Hooper v Rogers

JurisdictionEngland & Wales
Judgment Date10 June 1974
Judgment citation (vLex)[1974] EWCA Civ J0610-4
Date10 June 1974
CourtCourt of Appeal (Civil Division)
Albert Edgar Hooper
Digory Arthur Rogers

[1974] EWCA Civ J0610-4


Lord Justice Russell,

Lord Justice Stamp and

Lord Justice Scarman

In The Supreme Court of Judicature

Court of Appeal

Civil Division

On appeal from Order of His Honour Judge Chope, Lauceston Country Court.

Mr F.B. MADDIOK (instructed by Messrs Boxall & Boxall, Agents for Messrs Blight, Broad & Skinnard, Callington) appeared on behalf of the Appellant (Defendant).

Mr E.G. NEVILLE (instructed by Messrs Peacock & Goddard, Agents for Messrs Peter, Peter & Sons, Bude) appeared on behalf of the Respondent (Plaintiff).

Lord Justice Russell

This appeal from Launceston County Court arises out of an episode in December, 1971, when the Defendant procured the levelling and deepening of a track on a piece of land known as Town Place. He did this without warning to the Plaintiff and in a most high-handed manner. In about the centre of this land are two semi-detached buildings. The one to the east belongs to the Plaintiff Pengold farmhouse: the other belongs to the Defendant and is not occupied. The title to the rest of Town Place was not very closely investigated below, but I think that we must proceed upon the assumption that it was and is beneficially owned and occupied by the parties in common. The lie of the land is that it descends towards the east from the Plaintiff's farmhouse fairly steeply The track in question goes north from the north- east corner of the Plaintiff's farmhouse for some 100 feet or so, turns hairpin right and continues south- east for some 250 feet and turns hairpin left slightly east of north steeply down to a stream which is the boundary between Town Place and some of the Defendant's fields. Prom this description it will appear that the middle stretch of the track cuts across a steep slope, the west edge being at its nearest point some 80 feet from the farmhouse. The gouging out by bulldozer and deepening of the track in this middle section withdrew support from the west bank of the track. Below, the Judge concluded that the Defendant had been guilty of a nuisance by his activities, causing damage totalling some £40 under two heads, both related to the effect of those activities on the occupation of the Plaintiff of Town Place. There is no appeal in respect of that finding: it was not suggested below that an action laid in nuisance was not sustainable in law by one co-owner inoccupation against another co-owner in occupation, and I do not propose to examine that matter. The most serious complaint by the Plaintiff was based upon the threat to the support of his farmhouse which on the evidence was created by withdrawal of support from the west edge of the track, or perhaps, to put it more correctly, by the interference by the Defendant's activities with the natural angle of repose of the hillside. What was forecast was erosion of the soil in an easterly direction, starting at the west edge of the track, continuing backwards up the hill towards the Plaintiff's farmhouse, depriving some trees between the track and the farmhouse of their root hold until they would fall over and no longer help to bind the soil on the slope, with the process ending in the footings of the farmhouse being deprived of earth support and the building being damaged and collapsing all this, it was said, being aided by the nature of the terrain and the prevailing westerly gales and rain. The Judge awarded damages under this head based on the cost of reinstating the track to its former condition by replacing the cubic yardage of soil removed and consolidating it: this would be considerably more than the £750 limit, and Judgment was accordingly given for £750. The Defendant appeals on the ground that no damages based upon the threat to the support of the farmhouse could be awarded.


It is, I apprehend, clear that in respect of the support of the farmhouse no damages at common law could have been awarded. It is established by authority binding upon this Court (a) that damage is the gist of the action in nuisance, (b) that in an action for damages based upon deprivation of support to land or buildings it is necessary to establish thatthe land or buildings have been physically damaged by the withdrawal of support, and (c) that damages cannot "be awarded at common law in a case of probable or even certain future physical damage to the land or buildings from loss of support based upon a present decline in the market value of the land due to such probable or certain future physical damage. But this is a case in which a mandatory Order was sought upon the Defendant to take such steps as were necessary to reinstate the excavated track to its former condition so as to restore to the slope the angle of repose of the soil and thus avert the threat of future removal of support to the farmhouse. The award of damages could only be supported as equitable damages under Lord Cairns's Act in lieu of such an injunction. The injunction, mandatory in character, would be quia timet, as preventing an apprehended legal wrong, the legal wrong requiring in this case physical damage to the farmhouse for its constitution or (save the mark) perfection.


In this connection I would observe that, in so far as there may be an argument in respect of any effect on Town Place itself that an action in nuisance would not lie by one occupying co-owner against the other, it does not seem to me that any such difficulty should lie in the Plaintiff's path in relation to his wholly-owned farmhouse, even if the point of law were open to the Defendant in this Court, which it is not.


The case in this Court therefore boils down to the question whether it is one in which the Judge could Lave (however unwisely in the context of the relationship of unremitting hostility between the parties) made a mandatory Order for the reinstatement of the natural angle of repose of the slope, having regard to the evidence of the probableultimate outcome, in terms of removal of support to the farmhouse, of the Defendant's interference with that natural angle...

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    ...even if the market value of the adjoining property has been reduced as a consequence of the probability of future damage: Hooper v Rogers [1975] Ch 43 at 47, per russell LJ (Ca); Benzie v Happy Eater Ltd [1990] CILL 588. 270 Midland Bank plc v Bardgrove Property Services Ltd (1992) 60 BLr 1......
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