licenses B. to enter his house to sell goods, B. may take the Chap. IV. necessary assistance for the purpose of selling the goods (a). under 21 Jac. 1, c. 16, s. 5. Under the 21 Jac. 1, c. 16, s. 5, in all actions of trespass Plea of tender quare clausum fregit, where the defendant disclaims any interest in the land on which the trespass was committed, and the trespass was involuntary or by negligence, he can plead tender before action of a sum of money as amends (b). All damages which are the natural result of and are trace- Damages. able to the trespass, are recoverable. Thus where the plaintiff brought an action against the defendant for breaking and entering her house, and under a false charge that she had stolen property in it, ransacking and searching the place, whereby she was injured in her credit, it was held that the jury might give damages for the trespass as aggravated by the false charge (c). In estimating the damages the jury may take into their consideration the fact whether the trespass was wilful and malicious and committed with an intention of insulting the plaintiff (d). In a case where £500 damages had been awarded by the jury in consequence of the conduct and position of the defendant, although little actual damage had been caused by the act of trespass, the Court refused to disturb the verdict. "I do not know," observes Gibbs, C.J., "upon what principle we can grant a rule for a new trial in this case, unless we were to lay it down that a jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentleman has a paved walk in his paddock before his window, and that a man intrudes and walks up and down before the window, and remains there after he has been told to go away, and looks in whilst the owner is at dinner, is the trespasser to be permitted to say, 'Here is a half-penny for you, which is the full extent of the mischief I have done,'would that be a compensation?" (e). In trespass for cutting away part of the plaintiff's land, the defendant is bound to pay the value of the land so cut away, but not the expense of reinstating it; for this may be more than the land was ever worth (f). (a) Dennett v. Grover, Willes, 195. (b) Williams v. Price, 3 B. & Ad. 695. (c) Bracegirdle v. Olford, 2 M. & S. 77; Bell v. The Midland Rail. Co., 30 L. J. C. P. 273; Emblen v. Myers, 6 H, & N. 54; 30 L. J. Ex. 71. (d) Menst v. Harvey, 5 Taunt. 442. Chap. IV. Injunction to prevent tres passes. 36 & 37 Vict. Waste. Voluntary and permissive. Reversion, damage to. Where the trespass consists in the pulling down of a house, the damages are measured by the reduction in the selling value of the land without the house (g). By the Supreme Court of Judicature Act, 1873, 36 & 37 Viet. c. 66, s. 25 (8), an injunction may be granted by the Court either before or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, whether the person against whom such injunction is sought is or is not in possession under any claim or title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both or either of the parties are legal or equitable. Where the plaintiff's title is not disputed, the Court will grant an injunction to restrain acts of trespass without requiring him first to bring an action (). Where irreparable injury would be caused before the right could be properly determined, the Court will restrain by injunction trespass by a stranger (i). The action for waste is given by the statute of Gloucester, 6 Edw. I. c. 5, whereby it lies "against him that holdeth by the law of England or otherwise for the term of life, or for term of years, or a woman that holdeth in dower." There are two kinds of waste, according to Blackstone: voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of the necessary reparation. A tenant at will is not liable for permissive waste (k), and a tenant for years seems liable for waste only according to the terms of his tenancy (1). In order to maintain an action for waste, the plaintiff must have a vested interest in the reversion at the time the waste was committed (m), and must be able to prove some damage to the reversion (n). A tenant for life not made unimpeachable for waste, is responsible for permissive as well as for commissive waste (o). (g) Hosking v. Wilson, 3 Ex. 168. As to measure of damages in case of trespass on coal mine, see Morgan v. Powell, 3 Q. B. 278; Wild v. Holt, 9 M. & W. 672. (h) Goodson v. Richardson, L. R. 9 Ch. 221; 43 L. J. Ch. 790; Stanford v. Hurlstone, L. R. 9 Ch. 116. (i) L. & N. W. Rail. Co. v. Lane. & York. Rail. Co., L. R. 4 Eq. 174. (k) Harnett v. Maitland, 16 M. &W. 257. (7) 1 Wms. Saund. 323d; Jones v. Hill, 7 Taunt. 392. (m) 2 Wins. Saund. 252; Bacon v. Smith, 1 Q. B. 345. (n) Young v. Spencer, 10 B. & C. 145. (0) For examples of commissive or wil The courts will interfere by injunction to restrain a tenant for Chap. IV. life, and persons having only a limited interest in the land, from committing waste to the injury of the reversioner (p). reversioner. A reversioner can maintain an action for any injury done to Rights of the land on which he holds the reversion, provided such injury is of a permanent character (q), or likely to be made the foundation of a right which may injure the value of his property (r). The Prescription Act, 2 & 3 Will. 4, c. 71, s. 8, reserves to the reversioner three years for resisting a claim to an easement on his estate after he has come into possession, although the full period of prescription has previously elapsed (s). An action will not lie at the suit of the reversioner for a nuisance of a merely temporary character, such as the noise caused by passing railway trains, though his tenant pays less rent in consequence (t). The right of action by the reversioner is independent of any remedy the tenant may have in consequence of the same act injuriously affecting his interest (u). 27 L. J. C. P. 330; 5 C. B. N. S. 504; (t) Mumford v. Oxford, W. & W. Rail. (u) Battishill v. Reed, 25 L. J. C. P. 290; 18 C. B. 696. Chap. V. CHAPTER V. SERVITUDES. Definition of easement. EASEMENTS.-PROFITS À PRENDRE. SECT. I.-EASEMENTS. AN Easement is defined to be a service or convenience which one neighbour has of another by charter or prescription, without profit, as a way through his land, a sink, or such like (a). No man can have an easement over his own property, it must be enjoyed alieno solo. There can be no easement properly so called, unless there be both a dominant and servient tenement; a dominant tenement to which the benefit of the easement accrues, and a servient tenement on which the burthen of the easement is imposed. Thus a public road or highway is not an easement, but only a dedication to the public of the occupation of the surface of the land, for the purpose of passing and repassing, the public generally taking upon themselves the obligation of repairing it. In the case of an ordinary easement the occupation remains in the owner of the servient tenement subject to the easement (b). 66 (a) Jacob's Law Dict., "Easement." This definition is taken from "Termes de la Ley," a book "of great antiquity and accuracy," observes Bayley, J., in Hewlins v. Shippam, 5 B. & C. 229. In the Roman law such a right was termed a 'servitude," Just. Inst. Tit. II. De rebus incorporalibus. Servitudes, according to the Roman law, were divided into rural and urban, which two divisions include a large number of the easements which are now recognised by the English law. They are thus enumerated in the Institutes of Justinian, "Rusticorum prædiorum jura sunt hæc: iter, actus, via, aquæductus. *** Prediorum urbanorum servitutes sunt quæ ædificiis inhærent : Item urbanorum prædiorum servitutes sunt hæ: ut vicinus onera vicini sustineat, ut in parietem ejus liceat vicino tiguum immittere, ut stillicidium vel flumen recipiat quis in ædes suas vel in aream vel in cloacam, vel non recipiat et, *** ne ne altius tollat quis æde suas, luminibus vicini officiat," Justinian, Inst. Lib. II. Tit. III. "De Servitutibus." Servitudes, according to English law, have been divided into two classes, natural servitudes, which are derived from the situation of the place, as for instance, the right to lateral support from adjoining land; and conventional or acquired servitudes, consisting of easements and profits à prendre. In the case of a conventional servitude, the foundation of the right lies in grant, express or presumed. In the case of a natural easement, the right is entirely derived from the local situation. In the present chapter which treats of easements, natural servitudes, of which there are not many examples, will be referred to under the appropriate headings. (b) Judgment of Cairns, L.J., in Rangeley v. Midland Rail. Co., 3 Ch. App. 306, in the course of which he strongly An easement, as for instance the enjoyment of a right of way, is said to be appurtenant or appendant, when annexed to a particular house or tenement. No easement or profit à prendre to be enjoyed over or taken from land can be appurtenant or appendant to a house or land, unless it is accessorial to the use or enjoyment thereof (c). In all cases where the easement is appurtenant or appendant the benefit of it passes with the dominant tenement, and the burthen of it with the servient tenement to the successive assignees and owners of the respective tenements, so long as they are vested in different persons. Chap. V. As all easements lie in grant, and as such can only be created Licenses. and assigned by deed (d), a mere parol license confers no right at law, and may be recalled at the pleasure of the grantor. So strict is this rule that a ticket to a theatre, or to the grand stand at a race meeting (e), confers no title on the purchaser, and may be revoked by the grantor after giving notice to the licensee. "A dispensation or license," observes Vaughan, J. (ƒ), “properly passes no interest, nor alters or transfers property in anything, but only makes an action lawful, which before was unlawful." Thus, a parol license to make a drain and watercourse on the land of another is not sufficient to create an easement, and such license may be revoked even although it has been acted upon (g). A licensee occupying a house under a revocable license is entitled to notice of revocation and a reasonable time afterwards to remove his goods (h). Where a landowner has given a parol license to a person to exercise certain rights over his land, and the person in pursuance of such license has incurred expense in constructing permanent condemns the expression easement in gross as used by Heath, J., in Dovaston v. Payne, 2 H. Bl. 527. See Goddard on Easements, 2nd ed. p. 8; Gale on Easements, 5th ed. For instances of peculiar easements, see Harvey v. Walters, L. R. 8 C. P. 162 (right of eavesdrop); Moody v. Steggles, 12 Ch. D. 261; 48 L. J. Ch. 639 (right to put up sign-board on a public-house); Hoare v. Met. Bd. of Works, L. R. 9 Q. B. 296 (erection of sign-post on common); Geoghegan v. Fegan, 6 Ir. Rep. C. L. 139 (use of ashpit and privy). (c) Ellis v. Mayor of Bridgnorth, 15 C. B. N. S. 52; 32 L. J. C. P. 273; Ackroyd v. Smith, 10 C. B. 164; 19 L. J. C. P. 315; Bailey v. Stephens, 12 C. (d) Co. Litt. 9a, 42a; Wood v. Lead- (c) Wood v. Leadbitter, supra. (f) Thomas v. Sorrell, Vaughan, 351; Mitcalfe v. Westaway, 34 L. J. C. P. 418. (g) Cocker v. Cowper, 1 C. M. & R. 113. (h) Mellor v. Watkins, L. R. 9 Q. B. 400; Cornish v. Stubbs, L. R. 5 C. P. 334. |