plaintiff Susannah (then being the wife of the plaintiff David) was lawfully using and passing along the said footway, one of her legs passed through the said iron grating into the said area or cellar, whereby she was wounded and became sick and was and is permanently lamed and disabled. Plea.-Not Guilty; and issue thereon. At the trial, before Bramwell, B., at the Croydon Summer Assizes, 1863, the following facts were proved : The action was brought to recover damages for an injury sustained by Mrs. Gandy, the female plaintiff, in consequence of her foot having slipped through between the bars of an iron grating which was in front of the defendant's house, No. 30, Leigh Street, Marylebone. In or about the year 1853 the house 30, Leigh Street, had been let by a Mr. Ward, the then owner, to one Page, as tenant from year to year. Page died in 1859, and his widow continued to occupy the house, on the same terms, up to the time of the accident, the landlord doing any repairs which might become necessary. In 1860 Ward had died, and the defendant, as devisee under his will, had become the owner of the house, and had always received the rent. The grating was between the footway and the frontwall of the house. It formed no part of the public footway, and was on the private property of the defendant; but it was not railed off from the footway, and the openings between the bars were two and threequarter inches wide. The grating had existed in the same condition during the whole of the Pages' tenancy, but there was no evidence to show when it was first put up. The jury found that the grating was a public nuisance, being dangerous by reason of the width between the bars, and so near the highway as to put in peril persons passing along the public footway. A verdict was entered for the plaintiffs for 501., leave being reserved to the defendant to move to enter a nonsuit or a verdict for the defendant, on the ground that there was no evidence of any special terms of tenancy such as would render the defendant liable as landlord of the premises. Shee, Serjt., having obtained a rule accordingly. Shaw (Montague Chambers, Q.C., with him,) now showed cause. The only question arising on the leave reserved is, whether the allegation that the defendant "negligently permitted the grating to remain " in such a state, that is was a nuisance, is supported by proof that he stood by whilst it was a nuisance, but without notice that it was a nuisance, and did not give the tenant notice to quit as he might have done. Where a person lets premises with a nuisance upon them, he is liable for the continuance of the nuisance, provided it is a nuisance of itself, and does not merely become so by the act of the tenant, Todd v. Flight, 9 C. B. (N. s.) 377; Chauntler v. Robinson, 4 Exch. 163; Woodfall's Landlord and Tenant, 734-5 (8th ed.), and the case of Rich v. Basterfield, 4 C. B. 783, decides that where a landlord relets premises with a nuisance upon them, he is liable for any damage tha: may ensue. It is submitted that the not giving notice to a tenan: from year to year, when there is a nuisance on the demised premises, is equivalent to a reletting with a nuisance, Regina v. Pedley, 1 Ad. & E. 822 (per Little dale, J.). A tenancy from year to year may be considered to be a tenancy which recommences every year, Tomkins v. Lawrence, 8 C. & P. 729; Cattley v. Arnold, 28 L. J. Ch. 354. J. Kaye, in support of the rule. A tenancy from year to year is but one term, how ever long it may last, Woodfall, 167 (8th ed.). In Rosewell v. Prior, and other cases cited for the plaintiff, there was a demise of an actual nuisance,! whereas here the defendant only got the reversion after the Pages' tenancy had commenced, and long afte the nuisance had begun to exist. The case of Bishop v. Trustees of the Bedford Charity, EL & El. 697; affirmed in the Exchequer Chamber, L. J. Q. B. 53, is directly in point, and shows conclusively that th facts of the present case create no liability in the defendant. The doctrine that the owner is liable, although he is not occupier, ought not to be extended, Todd v. Flight, 9 C. B. (N. s.) 377. [CROMPTON, J. referred to Bush v. Steinman, 1 B. & P. 404; CROMPTON, J.—I cannot see that my Brother Bram well was wrong in this case. We have had the matter very ably argued, and all the authorities have been brought before us very fully, and I see no reason why we should reserve our judgment, instead of proceeding to it at once. The first part of the declaration is so framed as to allege the special facts which show a duty in the owner, and we must consider whether that duty has beer made out, and whether, consequently, there has been a misfeasance by him in the keeping up of the nuis ance. Looking at the whole case, I think that the argument of Mr. Shaw is well founded, that the verdict on the plea of not guilty was rightly found for the plaintiff. From the earliest times it has been law that the owner of a freehold must so use it as not to injure others. That was laid down in the case of Reg. V. Watts. But if a man have let his premises, and so put them beyond his own control, it would be very hard to say that he was still liable for a nuisance existing upon them, for he would have no power to interfere with its existence. But Rosewell v. Prior decides that if such a person has any power to prevent the nuisance, he is still liable. Another distinction there taken is, that in order to make the landlord liable the nuisance must be such as is a nuisance of itself, not a thing which only becomes a nuisance by reason of some act of the tenant, as for example, a smoky chimney, which only becomes a nuisance when the tenant lights a fire in it. But if the landlord lets the premises when they are in such a state as to be a nuisance, he must be held liable for any damage which may result from he existence of such a nuisance upon his own land. Now a reletting of the premises makes the landlord equally liable: nor do I see the hardship of this, for if the rule were otherwise the hardship would be just as great upon the tenant, and there is no injustice in the principle that he who receives the rent from the premises should be liable for the mischief which they therefore, upon the whole, though the case is not without doubt and difficulty, I think the rule should be discharged. BLACKBURN, J.-I, too, think that this rule should be discharged. The question is, whether enough of the breach alleged in declaration was proved to entitle the plaintiffs to keep their verdict on the plea of not guilty. The breach averred is, "that the defendant wrongfully and negligently allowed the said iron grating to be and continue in a dangerous state." Have the plaintiffs, then, proved the substance of this breach? Is what is proved sufficient matter to support the action? The cases show that the reversioner is not, as such, responsible for a nuisance which exists upon the premises as occupied by the occupier. That is laid down by Parke, B., in Chauntler v. Robinson. Next comes the point decided in Rosewell v. Prior. There Prior had erected a wall, and the plaintiff, who was blocked out by the wall, brought his action; but before the action was commenced, Prior had demised the premises to a tenant. The action was for continuing a nuisance; and the Court said, "It lies; for We come, therefore, to what is really the great ques- he transferred it with the original wrong, and his tion in this case, and that is, whether it is a reletting, demise affirms the continuance of it: he hath also rent if the person who has the power to terminate the ten- as a consideration for the continuance, and, therefore, ancy does not do so, but allows it to go on. Certainly, ought to answer the damage it occasions." Now, that to me, the two things do appear in reason and in sense must be taken with the qualification that the landto be the same thing. In strictness of law we must lord is only liable in respect of the original nuisance say that a tenancy from year to year is a lasting ten-which he demised; as, for example, where the nuisance ancy; and yet there is that option in the landlord which puts it in his power to terminate the holding; and, therefore, whether he has let, or whether he has allowed the tenant to remain in, whether he has let actively, or, as I might almost say, passively, it comes nearly to the same thing. cause. Nor is the case altogether without authority, for the authorities decide that in the case of a reletting the landlord would be liable without any actual notice to him. Then there is the opinion of that very learned Judge Mr. Justice Littledale (approved of in a considered judgment of the Court of Common Pleas), where he says that "if a party buy the reversion during a tenancy, and the tenant afterwards during his term create a nuisance, the reversioner is not liable for it; but if such reversioner relet, or, having an opportunity to terminate the tenancy, omit to do so, allowing the tenancy to continue, he is liable for such continuance." (Reg. v. Pedley, 1 Ad. & E. 822.) A tenancy from year to year is clearly within the principle there laid down. And the Court of Common Pleas in Rich v. Basterfield, while they entirely assent to the opinion of Littledale, J., show a distinction between it and the opinion of Taunton, J., in the same case. I am, therefore, of opinion that the present case comes within the mischief which the doctrine of the incurring of liability by a reletting was intended to obviate, and that it is within the authorities too. I see nothing unfair in holding the defendant liable, and, is the existence of a grating with wide bars, not the leaving of it open by a tenant. The distinctions on that point are carefully laid down in Rich v. Basterfield. In the present case it appears that the defendant is the reversioner, and that the tenancy from year to year had commenced before the reversion came to him; but since the reversion came to him, such time has elapsed that the reversioner might have terminated the tenancy; yet he has not done so, and the question is, does that fact bring him within the rules laid down in Rich v. Basterfield, and make him liable. In many respects a tenancy from year to year has the effect of a continuing tenancy, and, in pleading, it may be variously described as a tenancy for so many years, or as a tenancy from year to year for so many years; or, again, as it was put by Patterson, J., in Tomkins v. Lawrence, as a tenancy commencing at the beginning of any year of the tenancy. We have then to decide whether the non-giving of notice to quit was equivalent to a re-demise, so as to make him liable. My Brother Crompton says, that it ought in common sense to be considered the same, and there is very much to be said for that view. It is curious that there should be so little authority upon the point. The only authority which has been brought under our notice, is that of Littledale, J., who was a very learned Judge, and a very cautious lawyer. He says, that if the landlord allows the tenancy to continue after he has the power of terminating it, he is liable. I think he must have meant by that to say, that if a tenancy from year to year were continued, it would be the same as a reletting. Having great respect for his authority, and thinking his view upon this point consonant with good sense, I agree that this rule ought to be discharged. MELLOR, J.—I am of the same opinion. The owner of premises ought not allow them to be a nuisance, but of course he is not liable in respect of the nuisance, so long as he cannot obtain possession of the land, for the purpose of putting an end to it. Now, here the jury have found that the grating was originally made in such a way as to be a nuisance. The tenancy here too is of such a nature that the landlord might have got rid of the tenant by means of a notice to quit, if the tenant refused to allow him to abate the nuisance. But the landlord, instead of putting an end to the tenancy, affirms it by receiving rent, and we have to say, whether, under these circumstances, the beginning of each fresh year of the tenancy is not a reletting for the purpose of rendering the defendant liable. I think that it is, and that the defendant is liable because he did not give the tenant notice, but, on the contrary, allowed both the tenancy and the nuisance to remain, and continued to receive rent. C. P. 20 JAN. 1864. 1 possessed of a certain ship called the Gustaff Adolphs, on the high seas aforesaid, and had the care and management of the same; yet the defendant not regarding his duty in that behalf while the said cable was so lawfully, &c., took so little care, &c., of the said ship in the direction, &c., thereof, that an anchor attached thereto ran foul of and caught hold of and broke and otherwise injured the said telegraph cable of the plaintiffs; and by reason of the premises the plaintiffs were obliged to pay and lay out large sums of money in repairing the same, and lost the use of the cable for delivering telegraphic messages, &c. The 5th plea alleged that the defendants were aliens domiciled in Gottenburg, that the ship was Swedish, and on a voyage from Alicante to Gottenburg, and that in the place where the alleged injury was done, the vessel in the ordinary course of navigation had cast anchor, being more than three miles from the coast, and without the realm of England, and that en drawing up the said anchor the cable was accidentally entangled and drawn up, and was a little injured in disentangling it, and that that was the alleged breach, and that the defendants had no notice of the position or existence of the said cable. The 2nd replication alleged that before and at the time the said ship so cast anchor and so got up Rule discharged. her anchor, the defendants and their mariners and servants could and ought to have known, and had the means of knowledge, and but for their negligence and want of ordinary care could and would have known the place, position and existence of the said cable, and that THE SUBMARINE TELEGRAPH Pleading-Negligence-Notice of Existence and through the carelessness, mismanagement, and culpa:': Locality of the Property damaged Allegations. To a declaration for injury, through negligent navigation, to a submerged electric cable, the defendants pleaded that they were navigating the seas in the usual manner, and that they had occasion to let down their anchor near the place where the cable was injured as alleged, and that without default, and by means of the action of the winds and waves, the cable and the ship's anchor became entangled, and that there was no notice to the defendants of the existence or position of the cable. Replication that the defendants had the means of knowledge of the existence and locality of the cable, and neglected to make use of such means of knowledge. There was also a new assignment, being an argumentative traverse of the plea. Held that the declaration was good, although notice of the existence of the cable was not alleged; that the plea was good, as putting in issue the negligence charged, and that the replication was good. Quære, as to the new assignment. DEMURRER.-Declaration : That before and at the time when, &c., the plaintiffs were possessed of a certain telegraph cable, lawfully lying and being in the high seas, and that the defendant was then also want of knowledge, the said alleged grievances were committed. Also a new assignment to so much of the fifth plea as averred that for the purpose and in the act of disentangling the said anchor, the cable was a little injured, and that that was the alleged breach. The plaintiffs say, that they are suing not only for the causes of action admitted, but also for causes of action committed within three miles of the sea-coast, and within the realm of England, and for that after the defendants had express notice, and were informed the position of the said cable within the said thre miles, and that by the carelessness and unnecess7 of the said cable was injured. violence of the defendant and his servants, that par Demurrers to the declaration, the fifth plea, the sa replication, and the new assignment. Joinders demurrer. Rochefort Clarke, for the plaintiffs. Wyatt v. Harrison, 3 B. & Ad. 871; [WILLES, J.-Chadwick v. Trower, and that class of cases, relate to injuries to real property, and are distinguishable. Is not this the common form adopted in action for collision ?] put some clearness of meaning upon it for the sake of guiding the jury. It is argued that notice should have been alleged in the declaration, and that it cannot be said that a Yes, no allegation of notice has ever been thought foreigner is bound to make inquiries whether there is necessary, Mayor of Colchester v. Brook, 7 Q. B. 339; Then it is said that the replication is a departure; it but reinstates the question of negligence first alleged, and endeavoured to be diverted by the plea. The plea is bad for not showing that they had not the means of knowledge of the cable. Archibald (Bovill, Q.C., with him). The declaration is bad, because it must show a duty and a breach of it. In cases of collision, sufficient proof of an existing duty is shown on the face of the declaration; but here is a use made of the sea, perfectly novel, and non-apparent, and an allegation of notice is therefore necessary, Metcalfe v. Hetherington, 11 Exch. 257; Brown v. Mallet, 5 C. B. 599. a telegraph cable at the bottom of the sea or not. But the question of knowledge of the existence of the cable is involved in the question whether there was negligence or not; besides, the replication states, in answer to the plea which alleges no knowledge of the cable, that "you had the means of knowledge and neglected to make use of them," and this allegation takes away that defence. It is urged that had the ship been lost through the way in which the cable had been laid down, an action would have lain against the company; no doubt, had there been negligence, which is precisely the same question again. The new assignment may be treated as a traverse of the plea. WILLIAMS, J.-I think the declaration is good, because the meaning of the word "negligence " must [WILLES, J.—That last case is not quite consistent include the question raised here, and I think the plea with another in the Exchequer.*] He cited also, Southcote v. Stanley, 1 H. & N. 247; The Saxonia, 1 Lush, 410; 31 L. J. Adm. 201. ERLE, C.J.-I am of opinion that the declaration is good, and that the fifth plea is good. The declaration complains that an injury to the plaintiffs' property has been done by the defendant in the course of navigation, and that the injury occurred through the negligence of the defendant. I assume that the bottom of the sea may be used for lawful purposes, and I think that the Court may take judicial notice of the existence of telegraph cables. Acts of Parliament have been passed with reference to them, and it is known throughout the world that such cables do traverse the bottom of the seas. The defendant had a right to navigate the sea for ordinary purposes, and to let go his anchor if occasion should require it, and this is the defence set up by the plea. Here then there were two rights in conflict. Then comes the replication, which says, you might have had the rights you set up had you exercised them with due care, but you had no right to act contrary to due care, and forgetful of the rights of others. The whole case hangs on that word " 'negligently"; it means here that the act complained of was done wilfully or without due skill. That word has been more misapplied by reason of its extreme vagueness than any other word, and the plea was allowed † in order to * Quare, White v. Crisp, 10 Exch. 312; 23 L. J. Ex. 317. † 3 N. R. 44. VOL. III. good as an argumentative traverse of the declaration. I have some doubt as to the new assignment; it is rather opposed to my views of the nature of new assignments. WILLES, J.-I agree. It is clear that a man must not so act as to cause damage to the property of others, and it is no answer to say, that there was something in the way of quite a novel character-a diving-bell, a breakwater, are almost as novel; yet a ship cannot be navigated in perfect disregard and want of care of such things. An anchor even improperly laid down cannot be damaged wantonly. It is always simply a question of negligence; the water may be thick and muddy, or clear and undisturbed, and many other things have to be considered in deciding that question. To the cases cited I will add that of The Batavier (10 Jur. 19), before Dr. Lushington, where it was alleged that the vessel injured was in an improper place, and that no sufficient look-out was kept, and so on; but that learned Judge held that that was no answer; for that it is the duty of every vessel, whether it sees another in a proper or improper place, to avoid, if it be consistent with its own safety, a collision. The second replication, being a traverse of an essential part of the plea, is good. The new assignment, if good at all, is only good as an argumentative traverse of the plea. I agree with my Brother Williams that this is a new and unusual use of a new assignment. Judgment for the plaintiffs on the demurrer to the declaration and replication, and for the defendant on the demurrer to the fifth plea. C. P. 5 FEB. 1864. HACKETT, Appellant, v. OVER- Poor-rate-Corn-rent-charge-Tithes- A local Act, passed in the year 1794, directed Commissioners to set out and inclose waste lands in compensation for tithes, great and small: thirty acres to be settled on the vicar and his successors, and the residue on the rector and his heirs, but subject to the payment of a rent to the vicar and his successors in lieu of the vicarial tithes, minus the annual value of the thirty acres allotted: the Commissioners to assess the rent charge as follows:-they were to find what part of all the land set out and inclosed should be a fair and equitable compensation for the vicarial tithes, and then to find the average price of wheat during the past twenty-one years, and on that estimate to calculate the quantity of wheat which should be equal to the yearly value of the part of the land so ascertained as above mentioned, exclusive, however, of the thirty acres: a corn-rent equal to the value of the quantity of wheat was to be paid thenceforth annually to the vicar and his successors, clear of all parochial rates and taxes. The Act further enacted the extinction of the tithes thenceforth. The respondents, occupiers of the lands allotted to the rector under the Act, were assessed at the full annual value of their land, less the amount payable, as cornrent, to the vicar: Held, that they were rateable at the full annual ralue, without making any deduction. SPECIAL CASE. This was an appeal against an assessment for the poor-rate of the parish of Long Bennington, Lincolnshire. J. Andrews and C. Andrews being the persons rated in respect of their occupation of certain land in the said parish. The land in question was allotted to the lay-rector and his heirs under the circumstances set forth in the head-note, and the question was, whether the respondents J. and C. Andrews were properly rated. Cave, for the appellant, cited, Lowndes v. Horn, 2 W. Bl. 1252; Reg. v. Hambleton, 1 Ad. & E. 145; Reg. v. Shaw, 12 Q. B. 419; Reg. v. Capel, 12 Ad. & E. 382; 6 & 7 Will. 4, c. 71, ss. 17, 37 (Tithe Commuta tion Act); 43 Eliz. c. 2, s. 1. ERLE, C.J.-The appellant is entitled to our judg ment. The Act has provided that the corn-rent shall be paid to the vicar, "clear of all parochial rates and taxes." I am clear, if that clause were not in the Act, that the corn-rent would be rateable; but the Act here expressly exempts the corn-rent from rateability. Mr. Poland says, that there is a close analogy between this corn-rent charge and a tithecommutation rent-charge, that they are almost identical, and that by the Union Assessment Act the latter charge is to be deducted from the amount at which the occupier of the land is rated. He says that it is inequitable to cast on the land a charge of this kind (when the old law did not make the land, but the tithes liable to the rate), unless there are words in the statute of 1794 making the land expressly liable. to them; but my judgment goes on the local statute. As to the cases, such as Reg. v. Hambleton, I agree It would have been clearly an unjust thing in the Legislature to have exempted a large fund from liability, so as to make others supply the deficiency. There is a presumption always against such a construe. tion of a statute. When the Commissioners had to ascertain what was the vicar, I think they were bound, as between the the fair and equitable compensation to be awarded to rector, the vicar, and the parish, to treat the arrangement with the vicar as in accordance with the Tithe Commutation Act-that the vicar, having a spiritual charge, should not be encumbered by the anxieties attending the cultivation of much land, and that he should have an income free from agricultural risks. The rector acquired a statutory lease of these lands for ever, and the Commissioners had to ascertain what would be a fair rack-rent to be paid by him to the vicar, as if the lands had been considered as let to him by the vicar. The statute says:-You shall take the lands and the burthen, but you shall pay the rack. rent assessed as a corn-rent to the vicar. WILLIAMS, J.-I agree. It was not the intention of the local Act to give a bounty to the vicar ef freedom of rates as to tithes, but that, somehow a other, the rates are to be paid out of the tithes. The way in which the Act did this was, by making a cornrent charge, by which there was to be paid to the vicar a fair and equitable compensation for his tithes : not, that is, a present of the rates, but a compensation 6 & 7 Will. 4, c. 96; s. c. (Parochial Assessment equal to the gross amount of the tithes, minus the Act); 23 & 24 Vict. c. 103 (Union Assessment Act). Poland, for the respondents, cited, Rex v. Joddrel, 1 B. & Ad. 403; Reg. v. Lumsden, 10 Ad. & E. 157; rates; and so the vicar is in effect charged, for he gets his tithes less the rates. The lands of the rector out of which the corn-rent issues are chargeable there fore, for he has what the vicar has lost. The statute of the 6 & 7 Will. 4, can make no difference in this case. |