door without leave, but that the house was not in any respect weakened or injured by it; and the judge thereupon directed a verdict to be entered for the plaintiff, with nominal damages, subject to a case: and it was held, on argument, that the plaintiff was not, at all events, entitled to *a verdict; but, as the reversionary interest of the plaintiff might *371] be injured, although the house itself was not, and that question had not been submitted to the jury, the court ordered a new trial. [MAULE, J.-That was waste.] In Shadwell v. Hutchinson, M. & M. 350 (E. C. L. R. vol. 22), 4 C. & P. 333 (E. C. L. R. vol. 19), (a) it was ruled by Lord TENTERDEN, that a reversioner may maintain an action for a nuisance, which produces no injury to his reversion beyond that to the right, and which may be removed before the reversion comes into possession. If the continuance of the sky-light in that case would injuriously affect the plaintiff's right, surely the same result would follow here from the fastening of the gate. [CRESSWELL, J.-The putting a lock on the gate was not necessarily an obstruction of the tenant's free passage.] After verdict, it must be assumed that the tenant was obstructed. In Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, the building of a roof with eaves,—and, in Fay v. Prentice, 1 M. Gr. & S. 828 (E. C. L. R. vol. 50), the erection of a projecting cornice, whereby the rain was discharged on to adjoining premises, was held to be a nuisance from which the law would infer injury to the reversioner of such adjoining premises. Such an obstruction as this, acquiesced in by the reversioner, would afford an answer to a claim of right of way resting upon twenty years' user. He, therefore, clearly must have a right of action, to vindicate his title. [CRESSWELL, J.— Could the reversioner maintain an action, where the gate was locked with the permission of his tenant?] The act of the tenant, in the absence of knowledge by the reversioner, would not be allowed to prejudice him: Daniel v. North, 1 East, 372. BAYLEY, J., in that *case, *372] says: "The tenant cannot bind the inheritance in this case, either by his own positive act, or by his neglect. If, indeed, the landlord had known of these windows having been put out, and had acquiesced in it for twenty years, that would have bound him." [WILLIAMS, J.-That remark would equally apply to a man assenting to a right of way, or to an obstruction of a right of way.] No doubt it would. [WILLIAMS, J. -In Baxter v. Taylor, 4 B. & Ad. 72 (E. C. L. R. vol. 24), 1 N. & M. 11 (E. C. L. R. vol. 28), it was held that a reversioner cannot maintain an action on the case against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in the exercise of an alleged right of way,-such an act, during the tenancy, not being necessarily injurious to the reversion.] The ground upon which the decision in that case proceeded was, that the acts complained of

(a) In this case, a second action was brought, and damages recovered for a continuance of the nuisance. Shadwell v. Hutchinson, 2 B. & Ad. 97 (E. C. L. R. vol. 22).

would not be evidence against the reversioner in support of a claim of right by the trespasser. The question now before the court is of a totally different character. [WILLIAMS, J.-In the report of that case in 1 Nev. & Man. 11, PARKE, B., is made to say- My notion is, that there must be some destruction of the land, to enable the reversioner to maintain this action. No case has ever gone so far as to constitute a simple trespass, like this, an injury to the reversion.' MAULE, J.My brother PARKE does not say that it would not be evidence, if the party claimed a right of way, and meant to assert it.] In Dobson v. Blackmore, 9 Q. B. 991 (E. C. L. R. vol. 58), there was no permanent injury to the reversion; and the jury negatived actual damage. [MAUle, J.-To entitle the reversioner to maintain this action, must not the two things concur, viz., an injury of such a nature as will be presumed to be permanent, and the fact of its being evidence against him on a *claim of right? Will the circumstance of its being evidence [*373 against him alone suffice? It is clear that no action by the reversioner can be founded upon an act done, during the continuance of the lease, by the permission of the tenant.(a) Here, the declaration avers the obstruction to be of such a nature as to be an injury to the reversion. That is clearly the only way in which it can be sustained.] In no case has the right to maintain the action been put upon the ground that something had been done to the land itself. In Shadwell ". Hutchinson, Lord TENTERDEN puts it on the ground of loss of evidence of the right. In Hopwood v. Schofield, 2 M. & Rob. 34, PatTESON, J.,-who was one of the judges who concurred in the decision. of Baxter v. Taylor,—says: "I do not say that a right of way may not be obstructed under such circumstances as would entitle the reversioner to an action on the case: but Jackson v. Pesked, 1 M. & Selw. 234, and all the authorities, show that he can only sue for a permanent injury to the object of his reversionary interest. How can that injury be called permanent, which, it is in evidence, can be redressed in a few days? If, indeed, there had been any obstruction operating in denial of the right, it might have been different." Here, the declaration contains both the allegations, one or other of which was held in Jackson v. Pesked to be necessary to make the declaration good: it avers that the obstruction is of a permanent nature, and that the plaintiff is injured by the consequent diminution in value of his reversionary estate. In Alston v. Scales, 9 Bingh. 3 (E. C. L. R. vol. 23), 2 M. & Scott, 5 (E. C. L. R. vol. 28), a surveyor of highways was held liable in case at the suit of a reversioner, for subtraction of a portion of his bank by the road side, *although the occupying tenant, who was called as a witness, stated that the property was improved by what the surveyor had done.

[*374

Whateley and Piggott, in support of the rule.-To entitle the plain

(a) Quære, where the tenant of a house is passive while a stranger pulls it down.

tiff to maintain this action, he must show that his reversion has been injured, and that the injury is of a permanent 'character. It is not alleged here that the gate was erected by the defendant; but merely, that, being there, he locked it. It is perfectly consistent with that statement, that the defendant locked the gate with the assent of the tenant, and that each had a key. [CRESSWELL, J.-There is an aver ment here that the obstruction was permanent, and an injury to the reversion it must be assumed that the judge would have told the jury that such a declaration would not be proved by the state of facts you suggest.] The court will intend nothing which is not stated. "Nothing can be supplied beyond that of which proof is necessarily involved in the proof of what is alleged:" per Lord DENMAN, in Davis v. Black, 1 Q. B. 900, 911 (E. C. L. R. vol. 41). The distinction which will be found to pervade all the cases, is, whether the obstruction is in its nature permanent or not. [WILLIAMS, J.-What do you mean by permanent?] The erection of a wall, as in Jesser v. Gifford, would be a permanent obstruction: or the building a house across the way. In Baxter v. Taylor, TAUNTON, J., said: "The action is by a reversioner against a mere stranger, and a very different rule is applicable to an action on the case in the nature of waste brought by a landlord against his tenant, and to an action for an injury to the reversion against a stranger. Jackson v. Pesked shows, that, if a plaintiff declare as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must *375] *state an injury of such a permanent nature as to be necessarily prejudicial thereto." In the same case, PATTESON, J., says: "To entitle a reversioner to maintain an action on the case against a stranger, he must allege in his count, and prove at the trial, an actual injury to his reversionary interest. It is said that this action is maintainable, because the plaintiff's title may be prejudiced by a trespass committed under a claim of right: but then, for such an injury, the action must be brought in the name of the tenant, who is the person in the actual possession of the land."(a) And PARKE, J., adds: "To entitle the plaintiff to maintain this action, it was necessary for him to allege, and prove, that the act complained of was injurious to his reversionary interest, or that it should appear to be of such a permanent nature as to be necessarily injurious. A simple trespass, even accompanied with a claim of right, is not necessarily injurious to the reversionary estate: and what Lord TENTERDEN said in Young v. Spencer must be construed with reference to the subject-matter then under consideration,-an action on the case in the nature of waste, by a reversioner against his tenant." The ruling of the same learned judge in Hopwood v. Schofield was to the same effect. Dobson v. Blackmore is precisely in point: there, a count (a) Quare, as to redress for an injury to reversioner's title, being wholly dependent on will of

tenant.

stating the plaintiff to be reversioner of premises, occupied by his tenants, and abutting on a public navigable river, and that the plaintiff and all the liege subjects of the Queen were accustomed of right to have free navigation and passage on the river, for boats, &c., and that the plaintiff was accustomed of right to have, for the enjoyment of the premises by his tenants, free use and navigation of that part of the river near to the same, and free passage for all persons in boats to *approach the same, and pass to the premises from the river, and [*376 unload the boats on the premises, without obstruction, but that the defendant fixed barges, planks, &c., in the part of the river near the premises, and thereby obstructed the use and navigation of that part, and hindered persons from passing to the premises from the river, and hindered the unloading of boats on the premises, and by means thereof the plaintiff was injured in his reversionary interest,-was held bad, in arrest of judgment, as not showing a damage to the reversionary interest.(a) Lord DENMAN, in giving the judgment of the court, there says: The objection to the six counts, was, that the unlawful act charged does not, per se, import any damage to the plaintiff's reversionary interest. The tenant in possession is abridged of his rights by the stoppage of a public road, and may suffer damage from it. But the landlord, who is out of possession, is in nowise damnified by his tenant's being prevented from enjoying his house in so ample a manner as he might otherwise have done. Each of the counts in question would be established by evidence proving that the defendant had, on two different days, placed a bar across the road for five minutes only. In Baxter v. Taylor, a greater obstruction was held to give a reversioner no cause of action. Even a more permanent nuisance may not continue till the end of the lease, when the plaintiff's right of possession would accrue, but might in the mean time be abated by one of the public, or by the sheriff, on indictment." [WILLIAMS, J.-In the case of The Provost and Scholars of Queen's College, Oxford, v. Hallett, 14 East, 489, it was held that an action on the case for an injury to the inheritance, lies by the reversioner, pending the term, against the tenant, for enclosing and cultivating waste land included *in the demise, and for continuing [*377 the grievance. And GROSE, J., said: "Acts of this kind have been held over and over again to be a present injury to the estate of the reversioner." There is a marked distinction between the case which Lord ELLENBOROUGH there puts, of the building of a wall,-Jesser v. Gifford, and the present case. So, in Tucker v. Newman, that which the defendant did, was, in itself, as PATTESON, J., observes, something lasting. That is the distinction which runs through all the cases. [MAULE, J.—You must show that that which is charged here, could not possibly be an injury to the reversion. It must be taken that the Court of Queen's Bench decided, in Dobson v. Blackmore, that proving the (a) And see Rose v. Groves, 5 M. & G. 613 (E. C. L. R. vol. 44), 6 Scott, N. R. 645. VOL. IX.-17

declaration in any way would show no cause of action. The action there was, for obstructing a public way. It was necessary, therefore, to show some particular injury. For anything that appears, there could have been no particular injury.] It has been said that the continuance of this gate for twenty years might conclude the plaintiff. That, however, is not so; for, there could be no enjoyment "as of right," as against the reversioner, so long as the land was in the hands of the tenant: Bright v. Walker, 1 C. M. & R. 211, 219.† PARKE, B., in delivering the judgment in that case, says: "In order to establish a right of way, and to bring the case within this section,(a) it must be proved that the claimant has enjoyed it for the full period of twenty years, and that he has done so 'as of right,' for, that is the form in which by section 5 such a claim must be pleaded: and the like evidence would have been required before the statute, to prove a claim by prescription or nonexisting grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly, and in *the manner that a person *378] rightfully entitled would have used it, but by stealth, as a trespasser would have done,—if he shall have occasionally asked the permission of the occupier of the land,—no title could be acquired, because it was not enjoyed as of right.

MAULE, J.-I think the declaration in this case,-which is objected to after trial and a verdict for the plaintiff, and which alleges that the defendant wrongfully and unjustly locked, chained, and fastened a certain gate in and across a certain way, and wrongfully and injuriously kept and continued the same so locked, chained, and fastened, and so obstructed the way, whereby the plaintiff was injured in his reversionary right and interest,-states a cause of action which entitles the plaintiff to damages; and that we cannot arrest the judgment. It may have been that no evidence was given at the trial, of any such obstruction as could be a permanent injury to the plaintiff's reversion. That might have been ground for a nonsuit, or a verdict for the defendant: but it was not so put at the trial. The only question, therefore, for our consideration, is, whether the plaintiff's reversionary interest might be injured by the acts alleged in this declaration to have been done by the defendant. It appears to me that it might. It is not denied that the erection of a wall across the way,-assuming, of course, that there was no contract as between the tenant of the land and the defendant, -would be an injury to the reversion, although such wall might be pulled down before the plaintiff became entitled to the actual possession of the land and I cannot doubt that there might be such a locking and chaining of a gate as would amount to as permanent an injury to the plaintiff's reversionary interest as the building of a wall. The meaning of the allegation, that, by means of the premises, the plaintiff *was greatly injured in his reversionary estate and interest, is

*379]

(a) 2 & 3 W. 4, c. 71, s. 2.