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By Statute 11 Geo II.

c. 19, s. 21 (Public Statute).

and seized and removed the following articles belonging to the plaintiff, viz.:

2. Both of the defendants were guilty of the following illegal and irregular acts in the carrying out of the said distress:

(a) They failed to give the plaintiff any notice of the said distress as required by the statute;

(b) They failed to have the goods and chattels distrained appraised by two sworn appraisers before selling the

same;

(c) They did not properly advertise the said sale.

3. By reason of the irregularities mentioned in the 2nd paragraph the said goods and chattels sold for a much less sum than they would otherwise have realised and they were worth, and the plaintiff was prevented from attending the sale and purchasing them.

The plaintiff claims £150 damages.

Defence of both Defendants.

To the plaintiff's statement of claim the defendants say they are not guilty by statute.

4. Claim for Illegally Distraining upon other than the Demised

Premises.

1. On the 5th of August, 1882, the defendant, accompanied by several other persons, broke and entered the plaintiff's premises, No. 16, Queen Street, Chatham, and seized and removed a number of articles of household furniture, the property of the plaintiff.

2. On the 11th of the said August the defendant caused the said articles to be sold, and he has applied the proceeds to his

own use.

Particulars of the goods seized:-

[Here set out a list of the articles seized.]

The plaintiff claims £50, the value of the said goods, and £50 damages.

Defence.

1. The plaintiff was, on the said 5th of August, 1882, tenant of the defendant's house, No. 3, Grainger St., Chatham, and there was then due and owing to the defendant, in respect of arrears of rent for the said premises, the sum of £35.

2. On the said 5th of August, 1882, the plaintiff fraudulently and clandestinely removed the goods and chattels, mentioned in the statement of claim from No. 3, Grainger Street, where they then were, to No. 16, Queen Street, Chatham, in order to prevent the defendant distraining upon them for the said rent.

3. Whereupon the defendant in the day-time entered the plaintiff's said house, No. 16, Queen Street, and distrained for the said arrears of rent the said goods and chattels which had been so fraudulently removed, which is the grievance complained of.

5. Claim for Distraining a Pony, and Defence that it was Trespassing.

1. On the 1st of January, 1879, the defendant unlawfully seized, and for several days kept possession of, a pony belonging to the plaintiff.

2. The defendant refused to deliver up the said pony to the plaintiff until he paid the sum of £2, which the plaintiff ultimately did on 5th of January, 1879, under protest.

The plaintiff claims:

(1.) £20 damages for the seizure and detention of the said pony; and

(2.) A return of the said £2.

Defence.

1. The defendant, on the said 1st of January, 1879, was possessed of a close of land called "Bryanstyes," in the parish of Keet, in the county of Rutland.

2. On the said 1st of January the plaintiff's pony mentioned in the statement of claim was trespassing on the said close of land and doing damage thereon.

3. Whereupon the defendant seized the said pony by way of

T

distress for the said damage, and drove it to a common pound and there impounded it, which is the grievance complained of. 4. The plaintiff paid the £2 mentioned in the statement of claim to the defendant in satisfaction of the damage done by the said pony and not under protest.

Reply.

The plaintiff joins issue upon the defence.

Material averments

in an action for dis

Easement (a).

1. Claim by Owner and Occupier of Premises for threatened Obstruction of Light to his Windows, claiming an Injunction.

1. The plaintiff is the owner and occupier of a house, 700, Regent Street, London, in which are the following ancient lights :

(1.) The kitchen window in the basement on the south side;

(a) A person may maintain an action for the disturbance of any easement which he may possess; and in that case the material averments in his statement of claim will be:-1st. That he is the owner or occupier of a particular messuage or house. 2ndly. That as such he is entitled to a turbance of particular easement over the land of another, whether a right of way, of watercourse, of light and air, or whatever it may be. And 3rdly. That the defendant has in some way obstructed it, and so damnified the plaintiff. Easements can be acquired either by custom, grant (express and implied). or by prescription, whether under the Prescription Act, by immemorial user at common law, or by the fiction of a lost grant. (See on this subject the title, "Trespass to Land," post.)

an ease

ment.

Instances

of easements.

In Wood v. Hewett (8 Q. B. 913), it was held a person might have an easement to have a hatch in another man's soil; in Lancaster v. Ere (5 C. B. N. S. 717), the easement established was a right to have a pile fixed in the waterway of the Thames; in Hoare v. The Metropolitan Board of Works (L. R. 9 Q. B. 296), the easement was in having a signboard supported by a pole fixed in the common, the soil of which was vested in the defendants. In Moody v. Steggles (12 Ch. D. 261; 48 L. J. Ch. 639), the plaintiff, the owner of a publichouse, claimed a right to affix a signboard to the wall of the defendant's house, and upon proof that the signboard had stood for forty years, Fry, J., held that the easement claimed was a legal one, and a grant of it by the defendant's predecessors in title to the plaintiff's predecessors in title must be presumed. See also Francis v. Hayward, 20 Ch. D. 773. On the other hand in Sturges v. Bridgman (11 Ch. D. 853), the Court of Appeal held that a right to make a noise so as to annoy a neighbour cannot be supported by user unless during the period of user the noise has amounted to an actionable nuisance.

In Dalton v. Angus (6 App. Cases, 740; 50 L. J. Q. B. 689; 44 L. T. 844 ; 30 W. R. 191), it was finally settled after much discussion that a right to

(2.) The two back dining-room windows on the ground-floor on the south side;

(3.) The landing window and back drawing-room window on the south side.

lateral support from adjoining land may be acquired by twenty years Easement uninterrupted enjoyment for a building proved to have been newly built, of support. or altered so as to increase the lateral pressure, at the beginning of that time; and it is so acquired if the enjoyment is peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by the building. See also Bell v. Love, 10 Q. B. D. 547.

"Water is publici juris in this sense only, that all may reasonably use it Rights of who have the right of access to it. No man can have any property in the water. water itself except in that particular portion which he may choose to abstract from the stream, and take into his own possession, and that during the time of his possession only. The proprietor of the adjacent land has the right to the use of the streams which flow through it not as an absolute and exclusive right to the flow of all the water in its natural state, but subject to the similar rights of all the proprietors of the banks on each side to a reasonable enjoyment thereof." (Embrey v. Owen, 20 L. J. Ex. 212; 6 Exch. 353.) The rights of a riparian proprietor over the water of a natural stream is limited to the reasonable use of it as it passes through his land, and he is bound to allow it to pass on to the lower proprietors without any real diminution of its volume or any deterioration of its quality. If he pollutes it or abstracts any substantial part of it he is liable to the lower proprietors for any damage caused to them, and equally if he impedes the progress of the stream and causes it to back water on to the land of a proprietor higher up he is liable in damages, unless in any or all these cases he can show that by express grant or by user he has gained an easement or right to do the particular act complained of. (Mason v. Hill, 5 B. & Ad. 1.)

A riparian owner cannot, except as against himself, confer on any one who is not a riparian owner any right to use the water of the stream, and any user by a non-riparian proprietor, even under a grant from a riparian owner, is wrongful if it sensibly affects the flow of the water by the lands of other riparian proprietors. (Ormerod v. Todmorden Joint Stock Mill Co., 11 Q. B. D. 155, C. A.)

The Prescription Act, 2 & 3 Will. 4, c. 71, s. 2, applies to watercourses How acas well as ways and other easements, and under it a user by the party quired. claiming the easement for the times specified in the section, viz., twenty and forty years gives a good title under the statute. But the title to easements given by the Prescription Act is in addition to and not in substitution of the old common law titles, and a person may still claim an easement, basing his title upon the fiction of a lost grant or an immemorial user. The practice, where it is necessary in a pleading to set out the grounds of the title, is to claim the easement in all the ways in which it can be acquired, viz., under the statute, under the fiction of a lost grant, and by immemorial user.

A right to discharge the refuse of dye works into a stream is an easement which may be acquired under sect. 2 of the Prescription Act as well as at Common Law (Crossley v. Lightowler, L. R. 2 Ch. 478); so is the right to cast the refuse of mining operations into a natural stream. (Carlyon v. Lovering, 26 L. J. Ex. 251; 1 H. & N. 784.)

Every grantee of a right of way or watercourse to be exercised over and through the land of the grantor must himself repair the way if he desires to have it repaired and kept in repair for his own use, or if repairs

Grantee of a way must repair it.

Rights of light and

air.

Easements

are lost1. By abandonment.

2. The defendant is erecting a building which will, if not stopped, materially diminish the light coming through the said windows.

are necessary to prevent the enjoyment becoming an annoyance and nuisance to the owner of the servient tenement. "If I grant a right to a watercourse through my land, the grantee is bound to keep the watercourse in proper order and repair; and if it becomes ruinous and obstructed, so that the water floods my land, the grantee will be responsible for the nuisance." (Lord Egremont v. Pulman, M. & M. 404, cited 1 Q. B. 775.) And in executing the repairs the person entitled to the right of way is not justified in doing anything to increase the burthen upon the servient tenement, or to enlarge and alter the nature of the easement.

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By sect. 3 of the 2 & 3 Will. 4, c. 71, where "the access and use of light to and for any dwelling-house, workshop or other building shall have been actually enjoyed therewith for the full period of twenty years without intermission, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." The twenty years spoken of in the above section mean the twenty years next before action brought. In Aynsley v. Glover, 10 Ch. Ap. 283, the Court of Appeal decided that a plaintiff could still claim an easement of light and air at Common Law independently of the statute. "The statute does not take away any of the modes of claiming easements which existed before its passing. (Ibid.) By user prolonged over the necessary term a person gets an absolute right to an uninterrupted access of light and air, and that right is in no way affected or diminished by his attempt to enlarge its extent by increasing the size of the windows. (Tapling v. Jones, 34 L. J. C. P. (H. L.) 342; 11 H. L. C. 290, overruling Renshaw v. Bean, 21 L. J. Q. B. 219. See also Staight v. Burn, 5 Ch. App. 163.) "Where the owner of a building having ancient lights enlarges or adds to the number of windows, he does not thereby preclude himself from obtaining an injunction to restrain an obstruction of ancient lights." (Aynsley v. Glover, 18 Eq. 544.) Nor does he lose his right though he alter the plane of the window if any portion of the light which would have passed over the servient tenement through the old windows passes also through the new windows. (National Provincial Plate Glass Co. v. Prudential Assurance C., 6 Ch. D. 757.)

But the doctrine stated in the last paragraph is confined to the case of claims to light and air. The general rule is that "where a person who is entitled to a limited light exercises it in excess so as to produce a nuisance and the nuisance cannot be abated without obstructing the enjoyment of the right altogether, the exercise of the right may be entirely stopped, until means have been taken to reduce it within proper limits. Thus if a man,' says Baron Alderson, 'has a right to send clean water through any drain, and chooses to send dirty water, every particle of the water may be stopped because it is dirty.'' Addison on Torts, 5th ed. 366, acted upon in Watson v. Troughton, 48 L. J. 508; Chester v. Finchley Local Board, 23 Ch. D. 767.

Easements once acquired may be lost in various ways, including-1st, by the owner of the dominant tenement doing some act which unequivocally shows that he abandons the easement. "The presumption of abandonment cannot be made by mere non-user, the non-user must be the consequence of something which is adverse to the user." (Ward v. Ward, 7 Exch. 838.) But if a person entitled to an easement, as of light and air, does any act of notoriety showing that he abandons the benefit

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