(602.)

ALDIN v. LATIMER CLARK & CO.

[MAY 1ST, 1894.]

Landlord and tenant-Lease-Covenant for quiet enjoyment-Derogation from grant.

The grantor of land to be used for a particular purpose is under an obligation to abstain from doing anything on adjoining property belonging to him which would prevent the land from being used for the purpose for which it was granted.-(T. L. R., Q. B. D., vol. x., p. 452.)

(603.)

LEMMON v. WEBB.

[MAY 8TH, 1864.]

Nuisance-Remedies-Abatement-Notice-Overhanging Branches. (For a previous stage of this Case, see page 503, ante.)

A landowner may, without notice, remove so much of the branches. of his neighbour's trees as overhang his land.

Lord Justice LINDLEY read his judgment as follows:-The plaintiff and the defendant in this case are adjoining landowners. Some old trees situate on the plaintiff's land had branches which projected over the defendant's land. The defendant cut off so much of these branches as projected over his land, and he did so without going on to the defendant's land, and without previous notice to him. The question is whether the defendant was justified in so doing. Mr. Justice Kekewich thought not, and gave the plaintiff judgment for £5 and costs, and from this judgment the defendant has appealed. There is some controversy as to whether the defendant did not cut rather more than he himself says he did and more than he seeks to justify. But the evidence is clear that he certainly did not intend to cut more than so much of the branches as overhung his land; and the evidence is not sufficient to prove that he did in fact cut more. Having noticed this matter, I pass it over without further comment, for the action was not brought for such a trumpery purpose as to obtain damages for the wrongful cutting of two or three inches too much. The action was brought to obtain a declaration that the defendant had no right to cut the branches at all, or, at all events, no right to cut them without previous notice to the plaintiff and a request to him to cut them and a non-compliance by the plaintiff with that request. It was contended on behalf of the plaintiff that, having regard to the age of the trees and of the projecting branches, he had acquired a right to the exclusive

possession of so much of the space above the defendant's soil as the branches actually filled, and that either under the Statute of Limitations or by prescription the plaintiff had a right to keep the branches when they had grown. It was contended that if a man erected on his own land something which projected over his neighbour's land, and it remained undisturbed for a sufficient length of time, his neighbour could not remove it nor maintain any action in respect of it. This is true. But to plant a tree on one's own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case, and it is plain that Lord Ellenborough did not think it would (see Pickering v. Rudd, 4 Campbell, 219). According to our law the owner of a tree which gradually grows over his neighbour's land is not regarded as insensibly and by slow degrees acquiring a title to the space into which its branches gradually grow. This is the view taken in the third edition of "Gale on Easements," to which reference will be made presently. Considering that no title is acquired to the space occupied by new wood, and that new wood not only lengthens but thickens old wood, and that new wood gradually formed over old wood cannot practically be removed as it grows, and considering the flexibility of branches and their constant motion, it is plain that the analogy sought to be established between an artificial building or projection hanging over a man's land and a branch of a tree is not sufficiently close to serve any useful purpose. The argument to which I am referring had the charm of novelty, but it is quite inconsistent with the authorities to which I will refer presently, and no Court can introduce by judicial decision a perfectly new mode of acquiring a title to land or to a portion of the space above it. The right of an owner of land to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries-see Bro. Ab. Nusans, 28; Norris v. Baker (1 Ro. Rep. 393); Pickering v. Rudd (4 Camp., 219 and 1 Starkie, N P., 56); Crowhurst v. Burial Board of Amersham (4 Ex. Div., 5)-and there is no trace of the age of the tree or its branches being a material circumstance for consideration. Nor did Mr. Justice Kekewich intimate any doubt upon the law up to this point. He, however, held that notice ought to be given to the owner of the tree before it was interfered with, and the real question is whether notice is required by law. The authorities to which I have referred do not allude to the necessity of notice. In Pickering v. Rudd, which was an action for cutting the plaintiff's Virginian creeper, the plea contained no averment of notice, and the plaintiff did not demur, but now assigned and alleged an excessive cutting. Lord Ellenborough held that the only question was whether the defendant had exceeded his right by cutting too much. Again, in "Chitty on Pleading," sixth edition, vol. 3, a form of a plea justifying the lopping of overhanging branches is given, and there is no averment of notice to the owner of the tree. In the 7th edition, vol. 3, page 364, such an averment

is introduced, and reference is made to Jones v. Williams (11 M. and W., 176). Jones v. Williams was not a case of cutting trees, but it is the leading authority on the right to abate nuisances without notice; and it was decided that a person who suffers from a nuisance on another person's land can enter upon that land and abate that nuisance without notice if the person in possession of the land himself created the nuisance or in case of emergency, but that in other cases notice to the person in possession and a request to him to abate the nuisance and non-compliance with that request are necessary to justify the entry and the abatement of the nuisance by the person aggrieved by it. This is what the case decided, and so far the decision only applies to what one man may do on another man's land; it does not show what a man may or may not do on his own land. But in Jones v. Williams Baron Parke, who delivered the judgment of the Court, referred to a case in Jenkins, 260, and to Penruddock's Case (5 Coke, 100) as authorities for the proposition that an owner of land cannot without notice remove the overhanging eaves of a neighbour's house erected by a former owner through whom the neighbour had acquired title by feoffment. The reason of this doctrine is not explained. But, assuming it to be correct as regards an overhanging house or eaves, it does not follow that it applies to the overhanging branches of a tree. The judgment of Mr. Justice Best in Earl of Lonsdale v. Nelson (2 B. and Cr., 311) is explicit that overhanging trees may be lopped by the owner of land over which they hang without notice. Mr. Justice Best says the right so to lop them is an exception to the general rule which requires notice before a nuisance not created by the owner of what creates it can be abated by a person injured by it. He is not alluding

to a case of emergency, for in such a case no notice need ever be given. He refers to such cases afterwards. His Lordship read passages from the judgment of Mr. Justice Best and continued,- What I have above said respecting the right to cut branches is equally true with respect to the right to cut roots (see Gale on Easements, 3rd Edition, pp. 419-420). His Lordship read an extract from that work and continued,―This passage has the authority of the late Mr. Justice Willes, who edited the edition from which I have read the foregoing extract. The law on the subject is, in my opinion, as follows:-The owner of a tree has no right to prevent a person lawfully in possession of land into or over which its roots or branches have grown from cutting away so much of them as projects into or over his land, and the owner of the tree is not entitled to notice unless his land is entered in order to effect such cutting. However old the roots or branches may be, they may be cut without notice, subject to the same condition. The right of an owner or occupier of land to free it from such obstructions is not restricted by the necessity of giving notice so long as he confines himself and his operations to his own land, including the space vertically above and below its surface. The defendant contended that he was justified in cutting the plaintiff's trees because they were in imminent danger of falling, but this is not proved, and my judgment is not based on grounds of urgency. The appeal, therefore, must be allowed, and the

appellant must have the costs of the appeal, and judgment must be entered for the defendant; but, having regard to the obscurity of the law as to notice and to the very unneighbourly conduct of the defendant, there will be no order as to the costs of the action.

Lords Justices LOPES and KAY read judgments to the same effect. -(T. L. R., C. A., vol. x., p. 467.)

(604.)

THE MAYOR OF BRADFORD v. PICKLES.

MAY 9TH, 1894.]

Watercourse-Subterranean Water-Water Authority-Diversion of Water Supply by adjoining Owner of Land—Injunction.

This was an action brought by the corporation of Bradford, as the water authority of their district, to restrain the defendant, the owner of land adjoining a place called Many Wells, the source of some of the water supply used by the corporation, from doing certain work, under the guise of preparing to raise stone, so as to divert the corporation's water supply before it reaches the defined channels through which the supply flows into a reservoir called the Hewenden reservoir. The case was heard on motion treated as the trial of the action in July last. It occupied many days and involved important questions on the construction of local Acts of Parliament and on the general law relating to rights in underground water. The springs and some of the land on which the plaintiffs' waterworks in question are situated were acquired by the predecessors in title, a waterworks company, incorporated by Act of Parliament, passed in the year 1842. The water is conducted from an old watering-place and from springs at other spots by means of artificial conduits to a reservoir, from which it is distributed to parts of the plaintiffs' district. In 1854 a new waterworks company was incorporated by Act of Parliament who took over under their Act the waterworks at Many Wells. In the same year another Act was passed, under which the corporation took over the waterworks at Many Wells. By section 233 of the Act of 1842, the first company were authorised to divert and take the water from the springs at Many Wells. Section 234 contained provisions prohibiting any person other than the company from doing acts in terms which were substantially re-enacted by section 42 of the Act of 1854 in the following terms:"It shall not be lawful for any person other than the company to divert, "alter, or appropriate in any other manner than by law they may be legally entitled any of the waters supplying or flowing from certain streams and springs called Many Wells arising or flowing in and through a certain farm called Trooper or Many Wells Farm in the "township of Wilsden in the parish of Bradford, or to sink any well "or pit or do any act, matter, or thing whereby the waters of the said

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springs might be drawn off or diminished in quantity; and if any person shall illegally divert, alter, or appropriate the said waters or any part thereof or sink any such well or pit or shall do any such “act, matter, or thing whereby the said waters may be drawn off or "diminished in quantity, and shall not immediately on being required so to do by the company repair the injury done by him so as to "restore the said springs and the waters thereof to the state in which they were before such illegal act as aforesaid, he shall forfeit to the company any sum not exceeding £5 for every day during which the "said supply of water shall be diverted or diminished by reason of any "work done or act performed by or by the authority of such person "in addition to the damage which the company may sustain by reason "of their supply of water being diminished." The defendant's farm was on higher ground than Many Wells. It seems that water is held in the sandstone formation under the defendant's land between two more or less impervious faults. The defendant had begun to construct certain shafts, and intended to tunnel through the faults for the purpose of draining the water from his stone with the alleged object of raising flag and other valuable stone. The effect of his so doing would be to deprive the plaintiffs of their water. They sued him to restrain his so doing. The plaintiffs contended that the defendant was prohibited by Act of Parliament from diverting the water in the manner proposed, both by the provisions of the special Act set out above and also by general provisions contained in the Waterworks Clauses Act. They further maintained that the defendant was not acting bonâ fide; that he could not profitably raise stone, if there were valuable stone on his land, in the way proposed; and that his object was to extract payment from the plaintiffs to buy him off. On the part of the defendant it was contended that there was no enactment to take away his ordinary legal right to divert the underground water; that he was acting bona fide; but that, even if he were not, he had as owner the right to divert the water while it was flowing in undefined channels.

Mr. Justice NORTH gave judgment. After having stated the history of the waterworks and the other facts which led up to the proceedings, he said,This being the conclusion of fact at which I have arrived as the result of the evidence given at a very protracted trial, it remains to be considered how far the defendant is interfering with the plaintiffs' legal rights. In my opinion, what the defendant is proposing to do is forbidden by section 234 of the Act of 1842, and by section 49 of the Act of 1854, which now takes the place of the former section. The defendant is doing an act or thing by which the water of the springs will be drawn off or diminished in quantity, and not merely diminished, but wholly abstracted. It is said that the defendant is only forbidden by that section from diverting, altering, or appropriating the water in question by or in any other manner than he is legally entitled to do, and that, as he is legally entitled to drain his own land in order to get his stone, diversion for that purpose is not forbidden. But that argument ignores and deprives of meaning the subsequent part of the section, which goes on to make something more unlawful than is