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plaintiff Susannah (then being the wife of the plaintiff Chauntler v. Robinson, 4 Exch. 163 ; David) was lawfully using and passing along the said Payne v. Rogers, 2 H. Bl. 349; footway, one of her legs passed through the said iron Woodfall's Landlord and Tenant, 734-5 (8th ed.), grating into the said area or cellar, whereby she was and the case of wounded and became sick and was and is perma Rich v. Basterfield, 4 C. B. 783, nently lamed and disabled.

decides that where a landlord relets premises with a Plea.- Not Guilty ; and issue thereon.

nuisance upon them, he is liable for any damage that At the trial, before Bramwell, B., at the Croydon may ensue. Summer Assizes, 1863, the following facts were It is submitted that the not giving notice to a tenan: proved :

from year to year, when there is a nuisance on the The action was brought to recover damages for an demised premises, is equivalent to a reletting with a injury sustained by Mrs. Gandy, the female plaintiff, nuisance, in consequence of her foot having slipped through Regina v. Pedley, 1 Ad. & E. 822 (per Little between the bars of an iron grating which was in dale, J.). front of the defendant's house, No. 30, Leigh Street, A tenancy from year to year may be considered :) Marylebone. In or about the year 1853 the house be a tenancy which recommences every year, 30, Leigh Street, had been let by a Mr. Ward, the Tomkins v. Lawrence, 8 C. & P. 729 ; then owner, to one Page, as tenant from year to year. Cattley v. Arnold, 28 L. J. Ch. 354. Page died in 1859, and his widow continued to occupy the house, on the same terms, up to the time of the J. Kaye, in support of the rule. accident, the landlord doing any repairs which might A tenancy from year to year is but one term, hor. become necessary.

In 1860 Ward had died, and the ever long it may last, defendant, as devisee under his will, had become the Woodfall, 167 (8th ed.). owner of the house, and had always received the rent. In Rosewell v, Prior, and other cases cited for the

The grating was between the footway and the front- plaintiff, there was a demise of an actual nuisine, wall of the house. It formed no part of the public whereas here the defendant only got the reversion after footway, and was on the private property of the de- the Pages' tenancy had commenced, and long after fendant ; but it was not railed off from the footway, the nuisance had begun to exist. and the openings between the bars were two and three The case of quarter inches wide. The grating had existed in the Bishop v. Trustees of the Bedford Charity, El. & same condition during the whole of the Pages' tenancy, El. 697 ; affirmed in the Exchequer Chamber, 2% but there was no evidence to show when it was first L. J. Q. B. 53, put up. The jury found that the grating was a public is directly in point, and shows conclusively that the nuisance, being dangerous by reason of the width facts of the present case create no liability in the between the bars, and so near the highway as to put defendant. in peril persons passing along the public footway. The doctrine that the owner is liable, although he

A verdict was entered for the plaintiffs for 501., is not occupier, ought not to be extended, leave being reserved to the defendant to move to enter Todd v. Flight, 9 C. B. (N. s.) 377. a nonsuit or a verdict for the defendant, on the ground [CROMPTON, J. referred to that there was no evidence of any special terms of Bush v. Steinman, 1 B. & P. 404 ; tenancy such as would render the defendant liable as Regina v. Watts, 1 Salk. 357.) landlord of the premises. Shcc, Serjt., having obtained a rule accordingly.

CROMPTON, J.-I cannot see that my Brother Brate

well was wrong in this case. We have had the matter Shaw (Montague Chambers, Q.C., with him,) now very ably argued, and all the authorities have been showed cause.

brought before us very fully, and I see no reason why The only question arising on the leave reserved is, we should reserve our judgment, instead of proceedin; whether the allegation that the defendant "negligently to it at once. permitted the grating to remain” in such a state, that The first part of the declaration is so framed as ta is was a nuisance, is supported by proof that he stood allege the special facts which show a duty in the owner, by whilst it was a nuisance, but without notice that it and we must consider whether that duty has been was a nuisance, and did not give the tenant notice made out, and whether, consequently, there has been to quit as he might have done.

a misfeasance by him in the keeping up of the nuis. Where a person lets premises with a nuisance upon ance. Looking at the whole case, I think that the argathem, he is liable for the continuance of the nuisance, ment of Mr. Shaw is well founded, that the verdict on provided it is a nuisance of itself, and does not merely the plea of not guilty was rightly found for the plainbecome so by the act of the tenant,

tiff. From the earliest times it has been law that the Todd v. Plight, 9 C. B. (N. s.) 377 ;

owner of a freehold must so use it as not to injure Rosewell v. Prior, 2 Salk. 460 ;

others. That was laid down in the case of Reg. V.

cause.

Watts. But if a man have let his premises, and so therefore, upon the whole, though the case is not withput them beyond his own control, it would be very out doubt and difficulty, I think the rule should be dis. hard to say that he was still liable for a nuisance exist. charged. ing upon them, for he would have no power to interfere with its existence. But Rosewell v. Prior decides BLACKBURN, J.-1, too, think that this rule should that if such a person has any power to prevent the be discharged. The question is, whether enough of nuisance, he is still liable. Another distinction there the breach alleged in declaration was proved to entitle taken is, that in order to make the landlord liable the the plaintiffs to keep their verdict on the plea of not nuisance must be such as is a nuisance of itself, not a guilty. The breach averred is, “that the defendant thing which only hecomes a nuisance by reason of some wrongfully and negligently allowed the said iron act of the tenant, as for example, a smoky chimney, grating to be and continue in a dangerous state." which only becomes a nuisance when the tenant lights Have the plaintiffs, then, proved the substance of this a fire in it. But if the landlord lets the premises when breach ? Is what is proved sufficient matter to support they are in such a state as to be a nuisance, he must the action? The cases show that the reversioner is be held liable for any damage which may result from not, as such, responsible for a nuisance which exists he existence of such a nuisance upon his own land. upon the premises as occupied by the occupier. That Now a reletting of the premises makes the landlord is laid down by Parke, B., in Chauntler v. Robinson. equally liable : nor do I see the hardship of this, for Next comes the point decided in Rosewell v. Prior. if the rule were otherwise the hardship would be just | There Prior had erected a wall, and the plaintiff, who as great upon the tenant, and there is no injustice in was blocked out by the wall, brought his action ; but the principle that he who receives the rent from the before the action was commenced, Prior had demised premises should be liable for the mischief which they the premises to a tenant. The action was for con

tinuing a nuisance ; and the Court said, “It lies; for We come, therefore, to what is really the great ques. he transferred it with the original wrong, and his tion in this case, and that is, whether it is a reletting, demise affirms the continuance of it: he hath also rent if the person who has the power to terminate the ten as a consideration for the continuance, and, therefore, ancy does not do so, but allows it to go on. Certainly, ought to answer the damage it occasions.” Now, that to me, the two things do appear in reason and in sense must be taken with the qualification that the landto be the same thing. In strictness of law we must lord is only liable in respect of the original nuisance say that a tenancy from year to year is a lasting ten- which he demised ; as, for example, where the nuisance ancy; and yet there is that option in the landlord is the existence of a grating with wide bars, not the which puts it in his power to terminate the holding; leaving of it open by a tenant. The distinctions on and, therefore, whether he has let, or whether he has that point are carefully laid down in Rich v. Basterfield. allowed the tenant to remain in, whether he has let In the present case it appears that the defendant is actively, or, as I might almost say, passively, it comes the reversioner, and that the tenancy from year to year nearly to the same thing.

had commenced before the reversion came to him ; Nor is the case altogether without authority, for the but since the reversion came to him, such time has authorities decide that in the case of a reletting the elapsed that the reversioner might have terminated landlord would be liable without any actual notice to the tenancy; yet he has not done so, and the question him. Then there is the opinion of that very learned is, does that fact bring him within the rules laid down Judge Mr. Justice Littledale (approved of in a consi- in Rich v. Basterfield, and make him liable. In many dered judgment of the Court of Common Pleas), where respects a tenancy from year to year has the effect of he says that“ if a party buy the reversion during a ten a continuing tenancy, and, in pleading, it may be ancy, and the tenant afterwards during his term create a rariously described as a tenancy for so many years, or nuisance, the reversioner is not liable for it; but if as a tenancy from year to year for so many years ; or, such reversioner relet, or, having an opportunity to ter again, as it was put by Patterson, J., in Tomkins v. minate the tenancy, omit to do so, allowing the tenancy Lawrence, as a tenancy commencing at the beginto continue, he is liable for such continuance.” (Reg. ning of any year of the tenancy. We have then v. Pedley, 1 Ad. & E. 822.) A tenancy from year to to decide whether the non-giving of notice to quit year is clearly within the principle there laid down. And was equivalent to a re-demise, so as to make him the Court of Common Pleas in Rich v. Basterfield, liable. My Brother Crompton says, that it ought while they entirely assent to the opinion of Littledale, in common sense to be considered the same, and J., show a distinction between it and the opinion of there is very much to be said for that view. It is Taunton, J., in the same case.

curious that there should be so little authority I am, therefore, of opinion that the present case upon the point. The only authority which has been comes within the mischief which the doctrine of the brought under our notice, is that of Littledale, J., who incurring of liability by a reletting was intended to was a very learned Judge, and a very cautious lawyer. obviate, and that it is within the authorities too. I see He says, that if the landlord allows the tenancy to nothing unfair in holding the defendant liable, and, continue after he has the power of terminating it, he

is liable. I think he must have meant by that to say, possessed of a certain ship called the Gutslaff Adolphe, that if a tenancy from year to year were continued, on the high seas aforesaid, and had the care and it would be the same as a reletting. Having great management of the same ; yet the defendant not respect for his authority, and thinking his view upon regarding his duty in that behalf while the said cable this point consonant with good sense, I agree that this was so lawfully, &c., took so little care, &c., of the rule ought to be discharged.

said ship in the direction, &c., thereof, that an anchor

attached thereto ran foul of and caught hold of and MELLOR, J.-I am of the same opinion. The owner broke and otherwise injured the said telegraph cable of premises ought not allow them to be a nuisance, of the plaintiffs ; and by reason of the premises the but of course he is not liable in respect of the nuisance, plaintiff's were obliged to pay and lay out large sans so long as he cannot obtain possession of the land, for of money in repairing the same, and lost the use of the purpose of putting an end to it. Now, here the jury the cable for delivering telegraphic messages, &c. have found that the grating was originally made in such

The 5th plea alleged that the defendants were aliens a way as to be a nuisance. The tenancy here too is of domiciled in Gottenburg, that the ship was Swedish, such a nature that the landlord might have got rid of and on a voyage from Alicante to Gottenburg

, ani the tenant by means of a notice to quit, if the tenant that in the place where the alleged injury was dose, refused to allow him to abate the nuisance. But the the vessel in the ordinary course of navigation had landlord, instead of putting an end to the tenancy, cast anchor, being more than three miles from the affirms it by receiving rent, and we have to say, coast, and without the realm of England, and that cu whether, under these circumstances, the beginning of drawing up the said anchor the cable was accidentalis each fresh year of the tenancy is not a reletting for the entangled and drawn up, and was a little injured in purpose of rendering the defendant liable. I think disentangling it, and that that was the alleged breach, that it is, and that the defendant is liable because he and that the defendants had no notice of the positiva did not give the tenant notice, but, on the contrary, or existence of the said cable. allowed both the tenancy and the nuisance to remain,

The 2nd replication alleged that before and at the and continued to receive rent.

time the said ship so cast anchor and so got up Rule discharged. her anchor, the defendants and their mariners ard

servants could and ought to have known, and had the

means of knowledge, and but for their negligence and C. P.

}

THE SUBMARINE TELEGRAPH want of ordinary care could and would have known the 20 JAN. 1864.5 COMPANY V. Dixon.

place, position and existence of the said cable, and tha: Pleading - Negligence— Notice of Existence and through the carelessness, mismanagement, and culpežl:

want of knowledge, the said alleged grievances were Locality of the Property damaged Alle

committed. gations.

Also a new assignment to so much of the fifth ples

as averred that for the purpose and in the act of di To a declaration for injury, through negligent navigation, to a submerged electric cable, the defendants injured, and that tllat was the alleged breach. The

entangling the said anchor, the cable was a little pleaded that they were navigating the seas in the usual manner, and that they had occasion to let down their plaintiffs say, that they are suing not only for the anchor near the place where the cable was injured as committed within three miles of the sca-coast

, and

causes of action admitted, but also for causes of actiu alleged, and that without default, and by means of the

within the realm of England, and for that after the action of the winds and waves, the cable and the ship's

defendants had express notice, and were informed of anchor became entangled, and that there was no notice to the defendants of the existence or position of the cable. the position of the said cable within the said təræ Replication that the defendants had the means of know- miles, and that by the carelessness and unnecesse?

violence of the defendant and his servants, that parte ledge of the existence and locality of the cable, and

of the said cable was injured. neglected to make use of such means of knowledge. There

Demurrers to the declaration, the fifth plea, the sai was also a new assignment, being an argumentative traverse of the plea.

replication, and the new assignment. Joinders in

demurrer. Held that the declaration was good, although notice of the existence of the cable was not alleged ; that the

Rochefort Clarke, for the plaintiffs. plea was good, as putting in issue the negligence charged, and that the replication was good.

It is said it is necessary to insert an allegation ?

notice in such a declaration as this; but when yzu Quære, as the new assignment.

charge negligence such an allegation is involved, DEMURRER.-Declaration : That before and at the Wyatt v. Harrison, 3 B. & Ad. 871 ; time when, &c., the plaintiffs were ossessed of a Dodd v. Holmes, 1 Ad. & E. 493. certain telegraph cable, lawfully lying and being in (WILLIAMS, J.-Those cases are modified by the high seas, and that the defendant was then also Chadwick v. Trouer, 6 Bing. N. C. 1.]

[WILLES, J.-Chadwick v. Trower, and that class put some clearness of meaning upon it for the sake of of cases, relate to injuries to real property, and are guiding the jury. distinguishable. Is not this the common form adopted It is argued that notice should have been alleged in in action for collision ?]

the declaration, and that it cannot be said that a Yes, no allegation of notice has ever been thought foreigner is bound to make inquiries whether there is necessary,

a telegraph cable at the bottom of the sea or not. But Mayor of Colchester v. Brook, 7 Q. B. 339 ; the question of knowledge of the existence of the cable Butterfield v. Forrester, 11 East, 60.

is involved in the question whether there was negli. Then it is said that the replication is a departure; it gence or not; besides, the replication states, in answer but reinstates the question of negligence first alleged, to the plea which alleges no knowledge of the cable, and endeavoured to be diverted by the plea. The that "you had the means of knowledge and neglected plea is bad for not showing that they had not the to make use of them,” and this allegation takes away means of knowledge of the cable.

that defence.

It is urged that had the ship been lost through the Archibald (Bovill, Q.C., with him). The declaration is bad, because it must show a duty would have lain against the company; no doubt, had

way in which the cable had been laid down, an action and a breach of it. In cases of collision, sufficient there been negligence, which is precisely the same proof of an existing duty is shown on the face of the

question again. declaration ; but here is a use made of the sea, per

The new assignment may be treated as a traverse of fectly novel, and non-apparent, and an allegation of

the plea. notice is therefore necessary, Metcalfe v. Hetherington, 11 Exch. 257 ;

WILLIAMS, J.-I think the declaration is good, Brown v. Mallet, 5 C. B. 599. (WILLES, J.—That last case is not quite consistent include the question raised here, and I think the plea

because the meaning of the word “negligence ” must with another in the Exchequer. *] He cited also,

good as an argumentative traverse of the declaration.

I have some doubt as to the new assignment; it is Southcote v. Sta ey, 1 H. & N. 247 ;

rather opposed to my views of the nature of new Dutton v. Powles, 31 L. J. Q. B. 191;

assignments. Cox v. Burbridge, 32 L. J. C. P. 89; Harmond v. Pearson, 1 Camp. 515;

WILLES, J.-I agree. It is clear that a man must The Saxonia, 1 Lush, 410; 31 L. J. Adm. 201.

not so act as to cause damage to the property of others, ERLE, C.J.-I am of opinion that the declaration is and it is no answer to say, that there was something in good, and that the fifth plea is good. The declaration the way of quite a novel character-a diving-bell, a complains that an injury to the plaintiffs' property has breakwater, are almost as novel; yet a ship cannot be been done by the defendant in the course of navigation, navigated in perfect disregard and want of care of and that the injury occurred through the negligence of such things. An anchor even improperly laid down the defendant.

cannot be damaged wantonly. It is always simply a I assume that the bottom of the sea may be used question of negligence ; the water may be thick and for lawful purposes, and I think that the Court may muddy, or clear and undisturbed, and many other take judicial notice of the existence of telegraph cables. things have to be considered in deciding that question. Acts of Parliament have been passed with reference to To the cases cited I will add that of The Batavier (10 them, and it is known throughout the world that such Jur. 19), before Dr. Lushington, where it was alleged cables do traverse the bottom of the seas. The defen- that the vessel injured was in an improper place, and dant had a right to navigate the sea for ordinary pur that no sufficient look-out was kept, and so on; but poses, and to let go his anchor if occasion should that learned Judge held that that was no answer; for require it, and this is the defence set up by the plea. that it is the duty of every vessel, whether it sees Here then there were two rights in conflict. Then another in a proper or improper place, to avoid, if it comes the replication, which says, you might have be consistent with its own safety, a collision. The had the rights you set up had you exercised them second replication, being a traverse of an essential with due care, but you had no right to act contrary to part of the plea, is good. The new assignment, due care, and forgetful of the rights of others. The if good at all, is only good as an argumentative whole case hangs on that word "negligently”; it traverse of the plea. I agree with my Brother means here that the act complained of was done wil. Williams that this is a new and unusual use of a new fully or without due skill. That word has been more assignment. misapplied by reason of its extreme vagueness than Judgment for the plaintiffs on the demurrer to any other word, and the plea was allowed + in order to

the declaration and replication, and for

the defendant on the demurrer to the fifth Quore, White v. Crisp, 10 Exch. 312; 23 L. J. Ex. 317.

plea. | 3 N. R. 44.

VOL. III.

Z

Reg. v. Capel, 12 Ad. & E. 382;
HACKETT, Appellant, v. OVER-

6 & 7 Will. 4, c. 71, ss. 17, 37 (Tithe Commuta. C. P. SEERS OF LONG BENNINGTON,

tion Act); 5 FEB. 1864. and J. ANDREWS and C. AN.

43 Eliz. c. 2, s. 1. DREWS, Respondents.

ERLE, C.J.-The appellant is entitled to our judg. Poor-rato-Corn-rent-charge-Tithes- ment. The Act has provided that the corn-rent shall Deductions.

be paid to the vicar, “clear of all parochial rates and A local Act, passed in the year 1794, directed Com. taxes.” I am clear, if that clause were not in the

Act, that the corn-rent would be rateable ; but the missioners to set out and inclose waste lands in compen. Act here expressly exempts the corn-rent from raie sation for tithes, great and small: thirty acres to be

ability. Mr. Poland says, that there is a close settled on the vicar and his successors, and the residue

analogy between this corn-rent charge and a titheon the rector and his heirs, but subject to the payment commutation rent-charge, that they are almost idenof a rent to the vicar and his successors in lieu of tical, and that by the Union Assessment Act the latter the vicarial tithes, minus the annual value of the thirty charge is to be deducted from the amount at which the acrcs allotted: the Commissioners to assess the rent.

He says that it is charge as follows :—they were to find what part of all occupier of the land is rated. the land set out and inclosed should be a fair and inequitable to cast on the land a charge of this kind equitable compensation for the vicarial tithes, and then (when the old law did not make the land, but the

tithes liable to the rate), unless there are words in the to find the average price of wheat during the past statute of 1794 making the land expressly liable. twenty-one years, and on that estimate to calculate the quantity of wheat which should be equal to the yearly to them; but my judgment goes on the local statuta.

As to the cases, such as Reg. v. Hambletou, I agree ralue of the part of the land so ascertained as above

It would have been clearly an unjust thing in the mentionod, exclusive, however, of the thirty acres : a corn-rent equal to the value of the quantity of whcat Legislature to have exempted a large fund from was to be paid thenceforth annually to the vicar and his liability, so as to make others supply the deficiency. successors, clear of all parochial rates and taxes. The There is a presumption always against such a constre.

tion of a statute. Act further enacted the extinction of the tithes thence

When the Commissioners had to ascertain what was forth. The respondents, occupiers of the lands allotted to the the vicar, I think they were bound, as between the

the fair and cquitable compensation to be a varied ta rector under the Act, were assessed at the full annual

rector, the vicar, and the parish, to treat the arrangevalue of their land, less the amount payable, as corn.

ment with the vicar as in accordance with the Tribe g'ent, to the vicar :

Commutation Act--that the vicar, having a spiritual Held, that they were rateable at the full annual

charge, should not be encumbered by the anxietiei value, without making any deduction.

attending the cultivation of much land, and that he SPECIAL OASE.—This was an appeal against an

should have an income free from agricultural risks. assessment for the poor-rate of the parish of Long The rector acquired a statutory lease of these lands for Bennington, Lincolnshire. J. Andrews and C. Andrews ever, and the Commissioners had to ascertain what boing the persons rated in respect of their occupation would be a fair rack-rent to be paid by him to the of certain land in the said parish. The land in ques.

vicar, as if the lands had been considered as let to hin tion was allotted to the lay-rector and his heirs under by the vicar. The statute says :-You shall take the the circumstances set forth in the head-note, and the lands and the burthen, but you shall pay the rack. question was, whether the respondents J. and C.

rent assessed as a corn-rent to the vicar. Andrews were properly rated.

WILLIAMS, J.-I agree. It was not the intentia Cave, for the appellant, cited,

of the local Act to give a bounty to the vicar of Lowndes v. Horn, 2 W. Bl. 1252;

freedom of rates as to tithes, but that, somehow e Rex v. Boldero, 4 B. & C. 467 ;

other, the rates are to be paid out of the tithes. The Chanter v. Glubb, 9 B. & C. 479 ;

way in which the Act did this was, by making a comRex v. Wilson, 5 N. & M. 119;

rent chargo, by which there was to be paid to the Reg. v, Hambleton, 1 Ad. & E. 145;

vicar a fair and equitable compensation for his tithes : Reg. v. Shaw, 12 Q. B. 419 ;

not, that is, a present of the rates, but a compensation 6 & 7 Will. 4, c. 96; s. C. (Parochial Assessment equal to the gross amount of the tithes, minus the Act);

rates; and so the vicar is in effect charged, for he gets 23 & 24 Vict. c. 103 (Union Assessment Act).

his tithes less the rates. The lands of the rector out

of which the corn-rent issues are chargeable there Poland, for the respondents, cited,

fore, for he has what the vicar has lost. The statute Joddrel, 1 B. & Ad. 403 ;

of the 6 & 7 Will. 4, can make no difference in this R:4. v. Lumsden, 10 Ad. & E. 157 ;

Rca v.

case.

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