Davies v Marshall
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1861 |
| Date | 05 June 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 627
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 4 L. T. 581; 7 Jur. N. S. 1247; 9 W. R. 866. Referred to, Allen v. Seckham, 1879, 11 Ch. D. 792; Osborne v. Bradley, [1903] 2 Ch. 451.
[697] davees v. marshall. June 5th, 18GI. [S. C. 4 L. T. 581; 7 Jur. N. S. 1247; 9 W. E. 8fiG. Referred to, Allen v. SecMiam, ; 1879, 11 Ch. D. 792 ; Osbarne v. Bradley, [1903] 2 Ch. 451.] The plaintiff Complained in his first count of an obstruction of the light and air to his antient windows; in the second count, of the raising and erecting of certain walls and buildings by the defendant, whereby the smoke and vapour from the plaintiff's chimneys were prevented from being carried oft': and in the third count, that the defendant had deprived his house of the support which he was entitled to.-The defendant pleaded, by way of equitable defence, that the grievances in the declaration mentioned were occasioned by the pulling down and re-building of the defendant's house, that the plaintiff had notice of the premises, and that the old building was pulled down and the new one erected, and large sums of money were expended thereon by the defendant, with the knowledge, acquiescence, and consent of the plaintiff, and on the faith that the plaintiff so knew of, acquiesced in, and consented to the defendant's so pulling clown and re-building as aforesaid. [By arrangement this plea w$s not to be relied on as a good plea of leave and licence at common law.] -The plaintiff replied that the defendant acquiesced and consented as in the plea fneritioned, i upon the faith of certain false representations theretofore made to him by the defendant and her agents, that the grievances in the declaration contained Would not Result from or he produced by the said pulling down and re-building:- Held, on demurrer to the plea, that it afforded a good defence on equitable grounds : Held also, on demurrer to the replication, that it was a good equitable answer to the plea. The first count of the declaration stated that, before and at the time of the committing by the defendant of the grievances thereinafter mentioned, the plaintiff was possessed of a certain dwelling-house, with its appurtenances, and was entitled of right to have the light and air enter therein through divers windows in the said 628 UAVIES V. MARSHALL 10 C. B. (N. S.) 698. dwelling-house, for the convenient and wholesome use, occupation, and enjoyment thereof : yet that, before this suit, the defendant prevented and obstructed the light and air from entering through the said windows into the said dwelling-house as freely and fully as it ought to have done, by wrongfully erecting certain walls and buildings, and keeping and continuing the same, near to the said windows of the plaintiff, whereby the said dwelling-house had been and still was rendered dark and unwholesome and uninhabitable, ind of less value; and the plaintiff had by means of the premises beeu obliged to expend and had expended large sums of money, in enlarging certain of the said windows and in opening other and additional windows, so as to obtain light and air for the proper enjoyment of his said dwelling-house as aforesaid, and in obtaining the advice of surveyors and other competent persons iti respect of the promises ; and also by [698] reason of the premises it became and was impossible for the plaintiff to reside in his said dwelling-house, and he was obliged to expend and did expend large sums of money in the hire of another dwelling-house, and in removing thereto; and had been otherwise greatly injured. The second count stated that, during all the, times thereinafter mentioned, the plaintiff was possessed of a certain dwelling-house, and its appurtenances, in and upon which were certain chimneys and chimney-pots which the plaintiff of right had always used and was then of right using, and still of right ought to use, for the convenient enjoyment and occupation of his said dwelling-house, and for carrying off the smoke and vapour therefrom, without any such interruption or disturbance from the defendant as was thereinafter mentioned ; and the defendant was during all the time aforesaid possessed of a house arid premises adjoining and contiguous to the said dwelling-house of the plaintiff; and that the defendant, before this suit, wrongfully and unlawfully, and against the will of the plaintiff, raised and erected certain walls and buildings in and upon her said house and premises, and carried the same high above the level of the said dwelling-house of the plaintiff', and thereby wrongfully and unlawfully interrupted the plaintiff' in the use and enjoyment of his said right, and prevented the said smoke and vapour from being carried off' from the plaintiff's said dwelling-house by means of the said chimneys and chimney-pots, as it otherwise might and would have been ; and that, by reason of the premises, it became necessary for the plaintiff' to expend and he did expend large sums of money in repairing the mischief so done to his said dwelling-house; and that, by reason of the premises, the plaintiff's said dwelling-house became and was rendered unfit for habitation [699] and of less value, and the plaintiff sustained thereby the damage in the first count more particularly mentioned, and was otherwise greatly injured. The third count stated that, during all the times thereinafter mentioned, the plaintiff was possessed of a certain dwelling-house, and of certain walls and buildings and certain chimneys thereon, which adjoined and were contiguous to certain walls, stables, and buildings of the defendant; and the plaintiff, during all such times, of right had enjoyed and still of right ought to enjoy the use and support of the defendant's said walls, stables, and buildings, for the maintenance, protection, arid preservation of his said dwelling-house, and of his said walls and buildings, and of the said chimneys; and the plaintiff, during all the time aforesaid, was entitled to have the said walls, stables, and buildings of the defendant maintained and kept in their said position, so as to afford to the said dwelling-house, walls, buildings, and chimneys of the plaintiff such support, protection, and preservation as aforesaid : that, before this suit, the defendant wrongfully and unlawfully levelled and pulled down and removed the saicl walls, stables, and buildings of the defendant, and had since wholly refused, to restore thorn to their former height...
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