Battishill v John Reed and Edward Reed
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1856 |
| Date | 28 May 1856 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1544
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 290; 4 W. R. 603. Referred to, Hollins v. Verney, 1884, 13 Q. B. D. 307. Followed, Damper v. Bassett, [1901] 2 Ch. 350.
[696] battishill v. john reed and edward eeed. May 28, 1856. [S. C. 25 L. J. C. P. 290; 4 W. E. 603. Eeferred to, Hollins v. Verney, 1884, 13 Q. B. D/307. Followed, Damper v. Bassett, [1901] 2 .Ch. 350.] The enjoyment of an easement as of right, for twenty (or forty) years next before the commencement of the suit, within the statute 2 & 3 W. 4, c. 71, means a continuous enjoyment as of right, for twenty (or forty) years next before the commencement of the suit, of the easement as an easement, without interruption acquiesced in for a year : and such right is defeated by unity of possession during all or part of the period of enjoyment, though such unity of possession has its inception after the completion of the twenty (or forty) years.-Therefore, where the plaintiff had enjoyed a way as of right, and without interruption, from 1800 to ;1855, when the action was brought,-Held, that his claim under the statute was ^defeated by a unity of possession from 1843 to 1853.-In an action by a reversioner for the removal of the eaves from his house, and the erection of a building with eaves arid a gutter overhanging his wall,-evidence of diminution of the saleable value of the plaintiff's premises in consequence of the nuisance was rejected, and, it appearing that the cost of replacing the tiles which had been removed would not exceed 30s., and the defendant having paid 40s. into court on account thereof, the jury were directed to find for the defendant,' if they thought the sum paid in was sufficient to cover the actual damages sustained by the plaintiff:-Held, that the evidence tendered was properly rejected, and the direction right,-the true measure of damages in such a case being, not the diminution in the saleable value, although the nuisance might be of a permanent character, but suet damages as the jury might think sufficient to compel the defendant to abate the nuisance. This was an action for disturbance of certain alleged rights.of the plaintiff. The declaration stated, that, before and at the times of the committing of the grievances by the defendant as thereinafter in the several counts of the declaration mentioned, certain persons were possessed of certain premises consisting of a messuage, buildings, and land, with the appurtenances, situate, &c., as and being tenants thereof to the plaintiff, the reversion thereof then belonging to the plaintiff; and for his first count the plaintiff said, that, before and at the times of the committing the grievances in that count mentioned, one of the said appurtenances was a right of way for the occupiers of the said premises and their servants, on foot or with horses, to go, return, pass, and repass from and out of a certain gateway in the said premises, unto, into, through, over, and along certain adjoining land in the said county, towards, unto, and into a certain common or public highway there, and so from thence back again from the said common or public highway, towards, unto, into, through, and along the said adjoining land, unto and into the said gateway, [697] every year, and at all times of the year, at his and their free will and pleasure; yet that the defendants, well knowing the premises, but-intending to injure the plaintiff in his said reversionary interest, and to deprive him of the benefit of the said way, as such appurtenance as aforesaid, whilst the plaintiff was so interested as aforesaid, to wit, on divers days before the commencement of the suit, wrongfully and unjustly placed and erected a certain gate in and across the said way, and also wrongfully placed divers large quantities of planks, stones, wood, and timber in and across the said way, near to the said gateway, so as to prevent egress therefrom, and there wrongfully kept and continued the said gate, planks, stones, wood, and timber for a long time, by which said gate the enjoyment of the said right of way was during all that time greatly and in a permanent manner rendered less convenient and less able at all times to be enjoyed than it theretofore had been, and by which said planks, stones, wood, and timber the said way was during all that time and in a permanent manner obstructed and stopped up; whereby the plaintiff was greatly injured in his said reversionary estate and interest. 18 C. B. 698. BATTISHILL V. REED 1545 And for a second count the plaintiff said, that, before and at the times of the committing of the grievances in that count mentioned, another of the said appurtenances was a right of way for the occupiers of the said premises, and their servants, with carts and carriages, to go, return, pass, and repass from and out of a certain gateway in the said premises, unto, into, through, over, and along certain adjoining land in the said county, towards, unto, and into a certain common or public highway there, and so from thence back again from the said common or public highway, towards, unto, into, through, and along the said adjoining land, unto and into the said gateway, every year, and at all times of the year, at his and their free, will and pleasure; yet that the defendants, well knowing [698] the premises, but intending to injure the plaintiff in his said reversionary interest, and to deprive him of the benefit of the said way as such appurtenance as aforesaid,: whilst the plaintiff was so interested as aforesaid, to. wit, on divers days ^before the commencement of the suit, wrongfully and unjustly placed and erected a certain gate in and across the said way, &c. (as in the first count). And for a third count the plaintiff said, that, before and at the time of the com mitting of the grievance in that count mentioned, another of the said appurtenances was the right to have the rain-water that might or may from time to time naturally fall on a certain roof, part of the said premises, drop from the eaves of the said roof upon the land adjoining the said premises, and to have the said eaves project over the said land: yet that the defendants, further intending as aforesaid, wrongfully and in a permanent manner on divers days removed the said eaves, and, by building on the said adjoining land close to and higher than the said roof, prevented the said roof from having such eaves as aforesaid projecting over the said land, and prevented such rain-water as aforesaid from dropping from the said eaves upon the said land, and penned back the,same upon the said roofj whereby the plaintiff was injured in his said reversionary estate and interest. . . . ò . And for a fourth count the plaintiff said that the defendants, further intending as aforesaid, wrongfully ,on divers days pulled down certain eaves which were parcel of the said premises, and wrpngfuUy built on the said premises part of a certain building of a permanent nature constituting air -encroachment on the said premises, whereby the plaintiff was greatly injured in his said reversionary estate and. interest. And for a fifth count the plaintiff said that the defendant, further intending as aforesaid, wrongfully,,on divers days erected and kept a certain building with the [699] eaves thereof-projecting over the said premises in a permanent manner/ so as to cause the rain-water from time to time falling on the said building to run therefrom and drop on the said premises, whereby the plaintiff was injured in his said reversionary interest, and whereby a certain-wall. parcel of the said premises, was rotted and injured, whereby the plaintiff was further injured in his said reversionary estate and interest. ; , òòò.-. . : And for a sixth count the plaintiff,said,.that.the defendants,,further intending as aforesaid, on divers days wrongfully,placed and,kept divers great quantities of earth, stone,, and rubbish near, to the said, premises^ so as to raise the level: of ..certain land near to the said premises,, and to cause the said land to slope down to the said E remises, and. thereby,caused the rain-water from time to time falling on the said md to flow, down towards, against, ;and into the,said premisess and to wet and damage the same, whereby the plaintiff, was, injured-in his said; reversionary estate. And for a seventh jcount the plaintiff\said, that, before and at the times of the committing the grievances in that count .mentioned, another of the said appurtenances was a-right of way"forfthe occupiers of the said premises, and their servants, to go, return, pass, and, re pass from and .out of, a certain, gateway in.: the said premises, unto, into, through, over, and along certain land unto and into a certain public footway communicating with divers highways called the Church Path, and so back again from and out of the said footway, unto, into, through, over, and along the said land, unto and into the said gateway: yet the defendants, further contriving as aforesaid, on divers days wrongfully,and in a.permanent,manner obstructed the said footway, and the said way.to.the said footway, and prevented them from being used as such footway and way; .whereby the.; use,, of ,the said appurtenance as a mode of passing from the...
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...such as maintaining overhanging eaves and gutters, damages were limited to the loss suffered up to the commencement of the action: see Battishill v. Reed (1856) 18 C.B. 696. Lord Cairns' Act liberated the courts from this fetter. In future, if the court declined to grant an injunction, whic......
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