judges in the Court of Appeal with regard to the position of the County Council in relation to Putney Bridge. I concur in the view they expressed, and in my opinion it is equally applicable to Brockwell Park. For these reasons I think the appeal should be dismissed.

Lord MACNAGHTEN and Lord MORRIS concurred.-(L. T. [1897], H. L., vol. lxxvi. p. 795.)

(849.)

[IN THE COURT OF APPEAL.]

HOWARTH v. ARMSTRONG.

[JULY 19TH, 1897.]

Support-Easement-Adjoining Houses-Lease-Easement, whether

reserved by Lease.

The Court delivered judgment in the above appeal against a decision of Mr. Hail, Q.C., the Vice-Chancellor of the County Palatine of Lancaster. The appeal was argued on June 3rd last, and, by the desire of the Court, was re-argued on the 8th inst., when judgment was reserved. The COURT allowed the appeal.

Lord Justice LINDLEY read the following judgment :-The plaintiffs and the defendant are respectively entitled, as lessees under the Eccle siastical Commissioners, to two adjoining houses in Drake Street, Rochdale, and the question raised by the appeal is whether the defendant is entitled to have his house supported by one of the walls of the plaintiffs' house. The Vice-Chancellor has decided that the defendant is so entitled. The plaintiffs contend that he is not. The question arises in this way. In 1797 both houses belonged to the vicar of Rochdale, and he granted one long lease, ending in 1895, of them both. Each house was afterwards sublet separately from the other, and in 1864 each was held under a sublease which expired a few days before the head lease. Up to this time (1864) neither house supported any part of the other. Each had a garden in front, and between the two gardens there was a low wall 11 feet 3 inches long, in a line with the south wall of the plaintiffs' house. In 1864 James Howarth was sub-lessee of the plaintiffs' house, and James Chadwick was sub-lessee of the defendant's house. Howarth had raised the abovementioned 11 feet 3 inches garden wall to the extent of about 13 feet, with the permission of Chadwick. By an agreement dated October 3rd, 1864, Chadwick agreed to let Howarth maintain the wall so built by him

during the remainder of the head lease of 1797, less the last 20 days thereof. For this permission Howarth was to pay 5s. a year. This agreement treats the low garden wall on which Howarth bad built as Chadwick's wall. In 1870 the sub-lease of the defendant's house was vested in Armstrong by assignment from Chadwick. Armstrong had, with Howarth's permission, built into his wall, and by an agreement, dated March 25th, 1870, Howarth agreed that Armstrong might maintain and enjoy Howarth's wall during the remainder of the head lease of 1797, less the last 20 days thereof. For this permission Armstrong was to pay 5s. a year. This agreement is not clear as to what wall of Howarth's was meant. I understand, however, that it included not only that part of the south wall of Howarth's house which has been called his gable wall, but also the wall which Howarth had erected, with Chadwick's permission, on the 11 feet 3 inches garden wall already mentioned. At any rate, as I understand the facts, Chadwick did put beams into this raised wall with Howarth's consent, as stated in the agreement of 1870. The material fact to be borne in mind is that, whatever cross-easements were agreed to be granted by one lessee to the other in 1864 and 1870 as before mentioned, those easements were temporary only, and were created by agreements to which the lessors were not parties, and those agreements came to an end in 1895, 20 days before the expiration of the head lease of 1797, and 10 days before the expiration of the sub-leases under which the tenants held their respective houses. Pausing here to consider what the rights of the tenants would have been, when the agreements of 1864 and 1870 came to an end, if nothing further had happened, it seems plain that each could have removed, or required the removal of, what had been built into his own wall. This right would have come to an end, in the sense that it could not be infringed after the expiration of the sub-lease under which he himself held. Still the existence, even for a short time, of this right of removal becomes very important in considering the effect of what took place in 1871. In that year Howarth, without surrendering his underlease, obtained a new lease from the Ecclesiastical Commissioners for a term of 999 years, to be reckoned from the date of the lease-i.e., 1871-but, as regards possession, to take effect from one day after the expiration of the subsisting head lease of 1797-i.e., 1895. In March, 1889, Armstrong also obtained a long lease of his house from the Ecclesiastical Commissioners framed in the same way. There is nothing to show whether the Ecclesiastical Commissioners had or had not any knowledge of the agreements come to between the tenants of the two houses in 1864 and 1870 as above mentioned, The Vice-Chancellor has decided, and it is now admitted, that the plaintiffs' lease of 1871 comprised the whole of the walls referred to in the agreements of 1864 and 1870, and since 1895, when the head lease of 1797 fell in and those agreements came to an end, those walls, including the 11 feet 3 inches garden wall (treated in 1864 as Chadwick's), and the erection upon it, have been the plaintiffs' for the rest of their present lease. The question is whether the defendant has acquired any right to keep the ends of his beams in the plaintiffs' wall, although the agreement under which his predecessor put them there

is at an end. There is no agreement between the plaintiffs and the defendant conferring any such a right on the defendant. But he contends that the lease by the Ecclesiastical Commissioners of the plaintiffs' house to the plaintiffs in 1871 operated so as impliedly to reserve to the lessors a right to have the defendant's shop supported as in fact it then was, and that this right passed to the defendant by his lease of 1889. This view has been adopted by the Vice-Chancellor, and its correctness turns on the terms of the lease of 1871. An examination of this lease shows that the lessors reserved the mines and minerals under the property demised, but nothing else in express terms. The covenants by the lessee are, however, very important. Howarth agreed with the Ecclesiastical Commissioners that he would keep up the value of the property demised to an amount there specified by maintaining and repairing the then existing house, or by rebuilding or improving it, or by erecting one or more other houses in lieu of it or in addition to it. The appellants' counsel contended that this was inconsistent with any implied reservation of a right to have Armstrong's house supported by the house demised to Howarth. But the lease contains other covenants by the lessee which require attention. There is a covenant by the lessee that he will not carry on certain trades, "nor do or permit to be done anything which may tend to the annoyance or damage of the other tenants of the glebe land," by which is meant other adjoining land belonging to the Ecclesiastical Commissioners, including that which they afterwards let to Armstrong. Then there is a covenant to keep the property demised in good repair, and so to yield it up at the end of the term The lease to Armstrong is in similar terms, and the same form of lease is no doubt adopted by the Ecclesiastical Commissioners for all their property forming what is called the glebe land. The Ecclesiastical Commissioners are not parties to this action, and it is not necessary to consider whether, having regard to Tod-Heatly v. Benham (40 Ch. D., 91) and Wood v. Cooper (1894, 3 Ch., 671), they could obtain an injunction to restrain the plaintiffs from removing the defendant's beams and thereby annoying and damaging him. On this point I express no opinion. But, assuming that such an action could be maintained, I have come to the conclusion that it would be going too far to hold that the lease to the plaintiffs in 1871 impliedly reserved to the lessors the right to have the adjoining house supported by the plaintiffs' wall. Such a reservation cannot, in my opinion, be treated as dating from the date of the lease of 1871, for it was not to come into operation, as regards the interest and right of possession, until 1895. As regards easements impliedly reserved to the lessor, the lease of 1871 can only be treated as coming into operation from the end of the old head lease of 1797-that is, from 1895-but it was quite uncertain in 1871 what the state of things would be when the old head lease would come to an end. Both houses might then have been restored by the tenants to the state in which they were before the agreements of 1864 and 1870 were entered into. To stipulate for a future easement of support, if wanted, might be reasonable enough, but such an easement cannot be implied on the ground of necessity, nor upon any other principle with which I am acquainted.

It was contended that the lease of 1871 should be treated as if granted in 1895, and as a lease of the plaintiffs' house as it then stood. But it is, in my opinion, impossible so to treat the lease. We must take it as it is, and not as if it were something quite different. The peculiar facts of this case render the authorities relied upon by Counsel inapplicable. Roach v. Jones (9 Ex., 215) is the nearest, and might have covered this case if the lease of 1871 had been granted in 1895, and if the plaintiffs' and defendant's houses had been then in the state in which they in fact But Courts cannot legally imply reservations of easements unless it is clear that such reservations are necessary in order to give effect to the real arrangements which the parties were making, and in this case I am unable to come to the conclusion that there is any such necessity. The appeal, therefore, must be allowed, and it must be declared that the defendant has no such easement of support as he claims. This being the controversy between the parties, and the defendant being in the wrong, he must pay the costs here and below.

were.

Lord Justice LOPES expressed his entire concurrence in the judgment of Lord Justice Lindley, which he said he had read.

Lord Justice RIGBY read a judgment to the same effect.-(T. L. R. [1897], C. A., vol. xiii. p. 529.)

(850.)

[IN THE HOUSE OF LORDS.]

THE KENT COUNTY COUNCIL v. LORD GERARD.

[JULY 23RD, 1897.]

Highway-Repairs—Extraordinary Traffic-Person by whose Order Traffic is conducted-Highways and Locomotives Act, 1878, s. 23

(For a previous stage of this Case, see p. 324 ante.)

This was an appeal from a decision of the Court of Appeal reversing by a majority an order of the Queen's Bench Division made on a special case stated by the Kent quarter sessions. It appeared that Lord Gerard was the owner and occupier of Eastwell Park, which abuts for a considerable distance upon the Faversham and Ashford main road. In 1893 and 1894 Lord Gerard directed certain extensive building alterations to be made on his estate, and contracts were entered into by him with various contractors for the supply of heavy material, a large part of which was drawn along the Faversham and Ashford road by means of traction engines, which greatly damaged the road, which the County

Council had to repair at the cost of £750. This sum the County Council sought to recover from the respondent under the 23rd section of the Highways and Locomotives Amendment Act, 1878, which provides for the recovery of expenses incurred by the authority liable to repair any highway from any person "by whose order" extraordinary traffic has been conducted. The question was whether in the circumstances the respondent had "ordered" the extraordinary traffic to be conducted. A summons was issued by the appellants against the respondent for the recovery of the expenses incurred by the appellants in making good the damage to the road caused by the extraordinary traffic, and was heard by the petty sessions, who held that the traffic had been conducted by the respondent, whom they ordered to reimburse the appellants the expenses they had incurred im making good the damage to the road. This decision was set aside by the Court of quarter sessions, who stated a case for the opinion of the superior Court. Mr. Justice Cave and Mr. Justice Wills reversed the decision of the quarter sessions and restored that of the petty sessions, but the Court of Appeal by a majority decided in favour of the respondent.

Their LORDSHIPS, without calling upon the learned counsel for the respondent to argue the case, held that it would be straining the language of the Act to construe the words "by order of as equivalent to "in consequence of the order of." Lord Gerard had merely ordered certain heavy material from contractors, and he was not responsible for the mode by which they had delivered the goods. The appeal must therefore be dismissed with costs.

Appeal dismissed with costs.-(T. L. R. [1897], H. L., vol. xiii. p. 536.)

(851.)

[COURT OF APPEAL.]

IN RE THE AGRICULTURAL HOLDINGS (ENGLAND) ACT, 1883KING. EVERSFIELD.

[AUGUST 6TH, 1897.]

Landlord and Tenant-Yearly Tenancy, what is.

A tenancy at a certain annual rent payable quarterly, either party having power to determine it by a three months' notice on any day of the year, held to be a yearly tenancy.

This was an appeal from the judgment of the Divisional Court (Mr. Justice Day and Mr. Justice Lawrance) reversing the decision of the County Court Judge at Hastings. The question was whether the plaintiff was the tenant of a market garden from year to year, in which case he would be entitled to compensation for improvements under the Agricul

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