Armstrong v Sheppard & Short Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WILLMER,LORD JUSTICE ORMEROD |
| Judgment Date | 14 May 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0514-1 |
| Court | Court of Appeal |
| Date | 14 May 1959 |
[1959] EWCA Civ J0514-1
The Master of The Rolls (Lord Evershed)
Lord Justice Ormerod and
Lord Justice Willmer
In The Supreme Court of Judicature
Court of Appeal
Mr. D. GIDLEY SCOTT (instructed by Messrs. W.J. Fraser & Son) appeared on behalf of the Appellant (Plaintiff) (Respondent on cross-appeal).
Mr. E. ANTHONY MACHIN (instructed by Messrs. J. Tickle & Co.) appeared on behalf of the Respondents (Defendants) (Appellants on cross-appeal).
This appeal and cross-appeal have taken an unusual course, owing to the necessary change in the constitution of the Court after the hearing of the appeal. I can only hope that the result has not been to increase the difficulties or the costs of the parties concerned.
The case has certainly not been without interest or without difficulty The facts (and I am now dealing with the appeal) are, as briefly as I may put them, these. The Plaintiff is the owner and occupier of certain premises known as 2 Priory Close, Harrow Road, Wembley. It appears from the entry in the register at the Land Registry that the Plaintiff has in fact charged his interest by way of mortgage; and the significance of that fact lies in this, that the documents of title which he might have held at the relevant time were, naturally enough, in the possession of the chargee.
The plan which I have before me and which is attached to the entry on the register shows that the Plaintiff' house is at the extreme end of Priory Close - that is, at its south- east end, where Priory Close goes into Priory Avenue, At the back of the Plaintiff's house is a pathway, or roadway, made up, not being a public highway. That roadway goes at the back of a number of houses, and (as is shown on the photographs with which we have been supplied) it leads to premises now owned and occupied by the Defendants, Sheppard & Short Limited. But the little strip of that pathway which (so to say) matches the Plaintiff's house and garden is at the end of that passage nearest to Priory Avenue.
It seems that at the end of the year 1957 the Defendants conceived the idea that it would be to their advantage to construct a drain, or sewer, from their premises, situated as I have described them, and leading to the public sewer in Priory Avenue. The drain was not required to carry any great quantity of foul water. The Defendants were concerned only with, I believe, one water closet and one urinal; but they also wished to carry away the storm water, which would collect on their building, in the same manner to the sewer in Priory Avenue. They constructed, accordingly, a manhole and made the necessary excavations for the sewer; and they also constructed the sewer. The manhole is in fact situated on the little strip, which belonged - and belongs - to the Plaintiff and which I have described as being the strip at the extreme end of the passage-way nearest to Priory Avenue. That was done, and it was concluded by the end of the year 1957: thereafter, the Defendants passed the foul and storm water down this drain into the public sewer in Priory Avenue.
On the 20th August, 1958, the Plaintiff, through his solicitors, wrote to the solicitors for the Defendants a letter which, after stating who the writers were, continued as follows: "Our client" (the Plaintiff) "further instructs us that he has at no time been approached by your clients for permission or been advised of their intention, and has given no permission or licence of any kind. We write on behalf of our client to require that the sewer and manhole be removed forthwith from his premises, the premises be made good, and our client compensated in damages for the trespass. Alternatively, our client will have no alternative but to take such steps as may be necessary to stop the unauthorised flow of effluent across his land".
The reply denied the assertion that no permission of any kind had been given. But unfortunately that was not satisfactoy to the Plaintiff; and the present proceedings were begun in October of 1958. The Particulars of Claim alleged that the Plaintiff was at all material times the registered proprietor of 2 Priory Close; alleged (in paragraph 2) that on or about the 6th December the Defendant wrongfully entered and excavated part of his land and constructed a sewer and manhole; and thirdly alleged that since January, 1958, the Defendant has discharged or caused or permitted to be discharged effluent through the sewer under the land. The Plaintiff claimed damages for trespass (but limited to the sum of £400); and he also claimed an injunction against the further discharge of effluent through or under the Plaintiff's land.
The matter came on for trial in December, 1958, a year after the entry complained of. It is quite plain from the evidence given by the Plaintiff that he continued to assert that he had never given any assent or permission to or for what the Defendants had done. According to the learned Judge's note: "I have never given consent for the manhole and I had no knowledge it was to be built. I did notice it being done on two or three occasions. On the first the construction of it was well on the way. I did nothing at all about it. I was not approached by anyone for consent". I must say in clear and unqualified terms that that evidence was false, according to the Judge's finding. The learned Judge held, after hearing the evidence - and in particular the evidence of the representative for the Defendants, a Mr. Sheppard - that there had been clear permission or assent given to what was being done. Mr. Sheppard described the interview with a little detail. He said that the Plaintiff pointed out that he was in the business himself of a sanitary engineer, which took him all over the country, and he fully understood the Defendants' difficulty. It must, however, be conceded that the Defendants were somewhat rash over this matter. They had first made a mistake, apparently, in supposing that a Mr. Neilson was the owner of the whole of the relevant property. No doubt that mistake put them in a difficulty. They had to see, and according to the evidence saw, a number of house-owners whose properties back on to this strip; but they were content - rashly, as I have ventured to say - to leave it on the footing that they supposed that they had been properly authorised, by all the persons interested, to construct the sewer and to pass this effluent down it. The learned Judge found that they were justified in supposing that, so far as the Plaintiff was concerned, he knew what his rights and position were and had deliberately consented to what the Defendants were doing. The Plaintiff, however, though baulked in his attempt to establish that he had never spoken to anybody about it, did also give evidence of the fact that at the time when this was going on and when (as eventually was found) he did give his assent to the Defendants, he was unaware that he had any proprietary right in respect of this strip - he did not in fact, apparently, use it himself - and therefore he must be taken to have been unaware that he had any interest or concern which was involved when his permission was asked or that he could refuse his consent or qualify it.
The part of the learned Judge's Judgment dealing with that is as follows: "I accept the Defendant's evidence that there was a telephone conversation between him and the Plaintiff, hut I accept the Defendant's evidence that he understood the Plaintiff to have given him permission to go ahead with the work of constructing the sewer, "but I also accept the Plaintiff's evidence that he did not give the Defendant such permission. My reason for both conclusions is the same, that the Plaintiff, not having seen the deeds of his property for some time and forgetting the contents of the deeds and the exact boundary of the plan, did not realise when he spoke to the Defendant that he the Plaintiff was the owner of any part of the said pathway; this being so he would naturally not give permission to the Defendant, because he did not know he had the right to do so, neither however would he object, because he would not know he had the right to object either. Consequently I feel safe in taking the view that the Plaintiff is right in saying that he never actually gave permission for the sewer to be constructed, but that the Defendant is correct in saying that the Plaintiff made it clear, whatever words he used, that he was not objecting to it".
To some extent the distinction is one more of words than of substance. But it is clear, I think, that what the Judge meant was that the Plaintiff did not give permission in the sense that he did not purport, qua owner, to give authority or a licence to the Defendants to do something on his land: on the other hand, the learned Judge found that the Plaintiff did make it quite clear - and that the Defendants were perfectly well justified in so assuming - that he was raising no kind of objection to the proposed course of construction. In those circumstances, the learned Judge at the trial declined to grant any injunction, either to remove the manhole or to restrain the effluent being sent down. He also held that the damage suffered from the trespass which, on the view that the Judge took, he thought must technically have been committed, was purely nominal. Hethere-fore said: "Taking the view, as I do, that it is reasonable for the Plaintiff to desire that his position should be clarified, I award him costs on Scale II".
By the Notice of Appeal the Plaintiff in the action contended that the learned Judge should have granted an injunction - that is to say, an injunction (as I understand it) in the terms of his claim, to restrain the discharge of the effluent down the sewer; and the short basis of the case made for an injunction was this: A proprietor...
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