, 80 felling timber pending a quaere impedit, 204 ELECTRIC TELEGRAPH COMPANY, 86, 195 ENTEY under the Lands Clauses Act, 228 Digitized by Microsoft® INDEX. 253 EQUITABLE JURISDICTION, to restrain waste, 10 in cases where no action lies, 10 to restrain equitable waste, 15, 32, 40, 82 to restrain nuisance, 85, 97, 138 to restrain trespass, 176 to control the execution of public works, 211 EQUITABLE WASTE, 15 who are within the principle of, 17 in timber, &c., 32 in buildings, 59 ESTATE, a timber, 8, 32, 39, 50 ESTOVEES, 7 of trees, 28 of minerals, 53, 54 on ecclesiastical estates, 75 a copyholder entitled to, 27, 53, 187 EXECUTOEY DEVISE. See Tbnani in Eee. FEME COVEETB, husband liable for waste by a, 6 tenant in tail, 13 FERRY, nuisance to a, 172 compensation under the Lands Clauses Act for obstructing the access to a, 224 FIRE, loss by, 56 FISH, 2 FITTINGS, of a church, altering the, 81 FLOOD WATER, 137 FORFEITURE, for waste, 21, 42, 57, 58 FOULING, a natural stream, 126, 139 an artificial stream, 132 within Lord Tenterdeu's Act, 129 FUNCTIONARIES, public. See Pdbiio Fdhotiokaeies. GAS COMPANY, 87, 195 Digitized by Microsoft® 354 INDEX. GAS WORKS, 122 GLEBE, timber on, 44, 16, 80 mismanagement of, 77, 78 GLOUCESTER, statute of, 4 GRANT, of lands and mines, 53 GUARDIAlSr. See Infant, GUNPOWDER, 122 HEALTH, boards of, 96 HEIR, taking by resulting trust, until the happening of a contingency is within the principle of equitable waste, 17 HIGHWAY, nuisance to a, 172 interfering with a, under the powers of Lands Clauses Act, 225 HOSPITAL, a, not necessarily a nuisance, 122 HOUSE, meaning of, in the Lands Clauses Act, 230 HUSBAND AND WIFE. See Feme Covert. IMMEMORIAL ENJOYMENT. See Pkesokiption. IMPEACHMENT OF WASTE. See Without Impeachment of Waste. INFANT, tenant-in-tail, gnardian of, responsible for waste to the infant, but not to the remainderman, 12 tenant-in-tail, or in fee, the court will order timber to be cut on the estate of an, 60 ; whether the produce is personal or real estate, 50 en ventre aa mfere, 11 INFORMATION, to restrain a nuisance, 85, 89 INTERRUPTION, under Lord Tenterden's Act, 107, 109 IRRIGATION, 124 JOINT TENANTS, remedies for waste between, 14 JUNCTIONS, questions relating to, 239 JURISDICTION. See Equitable Jurisbiotion. Digitized by Microsoft® INDEX. 255 JUSTICES OF THE PEACE, 96 LACHES, in cases of waste, 19 in mining cases, 56 in cases of nuisance, 95, 140 LANDLORD AND TENANT, 62 landlord restrained from cutting trees, 67 when the landlord is responsible for a nuisance by his^tenant, 97 landlord restrained from darkening windows, 100 lessee losing or acquiring a right to light, 108 an underlessee, restrained from committing waste, 67 effect of an alteration in the state of the .property, 66, 95 LANDOWNEE, rights of a, against the promoters of public works, 207 agreement between a, and the promoters, 214, 247 whether he can be compelled to sell a partial interest, 220, 225, 232 a statutory owner able to sell and convey under the 92nd section, 230 not expected to examine the plans deposited in a neighbouring county , 237 protected by special clauses, 240 LANDS CLAUSES CONSOLIDATION ACT, 214 LANDS, injuriously affected by the execution of public works, 221 taken compulsorily, to what uses they may be applied, 238 LEASES, frame of, 23, 54 underlessee restrained from committing waste, 67 of ecclesiastical corporations, 72 et seq.; without impeachment of waste, 81 whether the lessee of renewable leases may have waste, 7 LEASES AND SALES, of Settled Estates Act, as regards timber, 44 LESSEE. See Landlord and Tenant. compensation payable to, under the Lands Clauses Act, 233 LIGHT. See Window. intercepting, 98 right to, by agreement, 99, 104 by severance, 100 by user, 103 under Lord Tenterden's Act, 107 against a reversioner, 108 how lost, 110 compensation under the Lands Clauses Act, for obstructing the access of, 225 Digitized by Microsoft® 356 INDEX. LIMITATIONS, STATUTE OP, in account for waste, 19 in cases of subsidence, 171 LIQUIDATED DAMAGES, 67 LITIGATION, protection of property (luring, 181, 196 LOED OF A MANOR, property of, in trees, 23, 29 can have an injunction against waste by the copyholder, 7 whether he can have an action for waste by the copyholders, 7 trespass by the, 188 illegal seizure of copyholds, by, 188 LUNATIC, timber cut on the estate of a, 50 fire on the estate of a, 67 MANDAMUS, to enforce a statute, 206, 210, 237 MANOR, the Lord of a. See Lord oi a Manok. MANSION HOUSE, 16, 26, 33, 34, 59 MANUFACTORY, meaning of, in the Lands Clauses Act, 231 MARKET, nuisance to a, 173 MARLBRIDGB, statute of, i ' JIEADOW, breaking up a, 2, 6, i MELIORATING WASTE, 3, 7, 21, 61 MERTON, statute of, i, 187 MILL RACE, nuisance to a, 172 compensation under the Lands Clauses Act for obstructing a, 224 MINERALS. See Ecclesiastical Cokpobations, Moktoaooii, and MOKTOAQEE. property in, 53 grant of, 53 deposited by a stream, 65 compensation for, under the Railways Clauses Act, 155 Digitized by Microsoft® INDEX. 257 MINES, account for waste in, 18 right to possession of, 66 drainage of, 136, 179 drowned, 137 compensation under the Lands Clauses Act, for drowning, 224 trespass in, 176, 184 working out of bounds, 182 working so as to let down the surface, 150, 170 MISTAKE, in a book of reference, 240 MORTGAGEE, rights of, under the Lands Clauses Act, 233 in possession, how he may deal with the property, 68 pending a redemption suit, 69 MORTGAGOE, in possession, restrained from cutting timber or underwood, 69 bankrupt, 70 pending a suit for foreclosure, 70 NAVIGABLE EIVEE, rights of the proprietors of land on the banks of a, 123 no compensation under the Lands Clauses Act for polluting a, 226 NOTICE, of a nuisance, 116, 119, 121 under the Lands Clauses Act, 218, 232, 235 NUISANCE, what it is, 83 various examples of, to dwelling houses, 97, 122 in general, 171 public or private, 83, 89 who may sue to restrain, 85, 97 right to be established at law, 86 damages, an inadequate compensation, 89 recurring, 91 ; temporary, 114 restoring the enjoyment of the right, 66, 95 ■when the application should be made, 95 by public functionaries, 95 practice in cases of, 85 coming to a, 121 relating to water, 123 relating to support, 149 notice of a, 116, 119, 121 Digitized by Microsoft® 258 INDEX. NUESBEYMAN, trees planted by a, 24 ORJTAMENTAL TIMBBE. See Timbek. PAEK, pale of, 2 PAETIES, in suits to restrain waste, 20 PASTURE, breaking up, 64 PERMISSIVE WASTE. See Eoolesiastioal Cokpokations . In general, 3 no injunction or account for, 21, 57 a cause of forfeiture of copyholds, 58 action for, 62 PISCAET, drying up a, 2 PLANS, of a projected railway, 237 POSSESSION, taken under the Lands Clauses Act, 229 PRACTICE, in case of waste, 20, 61, 69, 70 in cases of nuisance, 85 with reference to the execution of public works, 212 PRESCRIPTION in general, 103 for currents of air, 113 PRESUMPTION, of lost grant or agreement, 104 PRIVACY, loss of, by opening a window, 99 no compensation for, under the Lands Clauses Act, 226 PRIVATE EOAD, compensation under the Lands Clauses Act for obstructing a, 224 PEOHIBITION, writ of, 78 PROMOTERS OP PUBLIC WORKS. rights and liabilities of, 207 agreements of, with landowners, 214, 247 Digitized by Microsoft® INDEX. 269 PROSPECT, shutting out a, 99 PUBLIC FUNCTIONARIES, 95, 219, 227 PUBLIC EGAD, no compensation under the Lands Clauses Act for obstructing a, 225 PUBLIC WORKS, construction of, 205 lands injuriously affected by, 221 PURCHASER, in possession not allowed to commit waste, 190 PURITY, of a natural stream, 126, 139 of an artificial stream, 132 PURPEESTURES, 87 QUARRY, trespass in a, 185 RABBIT WARREN, breaking up a, 64 RAILWAY, construction of a, 237 hindering the construction of a, 173 private siding to a, 172 RAILWAY CLAUSES CONSOLIDATION ACT, 240 clauses relating to minerals, 169 REASONABLE USE, of lands, 120 of a stream, 124 RECEIVER, when possession has been obtained by fraud, 190 during litigation, 196, 201 promoters taking land in possession of a, 237 RECREATION, ground dedicated to public, 173 REFERENCE, books of, 237, 240 REGATTA, holding a, 122 Digitized by Microsoft® 260 INDEX. EEMAINDEK-MAN. See Coptholber, Reveksiohek. not allowed to commit waste, 9, 30, 61 not allowed to join in waste for his own benefit, 29 acquiescence of, in a nuisance, 106 — 108 for life, position of, in respect to waste, 9, 11, 18, 20, 51 of part of the inheritance, position of, with respect to waste, 20 EENEWABLE LEASES. See Leases. EEPAIES. See Estovers, Permissive Waste. EEYEESIONEE, acquiescence of a, in a nuisance, 106, 108 EIDE, protection to timber given by a, 35 EIGHT OP WAT, nuisance to a, 172 trespass under colour of a, 190 EIPAKIAN PEOPRIETOES, rights of, 123, 129 EIVEE, banks of, getting out of repair, 65 navigable, nuisance to a, 171 rights of the proprietors on the banks of a, 123 EOAD, private, compensation under the Lands Clauses Act for obstructing a, 224 public, no compensation in general under the Lands Clauses Act for obstructing a, 225 constructing a tunnel under a, 225 substituted, 245 turnpUce, definition of a, 244 trustees of a, 96 ETJlSrNmG POWEES, 193 SCHOOL, converting premises to the purpose of a, 64 SCHOOLHOUSE, erecting a, in a churchyard, 80 SEA-SHOEE, removing part of the beach of the, 186, 189 SEEDS, sowing with pernicious, 64 SETTLOR, waste by the, 33 Digitized by Microsoft® INDEX. 261 SEVEEANCB, right to easements by, 100, 154 compensation under the Lauds Clauses Act for damage by, 221 SEWEES, commissioners of, 96 SIDING TO A EAILWAY. obstructing a, 172 SITE OP A CHURCH, compensation for, under the Lands Clauses Act, 222 SMOKE OP A STEAM ENaiNE, 122 SOAP-BOILING, 122 SOIL, right to support for, in its natural state, 1 49 excavated, 150 incumbered with modern buildings, 150 incumbered with ancient buildings, 150 SOWING, with pernicious seeds, 64 SPECIAL DAMAGE, in cases of nuisance, 85 in cases of the breach of a statute, 206 SPECIPIC PEEFORMANCB, of a notice to treat under the Lands Clauses Act, 22 STALLAGE, right of, 173 STATUTE, action upon a, 205 mandamus to enforce a, 205 injunction to enforce a, ib. permissive,, 210 STATUTES. See Limitations. Tentekden's Act, (Lokd) etc. 52 H. 3, c. 83 (Marlbridge), 4 6 Edw. 1, c. 5 (Gloucester), ib. 13 Edw. 1 (Westminster, the second), 14 20 H. 3, c. 4 (Merton), 187 relating to ecclesiastical corporations, 72, 74, 82 STEAM ENGINE, smoke of a, 122 Digitized by Microsoft® 2G2 INDEX. STONE, quarrying, 185 removing valuable, 186 STEANGEK, waste by a, 5 STKEAM, source of a, 126 rights in a natural, 123 compensation for a, under the Lands Clauses Act, 224 rights in an artificial, 129 SUBSTANTIAL DAMAGE, in cases of waste, 2 in cases of breach of statute, 207 SUBSTITUTED ROAD, 245 SUPPORT, right of, for soil, 149 for buildings, 150, 168 by severance, 152, 169 TANTAED, compensation under the Lands Clauses Act for obstructing the flow of water to a, 224 TELEGRAPH COMPANY, electric, 86, 195 TENANT. See Landloed and Tenant. TENANT BY THE COURTESY OR IN DOWER, liable for waste at Common Law, 3 rights of in timber and mines, 43, 55 TENANT IN FEE SUBJECT TO AN EXECUTORY DEVISE, not liable for legal waste, 9 liable for equitable waste, 17 TENANT FOR LIFE. See Estovers. liable for waste by statute, 4 property of, in timber, &c., 23 may not fell timber, except for special purposes, 27, 40 may not open mines, 54 may work open mines, 55 may not work open limestone quarries, 64 in remainder, 11, 18, 20 enjoyment of easement adverse to, 106 powers of, under Landa Clauses Consolidation Act, 214 Digitized by Microsoft® INDEX. 263 TENANT FOE LIFE WITHOUT IMPEACHMENT OP WASTE. See Eqdiiable Waste. iu possession, 7 how he may cut timher, 38 restrained from cutting trees or underwood of msufB.cient growth, 38,40 restrained from cutting ornamental trees, 32 restrained from cutting trees planted for shelter, 37 pulling down mansion house, &c., 16, Si, 59 charged with repairs, 58 may open and work mines, 55 not to derive advantage from a power of sale or exchange, 31 receiving the price of growing timber on a sale, 32 settler, 33 trees planted by, 3i in remainder, 9, 11, 18, 61 of a term of years, 8 TENANT FOR LIVES, renewable for ever, 7 TENANT-IN-TAIL. See Feme Covert, Infant. inalienable by statute, liable for equitable waste, 17 powers of, under Lands Clauses Act, 214 after possibility of issue extinct, cannot bring an action for waste, 6 not liable for legal waste, 6, 9 liable for equitable waste, 17 TENANT FOR TEARS, liable for waste by statute, 4 determinable on life, 8 property of, in timber, &o., 23 enjoyment of easement adverse to, 106 TENANT FROM YEAR TO YEAR, compensation payable to a, under the Lands Clauses Act, 234 TENANTS IN COMMON OR JOINT, remedies for waste between, 14 in remainder, 20 TENTBRDEN'S ACT, LORD, 103, 106, 113, 129, 151, 169 TEEM OF YEARS WITHOUT IMPEACHMENT OF WASTE, tenant for life of, 8, 39 trustees of, 40 THAMES, conservators of the, 96. See Addenda. Digitized by Microsoft® 264 INDEX. TIMBER. See Eoolesiastioal Cokpokatioits, Moetoasoe, Moktoagee, Trees. what is, 22, 89 waate in, 24, 65 how tenant for life without impeachment, may cut, 38 when the court will sanction the cutting of, 40 property in, growing, 23 property in, severed, accidentally or wrongfully, 27 on copyhold laud, 29 rightfully, 41 on glebe land, 44 on estate of an infant, 12, 50 on estate of a lunatic, 50 landlord restrained from catting, 67 ornamental, what is considered to be, 34 tenant for life, planted by, 34 without impeachment, restrained from cutting, 32 property in, wrongfully cut, 44 rightfully cut, 49 trustees cutting, 13 felled during litigation, 180, 196, 202 by a trespasser, 185 on a manor, 188 TIMBBK ESTATE, 8, 39, 52 trustees purchasing a, 32 TITLE, privity of. See Sevekakok. colour of, 177 whether directors can accept a defective, 217 TOLLS, compensation under the Land Clauses Act for loss of, 225 TOWIKG PATH, compensation under the Lands Clauses Act for the loss of the tolls of a, 225 TEADE, trees planted for the purpose of, 24 TREES, other than timber, 23, 24, 25 ornamental, 33 landlord restrained from cutting, 67 severed on copyhold, 29 Digitized by Microsoft® INDEX. S65 TEESPASS, jurisdiction to restrain, 175 character of the acts which will be restrained 9i, 182 by disturbing a stream, 189 TRUSTEES, to preserve contingent remainders, 12 of the fee, riglit and duty of in respect of waste, 13 cutting ornamental timber, ih. duty of, in purchasing a timber estate, 32 of a term of years without impeachment of waste, 40 of turnpike roads, 96 acting gratuitously for public purposes, 227 TUNK-EL, construction of a, 243 compensation under the Lands Clauses Act for constructing a, 220, 225 TURBARY, 54, 186 TURNPIKE ROAD, definition of a, 244 trustees of a, 96 UNDER LESSEE, restrained from committing waste, 67 UNDERWOOD, in general, 23, 25, 27, 65 property in, wrongfully cut, 28 not to be cut of insufficient growth, 40 mortgagor cutting, 70 UNITY OP TITLE. See Setekanoe. USE. See Reasonable Use. which may be made of lands taken compulsorily, 238 VAULT, entrance to a, 172 VENDOR, retaining possession, not allowed to commit waste, 190 VIADUCT, construction of a, 243 VIBRATION, compensation under the Lands Clauses Act, for damage caused by, 225, 226 VILLEINS, battery of, 2 Digitized by Microsoft® 366 INDEX. VOLUNTARY WASTE, 3 WASTE. See Aooohnt, Equitable Waste, Estovers, Tenant fob Life, ETO., Timber, Trees, Uhberwood, Miheeais, Bdilbikgs, Land- lord AND Tenant, Moktoagor, MoRTaAQEB, Eoolesiasiioal Cor- rOKATIONS. principle upon which it depends, 1 voluntary, 3 permissive, 3, 21, 57, 62 meliorating, 3, 7, 21, 61 by collateral respect, 25 action of, at common law, and by statute, 3 against whom, 3 by whom, 4 abolished, 5 action on the case for, 5 substantial damage by (three kinds of ), 2 forfeiture for, 21, 42, 57, 58 who may have a bill to restrain, 10, 18, 20 stranger committing, 5 practice in cases of, 20, 51, 69, 70 during litigation, 180, 196 WATER, nuisances relating to, 123 compensation under the Lands Clauses Act for obstructing the flow of, 224 not flowing in a defined channel, 135 flood, 137 in mines, i&. rights to, created by deed, 129 WATERCRESS BEDS, 128 WATERCOURSE, definition of a, 134 repairing a, 148 letting down the bed of a, 159 WAY, right of, nuisance to a, 172 trespass under colour of a, 190 WAY-LEAVE, nuisance to a, 172 sufficient, what it authorises, 190 Digitized by Microsoft® INDEX. 267 WELL, owner of the land may sink a, 135 drying up a, 135 no compensation under the Lauds Clauses Act for drying up a, 220 WESTMINSTER THE SECOND. statute of, 14 WINDOW. See Aie, Liani. opening a new, 99 altering an old, 112 WITHOUT IMPEACHMENT OF WASTE. See Tenant for life WIXHOTTT IjIPEAOHMEHI OF WaSTE. effect of this clause, 7 episcopal leases without, 81 WOOD, stubbing a, 2 WOODS AND FOEESTS, commissioners of, 96 WOODED ESTATE, 8, 32, 39, 52 WOKKS PUBLIC, construction of, 205 WEIT OP PKOHIBITION, 78 THE END. BKADEUnY AND EVANS, PIUNTEES, WHITEFEIAKS. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by MicrosQ