46

66

sixty years from the 25th of December, 1867, of four houses on the south side of a street in London. The street was thirty-one feet wide. At the date of the leases there were on the north side of the street, opposite to the plaintiffs' houses, four old houses, also belonging to the Commissioners, which were thirty and a half feet in height. The plaintiffs' houses were nearly forty-four feet in height. Each of the plaintiffs' leases contained a declaration that "notwithstanding anything herein contained, the lessors shall have power, without obtaining any consent from, or making any compensation to, the lessee, to deal as they may think fit with any of the premises adjoining or contiguous "to the hereditaments hereby demised, and to erect, or suffer to be "erected, on such adjoining or contiguous premises, any buildings whatsoever, whether such buildings shall or shall not affect or dimi"nish the light or air which may now, or at any time during the term “hereby granted, be enjoyed by the lessee, or the tenants or occupiers "of the hereditaments hereby demised." The leases provided that "the "word lessors' shall be taken to mean and include the Ecclesiastical "Commissioners, their successors and assigns, and other the reversioner " or reversioners for the time being of the premises, so far as the same will admit, unless the context or nature of the case may require a "different construction."

46

From the date of the leases, until the building by the defendant which is about to be stated, a period of more than twenty years, no alteration was made in the houses opposite the plaintiffs' houses. On the 19th of July, 1892, an agreement was entered into between the Commissioners and the defendant, by which, in consideration of his pulling down and rebuilding the four old houses opposite the plaintiffs' houses, in accordance with plans to be approved by the Commissioners, they agreed to grant to the defendant leases of the sites of the old houses and the buildings to be erected thereon. In pursuance of this agreement the defendant pulled down the old houses, and was, with the approval of the Commissioners, building new ones, which had already reached a height of fifty-three and a half feet, and were intended to be, when completed, about five or six feet higher. It was admitted that the new buildings would obstruct the plaintiffs' light :

Held, (1) that the above clause in the plaintiffs' leases prevented them from acquiring a right to light under sect. 3 of the Prescription Act; (2) that the plaintiffs' leases and the defendant's agreement respectively passed by implication the subsoil of the street, usque ad medium filum vice (subject to the rights of the local authority in the surface of the street), and that therefore the defendant's premises were "adjoining or contiguous" to those of the plaintiffs; (3) that the defendant was an "assign of the benefit of the agreement between the Commissioners and the plaintiffs:

Held, therefore, that the defendant was entitled to build so as to obstruct the plaintiffs' lights.-(L.R. [1893 ̧ 3 Ch., p. 439.)

BB

(553.)

[IN THE COURT OF APPEAL.]

SIMMONDS v. HEATH.

[OCTOBER 24TH, 1893.]

Tithe-Extraordinary Tithe Rent-charge, Charge in lieu of—Hop Ground forming Part of Farm-Sale of Farm in Portions-Hop Ground only Chargeable-Extraordinary Tithe Redemption Act, 1886 (49 d 50 Vict. c. 54), ss. 1-4.

By the Extraordinary Tithe Redemption Act, 1886, after reciting in the preamble that by the Acts relating to the commutation of tithes power is given to impose an "extraordinary charge" on hop grounds, orchards, fruit plantations, and market gardens, it is provided (s. 2) that the Land Commissioners for England shall "ascertain in each "parish in England and Wales and certify the capital value of the extraordinary charge on each farm, or, where not a farm, on each "parcel of land, in respect of which the said charge is payable at the "date of the passing of this Act," and (s. 4, sub-s. 1) that "land in "respect of which at the date of the passing of this Act extraordinary charge is payable shall, so soon as the capital value of the said charge "shall have been certified under the provisions of this Act, be charged "with the payment of an annual rent-charge equal to four per centum on such capital value, in lieu of the extraordinary charge . . . such "rent-charge to be a charge upon the particular farm or parcel of land "in respect of which the same has been assessed":

Held, that the rent-charge under the Act is only chargeable on land in respect of which at the date of the passing of the Act extraordinary charge was payable, and, therefore, where part only of a farm was cultivated, and chargeable with extraordinary charge, as hop ground at the date of the passing of the Act, the whole farm could not be made chargeable with such rent-charge under the Act.-(L.R. [1894] 1 Q.B., p. 29.)

(554.)

IVES AND BARKER v. WILLANS.

[NOVEMBER 3RD, 1893.]

Arbitration-Action-Staying Proceedings-Statement of Claim, Requiring delivery of─"Step in Proceedings "—Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4.

A" step in the proceedings" in sect. 4 of the Arbitration Act, 1889, means some application to the Court by summons or motion, and does not include an application by letter or notice from one party to another, or by correspondence between their respective solicitors. Accordingly,

where a defendant to an action relating to a matter agreed by the parties to be referred to arbitration has, under Rules of Supreme Court, 1883, Order xx., rule 1 (b), given notice that he requires the delivery of a statement of claim, he is not thereby precluded from applying, under the section, to stay the proceedings in the action, such a notice not being a "6 step in the proceedings" within that section.-(L.R. [1894] 1 Ch., p. 68.)

(555.)

STROUD, APPELLANT, v. WANDSWORTH DISTRICT BOARD OF WORKS, RESPONDENTS.

[NOVEMBER 10TH, 1893.]

Metropolis-Management Acts-Repair of Carriage Road-Necessary Works of Repair—Apportionment and Recovery of Expenses— Question as to Necessity of Works-Right of Local Authority to decide-Metropolis Management Amendment Act, 1890 (53 & 54 Vict. c. 66), s. 3.

Under s. 3 of the Metropolis Management Amendment Act, 1890' which empowers vestries or district boards to execute any necessary works of repair upon carriage roads, and to apportion and recover the expenses, it is for the vestry or district board to decide as to the necessity of the works, and they are not bound to prove such necessity to the satisfaction of the tribunal before which they seek to recover the expenses. (L.R. [1894] 1 Q.B., p. 64.)

(556.)

[IN THE COURT OF APPEAL.]

ETHERLEY GRANGE COAL COMPANY (LIMITED), APPS.; AUCKLAND DISTRICT HIGHWAY BOARD, RESPS.

[NOVEMBER 14TH, 1893.]

Highway-Repairs-" Extraordinary traffic "-Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict., c. 77), s. 23. Hill v. Thomas (9 T.L.R., 647, and 1893, 2 Q.B., 333) followed.

(For a previous stage of this Case, see p. 254, ante.)

This was a case stated by justices for the county of Durham, under 42 and 43 Vict., c. 49, section 33, and raised the question of extraordinary traffic, under the Highways and Locomotives Act, 1878. The appellants were summoned upon the complaint of the respondents for that between March 25th, 1890, and March 25th, 1892, within the Auckland Highway District, they did cause extraordinary traffic and excessive weight to be carried over the highway leading from Etherley

Grange Colliery to Fylands Bridge Brick Yard railway siding, whereby damage was caused to the highway, and extraordinary expenses incurred thereby. It appeared from the case that the coal trade was the staple trade of the district. The appellants opened the Etherley Grange Colliery in 1890, and they carted coal from their colliery along the road and during the period in question to the railway siding, and still continued to do so. From 1887 to 1890 the repairs of the road cost from £10 to £15 per mile per annum; and from March 25th, 1890, to March 25th, 1892, the repairs of the part of the road in question did not cost less than £45 per mile per annum, the cost of repairing the portion of the road over which the appellants' carts did not travel for the same period not costing more than £15 per mile per annum. The cost of repairing the highways in the neighbourhood was not more than £20 per mile per annum. The appellants' carts travelling over the road to the railway siding were loaded with coals to the amount of 20 cwt. to 25 cwt., being about 7 cwt. more than would be put on an ordinary Landsale coal cart. The road was a mere lane, the traffic over which prior to 1890 was light, and chiefly agricultural, consisting of farmers' and tradesmen's carts and a little Landsale coal traffic, and very little labour or materials were employed in repairing the road up to 1890, but since 1890 large quantities of stone were laid on the road. The appellants during the year ending March 25th, 1891, carted from their colliery to the railway siding 10,532 tons of coal, and during the following year 9,490 tons. The appellants proved that for the last 80 years the road had been used for the purpose of carrying Landsale coal from several collieries, and that other coal owners in the respondents' district carried coals in carts over other roads to railway stations. The justices found as a fact (so far as material to this report) that the appellants' traffic on the road was extraordinary traffic and the weight excessive, and they ordered the appellants to pay to the respondents £25, being the amount of the expenses incurred by the respondents, by reason of the excessive traffic and weight. The question for the opinion of the Court was whether, under the circumstances, the justices had power in law to make the order. The Queen's Bench Division (the Lord Chief Justice and Mr. Justice Cave) affirmed the order of the justices, but gave leave to appeal. The colliery company appealed.

The MASTER OF THE ROLLS said that the case was governed by Hill v. Thomas. It was sought to introduce an exception into that decision namely, that, though the traffic on the particular road was of such an extent and such a character as to be extraordinary traffic on that road, yet it was not to be held to be extraordinary traffic on that road if what was done upon that road was done by other people upon other roads in the district. That exception would be directly in the teeth of Hill v. Thomas. That case decided that the particular road in question must be looked at, and the traffic would not be the less extraordinary because the same thing was done upon other roads in the neighbourhood.

The LORDS JUSTICES concurred.--(T. I.. R., vol. x., p. 62.)

"Professional Notes," pp. 178, 278, ante.

(557.)

RE THOMAS SMITH. WHITTINGDALE, TRUSTEE, v. EARL OF DENBIGH.

[NOVEMBER 14TH, 1892.]

(Communicated by Mr. H. H. CAVE, Fellow.)

The bankrupt, Thomas Smith, was tenant of a farm at Monks Kirby, Warwickshire, under a lease from year to year granted by the late Lord Denbigh, and which lease contained the ordinary clause giving the landlord power to re-enter and terminate the lease on the bankruptcy of the tenant.

In September 1891 Smith filed his petition in the Leicester Bankruptcy Court, and on the 14th October following, the landlord entered into possession of the farm and premises under the forfeiture clause in the lease, the bankrupt being retained as caretaker. At that date the corn was all cut and partly stacked, but the potatoes and other root crops were in the ground.

The landlord claimed under the forfeiture to be entitled, without payment, to the fixtures and crops not severed, and disputed the right of the trustee to be paid for any tenant right, but agreed to pay for the hay and straw.

The hay and straw were valued at £130 1s., and this sum Lord Denbigh admitted he was liable to pay to the trustee. The trustee, however, claimed a further sum of £138 6s. 4d. for the value of the tenant-right, tillages, improvements, and fixtures. As this claim was not conceded, the trustee, Whittingdale, applied by motion to the Leicester County Court on the 19th July, 1892, for an order that Lord Denbigh should pay him the total sum of £268 7s. 4d., and not £130 1s. as admitted.

The motion was heard before Judge Hooper, who held that forfeiture of the lease occurred on the landlord's re-entry, and that such forfeiture deprived the tenant or his trustee of tenant-right under the terms of the lease.

The question was then raised whether the trustee was entitled to any tenant-right according to the custom of the country. In support of this contention Mr. Whittingdale, Mr. W. F. Pridmore, and Mr. H. E. Hicks, all valuers, gave evidence to the effect that in their opinion bankruptcy made no difference to the question whether the outgoing tenant should be paid for his tenant-right or not, but that the custom of the country was that the outgoing tenant, or his trustee, should be paid for his tenant-right by the landlord or the incoming tenant. All three valuers, however, admitted that they had never known a case like the present, where the landlord had re-entered on the farm, and the lease had been forfeited.

The County Court Judge held that the argument of Lord Denbigh's solicitor, that the trustee was not entitled to any tenant-right by custom, as the custom of the country was excluded by the lease, and