« EelmineJätka »
of the Right to
Where the defendants completed their building after bill filed a mandatory Light and Air. injunction was granted. (Kelk v. Pearson, L. R., 6 Ch. 809.)
Where the plaintiff's legal right was denied an injunction would not be Former practice where plaintiff's
granted, according to the former practice, until the plaintiff had established legal right denied. his right at law; but where the circumstances of the cases required it, an
injunction was granted on the terms of the plaintiff proceeding to a speedy trial. (Att.-Gen. v. Nichol, 3 Mer. 687; S. C., 16 Ves. 338; Att.-Gen. v. Bentham, 1 Dick. 277; 1 Ves. sen. 543; Wynstanley v. Lee, 2 Swanst. 337; Chalk v. Wyatt, 3 Mer. 688; Sutton v. Lord Montford, 4 Sim. 599; and
see Potts v. Levy, 2 Drew. 272.) Present practice. The practice has, however, been changed by 21 & 22 Vict. c. 27, and 25
& 26 Vict. c. 42, under which the Court of Chancery must determine every question of law or fact incidental to the relief sought. And it seems that since these acts the court must deal with the question of nuisance or no nuisance, as it deals with every other question within its jurisdiction de
pending on a disputed matter of fact. See the acts stated ante, p. 106. Damages awarded Damages may now be awarded by the Court of Chancery under 21 & 22 by the Court of
Vict. c. 27, s. 2. (Ante, p. 107.) But it is discretionary with the court Chancery.
whether it will award damages or leave the plaintiff to obtain them at law. (Durell v. Pritchard, L. R, 1 Ch. 244.) The court considered the question of damages and determined that the plaintiff was not entitled to them. (Johnson v. Wyatt, 2 De G., J. & S. 18.) An inquiry as to damages was directed in Isenberg v. East India House Estate Company (3 De G., J. & S. 263); Martin v. Headon (L. R., 2 Eq. 425); Senior v. Pawson (L, R., 3 Eq. 330); Lyon v. Dillimore (14 W. R. 511); Webb v. Hunt (14 W:R.
725). Who can obtain The court will restrain the interference with ancient lights, although the relief in equity. plaintiff is not the occupier of the house interfered with, and may have no
intention of occupying it. (Wilson v. Tonnend, 1 Dr. & Sm. 324; 6 Jur.,
been accepted by the plaintiff. (Heath v. Maydew, 13 W. R. 199.) Covenant.
As to the interference of a court of equity to restrain the erection of additional buildings when a covenant to that effect had ceased to be applicable according to the spirit and intent of the contract, see Duke of
Bedford v. Trustees of British Museum, 2 M. & K. 552. Acquiescence and If an adjoining owner knowingly permits a messuage and premises to be delay.
rebuilt of an increased size and height, with the alteration of ancient lights, and the opening new lights upon an additional floor, he cannot object to them after they have been completed, or assert a right to raise a party-wall, and build upon his own property so high as to render the new buildings less accessible to light and air, than they were at the completion of the work. (Cotching v. Bassett, 32 Beav. 101: a case depending on the old law as to alteration, ante, p. 123.) In Dann v. Spurrier, the court proceeded upon the doctrine that it will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title ; and the circumstance of looking on is, in many cases, as strong as using terms of encouragement; a lessor knowing and permitting those acts, which the lessee would not have done, and the other must conceive that he would not have done, but upon an expectation that the lessor would not throw an objection in the way of the enjoyment. It must however
be proved, by strong evidence, that the party acted upon that sort of en- of the Right to couragement. (Dann v. Spurrier, 7 Ves. 235, 236.)
Light and Air. A plaintiff complained of an obstruction of the light and air to his ancient windows; of the raising and erecting of walls and buildings, whereby the smoke and vapour from the plaintiff's chimneys were prevented from being carried off; and that the defendant had deprived his house of the support which he was entitled to. The defendant pleaded, by way of equitable defence, that the grievances were occasioned by the pulling down and rebuilding of the defendant's house ; that the plaintiff had notice, and that the old building was pulled down, and the new one erected, and large sums of money were expended thereon by the defendant, with the knowledge, acquiescence, and consent of the plaintiff, and on the faith that the plaintiff so knew of, acquiesced in, and consented to the so pulling down and rebuilding. The plaintiff replied, that he acquiesced and consented upon the faith of false representations made to him by the defendant and her agents, that the grievances would not result from or be produced by, the pulling down and rebuilding:-it was held, that the plea afforded a good defence on equitable grounds. (Daries v. Marshall, 10 C. B., N. S. 697 ; 31 L. J., Č. P. 61.) It was held, also, that the replication was a good equitable answer to the plea. (15.)
An injanction to restrain the obstruction of ancient lights was refused on the ground of delay. (Cooper v. Hubbuck, 30 Beav. 160; Cocks v. Romaine, 14 L. T., N. S. 390.) As to the difference between the acquiescence which will justify the refusal of an interlocutory and of a perpetual injunction, see Johnson ý. Wyatt, 2 De G., J. & S.18; Turner v. Mirfield, 34 Beav. 390.
The opening of a window, whereby the plaintiff's privacy is disturbed, is Privacy. not actionable; the only remedy is to build upon the adjoining land, opposite the offensive window. (Chandler v. Thompson, 3 Campb. 80; see 9 Rep. 58 b; Cotterell v. Griffiths, 4 Esp. N. P. C. 69.) The intrusion upon a neighbour's privacy even by opening a new window overlooking the adjoining property, is not a ground for interference either at law or in equity. (Turner v. Spooner, 1 Drew. & Sm. 467. See also Ke Penny and SouthEastern R. Co., 7 Ell. & Bl. 660; and the remarks of Lord Westbury in Tapling v. Jones, 11 H. L. C. 290.)
An injunction was refused where the application proceeded on a particular Prospect. right to a long enjoyment of a prospect. (Att.-Gen. v. Doughty, 2 Ves. sen. 453. See Squire r. Campbell, 1 M. & Cr. 459.) So the building of a wall which merely intercepts the prospect of another, without obstructing his lights is not actionable. (Knowles v. Richardson, 1 Mod. 55; 2 Keb. 611, 642.) A covenant, however, not to obstruct a prospect will be enforced in equity. (Piggott v. Stratton, 1 De G., F. & J. 33; Western v. Macdermott, L. R., 2 Ch. 72.)
The erection of a building will not be restrained because it injures the Vlew of shop plaintiff by obstructing the view of his place of business. (Smith v. Owen, window, 35 L. J., Ch. 317; 14 W. R. 422; Butt v. Imperial Gas Co., L. R., 2 Ch. 158.)
The owner of a house has a right at common law to wholesome and un- Rights with regard tainted air, unless the business which creates a nuisance has been carried on to air. for such a length of time as will raise a presumption of a grant from the neighbouring owners in favour of the party who causes the nuisance. (Elliottson v. Feetham, 2 Bing. N. C. 134 ; 2 Scott, 174.) Nothing less than an user of twenty years will afford such presumption. (Bliss v. Hall, 5 Scott, 500; Crump v. Lambert, L. R., 3 Eq. 413.1 A right to the unobstructed passage of air through a window may be acquired by prescription at common law. (Aldred's case, 9 Coke, 58. Sec Gale v, Abbott, 10 W.R. 748; Dent r. Anction Mart Co., L. R., 2 Eq. 252.) But a right to the unobstructed passage of air to a windmill cannot be acquired by prescription under the statute. (Webb v. Bird, 13 C. B., N. S. 841.)
An action will lie for pollution of air. (St. Helen's Smelting Co. v. Remedies for pol. Tipping, 11 H. L. C. 642; 13 W. R. 1083.) And the Court of Chancery lution of air, at will restrain such a nuisance. (Tipping v. St. Helen's Smelting Co., L. R.,
law and in equity. s.
of the Right to 1 Ch. 66; Crump v. Lambert, L. R., 3 Eq. 409. See Snaine v. Great Light and Air.
Northern R. Co., 12 W. R. 391.)
What constitutes a nuisance was thus defined by Knight Bruce, V.-C.: “Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people ?" (Walter v. Selfe, 4 De G. & Sm. 322, adopted by Kindersley, V.-C., in Soltau v. De Held, 2 Sim., N. S. 133, and Lord Romilly, in Crump v. Lambert, L. R., 3 Eq. 413.)
Where a man, by an act on his own land, such as burning bricks, causes so much annoyance to another in the enjoyment of a neighbouring tenement, as to amount primâ facie to a cause of action, it is no answer that the act was done in a proper and convenient spot, and was a reasonable use of the land. (Bamford v. Turnley, 3 B. & S. 66; 10 W.R. 803, overruling Hole v. Barlon, 4 C. B., N. S. 334.) See Carey y. Ledbitter, 13 C. B., N. S. 470; Luscombe v. Steer, 15 W. R. 1191, and St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642, where Lord Westbury distinguishes the cases where material injury is done to property, and those where personal discomfort is produced.
A bill was filed by five several occupiers of houses in a town to restrain the erection of a steam engine, which would be a nuisance to each of them. It was held, that each occupier had a distinct right of suit, and that they could not sue as co-plaintiffs, for as each had a separate nuisance to complain of, that which was an answer to one might not be an answer to the other. (Hudson v. Maddison, 12 Sim. 416.)
An injunction was granted to restrain brick burning, which interfered with the comfort and enjoyment of a mansion and with ornamental trees, which excluded the view of unsightly objects, and where such trees were in some cases destroyed, and in many instances injured by brick burning. (Beardmore v. Tredwell, 3 Giff. 683; 31 L. J., Chan. 892.) Injunctions to restrain brick burning were also granted in Walter v. Selfe, 4 De G. & Sm. 315; Boreham v. Hall, W. N. 1870, p. 57; Roberts v. Clarke, 18 L. T., N. S. 49, and see Luscombe v. Steer, 14 W. R. 1191.
An injunction to restrain the emission of smoke and noxious vapours was granted in Imperial Gas Light and Coke Co. v. Broadbent, 7 H. L. C. 600. And it has been held that it is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the injury is felt only by reason of the delicate nature of the manufacture. (Cooke v. Forbes, L. R., 5 Eq. 166.) Nor does the fact of the plaintiff having come to the nuisance, disentitle him to equitable relief. (Tipping v. St. Helen's Smelting Co., L. R., 1 Ch. 66.)
As to whether an injunction will be granted as a matter of course where a verdict has been obtained at law, see Imperial Gas Light and Coke Co. v. Broadbent, 7 H. L. C. 600; Crump v. Lambert, L. R., 3 Eq. 409;
Luscombe v. Steer, 15 W. R. 1191. Acqulescence. Acquiescence in the erection of noxious works while they produce little
injury does not warrant the subsequent extension of them to an extent productive of great damage. Though a party may be disentitled by acquiescence to an injunction to stop another's manufactory, which is noxious to the neighbourhood, yet it does not consequently follow that the latter is entitled to an injunction to prevent the party who has acquiesced from recovering damages at law. Equity may leave both parties to their legal rights. (Bankart v. Houghton, 27 Beav. 425.) An injunction to prevent, on the ground of acquiescence, a party injured by copper works, from enforcing a judgment recovered by him
for damages at law was refused with costs. (Ib.) See also, as to the effect of acquiescence in such a case, Williams v. Earl of Jersey, Cr. & Phil. 91; Savile v. Kilner, 26 L. T., N. S. 276.
LIMITATION OF ACTIONS AND SUITS.
3 & 4 WILLIAM IV. CAP. 27.
An Act for the Limitation of Actions and Suits relating to
Real Property, and for simplifying the Remedies for
[24th July, 1833.]
1. Limitation of time for the recovery of land or rent.
1. Interpretation clause, 3 & 4 Will. 4, c. 27, s. 1.
10. Limits of act, 88. 43–44.
legacies, arrears of dower, rent and interest, 3 & 4 Will. 4, c. 27,
$8. 40–42. III. Of the limitation of actions on specialties, 3 & 4 Will. 4, c. 42. IV. Of the limitation of actions on simple contract, 21 Jac. 1, c. 16;
9 Geo. 4, c. 14.
I. LIMITATION OF TIME FOR THE RECOVERY OF LAND OR
Meaning of the
1. Interpretation Clause. Be it enacted, that the words and expressions hereinafter men- 3 & 4 Will. 4, tioned, which in their ordinary signification have a more con- c. 27, s. 1. fined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude words in the act. such construction, be interpreted as follows ; (that is to say,) the word “land” (a) shall extend to manors, messuages, and “ Land." all other corporeal hereditaments whatsoever (6), and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole) (c), and also to any share, estate or interest in them or any of them, whether the same shall be a freehold or chattel interest (d), and whether freehold or copyhold, or held according to any other tenure ; and the word “rent shall extend to all heriots (e), and to all services and “Rent.”
whom another claims,
Number and gender.
3 f: 4 Will. 4, suits for which a distress may be made (f), and to all annuic. 27, 8. 1. ties and periodical sums of money charged upon or payable
out of any land (9) (except moduses or compositions belonging Person through to a spiritual or eleemosynary corporation sole); and the per
son through whom another person is said to claim shall mean any person by, through or under or by the act of whom, the person so claiming became entitled to the estate or interest claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some per
son through whom he claims, became entitled as lord" by “ Person."
escheat (h); and the word “person” shall extend to a body politic, corporate or collegiate, and to a class of creditors or other persons, as well as an individual (i); and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend
and be applied to a female as well as a male. Construction of (a) The object of all statutes of limitation is to prevent claims at great statutes of limi
distances of time when evidences are lost, and in all well-regulated countries tation generally.
the question of possession is held to be an important point of policy, (Trustees of Dundee Harbour v. Dougall, 1 Macq. H. L. C. 321, per Lord St. Leonards.) The several statutes of limitations being all in pari materiâ ought to receive an uniform construction notwithstanding a slight variation in phrase, the object and intention being the same. (Murray v. East India Company, 5 B. & Ald. 206, 215, per Abbott, C. J.) All these acts being, as they were emphatically termed by Lord Kenyon, statutes of repose, are to be liberally and beneficially expounded. (Per Dallas, C. J., in Tolson v. Kaye, 6 Moore, 558; 3 Bro. & B. 217.) See the maxims “ Interest reipublicæ ut sit finis litium” (Broom's Legal Maxims, 343, 5th ed.) and “ Vigilantibus non dormientibus jura subve
niunt” (Broom, 892). Subjects not in Turnpike tolls are not within this act ; and consequently more than six cluded in this act. years' arrears of interest may be recovered on a mortgage of turnpike tolls
notwithstanding the 42nd section of the act, a share of the tolls of a turnpike road not coming within the meaning of the word land as defined by the first section of this act. (Mellish v. Brooks, 3 Beav. 22; 4 Jur. 739.) But quarries and limestone land do come within that word. (3 Ir. Law Rep. 521.) The limitation prescribed by the 3 & 4 Will. 4, c. 27, does not apply to an action on a collateral covenant for payment of a rent charged on land, and the covenantee may recover damages for the breach of that covenant, notwithstanding his right to recover the rent-charge is barred by this statute. (Manning v. Phelps, 10 Exch. 59; 24 Law J., Exch. 62.)
The word "rent" has an ambiguous meaning, being either the estate in the rent or the rent reserved under a lease. It has been confined in sect. 2 to the former meaning alone, so that a mere non-receipt of rent under a lease for more than twenty years does not deprive
the lessor of his right to rent under the lease. (Ġrant v. Ellis, 9 M. & W. 113.) Lord St. Leonards said, rent, in the sense in which it is spoken of in the second section, means rent of inheritance, and it does not mean rent reserved by lease for example, or rent in the common and customary form of a render for property. (Dean of Ely v. Bliss, 2 De G., M. & G. 459. See p. 472.)
The word “tithes,” like rent, has an ambiguous meaning, signifying either the estate in the tithes or the chattel itself, the fruits of the estate. Tithes (other than tithes belonging to a spiritual or eleemosynary corpora