BRECON MARKETS CO.

v.

NEATH AND RAILWAY CO.

BRECON

The case of Rickards v Bennett (1) seems to shew by analogy 1873 that there might be such a right. There a claim by prescription by a lord of a manor to toll upon all goods brought within any part of the manor for sale was held good. It is not impossible that the present toll may have had a similar origin. The crown may have granted to the lords of the town of Brecon, which was, very anciently, an important fortified place, in all probability chiefly occupied by the lord's retainers, the franchise of taking toll for all goods passing into, through, or out of the town.

[BLACKBURN, J. The case of Rickards v. Bennett (1) is the case of a market toll, which is not really analogous to the present case.]

He also cited James v. Johnson (2); Lord Pelham v. Pickersgill (3); Lord Falmouth v. George (4); Foreman v. Free Fishers of Whitstable (5); Jenkins v. Harvey. (6)

Manisty, Q.C. (J. O. Griffits with him), for the defendants, was not called upon.

KELLY, C.B. In this case the plaintiffs, the Brecon Markets Company, claim a toll traverse in respect of all waggons passing to, through, or from the borough. I will assume, for the purposes of the case, that they have a right to such a toll, which it is not unlikely may be founded on a grant made to the borough of Brecon at or about the time of its incorporation, which appears to have been very ancient. The probable consideration for such a grant might be that the corporation had made or were about to make roads passing through lands at that time belonging to the borough. Such a grant would, no doubt, have been legal, and would have entitled the borough to a toll traverse in respect of vehicles passing along such roads. It may also be, though I am not prepared to hold one way or the other on the question, that if subsequently to such a grant other highways were made entering into, traversing, and passing out of the borough, even if they were made not by the corporation, but by other persons, on land which, though formerly the property of the borough, was no longer so, there might be a legal right to a toll traverse in respect of such highways.

.

1873 BRECON

It might be, if there had been property within the borough belonging to the Corporation of Brecon, but which the corporation, at MARKETS Co. some remote period, had aliened in fee, reserving to themselves the

V.

BRECON

NEATH AND right, if highways were made on such land, of taking a toll traverse RAILWAY Co. in respect of the passage of vehicles over such highways, that such a toll traverse might lawfully exist and be enforceable. I do not say it is so, but assuming all this, and assuming that the lands now in question through which the railway passes, did originally belong to the corporation, it must be taken so far as appears from the circumstances set forth in this case, that they were at some former period of time aliened without any such reservation or exception as I have adverted to whatever, and being thus aliened, the question arises whether there is any shadow of authority whatsoever for the proposition that if the grantor or owner of the land so aliened without reservation makes a way over that, his own private property, for his own purposes, the corporation can lay claim to a toll traverse in respect of his use of such way. It appears to me that the contention of the plaintiffs in the present case amounts to such a proposition. I am of opinion that no right exists or is recognized by the law by which a toll traverse can be claimed in respect of the passage of vehicles over land which is private property, which was aliened by its original owners long ago, without any reservation or exception whatsoever, and for which the present possessors have probably paid a full consideration. It is not contended that what the company have done in any way amounts to a mere evasion of an established right of the plaintiffs, in which case somewhat different considerations might arise. They have merely constructed a railway in conformity with their Acts of Parliament. Under these circumstances, I think the decision of the Court of Common Pleas was right and should be affirmed.

MARTIN, B. I am of the same opinion. The tolls the corporation are entitled to are called drift tolls, and they are described in the 4th schedule to the Markets Act as being, in respect of every score of horned cattle driven through the borough, and of every score of sheep or swine, and in respect of every waggon or carriage with four wheels belonging to any person not residing in the county of Brecon, passing to, through, or from the

161

borough, and so forth. I do not believe, because railway trucks are called waggons, they are necessarily to be brought within this schedule. It seems to me that the passage of goods on the railway is quite a novel species of carriage, and not contemplated at all by the schedule of tolls, and quite beyond the scope of it.

BLACKBURN, J. I am also of opinion that this judgment should be affirmed. It is quite true, I think, as contended by Mr. Dowdeswell, that in the case of a toll or any other prescriptive right which has in fact existed for a long time, if any reasonable mode can be suggested by which it may have had a legal origin, it must be presumed that it had such origin. It is also, I think, quite true that in the case of a harbour toll the right to the toll may extend throughout a manor, or in the case of a market toll, the right may extend throughout a town; but I do not think that there is any case which shews that where there is the right to a toll traverse within any district there can be a legal origin for a claim to take such toll in respect of a way used by a person over his own private land. It does not, however, seem to me necessary to decide how this may be, for I do not see in the present case anything to shew that the Corporation of Brecon ever were accustomed to receive any such a toll as is now claimed. It appears they were accustomed to take certain tolls which are described as drift tolls; but it does not appear to me that that is any evidence to shew that they ever enjoyed such a right as Mr. Dowdeswell now seeks to establish on behalf of the plaintiffs.

MELLOR and LUSH, JJ., and PIGOTT and CLEASBY, BB., concurred.

Judgment affirmed.

Attorneys for plaintiffs: Williams, Blyth, & Marsland, for R. C. Cobb, Brecon.

Attorneys for defendants: Dean & Taylor.

1873

BRECON MARKETS Co.

v.

NEATH AND BRECON RAILWAY CO.

1872 Nov. 16; 1873 Feb. 24.

HARVEY v. WALTERS.

Easement-Right of Eavesdropping-Alteration of Mode of Enjoyment—

Trespass.

The plaintiff was the owner of certain premises, the eaves of which projected over adjoining land of the defendants, and had become entitled by length of user to have the rain-water drop from such eaves on to the defendant's land. The plaintiff in rebuilding his premises carried the wall abutting on defendant's land to a slightly greater height than before, and consequently raised the height of the eaves from the ground to the same extent:

Held, that in the absence of any evidence that a greater burthen was thrown on the servient tenement by the alteration, the easement was not thereby destroyed, and the plaintiff was entitled to the right of eavesdrop from the premises as altered.

Thomas v. Thomas (2 C. M. & R. 34) followed.

THE third count of the declaration alleged that the plaintiff was entitled to a right of having rain-water drop from the eaves of certain roofs on the plaintiff's land on to the defendant's land adjoining, and of having the eaves of such buildings project over the defendant's land, and complained that the defendant wrongfully removed the said eaves and built upon the said land close to and higher than the said roofs, so as to prevent the said eaves from projecting over the said land, and the rain-water from dropping from the said eaves on the said land, &c.

Fourth count for negligence by the defendant in erecting certain buildings in close proximity to buildings of the plaintiff, so that the walls and roof of the plaintiff's buildings were injured and the spouts for carrying off the rain-water from the said roof were damaged.

Pleas (inter alia): Third plea to the third count denying that the plaintiff was entitled as alleged.

Fifth plea to the fourth count alleging that the plaintiff had wrongfully placed the spouts and part of the roof of plaintiff's buildings, so that they overhung defendant's land, wherefore defendant removed the same, doing no unnecessary damage, &c. Issues.

At the trial before Quain, J., at the Nottingham Spring Assizes, the facts appeared to be as follows:-The plaintiff and defendant

were owners of adjoining properties, and it was not denied that the plaintiff had become entitled by user to a right of having the eaves, of buildings on his land project over the defendant's land, but the plaintiff had some short time before the action pulled down the buildings that had formerly stood on his land and rebuilt them, and in so doing had carried the wall on which the projections had been to a greater height than the old building, and so increased the height of the eaves from the ground by three or four courses of bricks. There was no alteration in the character of the eaves save the slightly increased height, nor was there anything to shew that the water fell from the eaves in a different manner from that in which it had previously fallen so as to render the servitude more onerous. The defendant had thereupon removed some of the spouting of plaintiff's building and put back the eaves to make room for buildings which she erected on her own land. On these facts the verdict was entered for the plaintiff for 40s., leave being reserved to move to enter it for the defendant on the ground that the plaintiff had lost his right to have his eaves project over defendant's land by raising his roof.

by

A rule nisi having been accordingly obtained,—

Nov. 16, 1872. Field, Q.C., and Kennedy, shewed cause :-There is nothing to shew that in fact the servitude was made more onerous the raising of the roof. The rule of the civil law appears to have been that the eaves might not be lowered but might be raised, the presumption being that the servitude would thereby, if anything, be made less onerous (see the citations in Gale on Easements, 4th ed., 559). In Thomas v. Thomas (1), which is almost on all fours with the present case, it seems to have been laid down that in order to extinguish the easement there must be a substantial alteration of its character making it more onerous to the servient tenement. [They cited also Hall v. Swift (2); Hale v. Oldroyd (3).]

Cave and J. C. Lawrance supported the rule. The point seems to have been very slightly discussed in Thomas v. Thomas (1), and the present case cannot be considered as concluded by that decision. (2) 4 Bing. N. C. 381.

(1) 2 C. M. & R. 34.

(3) 14 M. & W. 789.

1873

HARVEY

V.

WALTERS.