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a certain cotton mill
, with the appurtenances, situate at Addingham, in the county of York, near to two certain rivulets there called the Town Beck and the Back Beck, the water of which rivulet called the Back Beck until the interruption complained of had flowed into and still of right ought to flow into the Town Beck by means of a certain tunnel or goit there above the plaintiff's weir there erected across the Town Beck a little above the said mill; and the plaintiff by reason of his possession of the said mill during all the time of working the same, of right ought to have had, and still of right ought to have, the use and benefit of both the said rivulets called the Town Beck and Back Beck: yet the defendant, knowing the premises, and to deprive the plaintiff of part of the use and benefit of his said mill with the appurtenances, whilst the plaintiff was so possessed thereof as aforesaid at, &c., cut a channel, &c., whereby the water of the Back Beck was diverted from running into the said tunnel or goit, and so to the mill, and the plaintiff was prevented from working his said mill, &c.
At the trial before Rooke, J., at the last assizes at York, it appeared in evidence that the tunnel or goit which was made and fixed into the ground with stone-work, had been made in part over an old road purchased by the defendant about eight years ago for a guinea, who at that time agreed for the same price to let the plaintiff lay the tunnel there for the purpose of conveying the water to the mill; that the defendant eren assisted at the making of the tunnel under the plaintiff's directions ;
no conveyance was made of the land to the plaintiff. The guinea was afterwards tendered to the defendant, but he refused to receive it Of to give his assent to the continuance of the tunnel, and made the obs truction complained of. It was objected on the part of the defendant, that the plaintiff ought to be nonsuited, this being a right claimed in or over the land, which could not pass by parol license without deed;
the declaration states that the plaintiff had a right to the goit by rea-son of his possession of the mill, whereas it appeared that he had it by virtue of the agreement. But the learned judge refused to nonsuit the plaintiff, on the ground that as the agreement was made in respect of the mill, and as it might be disputable whether if the mill were taken away the plaintiff could have a right to the water for other purposes, the declaration stated the right with sufficient correctness, and his claim might be supported without deed, but reserved the point. The defendant then called witnesses, and there was a verdict for the plaintiff with nominal damages.
Park and Topping showed cause shortly against a rule for setting aside the verdict and entering a nonsuit, on the ground that it was sufficient for the plaintiff against a wrong-doer to declare upon his possession of the mill with the appurtenances. But
LORD ELLENBOROUGH, C. J., said, that such an allegation could not be sustained without showing that the appurtenances were legally such. Now here the title to have the water flowing in the tunnel over the defendant's land could not pass by parol license without deed; and the
at any time.
plaintiff could not be entitled to it, as stated in the declaration, by rea. son of his possession of the mill, but he had it by the license of the defendant, or by contract with him; and if by license, it was revocable
The enjoyment with the defendant's assent was not left as evidence to the jury to presume a grant, but it was supposed that it gave a title in point of law, which it clearly did not. PER CURIAM.
Rule absolute. Cockell, Serjt., Holroyd and Hardy, were to have supported the rule.
[Reported 8 East, 308.] This was an action on the case for a nuisance, wherein the plaintiff complained, that being lawfully possessed of a dwelling-house with the appurtenances in Long Acre, &c. (Westminster), into which the liglit and air entered by means of a window from a certain open area between the said window and an adjoining house; by means of which open area also noisome smells which came from the adjoining bouse evaporated, without occasioning any nuisance to the occupier of the plaintiff's house ; the defendant wrongfully placed a skylight over the area above the plaintiff's window, by means of which the light and air were prevented from entering the plaintiff's window into his house, and noisome smells arising from the adjoining house were prevented from evaporating, and entered the plaintiff's dwelling-house, &c. Plea, the general issue. At the trial before Lord Ellenborough, C. J., at the last sittings at Westminster, the defence set up was that the area which belonged to the defendant's house had been enclosed and covered by a skylight in the manner stated, with the express consent and approbation of the plaintiff, obtained before the enclosure was made, who also to have part of the framework nailed against his wall. But some time after it was finished the plaintiff objected to it, and gave notice to bave it removed. But his lordship was of opinion, that the license given by the plaintiff' to erect the skylight, having been acted upon by the defendant, and the expense incurred, could not be recalled, and the defendant made a wrongdoer, – at least not without putting him in the
1. "A right of way or a right of passage for water (where it does not create an interest in the land), is an incorporeal right, and stands upon the same footing with other incorporeal rights
, such as rights of common, rents, advow'sons, &c. It lies not in livery, but in grant, and a freehold interest in it cannot be created or passed (even if a chattel interest may, which I think it cannot), otherwise than by deed.” Per BarLEY, J., in Hewlins v. Shippam, 5 B. & C. 221, 229 (1826).
same situation as before, by offering to pay all the expenses which had been incurred in consequence of it; and under this direction the defendant obtained a verdict.
Wigley (in the absence of the Attorney-General) now moved for a new trial; but after stating the point,"
LORD ELLENBOROUGH, C. J., said that the Attorney-General, who led the cause at the trial, had himself mentioned this case at the beginning of the term, in the argument of the case of the Quarriers in the Isle of Purbeck, certainly without intimating any disapprobation of the opinion which had been delivered at the trial, but insisting upon it in support of his argument. His Lordship added that the point was new to hiin when it occurred at the trial; but he then thought it very unreasonable, that after a party had been led to incur expense in consequence of having obtained a license from another to do an act, and that the license had been acted upon, that other should be permitted to recall his license and treat the first as a trespasser for having done that very act. That he had afterwards looked into the books upon this point, and found himself justified by the case of Web v. Paternoster (best reported in Palmer, 71, but reported also in other books, Poph. 151 ; 2 Roll. Rep. 143, 152), where Haughton, J., lays down the rule, that a license executed is not countermandable, but only when it is executory. And here the license was executed.
Wigley thereupon waived his motion.?
A doubt was also suggested, which was stated and overruled at the trial, whether a la sol license, as this was, was good by the Statute of Frauds, as relating to an interest in land. See Wood v. Lake, Sayer's Rep. 3, and Crosby v. Wadsworth, 6 East,
602. - REP.
All that the defendant there [in Winter v. Brockwell] did, he did upon his own lan « l. He claimed no right or easement upon the plaintiff's. The plaintiff claimed a rigt at and easement against him ; viz., the privilege of light and air through a parlor win dow, and a free passage for the smells of an adjoining house through defendant's are : and the only point decided there was, that as the plaintiff had consented to the obstruction of such his easement, and had allowed the defendant to ineur expense in making such obstruction, he could not retract that consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it.” Per Bayley, J., in Hewlins v. Shippam, 5 B. & C. 221, 233 (1626).
[Reported 2 Bing. 76.] These were actions of trespass for breaking and entering plaintiff's close at Lymister, otherwise Leominster, in Sussex, and forcing and breaking open his gate and its fastenings.
The defendant Goring pleaded, first, Not guilty, on which issue was joined ; secondly, A right of way of necessity, alleging that the close in which, &c., together with another close adjoining on the east, did lie between two other closes belonging to the defendant, and in the occupation of William Elliott, as his tenant; that the defendant, at the time of the conveyance afterwards stated, was seised of all the four closes, and on the 7th October, 1801, enfeoffed George Duke of the close in which, &c., and the other close adjoining thereto on the east, and that at the time of the feoffment, defendant had no other way to one of the said closes in the occupation of Elliott but over the close in whicb, &c., and the other close adjoining thereto on the east, and was therefore entitled to, and still of right ought to have for himself and tenants a convenient and necessary way thereto over the close in which, &c., and in the exercise thereof committed the supposed trespasses.
Replication, that the defendant had not necessarily, and of right ought not to have had, and still of right ought not to have for himself and tenants such convenient and necessary way as in the said second plea mentioned, in manner and form as in that plea alleged.
The plaintiff also made new assignment.
Issue was joined on the above replication to the special plea, and also upon a plea of Not guilty to trespasses newly assigned.
These issues came on to be tried at the Sussex Spring Assizes, 1822, before Wood, B., and a special jury, when a verdict was found for the plaintiff on the issues joined on the plea of Not guilty to the declaration, with 1s. damages ; and for the defendant on the issue on the plea of Not guilty to the new assignment, and on the replication to the second plea, — subject to the opinion of the court upon a case in substance as follows:
Previously to the year 1798, the defendant was seised in fee of the first and fourth of four closes, called the Brooks (in the parish of L\mister in Sussex), extending in a line eastward from the Littlehampton and Arundel Road which skirted the western side of the first close ; and having no means of approach from the Arundel Road to the fourth close without passing through the third, enjoyed a right of way out of
1 See the plan in the next page.
the first close through the south end of the second and third closes into the fourth.
In 1798, the defendant being then and still seised in fee of a fifth close, in the occupation of Mrs. Falconer, which extended from the Arundel Road along the south side of the first, second, and a part of the third close, — and of a seventh, which extended along the south side of the fourth close, – purchased in fee the sixth close, which extended along the residue of the south side of the third ; and also purchased in fee the second and third closes, subject to a term in George Duke, to expire in 1807.
In 1801, the defendant conveyed to George Duke by feoffment in fee the second and third closes, together with a slip out of the sixth, extending from the south side of the third to the south side of and bisecting the sixth close, and another slip extending from the south side of the fourth, along the western and down to the south side of the seventh close.
These two slips, out of the sixth and seventh closes, the defendant repl xchased in fee of George Duke about the year 1810.
The plaintiff, who held the second and third closes under Duke, bron ght this action against the defendant for entering the second close in 1820, in the exercise of his alleged right of way over it.
It appeared in evidence, that at the time when the oldest witnesses remembered the premises (about seventy years back), the four closes called the Brooks were all occupied by one Amey, and after him by one Ridding; but that about forty years ago, and since, one Stevens, and after him Ridding, held the two outer ones, Duke then holding the two middle ones only, and that as far back as living memory could reach, there had been a gate leading from close 1 into the highway from Arundel to Littlehampton, and also gates of communication between the closes 1, 2, 3, and 4, respectively at the southwest corners of each of the three last of them, and during that time, until such obstruction as in the said second plea mentioned, the occupier for the time being