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over and along the said road, and all roads or paths on the estate of the lessor, with all ways, easements, &c. thereunto belonging or appertaining. Covenant for quiet enjoyment.
Averment: that afterwards the defendant demised to one Burgess other land, parcel of the said estate, for building purposes, without any reservation of ways or roads, and with an indemnity to him against all actions in respect of such land. Breach : that Burgess, by virtue thereof, entered and built on the land demised to the plaintiff, and in so doing obstructed and stopped certain of the roads and ways granted to the plaintiff by the defendant, viz. Elizabeth Place, &c., and thereby the plaintiff's property was deteriorated in value, &c.
Second count, for that the plaintiff was possessed of a piece of land, and was entitled to a right of way therefrom over a certain close to a public highway, but that the defendant wrongfully obstructed it.
Pleas: 1. Non est factum.
2. That the said road or way was not demised as alleged, and did not form part of the said demised premises.
3. Denying the breach.
4. To the second count, that the plaintiff was not possessed of the said piece of land, and entitled to a right of way as alleged.
Shee, Serjt., and Pearce for the plaintiff.
The premises demised both to the plaintiff and to Bur-
the time of the purchase, been garden ground, with nothing built upon it. But afterwards it was laid out for building purposes, and in 1852 a plan was made, with streets and roads marked out upon it. In 1852 there was a building agreement between the plaintiff and defendant, under which the plaintiff was to have built fourteen houses in Elizabeth Place, one of the streets so marked out, Blue Anchor Rond being another. In 1854 the agreement was cancelled, and the demise was made to the plaintiff, the defendant demising, and the cestui que trust, Elizabeth Taylor, joining in the demise by way of confirmation. This demise was of a piece of ground on or near the line of the Blue Anchor Road, &c., on the west side of a new road or way called, or to be called, Elizabeth Place, &c., and abutting on a new road or way called Blue Anchor Avenue, and together with the free right of way over and along the said road or avenue, and all roads and paths on the said estate, to pass and repass from the ground hereby demised, and also all other ways, paths, passages, easements and liberties to the said demised premises appertaining or belonging. There was a covenant by the plaintiff to build fourteen houses in what was called Elizabeth Place; and the plaintiff built houses, pursuant to his covenant, in “ Elizabeth Place,” at which time there were skeletons of houses opposite thereto, built by another lessee. In 1856 the defendant demised to Burgess certain land, part of Elizabeth Place, who thereupon built on the land so demised to him, so as to cut that street short, obstruct the passage through it, and convert it into a cul de sac. The question in the cause was, whether the part of Elizabeth Place so cut off was a “way,” to which the plaintiff was entitled under his lease.
There had been notice, on the part of the plaintiff, to produce the lease and agreements, and every plan formerly in the possession of Daniel Taylor, relating to the land in question, and particularly to ground demised to the 1862.
plaintiff or to Burgess, or in any way relating to the matters in issue in this cause.
The surveyor, who, in 1852, was employed by the defendant and Taylor to survey the estate was called, on the part of the plaintiff, to prove that he had prepared a plan thereof, in which the roads and ways were set out, which he had shown to the plaintiff. He said he had discussed the matter with Daniel Taylor, and seen the defendant at Taylor's house in 1854 (before the demise to plaintiff), and the plan was then on the table, and referred to.
M. Chambers objected to this, that the demise must speak for itself, but
Erle, C. J.-I must rule in accordance with my ruling yesterday, in Bruff v. Conybeare (a), that the evidence is admissible to apply the written document, and show what it refers to. The demise is of all roads and ways, &c., and I must hear evidence to show what they were, i. e. what ways were pointed out to the tenant.
The surveyor went on to state that on the occasion when the lease was executed at Taylor's house, the defendant and Elizabeth Taylor being present with the plaintiff, the plan was on the table, and referred to.
Chambers, after eliciting that Elizabeth Place was only just commenced, objected that the lessor was only bound by the state and appearance of the property as it then existed, not by mere plans or proposals ; but
ERLE, C. J., said he should hold that all ways, roads, &c., marked out on any plan shown to the tenant before he executed the lease would be included in the demise (6).
Chambers then, having elicited that the plan mentioned by the witness bad been destroyed by accident, objected to the one produced (which was not an exact copy of it,
(a) Vide post, p. 56.
1862. but in substance the same) until it was traced to the
possession of the defendunt; but SPANTON
ERLE, C, J., said he should hold, that as the cestui que trust and the trustee, i. e. Elizabeth Taylor and the. defendant, were in interest identified, it was enough that the possession of the plan had been traced to the former, and notice to produce given to the latter.
The plan which had been in the possession of the cestui que trust not being produced, and the plan retained by
the witness having been proved to be destroyed, the · witness was allowed to refer to a plan in substance the same, which was produced,
Ultimately, however, the cause ended in a reference to arbitration.
BRUFF v. CONYBEARE. Spring Assizes. An agreement ACTION on an agreement by the defendant to pay the in writing having been
plaintiff 6001. The question in the cause was on what
P entered into
event it was to be paid. between two railway en
Bovill and Needham for the plaintiff. gineers, which was headed “Chard Canal
M. Chambers, Lush and Brown for the defendant. Railway Company," and by
The parties were railway engineers, and the plaintiff bad which the defendant was
been engaged in a project for a line between Chard and to pay the Taunton, and had plans, &c. relating thereto, and likewise plaintiff a sum of money in some interest with landowners in the district. There had consideration of his handing
been a scheme to convert to the purpose of such a line the over the plans Chard Canal, and a “Chard Canal Railway Company” relating to the canal scheme, had been formed by the exertions of the plaintiff, with a the money to be paid on the view to carry it out. The defendant desired to promote passing of the such a line, and on the 28th of May, 1860, the parties act ; evidence was admitted to show, by the prior conversation between the parties, whether the agreement related only to the canal scheme (which proved abortive) or to any act for a Chard railway,
met, and the defendant signed a memorandum in these terms, headed “ The Chard Canal Railway Company:"
"In consideration of your transferring all the interest you may have in this company, and handing to me the plans and documents in your possession in connection therewith, I undertake to pay you 6001., provided my friends succeed in carrying out the undertaking; to be paid thus,—3001. on the first portion of the land being required by the company, and the balance out of the money received by me on the construction of the line, &c.”
A discussion ensued, which resulted in the defendant's writing on the above an additional memorandum, to the following effect :
“It is understood that the 6001. herein referred to shall become payable on the obtaining of the act; one moiety in six months, the residue in three instalments. The measure is to be bona fide prosecuted, and the furnishing of the documents is an honourable understanding, &c.”
And it was mainly on the effect of this indorsement that the question in the cause was found to turn.
Upon the agreement being entered into, the plaintiff at once banded over to the defendant the plans referred to, and which only related to the canal scheme.
On the 1st of June, 1860, it was found that (owing to the difficulties raised by the demands of the canal mortgagees) the canal railway scheme could not be carried out, and the defendant wrote to the plaintiff to that effect.
On the 14th of June the parties had an interview, at which (as the plaintiff stated) the plaintiff showed the defendant an Ordnance map of the country, on which he had sketched out another line, avoiding the canal, which the defendant copied. Eventually the Bristol and Exeter got an act for a scheme comprising a Chard and Taunton line, founded, as the plaintiff' alleged, on the line so suggested by him. In carrying this act both the parties cooperated, and the defendant formed a new company to promote it in the locality. On the carrying of the act the