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The Attorney General v. Dalton.

of June, 1769, between James Theobald and Peter Theobald, and the Rev. Beilby Porteus, described as rector of the parish, and other persons, after reciting that the parishioners and inhabitants of the parish had elected and chosen the several persons parties of the second part to be trustees in the room and place of the former trustees, it was witnessed, that the estate was conveyed to the use of seventeen persons, named as parties of the second part, and their heirs, upon trust to manage, dispose of, and pay the rents and profits to the rector and church-wardens, to be by them disposed of for the benefit of the poor of the parish, as the rector and church-wardens should think fit and judge convenient; and it was declared and agreed, that when and as often as the trustees should be reduced to the number of five, or less, then the remaining trustees should, with all convenient speed, convey and assure the estate to such other persons as the major part of them should nominate and appoint, but so that the rector and church-wardens should be of the number, and constantly succeed. The information alleges that this indenture, so far as it purported to provide for the appointment, by the remaining trustees, of new trustees, was wholly unwarranted, and of no effect. On the 6th of January, 1782, there were seven surviving trustees, and, at a meeting of the parishioners in vestry assembled, it was reported by a committee previously appointed to examine the title deeds, that the estate was originally held by sixteen trustees, and that when such trustees were reduced to the number of five, or less, the survivors were to fill up the trust again; that the last trustees were nominated by the parishioners and inhabitants of the parish in vestry assembled; and that the trustees were then, by death or otherwise, reduced to five. It was then resolved that the vestry approve the report, and nominate as proper persons for trustees the several persons then named; and by indentures, dated the 5th and 6th of August, 1782, between the surviving trustees of the one part, and the new trustees of the other part, after reciting that the parishioners and inhabitants of the parish in vestry assembled had elected and chosen the new trustees, it was witnessed that the estate was conveyed on the old trusts, and with a clause similar to that contained in the deed of 1769. As to the appointment of new trustees, a like proceeding was had, and a similar conveyance made, in the month of February, 1806, and there have been subsequent elections of new trustees, and a conveyance to them; and, by virtue of such appointment and conveyance, the defendants Field and others allege that they have been duly appointed,

and are now the trustees.

The fact seems to be, that none of them were appointed, or in any way stated or alleged to be appointed, by the parishioners or inhabitants in vestry assembled; and on that ground the information insists that none of them were duly appointed, and that they are not entitled to act as trustees. The principal question being, how new trustees ought to be appointed, it is very unfortunate that the only evidence there is of the trusts on which the lands were originally conveyed gives us no distinct information on the subject. The conveyance was to sixteen persons, of whom the rector and church-wardens were four;



The Attorney General v. Dalton.

and the declaration of trust recited in the deed of 1700 says no more than that whenever all the trustees, except five, shall happen to die, the five are to convey the estate to new trustees, without saying how they are to be nominated. The question is, no doubt, involved in very great obscurity; but considering that the only evidence we have of the original declaration of trust is not inconsistent with the claim made by the information; that the first evidence that we have in relation to the business of appointing new trustees affords some reason to think that the new trustees were then appointed by the parishioners in vestry assembled; that there is evidence of the estate having been purchased out of funds belonging to the parish, and that it was managed (although not regularly) by the parish at vestry meetings; that there is distinct evidence of new trustees having been appointed at a vestry meeting on the 23d of June, 1725; that there are in succession three several deeds, solemnly executed, each of them containing a distinct recital that the new trustees were appointed by the parishioners and inhabitants of the parish in vestry assembled, viz., the deeds of 1769, 1782, and of 1806; that there is no mention of a nomination by the surviving trustees till the year 1769, and that notwithstanding the provision in this deed and the subsequent deeds of August, 1782, and February, 1806, it is in those deeds repeatedly recited that the new trustees were in fact nominated by the parish; and further considering that this mode of nomination - which was not asserted before 1769, and was not acted upon in 1769, or in 1782, or in 1806, when it was also asserted, but was acted upon only at a subsequent period-cannot affect the right of the parishioners if the nomination was with them, and that in such circumstances we ought to be guided by the earliest evidence of usage; and further presuming that what was then done, and also long afterwards continued, was correctly done,-it does, under these circumstances, appear to me, that, according to the true construction of the deed, the new trustees ought to be appointed by the parish, or by the rate payers of the parish in vestry assembled, and consequently that the present trustees have not been duly appointed. It does not appear to me that this conclusion leads to the consequence which was contended for, that the legal estate is not vested in the persons to whom it has been stated it purports by the deed to be conveyed. There may have been some irreg ularity, and it does not appear that the title was strictly traced and proved; but with regard to the legal estate, and upon the information now given, I incline to think it is reasonably to be presumed that it is vested in the defendants. If it is desired, I will refer it to the master; but unless it is desired, I should abstain from doing so. There must be a decree for the appointment of trustees and a scheme, and for an


Walter v. Selfe.

WALTER V. Selfe.1

March 24 and 25, and April 16, 1851.


Neighboring Land Owners - Injunction.

A land owner having built a house, and laid out grounds, shrubberies, and gardens adjacent thereto, before 1829, and having let the same to a tenant, the house was continuously occupied as a dwelling-house from that time down to 1851. Early in 1850 the owner of adjoining land began to manufacture bricks of the clay or earth of the same land, by burning in clamp, which was erected within 144 feet of the dwelling-house, and within fifteen feet of the stable. A bill was filed by the land owner and his tenant, praying an injunction to restrain the neighboring land owner from proceeding with the manufacture of the bricks :Held, that the brick-making was a private nuisance, and (as the parties on both sides requested the court not to send a case for the opinion of, or an action to be tried by, a court of law) an injunction must be granted to restrain the defendant from burning bricks on his ground, so as to occasion damage or annoyance to the plaintiffs, or either of them, as owner or occupier of the house and grounds, until further order.

THE bill in this case was filed by Mr. William Walter and Mr. Charles Pressly against Mr. John Selfe, and prayed an injunction as after stated. The allegations in the bill were, that the plaintiff William Walter was seized, to him and his heirs, of divers pieces of land, and the messuages and buildings erected thereon, situate at Surbiton Hill, Kingston, Surrey, and, amongst others, of a piece of land abutting east on the high road from Epsom to Kingston, south and southwest on other land of the plaintiff William Walter, and north on the land and ground of Mr. Thomas Taylor, and also on the north, towards the end thereof, on the land and ground of John Selfe, the defendant thereto; and that the plaintiff William Walter, many years theretofore, and long before the said John Selfe purchased the land and hereditaments hereinafter mentioned, caused a messuage, coachhouse, wood-house and other outbuildings to be built on part of the said piece of land and ground so described as aforesaid, and had laid out other parts thereof as a garden, lawn, and pleasure-ground, and had planted trees and shrubs thereon, so as to be enjoyed with the said messuage, and had expended considerable sums of money as well on the said messuage and buildings as on the said garden, lawn, and pleasure-ground, in rendering the same habitable and fit for the residence of a respectable tenant; that the plaintiff William Walter, by an agreement, dated the 2d of May, 1849, and made between the plaintiff William Walter and the said plaintiff Charles Pressly, agreed with the plaintiff Charles Pressly to let him the said messuage, coach-house, wood-house, and buildings, garden and pleasure-ground, for seven years, from the 24th of June then next, at the yearly rent of 150/., subject to the stipulations in the same agreement contained, and that the same premises were then, under or by virtue of such agreement, in the occupation of the said Charles Pressly, and used by him for his residence: that since the date of the said agreement, and in pursuance of an understanding between the plaintiffs to that effect, the plaintiff William Walter had, and before the acts thereinafter com

1 15 Jur. 416.

Walter v. Selfe.

plained of, expended further large sums on the said messuage, lawn, and premises so let to the plaintiff Charles Pressly as aforesaid, and that in consideration thereof, and of an additional piece of ground, the plaintiff Charles Pressly had agreed to pay the plaintiff William Walter, for the residue of the said term, an increased annual rent, amounting altogether to 1721. 10s.; that the defendant, John Selfe, about six years since, purchased to him and his heirs a narrow strip of ground, of about one acre and a half, running from east to west, of the width at the east end thereof of about eighty feet, and at the west end thereof of about eighty feet, and that the same abutted towards the east on the said high road from Epsom to Kingston, and in part towards the south and south-west on the premises so let by the plaintiff William Walter to the plaintiff Charles Pressly, and in other part towards the south on the grounds of the said Thomas Taylor, and towards the north on the premises of the plaintiff, the said William Walter, and then in the occupation of Mr. Saunders and Mr. Thrupp, as his tenants; that there was on the said strip of ground of the said defendant a messuage, which was towards and faced the said high road, and distant therefrom 100 feet, or thereabouts, and that the other parts thereof the said John Selfe used partly as a garden attached to the same messuage, and partly, including such parts thereof as abutted on the plaintiffs' said premises, as meadow land, until the time thereinafter mentioned; that the defendant was a brick and tile-maker, and carried on his business of a brick and tile-maker at a field, containing about seven acres, about a mile distant from the said strip of ground; that the said defendant used the said piece or strip of ground as garden and meadow land until the end of May or beginning of June, 1850, when the said defendant caused to be dug up at the lower or west end thereof (where, as thereinbefore stated, it was about eighty feet wide) considerable quantities of earth, for the purpose of making bricks and burning them on the said strip of ground; that the defendant had caused considerable quantities of bricks to be made of the said earth so dug up by him as aforesaid, and had set them out for drying on his said strip of ground at the lower or west end thereof, and that the said, defendant was then continuing his operations there, and employing several men about the said work; that the said defendant had, in the furtherance of his said object, to burn as well as to dig up earth and make and form bricks on the west end of the strip of ground, and, in order to form a clamp of bricks, drawn in some bricks already burnt to be used for a clamp, and placed the same for the formation of a clamp of bricks, and that the defendant had also drawn in and placed there considerable quantities of large ashes to be used in such clamp, for the purpose of firing and burning the same; and that the part of the said strip of ground, whereon such burnt bricks were placed to form the said clamp, was distant from the said messuage of the said John Selfe 350 feet, or thereabouts, but abutted on the said coach-house, stable, and woodhouse on the said premises so let to the plaintiff Charles Pressly by the plaintiff William Walter as aforesaid, and that the said coachhouse, stable, and wood-house were distant from his the said Charles

Walter v. Selfe.

Pressly's said dwelling-house only fifteen feet, in which he had furniture and property of the value of 2000l., or thereabouts. The bill then stated the ordinary course pursued by persons in making bricks, and pointed out the mode in which the defendant was proceeding; and then, after setting out at length a joint notice of both the plaintiffs to the defendant, to the effect, that, if his proceedings were persisted in, an application would be made for protection either to a court of law or equity, as they, the plaintiffs, should be advised, charged that if the defendant should construct a clamp or burn bricks on any part of his said strip of ground, as the plaintiffs charged he intended doing, he would thereby occasion great annoyance and injury, not only to the plaintiff and Pressly as aforesaid, but also to the said Mr. Thrupp, Mr. Nathaniel Saunders, and Captain Hopkins, other tenants of the plaintiff William Walter, occupying messuages and pieces of ground on the other or north side of the defendant's said strip of ground, and adjoining thereto, and would also thereby occasion material and permanent injury to the trees and shrubs planted and growing as well on the said surrounding or adjoining parts of the land of the plaintiff William Walter as on the land and premises in the occupation of the plaintiff Charles Pressly aforesaid; and it was also charged, that if the defendant should carry his threat and intention of burning such bricks into effect, the plaintiffs had reason to believe great and material and permanent injury would thereby accrue to the plaintiffs, and to the said stable, wood-house, coach-house, and dwelling-house, and to the trees, shrubs, and plantations on the said premises then in the occupation of the plaintiff Charles Pressly as aforesaid, and that the plaintiff Charles Pressly would be obliged to quit the same on account of the injury which arose to the health of himself and his family; and that the defendant ought to be restrained by injunction in the manner thereby prayed. It was therefore prayed that the said defendant, John Selfe, his servants, workmen, and agents may be restrained, by the order and injunction of the court, from making or continuing, causing to be made, or continued, a clamp of bricks, or of collecting cinders, breeze, and other materials for the purpose of burning the same, on his said strip of ground, or so near to the plaintiffs' premises as to occasion damage or annoyance to the plaintiffs, or either of them, or of burning or causing to be burnt bricks on his, the said defendant's strip of ground, so as to occasion damage or annoyance to the plaintiff's, or either of them, or to the plaintiff William Walter's said tenants, or injury or damage to the said messuage, coach-house, stable, wood-house, and trees, shrubberies, and plantations erected and growing on the plaintiffs' said prem ises, or to the messuages, trees and shrubberies erected and growing on such parts of the said premises as were in the occupation of the plaintiff William Walter's tenants as aforesaid; and that all such further and other orders and directions might be made and given as should be necessary and proper for effectually restraining the said defendant, his servants, workmen, and agents, from committing the acts thereby complained of, or doing or causing to be done any act which might cause damage or annoyance to the plaintiffs; and that

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