SECTION IV.-TRESPASS.

(1.) TRESPASS (ORDINARY).

1. Injunction against Trespassing on Plt's Land.

"LET the Deft T., his agents &c., be restrained until judgment in this action, or until further order, from committing any trespass upon the Plt's estates at &c., devised by the will of &c., or any part thereof." -Lowndes v. Thomas, V.-C. H., 11 Jan. 1876, B. 21.

For injunction against cutting trees in a wood, and acts of trespass in exercise of an alleged legal claim, see Stanford v. Hurlstone, 9 Ch. 116; and see Lowndes v. Bettle, 10 Jur. N. S. 226; 33 L. J. Ch. 451; 10 L. T. 55; 12 W. R. 399; 3 N. R. 409.

For injunction restraining a lessor, without express power of entry for the purpose, from entering upon the demised premises to effect repairs which lessee refused to do, see Stocker v. Planet Bldg. Soc., 27 W. R. 793,

877.

2. Mandatory Injunction to remove Pipes on Plt's Land or under a Highway.

"LET the Deft R. remove all pipes which have been laid by the Deft in or through the land or soil beneath the surface of the highway adjoining the Plt's lands in the statement of claim mentioned to the undivided moiety whereof the Plt is entitled as in the statement of claim also mentioned."-Deft to pay Plt's costs of suit, to be taxed &c. -See Goodson v. Richardson, M. R., 3 Dec. 1873, A. 2980; affirmed, 9 Ch. 221; altered to suit Jackson v. Normanby Brick Co. Ld., (1899) 1 Ch. 438, C. A. [Form 10, p. 565].

For injunction restraining an encroachment by buttresses on Plt's land, see Holmes v. Upton, 9 Ch. 214, n.

For interim order restraining Deft from removing the soil on land adjoining the parish church of St. Stephen, Walbrook, &c., and the churchyard belonging to the said church, so as to deprive the walls of the church and churchyard of the support they derive from such adjoining land, see Windle v. Brass, V.-C. II., 19 June, 1876, B. 1046.

For injunction restraining Deft from any further excavation upon his premises so as to occasion damage or injury to Plt's warehouses and buildings, with inquiry as to damages, see Barnett v. Marzetti, V.-C. W., 14 Dec. 1867, A. 3061.

3. Injunction against building, without prejudice to Rights under London Building Act, 1894.

LET, without prejudice to the Deft's rights, if any, under the Metropolitan Building Act, 1894, the Deft A. K. T., his workmen and agents, be perpetually restrained from heightening or raising the wall which separates the Deft's premises, No. St. J.'s Pl., from the Plt's premises, No. -, St. J.'s Pl., in the county of —, and is referred to in the said affidavits, and is the wall in controversy in this action, and

from placing any erection upon the said wall or from otherwise interfering therewith.-Deft to pay Plt's costs of action, to be taxed &c.— Thereupon all further proceedings in the action to be stayed, except for the purpose of enforcing the order, with liberty to apply for that purpose. See List v. Tharp, Chitty, J., 13 Jan. 1897, B. 133; (1897) 1 Ch. 260.

4. Injunction against laying Rails, &c. on Plts' Land, or across Bridge, and Mandatory Injunction to remove.

USUAL undertaking.-Let the Defts, their contractors, workmen &c., be restrained until &c., from laying or placing or affixing on or to the bridge, or the approaches thereof, or any part of the land of the Plts in the Plts' statement of claim respectively mentioned, any rails, tramplates, sleepers, or other articles, or any earth, stones or rubbish; And Let the Defts forthwith remove all rails, tramplates, sleepers, and other articles, earth, stone, and rubbish laid, placed or affixed on or to the said bridge, and the approaches thereof, and any part of the land of the Plts; And Let the Defts &c. be restrained until &c., from making or constructing any tramroad or railroad over, upon, or across the said bridge, or the approaches thereto, or upon any part of the land of the Plts, and from making any embankment in any part of the said land of the Plts for the purpose of a tramroad across the said bridge; And Let the Defts forthwith remove such tramroad or railroad and such embankment accordingly; And Let the Defts, their contractors, workmen &c., be restrained until &c., from excavating or in any manner interfering with any part of the fabric of the said bridge, and from digging any holes in, or otherwise injuring or interfering with, the soil of the Plts' said land, and from using the said bridge, or the approaches thereto, or any part of the said land of the Plts for the purpose of a tramroad, or for the passage along such tramway of waggons or vehicles of any kind either for the carriage of coal, minerals, or other articles, or otherwise.-See Neath Canal Co. v. Ynisarwed Resolven Colliery Co., L. J., 3 May, 1875, B. 761 (varying order of V.-C. B., 23 March, 1875, B. 505, by adding the usual undertaking by Plts as to damages): S. C., 10 Ch. 450, altered to suit Jackson v. Normanby Co. Ld., (1899) 1 Ch. 438, C. A. [Form 10, p. 565].

For injunction to restrain Deft from permitting photographic room to remain on the flat roof of the Plt's shop, on the ground of trespass upon the construction of Plt's lease, see Martyr v. Lawrence, 2 D. J. & S. 266.

To restrain the removal of a signboard affixed to the side of Deft's house, and being the signboard of Plt's house next door, see Moody v. Steggalls, 12 Ch. D. 261.

To restrain interference with a fascia fixed on the wall of the house adjoining the Plt's house, and comprised in the grant from the common landlord, see Francis v. Hayward, 22 Ch. D. 177, C. A.

To restrain the obstruction of an easement by preventing the passage of smoke from flues, see Hervey v. Smith, 1 K. & J. 389. See also for additional instances of injunctions in Equity to stop a mere trespass, L. & N. W. Ry. Co. v. Lanc. Ry. Co., 4 Eq. 174; Hodgson v. Duce, 2 Jur. N. S. 1014; or

trespass in the exercise of disputed rights over land, or under colour of title, Greenhalgh v. Manch. Ry. Co., 3 M. & Cr. 784; Fooks v. Wilts Ry. Co., 5 Hare, 199.

5. Injunction against Construction of Unlawful Accommodation Works and Mandatory Injunction to remove.

LET the Deft E. C. T., her solrs and agents, be perpetually restrained from erecting any bridge, or a single or double line of railway, or other accommodation work, over the land or railway of the Plt co., passing through certain lands in the parish of —, between the Plt co.'s bridge at - and the works of the Co. Ld. at, in the parish of -; And Let the Deft E. C. T. forthwith pull down and remove all bridges and single and double lines of railway, and other accommodation works so erected over the land or railway of the Plt co. as aforesaid.—The Deft to pay costs of action and appeal.-See The Rhondda and Swansea Bay Ry. Co. v. Talbot, C. A., 2 June, 1897, B. 3019; (1897) 2 Ch. 131, C. A., altered to suit Jackson v. Normanby Brick Co. Ld., (1899) 1 Ch. 438 [Form 10, p. 565].

6. Injunction against obstructing Communication with Branch Railway and Mandatory Injunction to restore.

UPON the appeal of the Defts from the order dated &c., and upon hearing counsel for the appellants and for the Plt, Let the Defts, their officers, servants, and agents, be perpetually restrained from continuing to prevent communications between the Plt's branch railway at &c., and the Defts' railway in the writ mentioned; And Let the Defts forthwith restore the junction between the said branch railway and Defts' railway in such a manner as to permit carriages to be brought to and from the said branch railway and Defts' railway.— Woodruff v. The Brecon, &c. Ry. Co., C. A., 5 Dec. 1884, B. 1456; S. C., 28 Ch. D. 190, C. A.

7. Injunction against Trespass on excepted Minerals.

DECLARE that the red rock and thin coal bored by the Defts are "mines and minerals" within the reservation contained in the lease dated Usual undertaking.-Let the Defts A. and A. C. & Co. Ld. and D. S. & Co. Ld., their workmen, servants, and agents, be restrained until judgment in this action or further order from continuing to bore under the land demised by the said lease so as to interfere with or trespass upon the mines or minerals excepted by the said lease.-See Johnstone v. Crompton & Co., Byrne, J., 10 June, 1899, A. 2486; (1899) 2 Ch. 190.

8. Trespass in Churchyard by Interment of non-Parishioners

restrained.

USUAL undertaking by the relators as to damages.-"Let the Deft the Reverend S. (clerk), his assistant curates, parish officers, servants &c., and all other persons claiming authority, commission, or licence from him or them, be restrained from burying, or interring, or suffering to be buried or interred in the churchyard of &c., without the consent of the churchwardens and parishioners of the said parish, the corpse of any person not being a parishioner of the said parish, or any person not being a parishioner who may have died within its precincts, until the hearing &c. But this order is to be without prejudice to any question in this action, and is not to extend to interfere with interments in any graves already purchased."-A. G. v. Strong, V.-C. G., 19 March, 1868, A. 660 (made perpetual, by consent, 3 June, 1868, A. 1481).

It seems that strangers may not be buried in the churchyard of another parish than that in which they died, at least without the consent of the parishioners or churchwardens, whose parochial right of burial is invaded thereby, and perhaps also of the incumbent, whose soil is broken: Phill. Ecc. Law, 843; 2nd ed. 654; and see Glen, Burial Board Acts, 3, 4.

9. Injunction against interfering with Telegraph Wires. USUAL undertaking.-Let the Defts The N. T. Co. Ld., their directors, agents, servants and workmen, be restrained from acting on their notice dated to terminate the Plts' agreement with the Defts, and from cutting, disconnecting, removing, or otherwise interfering with any wire pursuant to the said notice.-Defts to pay costs of action. See Keith, Prowse & Co. v. National Telephone Co. Ld., Kekewich, J., 9 Feb. 1894, A. 180; (1894) 2 Ch. 147.

10. Injunction against cutting Reeds or Sedges on Plts' Land. LET the Deft, the Right Hon. A. H., Baron A., his servants, agents and workmen, be perpetually restrained from digging or carrying away land or soil, and from cutting reeds or sedges, and from committing any trespass upon the Plts' estates situate &c., or any part thereof, and from interfering in any way with the use and enjoyment by the Plts of their said estates; And Let the said Deft, the Right Hon. forthwith remove the stakes driven by him or by his order in the bed of the stream belonging to the Plts and forming part of their said estates in the pleadings mentioned.-Inquiry as to damages (if any) Plts are entitled to as compensation for the wrongful acts of the Deft in the pleadings mentioned.-Costs.-Liberty to apply.-Hammond v. L. Ashburton, V.-C. B., 11 July, 1883, A. 1584.

For injunction to restrain trespass by holder of bill of sale from tenant after the expiration of the tenancy, see Smith v. Brown, 48 L. J. Ch. 694,

For injunction against highway board for trespassing on land of Plt for the purpose of clearing out a "dumb well," ie., a well into which water from the highway flowed, and thence percolated into the soil, see Croft v. Rickmansworth Highway Board, 39 Ch. D. 272, C. A., and see Croysdale v. Sunbury-on-Thames Urban District Council, (1898) 2 Ch. 515.

As to right of local authority to repair a public well on private property, see Smith v. Archibald, 5 App. Ca. (Sc.) 489; and Public Health Act, 1875, 8. 64.

11. Injunction against removing Shingle so as to endanger

Neighbour's Land.

THIS action coming on for trial &c. in the presence of counsel for the Informant, the Plt, and the Deft, Let the Deft, his agents, servants and workmen, be perpetually restrained from so digging or removing any shingle from the natural barrier of shingle protecting the land situate at or near Felixstowe Ferry, which forms the site of and the enclosure surrounding the Martello Tower known as &c., and from authorizing any such shingle to be so digged or removed as to endanger the said. land or expose the same to inroads of the sea.-See A. G. and Secretary of State for War v. Tomline, Fry, J., 19 May, 1879, A. 1354.

NOTES.

Before the Jud. Acts, Courts of Equity did not, except in the case of destructive waste, interfere to restrain a legal trespass, though by the C. L. P. Act, 1854, s. 82, in an action of trespass (at law) Plt might obtain an injunction to restrain the repetition or continuance of the wrongful act: see Stocker v. Planet Bldg. Soc., 27 W. R. 793, 794. But by the Jud. Act, 1873, s. 25 (8), an injunction to prevent any threatened or apprehended waste or trespass "may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both, or by either of the parties, are legal or equitable."

The distinctions formerly taken between the cases where the Deft committing the acts of trespass or spoliation complained of was or was not in possession, and claimed under any colour of title, or was a mere stranger (see Stanford v. Hurlstone, 9 Ch. 116; Lowndes v. Bettle, 12 W. R. 399; 4 N. R. 609; 33 L. J. Ch. 45; E. Talbot v. Scott, 4 K. & J. 96; Haigh v. Jaggar, 2 Coll. 231; Shaw v. Earl of Jersey, 4 C. P. D. 359, C. A.), no longer

exist.

In the case of trespass by tipping spoil from a colliery upon a neighbour's land, the amount of the damages is not limited by the diminution in value of the land, but is determined according to the principle of the wayleave cases (see Martin v. Porter, 3 M. & W. 351; Jeyne v. Vivian, 6 Ch. 742; Phillips v. Homfray, 6 Ch. 770), the value of the land actually covered with spoil for the purpose for which it is used by the wrongdoers being taken into account: Whitwham v. Westminster Brymbo Coal and Coke Co., (1896) 2 Ch. 538, C. A.; S. C., (1894) 6 Ch. 1.

Even under the old practice continued acts of trespass or of irreparable injury to property would be restrained by perpetual injunction, without compelling the party injured to obtain verdicts at common law: Goodson v. Richardson, 9 Ch. 221; Allen v. Martin, 20 Eq. 462; L. & N. W. Ry, Co. v. Lanc., &c. Ry. Co., 4 Eq. 174; Ardley v. St. Pancras Guardians, 39 L. J. Ch. 871; and see Turner v. Ringwood Highway Board, 9 Eq. 418; Kerr, 117, &c.