(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 hereinbefore 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.

X. made a gateway opening out of that part of his land now held by the plaintiff, and a track from it to the new road over the intervening strip, and that gateway and track had been used from the plaintiff's land ever since.

The plaintiff's land had for some years been fenced in along the intervening strip, in which the gateway was the only opening. Neither the plaintiff nor any of his predecessors had occasion to open out any other gate or to make any other track into the road. The defendant, who represented T., apprehending, however, that an attempt might be made to open out another gate, erected posts and rails along the intervening strip in such a manner as to prevent exit from the plaintiff's land at any but the accustomed place.

Held, that, in the absence of anything in the original grant expressly limiting the grantee to one line of access, or to access only at the points, if any, where his land actually adjoined the new way, and of anything to show that the right as claimed was unreasonable or destructive of the object of the grant, no obligation to elect one particular line of access could be applied.

Held, also, that there had been no manifestation of intention to abandon the easement.-(L.T., Ch.D., vol. lxviii., N.S., p. 671.)

(525.)

HOWITT v. EARL OF HARRINGTON.

[APRIL 13TH, 15TH, AND 18TH, 1893.]

Copyhold-Quit Rents-Extinguishment by Non-payment-Statute of Limitations (3 & 4 Will. 4, c. 27), ss. 2, 3-Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 1.

A quit rent payable in respect of a copyhold tenement is liable to be barred by non-payment for twelve years, by the operation of the Statute of Limitations (3 & 4 Will. 4, c. 27) and the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57).-(L.T., Ch.D., vol. lxviii, N S., p. 703.)

(526.)

BRIGHTON MARINE PALACE AND PIER, LIMITED, v.

WOODHOUSE.

[APRIL 14TH, 1893.]

Practice-Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4

Step in the Proceedings "-Rules of Supreme Court, 1883, Order lxiv., r. 8Enlargement of Time by Consent.

An application by letter, under Order lxiv., rule 8, for extension of time to put in a statement of defence, is not taking a step in the proceedings within the meaning of sect. 4 of the Arbitration Act, 1889.(L. R. (1893) 2 Ch. p. 486.)

(527.)

JONES v. THE CONWAY AND COLWYN BAY JOINT WATER SUPPLY BOARD.

[APRIL 20TH, 1893.]

(For another stage of this Case, see page 263 infra.)

Public Health-Water Supply-Joint Board-Local Authority Supplying Water-Powers to lay Pipes-Powers Exercisable Outside District--Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 16, 32, 33, 34, 51, 53, 54, 279, 285.

The C. and C. B. Joint Water Supply Board were constituted by a provisional order of the Local Government Board, dated 10th June, 1891, for the purpose of supplying water to a united district formed by the union of the districts of two urban sanitary authorities, and part of that of an adjoining rural sanitary authority. The order, which was confirmed by Act of Parliament on the 5th August, 1891, provided that the joint board should have all the powers, duties, and authorities of a local or urban sanitary authority in relation to water supply. The joint board was intended to procure a common supply of water from a lake at some distance, which was to be distributed by the constituent local sanitary authorities as before. The Board had commenced their works, but at the date of the notice hereinafter mentioned they were not actually supplying any water, the only water supply in the district being provided by the constituent authorities.

In March 1892 an inquiry was held under sect. 53 of the Public Health Act as to the construction of a reservoir. This was approved, and the works were begun.

In February 1893 the surveyor of the board made a report that it was necessary to carry the pipes through the plaintiff's land, which was situated wholly outside the district of the joint board.

On the 28th February, 1893, the joint board gave the plaintiff notice of their surveyor's report, and that they intended to enter upon his land. The plaintiff objected, but the board on the 20th March entered and commenced laying their pipes.

The plaintiff now moved for an injunction to restrain them.

Held, that the words "where a local authority supply water" in sect. 54 apply to an authority which has undertaken the water supply though it has not actually begun to supply it, and therefore the joint board had the powers given them by that section; but that sect. 285 must be read merely as preventing acts done without the board's district being ultra vires, not as making the district of an adjoining board, who consented, the same for all purposes as the board's own district, and that, therefore, the board could only exercise the powers given by sect. 54 in the manner required by sects. 32 to 34, not in that required by sect. 16. The board were therefore restrained from entering on the plaintiff's land until they had complied with the Act.(L.T., Ch. D., vol. lxviii., N.S., p. 744.)

(528.)

RE THE TITHE ACT, 1891; JONES v. POTTS. SAME v. COOK.

APRIL 26TH AND MAY 6TH, 1893.]

Tithe Act, 1891 (54 l'ict. c. 8), ss. 6, 7-The Interpretation Act, 1889 (52 d 53 Vict. c. 63), s. 38, sub-sect. 2-Rates-Payment of, by the tenant-Allowance of, by the landlord-Deduction of, from the

Tithe.

The object and effect of the Tithe Act, 1891, is to introduce a new procedure for the recovery of rates on tithes, which are no longer liable to be extracted from the tenant of the land out of which the tithe issues, even in the case of rates which had become due before the passing of the Act on the 26th March, 1891; and the Interpretation Act, 1889, has no application to such a case so as to keep alive the repealed procedure.

A landlord cannot deduct from the tithe, payable by him to the titheowner, the amount of rates actually paid by the tenant and allowed to him in his rent, even though the rates were due in respect of tithes before the passing of the Tithe Act, 1891.

Appeal from the decision of a judge of a County Court.

May 6. The written judgment of the Court (Day and Bruce, JJ.) was delivered by

BRUCE, J.--In this case the owner of a tithe rent-charge claims payment of the rent-charge for the period of six months, which became payable on the 1st July, 1892, and amounted to £85 4s. 2d. Of this, £55 4s. 2d. has been paid, and the dispute arises in respect of a balance of £30, which the defendant, who is the owner of the land out of which the rent-charge issues, claims to deduct in respect of rates which have been paid by the occupiers. It is difficult to gather from the notes of the learned judge of the County Court when these rates accrued due; but it is admitted that they accrued due some time prior to the 26th March, 1891, the day on which the Tithe Act of 1891 came into operation. It seems probable from what was said to us in the course of the argument that the greater portion of these rates accrued due long before this last date. For some unexplained reason they were allowed to remain unpaid by the occupiers, and no proceedings were taken to enforce payment under sect. 70 of the Tithes Commutation Act, 1836 (6 & 7 Vict. Will. 4, c. 71), or under sect. 8 of the Tithe Act Amendment Act, 1837 (1 Vict. c. 69), until June 1892, when some notices, the terms of which do not appear from the judge's notes, were served upon the occupiers. These notices, we gather, are assumed to have been given in accordance with sect. 8 of the Tithe Act Amendment Act, 1837. The broad question for us to decide is, whether the new procedure for the enforcement of tithe rent-charges, introduced by the Act of 1891, is to be construed as subject to the machinery of the older Acts. We think that it was intended under the Act of 1891 to introduce an entirely new procedure for the recovery of tithe rent-charges, and,