A building society held a charge over property which enjoyed a right of way over neighbouring land. The right was obstructed by the neighbour building over it. Their request for the removal of the obstruction had been rejected by the court with no costs or damages being awarded. The neighbours property was held in receivership. The Society now sought a declaration that they were entitled to the remedy of self help to abate the obstruction.
Held: The earlier failure did not mean that any right of abatement or other remedy had also been lost.
Judges:
Chitty J
Citations:
[1891] 3 Ch 411, (1891) 61 LJ Ch 55, (1891) 65 LT 375, (1891) 40 WR 87
Cited by:
Cited – Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd HL 1927
Lord Atkinson stated: ‘It has been well said that the abatement of a nuisance is a remedy which the law does not favour and is not usually advisable, and that its exercise destroys any right of action in respect of the nuisance.’
Concluding, . .
Cited – Chamberlain v Lindon Admn 18-Mar-1998
The appellant challenged the dismissal of his private prosecution of the defendant in destroying a new garden wall. The magistrates had found a lawful excuse in that the defendant said that the wall had been constructed to obstruct his private right . .
Lists of cited by and citing cases may be incomplete.
Torts – Other
Updated: 18 May 2022; Ref: scu.541708