Nuisance caused by tree roots — Action by two neighbouring house-owners against local authority — Serious damage to structure of houses — Dispute as to whether local authority was the owner of the trees — Discussion of cases from 1757 to present day — Judge found that the beneficial ownership of the trees in question had vested in the local authority as owner of the soil and not in the highway authority — Local authority’s counsel reserved, for possible use in a higher court, an argument not open to him before the present court, namely, that the authority could not be liable in nuisance in the absence of negligence — Local authority held to be liable to both first and second plaintiffs — Damages awarded to first plaintiffs included a sum for disturbance and loss of amenity while waiting for, and during the period of carrying out, permanent repairs to the house
In these
proceedings Mr and Mrs Bridges, owners of 99 Rickmansworth Road, Harrow, and
their neighbours, Mr and Mrs Liddell, owners of no 97, semi-detached houses,
claimed damages in nuisance against the London Borough of Harrow. The
plaintiffs sued the defendant authority as the owner of trees which stood in
front of the houses, alleging that the roots of the trees had caused cracks in the
houses necessitating expensive repairs. The agreed cost of the repairs was
£7,287.36 in respect of no 99 and £6,350.35 in the case of no 97. The owners of
no 99 claimed, in addition, damages for disturbance and loss of amenity.
J P M Phillips
QC and D P O’Brien (instructed by Watmore & Co) appeared on behalf of the
plaintiffs; A C L Thornton (instructed by Barlow, Lyde & Gilbert)
represented the defendants.
Giving
judgment, STUART-SMITH J said: Mr and Mrs Bridges, the first plaintiffs in this
action, bought 99 Rickmansworth Road, Harrow, in 1962, and moved in in the
following year. Their neighbours, Mr and Mrs Liddell, the second plaintiffs,
bought the adjoining house, no 97, some three or four years later. They are a
pair of semi-detached houses.
At that time
there stood two oak trees in front of no 99. Their position is shown on the
plan, C1, and briefly they were about 15 ft apart. They were mature trees,
according to Dr Biddle, whose evidence I accept. They were then about 140 years
old. They had a girth of about 7 ft each and at the nearest point to no 99 the
right-hand tree, looking at the plan, was some 21 ft 6 in. They were not as
high as trees of that age might be expected to be because they had at some
stage been pollarded, or lopped at the top, and, according to Dr Biddle’s
estimate, they were some 30 to 40 ft high.
Shortly after
the Bridges moved in they complained to the defendant council that there was
trouble with boughs falling off the trees and becoming dead. Between about 1970
and 1973 cracks began to appear in the two houses — principally, I think, to
begin with in no 99. In 1974 Mr and Mrs Bridges called in Messrs Pynfords, the
well-known firm who deal with underpinning and rectifying cracks of that
nature, and they were advised that the trouble might be due to tree roots.
In due course
a letter of claim was sent by the plaintiffs’ insurers, the Eagle Star, to the
defendants and in 1976 a writ was issued claiming that the damage was caused
through nuisance due to the roots of these trees. In 1976 temporary repairs
were carried out; but because the action of the roots was still continuing
those repairs soon proved inadequate and, in 1977, the trees were cut down.
That was done without prejudice to liability, as I understand it.
In 1979, the trees
having been cut down and no further movement, either of improvement or
detriment, having taken place, the final repairs to the house were carried out.
The cost of those repairs are agreed and, so far as the first plaintiffs, in
respect of no 99, are concerned, they come to £7,287.36 and so far as Mr and
Mrs Liddell are concerned, at no 97, they came to £6,350.35. The first
plaintiffs also claim damages for disruption as a result of the injuries to
their house.
The
plaintiffs’ claim in nuisance against the defendants is based on the fact, as
they allege, that the defendants are the owners of the trees; therefore they
have caused or permitted the nuisance to continue. The defendants dispute that
they are the owners of the trees. Therefore, the first issue which I have to
decide is whether or not the plaintiffs have established that the defendants
are the owners of the trees.
The plaintiffs
seek to establish that ownership by reason of an agreement under seal dated
September 14 1928. That was an agreement made between a Mr Reynolds and Mr
Corfield who lived in London, and the Rural District Council of Hendon in the
County of Middlesex of the other part. It recites that:
WHEREAS the
Grantors
that is Mr
Reynolds and Mr Corfield
are possessed
of certain land situate on the South West side of Rickmansworth Road in the
Parish of Pinner in the said County of Middlesex AND WHEREAS the Council are
desirous of widening and improving the said highway NOW IT IS HEREBY AGREED by
and between the parties hereto as follows, that is to say: 1. For the
consideration hereinafter mentioned the Grantors hereby dedicate for the use of
the Public for ever as part of the highway leading from Northwood to Pinner ALL
THAT piece of land on the South West side of Rickmansworth Road having a
frontage thereto of one hundred and eighty feet or thereabouts and comprising
an area of about forty square yards being part of field numbered 275 on the
Ordnance Survey Plan situate in the Parish of Pinner in the County of Middlesex
which said piece of land is more particularly shown on the plan annexed hereto
and thereon coloured pink . . .
and that is
shown on the plan annexed thereto which, incidentally, shows the two trees in
question (they being the left-hand two trees, as one looks at the plan, on the
part coloured pink — black in my copy).
Mr Phillips,
on behalf of the plaintiffs, accepts that if the deed had stopped there it
would simply be a deed of dedication of the use of the land for the purposes of
highway and would convey no interest in the soil beneath it or in the trees.
But he relied on the next passage of the deed, which reads as follows:
AND the
Grantors agree if and when called upon so to do and at the expense of the
Council to execute a proper Conveyance to the Council of the said piece of
land.
I should read
one further clause of this agreement because it is relevant on the question of
construction and also in relation to a further argument developed by Mr
Thornton, on behalf of the defendants. Clause 2(c) reads:
2. In
consideration of such dedication as aforesaid the Council agree as follows:
. . . .
(c) to erect on the new boundary line a Peerless
wire mesh fence four feet six inches in height carried on reinforced concrete
posts and
this is the
important part
to retain the
trees in the present hedgerow in the new footway;
Mr Phillips
contends that the second part of clause 1 is an agreement to convey the
freehold interest in the land as and when the council call upon the grantors to
do so. That is an agreement for a conveyance which, under the principle in Walsh
v Lonsdale, transfers the beneficial interest in the whole of the land,
including the trees, to the Hendon council. It is common ground that by virtue
of the various Local Government Acts, so far as the rights and duties of the
highway authority which existed in Hendon at that time are concerned, they
devolved first to the Middlesex County Council and later to the Greater London
Council. So far as the other rights and liabilities of the Hendon Rural District
Council are concerned they devolved upon the defendant council, the London
Borough of Harrow. As I say, the plaintiffs contend that that second part of
that clause conveys the beneficial interest in the land first to Hendon and
then, by virtue of the Local Government Acts, to the defendant council.
The defendants
say that that is not so and that on its true construction the only thing which
is agreed to be conveyed to the defendant council is so much of the land as is
necessary to give effect to the dedication of the use of the highway. Mr
Thornton contends that, in effect, there is an implied limitation in the second
part of clause 1 and that the amount of land conveyed is similar to that of a
flying freehold where, for example, in a building of several storeys the
freehold of only one storey is conveyed and that it is not effective to convey
the land and everything below it in a freehold interest. He says, and there is
some force in this, that if the parties intended by the second part to convey
the whole of the freehold interest, or agreed to convey it, there was really
very little point in the first part, the dedication, at all. All that would be
needed would be the second part, which includes, necessarily, the right to use
the surface of the road for the purpose of highway.
But it seems
to me that the matter has to be looked at in the light of the authorities on
this question of the extent to which a mere dedication of the land for the use
of the highway conveys an interest in the land. The position at common law is
set out in the judgment of Lord Mansfield in Goodtitle v Alker (1757)
97 Eng Rep 231 at p 236. Lord Mansfield there, citing ancient authority, says
this:
. . . ‘the
King has nothing but the passage for himself and his people: but the freehold
and all profits belong to the owner of the soil.’ So do all the trees upon it, and mines under
it (which may be extremely valuable). The owner may carry water in pipes under
it. The owner may get his soil discharged of this servitude or easement of a
way over it, by a writ of ad quod damnum.
Mr Phillips
also relies on a passage in the judgment of Bramwell LJ in Coverdale v Charlton
(1878) 4 QBD 104. The facts of that case briefly are that a local board of
the highway authority had let pasturage on the highway to the plaintiff where
he pastured his cattle. The defendant had interfered with that right and the
plaintiff was claiming to restrain that interference. The question was whether
the plaintiff had a sufficient right to do so; the court held that he did. At p
116 Bramwell LJ, dealing with the question of what is meant by the word ‘vest’,
and the interpretation which Willis J put upon that word, said this:
And on
account of the reasonableness of such an interpretation I am disposed to hold
that this ‘street’ vests without any property in the freehold of the soil. The
word ‘vest’ may have two meanings; it may mean that a man acquires the property
usque ad coelum and to the centre of the earth, but I do not think that to be
its meaning here. One construction of the word ‘vest’ here is that it gives the
property in the soil, the freehold, the surface, and all above and below it;
but that would be such a monstrous thing to say to be necessary for the proper
control of the streets by the local board, that I cannot suppose it to mean
such a thing. Suppose the soil of the freehold passes, and consequently it
carries the right to the land to an indefinite extent upwards, and to the
centre of the earth below the surface: I cannot make up my mind to say that is
the meaning of the word ‘vest’ in section 149. I do not think the Act of the
last session bears upon this question, because I read that Act to mean that,
whatever may be the natural construction of section 149 of the Public Health
Act 1875, it shall not be construed to pass minerals. But the inconvenience and
injustice of holding that the word ‘vest’ would have that effect prevents my
putting that construction upon it. What then is the meaning of the word ‘vest’
in this section? The legislature might
have used the expression ‘transferred’ or ‘conveyed’, but they have used the
word ‘vest’. The meaning I should like to put upon it is, that the street vests
in the local board qua street; not that any soil or any right to the soil or
surface vests, but that it vests qua street. I find some difficulty in giving
it a meaning, and I do not know how far it adds to the words, ‘shall be under
the control of’. The meaning I put upon the word ‘vest’ is, the space and the
street itself, so far as it is ordinarily used in the way that streets are
used, shall vest in the local board.
A little later
on he goes on to deal with the question of trees, and says:
I doubt very
much whether that ought to be the construction put upon that enactment, but if
it is, it goes a long way to shew that the local board had such a property as
they claim in this herbage. Even if it does not, if it will not apply to the
tree which although surrounded by the street could be said in one sense to be
no part of it, for the public had no right to pass over where the tree stood;
and if it does not apply to a tree now in existence but only to the trees the
local board may plant or become otherwise entitled to, why even then it would
shew that they must have some property in the soil and its produce; that would
assist the contention in favour of the plaintiff.
Brett LJ in
dealing with the question of the meaning of ‘vest’, at p 120, said this:
But when we
have decided that the words ‘vest in’ mean to give a property in, a further
question would be in what does it give the property? That must depend upon the subject to which
those words relate, and that is not land, but street; the section does not say
that the land ‘shall vest in’, but that ‘the street shall vest in’.
and a little
later on, on p 121, he says:
‘Street’,
therefore, in my opinion, includes the surface and so much of the depth as may
be not unfairly used, as streets are used. It does not include such a depth as
would carry with it the right to mines, neither would ‘street’ include any
buildings which happen to be built over the land, because that is not a part of
the street within the meaning of such an Act as this.
In Tunbridge
Wells Corporation v Baird [1896] AC 434 Lord Halsbury LC said this,
at p 437 (that was a question whether or not the highway authority had the
power to make public lavatories under the street involved going into the
sub-soil):
It was
thought convenient, I presume, that there should be something more than a mere
easement conferred upon the local authority, so that the complete vindication
of the rights of the public should be preserved by the local authority; and,
therefore, there was given to them an actual property in the street and in the
materials thereof. The same section that vests the street in them vests also
the materials, the actual personal property provided for the purpose of repair,
and so forth. It is intelligible enough that Parliament should have vested the
street qua street, and, indeed, so much of the actual soil of the street as
might be necessary for the purpose of preserving and maintaining and using it
as a street.
Later on he
refers to Coverdale v Charlton, and Lord Bramwell’s judgment in
that case, and expresses some criticism of it. But, in my judgment, he makes it
clear in his speech that only the surface and so much as is necessary for the
purpose of maintaining the street is conveyed in the dedication of the street
for the purpose of the highway.
One has to
look at the construction of this deed in the light of that distinction. It
seems to me that the defendants’ construction of this deed is wrong. What is
being said in clause 1 is, first of all, that the use of the land in the first
three lines is being dedicated to the public; in the next three lines, that is
to say from the words ‘all that piece of land . . .’ to the words ‘. . .
coloured pink’, the land itself is being described and the first few words, as
I have said, simply grant to the local authority the right to use for the
public benefit that
purposes. Having identified the piece of land, in the last three lines of
clause 1, the deed, in my judgment, goes on to be an agreement to transfer that
piece of land to the local authority as and when called upon to do so. In my judgment
there is no necessary implication that this is limited to only that amount
necessary to give effect to the right of dedication.
Mr Phillips
relies upon section 63 of the Law of Property Act 1925 as showing that where
there is a conveyance of land it conveys everything below and above it. That
section reads:
63. (1) Every
conveyance is effectual to pass all the estate, right, title, interest, claim,
and demand which the conveying parties respectively have, in, to, or on the
property conveyed, or expressed or intended so to be, or which they
respectively have power to convey in, to or on the same.
(2) This section applies only if and as far as a
contrary intention is not expressed in the conveyance, and has effect subject
to the terms of the conveyance and to the provisions therein contained.
It seems to me
that there is no contrary intention expressed in this deed and therefore, as I
say, the clause is effective to transfer the beneficial interest to the
defendants’ predecessors.
It appears to
me that clause 2(c) reinforces that view because if the only effect was that
the council had the dedication of the land for the purpose of the highway they
would not be entitled to fell the trees, as against the grantor or the owner of
the land underneath, unless of course they became a danger to the highway and a
nuisance to persons going on the highway. It seems to me that the provision in
clause 2(c) that they are to retain these trees in the highway necessarily
involves that they are the beneficial owners of the trees and I regard that
clause as a confirmation of the interpretation which Mr Phillips seeks to put
upon that clause.
Mr Thornton
originally contended that if he were wrong as to the construction of the deed
and the interest in the whole of the land passed to Hendon, it has nevertheless
been transferred to the Greater London Council by way of the Middlesex County
Council. But he now accepts, in the light of the decision in Finchley
Electric Light Co v Finchley Urban Council [1903] 1 Ch 437, that
that is a contention which he cannot sustain. But he does contend that the
property in the trees has nevertheless passed, as I understand it, to the
highway authority, the Middlesex County Council and then to the Greater London
Council, by reason of the words of the Local Government Act 1929. The material
section is section 29(2) of that Act, which reads as follows:
(2) The council of every county shall, in
relation to county roads in the county (not being roads with respect to which
an urban district council have claimed or are deemed to have claimed to
exercise the functions of maintenance and repair) have the like functions as
with respect to main roads and all roads in relation to which they have those
functions and the materials thereof and all drains belonging thereto shall vest
in the county council, and where any other drain or any sewer is used for any
purpose in connection with the drainage of any such road, the county council shall
continue to have the right of using the drain or sewer for such purpose.
He contends
that none of the authorities goes so far as to say that the rights to trees do
not vest in the highway authority as opposed to the owner of the soil beneath
the highway and that there is an authority, Stillwell v New Windsor
Corporation [1932] 2 Ch 155, which holds that trees do belong to the
highway authority. I find that submission difficult to reconcile with the cases
to which I have already referred and particularly to the decision of the House
of Lords in the case of Tunbridge Corporation v Baird.
Mr Thornton
says of the case of Turner v Ringwood Highway Board (1870) LR 9
Eq 418, a decision of Sir William James V C, that the passage to which Mr
Phillips referred to in that case is obiter, and I think that that is
right. The passage in the headnote appears under the word ‘Semble’:
that the
Highway Board were only entitled to remove the trees which were an obstruction
to the road, and not as against the owner of the soil to sell the timber of the
trees when cut.
The inference
from that is that the property and ownership of the trees belongs to the owner
of the soil below the highway, but it seems to me that that was not a question
which fell to be decided and it really is raised, almost as a by-blow, at p 423
in the judgment of the Vice-Chancellor, and I do not think it is necessary to
read that as I do not think that judgment takes one very much further.
He also
contends that the passage to which I have referred in the judgment of Bramwell
LJ in the Coverdale case is obiter. That, again, may well be so
because the matter for decision in that case was whether or not the plaintiff
had a sufficient right via the highway authority to maintain a right to prevent
interference by the defendant. But nevertheless it seems to me that what
Bramwell LJ says accords with the well-known common law position which has
existed for a very long time. Indeed, Mr Thornton accepts that the common law
is as set out in the judgment of Lord Mansfield to which I have referred.
It seems to me
that under the statutory provisions the position is the same, particularly
having regard to the decision of the House of Lords in Tunbridge Corporation
v Baird. The case on which Mr Thornton relies is Stillwell v New
Windsor, a decision of Clauson J. The facts are set out in the first part
of the headnote:
As owner of
‘The Limes’ at Clewer, which were bounded on the west and north by public
highways known as Mill Lane and St Andrew’s Road respectively, the plaintiff
claimed the property in certain polled lime trees, proved to be about 110 years
old, standing along the edge of the footpaths on the eastern and southern sides
of those two highways. The plaintiff having refused to comply with the
defendants’ notice to remove the trees on the ground that they were dangerous
and obstructions to traffic and the defendants having, in consequence of her
refusal, themselves removed three of the trees in St Andrew’s Road, the
plaintiff brought this action, by which she claimed an injunction to restrain
the defendants from removing the remaining trees and for certain other relief.
It is
important to notice that the learned judge did not accept that the trees had
been planted before the dedication of the highway and he decided that the road
in question was an ancient highway and that the trees had been planted later
(that appears at the bottom of p 162). The grounds of his decision appear at p
163, in the middle paragraph, where he finds that, in effect, the public were
entitled to the full width of the road and that the trees were an obstruction
and could be removed, and further, that since they became dangerous it was not
only the right but the duty of the highway authority to remove them. The point
upon which Mr Thornton relies really comes at the bottom of p 163, where the
learned judge says this:
There is
another point with which I must now deal. Mr Harman for the defendants has
urged this point, that the plaintiff has no interest in the matter whatever. My
views which I have been stating as regards the rights and duties of the highway
authority are expressed upon the assumption that the plaintiff is the owner of
the soil of that half of the highway which is adjacent to her property, and,
accordingly, is the owner of the trees which grow in that half of the highway.
But Mr Harman, on behalf of the defendants, contends that, having regard to
section 149 of the Public Health Act 1875, the plaintiff has no interest in
these trees at all, that these trees are vested in the defendants themselves,
that they are their trees for the purpose, at all events, of exercising
whatever rights and duties they may have as the highway authority, and that the
plaintiff has no title to interfere with them at all.
He then goes
on to deal with the provisions of the Act in question, which are different from
section 29 of the Local Government Act 1929 and at p 165 he says this:
In my view
that is the effect of the section as regards such trees as those with which I
am here dealing. In my view, for all the purposes of exercising the rights of
the highway authority, these trees are to be treated as the highway authority’s
trees, and if they think it convenient to remove them it is proper that they
should remove them. I am not called upon in this action to decide to whom the
timber would belong when the trees were removed.
So it is quite
clear that he is not deciding whether the plaintiff is to be taken to be the
owner of the subsoil or the owner of the trees in question, but that the
highway authority had sufficient interest in the trees by virtue of the section
to do what they wished to do. He also then went on to express some doubt as to
the effect of Bramwell LJ’s judgment in Coverdale. In my judgment that
case does not assist the defendants here. This is a case where the trees were
planted before the dedication of the highway and, in my judgment, the
question is: to whom does the property in the trees belong? It appears to me to belong to the owner of
the soil beneath the
There is one
further authority to which my attention was referred; the case of British
Road Services Ltd v Slater [1964] 1 WLR 498. That was a case where a
lorry, being driven at night, in order to avoid colliding with an overhanging
bough of a tree had to take avoiding action and unhappily there was another
lorry coming in the opposite direction. The question was whether or not the
owner of the tree was liable in nuisance. In fact Lord Parker CJ held that
there was no nuisance but that point is perhaps not material. What the Lord
Chief Justice said, at the bottom of p 501, was this:
Mr Draycott
takes what is really the short cut of saying: ‘Well, the whole of this is now
vested in the Minister under the Trunk Roads Act 1936, and what is vested in
the Minister is not only the soil and the metalled road but the verges, and
includes all the produce from that soil.’
He says that is all vested in the Minister. For my part, I rather doubt
that. It seems to me, without seeing the Act and without looking into the
statutory history of the matter, that the Minister got no more than the county
council had before that, as the highway authority, and, as I understand it, all
that the highway authority would have vested in them would be the road surface,
not the subsoil, and not, I would add, the growing produce, whether grass or
trees, on such part of the highway as was not being used for traffic; in other
words, the verges. They undoubtedly had possession of those verges, and sufficient
possession to enable them to remove obstructions and dangers, and, indeed, it
has been stated in the authorities that they not only had the right to do it
but the duty to do it. But, again, that does not conclude the matter because
the question here is whether the defendants, or their predecessors, had been
dispossessed of the land to such an extent that they cannot be liable for any
obstructions caused on it. The fact that the highway authority, and the
Minister, can, or may have the duty to, remove obstructions, does not
necessarily exonerate the adjoining owner, in whom the property in the tree
still remains. It seems to me that he may be liable in certain circumstances
for nuisance.
That seems to
me to be, at any rate so far as trees are concerned, an accurate statement of
the law, if I may say so with respect. That being the situation, in my judgment
the deed was effective to pass the beneficial ownership of these trees to the
Hendon Council and thence to the defendant council and it does not vest in the
highway authority.
Mr Thornton,
by way of an amended defence, raises a further defence. I think it is right
that I should read the amendment because there has been some confusion,
certainly in my mind and I think also in Mr Phillips’ mind, as to the exact
nature of the amendment or the defence being put forward. The further plea
reads as follows:
Further, the
aforesaid agreement
that is to say
the agreement of September 1928
contained a
restrictive convenant whereby the Defendants’ predecessors in title convenanted
to retain the aforesaid trees in the hedgerow thereby conveyed. This convenant
touched and concerned the Grantors’ retained land and on its true construction
was annexed thereto and to every part thereof. The Plaintiffs are the successors
in title of the said retained land and are in Law entitled to the benefit of
the aforesaid convenant. The Plaintiffs are therefore:
(a) unable as a matter of law to found this claim
in nuisance against the Defendants;
(b) thereby consented to the nuisance, if any,
which would otherwise exist.
It appeared to
me that, at any rate by paragraph (b) of that plea, it was a plea of volenti,
but Mr Thornton says that he is not contending that there was volenti here
but that, in effect, there was no nuisance. As I understand it, what he says is
this. That the benefit of the covenant contained in clause 2(c) inures to the
plaintiffs who are the owners for the time being of the land; that the
retention of the trees necessarily involved the encroachment of the tree roots
into and under the plaintiffs’ land and that taking the benefit of that
covenant they cannot complain of nuisance for the encroachment of those tree
roots. He says that since the encroachment is a necessary ingredient in the
tort of nuisance the plaintiffs cannot complain. That is, as I understand it,
the argument.
Now the first
step in that argument is that the benefit of the covenant inures to the
plaintiffs and Mr Thornton says that that arises if four propositions are
established. Firstly, that the covenant is negative in substance. I am bound to
say that I have some doubts as to whether it really is negative in substance.
In form it is a positive covenant to retain the trees and it seems to me that
retention may involve some action such as lopping, pruning, and so on, in order
to retain the trees; but it may be that it is a covenant which is negative in
substance. Secondly, he says that it must be not intended for the purely
personal benefit of the covenantee and, thirdly, that it touches and concerns
land retained by the covenantee. It is convenient really, I think, to consider
those two ingredients together. Mr Phillips says, rightly in my judgment, that
it is for the defendants to establish this proposition. He says, again rightly,
that there is no evidence about this matter other than that which one derives
from the deed itself.
Now, so far as
the purpose of the covenant, it seems to me that where trees are concerned
there are three possible grounds upon which somebody may wish to retain trees.
One is a sentimental reason, because one has a particular affection for, or
liking for, the tree which may have some sentimental attachment. Secondly, that
it is an object of beauty, at any rate in the eye of the beholder, of the
covenantee, and thirdly, that it may be an amenity to the land adjoining in the
sense that it provides shade or shelter for cattle. In the absence of any clear
evidence here and particularly in the absence of any evidence as to the nature
of any retained land, I find it difficult to speculate as to which of those
purposes may be the relevant one; although I am bound to say that I think it
improbable that anybody would want to retain these trees out of purely
sentimental reasons.
But, Mr
Phillips points out, I think rightly, that there is no necessary inference from
this deed that the grantors, who are in fact the covenantees so far as this
covenant is concerned, retained any land at all. The recital merely states that
they are ‘possessed of certain land situate on the South West side of
Rickmansworth Road’. That need mean, Mr Phillips said, no more than that they
are possessed of the land which they are about to dedicate or sell. Although at
first blush that may seem a little surprising, I think that that submission is
correct. It may be, I know not, that at the time of this transaction there was
a simultaneous transaction whereby the grantors sold other land which they may
have had to other purchasers and in fact retained no land at all. It certainly
is not, in my view, a necessary implication from this deed that the grantors
retained any land. Neither does the reference in clause 1 of the deed to the
field 275 necessarily mean, in my view, that the grantors retained that field.
It is simply put in for the purpose of identifying the land which was being
dedicated and transferred. It seems to me therefore that it is impossible to
know whether or not this covenant was intended to be purely personal or to
benefit the land or whether it touched or concerned land retained by the
covenantee. I think it would be purely speculation and the court ought not to
be astute to speculate on the matter.
Finally, so
far as the fourth point is concerned, Mr Thornton says that in order for the
benefit to inure to the plaintiffs it has to be annexed to land and every part
of it. For the reasons I have already indicated I found considerable difficulty
in following how that could be in this particular situation. Mr Thornton relied
upon the decision of Federated Homes Ltd v Mill Lodge Properties Ltd [1980]
1 WLR 594, and he relied upon the provisions of section 78 of the Law of
Property Act 1925. He says that this was a case such as is referred to at p 604
of Brightman LJ’s judgment, at C, where Mr Price was setting out the three
possible views on the interpretation of the section. Mr Thornton says that this
case comes within the second view, which is described as follows:
A second
view, which was the one that Mr Price was inclined to place in the forefront of
his argument, is that the section only applies, or at any rate only achieves
annexation, when the land intended to be benefited is signified in the document
by express words or necessary implication as the intended beneficiary of the
covenant.
For the
reasons I have endeavoured to give I find it difficult to see that the land
intended to be benefited is signified by express words or necessary
implication. Mr Thornton goes on further to contend that that case is authority
for the proposition that in an appropriate case the benefit of the covenant
will inure for all parts of the land although it may be thereafter divided into
lots. That may well be the case; but it seems to me that there must, at any
rate, be some
the case here that field no 275 were retained, and it were a very large field,
it would be difficult to think that one end of that field, totally remote from
these trees, was intended to benefit in any way at all. In my judgment that
authority does not assist the defendants and I am not satisfied that the
benefit of this covenant ever inured to the plaintiffs.
But it seems
to me that there are further objections to this argument. I find considerable
difficulty in following the argument because the mere encroachment of the roots
is not sufficient to found an action in nuisance. The gist of the action is the
encroachment of the roots coupled with damage. The mere encroachment may be
sufficient to enable a plaintiff to abate the nuisance on his land but he
cannot, it seems to me, maintain an action for damages for nuisance unless and
until damage results. So that it is not an inevitable consequence of retaining
these trees that a nuisance is caused. Secondly, it seems to me to be quite
clear that neither the plaintiffs nor their predecessors have ever sought to
rely on this covenant or to obtain benefit from it or to restrain the
defendants from cutting down the trees in breach of covenant. Indeed, the
contrary is precisely the position. The plaintiffs in fact, as I find, never
even knew of the existence of this deed, or covenant; and indeed there is no
reason why they should. Secondly, the plaintiffs themselves sought to have the
trees lopped in the early stages of their possession (the Bridges did) and when
they discovered the damage caused to the house complained loudly of the
nuisance; and their predecessors in title, as the correspondence shows, were
expressly inviting the council to cut down the trees, to fell the trees, and
the council refused to do so unless the then owners abandoned any claim for
damages against the council. Not surprisingly those predecessors in title
refused to abandon that claim, so the trees never got cut down.
Finally,
accepting as I do Dr Biddle’s evidence, it seems to me that it was not an
inevitable consequence of retaining these trees that a nuisance resulted. The
most efficacious way of containing the spread of the roots and preventing a
nuisance was probably by lopping the trees, keeping the crown within reasonable
bounds, a course which appears to have been adopted up until about 30 years
ago; and, had it been continued, it seems to me that it would have been
effective to prevent the nuisance. Be that as it may, for those reasons I
reject the third ground upon which Mr Thornton contends that the defendants are
not liable.
I should add
that Mr Phillips raised a further point that, in any event, the burden of this
covenant was not registered as it should have been under the Land Registration
Act 1925, but he has not argued that point and merely wishes to retain it
hereafter.
Mr Thornton
accepts, subject to one point, that if those defences fail, then he is liable
in nuisance to the plaintiffs. He wishes to reserve for argument in a higher
court the question of whether or not the defendants can be liable in nuisance
in the absence of negligence. So far as this court is concerned he concedes
that there is liability in the absence of negligence and that being so I find
that the defendants are liable. They are therefore liable for the amount of the
damages to which I have already referred and it only remains for me to assess
the damages which the first plaintiffs have suffered in relation to the
disturbance and nuisance. It is accepted that that is a proper head of claim.
Mr Thornton urges me to say that it should be a relatively small sum.
What Mrs
Bridges said about it was this. That, in the first place, when they had the
temporary repairs done (they took about three weeks), they filled in the cracks
and did some decorating only to the walls in question. It did not look too bad,
but after a few weeks the cracks came again and the matter went from bad to
worse. Thereafter they had to live with the cracks, and indeed had to live with
them between 1973 and 1976, until the permanent work was done. She said that
the permanent work considerably affected her. There was a lot of noise and
dust. It was summertime and she needed the windows open and they were doing the
under-pinning — it was extremely noisy with the drills. That lasted about a
month. Then there was the decorating. They were living in the house at the
time. Nearly all the rooms in the house had to have the plaster hacked off and
be replastered; there was a certain amount of bricklaying to be done and then
the decorators had to operate. The work took some three months, and it does not
require very much imagination to realise the extremely unpleasant business it
must have been for the plaintiff’s household, particularly as they had two
relatively young children at that time. That, as I say, lasted for some three
months until repairs were completed. In my judgment the proper sum for
compensation for the disturbance and loss of amenity throughout the whole period
concerned is the sum of £750. That will be added to the sum of £7,287.36 as
damages to the first plaintiffs.
Judgment was given for £8,037.36 in favour of the
first plaintiffs and £6,350.35 in favour of the second plaintiffs, together
with costs and agreed interest.
