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ESPLEY V. WILKES.

tively, and there was a proviso that in 1872. CURTIS (appellant) v. EMBREY case the rentals were not correctly stated June 22.

(respondent). the corporation might insert the correct

Statute, Construction of-Town Police rentals, and recover the water-rates ac

Clauses Act, 1847 (10 & 11 Vict. c. 89), cordingly. It appeared that in fact the rentals were 6d. week more in respect per

88. 3, 38, 45—Carriage Plying for Hire

without License. of both rents of premises, the landlord claiming to deduct the 6d. for the rates A piece of ground, the property of a railpaid by him. The Court held that in way company, is not-though used as an that case the appellant must be rated to approach to a station, and though not fenced the full amount, but not, as I think, off from the public highway- a "street" because that would be the correct mode roadwithin the meaning of the 3rd of rating, independently of the terms of section of the Town Police Clauses Act, the composition, but because the appel- 1847, so as to render persons who by agreelant had agreed to make the actual rent ment with the company keep carriages the criterion, or rather the corporation standing there, liable to a penalty for had a right to act upon his having so allowing carriages to ply for hire without agreed. Erle, C.J., in the course of the a license. argument, says (8)—“You say the written contract between the parties is on the [For the report of the above case, see rental and with a view to that alone, and the volume for 1873–42 Law J. Rep. that for aught that appears, the council (N.s.) M.C.] would not have entered into it upon any other footing." And the whole of his judgment afterwards given is to the same 1872, effect. The conclusion of it is, "My judg. May 8. ment is founded upon the terms of the June 8. composition-paper which is before us."

Easement-Way-Implied Grant. Willes, J., says—“It seems to have been agreed on both sides that the rent should In a lease the demised premises were be taken to represent the value." So that

described as

all that plot of land bounded no judgment whatever is given upon the on the east and north by newly made streets, general question of annual value, but a plan whereof is indorsed on these presents," only upon the proper construction of the and the lessee covenanted to kerb the causecomposition-paper.

There is no such ways adjoining the said lands." The site question before us now, and therefore the of the new streets was marked as such in the decision does not in any way conflict with plan indorsed :-Held, that this amounted the reasons which we have given for the to a grant of a right of way along the proconclusion arrived at.

posed new streets to the land demised. For the reasons above given we think that in determining the class to which Declaration in trespass quare clausum the houses belong the actual rent paid by fregit. the tenant is not to be taken, but the sum Pleas—first, of a public right of way which comes into the landlord's pocket over the locus in quo; second, of a private as rent, after the deductions for water- right of way granted by a lease of the rates, poor-rates and district rates, where- 1st of November, 1851, for ninety-nine pays them.

years, from Lord Stafford to one Smith, Judgment for the defendant.

under whom the defendant claimed as

assignee of the lease. Attorneys-Pitman & Lane, agents for Albert In the lease the premises were described Smith & Son, Sheffield, for plaintiffs ; Pattison,

as “all that plot of land situated at CastleWigg & Co., agents for Bromhead, Wightman & Moore, Sheffield, for defendant.

down, in the parish of Castle Church, in the county of Stafford, bounded on the

east and north by newly made streets, on (8) 7 Com. B. Rep. N.S. 257.

the west by premises demised to Henry NEW SERIES, 41.-EXCHEQ.

2 1

ever he

Harrod, and on the south by land belong. was still rough ground, and for the most ing to the said Lord Stafford; containing part impassable as a road. on the east side thereof forty-five yards, on At the trial of the cause the plea of a the west forty-two yards, and north and public way was given up, and Byles, J., south twelve yards (a plan being indorsed directed a verdict for the defendant upon on the lease which shewed 'new streets' in the plea of the private way, but with those positions), together with all dwell- leave to the plaintiff to move to enter a ing houses, buildings and erections, which verdict for himself upon that plea also. during the term should be erected on the A rule having been obtained accordsaid plot of land ; and all ways, waters, ingly, watercourses, lights, easements and ap- A. S. Hill and Anstie shewed cause purtenances to the same premises belong for the defendant, contending that, according.” There were covenants by the lesseeing to the lease and the plan, there was to build upon the land two dwelling- an implied grant of a way over the inhouses, with all necessary out-buildings tended streets to the land demised ; that a and fences, and expend thereon 3001. at public and a private way right may exist the least;

and to kerb the said causeways together--Duncan v. Louch (1), Wood v. a ljoining the said land with proper kerb- Veal (2); and that the lessor was estopped stone.

by the terms of the lease from denying It appeared at the trial before Byles, J., the existence of the way-Roberts v. at the Staffordshire Spring assizes, 1872, Karr (3), Randall v. Hall (4). that in 1851, when the lease was granted, H. Matthews and J. O. Griffits, in supthe strips of land to the north and the port of the rule, argued that the word east, each delineated and described on street in the lease meant a public the plan as new street,” were—on the street, and was inconsistent with a private east a piece of rough waste ground, and wayThe Queen v. Chorley (5); that the on the north a piece of land indistinctly word was here only used as a description of marked out as a street or intended street, a boundary-Harding v.Wilson (6). They on the north side of which a house was also cited Dodd v. Burchell (7), Rashleigh built or begun. A house had been built v. The South Eastern Railway Company in pursuance of the lessee's covenant, at (8), Pinnington v. Galland (9), and the north-east corner of the land demised, Whalley v. Tompson (10). within a year or little more of the date

Cur. adv. vult. of the lease. This house, where it abutted upon the north-east, had its corner cut KELLY, C.B. (on June 8), after stating off and presented the base of a triangle the facts as above, said- The question we towards the point at which the prolonga- have to determine in this case is, whether tion of the two sides would meet to the a private way was granted by the lease north-east of the house. It had a front of 1851 together with the plan endorsed door opening into the street to the north,

upon it;

and we are of opinion that such and a yard and gate opening into the in- was the effect of the lease. The house tended street to the east, where the was built as contemplated by the lease, defendant had been used to receive cart- abutting upon each of the two intended loads of coal and other articles, until the way round the corner and along the in- (1) 6 Q.B. Rep. 904, 915; 8.c. 14 Law J. Rep. tended street was obstructed by the gate (N.s.) Q.B. 185. or fence erected by the plaintiff, the

(2) 5 B. & Ald. 454, 457.

(3) i Taunt. 495. breaking of which constituted the trespass

(4) 4 De Gex & S. 343. complained of.

(5) 12 Q.B. Rep. 515. There were at the time of the trial

(6) 2 B. & C. 96. public highways to the west and to the (7) i Hurl. & C. 113; s. c. 31 Law J. Rep. north-east of the intended new street (n.s.) Exch. 364. upon the north, and communicating with

(8) 10 Com. B. Rep. 612. it; but the intended new street to the

(9) 9 Exch. Rep. 1; s. c. 22 Law J. Rep. (x.s.)

Exch. 348. east, terminating to the south in a drain, (10) i Bos. & P. 371.

ways

new streets, and it is obvious that unless necessity. But here the lessor, by the a grant was expressed, or is to be implied grant, has expressly described the land in the lease, of a way of some kind along demised as abutting upon strips of land both the north front and the east front of his own to the north and the east, of the house to be built, it would be im. which he himself in the lease describes as possible for the lessee to bring materials newly-made streets, and which are disfor the building which he had covenanted tinctly delineated upon the plan, and to erect upon the land, or to go into or therein called “new streets." The lessor out of his house on the north side or the therefore is estopped from denying that east side whenever it should be built. there are streets which are in fact ways, And as the land was bounded to the west and which ways run along the north and by land leased to Harrod, upon which a the east fronts of the houses to be built on house was also to be built, and on the the demised lands, including the defensouth by land of the lessor's from which dant's house, and of which streets or there was no approach or access to the the

way claimed in the plea to this land leased, the house so covenanted to action is a part. We should have thought be erected could not be built at all; and this point clear upon the obvious and if, or when built, would be absolutely un- necessary construction of the lease and approachable and inaccessible. It must plan, but the case of Roberts v. Karr (3) therefore have been intended by the is a direct authority to that effect. There, parties that there should be either a pub- one Pratt granted a piece of ground to lic way or a private way, or a way of Compigné (under whom the defendant necessity. Now the claim to a public claimed), described as abutting east on a way was properly given up at the trial, new road. It appeared that between a inasmuch as it is clear that no public way public road and the abutment in question existed to the east or to the north of the there was a strip of land, the property of intended house at the time of the lease; the grantor, but upon which no road and although it may be inferred from the existed at the time of the grant. The delineation upon the plan of what were defendant pleaded a public right of way called “new streets" to the east and to over this strip of land, and it was held the north, that it was intended by both that the grantor and those claiming under lessor and lessee, and indeed expressed him were concluded or estopped from in the lease, that there were to be streets denying that there was a road or way over then made or afterwards to be made, and this piece of land ; Sir J. Mansfield, C.J., though it was possible that a covenant observing, in the judgment delivered, might be implied that new streets should “ If you (the lessor) have told me in your there be made, there is nothing in the lease this piece of land abuts on the road, lcase to bind the lessor to make them you cannot be allowed to say that the land public streets or to dedicate them to the on which it abuts is not a road.” And public; and it was competent to him to Lawrence, J., observes, “ If a man buys a make them into private streets for the piece of ground described as abutting use only of the lessees of the houses to upon a road, does he not contemplate the be built upon the lands demised.

right of coming out into the road through The existence of a public way being thus any part of the premises ? ” Here the land negatived, it was contended by the learned is described as abutting upon “newly counsel for the plaintiff that all that made streets,” and the case is an authocould be inferred or deduced from the rity to shew that the grantor is estopped lease and the facts of the case was, that from denying that the strips of land, his the lessee had acquired a way of neces

property, are what he describes them to sity. But a way of necessity exists only be, that is to say, “streets,” which they where the land conveyed or demised is cannot be unless there be a way through surrounded by other lands of the grantor, and along them. and cannot be approached but by a way Harding v. Wilson (6), cited in arguover the grantor's land where no way ment for the plaintiff, is in effect also an exists, and which thus becomes a way of authority for the defendant. There a piece of land was granted "abutting upon for the defendant; and that the rule an intended way thirty feet wide ;” and should be discharged. The defendant has the land was underlet, the abutment being contented himself with a claim to a footdescribed as “upon an intended way, way. It may, however, prevent future but not mentioning the width of thirty litigation to observe that it is clear, upon feet. It was held that the under lessee was the facts before us, that he is equally enentitled to a convenient way, though not titled to a carriage-way over the locus in of the width of thirty feet. But here the quo. covenant by the lessee that " he sball and CLEASBY, B., concurred in the above will kerb the causeways adjoining the said judgment. land with proper kerbstone ”is conclusive CHANNELL, B.—I have not been free to shew that a way was to exist along the from doubt upon this case, but I do not north and east fronts of the land demised. dissent from the conclusion arrived at by The “causeways" are in fact the “newly- my Lord and my brother Cleasby. made streets "mentioned in the lease, and delineated on the plan; and a causeway

Rule discharged. is a way; and the defendant could not kerb the causeways without treating them and using them as ways. Upon these

Attorneys—Burton, Yates & Hart, for plaintiff;

E. Smith, for defendant. grounds we are of opinion that a way, as pleaded, was granted by the lease ; that the plea was proved and properly found

END OF TRINITY TERM, 1872.

TO THE SUBJECTS OF THE

CASES AT COMMON LAW

IN THE

LAW JOURNAL REPORTS,

NEW SERIES, VOL. XLI.

[In the following Index, Q.B. refers to the QUEEN'S BENCH, C.P. to the COMMON PLEAs, Ex, to the

EXCHEQUER, and M.C. denotes that the case is reported in the MAGISTRATES' Cases.]

rule quashed, on the ground of the want of the
deponent's addition in the affidavit on which the
rule was granted, the Court allowed the other
to waive the objection, and have the rule dis-
cussed as far as he was concerned. Ex parte
King, C.P., 59

ALEHOUSE — Person about to remove. Expira-

tion of license. Jurisdiction of special sessions.
The Queen v. The Justices of the Borough of
Birmingham, Q.B., 241; M.C., 102

ACTION -when maintainable : tenants in common:

trespass: trover : amendment of form of action]-
One tenant in common cannot maintain trespass
or trover against his co-tenant for cutting and
carrying away the grass off their land unless
there has been an ouster, or unless it is shewn
that the grass has been destroyed. Jacobs v.

Seward (House of Lords), C.P., 221
Plaintiff and defendant being tenants in common

of certain land, defendant entered the land,
cut the grass, put a lock upon the gate, and
carried away the grass. There was no evi.
dence that defendant kept the gate locked, but
there was evidence that he opened the gate for
plaintiff's son to take away the hay of a former
year :-Held, that these facts did not amount
to an ouster of plaintiff by defendant, so as to
enable plaintiff to maintain an action of tres-
pass against defendant, nor to a destruction
of the common property so as to entitle him to
maintain an action of trover. Held, also, that
the Court below was right in refusing to allow
an amendment of the declaration by converting
the action into an action for an account undor 4
Anne c. 16. s. 27. Ibid.

License to sell liquor to be consumed on
premises. Change of occupancy. Special ses-
sions. Discretion of justices. The Queen v.
Rowell, M.C., 175; Q.B., 348

License for sale of exciseable liquors. Ap.
plication to special sessions after unsuccessful
application to general sessions. Neglect to ap-
peal. Now Tenant. The Queen v. Taylor, Q.B.,
350; M.C., Vol. 42, 1873

When maintainable. See Bankruptcy.
Canal. Damage. Negligence.

against foreign company. See Practice.

for extinction of commonable rights. See
Compensation.

AMENDMENT-adding a plaintiff']—In an action

against a tenant for dilapidations to furniture,
the first count was for damages for breach of
the agreement under which the furniture had
been let, and the second count was for the
amount of dilapidations as awarded by valuors.
It appearing that though plaintiff was the party
to the submission under which the award was
made, the agreement for letting had been made
only between one C. (who was plaintiff's trustee)
and defendant, the plaintiff applied for and
obtained a Master's order, under section 34 of
the Common Law Procedure Act, 1852, to add
C. as plaintiff in the action :- Held, that the
Master had power to make such order, and that
he rightly exercised his discretion in making
it, since, if refused, plaintiff could bring a fresh
action in the joint names of plaintiff and C.,
and according to section 19 of the Common

Parties to actions. See Slander.

ADMIRALTY Court-jurisdiction of, and of County

Court. See Prohibition.

AFFIDAVIT—want of deponent's addition: waiver]—

Where a rule nisi had been obtained against two

persons, and one of them succeeded in getting the
New SERIES, 41.-INDEX, Com. Law.

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