Reynolds v Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 747
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
reynolds vers. clarke. Trin. 8 Geo. Rot. 474. If one has a right to enter into the yard of another, and he fixes a spout there to discharge water upon plaintiff's land, trespass will not lie, but case. 8 Mod. 272. Fort. 212, S. C. See Gas. temp. Holt C.J. 22, S. P. arg. n. to 2d ed. Trespass for entering the plaintiff's yard, and fixing a spout there, per quod the water came into the yard and rotted the walls of the plaintiff's house. The defendant justifies, that before the trespass John Fountain was seised in fee of the plaintiff's house and yard, and two other houses adjoining, and demised the plaintiff's house and yard to one Tyler, except the free use of the yard and privy for the tenants of the other two houses jointly with the tenant of the plaintiff's house : then he shews how the house of the defendant, which was one of the two houses, came to him (1), and that he entered the yard and fixed the spout for his necessary use, to carry off the rain, prout ei bene licuit. The plaintiff demurs. And [635] Reeve pro defendente insisted, that this exception amounted to a licence of the party, and that a distinction has always been taken between a licence in law, as to go into a tavern, and the licence of the party, and that this being of the latter sort, an action of trespass will not lie; but if the spout be a prejudice, the plaintiff must right himself by an action upon the case. 11 Co. The Six Carpenters case. This is an action of trespass brought for a nuisance upon our own possession. Et per Chief Justice, though he had a right to enter into the yard, yet it is considerable, whether if he abuses that right to the detriment of another, he is not in the 748 TRINITY TERM, 11 GEO. 1 STRANGE, 636. same case with every other trespasser. Et per Fortescue Justice, trespass is a possessory action, and how does this invade the plaintiffs possession? The difference between trespass and case is, that in trespass the plaintiff complains of an immediate wrong, and in case, of a wrong that is the consequence of another act. Et per Raymond Justice, that distinction is perfectly right. I remember a case in B. R. Courtney v. Collett, which was for the defendant's diverting his own water-course in his own land, per quod the plaintiff's land was overflowed; after a verdict pro quer', it was often debated, whether this was an action of trespass...
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Doreen Ann Letang (Respondent) Frank Anthony Cooper (Appellant)
...if the injury was only consequential, he had to sue in case. You will remember the illustration given by Mr Justice Fortescue in Reynolds v. Clarke in 1726 (1 Strange, 634):- "If a man throws a log into the highway and in that act it hits me, I may maintain trespass because it is an immedia......
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Peter Scott & John Scott v Samuel Nelson
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Ogle and Another against Barnes and Others [in the COURT of KING'S BENCH.]
...an immediate injury to another, trespass is the proper remedy; but'if the injury be not immediate but only consequential upon the (a)1 1 Str. 634. (J)1 2 Burr. 1113. (c)1 Ante, 5 vol. 648. (d) Ante, 6 vol. 125. (e) Ib. cited 128. (/) 2 H. Bl. Eep. 442. (g) 2 Burr. 1114. (a)2 Hob. 134. (S)2 ......
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...upon the question whether it arise immediately or consequentially from the act of the Defendant, as was laid down in Reynolds v. Clarke, 1 Str. 634, here the foundation of the action is the loss of service, without an allegation of which the action could not be maintained ; and the loss of ......
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