1866.

CRAFTER

V.

METROPOLITAN RAILWAY

COMPANY.

is no law that such a need as that should be provided for. I am further of opinion that supposing there was a scintilla of evidence for the Complainant, the fact that he had full knowledge of the manner in which the stairs were constructed is a matter to be weighed, and it appears that he had been in the habit of using them almost daily for a year and a-half, and that many thousands of persons had ascended them without accident or complaint. I think, therefore, that the Plaintiff had no right of action for the reasons on which he relies, viz., because there would have been more convenience if there had been a handrail, and less slipperiness if lead had been used instead of brass.

WILLES, J. I am of the same opinion. The question comes to this, whether it is an improper thing to nose stairs with brass. The only evidence upon the point was that of a builder, who said that in his judgment lead was better. But I must read that evidence with the common experience which every one has, that brass is ordinarily used for nosing stairs such as these. It is commonly used at hotels, and for the stairs leading to the cabins in steamboats; and here the Plaintiff, who had been up these stairs over and over again, must have known how they were constructed. The case is distinguishable from Longmore v. The Great Western Railway Company (a), because in that case there was a dangerous aperture, and a risk of slipping and falling through it from a high bridge. I think there was no evidence which could properly be left to the jury, and that the rule for a nonsuit must be made absolute.

KEATING, J. I have some difficulty in distinguishing this case from Longmore v. The Great Western Railway Company (a); but cases of this description present ques(a) 19 C. B, N. S. 183.

tions merely of degree; and therefore I do not dissent from my brethren.

1866.

CRAFTER

v.

METROPOLI

COMPANY.

SMITH, J. A line must be drawn between mere sug- TAN RAILWAY gestions of possible precautions which might have been taken to prevent accident and evidence which it would be proper to leave to a jury. It is difficult to draw the line, but the facts here merely suggest that some possible precautions might have been adopted by the Defendants. There was nothing unusual in the construction of the staircase; such as it was its structure was obvious to every one, and must have been so to the Plaintiff; and it is well known that stairs are often nosed with brass. In Longmore v. The Great Western Railway Company (a), the bridge was dangerously constructed, because where the Plaintiff's wife fell there was an opening several feet wide without protection; and it was not obvious to any one that, if he happened to slip, he might fall through. As to the language of the witness, the grocer's assistant, that he considered the stairs dangerous by reason of the brass nosing, that was merely the expression of his opinion. The Judge was bound, before leaving the case to the jury, to see that there was some reasonable evidence for their consideration.

Rule absolute.

(a) 19 C. B., N. S. 183.

1866.

Tuesday, January 23.

Landlord and

tenant.

Encroachment on waste by

tenant.

Presumption. Demised land not conterminous with encroachment.

The EARL OF LISBURNE v. DAVIES.

1. Where a tenant encroaches upon the waste, the nearness of the encroachment to the demised premises is an element in the consideration as to whether it is to be presumed that he made the encroachment for the benefit of his landlord; but it is not necessary, in order to raise such presumption, that the encroachment should be conterminous with the demised land.

2. The Defendant was tenant of a farm belonging to the Plaintiff, bounded on one side by a fence, on the outside of which was a small river separated in some places from the fence by a narrow strip of land, described as of no value. More than twenty years ago one J. D., a labourer, and cousin of the Defendant, inclosed from the waste of the manor, of which the Plaintiff was lord, a field of four acres on the opposite side of the river, and the Defendant, as he stated, upon the completion of the inclosure, which took three years to make, paid his cousin 47. for his rights, and thenceforth occupied it with the farm down to the expiration of his tenancy. In dry seasons his sheep and cattle could pass through a gap in the farm fence and across the river into the field; but there was no way from the farm to the field for carts, and they could only be taken there by being allowed to pass through the inclosed lands . of third parties. In ejectment for the field (the Court having liberty to draw inferences of fact, and having inferred that J. D. made the inclosure as servant of the Defendant, and not for his own benefit): Held, that it was to be presumed that the Defendant had made the encroachment for the benefit of his landlord; and that such presumption was not rebutted by the fact that it was separated from the farm by the river and narrow strip of land.

THIS

HIS was an action of ejectment, brought by the Plaintiff against the Defendant to recover possession of a field called Caenewydd, otherwise Caerhos, part of a farm called Bryneithinog in the parish of Caron in the county of Cardigan, to the possession whereof the Plaintiff claimed to be entitled.

At the trial before Shee, J., at the Summer Assizes for Cardiganshire in 1865, the facts proved or given in evidence were as follows:

The Plaintiff was lord of the manor of Penarth, and the Defendant, for about forty years, had occupied the farm called Bryneithinog as tenant of the Plaintiff, or those under whom he claimed. The farm lands were on one side bounded by a fence, on the outside of

which and through the waste of the manor ran the river Flur, the river being in some places separated from the farm fence by a narrow strip of land, stated by a witness to be of no value. On the opposite side of the Flur there was a common called Rhosgellygron, forming part of the waste, and about the time when the Defendant became tenant of the farm, and more than twenty years before the commencement of this action, one John Davies, who was a cousin of the Defendant and worked as a labourer at hedging and the like, inclosed from the common the field, consisting of about four acres of land, for the recovery of which this action was brought, by running a hedge across from one then recent inclosure to another, and so shutting in the piece of land between the river and that fence. The fence was not completed by John Davies for about three years; but, when it was finished, the Defendant paid him a sum of 47. and took possession of the field in question, and, according to the Defendant's own evidence, he then settled with John Davies for his rights and paid the 41. for them.

There was no evidence of any occupation of the field by John Davies; but from the time when the fence was completed as described, it was occupied with the farm by the Defendant, who turned his cattle on it to graze, and cut the hay growing on it, which he carried home to the farm. In dry seasons sheep and cattle could pass from the farm through a gap in the farm fence across the river and so into the field in question: but carts could never pass that way, and to get from the farm to the field with a cart it was necessary to go round and over a bridge and through inclosed lands belonging to other persons.

The Defendant relinquished his possession of the farm in the autumn of 1862, but refused to give up possession of the field in question.

The jury found a verdict for the Plaintiff by the direction of the learned Judge, who gave leave to the Defendant to

1866.

EARL OF LISBURNE

v.

DAVIES.

1866.

EARL OF LISBURNE

v.

DAVIES.

move to enter a verdict with liberty to the Court to draw inferences of fact.

In Michaelmas Term, 1865, Thomas Allen, for the Defendant, obtained a rule accordingly, on the ground that the evidence showed that the piece of land inclosed from the waste was not approved for the landlord's benefit, and therefore was not part of his estate at the expiration of the tenancy.

Giffard, H. G. Allen and J. W. Bowen, now showed cause. It is a presumption of law that a tenant incloses for the benefit of his landlord, and there is nothing in the circumstances of this case to rebut that presumption. The landlord and the lord of the manor within which the encroachment was made are the same person. The narrow strip of land between the farm fence and the river, and the bed of the river, were his. It will be said that this case is distinguishable on account of the intervention of the narrow strip of land and the river between the farm and the encroachment; but in Andrews v. Hailes (a) the tenant encroached on waste land, not belonging to his landlord, separated from the tenant's holding by a road, and it was held that the mere intervention of the road did not rebut the primâ facie presumption that an encroachment made under such circumstances was as between landlord and tenant to be taken to be part of the demised premises. "I think" (says Lord Campbell, at p. 353 of the report) “the Defendant is not at liberty to deny that it was part of them. I proceed on what the civil law calls exceptio personalis, and the common law an estoppel, and say that the tenant cannot deny this. I do not adopt the doctrine that the tenant steals for his landlord, and that therefore the landlord, at the end of the demise, is entitled to claim the stolen property; but I think that, when the property is taken and

(a) 2 E. & B. 349.