Macmillan v Fallah, 1972-73 ALR S.L. 274

SECTION 33 THE AFRICAN LAW REPORTS Evans and Robinson ... but if the wife has brought her case to a hearing, howsoever, and fails, the husband has never then been made liable to her costs." There is no exceptional circumstance for me not to follow the 5 general rule "no security, no costs." I make no order as to costs. 10 15 20 25 30 35 40 Petition dismissed; cross-petition granted. MACMILLAN v. FALLAH High Court (Thompson-Davies, Ag. J.): March 28th, 1973 (Mag. App. No. 19/72) [1] Tort--nuisance-encroachment on land-projection of eaves over neigh­ bouring land is nuisance-liability established without proof of defen­ dant's negligence or actual damage: Although it closely resembles a trespass the projection of the eaves of a building over adjacent property is in fact a nuisance for which liability is established merely by proof of the encroachment without consideration of the character of the neigh­ bourhood or the defendant's negligence; further, it is unnecessary to prove actual damage since on the particular facts there is a presumption that damage will be suffered by the plaintiff by rain-water dripping from the roof on to his land (page 275, line 33- page 276, line 4). [2] Tort-trespass-trespass to land-projection of eaves over neighbouring land not trespass but nuisance: See [1] above. The appellant brought an action against the respondent in the Magistrate's Court, Freetown claiming damages for trespass to land. The appellant and respondent owned adjacent properties. The roof of the respondent's bakery was constructed so that the eaves overhung the appellant's land and caused rain-water to drop on to it. The appellant brought the present proceedings claiming damages for trespass but although the magistrate did not reject her evidence he held that she had failed to prove trespass. On appeal the appellant contended that the magistrate mis­ directed himself in law, and that by accepting her evidence but rejecting her claim he also misdirected himself on the evidence. The court considered whether in fact the case did not fall within the law of nusiance rather than within the law of trespass as pleaded. A new trial was ordered. 274 MACMILLAN u. FALLAH. 1972-73 ALR S.L. 274 Case referred to: (1) Fay v. Prentice (1845), 1 C.B. 828; 135 E.R. 769, applied. Metzger for the appellant; · Carew for the respondent. THOMPSON~DAVIES, Ag. J.: H.C. This appeal concerns a claim for damages for trespass. It relates to two premises, 158 and 160 Circular Road, Freetown. The issue is whether the learned trial magistrate should have held as he did that the appellant failed to prove her case for trespass on the evidence led. The original grounds of appeal were for damages for trespass and nuisance but counsel for the appellant abandoned Grounds 2(b) and (c) of her appeal. I am therefore to concern myself with his claim for damages for trespass. The facts material to this issue are these. The appellant and the respondent respectively live in premises numbered 158 and 160 Circular Road, Freetown. The respondent owns a bakery and a shop at the said 160 Circular Road. The appellant alleged that the eaves of the roof of this bakery and shop overhung her property and that rain-water from the eaves fell into her land. The submission of counsel for the appellant was to the effect that the learned magistrate misdirected himself on the law in relation to the evidence and could not have found against the appellant as he did, had he visited the locus in quo. Also, that nowhere in the decision of the learned magistrate did he say that he did not believe the evidence given by the appellant and he therefore completely mis-directed himself on the evidence. Learned counsel for the respondent in his submission advanced a number of observations to me as to the rightness of the judg­ ment and added that even though there might have been a trespass the respondent acquired it as an easement. It is convenient in this case for me to adopt the course of first stating the law as I understand it to be. The claim here is for damages for trespass. The trespass is in relation to an eaves gutter built by the respondent to prevent rain water dropping onto his land. What is here referred to as a trespass is in fact a nuisance. Nuisances of this kind are in the nature of an encroachment and closely resemble a trespass. Liability for this kind of nuisance is established by proving the encroachment. Negligence does not here affect liability. The place where the land is situated does 275 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS not matter. The character of the neighbourhood and the surround­ ings are not matters to be taken into consideration; when the nuisance consists of such an encroachment, the law will presume damage. 5 Bearing all these considerations in mind I turn now to the facts. The evidence as recorded by the learned magistrate will suffice. I hope he will forgive me for stating it here again quite briefly. The facts relating to the specific complaint of what the appellant referred to as trespass were that when the roof of the respondent's 10 bakery collapsed in 1971, it was reconstructed in the same way . as it was before, so that the eaves on the said roof overhung the appellant's land causing rain water to fall onto it. These facts speak for themselves. What the appellant was complaining about was the encroachment of the respondent's eaves into her pro- 15 perty. The respondent herself admitted these facts when she testified as follows: "This time the plaintiff drew my attention to the eaves. The roof was in the same position as before. She said water was 20 falling into her compound. I then consulted the Town and Country Planning Authority and I was advised to construct an eaves gutter which I did so that the water no longer fell into the plaintiff's yard." The encroachment here is plainly a nuisance. As long ago as in 25 1845 in Fay v. Prentice (2) Coltman, J. (1 C.B. at 837; 135 E.R. at 772): "The question left by the lord chief justice to the jury, was, whether the plaintiff had sustained any actual damage either from the dripping of rain from the cornice, or from the over- 30 hanging of the cornice itself .... There is nothing, therefore, in this declaration that necessarily shews that the building of the cornice amounted to a trespass; and, consequently, I see no ground for saying that the evidence that was received was improperly admitted, or that the case was improperly left to 35 the jury. Baten 's case (9 Co. Rep. 53b.) has considerable bearing on the present. It was there alleged that the defen­ dant erected a house at the extremity of his land so as to project or jut over the house of the plaintiffs, ad nocumentum liberi tenementi ipsorum: and the court resolved that the 40 plaintiffs need not assign any special nuisance; for, it appeared to the court that it was to their nuisance. So, here, the mere 276 SECTION 34 SWILL v. CARAMBA·COKER, 1972-73 ALR S.L. 277 C.A. fact of the defendants' cornice overhanging the plaintiff's land, may be considered as a nuisance to him, importing a damage which the law can estimate. And, if so, it is quite unnecessary, as I apprehend to lay special damage in the declarations." 5 It is quite clear that the principles upon which the case here was decided were wrong. I am of the opinion that the judgment of the learned magistrate was erroneous, the question of the eaves having been dealt with as a case of trespass. I therefore order that there must be a new trial. No order as to costs. 10 New trial ordered. SWILL v. CARAMBA-COKER Court of Appeal (Cornelius Harding, Percy Davies and Tejan, JJ. A.): March 28th, 1973 (Civil App. No. 5/71) [ 1] Civil Procedure-judgments and orders--declaration of title to land­ party claiming declaration must establish forty years' good root of title: A person claiming a declaration that he is the fee simple owner of property must establish at least forty years' good root of title before the court may grant the declaration (page 287, lines 22-30). [2] Documents-deeds-conveyances-recitals-recital does not qualify oper­ ative part of deed expre~d clearly and unambiguously: If both the recitals and operative parts of a deed are clear and unambiguous but they are inconsistent with each other, the operative part is preferred and is not to be controlled or qualified by a recital or narrative of intention (page 285, line 40 -page 286, line 22). [ 3] Documents-interpretation-technical words or phrases-presumption that technical meaning intended but document to be read as whole to discover meaning: There is a strong presumption that a draftsman using technical words or phrases, such as "beneficial owner and settlor," intends to use them according to their correct technical meaning but the mere use of such words is not conclusive evidence of this and the document must be read as a whole to discover the true meaning (page 286, lines 3Q-36). [ 4] Estoppel-representation-acknowledgement of title-person claiming title in reliance on deed which recites title of donor, estopped from dis­ claiming donor's title: Under the principle of estoppel a person who claims ownership of property relying on a deed of conveyance which recites the title of the donor, may not afterwards disclaim the donor's title: (page 281, lines 35-42). 277 15 20 25 30 35 40