A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some difficulty with Bracewell v Appleby mainly because, as it seems to me, the judge regarded the damages he was awarding as a once and for all payment. But it was, as I see it, not within the power of the judge to produce that result. Whether or not an injunction were granted, the defendant’s use of the right of way would, after the judgment as well as before, represent trespass unless and until he were granted a right of way. The judge could not by an award of damages put the defendant in the position of a person entitled to an easement of way. So assuming, which is not clear from the case, that there had not been some agreement by the plaintiffs to treat the damages as entitling the defendant to a right of way, the defendant’s subsequent use of the private road would have constituted a continuing trespass. A succession of further actions for damages could have been brought. In those circumstances it seems to me very difficult to justify the withholding of the injunction. By withholding the injunction the court was allowing a legal wrong to continue unabated. Nonetheless Mr Moss is entitled to refer to the case as one in which an injunction was refused.’
Judges:
Scott J
Citations:
(1987) 38 Build LR 82, Times 03-Apr-1987
Citing:
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited by:
Not supported – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Criticised – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Nuisance
Updated: 12 May 2022; Ref: scu.188778
