(756.)

[HOUSE OF LORDS.]

MAYOR OF TUNBRIDGE WELLS v. BAIRD AND OTHERS.

[MAY 1ST AND 4TH.]

Local Government—“ Street "-Vestry - Soil below Surface — Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 149—Tunbridge Wells Improvement Act, 1890 (53 & 54 Vict. c. 235), ss. 4, 93.

(For a previous stage of this Case, see voi. vii. p. 68.)

Where the Public Health Act, 1875, or any local Act, vests a street in the urban authority, it only vests in them such property in the soil of the street as is necessary for the control, protection, and maintenance of the street as a highway for public use, and confers upon them no authority to make excavations in the soil below the surface for the purpose of public conveniences. Dictum of Bramwell, L. J. in Coverdale v. Charlton (40 L. T. Rep., 88; 4 Q. B. Div., 104) explained. An agreement was entered into between the lord of a manor and the freehold tenants, which was confirmed by a private Act of Parliament, by which it was provided that a certain promenade, formerly part of the waste of the manor, should remain open and free for the public use.

Held, that the soil under the surface of the promenade remained the property of the lord.

Judgment of the COURT OF APPEAL affirmed.-(L. T. [1896], vol. lxxiv. p. 385.)

(757.)

[IN THE COURT OF APPEAL.]

REG v. THE BEXLEY HEATH RAILWAY COMPANY.

[WEDNESDAY, MAY 6TH, 1896.]

Railway Company-Footpath-Crossing Footpath on the Level-Obligation to Construct Bridge-Mandamus-Railways Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20) ss. 46-61.

When a railway crosses a public footpath the Railways Clauses Consolidation Act 1845 does not impose upon the railway company any obligation to carry the footpath over the railway, or the railway over the footpath, by means of a bridge.—(L. T., C. A., vol. lxxiv. p. 540.)

(758.)

KNIGHT . SIMMONDS.

[MAY 8TH AND 11TH.]

Building Estate-Restrictive Covenant-Building Scheme-Residential Estate-Trade Prohibited-Trivial Breaches-AcquiescenceInjunction.

(For a previous stage of this Case, see p. 67, ante.)

Before granting equitable relief by enforcing a restrictive covenant, the court will look not only to the words of the covenant, but to the object to attain which it was entered into; and if, owing to circumstances which have occurred since it was entered into such object cannot be attained, the relief will be refused. But there is no rule that if a restrictive covenant for the preservation of a building estate is not enforced in all cases it cannot be enforced in equity in any.-(L. T., C. A. vol. lxxiv. p. 563.)

(759)

[QUEEN'S BENCH DIVISION.]

DRURY v. ARMY AND NAVY STORES.

[MAY 13TH, 1896.]

Local Government—Metropolis-Building Acts-Party wall, what is London Building Act, 1894 (57 and 58 Vict., c. 213), ss. 75 and 77.

This was a case stated by a metropolitan magistrate upon a summons under the London Building Act, 1894. It raised a question under those provisions of that Act which were designed for the prevention of fire. Section 75 provides that "no building of the warehouse class shall extend to more than 250,000 cubic feet, unless divided by party walls in such manner that no division shall extend to more than 250,000 cubic feet. Sections 77 and 59 contain provisions with regard to party walls, requir ing them to be of a certain thickness and regulating the apertures in them. The defendants erected a building of the warehouse class of the capacity of 657,408 cubic feet, divided by two party walls. One portion of the building extended to five storeys, and the other to one story. The latter portion was lighted by a sky-light. There was a wall between these two portions of the buildings, which was admitted, as regards that part of it which reached to the first story, to be a party wall. But the defendants claimed that the part of the wall which extended above the first storey was not a party wall; and that they were, therefore, at liberty to construct

windows and apertures in it without regard to the provisions of the Act dealing with party walls. The magistrate refused to convict.

The COURT supported the decision of the magistrate. They held that the words "party wall" in section 75 were not used in a technical sense, and that section 59 did not bear the construction put upon it by counsel All that section meant was that so far as a wall was a party wall it should comply with the requirements of the section; but there was no presumption that a wall which was a party wall as to a portion of its height should be a party wall as to its height. Section 75 did not make a wall a party wall above the line where it ceased to divide the two buildings.-(T. L. R. [Q. B. D.], vol xii. p. 404.)

(760.)

[COURT OF APPEAL.]

BEVAN v. CHAMBERS.

[MAY 15TH, 1896.]

Landlord and Tenant-Lease-Construction-Compensation “at the end of the said term"-Lease determinable at Lessee's option.

This was an appeal by the plaintiff from the decision of the Divisional Court (Mr. Justice Day and Mr. Justice Wright) affirming an order of Mr. Justice Mathew at Chambers, upon an originating summons which was taken out for the purpose of determining the construction of a lease. By a lease, dated September 20, 1881, the plaintiff's predecessor in title demised a farm in Kent to the defendant for twenty-one years from September 29, 1881, at an annual rent. The defendant converted a large part of the farm into a fruit farm, and planted a quantity of gooseberry and currant trees. The question was whether the defendant was entitled to be paid by the plaintiff under the terms of the lease for the gooseberry and currant trees, &c., left by him on the farm. The lease contained a proviso, that the tenant should be entitled to put an end to the demise at the expiration of the first seven or fourteen years of the term, and in such case immediately after the expiration of such seven or fourteen years the lease and everything therein contained should cease and be absolutely void to all intents and purposes whatsoever; provided also that at the expiration or other sooner determination of the term the landlord should pay the tenant for the three hop kilus standing on the farm, and also for all additional buildings which should thereafter be erected by the tenant with the sanction, in writing, of the landlord. Then followed certain covenants by the landlord, the material one being a covenant by him to pay and allow to the tenant for the clover lay fallows and half fallows (if any), seeds, hop poles, and gooseberry and currant trees which might be grown

or left on the said farm at the end of the said term. On March 20, 1895, the defendant gave six months' notice to determine the tenancy on September, 29, 1895, which was the end of the first fourteen years of the term. The defendant claimed compensation for the gooseberry and currant trees, &c., left on the farm, while the plaintiff contended that the defendant, by determining the term before the end of the twenty-one years, had put an end to the lease and everything contained in it and had no right to compensation. The plaintiff thereupon took out this originating summons. Mr. Justice Mathew and the Divisional Court held that the defendant was entitled to compensation. The plaintiff appealed. The COURT dismissed the appeal.

The MASTER of the ROLLS said that the Court were asked to say whether under the terms of the lease the landlord was bound to compensate the tenant for the gooseberry and currant trees left on the farm. The landlord covenanted to pay the tenant for the gooseberry and currant trees left on the farm "at the end of the said term." In his Lordship's opinion the tenant, by duly giving notice, put an end to the term, and the term having thus come to an end the landlord was bound to pay the compensation claimed. It was contended that some other clause in another part of the lease showed that the words "at the end of the said term " did not include the determination of the term in this way, but merely referred to the determination of the term at the end of the twenty-one years, and that therefore the landlord was not bound to pay compensation to the tenant. It might be that the lease was capable of that construction. But if there were two possible constructions, one of which was a reasonable one and would produce justice and the other would produce absolute injustice, the Court would always adopt the former construction. The defendant therefore was entitled to the compensation claimed, and the judgment must be affirmed.

The LORDS JUSTICES delivered judgment to the same effect.— (T. L. R., C. A., vol. xii. p. 417.)

(761.)

LONDON COUNTY COUNCIL v. CHURCH WARDENS AND OVERSEERS OF LAMBETH.

[APRIL 22ND, 23RD, 24TH, AND MAY 16TH.]

Poor Rate-Occupation—Beneficial Occupation-Public Park-London County Council-London Council (General Powers) Act, 1890 (53 54 Vict. c. ccxliii).

For a previous stage of this Case, sec vol. vii. p. 398.)

The London County Council by purchase acquired hereditaments under a special Act which provided that they should "hold, lay out, maintain, and preserve the same and every part thereof as a park for the per

petual use thereof by the public for exercise and recreation." There was no duty imposed upon the County Council to provide any park.

In a case stated upon appeal against a poor rate in respect of the park, it was found that the necessary expenses of maintaining the park far exceeded any revenue which could be derived from it; that, if the hereditaments had remained the same as they were prior to the Act, the rateable value would have been sufficient to support the rate; that £117,000 was paid for the park, of which the County Council contributed £62,000; and that, if the County Council had had a duty to provide a public park in the locality, and the power and wish to take this park as tenants, they would have had to pay a rent sufficient to support the rate.

Held (reversing the decision of the Queen's Bench Division), that the County Council had no beneficial occupation in respect of which they could be rated.—(L· T., C. A., vol. lxxiv. p. 605.)

(762.)

[CHANCERY DIVISION.]

CREYKE v. CORPORATION OF THE LEVEL OF HATFIELD

CHASE.

[MAY 5TH, 1896.]

Easement-Warping Lands-Lost

Grant-Presumption—Prescrip

tion-Action claiming Easement dismissed.

In the course of his judgment in this case, of which a summary appeared in The Times of May 6th, Mr. Justice ROMER said: The claim of the plaintiff is to a right of warping his adjoint lands by the water of the "Dutch" or "New River," through the "New Clough," free from any control by the defendants. The plaintiff claims to be owner in fee simple of the clough, or failing that, then that he has an easement or irrevocable licence entitling him to use it for the purposes of warping his lands as and when he pleases. The defendants deny the plaintiff's alleged right and claim to be owners in fee of the clough as part of the south bank of the river. If the plaintiff has the right to warp, then the defendants have clearly interfered with that right and he is entitled to relief. If he has not the right, then his action must be dismissed, for by consent of the parties I have not in this action to determine the right claimed by him to drain his lands through this clough. It will be convenient in the first place to see what were the rights of the predecessors of the parties when the Court of Sewers for the district, appointed under 23 Henry VIII., c. 5, came to an end in 1858 (after which no new commissioners of sewers were appointed), and then to consider the effect of what happened between that time and the commencement of this action. It is reasonably clear that the ba nks of the river belonged to the somewhat anomalous body called "The