Damage caused by tree roots–Lime tree planted by local authority on ground outside house–Foundations fractured–Subsidence of bay at front–Father’s interest in house transferred to plaintiff–Whether plaintiff could claim for damage occurring during father’s occupation–In cases of continuing nuisance the person in possession may recover for damage suffered whether damage began before or after he acquired his interest–As to quantum of damage, builder’s evidence accepted on necessity of demolishing and rebuilding bay and underpinning wall
This was an
action by John William Masters against the London Borough of Brent for damage
caused by nuisance consisting of the undermining of the foundations of his
house at 23 Wendover Road, London NW10, by the spreading roots of a lime tree
planted on adjacent ground by the defendant authority or their predecessors in
title.
M F Harris
(instructed by Parsons, Evans & Francis) appeared on behalf of the
plaintiff; Ian Goldsworthy (instructed by Barlow, Lyde & Gilbert)
represented the defendants.
Giving
judgment, TALBOT J said: The plaintiff brings this action claiming damages for
nuisance. He is the owner of leasehold premises, 23 Wendover Road, London NW10.
He claims that by virtue of a lime tree planted by the defendants, or their
predecessors, in the vicinity of his house, the roots of that tree undermined
the foundations of the premises and thereby caused him loss and damage. Two
principal points arise for decision in this action. Logically the first is: has
the plaintiff a right to claim for the loss incurred by the undermining of the
foundations and the necessary building works in consequence thereof? Secondly, if he has a right so to claim, what
are the damages to which he is entitled?
At the outset
of this case certain matters were accepted by the defendants. 1. It is accepted
by them that the roots of the lime tree, which is in the pavement outside the
plaintiff’s house, did encroach upon the land of 23 Wendover Road. 2. It is
accepted that that encroachment of the lime tree roots constituted an
actionable nuisance. 3. The defendants accept that the lime tree roots
substantially caused the subsidence of the land, though there was left in issue
the amount of subsidence and the works which would be required to make good the
damage.
The necessary
facts in order to determine the first question, namely, whether or not the
plaintiff has any right to claim for the loss incurred, are these: The
plaintiff, John William Masters, lives at 23 Wendover Road with his father,
John George Masters. In addition to those two the plaintiff’s wife also lives
there. This property is leasehold and the leasehold interest belonged to the
plaintiff’s father. In the autumn of 1971 the plaintiff noticed a crack in the
passage wall in the hallway of the house. There had been some crack visible
before, but he noticed then it was getting worse. He asked the advice of a
friend of his, who was a young builder. His advice was that the work which
would be required to put the house in order was too large for him and he
recommended a firm, a company of builders, T R Atkins Ltd. The plaintiff
therefore consulted Mr Atkins, a director of that company, who made an
inspection shortly before November 17 1971. As a result of that inspection the
plaintiff was told that the bay at the front of the house was definitely
subsiding. Mr Atkins then prepared an estimate of the cost of the necessary
works. That was given on November 17 1971 and amounted to £876. Neither the
plaintiff nor his father, the owner of the leasehold interest, had at that time
the money available to pay for the necessary repairs. They therefore consulted
their solicitors.
As a result of
the advice of the solicitors, on November 24 1971 the plaintiff’s father
transferred to the plaintiff his leasehold interest in the premises. That was
done in order that the plaintiff, who then became the holder of the leasehold
interest, might raise money by way of mortgage. He went to the Chelsea Building
Society and obtained a loan on mortgage of £4,000. One of the conditions of the
grant of the loan was that the works necessary to put this house in order would
be carried out within a period of six months. In the months immediately
succeeding the plaintiff also negotiated the purchase of the freehold interest
in the premises and paid for that out of the mortgage loan, the freehold
transfer being completed on June 14 1972.
In April 1972
Mr Atkins’ company began work. The works were eventually completed–and I shall
have more to say about them later on–and on October 4 1972 the plaintiff
received an account for £1,240.93, which he promptly paid out of the moneys
advanced to him on mortgage. I say
second estimate for additional necessary work dated December 3 1971 in the sum
of £135.64.
Coming,
therefore, to the first point taken by Mr Goldsworthy, it is shortly this, that
the plaintiff, who acquired the leasehold interest on November 24 1971, is not
in a position to claim, in this action, for damages based upon the cost of
repair of this house, the damage occurring before he acquired the leasehold
interest and when his father was the leaseholder. Mr Goldsworthy submitted
that, as a matter of law, the plaintiff was in no better position, or worse
position, whether he was a volunteer, or a purchaser for consideration, or for
consideration of natural love and affection. He would be in no better position
than would a complete stranger if he had taken over the house and the premises.
Such person, he submitted, would have no right of action against the
defendants. He cited and adopted for the purpose of his argument that which is
set out in Clerk and Lindsell on Torts, 14th ed para 1413. The paragraph
is headed: ‘Who can sue for nuisance?’
The opening sentence reads: ‘Apart from rights arising from public
nuisance the person who can sue for a nuisance is the person in possession or
occupation of the land affected.’
One of the
authorities cited in the text is that of Malone v Laskey [1907] 2
KB 141. In that case the wife of a licensee occupier of a house who was injured
by the fall of a tank caused by vibrations set up by the defendant was held to
have no right of action for her injury either in nuisance or in negligence. So
far as that decision relating to negligence is concerned, the decision of the
House of Lords in Billings (AC) & Sons Ltd v Riden [1958] AC
240 held that that part of the decision was wrong. Their Lordships expressed no
views, other than to limit their reversal to that part of the decision on negligence,
on the question of nuisance. It is, therefore, Mr Goldsworthy’s submission that
this plaintiff here is in no better position than was the wife of the occupier
in Malone v Laskey in that at the time of the damage he had no
interest in the property. It does not fall to me to decide whether or not that
is a proposition that I ought to follow, for reasons which will be seen later.
The next
authority that I was referred to was Thompson v Gibson (1841) 7 M
& W 456. That was an action for nuisance arising out of the placing of a
building in a market place whereby the public use of that part of the market
place was prevented. At p 460 of that report Mr Goldsworthy relied upon this
part of the judgment of Parke B. I will read a little further back than the
passage which Mr Goldsworthy drew my attention to. It begins as follows,
half-way down p 460:
Is he, who
originally erects a wall by which ancient lights are obstructed, to pay damage
for the loss of the light for the first day only, or does he not continue
liable so long as the consequences of his own wrongful act continue and bound
to pay damages for the whole time, and if the then owner of the market might
have maintained an action against the defendants for the injury to his
franchise, for the whole period during which the defendants’ act continued to
be injurious to him, his lessee must be in the same condition as to subsequent
injuries; for it is clearly established that he has a right of action for every
continuing nuisance.
There are
further passages from that judgment to which I will return later. But Mr
Goldsworthy stressed the words ‘subsequent injuries’ and pleads here that all
the plaintiff can do is to claim for any loss, or injury, subsequent to his
acquisition of the premises and, therefore, not permitting him to add to his
claim, a claim in respect of the damage which occurred during his father’s
ownership of the legal interest. He can only, said Mr Goldsworthy, sue for
damage which accrued during his occupation and a purchaser cannot inherit any
right to damages which accrued to his predecessor.
He next dealt
with the measure of damages, namely, the difference in value of the interest in
the land between the time before and the time after the damage was done and
submitted the plaintiff never enjoyed the land in its uninjured state. It was
then in his father’s ownership. It was conceded by Mr Goldsworthy that in
assessing that type of damages it is normally, in these circumstances,
permissible to look to the cost of reinstatement.
I was then referred
to another paragraph in Clerk and Lindsell, 1393. I read from
that paragraph:
A private
nuisance may be, and usually is, caused by a person doing on his own land
something which he is lawfully entitled to do. His conduct only becomes a
nuisance when the consequence of his acts are not confined to his own land but
extend to the land of his neighbour by (1) causing an encroachment on his
neighbour’s land, when it closely resembles trespass, (2) causing physical
damage to his neighbour’s land or buildings or works or vegetation upon it.
I need not
refer to the first category.
A little later
on in that paragraph the learned editor writes as follows:
Nuisances of
the first kind in the nature of encroachments occur when a man builds on to his
house a cornice which projects over his neighbour’s garden so as to cause
rainwater to flow thereon, when his trees overhang his neighbour’s land and
when the roots of his trees grow into his neighbour’s land.
Then he goes
on to deal with nuisances of the second kind causing physical damage to land.
A further
submission involved a reference to the authority of Darley Main Colliery
v Mitchell (1886) 11 App Cas 127. I need not deal in detail with this
quite complicated decision, but merely extract from it what Mr Goldsworthy
desired me to do, namely, that in that case there had been, as a result of the
working of coal, a subsidence of land and injury to houses in 1868. The working
of coal ceased, but in 1882 a further subsidence took place, causing further
injury. The decision of their Lordships was that that second subsidence gave
rise to a cause of action in the hands of those who suffered the second injury.
The principle that Mr Goldsworthy desires me to extract from that case is that
there there were two separate claims in respect of the same nuisance and he
likens that to this case, namely, there are two separate claims here, namely, a
claim by the father and a claim by the plaintiff, if the plaintiff has suffered
damage since his acquisition of the premises. Mr Goldsworthy conceded that the
plaintiff may have a cause of action for encroachment if he is in a position to
show damage. The burden of his submission on this point was that the plaintiff
cannot use the damage which occurred during his father’s ownership to support
his cause of action for the nuisance which continued during his own occupation.
Another
authority was Clegg v Dearden (1848) 12 QB 576. There the defendants
in working a mine had excavated wrongfully into their neighbour’s mine. That
gave rise to a claim for damages in trespass. Mr Goldsworthy adopted the
principle to be derived from that case, namely, that there was a once-for-all
loss and that in this case occurred during the ownership of the plaintiff’s
father.
A more modern
authority relied upon was Sparham Souter v Town and Country
Developments (Essex) Ltd [1976] 1 QB 858. Principally that
decision of the Court of Appeal dealt with the time at which a cause of action
accrues. For instance, the court held that in the case of negligence the cause
of action accrues not at the date of the negligent act or omission, but at the
date when the damage is first sustained by the plaintiff. Again the question of
the Statutes of Limitations was involved in this decision. But there is a
passage in the judgment of the Master of the Rolls which Mr Goldsworthy
submitted was very much in point. It occurs at p 868 between letters ‘G’ and
‘H.’ The Master
action is the owner in whose time the damage appears. He alone can sue for it
unless, of course, he sells the house with its defects and assigns the cause of
action to his purchaser.’ Thus, it is
submitted, that, in effect, covers this case. Those were the principal
submissions made to me on behalf of the defendants.
Mr Harris
points out, somewhat wryly, that if the defendants are right, had the
plaintiff’s father sued, they would have said: where is his loss in that the
cost of reinstatement has fallen upon his son?
In the same breath, or in the next breath, they say: the plaintiff, the
son, can’t sue, because the damage did not occur during his ownership of the
interest. That, submits Mr Harris, is palpably wrong. I must confess, looked at
that way, there is great force in that submission. He analysed the matter in
this way: the defendants have committed the tort of nuisance, that tort has
damaged the premises, as a result the value of the premises has been diminished
by the damage and the measure of that diminution is the cost of remedying the
damage and, finally, that cost has been borne by the plaintiff who, at the time
of the commission of the tort, had sufficient interest to found an action in
nuisance.
He then
referred me back to Thompson v Gibson. I go back to that
authority at p 460 and continue reading the judgment of Parke B, who referred
to Roll Abr, Nuisance, K2:
If one is
seized of land near a river, and another stops it with loads of earth, and the
tenant of the land adjoining leases to another for years, and then the stoppage
continues, by which the land of the lessee is surrounded, the lessee shall have
an action on the case against him; for though the stoppage was in the time of his
lessor the continuance was a wrongful damage to the lessee, for his land was
surrounded.
Then a little
further on the learned judge said this:
In the case
of Rosewell v Pryor, which was an action against the defendant,
who erected an obstruction to the ancient lights of the plaintiff, and then
aliened, Lord Holt lays it down, that it ‘is a fundamental principle in law and
reason, that he that does the first wrong shall answer for all consequential
damage; and here,’ he says, ‘the original erection does influence the
continuance, and it remains a continuance from the very erection, and by the
erection until it be abated.’ And he
adds, ‘that it shall not be in his power to discharge himself by granting it
over.’ It is true that Lord Holt
afterwards says, ‘that if the alienee of the land brought an action against the
erector and the erection had been before any estate in the alienee the question
would be greater, because the erector never did any wrong to the alienee.’
The essence of
the case of Thompson v Gibson, as it was dealt with by the court,
Mr Harris argues, indicates that it was a continuing nuisance, and where there
is a continuing nuisance it indicates that a successor in title can sue in
respect of it. The case of Clegg v Dearden, he points out, is
really quite distinct from the present case. Clegg v Dearden was
an action for trespass, possibly for nuisance, but it was not expressed to be a
continuing wrong. He further argues that the defence, by accepting that the
plaintiff can sue for nuisance, accepts that he can only do that because he is
in possession of land subject to a continuing nuisance.
The final
submission that he makes upon this is that here is a case where there is a
continuing actionable nuisance affecting the land both during the time of the
father’s ownership and during the plaintiff’s ownership, that there was in
fact, not in theory, continuing damage and that the plaintiff, who has remedied
the damage at his own expense, is entitled to recover that cost as his loss for
the continuing nuisance. In my judgment, that is a correct submission. Where
there is a continuing nuisance inflicting damage upon premises those who are in
possession of the interest may recover losses which they have borne whether the
loss began before the acquisition of the interest, or whether it began after
the acquisition of the interest. The test is: what is the loss which the owner
of the land has to meet in respect of the continuing nuisance affecting his
land?
Having decided
that point, therefore, in the plaintiffs favour, I now turn to the question of
damages. There were two witnesses whose evidence I have to consider. On behalf
of the plaintiff I had the evidence of the building contractor concerned, Mr
Atkins. On behalf of the defendants I heard the evidence of a Mr Stevens, a
chartered architect of considerable experience, but who had the misfortune, so
far as assisting this court is concerned, in not having seen the property until
the remedial works were being carried out. A number of points were taken by the
defendants based upon Mr Stevens’ evidence, one of which was that the works
undertaken by Mr Atkins were really wholly unnecessary.
I will turn,
therefore, to Mr Atkins’ evidence. He was a builder of considerable experience,
having been in business for over 40 years. Upon his inspection about two days
before November 17 1971 he found the bay at the front of the house seriously
out of line, with the brickwork fractured, and he came to the conclusion that
it was beyond the point of restoration and would have to be demolished. There
was a fracture in the ceiling on the ground-floor room, a crack which ran
diagonally right across the partition wall–that is the wall in the hall–the
sills and lintels were all fractured and were not reusable and it was only sensible,
in his view, to renew the foundations as the subsiding of those foundations
would have been the cause of the damage that he saw. Indeed, the foundations
were tilted and fractured. As the result of his survey he felt that if left
very much longer the main structure might collapse and the main wall–that is
looking at the house from the front on the right–had some serious cracks
showing. It was difficult, he said, to say that it would have got worse, but,
from the structural point of view, he would expect something serious might
happen to the bay owing to the fractured sills and lintels. During the course
of the works the plaintiff expressed a preference for a rectangular bay instead
of what is called a cant or splayed bay which had previously existed. Mr Atkins
was prepared to rebuild the bay in this rectangular form as it would not in any
way add to the cost which he had already quoted for the restoration and
rebuilding of this bay. Work commenced, as I have said, and in the course of
the work, as a result of his instructions, he was called to the site and there
he saw a number of lime tree roots under and around the foundations, which
confirmed his original suspicions.
One of the
points taken by the defendants is that at the front of this house there was,
what is considered by Mr Stevens to be, a substantial privet hedge, and the
roots from that privet must have contributed to the damage which occurred to
the house. Mr Stevens conceded that substantially the damage was caused by the
lime tree roots. But it was argued by the defendants, on his evidence, that
some part of the loss ought to be attributed to these privet roots. Mr Atkins’
inspection did not reveal to him anything in the nature of a large or
substantial hedge. It was rather sparse, so far as he recalls. His actual
inspection of the roots, which he was called to see by his workmen, did not
reveal to him anything particular that was related to privet hedge roots. He
did not notice any, he said, at the foundation level. He could then see at that
point of the excavation that the foundations were in fact fractured and tilted.
His view as to whether the privet roots could have added anything to the effect
of the lime tree roots was that it was purely a matter of speculation. The
privet roots were nearer to the surface and he had never, in his experience,
come across a case where privet roots had contributed to this kind of damage.
His conclusion was that the main substantial cause here was the effect of the
lime tree roots. So far as the ceiling in the room was concerned, that had lost
its key to
Mr Stevens
made an inspection on May 12 1972 and, as has been pointed out in his report
dated November 18 1977, which was a document admitted for the purposes of being
used by either side, Mr Stevens indicated that they were not able to spend very
much time at the site and they were not able to see anything of the old
foundations of the bay. There was partly to be seen the excavation trench,
because it had not been completely backfilled. It was a matter of conjecture,
though it was his view, that the privet roots would have affected the
foundations, and, after much consideration, he put it at the quantity 15 to 20
per cent. He queried the need to demolish the bay. Only in extreme cases does
one need to demolish and rebuild. He gave various reasons as to why he thought
it was probably unnecessary in this case to have undertaken complete demolition
and rebuilding. Again, by reason of the fact he had never had an inspection of
the damaged bay at the time when a decision had to be made, it seems that what
he can contribute to this is largely a matter of conjecture.
With regard to
the underpinning which Mr Atkins carried out of the wall on the right, Mr
Stevens considered that that was not necessary unless there were very serious
conditions, and one of the reasons that it was not usually done unless
conditions were very serious was because it was not always very beneficial. He
did not consider again that the underpinning was necessary in this case. In
respect of this matter, of course, he was in as good a position as Mr Atkins to
reach a judgment. He could see the position, as indeed Mr Atkins could see it.
He made one or two remarks about the windows and whether it was necessary to
replace the windows. So far as the ceiling is concerned, he was not able to say
anything about the keying, because he was not able to see that. But it was his
impression that it might have been possible to repair it rather than take it
down and replace it. With regard to the hall and the staircase, redecoration
was indeed necessary, but the actual cause of the damage might have been due,
he said, to movement either from the front or from the back of the house, the
movement at the front of the house, of course, being caused by the roots of the
lime tree. He then was asked what was the unnecessary amount spent on
underpinning. He gave two amounts £250 to £270. Referring to the final bill
submitted on September 4 1972 by Atkins Ltd he gave amounts which he said ought
to have been expended upon the various items therein set out.
I went through
those with Mr Goldsworthy. Therefore, two questions ultimately have to be
decided. One is: is it right to take the view that the plaintiff’s contractors
carried out unnecessary work and, therefore, the cost should be whittled down
by the amounts spoken to by Mr Stevens?
Secondly, ought I to reduce whatever amount is due to the plaintiff by
the possible effect of the privet roots?
As I indicated at the outset of this part of my judgment Mr Stevens was
in the difficulty of not having seen the works that had to be carried out. I
find no difficulty, in those circumstances, in accepting the word and the
evidence of Mr Atkins, the experienced builder, as to what in fact was
necessary. Subject to any possible reduction, in my judgment the plaintiff
ought to have that which a competent builder said was the necessary cost of
putting right the damage caused by the encroachment.
Finally,
therefore, ought I to reduce it by a possible effect of the roots of the privet
hedge? Again it was bound to be a matter
of conjecture, 15 to 20 per cent. It is not possible to measure it. I can find
no link in the facts here to point to any such figure. Furthermore, in that
case, too, Mr Stevens did not have as fair an opportunity of judging the matter
as Mr Atkins, and when they both say the substantial cause here was the lime
tree roots I do not see any reason but to depart from that and to attribute
this damage to the encroachment of the lime tree which was the responsibility
of the defendants.
The plaintiff,
therefore, is entitled to judgment in respect of the sum of £1,133.33.
