(598.)

[IN THE COURT OF APPEAL.]

IN RE AN ARBITRATION BETWEEN THE LONDON COUNTY COUNCIL AND THE LONDON STREET TRAMWAYS COMPANY.

[APRIL 12TH, 1894.]

Tramway—Purchase of—Value—Arbitration—London Street Tramways Act, 1870 (33 & 34 Vict., c. 171), s. 44—Construction.

(For a previous stage of this Case, see page 400 ante.)

When certain tramways were being taken over by the London County Council under s. 44 of the London Street Tramways Act, 1870, the arbitrator's award fixed the value as being the cost of construction, less depreciation.

Held, reversing the decision of the Divisional Court, that the arbitrator had correctly fixed the value under the section.-(T. L. R., C. A., vol. x., p. 405.)

(599.)

HEATH AND OTHERS v. THE OVERSEERS OF THE POOR OF THE TOWNSHIP OF WEAVERHAM.

[APRIL 13TH, 1894.]

Highway-Exemption from Highway Rate-Liability to repair ratione tenuræ― Alteration of Highway-Highway Act, 1835 (5 & 6 Wm. 4, c. 50), s. 33.

The appellants had from time immemorial repaired a certain highway ratione tenure, and had in consequence been exempt from contributing to the repair of other highways in the district. In 1782 the highway was placed under the control of turnpike trustees, who materially altered its nature and course; but on the expiration of the turnpike trust in 1862 the appellants, believing that they were still liable to do so, continued to repair the highway. In 1866 the Court of Queen's Bench decided (Law Rep. 1 Q.B. 218) that the appellants were not liable to be rated for the repair of highways in the district; but the fact of the alteration of the highway by the turnpike trustees was not brought to the attention of the Court. In 1892 the highway was declared a main road, and the appellants thereupon ceased to repair it. The question having arisen whether they were liable to contribute to a rate for the repair of the highways in the district:

Held, that their exemption from such a rate depended on their liability to repair the highway ratione tenuræ, and that both had come

to an end on the alteration of the highway by the turnpike trustees; and, further, that the former decision of the Queen's Bench did not make the matter res judicata, since the material fact of the alteration of the highway had not been brought to the attention of the Court.(L. R. [1894] 2 Q. B., p. 108.)

(600.)

THE QUEEN v. MEAD AND ANOTHER.

[APRIL 13TH AND 14TH, 1894.]

Nuisance-Procedure where Owner of Premises is not known or cannot be found-Summons, Form of-Service-Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s. 128.

Where a complaint to a petty sessional court is made by a sanitary authority under the Public Health (London) Act, 1891, alleging that a nuisance exists on premises caused by the act, default, or sufferance of the owner, a summons to answer the matter of such complaint is good in form, though it be addressed to the "owner" of the premises (describing them) merely, without further name or description.

Such a summons is a "document" within the meaning of the words "notice, order, or other document" in s. 128 of the Public Health (London) Act, 1891, and may therefore be properly served by delivering it to some person on the premises.-(L. R. [1894] 2 Q. B., p. 124.)

(601.)

PONTING v. NOAKES.

[APRIL 26TH, 1894.]

Negligence-Dangerous premises-Owner of land-Yew tree on boundary -Death of horse through eating yew tree-Liability-"Fletcher v. Rylands" (L. R., 3 H. L., 330).

The plaintiff and defendant owned adjoining fields. On the defendant's land, near the fence, grew a yew tree, the branches of which projected over the ditch, but not beyond.

A colt, the plaintiff's, having eaten of the yew tree, died in consequence.

Held, that the defendant was not liable, for there was no duty on him to prevent the colt having access to the tree; and, further, that the principle of Fletcher v. Rylands did not apply.-(T. L. R., Q. B. D., vol. x., p. 444.)

(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