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England and Wales High Court (Exchequer Court) Decisions
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Cite as:  EWHC Exch J26
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1 May 1863
2 H & C 122; 159 ER 51
An incorporated canal Company by deed granted to the plaintiff the sole and exclusive right or liberty of putting or using pleasure boats for hire on their canal. Held, that the grant did not create such an estate or interest in the plaintiff as to enable him to maintain an action in his own name against a person who disturbed his right by putting and using pleasure boats for hire on the canal.
Declaration. For that, before and at the time of the committing by the defendant of the grievances hereinafter mentioned, the plaintiff was entitled to, and had and was possessed of, the sole and exclusive right or liberty to put or use boats on a certain canal, called the Basingstoke Canal, for the purposes of pleasure and to let the same boats for hire on the said canal for the purposes of pleasure. Yet the plaintiff says that, whilst he was so entitled and possessed as aforesaid, the defendant, well knowing the premises, wrongfully and unjustly disturbed the plaintiff in the possession, use and enjoyment of his said right or liberty, by wrongfully and unjustly putting and using, and causing to be put and used, divers boats on the said canal for the purposes of pleasure, and by letting boats on the said canal for hire, and otherwise for the purposes of pleasure. By means of which said premises the plaintiff was not only greatly disturbed in the use, enjoyment and possession of his said right and liberty, but has also lost great gains and profits which he ought and otherwise would have acquired from the sole and exclusive possession, use and enjoyment of his said right or liberty, and was otherwise greatly aggrieved and prejudiced.
Pleas. First: not guilty. Secondly: that the plaintiff was not entitled to, nor had he, nor was he possessed of, the sole and exclusive right or liberty to put or use boats on the said canal for the purposes of pleasure, nor to let the said boats for hire on the said canal for the purposes of pleasure as alleged. Issues thereon.
At the trial, before Bramwell, B., at the London Sittings, after last Hilary Term, the following facts appeared: Under the 18 Geo. 3, c. 75, the Company of Proprietors of the Basingstoke Canal Navigation were incorporated with perpetual succession and a common seal, for the purpose of making and maintaining a navigable canal from the town of Basingstoke, in the county of Southampton, to communicate with the river Wey in the parish of Chertsey, in the county of Surrey. The lands purchased by the company of proprietors, under their parliamentary powers, were by the Act vested in the Company. By the 100th section of the Act it is enacted: "That it shall and may be lawful for the owners and occupiers of any lands or grounds adjoining to the said canal, to use upon the said canal any pleasure boat or boats, or any other boat or boats, for the purpose of husbandry only, or for conveying cattle from one farm, or part of a farm or lands, to any other farm or lands of the same owner or occupier, without interruption from the said Company of proprietors, their successors or assigns, agent or agents, and without paying any rate or duty for the same; and so as such boat or boats be not above seven feet in breadth, and do not pass through any lock to be made on the said navigation, without the consent of the said company of proprietors, their successors or assigns, or be employed for carrying any goods, wares or merchandize to market or for sale, or any person or persons for hire; and so as the same shall not obstruct or prejudice the said navigation, or the towing paths, or obstruct any boats passing upon the said navigation liable to pay the rates or duties aforesaid; and the owner of all such pleasure boats, or other boats, shall, in his own lands or grounds, make convenient places for such boats to lie in, and shall not suffer them to be moored or remain upon the said canal."
The defendant was the landlord of an inn at Aldershot adjoining the canal, and his premises abutted on the canal bank. The plaintiff, who was a boat proprietor, also occupied premises at Aldershot on the bank of the canal, which he held under a demise from the company of proprietors, and by virtue of the demise claimed the exclusive right of letting out pleasure boats for hire upon the canal, which was the right the defendant was alleged to have disturbed. The lease under which the plaintiff claimed this right was dated the 29th of December, 1860, and by it, in consideration of the rents, covenants and agreements therein contained, the said company of proprietors demised to the plaintiff, under their common seal, for the term of seven years from the 24th of June, 1860, at the yearly rent of 25l., "All that piece or parcel of land containing 19 poles or thereabouts, adjoining Aldershot wharf, situate in the parish of Aldershot aforesaid, and the wooden cottage or tenement, boathouse, and all other erections now or hereafter being or standing thereon, etc." (describing the premises by boundaries, and by reference to a plan), "together with the appurtenances to the same premises belonging; and also the sole and exclusive right or liberty to put or use boats on the said canal, and let the same for hire for the purpose of pleasure only." The lease contained various covenants framed with the object of preventing any interference by the plaintiff's pleasure boats with the navigation of the canal, and a proviso for re-entry for any breach of the covenants.
The evidence of the defendant was at variance with that adduced on behalf of the plaintiff upon the question whether the defendant had ever let out boats upon the canal for hire, in the sense of a direct money payment. The defendant did not deny that he kept pleasure boats, and used them upon the canal, but stated that he 'kept them for the use of his family; he admitted, however, that gentlemen had come from time to time to his inn and used these boats for fishing and bathing.
The learned Judge reserved leave to move to enter a nonsuit or verdict for the defendant, and left to the jury the question whether the defendant had obtained any pecuniary advantage from the boats. The jury found a verdict for the plaintiff; damages, a farthing.
Hance, on a former day in this term, obtained a rule nisi to enter a nonsuit or verdict for the defendant on the ground, first, that the Company of Proprietors of the Basingstoke Canal Navigation had no power to grant the exclusive right claimed; secondly, that, if the grant were good, the action would not lie by the plaintiff against the defendant for the alleged infringement of the right: or for a new trial on the ground of misdirection by the Judge in directing the jury that the defendant was liable if he obtained any pecuniary advantage from the boats.
Garth and Holl shewed cause (April 29 and May 1). The plaintiff's right having been infringed, an action lies for the infringement. The action is not without analogy. The grantee or lessee of a several fishery, or of a right of turbary, or other profit A prendre, may sue for a disturbance of his right. Here, too, the right claimed is one of profit. The circumstance that the Company of Proprietors can sue in trespass is no reason for holding that the plaintiff has not also his right of action. The two causes of action are distinct, and the damage sustained is different. The right of the lord of a manor to sue far a trespass is no impediment to the right of a commoner to sue for a simultaneous disturbance of his common. The question here raised is not, as in Keppell v. Bailey, whether the owner of land can burthen it in the hands of future owners by the creation of novel rights. Nor is it necessary to contend that the plaintiff has an interest which he can assign without the assent of the company of proprietors. It is sufficient if he has such an interest as will enable him, as against a wrong-doer, to maintain an action. In Whaley v. Laing (2 H. & N. 476; in error, 3 H. & N. 675, 901) the question was much discussed, whether a mere licensee of water was not entitled to maintain an action against any person by whom the water was polluted. Here the plaintiff was in the exercise and enjoyment of an exclusive right, given to him by the express terms of the demise. If the right conferred on the plaintiff had been the exclusive use- of the grand stand at a race, or of seats at a window during a procession, he might, it is submitted, maintain an action against a mere intruder. There, by the hypothesis, the right would not be exclusive. Some limitation may be necessary to prevent the creation of innumerable rights. But the use of water is a right well known and recognized. The claim of the plaintiff is to the exclusive use of water, or of land covered with water, for a particular purpose: the nature of the purpose can be no criterion of the existence of the right. In Bostock v. The North Staffordshire Railway Company (4 E. & B. 799), the opinions of the majority of the Court proceeded on the ground that the Company was created for a specific purpose, and was authorized to take and use lands for that purpose only. There the owner and occupier of land claimed a right of way for purposes wholly unconnected with the use and enjoyment of the land. A grant by deed to a person, his heirs and assigns, of free liberty to hunt, fish, and fowl upon certain land, is not a mere personal licence of pleasure, but a grant of a profit a prendre: Wickham v. Hawker (7 M. & W. 63). Here there was a grant by deed to the plaintiff of the exclusive right to use the water with pleasure boats for his profit, and that being a right coupled with an interest entitled him to maintain an action against any person who infringed his right. Wood v. Leadbitter (13 M. & W. 838) merely decided that the right to come and remain for some time on the land of another can be granted by deed only; and that a mere personal licence to do so, though money be paid for it, is revocable at any time without paying back the money. This is an incorporeal hereditament of a similar nature to the right to dig turves, or the liberty of hunting over the land of another, or fishing in his water.
Bernard (with whom was Montagu Chambers and Hance), appeared in support of the rule, but was not called upon to argue.
POLLOCK, C. B. We are all of opinion that the rule must be absolute to enter the verdict for the defendant on the second plea. After the very full argument which has taken place, I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v. Smith (10 C. B. 164) expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right. It is argued that, as the owner of an estate may grant a right to cut turves, or to fish or hunt, there is no reason why he may not grant such a right as that now claimed by the plaintiff. The answer is, that the law will not allow it. So the law will not permit the owner of an estate to grant it alternately to his heirs male and heirs female. A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decisions or controlled by act of parliament. A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed.
MARTIN, B. I am of the same opinion. This grant is perfectly valid as between the plaintiff and the canal Company; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction. None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created. To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates. The only consequence is that, as between the plaintiff and the canal Company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal Company to sue in their name. The judgment of the Court of Common Pleas in Adcroyd v. Smith (10 C. B. 164), and of Lord Brougham, C., in Keppell v. Bailey (2 MyL & K. 517, 535), are, in the absence of any case to the contrary, ample authority for our present decision.
BRAMWELL, B. I am of the same opinion. I will only add, that the defendant cannot have the verdict entered for him on the plea of not guilty, for no leave was reserved at the trial; and the defendant could only succeed on that issue by obtaining a new trial on the ground of misdirection. The rule must therefore be absolute to enter the verdict for the defendant on the second plea, unless the plaintiff elects to be nonsuited, but as he can never make a better case, the better course would be to enter the verdict for the defendant on the second plea.
Rule absolute accordingly.