SECTION IV.

LAW CASES.*

(518.)

RAPIER v. LONDON TRAMWAYS COMPANY.

[NOVEMBER 1ST, 2ND, 3RD, 8TH, AND 9TH, 1892; AND MAY 12TH 15TH, AND 16TH, 1893.]

Nuisance from Smell-Tramway Company-Stables-Statutory Powers -Noise-Abating Nuisance before Trial-Injunction-Damages. The defendants were a tramway company, who were empowered by their Act to lay down and construct two lines of tramway according to deposited plans, together with the works and convenience connected therewith. The Act gave no compulsory powers for taking lands, and made no special mention of building stables. The defendants constructed the lines, and built some large blocks of stables near the plaintiff's house for the horses employed in drawing the cars. The plaintiff complained of the smell caused by the stables, and brought an action for an injunction to restrain the defendants from using the stables so as to cause a nuisance :

Held (affirming the decision of Kekewich, J.), that although horses were necessary for the working of the tramways, the company were not justified by their statutory powers in using the stables so as to be a nuisance to their neighbours, and that it was no sufficient defence to say that they had taken all reasonable care to prevent it.-(L.R. [1893] 2 Ch., p. 518.)

(519.)

BAKER v. WILLIAMS.

[JANUARY 27TH, 1893.]

Vendor and Purchaser-Agreement for Purchase of Property-Decree for Specific Performance, with Declaration that Plaintiff entitled to lien on Property-Rescission of Agreement.

A vendor of freehold property obtained a decree for specific performance of the contract entered into by him for the sale of the property, which decree contained a declaration that he was entitled to a lien upon

*This Section is intended primarily as a clue only to Reported Cases.

the property in respect of the balance of purchase money due to him from the purchaser, with liberty to apply to enforce such lien in case of default on the part of the purchaser in payment of such balance. The purchaser made default in payment of the balance, and the vendor moved for a rescission of the agreement in lieu of attempting to enforce the lien.

Held (following the unreported case of Hudson v. Williams (1891), H. 1622), that the agreement might be rescinded.-(L.T., Ch.D., vol. lxviii., N.S., p. 634.)

(520.)

THE ETHERLEY GRANGE COAL COMPANY, LIMITED, APPELLANTS, v. THE AUCKLAND DISTRICT HIGHWAY BOARD, RESPONDENTS.

Highways-Extraordinary Traffic-Excessive Weight-Extraordinary Expenses-Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vic. c. 77), s. 23.

[FEBRUARY 3RD, 6TH, AND MAY 19TH, 1893.]

The appellants were summoned for having caused extraordinary traffic and excessive weight to be conducted over a certain highway, whereby extraordinary expenses were incurred in repairs. The appellants carted coal from their colliery along the road in question to a railway station. Before this traffic was so conducted, the cost of repairing one portion of the road was not more than £10 per mile per annum, and of the second portion £15 per mile, but since the appellants' traffic the cost on each was not less than £45 per mile, though the cost of repairing roads in the neighbourhood did not exceed £20 per mile, and the cost of another part of the same road (on which the appellants' carts did not travel) was only £15 per mile. Owing to the loaded carts having to travel downhill, the appellants were able to, and did, load their carts excessively. Prior to the traffic in question the first portion of the road was a bye-lane, used and made up only for ordinary agricultural traffic and some light landsale coal traffic; and the second portion of the road was used and made up for the ordinary light traffic of the district, and no part of the road was made up for such traffic as the coal traffic of the appellants, though the coal trade was the staple trade of the district. The justices having found that the traffic was "extraordinary" on both portions of the road, and the weight "excessive" on the first portion, within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878:

Held (on the authority of Reg. v. Ellis and Whitebread v. The Sevenoaks Highway Board, that the justices were right in their con

clusion; that extraordinary traffic is something different from excessive weight, and that it must be extraordinary in kind as well as in degree, the comparison being made, not betweeen the use complained of and the use of other roads in the neighbourhood, but between the use complained of and the ordinary use of the same load previously.—(L.T., Q.B.D., vol. lxix., N.S., p. 286.)

(521.)

BROOME v. WENHAM.

[MARCH 8TH, 9TH, AND 16TH, 1893.]

Manor-Rights of Common-Freeholds of the Manor-Enfranchisments -Release of Seignorial Rights.

The plaintiffs were respectively the owners in fee simple of two properties in the parish of W., situated on the north side of a lane used by them as the nearest way to the village and railway station. A short distance from the plaintiffs' properties the lane became a patch of green and then forked off into two branches. The defendant was the owner of a property situated between the two branches, the southern boundary of which adjoined the patch of green with a fence between.

The defendant had attempted to inclose the patch of green adjoining the end of his property, and by so doing had interfered with one of the branches of the lane.

The plaintiffs thereupon brought an action against him, claiming an injunction to restrain him from inclosing any part of the patch of green, on the ground (inter alia) that the patch of green was waste of the manor of W., and that they had rights of common of pasture and turbary thereon. It appeared that down to 1881 the plaintiffs' properties were freeholds of the manor of W. At that date the seignory thereof was released. The plaintiffs alleged that their predecessors in title, freehold tenants of the manor, were entitled in respect of the two properties and over the wastes of the manor, including the patch of green, to rights of common of pasture and turbary thereon.

The question, however, was whether the rights claimed by the plaintiffs had not been destroyed by the deed of enfranchisement, by which the lord of the manor had released all rents and services due to him by the freeholders.

Held, that, although rights of common annexed to copyholds were extinguished on enfranchisement, there was no similar doctrine with reference to the extinguishment of rights of common on the release of seignorial rights due by the freeholders of a manor; and, accordingly, that the plaintiffs' rights of common had not been extinguished by the enfranchisement in 1881.

Held, therefore, that they were entitled to the injunction claimed.(L.T., Ch.D., vol. lxviii., N.S., p. 651.)

R

(522.)

[IN THE COURT OF APPEAL.]

HAIGH AND ANOTHER v. WEST.

APPEAL FROM THE QUEEN'S BENCH DIVISION.

[MARCH 16TH, 17TH, 18TH, AND APRIL 24TH, 1893.]

Land Title-User and Possession-Parish-Presumption of Grant to Trustees for Parish-Presumption of Enrolment-Presumption that Enrolment Unnecessary-Vesting of Land in Churchwardens and Overseers of Parish-Title by Statute of Limitations-59 Geo. 3, c. 12, s. 17-Statute of Limitations (3 & 4 Will. 4, c. 27).

The award under an Inclosure Act, passed in 1774, set out a certain lane as a highway. There was no evidence to show to whom the soil of this lane belonged before the award. From 1778 down to 1890 the pasturage on this road was let by the vestry of the parish every year to persons who paid for the hire of it. During this time neither the lord of the manor nor anyone else disputed the right of the vestry to let, or of their tenant to depasture, the lane. The money was applied to various parish purposes, but not to any ecclesiastical purpose. The lord of the manor sued the defendant for damages for trespass in depasturing the lane, and for damage done by his sheep to the hedges and adjoining land.

Held (affirming the judgment of Charles, J.), that the proper presumption was that the soil of the lane was vested in some person or persons as trustees for the parish; that it might be presumed that a grant of the lane had been enrolled, or that the grant had been made for some purpose which did not require enrolment of the deed; and that the churchwardens and overseers of the parish had acquired a title to the soil of the lane under the Statute of Limitations, subject to the public right of way.-(L.T., vol. lxix., N.S., p. 165.)

(523.)

SPENCER v. BAILEY.

[MARCH 21ST AND 22ND, 1893.]

Restrictive Covenant by Lessee with Owner of Estate-Corresponding Covenants subsequently entered into by Owner with Purchasers— Continued Liability of Owner after parting with all Interest in Estate-Right of late Owner to Enforce Original Covenant against Assignee of Lease taking with Notice.

S., an owner in fee simple of land, demised it for ninety-nine years to a lessee, who assigned it with the lessor's consent, the assignee covenanting with the lessor, "his heirs and assigns as owner for the "time being of land forming part of " the E. estate that he the assignee, his executors, administrators, and assigns, would not "for the space of

"ten years from the date thereof use or allow to be used the said premises for any trade or business other than that of a poulterer and cheesemonger." The assignee's executrix and universal legatee agreed to let the premises for three years to a tenant who agreed to use them as a cheesemonger's and poulterer's shop only. The tenant assigned his interest to B., who signed a memorandum indorsed on the agreement, agreeing to perform the covenants contained therein. He subsequently used the premises as a grocer's shop, and for the sale of wines and spirits under an off-licence. The shop in question formed one of a row of shops which had belonged to S., and each of which was limited by covenant to a particular trade, and S. on selling some of the other shops had covenanted with the purchasers that the shop now occupied by B. should not be used for the purpose for which B. was now using it. S. had subsequently disposed of all his interest in the E. estate. He now brought an action against B. for an injunction to restrain him from using the shop except as a cheesemonger's and poulterer's. The defendant contended that S. having parted with all his interest in the estate could not enforce the covenant.

Held, that though the plaintiff had parted with his interest in the estate he had still an interest in enforcing the covenant previously entered into with him as owner, inasmuch as he had, by his subsequent covenants to the same effect, made himself liable to be sued by the purchasers of the other shops in case the covenant should be infringed, and, the defendant having taken the premises with notice of the title of which the restrictive covenant formed part, the plaintiff was accordingly entitled to the injunction he asked for.-(L.T., Ch. D., vol. lxix., N.S., p. 179.)

(524.)

COOKE v. INGRAM.

[MARCH 28TH AND APRIL 11TH, 1893.]

Easement-Grant of Right of Way-Access to Road-Abandonment of Easement.

B. and T. were owners of adjoining lands, B. having a private right of way over T.'s land. In 1801, when B. was selling his land to X., the plaintiff's predecessor, it was agreed that B. should have the use of a new private road which T. had lately made on his land instead of the old way. That agreement was embodied in the conveyance made by B. to X., to which T. was for this purpose a party. B. thereby released his old right of way to T., who granted the new way to X. in these words, "to and from every or any part of the pieces or parcels of land herein before described," thus giving to X. a right to come out upon the new road at any point at which he could get access to it. The new road did not exactly skirt the boundary of that part of X.'s land now held by the plaintiff, there being at that part an intervening strip of T.'s land varying in width.