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rabbits, such an agreement is collateral and need not be in
writing, although the occupation be under a lease required
to be in writing by the Statute of Frauds, and although the
lease reserves the right of shooting to the landlord (c).

Compensation for damage by rabbits. — When there was an
agreement that the tenant would pay compensation for
damage done by hares and rabbits, to an amount to be deter-
mined by arbitration, it was held that a reference to arbitra-
tion Avas a condition precedent to suing upon the agree-
ment (d}.

We have already seen that under a reservation of sporting
the tenant is not entitled to kill rabbits (e), but that on a
grant by the landlord to a third person of sporting rights,
the grantee is not entitled to turn rabbits on the land (/).
A tenant may kill rabbits on his own land without being
liable to prosecution under the Game Act (1 & 2 Will. 4, c.
32, s. 80) (g).

In West V. Houghton (A) a lease was made between the
plaintiff and defendant by which the plaintiff granted exclu-
sive rights of sporting over his estate to the defendant, who
covenanted that he would keep down rabbits so that no
appreciable damage might be done to the crops. Appreci-
able damage was done to the crops of a tenant, but the
plaintiff was not liable to compensate, nor did he compen-
sate the tenant. It was held, in an action by the plaintiff
for breach of covenant, that having suffered no damage him-
self, and not being a trustee f(5r the tenant, he was entitled
to nominal damages only.

By the Hare Act (11 & 12 Vict. c. 29) (i), a tenant

[*727] if entitled to *the game, but not otherwise, may kill

hares on his enclosed lands without a game licence,

or may depute another person to kill them for him by an

(c) Morsan v. Griffiths, L. R., G Ex. (g) Spicer i: Barnard, 28 L. J., M.

70; 40 L. .]., Ex. 46; 23 L. T. 86; 19 C. 170.

W. R. 957. (h) L. R., 4 C. P. T). 197; 40 L. T.

, (d) Dawson v. Fitzgerald, L. H., 9 364; 27 W. R. 678.

Ex. 7; 43 L. J., Ex. 19. (i) Tliis act seems now to be prac-

(e) .JolTrj'es r. Evans, antp, 719 (//). tically superseded by s. 4 of the

(/) Hilton V. Green, ante, 719 (d). Ground Game Act, 1880, 728, post.

1110



Cii. XVIII. S. (5.] GAME, &C. *727

authority to be registered with the clerk to the justices of
the petty sessional division.

Certificate. — The Game Certificate Act (23 & 24 Vict, c
90) dispenses with a certificate in the case of a person kill-
ing rabbits on his own land.

The Ground Game Act, 1880. — We now come to the Ground
Game Act, 1880 (43 & 44 Vict. c. 47), which gives to all
tenants holding under leases made after thejyassing of that act
(7th September, 1880) a right to ground game concurrent
with that of their landlords, and a similar " concurrent right "
to tenants under tenancies from year to year created before
the passing of the act, notwithstanding any reservation of
the game to the landlord in the contract of tenancy.

The concurrent right. — By section 1, it is provided that
"eveiy occupier "' shall have as incident to and inseparable
from his occupation the right to kill and take ground game
concurrently with any other person who may be entitled to
kill and take ground game on the same land. The words
" every occupier " here will clearly include the case of joint
tenants in their own right, and probably also joint tenants in
the right of another as trustees or executors ; for in their
representative capacity they are just as much interested in
keeping down the game as their beneficiaries.

Limitations of the concurrent right. — But the same section
limits the exercise of the riglit to the occupier himself or
" persons duly authorized in writing," which persons must be
either members of his household or persons in his ordinary
service on the land " and any other person " employed for
reward, and further provides that only one jierson may be
authorized to kill the game with fire-arms.

Upon the limitations it is to be observed that the authority
in Avriting need not necessarily be signed (/c) (though it is
desirable that it should be), and that air-guns — for which,
however, a licence is recjuired by the Chin Licence Act,



(i) In Poolcy t'. Driver, L. Tl.,.'') Ch. required sigiKiturc; but the ca.'^e ap-
D. 458, no doubt it was held tliat a pears not to be sufficiently in point to
contract in writins; under Bovill's Act povern the present as an authority.

1111



*728 OF RIGHTS OF COMMON, &C [Ck. XVllI. S. «.

1870 — are not excluded. In case of a joint tenancy, the
joint tenants must concur in giving the authority.

By sub-s. 1 (c) the authority must be produced to any
person having the " concurrent right " or any person author-
ized by him in writing.

Sub-section 2 cuts down the words " every occupier " in
section 1 by excluding persons of rights of common or an
occupation for grazing or pasturage for not more than
[*728] nine months ; and section 3 * cuts down the time
within which the concurrent right may be exercised
in the case of moorlands or uninclosed lands to the time from
11th December to 31st March.

Concurrent right retained. — Section 2 provides for cases
whei-e game is not reserved and the tenant lets the right of
sporting, and enacts that, although he shall so let it, "he
shall nevertheless retain and have the same right to kill and
take ground game as is declared by section 1 of the act."

The third section provides for the absolute indefeasibility
of the " concurrent right " in the following unmistakable
terms :

Agreements in contravention of right of occupier void. —
" Every agreement, condition or arrangement which purports
to divest or alienate the right of the occupier as declared
given and reserved to him by this act, or which gives to such
occupier any advantage in consideration of his forbearing to
exercise such right, or imposes upon him any disadvantage
in consequence of his exercising such right shall be void."
" Void " here would seem to mean void only qua the divest-
ing, &c., of the right of the occupier (?).

Exemption from game licence. — The act contains no repeal
or even mention of the Hare Act, but section 4 dispenses
with the necessity for a game licence in the case of the occu-
pier and the persons duly authorized by him.

Time for act coming into effect. — The act being printed at
length in the Appendix, it only remains to notice here the
provisions which regulate the time of its coming into effect.

1. Leases. — As regards leases, section 5 provides as fol-

(0 See Gaskell t;. King, 11 East, 165.

1112



Cii. XVIII. S. n.J GAME, &c. *729

lows : — " Where, at the date of the passing of this act (7th
September, 1880), the right to kill and take ground game on
any land is vested by lease, contract of tenancy, or other con-
tract bona lide made for valuable consideration in some per-
son other than the occupier, the occupier shall not be entitled
under tliis act, until tlie determination of that contract, to
kill and take ground game on such land."

2. Tenancies from year to year. — And as regards tenancies
from year to year, the same section provides —

" For the purposes of this act, a tenancy from year to year,
or a tenancy at will, shall be deemed to determine at the
time when such tenancy would by law (w) become determin-
able if notice or warning to determine the same were given
at the date of the passing of this act."

3. Contract for lease. — A tenant in possession under a con-
tract, made befoi-e the passing of the act, for a lease to
contain a stipulation reserving the ground game to the land-
lord, is bound to the landlord as if the lease had been actually
executed before the act, and may be restrained by injunction
from shooting ground game (w)-

*A tenancy from year to year is, as has been [*729]
already pointed out, determinable by half a year's
notice (or longer) expiring at the end of some current year
of the tenancy (o), or if the Agricultural Holdings Act aj)-
plies by a year's notice expiring at the end of some current
year of the tenancy (;:>).

A tenancy at will determines by the express declaration of
either party {q).

Therefore, in Lady-day tenancies the act came into opera-
tion at Lady-day, 1880, and in Michaelmas tenancies at
Michaelmas, 1880. In the case of tenancies at will, the act
came into operation at once, i.e. on 7th September, 1880.

(»h) Not by notice stipulated for (o) Right d. Flower r. Darby, 1 T.

between the parties. See Barlow v. R. 159.

Teal, L. R., 15 Q. B. D. 501, and 536, (/>) Ante, ii:]5.

ante. (7) Doc <L Bastow v. Cox, 11 CJ. B.

(n) Allhusen >: BrookinR, L. R., 20 122, and ante, 228.
Ch. D. 509; 5:^, L. J., Ch. 520; 51 L. T.
67; 32 W. R. U57.

1118



*730 OF RIGHTS OP" COMMON, &C. [Ch. XVIII. S. 7.

Sect. 7. — Metropolitan Buildmg Acts.

The old Metropolitan Building Act (14 Geo. 3, c. 78)
has been repealed with the exce])tions of sections 83 and
86 (;•)• Section 83 relates to the application of insurance
money on houses burnt. It is a general enactment, and is
not conlined to the metropolitan district; but it does not
extend to tenants' fixtures (s). Sect. 86 relates to legal pro-
ceedings in respect of accidental lires.

By the Metropolitan Fire Brigade Act, 1865 (28 & 29 Vict. C.
90), the duty of extinguishing fires and protecting life and
property in case of fire shall, within the metropolis, be
deemed for the purposes of this act to be entrusted to the
Metropolitan Board of Works, who are to provide and main-
tain an efficient force of firemen, &c. (sect. 4).

Chimney on fire. — Sect. 23 enacts that " if the chimney of
any house or other building within the metropolis is on fire,
the occupier of such house or building shall be liable to a
penalty not exceeding twenty shillings " (to be recovered in
a summary way before two justices, sect. 24) ; '■'but if such
occupier proves that he has incurred such penalty by reason
of the neglect or wilful default of any other person he may
recover summarily from such person the whole or any part
of the penalty he may have incurred as occupier."

The 7 & 8 Vict, c. 84, for regulating the construction and
use of buildings in the metropolis and its neighbourhood has
been repealed (^), except as to sects. 54 to 63, which
[*730] relate to certain dangerous, * offensive and noxious
trades and businesses, and the erection of buildings
near where they are carried on, and which provide for the dis-
continuance of such dangerous trades and businesses in certain
localities within twenty years next after the passing of that
act (w) ; and of such offensive and noxious trades and businesses
within such localities, within thirty years (a;), under heavy
penalties, to be enforced in a summary way with costs.

(/■) 28 & 29 Vict. f. no, s. 34; 18 & (0 18 & 19 Vict. c. 122, s. 109.

19 Vict. c. 122, s. 109; 7 & 8 Vict. c. («) I-^- o" or before 9tli August,

84,8. 1; Id. Sched. (A). 1864.

(s) Ex parte Gorley, In re Barker, (.r) Before 9th August, 1874.

34 L. J., Bktcy. 1 ; 13 W. R. 60.

1114



Cii. XViri. S. 7.] METUOl^OLlTAN UriLDING ACTS. *730

The Metropolitan Building Act, 1855 (//) now reg'ulates the
mode of constructing buildings in the metiojiolis and its
neighbourhood. It extends to all places within the limits of
the metropolis, as defmed by the Metropolis Management
Act, 1855 (18 i.^ 19 Vict. c. 120), and to all phices to which
such last-mentioned act may be extended, unless such jdaces
are, in making such extension, expressly excepted from the
operation of the act (2). The following are the sections of
the act bearing on the relation between landloi-d and ten-
ant: —

Order on occupier for expenses. — By sect. To, in default of
the owner of any premises disobeying an order to j)ull down
or repair a dangerous structure, an order for that purpose
may be made upon an occupier. The owner is liable for the
expenses, but " without prejudice to his right to recover the
same from any lessee or other person liable to the expenses
of repairs." By sect. 97 (sub-sect. 1), an occupier who is
compelled to pay expenses under the act, in default of the
owner, cannot be made to pay "any sum exceeding in
amount the rent due, or that will thereafter accrue due in
respect of such premises during the period of his occupancy."
And by sub-sect. 5 of the same section, "any occupier of
premises who has paid any expenses under this act, may de-
duct the amount so paid from any rent payable by him to
any owner of the same preniises," and, to provide for the
case of a sub-lease, "any owner of premises who has paid
more than his due proportion of any expenses may deduct
the amount so overpaid froiA any rent that may be payable
by him to any other owner of the same premises."

Saving for contract. — By sect. Ill, nothing in the act con-
tained "shall vary or affect the rights or liabilities, as between
landlord and tenant, under any contract between them."

A contract for the erection of a building in contravention
of the provisions of the above act cannot be enforced (a).



(//) 18 & 10 Vict. c. 122, as amcmkHl (z) Sect. 4.

by 23 & 24 Vict. c. 52; 1 Chit. Stat. (a) Stevens >: Oourloy. 7 C. B.. N.

435 — 458 (3r(l ed.). And sec \yool- S. !)!); G Jnr., N. S. 147.
rycli on the Metropolit.in Buiidii:;.!
Act, 2nd ed., by Paterson, ah. 1S77.

1115



*731 OF KIGHTS OF COMMON, &C. [Ch. XVIII. S. 7.

A landlord is justified, under sect. 83 of the 18 & 19 Vict.
c. 122, in entering premises in the occupation of his tenant

from year to year, and pulling down and rebuilding
[*731] the party-wall between it and the * premises belonging

to him, without giving the notice required by sect.
85, such tenant not being an owner within the interpretation
clause (sect. 3), and it is no objection that he has neglected
to give the notice to the district surveyor required by sect.
38 (/)). An occupier of premises, who has paid expenses
under the above act may, by sect. 97, deduct the amount
from the rent payable by him to any owner of the premises ;
but he is not thereby precluded from recovering his claim by
action ((?).

(6) Wheeler v. Gray, 6 C. B., N. S. C. B., N. S. 13; 34 L. J., C. P. 249;

606. As to who is the " adjoining Cowen v. Phillips, 23 Beav. 18.
owner " and liable to contribute to (c) Earle i\ Maugham, 14 C. B., N.

the expense of repairing or rebuilding S. 656; 10 Jur., N. S. 208.
a party-wall, see Hunt v. Harris, 19

1116



♦CHAPTER XIX [*732]



RIGHTS AND LIAIUIJTIES AS BETWEKN LANDLORD Oil
TENANr AND 'PIIIUD I'KRS(JNS.



SECT. PAGE

L Rights and Liabilities between

Landlord and Tlurd Persons 732



SECT. PAGK

2. Rights and Liabilities between

Tenants and Third Persons 737

3. Remedy by Injunction . . . 739



Under the practice before the Judicatui-e Act there was
occasionally some tlitliculty in regard to (questions between
landlords or tenants and third parties, in consequence of the
distinction between the actions of "■ trespass " and " case " (a);
but this is now no longer a difficulty, as the technical forms
of actions have been abolished, and the pleadings are now
statements of facts. The important questions of substance,
— as to what are the cases in which a landlord is liable to
or entitled to sue third parties, and what are those in which
the right or liability attaches to the tenant. — will now be
considered.



Sect. 1. — liifjhtt^ and Liabilities between Landlord and Third

Persons.

Right of action for damage to reversionary interest. — \\ bcTc
an injur}' is committed to the hoiisf or land of a person wht)
had merely a reversionary interest therein, he is entitled to re-
cover damages for the injuiy which liis interest sustains (6)';

(a) See Smithi'. Milles, 1 T. R.47.'); Ad. !)7; Thompson r. fJibson. 7 M. &

Wheeler v. Montefiore, 2 Q. H. i:>3, W. 4o(); see also the iirinciple reeog-

150; Randal v. Stevens, 2 E. .*:: 15. Id. ni/.ed in Battisliill r. Reed. 18 C. B.

041; Barnett v. Earl of (Juildford, 11 OliO, 713; and see Hosking r. Pliillips,

Exch. 19; Harrison c. Blackburn, 17 3 E.xeh. 108; Vowles v. Miller, 3

C. B., N. S. 078. Taunt. 137.

(6) Shadwcll r. Hutchinson, 2 B. &

'Lessor's remedies against third parties. — Trespass on the case is

1117



*732 RIGHTS AND LIABILITIES. [Ch. XIX. S. 1.

and he may also have an action for continuing a nuisance,
even after a former recovery for committing it (6"). For

(c) Tliishc must have formerly done by an action on the case and not trespass.

the appropriate remedy of the lessor at common law for injuries caused by
third parties to the reversion.

Subject to statutory exceptions, as a rule it maybe said that trespass quai-e
clausuin /regit will not lie in behalf of the lessor for injuries to the reversion.
Campbell v. Arnold, 1 Johns. (N. Y.) 511; Tobey v. Webster, 3 Id. 468 (per
Kent, Ch. J., the case was against a sublessee at will who had committed
waste) ; Roussin v. Benton, 6 Mo. 592.

There are statutory exceptions to this rule, as for instance under a statute
in Vermont for the protection of fish and game, the owner of premises leased
to another party may maintain an action of trespass against one violating the
law during the lease. Parmenter v. Caswell, 53 Vt. 6.

It was once held in Massachusetts in the famous case of Starr v. Jackson,
11 Mass. 519, that a lessor might maintain an action of trespass for injuries to
the freehold, notwithstanding the premises were occupied at the time by a
tenant at will, and this case was followed by a similar decision in Inh'b'ts of
Hingham v. Sprague, 15 Pick. 102.

These decisions were rested upon the theory that the possession of a lessee
at will was the possession of his lessor and were supposed to be justified by
early P^nglish authorities. As we have seen, the same views were not enter-
tained by Justice Kent, and, later, m Massachusetts (as was pointed out by
Justice Wilde in French v. Fuller, 23 Pick. 101), after the passage of the
statute prescribing notice to terminate a tenancy at will, the right of a lessee
at will became so fixed that his possession could no longer consistently be
called the possession of the lessor, and hence it was said that a lessor at will
could no longer maintain trespass even under the authority of Starr v. Jackson.

Since the passage of the Practice Act, it is still necessary in that state for
the lessor in declaring to allege an injury to the reversion, or he cannot re-
cover. Dearborn v. Wellman, 130 Mass. 238 ; Bascora v. Dempsey, 143 Mass.
409.

And it was held in Woodman v. Francis, 14 Allen, 198, that tort in the
nature of trespass rjuare clansum f regit would not lie if the injuries were alleged
simply as in aggravation of the trespass.

In Bulkley v. Dolbeare, 7 Conn. 232, it was held that trespass de bonis
asportatis would lie in belialf of a lessor for years against one carrying off
timber which he had some time previously unlawfully felled.

In Hart v. Hyde, 5 Vt. 328, the general owner of personal property was
allowed to maintain trespass against an officer who had unlawfully attached
it notwithstanding it was leased, tlie owner having a right to take possession.
As to correctness of this decision qiiere.

If personal property is leased for a definite time, lessor cannot maintain
trespass. Putnam v. Wyley, 8 Johns. (N. Y.) 432.

Trespass will not lie for irtjuries which do not affect the reversion. Lin-
denbower v. Bentloy, 80 Mo. 515 (reaping wheat) ; French v. Fuller, 23 Pick.
104 (entering and leasing premises to third parties); Drake v. Chicago &c.
Ry. Co., 70 Iowa, 59; Townsend v. Isenberger, 45 Id. 670; Little v. Palister,
3 Me. 6 (treading down grass, and tlirowing down fences erected by lessee).

In Jordan v. Staples, 57 Me. 352, it was held that a lessor who had reserved

1118



Cu. XIX. S. 1.] LA>:i)LOKI) AND THIUI) PKUSONS. *7;33

example, where the phiiiitiiV dcinised a cottage, without
excepting mines, it was hehl, liiat he might maintain an
action on the ease for the injury done to the cottage !)>• a
stranger, who had excavated coal, though it was not clear
whether the injur}' was from an excavation under the cot-
tage or under adjoining land in the occupation of the i)lain-
tiff (c?). But the landlord's right is confined to the injury
to his reversionary interest, inasmuch as he has no
present possession of the property. He cannot * there- [*733]
fore maintain any action for the injury done by per-
sons by merely riding on the property, though he might if
they made holes in the soil so that the subsoil Mas injuied, if
the use of the surface only was demised (e).

Statement of claim. — The plaintiff in his statement of
claim should show that he had a reversionary interest at the
time of the injury being committed (.f), Imt there is now a
very large power of amendment vested in the judges. And
even under the old system of [)rocedure, where the plaintiff
declared as for an injury to land in his possession, which
turned out on the trial to have been in the possession of
his tenant, the real controversy between the parties being
whether the land was the plaintiff's jDroperty, and whether
there was a right of way across it, it was held, that the
judge had power to amend the declaration so as to adapt it
to an injury to the plaintiff's reversionary interest (^).

"What title sufficient. — The nature of the reversion to
which the plaintil'f is entitled is only so far material as to
regulate the amount of damages to be recovered by him. A
reversioner for a life estate, for instance, can only lecover
such damages for an injury to the estate during the term of

(c/) Raine v. Alderson, 4 Bing. N. ( /') Roe Hoskingc. Phillips, ."1 Exch.

C. 702. 108; Vowlcs r. Miller, :] T.iunt. 137.

(e) Cox V. Glue, 5 C. B. 533. (>/) M.iy v. Footncr, 5 E. & B. 505:

26 L. .!., Q. B. 32.

rifjlit of storajje might maintain trespass afjainst party wlio liad rnterod and
carried away liay.

It has been licld that trespass will lie ajjainst a tenant at will who has
committed waste, because such trespass terminates the tenancy. Daniels i".
Pond, 21 Pick. .",07.

1119



*784 MIGHTS AND LIABILITIES. [Cii. XIX. S. L

the lease as are equivalent to the injury clone to the life
estate {/t).

Under the old practice, it was held to be fatal that the
declaration alleged that the plaintiff had a reversion when
the facts proved thd not show any true relation of landlord
and tenant (i). As the actual facts are now to be set out
in pleadings this is no longer a danger, but at the same time
it should always appear on the pleadings that the plaintiff
has an interest entitling him to sue and what that interest
is. It may be remarked, however, that payment of rent to
a person has been held sufficient prima facie evidence of a
reversion being in him (A").

What is a sufficient act of injury. — A reversioner cannot
sue for anything as an injury to his reversion, unless it per-
manently injui-es his estate, or operates in denial of his
right (?), even though he may have suffered a pecuniary in-
jury thereby (wi) : therefore a temporary fixing of barges and
planks in a part of a river near certain premises, thereby ob-
structing the navigation of that part and hindering persons
from passing to the premises and unloading l)oats thereon, is
not an injury to the reversion (>*). But a permanent
[*734] obstruction of a way in denial of * the right is an
injury to the reversioner (o). The reversioner may
sue for an injury done to his house by the defendant's neg-
lect to scour a watercourse in an adjoining close, whereby the
watercourse was obstructed, and the water thrown back from
the course into the house, doing damage to it thereby (jt>) ;
or for an injury done to it by mining under it (q~), or by

(h) Evelyn v. Raddish, Holt, 543. (n) Dobson v. Blackmore, 9 Q. B.

(0 See Martin r. Goble, 1 Camp. 991.

320; Partridge v. Bere, 1 D. & R. 272; (o) Kidgill v. Moor, 9 C. B. 364; 1

Hitchman v. Walton, 4 M. & W. 409. L., M. & P., 131; Hopwood v. Scho-

(^-) Daintry !'. Brockleliurst,3Exch. field, supra; see, too, Bell v. Midland

207. Rail. Co., 30 L. J., C. P. 273; and

(0 Hopwood V. Schofield, 2 Moo. & Palk v. Skinner, 18 Q. B. 568, in

R. .34; Baxter v. Taylor, 4 B. & Adol. which the point in question was ap-

72; Simpson v. Savage, 1 C. B., N. S. parently assumed.

347; Metropolitan Association v. (/j) Bell I'.Twentyman, 1 Q.B. 766;

Fetch, 5 C. B., N. S. 504; Cooper v. Taylor v. Stendall, 7 Q. B. 634; 3 D.



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