Imágenes de páginas
PDF
EPUB

1869. BAILY

V.

DE CRESPIGNY

by the defendant to the Company was the assignment in completion of that compulsory purchase; that the Company afterwards built on the paddock the erections complained of, which were erections reasonably required for the purposes of the undertaking authorized by the Act, and that except as aforesaid the defendant did not permit the erections to be built. Demurrer. Replication. That the erections, though reasonable, were not necessary or compulsory for the Company to build. Demurrer. Held,

1. That under The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18. s. 75., which makes it imperative that the owner of land shall, on the performance of the conditions imposed on the Company, when required so to do, duly convey the land to the Company, &c. The L. B. & S. C. Railway Company were assignees of the land not by the voluntary act of the defendant, but by compulsion of law.

2. That the defendant was discharged from his covenant by the subsequent Act of Parliament, which put it out of his power to perform it; as this discharge extended to acts which the Company were by the Act of Parliament empowered to do as well as those which they were compelled to do.

THE declaration stated that the defendant by deed

demised, among other hereditaments, to the plaintiff a certain piece or parcel of ground, situate &c., and all that messuage or tenement, together with other erections and buildings then recently erected and built thereon by the plaintiff, for eighty-nine years from the 25th March, 1840, at a rent thereby reserved, and the defendant thereby, among other things, covenanted with the plaintiff that neither the defendant or his heirs, nor his assigns, should or would during the term permit to be built on the ground or paddock fronting the premises demised by the deed towards the north any messuage or dwelling house, coach house or stable, or other erection, save and except &c. Averment of the fulfilment of all conditions precedent. Breaches. That after making the demise, and during the term, First. The defendant permitted to be built on the ground or paddock certain erections other than those by the deed excepted, to wit, a railway station, with the appurtenances thereof, including waterclosets and urinals, and the plaintiff by reason of the premises had been greatly annoyed and damnified in the enjoyment of the land,

messuage and hereditaments demised by the deed, and the value of the land and messuage and of the term had been much depreciated, and the amenity and comfort of the land and messuage as a residence had been deteriorated by the interference with the prospect therefrom by reason of the erections and by reason of the smoke proceeding from the chimneys of the railway station and premises, and by reason of the plaintiff's messuage being overlooked by the windows of the railway station and premises, &c. Second. The defendant assigned the ground or paddock to The London, Brighton and South Coast Railway Company, and the Company after the assignment, and during the term, and while they were possessed of the ground or paddock by virtue of the assignment from the defendant, erected and built the railway station, with the appurtenances, on the ground and paddock, contrary to the covenant, to the damage of the plaintiff as above mentioned.

Plea. That after the making of the deed The London, Brighton and South Coast Railway Company required to take and purchase the ground or paddock under the powers given them by The London, Brighton, and South Coast Railway (New Lines) Act, 1862, 25 & 26 Vict. c. lxxviii., and for the purposes for which they were by the Act empowered to purchase and take the ground or paddock; and that the ground or paddock was land which the Company were empowered by the Act to purchase and take compulsorily for the purposes of their undertaking authorized by the Act; and that the Company under and according to the powers conferred upon them by the Act, and by virtue of the Act, compulsorily purchased and took the ground or paddock, and for the completion of the purchase the defendant by deed

1869.

BAILY

V.

DE CRESPIGNY

1869.

BAILY

V.

conveyed the ground or paddock to the Company and their successors, which was the assignment in the declaDE CRESPIGNY ration mentioned, whereupon and whereby the Company under and by virtue of the Act became seised in their demesne as of fee of the ground or paddock, and continued so seised, until afterwards the Company, being so seised, built on the ground or paddock the erections in the declaration mentioned, which were erections reasonably required by them for the purposes of their undertaking authorized by the Act, which building by the Company was the building complained of in the breaches; and that, except as aforesaid, the defendant did not permit the erections to be built.

Replication. That, although reasonable, still it was neither necessary or compulsory for the railway Company to build the station on the land in question. Also demurrer and joinder.

Demurrer to the replication, and joinder.

The demurrers were argued, November 10, 1868, before COCKBURN C. J., LUSH, HANNEN and HAYES JJ.

Meadows White, for the plaintiff.-The covenant declared upon is absolute that the lessor and his assigns would not permit any building to be erected on the paddock in question; and the plea does not shew anything in the Company's Act to repeal it. The replication avers that it was not obligatory on the Company to build a station on the paddock: and therefore the cases decided on the principle that a subsequent Act of Parliament destroys a covenant or discharges a party from performing it do not apply. [He cited Brewster v. Kidgill (a), per Holt C. J., Wynn v. The Shropshire Union

(a) 12 Mod. 166. 169; S. C. nom. Brewster v. Kitchell, 1 Salk. 198.

Railways and Canal Company (a).] In Barker v. Hodgson (b) the freighter of a ship, who had covenanted to send a cargo alongside at a foreign port, was not excused by reason of events which happened there preventing performance of his covenant. The defendant, in treating with the Company, would state that he was under a covenant not to build on the paddock, and that he would have to pay compensation to his lessee if the station was built there; and they must give him in addition to its real value what he would have to pay his lessee.

Raymond, for the defendant.-First. The defendant did not within the meaning of his covenant permit the buildings to be erected on the paddock. At the time when they were erected the Company were owners in fee in possession of the paddock, and had power to erect the buildings without any permission from the plaintiff. The permission intended in the covenant is a licence giving authority, the absence of which would render the party doing the act in question a wrong doer, who might be restrained or mulcted in damages by the party whose permission was necessary to authorise the act.

Secondly. The Company were not assigns of the defendant within the covenant. The word "assigns" in the covenant meaus assigns by the defendant's voluntary act; not assigns by compulsion of law. The defendant was no party to the Company's Act under which they compelled him to assign; and performance of a condition or covenant is excused by act and operation of law; Com. Dig. Condition (L 13). In Doe d. Mitchinson v. Carter (c), where the words of the covenant (4) 3 M. § §. 267.

(a) 5 Each. 420.

(c) 8 T. R. 57.

1869.

BAILY

V.

DE CRESPIGNY

1869.

BAILY

V.

DE CRESPIGNY

were that the lessee should not "let, set, assign, transfer, make over, barter, exchange, or otherwise part with," the indenture or the premises demised, Lord Kenyon said, p. 61, "These are all acts to be done by the tenant himself. And I adopt the distinction, relied upon by the defendant's counsel, between those acts that the party does voluntarily and those that pass in invitum." And Grose J., p. 62, "In Crusoe v. Bugby (a), the Court said that the lessee becoming a bankrupt was a doing or putting it (the term) away,' so 'being in debt by confessing a judgment and having the term taken in execution, was the like'; but said that none of these amounted to an assignment.' Now if the words in this proviso were only inserted to guard against an assignment by the party himself, (and it seems to me that they were,) then, according to the above case, there has been no assignment in this case, and consequently no breach of the condition." And Lawrence J., p. 64, "On the whole, therefore, I think that the safest way of deciding this question is to look to the terms of the lease, and according to those it does not appear that the tenant has done any act to create a forfeiture. This determination will not be productive of any mischievous consequences, because the parties may always stipulate (if they please) that the lease shall cease and be determined in case of the bankruptcy or insolvency of the Jessee." [Cockburn C. J. In Doc d. Mitchinson v. Carter, when first argued, the warrant of attorney to confess judgment appeared to be given by the lessee with the view of securing the debt of his creditor, and was not intended by him as an assignment of the premises. Lush J. The lessee did not aliene the premises,

(a) 2 W. Bl. 766; 3 Wils. 234.

« AnteriorContinuar »