Webb v Bird and Others
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1861 |
| Date | 26 April 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 455
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 13 C. B. N. S. 841.
webb 0. bird and others. April 26th, 1861. , , [Affirmed in Exchequer Chamber, 13 C. B. N. S. 841.] The owner oi a windmill cannot claim, either by prescription, or by presumption jof a grant arising from twenty years' acquiescence, to be entitled to the free afjd uninterrupted passage of the currents of wind and air to his mill.-And such; a claim is not within the 2nd section of the 2 & 3 W. 4 c. 71, which is confined to rights of way or other easements to be exercised upon or over the surface of the adjoining land. The declaration stated, that, before and at the times of committing the grievances thereinafter mentioned, the plaintiff was possessed of a certain windmill and premises, with the appurtenances, in Emmeth, and the plaintiff before and at the said times of right ought to have had and enjoyed, and still of right ought to have and enjoy the benefit and advantage of the streams and currents of, air and wind which had used to pass, run, and flow, and during all that time of right ought to have passed, run, and flowed, and still of right ought to pass, run, and flow from the west, in the usual and proper passage, course, and flow of the same, unto the said windmill, for supplying the same with air and wind for working, using, and enjoying the same : That the defendants afterwards, while the plaintiff [269] was so possessed, wrongfully and injuriously built and erected a certain school-house and premises near to the plaintiff's said windmill and premises, and thence hitherto wrongfully and injuriously had kept and continued the same erected there, and thereby during all that time wrongfully and injuriously stopped, obstructed, and diverted the streams and currents of air and wind which ought to have passed, run, and flowed from the west to the said windmill and premises of the plaintiff, and turned and diverted the said streams and currents of air and wind from the said windmill and premises of the plaintiff: By means of which said several premises the plaintiff' during all the time aforesaid was hindered and prevented from using the said windmill and premises in so ample and beneficial a manner as he otherwise might and would have done, and the said wjndmill and, premises of the plaintiff became and were and are thereby much injured and deteriorated in value : Claim, 3001.: And the plaintiff alao claimed a writ of irijunction a at a like 1dm The defe ;ainst the repetition or continuance of the said injury, and of any injury 1, relative to the said property or right, idants pleaded,-first, not guilty,-secondly, that the plaintiff ought not of right to: h ive had and enjoyed, and ought not of right to have and enjoy, the benefit nd dvantage of the said streams and currents of air and wind, as alleged ; land ttat the said streams and currents of air ought not of right to have passed, run, and flowed, and ought not to pass, run, and flow, as alleged, and for the purposes alleged, - thirdly, that they did what was complained of by the leave and licence of the plaintiff. Issue was joined upon each of these pleas ; and, by an order made at the Spring Assizes at Norwich, in 1860, a verdict was by consent entered for the plain-[270]-tjff for 40s. damages and 40s. costs, subject to the award of a barrister, who was to be at liberty to. award and direct for whom and for what sum the verdict should be finally entered, and who was to be at liberty to raise the question of law as to the right of the plaintiff at any stage of the proceedings which he should deem best, and also be at liberty either to suspend any final award until after the decision of the court upon such question or'to make his award subject thereto ; and, if he should in the end decide in favour of the plaintiff, he should then say what was to be done between the parties, so us to bind the right between them, - the costs of the cause to abide the event of the reference thereof thereby made, and the costs of the reference and award to be in the discretion of the arbitrator, who was to decide by whom and to whom and in what manner the Isarae should be paid. The arbitrator on the 15th of October made his award as follows : - 45(5 WEBB V. BIRD 10 C. B. (H. S.) 271. Now, I the said arbitrator, having taken upon myself the burthen of this reference, and having duly weighed and considered the several allegations of the said parties, and the proofs which have been given in evidence before me, do hereby make and publish my award iti writing of and concerning the matters above referred to me, as follows, that is to say,-As to the issues firstly and thirdly joined in the cause, I award and adjudge that the verdict which has been entered for the plaintiff do stand, with 40s. damages : And, as to the issue secondly joined in the said cause, I award and find that, in the year 1856, the plaintiff became, and from thence hitherto hath been and still is, the owner and occupier of the windmill and premises in the declaration mentioned; that the windmill was built in the year 1829 ; that, from the time it was so built, until the school-house and premises in the declaration [271] also mentioned were built by the defendants, the streams and currents of air and wind passed, ran, and flowed without interruption from the west to the said windmill, and supplied the said windmill with air and wind for working, using, and enjoying the same, and were in fact during all that time used and enjoyed for that purpose by the occupiers of the said windmill as of right and without interruption : And I further award and tind, that, in the month of August, 1859, the defendants commenced to erect and build, and in the month of January, 1860, they completed the erecting and building of the said school-house and premises near to the plaintiffs said windmill and premises, that is to say, at the distance of twenty-five yards from the same, and that the said school-house and premises stopped, obstructed, and diverted the streams and currents of air and wind which would otherwise have passed, ran, and flowed from the west to the said windmill and premises of the plaintiff, whereby the working of the said windmill was injured, and the said windmill and premises became injured and deteriorated in value; and, if the court shall be of opinion that the plaintiff ought of right to hate and enjoy the benefit and advantage of the said streams and currents of air, I award that the verdict which has been already entered for the plaintiff upon the second issue joined in the said cause, with 40s. damages, do stand; but, if the court shall be of a contrary opinion, then I award that the verdict already entered for the plaintiff so far as relates to the said second issue be set aside, and that, instead thereof, a verdict be entered for the defendants upon such second issue : And I also award and adjudge, that, if the court shall decide in favour of the plaintiff, the defendants do pay unto the plaintiff the sum of 1751. in full satisfaction and discharge of all damages which since the erection [272] of the said school-house and premises the said plaintiff has sustained, or which he, his heirs or assigns, or his or their tenants, owners or occupiers of the said windmill and premises, may hereafter sustain by reason of the erection of the said school-house and premises ; and that, on...
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