« EelmineJätka »
classification of rights of way, would go to show, first, how thoroughly that conception had taken a hold upon the Bench and Profession generally; and, secondly, how impossible it had become to preserve the conception intact. In that case a prescriptive claim was set up to the right of driving cattle over the way. There was abundant evidence of the user of the way for carriage traffic, but none of any user by driving cattle. It was contended, on the authority of Lord Coke's classification, that proof of vehicular user would necessarily establish a right to drive cattle. The court, however, refused to accede to this. In this refusal the supposed cogency of Lord Coke's classification was, at any rate as regards private ways, destroyed for all time.
Ever since the last-mentioned decision the rights of the dominant owner have been held to depend solely on the terms of the express grant, or, if the way is claimed by prescription, on the terms of the supposed grant-which terms are defined by the proved user. Although the terms of every grant differ, and it is not to be supposed that it is an easy matter to abstract general principles from the very numerous decisions on private rights of way, it has hitherto been a surprisingly difficult question to solve how far the servient owner is entitled to fence off the way and to erect gates across it. There is, indeed, a surprising paucity of authority upon this elementary question. If A. grants to B. a right of way, can A. erect a gate across the road?
Let us consider at length the cases occurring in the books which seem to throw light upon the point :
Now, as regards highways, it is abundantly clear that a highway may exist coincident with a right whereby some landowners may properly maintain gates across the road. No doubt the reader is familiar with roads admittedly and notoriously public highways where the public are nevertheless put to the trouble of opening and closing gates across the road. The case of Davies v. Stephens (1836, 7 C. & P. 570) shows that a landowner may dedicate a highway subject to the right of maintaining a gate across it for his own purposes, or rather, for purposes connected with his lands. On the other hand, however, the erection of a gate across a highway, whereby the public suffer inconvenience, constitutes a nuisance, if the person erecting it cannot justify his act on the ground that the highway was originally dedicated to the public user, subject to the right of erecting gates across it.
In the old case of James v. Hayward (1630, Cro. Car. 184) there was a difference of opinion between the judges on the question whether a gate across a highway was a nuisance or not. The plaintiff, in that case, set up two posts on either side of a public roadway, and hung a gate across the road for the purpose of keeping cattle from damaging the growth of his trees. The gate was not locked, but swung on hinges, and could be easily opened by anyone using the road. The defendant, finding his way impeded, forthwith knocked down the gate. The majority of the Court of King's Bench held this to be a nuisance. They concurred that the erection of the gate constituted a nuisance, notwithstanding the fact that it was neither locked nor tied, and was so hung that any person could easily open it and pass through. The reason given for this view was that women and old men were more troubled by having to open the gate than they would have been had no gate existed. Sir George Croke took the opposite view, and in his report of the case gives his reasons in the following words: "But it seemed to me that it i..., the presence of the gate) is not any nuisance in itself, being so small a trouble, but much for the public good that there should be inclosures for the preservation of corn and grass from cattle straying. And the law accounts not such petty troubles to be nuisances; for it appears that there are many gates in divers highways which have been always allowed; and if it were a nuisance in itself there should not be any gate, for there cannot be any prescription for a nuisance, and the multitude of gates in several ways proves that it never was accounted to be any nuisance." The learnsd judge adds that in a case in one of the Year Books (2 Edw. 4, pl. 2) the erection of a gate on a way was pleaded and admitted to be lawful.
A report of the case of James v. Hayward finds a place in several of the old reports. The reports of Sir W. Jones, who was also one of the judges in the case, gives the views of the latter. "If a private individual," the reports 'runs (the actual
words are in bad French), "has a way across the land of J. S. by prescription or grant, J. S. cannot make a gate across the way, and if in the case of a private right of way a gate cannot be made, all the more can it not be made on a highway where it would interfere with numerous persons."
In the case of Andrew v. Paradise (8 Mod. 318) the court held that the placing of a gate across a lane was a breach of a. covenant for quiet enjoyment of the land to which the lane led. The report of this case is somewhat obscure. All the words of the covenant for quiet enjoyment are not given. It would seem that the ratio decidendi was that by erecting the gate the covenantor had violated his covenant not to "molest, hinder, or prevent." There is nothing in the report of the case to show that the gate was not locked, and there are several passages in the report which go to show that the substantial question in dispute was whether or not the covenantee was entitled to use the lane at all.
To these authorities, such as they are, we ought to add the case of Kidgell v. Moor (1850, 9 C. B. 934). In that case a reversioner, the owner of the dominant tenement, brought an action for an obstruction to a right of way to that tenement. The obstruction had been caused by the locking of a gate across the way. The question before the court turned on the right of the reversioner to sue in respect of such an obstruction. The court-Mr. Justice Maule, Mr. Justice Cresswell, and Mr. Justice Williams-took the view that the reversioner could in the circumstances maintain his action. The case is only important to us in this, that the learned judges intimated their view in the course of the argument that the putting of a lock upon the gate would not entitle either the lessee or the reversioner to sue. "Would the mere putting of a lock upon the gate," asked Mr. Justice Cresswell, "enable the reversiner to sue, no cne appearing ever to have been prevented from passing through?" "The tenant," said Mr. Justice Maule, "clearly could not maintain an action unless he has been actuaily obstructed. Could the landlord bring an action alleging injury to the reversion where there has been no actual obstruction of the tenant?"
A private right of way is, of course, an easement. The question whether an easement has been wrongfully disturbed or infringed depends essentially on the degree of disturbance. Apart from the effect of the well-known maxim De minimus non curat lex, any physical encroachment, however small, on the land of another constitutes a trespass. The familiar case of encroachment by building the footings of a wall beyond the boundary of the building owner is a common example of trespass, although the actual interference is very small indeed. The right of property of the owner across the boundary is infringed; and that of itself gives a right of action. But when it is a question of the interference with an easement, the test whether the easement has been infringed is not the question whether there has been some interference, but whether such interference as there has been is such as to cause a substantial interference of the enjoyment of the easement.
For some reason or other this rule of law has often been overlooked, and the tendency to overlook it has had disastrous effects. The reader is, no doubt, familiar with the corrective judgments of the House of Lords in the celebrated case of Colls v. Home and Colonial Stores Limited (90 L. T. Rep. 687; (1904) A. C. 179). For many years previous to that decision judges had come to look upon the easement of light as a right over some tangible substance. They had come to regard it as a wrongful interference with the easement if there was any protrusion into the so-called cone of light the apex of which was notionally considered to be situated within the privileged window. "Pencils of light" and "cones of light" were phrases in common use. As is pointed out in the standard work on the law of light (Combe's Law of Light, p. 255), the use of such phrases was not compatible with the true view of the nature and extent of the easement of light. The learned Law Lords in the last-mentioned case returned to the more ancient view of the right to light, and they held that the question whether the right had been wrongfully. infringed must always be a question of nuisance or no nuisance, and that, in considering whether a nuisance had been caused or not, the real question was whether the deprivation of
light caused by the erection of the offending structure was such as to interfere substantially with the use and enjoyment of the dominant tenement.
Now the Court of Appeal has decided in the recent case mentioned above-Pettey v. Parsons—that as in the case of light, so in the case of a private right of way, the question whether an alleged obstruction is a wrongful interference with the easement must depend on the question whether the interference so caused is so substantial as to cause a nuisance. The alleged obstruction in that case consisted, as indicated above, of a gate and gateposts erected across the roadway. When the case was in the court below, Mr. Justice Sargant considered himself bound by the authority of the two cases of James v. Hayward and Andrews v. Paradise, and his Lordship took the view that the owner of the soil could not rightfully erect the gate. "In my judgment," said the learned judge, "I am bound by the authorities, and, if there were no authority, I should feel at liberty to come to the conclusion, as a matter of practical common sense, that the placing of a gate across a roadway, over which a full and unrestricted right of egress and ingress has been given to the owner of the adjoining land, is an interference with that easement and an obstruction of it which the defendant is, in strict law, entitled to object to and have abated."
The Court of Appeal approached the question from quite a different standpoint. All the learned judges-Lord CozensHardy and Lords Justices Swinfen Eady and Pickford-in their judgments insisted on the distinction between a public right of way and a private right of way. In the first case, they said, any obstruction which appreciably interfered with the public passage was unlawful. Not so in the case of a private right of way. In the latter case no obstruction was actionable unless there was a substantial interference with the enjoyment of the way. "Any appreciable obstruction in a highway," said Lord Cozens-Hardy, can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way." Referring to the gate, Lord Justice Swinfen Eady said: "The question whether it is an interference with the easement is a question of fact. The law is that when an easement has been granted the grantor cannot derogate from his grant-that is to say, he cannot substantially interfere with the easement as granted." Then, later in his judgment, the same learned Lord Justice said "The question that arises in the present case is whether a gate is necessarily an interference. In my opinion it is not, I agree, that a gate of the dimensions mentioned by the Master of the Rolls would not be an obstruction to the defendant's right of way if it is kept open during business hours and is always unlocked. Such a gate would be no interference with the reasonable use by the grantee of the easement granted to him by the plaintiff." I agree that the law is not the same," said Lord Justice Pickford, "with regard to a private road as it is with regard to a public road. With regard to a public road, the whole space is dedicated to the public, and no part of it can be appreciably interfered with. With regard to a private road, unless there are words otherwise expressing it, there is a right of way granted over that piece of land, but so long as there is reasonable access to the land, and a reasonable opportunity of exercising the right of way, there is not any obstruction to it, and there is no derogation from the grant."
This decision bears, in truth, the same relationship to right-ofway cases as Colls v. Home and Colonial Stores Limited (sup.) bears to cases of light. Both reaffirm the law. Both put the question of wrongful interference on the footing of nuisance. And both insist upon the necessity of there being a substantial interference of the enjoyment of the easement before there can be any cause of action.
It is clear that while the rights of neutrals will be respected, there will be firmness in our insistence on our belligerent rights. Mr. Asquith's declaration of our policy with reference to the so-called German blockade of our coasts has given
rise to a great deal of criticism in America, but much of the criticism is in anticipation of what may not happen. The Premier stated that in the circumstances there is no form of economic pressure to which we do not consider ourselves entitled to resort, but he did not say that we contemplated any trespass on neutral rights. Indeed, he indicated the contrary. All along it has been made abundantly clear in Sir Edward Grey's official communications to the American Government that we have endeavoured to exercise our belligerent rights with every possible consideration for the interests of neutrals, and that the lines on which we have acted are consistent with the fundamental principles of international law. When the present circumstances are examined, there is nothing to suggest any intention on our part to violate those principles. New conditions, however, involve new methods and new applications of established rules Our declaration of policy foreshadows an intention to apply the recognised principles of blockade and continuous voyage to the circumstances of the present war. Mr. Asquith declined to commit himself to anything that might "allow our efforts to be strangled in a network of juridical niceties," but he did not threaten breach with tradition.
The principles which are generally recognised as governing the usages of naval warfare were stated in instructions given by Sir Edward Grey to the British representatives at the London Conference in 1908 9. Those instructions pointed out that, by a declaration of blockade, the blockading Power forbids access to the blockaded coast, and though, as to the means by which it is sought to prevent access, there has been some divergence of opinion, the divergence is more apparent than real.
Continental jurists have assumed an imaginary "line of blockade" and the offence is the act of crossing this line. Our rule has been that the offence consists in the attempt to reach the blockaded coast, and it has been laid down that the act of sailing towards that coast with the intention of reaching it constitutes an attempt. These have been the theories, and this document, published several years ago, disposes of the suggestion that the theory of " long-distance blockade," to which Presi dent Wilson is said to be disposed to object, is something Americans fear that we shall seize on suspicion neutral vessels bound for neutral ports. As regards the practical application of our system, the instructions for the London Conference stated that "an attentive examination of all the reported cases in the British Prize Courts relative to questions of blockade has shown that, while the principle of liability to seizure at any point of a voyage to or from a blockaded port or coast has been maintained in theory, there is, in fact, no such case in which a vessel has been condemned for breach of blockade except when actually close to, or directly approaching, the blockaded port or coast." Therefore in practice we have acted on a rule which closely approximates to the continental principle of a "line of blockade," and in effect a common principle has governed all blockades. That principle is really the one which Mr. Asquith enunciated when he said that the British and French Governments will hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. Of course the application of the principle of blockade to present conditions must be taken in conjunction with that of "continuous voyage," which American decisions did so much to develop.
A blockade may be effective and therefore binding on neutrals under the Declaration of Paris although some ships may elude the blockade. During the American Civil War, when the North was blockading the South and we were in the position America occupies now, the British Government expressed the view that "assuming that the blockade is duly notified, and also that a number of ships is stationed and remains at the entrance of a port, sufficient really to prevent access to it, or to create an evident danger of entering or leaving it, and that those ships do not voluntarily permit ingress or egress, the fact that various ships may have successfully escaped through it will not of itself prevent the blockade from being an effective one by international law. The adequacy of the force to maintain a blockade being always and necessarily a matter of fact and evidence, and one as to which different opinions may be entertained, a neutral
State ought to exercise the greatest caution with reference to the disregard of a de facto and notified blockade." This expression of opinion referred to the conditions of over half a century ago. The instructions for the London Conference pointed out that the distance from the blockaded coast at which a blockading fleet will station itself will, under modern conditions of war, be considerable. Naval operations now cover much wider areas than formerly, and so our blockade of Germany differs in detail, though not in principle, from former blockades. As to the rigour with which it may be enforced, neutrals can have little real ground of complaint. The greater the economic pressure the more rapid will be its action, and the true interest of neutrals is peace.
The American Government Ship Purchase Bill has been definitely dropped. The disappearance of this possible cause of friction between this country and the United States is matter for satisfaction. For the rest, events must work themselves out. Questioned in Parliament on the 4th inst. as to certain details of the working of his policy in relation to neutrals, Mr. Asquith refrained from making any further statement, and said that the intentions of the Government will become apparent when the Order in Council on the measures against Germany is published.
COMMENTS ON CASES.
"Periodical Payments" to Petitioning Wife.
SIR S. T. EVANS' inquiries, which his Lordship stated in the recent case of Tangye v. Tangye (111 L. T. Rep. 944) he had made, elicited the following interesting fact: Never during the thirty years since the passing of the Matrimonial Causes Act 1884 (47 & 48 Vict. c. 68) has an order for "periodical payments" been made under sect. ? of that Act, in the event of a decree for restitution of conjugal rights not being complied with by a husband, for the life of the petitioning wife. With the exception of Clutterbuck v. Clutterbuck (108 L. T. Rep. 573), which was decided by Mr. Justice Bargrave Deane not quite two years ago, there appears to be no case in which such an order has been made for longer than the joint lives of the husband and wife. The section itself, it is true, does not direct any such limitation. All it requires is that a decree for restitution of conjugal rights shall not be enforced by attachment. And then the section, read shortly, goes on to declare that where the application is by the wife, the court may order that, in the event of such decree not being complied with, "the respondent shall make to the petitioner such periodical payments as may be just, and such order may be enforced in the same manner as an order for alimony in a suit for judicial separation." But it seems clear, therefore, as the learned President remarked, that the order to make periodical payments is one made personally against the respondent: (see Linton v. Linton, 52 L. T. Rep. 782; 15 Q. B. Div. 239). And alimony in a suit for judicial separation, his Lordship later on pointed out, is never ordered for the life of a petitioner. For that, together with the other reasons mentioned in his judgment, the learned judge came unhesitatingly to the conclusion that an order for periodical payments under the section could not be made or secured for the life of the petitioner. In his opinion, according to the law and practice, the proper form of order for periodical payments in favour of the wife in cases of restitution of conjugal rights, was that the respondent should pay to her, during the joint lives of herself and her husband, or until further order of the court, the sum fixed at the periods specified. In thus frankly departing from the diametrically opposite decision pronounced by Mr. Justice Bargrave Deane in Clutterbuck v. Clutterbuck (ubi sup.), the learned President has unquestionably laid down a rule in conformity with the practice in respect of alimony. Mr. Justice Bargrave Deane's view that the court has a discretion under the section may, to some extent, be warranted by the wide terms in which it is expressed. But in the absence of anything definite therein to show what the duration of the periodical payments ought to be, guidance from the practice as to alimony is invaluable. Moreover, assistance is obtainable from Theobald v. Theobald (62 L. T. Rep. 187; 15 P. Div. 26), and the two unreported cases of McMahon v. Second Sheet.
McMahon and Campbell v. Campbell, where payment during the joint lives of husband and wife was ordered.
Redemption of Weekly Payment to Injured Workman. UNDER the schedules to the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58)-as all who are interested in that branch of the law are fully aware-a weekly payment payable to a workman who has been injured by "accident arising out of and in the course of his " employment, within the meaning of sect. 1 of that Act, may be redeemed by the employer by the payment of a lump sum. And a memorandum of an agreement having that object has to be recorded by the registrar of the County Court. But whether or not the important question that was recently raised before the Court of Appeal in the case of Price v. Westminster Brymbo Coal and Coke Company (noted ante, p. 358) has ever previously been dealt with in County Courts, it was undoubtedly res integra in so far as the Court of Appeal was concerned Where the workman dies-admittedly from a cause altogether outside the accident-after the agreement for redemption has been entered into, but before a memorandum thereof has been recorded, does that prevent the agreement from becoming binding, so that the right thereby acquired by the workman passed to and vested in his legal personal representative? Study, however laborious, of all the scattered provisions of the schedules to the Act and of the Rules made thereunder touching the subject of the redemption of a weekly payment by payment of a lump sum by an employer, and the recording of a memorandum of an agreement relating to the same, produces somewhat negative results as regards a direct answer to that question. But the learned judges of the Court of Appeal were enabled to spell out of those intricate provisions sufficient to permit of their holding that the right of the workman to the lump sum agreed to be paid to him by his employer passed to and vested in his legal personal representative just as much as if his death had occurred after the date on which the memorandum of the agreement was actually recorded. In brief, the memorandum became "for all purposes enforceable as a County Court judgment," as directed by sect. 9 of the second schedule to the Act. As it was tersely put by Lord Justice Phillimore, a legal nexus was established by the agreement between the workman and the employer which gave rights to either, that of the workman passing, in the event of his death, to his legal personal representative. It matters not, therefore, that the workman, to quote further his Lordship's words, died during the period between the sending of the memorandum of agreement and the recording of it by[the registrar. Neither party had anything more to do to complete the proceedings.
"Industrial Diseases" and Medical Referees.
IN describing sect. 8 of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58) as a section full of difficulty," the Master of the Rolls (Lord Cozens-Hardy) did not characterise it in a way that many persons would probably feel disposed to disagree with. And the two cases that we noted last week of Chuter v. J. J. Ford and Sons Limited and Wallis v. Andrew G. Soutter and Co. Limited (see ante, p. 407) admirably serve to accentuate that very moderate criticism. In both of those two cases the position of medical referees in relation to "industrial diseases," as they are styled in the marginal note to the section, came under consideration. In Chuter's case (ubi sup.), as appears from our note, the workman, who was suffering from lead poisoning or its sequelæ-one of the diseases included in the category that is specified in the third schedule to the Act-failed to procure from the certifying surgeon a certificate that he was suffering from the industrial disease complained of, so as to be disabled from earning full wages at the work at which he was employed. On appeal, however, to the medical referee, the workman succeeded in obtaining a decision in his favour. The power to appeal to the medical referee, after having applied in the first instance to the certifying surgeon, is conferred by sect. 8, sub-sect. 1 (ƒ). And it was as to the effect of the medical referee's decision, in superseding and overriding the conclusion arrived at by the certifying surgeon, that called for determination by the learned judges of the Court of Appeal. Notwithstanding the seeming vagueness of the provisions of sect. 8 on this question, their Lordships laid this down with all distinctness: A decision of the
medical referee in such a case is conclusive in every respect and cannot be disputed, and takes the place of the certificate of the certifying surgeon. Therefore, in Chuter's case (ubi sup.) it was held that the decision of the medical referee, both that the workman was suffering from an industrial disease at the date when he went before the certifying surgeon, and what was the date of the disablement, were matters concerning which there could be no further question. The decision in Mapp v. Straker and Son Limited (7 B. W. C. C. 19) was cited as an authority in point. But although the autocracy of a medical referee was thus demonstrated, it will be observed from the second case to which we are now referring-Wallis' case (ubi sup.)—that it falls decidedly short of his being permitted to sit as medical assessor to give his assistance as such to a County Court judge upon the same question as that on which he has already expre sed his opinion as medical referee. He cannot, after having intimated, as he did in Wallis' case (ubi sup.), that the workman has recovered from an industrial disease complained of, become a medical assessor, in respect of the identical subjectmatter. Freedom from bias, that most indispensable factor, would otherwise be thrown to the winds.
Omission to Register Mortgage by Company.
THE provisions of sect. 93 of the Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69), as to registration of mortgages and charges created by a company, came under consideration in a striking fashion in the recent case of Re Monolithic Building Company Limited; Tacon v. The Company (noted post, p. 432). For a point was raised there which, as the Master of the Rolls (Lord Cozens-Hardy) observed, has never been authoritatively decided before. At any rate, no previous decision was cited. That section is a reproduction of sect. 10 of the Companies Act 1907 (7 Edw. 7, c. 50), which itself was an amendment of sect. 14 of the Companies Act 1900 (63 & 64 Vict. c. 48). Every mortgage or charge created by a company and being of the description which is specified in the section is by it declared, “so far as any security on the company's property or undertaking is thereby conferred," to "be void against the liquidator and any creditor of the company," unless registered as directed within a specified period. Under a misapprehension at the outset as to the necessity for registration of a first mortgage of land belonging to the company and executed in favour of the plaintiff, the same was omitted to be registered within the period required by the section, although registered afterwards. A debenture subsequent in date to the plaintiff's first mortgage, and issued to the managing director of the company, was, however, duly registered. Was the plaintiff's first mortgage nevertheless entitled to rank in priority over the subsequent registered debenture? Mr. Justice Astbury decided that it was so, his Lordship being of opinion that the decisions in Ford v. White (16 Beav. 120) and Greaves v. Tofield (43 L. T. Rep. 100; 14 Ch. Div. 563) ought to be followed in preference to that in Edwards v. Edwards (34 L. T. Rep. 472; 2 Ch. Div. 291). But the Court of Appeal could not be prevailed upon to take the same view of the circumstances of the case. The holder of the subsequent registered debenture, being the managing director of the company, had the clearest possible notice, at the time that he acquired the debenture, of the plaintiff's first mortgage, and of the fact that it had not been registered within the statutory period. And the contention was that the section ought to be read as saying that an unregistered mortgage or charge would be void against any creditor of the company except where he had notice of such unregistered mortgage or charge (see Le Neve v. Le Neve, 3 Atk. 646). Although Mr. Justice Astbury was in favour of that contention, the learned judges of the Court of Appeal were unanimous in coming to a contrary conclusion, as appears from our note. Notice, as their Lordships pointed out, was not material in the case of a creditor. Distir guishing the case of Greaves v. Tofield (ubi sup), their Lordships considered that the principle laid down in Edwards v. Edwards (ubi sup) was to be preferrednamely, that the old equitable doctrine of Le Neve v. Le Neve (ubi sup.) ought not to be applied or extended to modern Acts of Parliament, which are framed with a view to equitable as well as legal doctrines.
Sale by Mortgagees-Mortgagor in Occupation.
A QUESTION which occurs from time to time in actual practice is, what are the obligations of a mortgagee, who has sold under his power of sale, with regard to giving the purchaser possession of the property on completion, in a case where the mortgagor is in occupation of it? Of course, as a rule, in such a case no rent would be payable by the mortgagor, and he could not be compelled to give vacant possession to the purchaser, except by an action to recover possession. Is the mortgagee bound to bring such an action in order to give the purchaser such possession? There does not appear to be any case precisely in point. In Lake v. Dean (28 Leav. 607) the facts were shortly as follows: The plaintiff agreed to sell to the defendant an orchard described as being in the "occupation of L. P."; and the language of the condition was "The purchaser shall complete on the 6th day of April next, when he shall have possession." And it was held that "possession" did not mean personal occupation"; and a decree for specific performance was made against the defendant, although the plaintiff was unable by reason of L. P.'s tenancy to put the defendant in actual occupation of the premises. In Irish Land Commissioners v. Maquay (28 L. Rep. Ir. 342) the form of the condition was as follows: purchaser shall pay the remainder of his purchase money on the 11th June 1889 to the said solicitor at his office, 24, Upper Merrion-street, Dublin, at which time and place the purchase is to be completed and the purchaser paying his purchase money is as from that day to be let into possession." It was a sale by the Irish Land Commissioners as mortgagees under their power of sale. Held, that the condition did not constitute a contract on the part of the vendors to bring an action to recover possession and hand it over to the purchaser; but only a true representation of what would be the legal rights of the purchaser enforceable under the Land Purchase Acts. The circumstances of that case were somewhat special; and it must not be relied upon as deciding that in all cases the words "the purchaser shall be let into possession" would not amount to a contract by the vendor to give vacant possession. In Engel v. Fitch (18 L. T. Rep. 318; L. Rep. 4 Q B. 65) the particulars of sale stated that possession wou'd be given on completion of the purchase. The sale was by mortgagees, and the mortgagor was in possession and refused to give it up. The vendors declined to eject him; and it was held by the Court of Appeal (affirming the judgment of the Court of Queen's Bench) that the vendor had contracted to deliver possession, and accordingly that the purchaser was entitled to damages for loss of bargain. It is submitted that the question of the mortgagee's liability in cases of this kind depends on the form of the particulars and conditions of sale. If the vendor is to escape liability to give vacant possession on completion, it is desirable that the particulars should state that the mortgagor or owner is in occupation of the property, and that the conditions should show that the vendors are selling as mortgagees; and the condition as to possession should provide that on completion the purchaser "shall be entitled to possession," or words to that effect, and not that the vendor will give him possession: (see, further, Farrar on Conditions of Sale, p. 59).
Landlord and Tenant-Covenant to Repair-Liability to Rebuild.
As is well known, an unqualified covenant to repair and keep in repair buildings binds the covenantor to rebuild the premises in case they are destroyed, whether by a stranger, or from accidental fire, lightning, or tempest: (see Clark v. Glasgow Assurance Company, 1 Macq. 668, and other cases cited in Mr. Redman's well known work on Landlord and Tenant, p. 281, 6th edit.). But does that rule app'y to a case where the lessee has covenanted to erect buildings which, however, he has never erected. In other words, is there in such a case an implied additional covenant to build? In Jacob v. Down (83 L. T. Rep. 191; (1900) 2 Ch. 156) the facts were shortly as follows: The lessees covenanted to pull down and rebuild certain messuages within twelve calendar months from the date
of the lease, and that they would at "all times during the said term keep the said messuages and premises so to be erected as aforesaid in good and substantial repair, and the same in good repair deliver up to the lessor at the expiration or sooner determination of the said term." The lease contained a proviso for re-entry on breach of any of the lessees' covenants. The houses were not erected with the twelve months, or at all; but the plaintiffs accepted a quarter's rent which accrued next after the expiration of the twelve months limited for the erection of the messuages. The plaintiffs afterwards served on the defendants a notice under the Conveyancing Act 1881, s. 14, referring to the building covenant only, and calling upon the defendants to erect the buildings. In an action by the lessors to recover possession for breach of covenants it was held by Lord Justice Stirling (then Mr. Justice Stirling) that the building covenant was broken once for all at the expiration of the twelve months, and was not a continuing covenant; that the repairing covenant implied an obligation to erect the buildings, and there was therefore" continuing breach"; but as the notice under the Conveyancing Act only referred to the building covenant, and did not mention the breach of the repairing covenant, the action failed. His Lordship relied in part upon Bennett v. Herring (3 C. B. N. S. 370), but, as pointed out by Lord Justice Swinfen Eady in the case hereinafter mentioned, the houses in Bennett v. Herring were in existence and roofed in at the date of the lease. point has recently come before the Court of Appeal in Stephens v. Junior Army and Navy Stores Limited (111 L. T. Rep. 1055). There a building lease contained covenants by the lessee with the lessor to erect certain buildings to the value of £2000 within a certain time, and to keep them in repair, and peaceably to surrender them up at the expiration, or sooner determination, of the term, so repaired. No buildings were erected
within the specified time. The lessor, after serving notice in writing in respect of the breach of the covenant to erect the buildings, acepted a payment of rent. Upon an action being brought by the lessor for recovery of possession and for damages for breach of covenant, it was held by the Court of Appeal (reversing the decision of the court below) that the covenant to repair referred only to the buildings to be erected pursuant to the covenant to build, and, the breach of the covenant to build having been waived by the lessor as regards re-entry, the obligation on the lessees under the covenant to repair were gone, so that the lessor was not entitled to re-enter in respect of any breach thereof, but was entitled only to damages for breach of the covenant to build, on the footing of a continuing lease. As pointed out by Lord Justice Swinfen Eady, it was decided in Lant v. Norris (1 Burr. 287) that a covenant to repair buildings to be erected pursuant to an express covenant is not broken by the mere non-erection of the buildings; and that in such a case the covenant to repair does not of itself import an additional covenant to build.
MISCELLANEOUS PRECEDENTS (continued). Proviso in a Strict Settlement by Deed cutting down Estates Tail of Persons actually Born at Date of Deed, or Born within Six Calendar Months afterwards.
PROVIDED ALWAYS that as respects every or any person to whom the said hereditaments are hereinbefore expressed to be hereby limited as tenant in tail male or in tail by purchase that if such person is now born or being now procreated shall be actually born within six calendar months from the date of these presents the estate in tail male or if such person has no estate in tail male then the estate in tail hereby limited to such person shall not take effect and in lieu thereof the said hereditaments shall remain to the use of the person respectively whose esta e in tail male or in tail (as the case may be) shall fail as aforesaid for his or her life without impeachment of waste and after the decease of such person (being a male) to the use of his first and other sons successively according to their respective seniorities in tail male with remainder to the use of his first and other sons successively according to their respective seniorities in tail with remainder to the use of his first and other daughters successively according to their respective seniorities in tail or in case of such person being a female then from and after her decease to the use of her first and other sons successively according to their respective seniorities in tail with remainder to the use of her first and other daughters successively according to their respective seniorities in tail.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
HOUSE OF LORDS. Nuisance-Colliery-Washing and screening Coal by Defendant -Coal Dust carried over Plaintiff's adjoining Land-Common Lessor of Plaintiff's and Defendants' Properties-Implied Right to commit Nuisance-Derogation from Grant
The plaintiff, a butcher in Glamorganshire, held certain premises under a lease dated 1909, granted to him by F. G. and expressed therein to be subject to the rights and easements belonging to any adjoining or neighbouring property, which lease contained also in favour of the lessor an exception of all mines and minerals. The defendants carried on a colliery undertaking under and by virtue of two leases dated 1909 and 1907, and an underlease dated 1908. By the lease of 1907 F. G. demised to the Y. Tinplate Company certain lands at Y, with power to carry on (inter alia) the trade of coke manufacturers and miners. In 1909 F. G. granted the plaintiff a lease of certain lands on which he subsequently built a butcher's shop "subject to all rights and easements belonging to any adjoining or neighbouring property." The screening plant, from which the nuisance by coal dust complained of came, was erected by the defendants in 1912. The jury found that the defendants caused a nuisance to the plaintiff's slaughterhouse and that coal dust covered his meat and sausages, but that the screening was carried out in the reasonable manner which was customary in the county, and that the nuisance was not caused by the negligence of the defendants. On these findings Horridge, J., holding that the operations complained of were authorised by the express grant of the right to mine conferred by the lease of 1907, gave judgment for the defendants. The Court of Appeal (111 L. T. Rep. 169) held that whether a common law easement, so called, of the nature claimed by the defendants could exist, none such was granted to them in the present case; and that the lease of 1907 did not confer power to commit a nuisance upon the adjoining premises of the plaintiff. Accordingly the judgment of Horridge, J. was reversed and the colliery company appealed.
Held, dismissing the appeal, that the lease of 1907 did not authorise anyone to commit a nuisance. It was not suggested that the trade authorised could not be carried on in such a way by the defendants as not to cause the plaintiff a nuisance, and in the circumstance the nuisance was one that the defendants could not excuse.
[Pullbach Colliery Company Limited v. Woodman. H. of L. : Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor. Feb. 4 and 26-Counsel: for the appellants, Sir Robert Finlay, K.C., George Cave K.C., and Villiers Meager; for the respon dents, Micklem, K.C. and Griffith Jones. Solicitors White and Leonard, for W. Jones, Swansea; John T. Lewis and Woods, for J. Moy Evans, Swansea.]
COURT OF APPEAL. Certiorari-Crown Office Rules-Application for Certiorari by Crown after Lapse of Six Months-Whether Crown is bound by Limit of Time-Crown Office Rules 1906, rr. 20, 21.
Appeal from a decision of the Divisional Court (Avory, Rowlatt, and Shearman, JJ.) reported 11 L. T. Rep. 454; (1914) 3 K. B. 222). Rule 21 of the Crown Office Rules 1906 provides that: No writ of certiorari shall be granted, issued, or allowed to remove any judgment, order, conviction, or other proceeding had or made by or before any justice of the peace unless such writ be applied for within
six months next after such judgment, order, conviction, or other proceeding shall be so made, and unless it be proved by affidavit that the party suing forth the same has served the order nisi six days before the return day of the order on the justice by whom such order shall be made, in order that such justice, or the par ies therein concerned, may show cause against the granting . . such writ." The Divisional Court held that the first part of rule 21 as to the six months' limit of time is of general application and binds the Crown, and therefore an application by the Attorney-General for a writ of certiorari must be made within the six months prescribed by that rule. The defendants appealed.
Held, that the Crown was not bound by rule 21, and the time limit therefore did not apply to the Crown. It had been held in Rex v. Glace (4 Burr. 2453) and Rer v. Battams (1 East, 304) that sect. 5 of 13 Geo. 2, c. 18, did not apply to the AttorneyGeneral, and the same construction should be put upon the rule as upon the statute from which the rule was derived. It was admitted that the latter part of rule 21 did not apply to