struction, and attempt to justify their trespassing upon the plaintiff's land as a consequence of their own wrongful act. It cannot be alleged that there was ever any necessity to navigate over or land upon this particular spot. Holker (Kemplay with him), for the defendants. This action is not maintainable. Suppose that no pier had been erected on the spot at all. The defendants would have a right to bring their steamboats as near to the shore as possible, and land their passengers by a small boat, or by means of a plank reaching to the shore. It is true that the defendants put the pier on the spot, and it must be admitted that it has now become the property of the plaintiff; but by keeping it there, he has adopted it as an obstruction. Supposing that the pier had been erected by the plaintiff, or by a stranger, The Eastern Counties Railway Company v. Dorling (2) would be a precise authority to shew that the action is not maintainable. In that case the plaintiffs brought an action against the defendant for trespasses committed in landing passengers upon a dummy moored by the plaintiffs to a wharf on the river Orwell, and which they kept there for the convenience of landing their own passengers. One of the pleas stated in effect that the defendant had a right to land at a quay upon the banks of a public navigable river, and that the plaintiffs permanently moored their dummy so as to obstruct and prevent the defendant's approach to the quay, and so that it was impossible for him to land without passing over the dummy, and so justified passing over it doing no unnecessary damage to the plaintiffs in that behalf. The Court of Common Pleas held that this was a good plea. Surely it can make no difference that the per, which the present plaintiff maintains as an obstruction, was originally placed there by the defendants. The plaintiff has been compensated for the wrongful act thus originally done by them. They cannot be said to come within the maxim that no one can be permitted to take advantage of his own. (2) 5 Com. B. Rep. N.S. 821: s. c. 28 Law J. Rep. (N.s.) C.P. 202. wrong. The defendants do not take advantage of their own wrong. Manisty replied. BLACKBURN, J.-I think that our judg ment should be for the defendants. The case is stated without pleadings, and therefore we must consider what defences might be pleaded. It seems to me that a good defence might be pleaded to that which the plaintiff complains of. Two facts are admitted here which otherwise would require proof-two main and principal facts. One is that the plaintiff is the owner of the whole soil of the bed of the lake, including the spot upon which has been erected this pier. The other is that the public have a right of highway over the lake, navigating it without restriction, as far as I perceive, as to the nature or size or kind of vessels, except of course what is imposed by the nature of the lake itself. Now I take it that it is well established, as a matter of law, about which I have always supposed that there was no dispute, that where there is a public highway the owners of land that came up to it have a right to go on it, for the purpose of using it, at any spot from their own land. They cannot interfere with the rights of other persons and go over such persons' land for the purpose of getting to the highway, but where their own land comes up to the highway they may come and go upon it, and he, who has dedicated the land to all the public, has no right to complain that those particular persons have come on it at that spot more than any other. The right of access is to every part, and, consequently, applying that principle to this highway, every person, whose land comes up to the edge of the lake, has a right to go on to the lake from his land, there to exercise the public right of navigation. Whether that would be owing to a common right as it would be in a navigable river or in the sea, or whether it would require evidence of user to shew that there was a dedication by the orginal owner of the lake, is a point which I need not now decide, but which may raise some diffi culties at a future period in some other matters. I apprehend that where there is a right of that sort, the necessary inci dents of it are involved. My opinion is pretty clear that on a navigable river, such as the Thames, where a person who has got a barge which he is navigating, and which has to come to the shore, that it is not essential that he should find some spot where the water is so deep that he can run the barge in, and step from it on to the land, but what is required is that he should use the reasonable and usual mode, incidental to navigation generally, of getting from the barge to the shore. If the place where the barge stops is a good way from the shore, the mode of doing it would be by a boat from the barge to the shore, and even then when the boat came near the shore, and there remained a certain quantity of wet ground, the person might get out and wade to the shore, or, if it were more convenient, he might put a plank across. Consequently, the right was and is that the owner of the adjoining land and those whom he permits to come on his land, have a right to get by reasonable modes on to the land covered with water; one of which ways is either to wade out, or to walk on a plank for the purpose of getting there; but I quite agree that he would have no right to disturb the soil, that would be quite a different matter. Such being the state of things before this pier was erected, Mr. Askew, and those he licensed to come there, had the right to go from the land to the steamboat, either by wading, or by taking a small boat, or by throwing out planks; according to which was the most convenient mode of doing it. They might, from time to time, exercise their rights, and had a right as part of the public so to do, and we are to see what effect the building of the pier in question has upon the matter. Now Mr. Askew erected on his own land a pier which, so far, he had a perfect right to do. He seems, from the statement in the case, to have carried that pier out 27 feet 6 inches into the bed of the lake, and driven in piles, and interfered with the soil of the plaintiff, and to have committed a trespass, and having done that upon the plaintiff's land, and built it as a fixture, the plaintiff had a perfect right to take it as part of his soil. It appears that he has done so. His complaint is this: he brings his action, saying, "I have got. this pier, this 27 feet 6 inches, and I complain that you, the Ulleswater Steam Navigation Company, have wrongfully caused passengers to come across the pier in order to embark and navigate the lake." That is his complaint. It seems to me that is a complete assertion by him, "that pier has become mine, and is my property, and I now use my right of property thus acquired for the purpose of prohibiting any one of the public from coming on the lake at that particular spot. I will bring an action against you, who encourage the public to come there, for exercising that right." That seems to me as complete a case of maintaining this pier as his own, as could well be conceived. Then it is conceded, and I do not think it could be disputed, after the case of The Eastern Counties Railway Company v. Dorling (2), which has been cited, that if he himself had originally made this pier and maintained it, people coming to exercise the public right would have had a right to step on it, and walk across it to get to the water which they had a right to navigate. The ordinary plea where there is an obstruction of such a right, after shewing the right, is that the defendant did either break the thing or go over it, doing no unnecessary damage. It seems to me that if the plaintiff brought an action against one of the persons who went across this pier, he might have said, by way of defence, "I went across it being upon Mr. Askew's land with his leave, and having a right to go to the navigation. I found that it was supported on piles that prevented my using my right of going there, I did not therefore break it or knock it down, or do any unnecessary damage, but I put my foot on it and walked across it." Clearly in no possible way of doing it could there be less damage. He would be entitled to do that, if the pier had been put up as well as maintained by the plaintiff, and what difference does it make that the erection of the pier was by another person, and against the plaintiff's will? It is said, that it makes a great deal of dif ference, because the defendants claiming under Mr. Askew are taking advantage of his wrong in originally erecting the pier. I do not think that is so. Mr. Askew no doubt originally erected the pier, and no doubt wrongfully, but not with the purpose of obstructing the right of navigation, but for the purpose of facilitating it. Having done this, having built the pier on another man's foundation, it became that other man's, and then, instead of using it for the purpose for which Mr. Askew wrongfully erected it, although he did so to facilitate the navigation, that man says: "Now that it has become mine, I will use my right of property to prohibit the navigation." That seems to me to put the plaintiff in the same position as if he had originally built it. That being so, I think that, had this case gone on to a declaration and to plea, there would have been a perfectly good plea, true in fact and good in law, that the plaintiff maintained this portion of the pier in such a place, that it was impossible to use the right of the public, without knocking it down, or going over it, and that the defendants having a right to go over it for the purpose of navigation, did, doing no unnecessary damage, walk across the pier to get to the steam-boats. I think that would be a good plea, and that it would be no replication to say that the pier now maintained by the plaintiff was originally erected by some other person. one MELLOR, J.-I have come to the same conclusion, although I confess I have not been free from doubt during the argument, which doubt is not absolutely displaced now; but I think upon the whole, that the view which my brother Blackburn has taken, is one which is certainly consistent with good sense, and which, considering the doubts I have upon the matter, would influence me to agree in his judgment. I am not disposed to dispute in any way the views which have been enunciated by him, and my only difficulty has arisen from the circumstances under which the pier was erected. On the whole I am inclined to think it can make no difference whether the pier was erected by the plaintiff himself, or whether it was erected by Mr. Askew, as it appears that it was, and wrongfully erected on the bed of the lake, which is admitted to belong to the plaintiff. think that the plaintiff must be taken, now I at all events, to say: "This pier is mine, and you are wrongfully inducing people to come on to that which, though you erected it, is really my property, because it was erected on my property; I think it comes to the same thing in the result as if the plaintiff had erected it himself. For these reasons, I agree with the judgment which has just been delivered. LUSH, J.-I do not share in the doubt which my brother Mellor has expressed. I confess that this appears to me to be a clear case. I think that the plaintiff is in the same position, as regards this pier, as if he had originally erected it himself. It was erected by wrong on his soil. He might have had it abated at the expense of the wrong doer, and have restored matters to their former condition, but, instead of doing that, he exercised the right which he had to claim it as part of his property, as if it had been erected by himself, being a part of his own soil, and his freehold; he took possession of it and exercised dominion over it, and he claims by this action damages in respect of the right of property. That, I think, puts him in exactly the same position as if he had originally built it, or as if he had taken to it, having paid the person who erected it for the cost of the erection. It is his pier, and he now maintains it for the purpose of obstructing the navigation of the lake. Then, the defendants say, "that pier obstructs us in the lawful use of the lake, and so long as it remains where it is, we cannot exercise our right of navigation without using it." That is the effect of what I take to be the statement in the 8th paragraph of the case. The statement is this.-[His Lordship read that paragraph].-I think that if the pier were not there, the defendants would have the right of bringing their steamboats up as near their own land as they could, and would have a right to make use of any reasonable means in order to reach the land from their steamboats. It seems to me that it is a necessary incident to the right of navigation. They would have been entitled to do so if the pier had not been there. That brings the case exactly within the one cited by Mr. Holker. Here is an obstruction belonging to and maintained by the plaintiff on his own soil. As long as it is there, it prevents the defendants from exercising their right of navigation. That is a good reason for using it, without which their right could not be exercised. It appears to me exactly analogous to the case put by my brother Blackburn, in the course of the argument, that if a person should wrongfully put a gate across a public highway or take to a gate put there wrongfully by another person, and then seek to bring an action against the person who could not use his right of way without getting over the gate. 1871. Nov. 15. WILSON (appellant) v. THE MAYOR, &C., OF BOLTON (respondents). Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 69, 21 & 22 Vict. c. 98. s. 63, 24 & 25 Vict. c. 61. s. 23, 11 & 12 Vict. c. 43. s. 11-Streets-Paving, &c.—Expenses of-Recovery from Owner-Private Improvement Erpenses-General District Rate-Demand—Limitation of Time. In 1858 the respondents, a local board of health, served upon the appellant, who was an "owner" of premises within the meaning of 11 & 12 Vict. c. 63, a notice to execute certain specified works in paving, &c. The works not having been executed by the appellant, the respondents completed them on the 30th of November, 1860, and on the 21st of January, 1861, apportioned the expense among the appellant and the other owners, giving notice on the same day to the appellant that "unless the amount of this account is paid within fourteen days after delivery, interest at the rate of 5 per cent. per annum will be charged thereon, until fully liquidated. To proportion of sewering, levelling, paving, flag-. ging, channelling, Sc., namely, 50ft. front age at 5/4, 131. 68. 8d." The amount was not paid by the appellant, and the respondents, on the 25th of August, 1870, resolved and declared that the said amount of 131. 6s. 8d. should be "private improvement expenses," and subsequently that the amount should be paid by two instalments. The appellant refused to pay, and an information was laid against him :· Held, that the respondents having elected in 1861 to treat the amount as a debt due from the appellant could not now treat it as a private improvement expense, and further, that in order to recover the amount from the appellant proceedings must have been taken within nine months from the service of the notice of the 21st of January, 1861, which must be considered as a "demand." [For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 4.] 1871. Nov. 18. THE QUEEN v. THE ASSESSMENT Poor Rate-Deduction-Landlord's Rate -Parochial Assessment Act, 6 & 7 Will. 4. c. 96. s. 1. Under powers given by a drainage Act, the land in a certain district was drained, and an aliquot portion of the expense necessary for maintaining the drainage works was assessed upon the owner of a furm within the district. This farm was let to W. The drainage works could not have been maintained without the rate imposed by the Act, and without these works the farm would be diminished in value. W., having been assessed to a poor-rate,Held, that the sum paid by his landlord, the owner of the farm, was an expense necessary to maintain the farm in a state to command the estimated rent, and that, therefore, W. was entitled to claim under the Parochial Assessment Act a deduction in respect of the amount. 41 Law J. Rep. (N.S.) M.C. p. 1.] [For the report of the above case, see 1871. } Nov. 15. J FLEET AND ANOTHER V. MURTON Principal and Agent-Contract-Evidence-Custom making Broker liable where Principal not disclosed by Sale NoteSimilar Usage in different Trade. The defendants, M. & W., fruit brokers in the City, gave the plaintiffs, who were wholesale grocers there, the following contract note, addressed to the plaintiffs"We have this day sold for your account to our principal 50 to 70 tons of raisins. (Signed) M. & W., brokers" :-Held, in an action against the defendants as purchasers, first, that evidence was admissible of an usage in the fruit trade, by which in a contract worded as above, without mentioning the buyer, the broker was liable to make good any loss through the default of his principal; secondly, dubitante COCKBURN, C.J., that evidence of a similar usage in the colonial market was also admissible, as shering the liability of brokers in a trade of a similar character. Semble, per BLACKBURN, J.-That the declaration should have been framed so as to charge the defendants, not as principals, principals, but as having undertaken a liability in the nature of that of a del credere agent. Declaration. For not accepting a quantity of Chesme raisins, sold by the plain tiffs to the defendants. First Plea. That the defendants did not agree as alleged. Issue thereon. At the trial before Blackburn, J., at the London Sittings after Michaelmas Term, 1870, it appeared that the plaintiff's were wholesale grocers in the City, carrying on business under the name of Fleet & Dobbing, and the defendants fruit brokers, under the name of Murton & Webb. October, 1869, negotiations took place between the plaintiffs and defendants as to the sale of a cargo of raisins, and the following contract note was signed, the words in italics being lithographed 'London, 30th October, 1869. "Messrs. Fleet & Dobbing, In "We have this day sold for your account to our principal, to arrive per steamer from Trieste, 50 to 70 tons of good sound Chesme raisins in cases, at 41s. per cwt., usual NEW SERIES, 41.-Q.B. market terms. Cash on delivery. F. & D. to draw on M. & W. for 500l. (if required) on handing equal value. "Your obedient servants, "21, Mincing Lane. "Customary allowances." The plaintiffs as part of their case called several fruit brokers, who proved that in their trade, where a contract worded like the one signed by the defendants does not mention the name of the buyer, the broker is liable to make good any loss through the default of his principal, and cannot afterwards declare the name of his principal for the purpose of avoiding liability. It was objected that the evidence was not admissible as tending to vary the written contract, but the learned Judge received it, subject to the objection., The plaintiff's also called a colonial broker and others, to shew that in the colonial market, if the name of the princi pal is not on the contract note the broker is liable, unless he declares his principal within three days after making the contract. The learned Judge also admitted this evidence, subject to objection. The defendants then called evidence to disprove the custom; but the jury found a verdict for the plaintiffs, the amount of damages to be settled out of Court, leave being reserved for the defendants to move to enter the verdict in their favour, and the plaintiffs to be at liberty to amend their declaration. A rule having been obtained to enter a nonsuit or a verdict for the defendants on the ground that evidence of a custom was not admissible to alter or vary the contract, or for a new trial on the ground that evidence of the custom in the colonial market was not admissible Henry James and Cohen shewed cause. -First, The evidence as to the custom in the fruit trade did not alter or vary the written contract. Humfrey v. Dale (1) is in point. The usage is not inconsistent with the contract, and is as much part of it, as if it were expressed in writing and (1) 7 E. & B. 266; s. c. 26 Law J. Rep. (N.s.) Q.B. 137; in Error, E B. & E. 1004; 27 Law J. Rep. (N.s.) Q.B. 390. H |