for it to prevent a wrong-doer from gaining a right by repeated acts of encroachment-Wells v. Watling, 2 W. BL 1233, Hobson v. Todd, 4 T. R. 71, Pindar v. Wadsworth, 2 East, 154. For, wherever any act injures another's right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion of the right, without proof of any specific injury; and this seems to be a governing principle in cases of this kind. As in the case of Patrick v. Greenway, tried before Mr. Justice Lawrence, Oxford Spring Assizes, 1796, which was an action of trespass for fishing in the plaintiff's several fishery; it appeared in evidence that the defendant fished there, but did not take any fish, neither was it alleged in the declaration that the defendant caught any fish; the plaintiff obtained a verdict, which in the following term (Easter, 1796,) the defendant moved to set aside; but the court of Common Pleas refused even a rule to shew cause, upon the ground that the act of fishing was not only an infringement of the plaintiff's right, but would hereafter be evidence of an using and exercising of the right by the defendant, if such an act were overlooked." Cur. adv. vult. Lord Chief Justice TINDAL now delivered the judgment of the court: This question comes before us on a motion for a rule to set aside a verdict entered for the defendants by the direction of the learned judge; and the motion is made on the ground that the finding of the jury on certain points left to them does not warrant such verdict, and, at all events, that, upon the evidence given in the cause, the verdict.ought properly to have been found for the plaintiff. The plaintiff declared in case, stating in his declaration that he was possessed of a close, and entitled to a right of way from the said close along a certain drain or watercourse unto and into a public navigable river called the Nene, and so back again, for himself and his servants, to go, return, pass, and repass in boats at his free will and pleasure; and the plaintiff then assigns as a gravamen that the defendants, knowing the premises, wrongfully and injuriously obstructed the said way, by means whereof the plaintiff could not enjoy it as he of right ought to do. At the trial, the jury, in answer to a question proposed to them by the learned judge, found" that the passage was obstructed before the erection of the bridge and tunnel by the defendants (which was the act complained of), so that theplaintiff could not have the use of it." And upon this finding of the jury the learned judge directed the verdict to be entered for the defendants. It appeared upon the evidence that the plaintiff's close and premises were at the further end of the drain or watercourse, and that the defendants' premises upon which the obstruction was erected were situated between the plaintiff's premises and the river Nene; and it further appeared that the accumulation of mud in the drain between the plaintiff's close and the defendants' premises had been so great, and was so great at the time of the erection of the bridge and tunnel by the defendants, that for the last sixteen years no barge could navigate or pass along that part of the drain or watercourse; and that the defendants had erected the bridge and tunnel across the drain at their own premises, just below the accumulation of mud, in such manner as to render any passage through the bridge and tunnel, even if the mud had been removed, altogether impracticable. The question raised before has been, whether, in this state of circumstances, there was such an obstruction of the right of passage along the watercourse as can form the ground of an action against the defendants. But we think the right to the verdict in this case may be decided upon a narrower ground. The right of navigating through the drain or watercourse from the plaintiff's close to the Nene and back again, is equally 1835. BOWER v. HILL. 1835. BOWER v. HILL. a right to navigate through the drain from the river Nene to the plaintiff's close and back again: and, upon the evidence in this case, if the plaintiff should endeavour to pass with a boat or barge from the river Nene to his premises, he would be prevented by the defendants' erection from ever arriving so far up the drain as to meet the impediment created by the mud. The plaintiff therefore would, in the strictest construction of the words in the declaration, “be prevented by the defendants' obstruction from enjoying his way as he of right ought to do;" for, he could not get so near his premises as, but for the erection of the tunnel, he might have done. And although this would in fact be but a very small prevention of the exercise of his right, yet it is the principle on which we are to decide, and not the particular state of facts which apply to the present case; for, if the obstruction had been at the very mouth of the drain, and the accumulation of mud had commenced several miles up, and close to the plaintiff's premises, the same argument would have applied; in which case it is obvious that the damage to the plaintiff by such an intervening obstruction might have been very great. Upon this ground, therefore, we think the case must go down to another jury, unless it is consented that the plaintiff shall take a verdict with nominal damages only. But, independently of this narrower ground of decision, we think the erection of the tunnel is in the nature of, and, until removed, is to be considered as, a permanent obstruction of the plaintiff's right, and therefore an injury to the plaintiff, even though he receives no immediate damage thereby. The right of the plaintiff to this way is injured if there is an obstruction in its nature permanent. If acquiesced in for twenty years, it would become evidence of a renunciation and abandonment of the right of way. That is the ground upon which a reversioner is allowed to bring his action for an obstruction apparently permanent to lights and other easements which belong to the rever sion (a). The plaintiff's premises would sell for less whilst the tunnel is in existence, if now put up to sale. And indeed there seems no legal ground upon which the facts relied on by the defendant can constitute an answer to the charge upon the record. As a plea of denial of the charge, they would not support it; for, the tunnel was erected by the defendants, and the erection is such as effectually to prevent barges from passing through it, whether they can come up to it or not. Again, if put upon the record as a plea in bar, they would amount to a confession of the charge, without being an avoidance; for, it is no excuse to the defendants that the plaintiff has voluntarily suffered an accretion of the mud, which he might remove at any time he thought fit. The voluntary suspension by the plaintiff of his exercise and enjoyment of a right can form no justification to the defendants for preventing him from the possibility of enjoying it. Upon the more general ground, therefore, that the erection of the bridge and tunnel is an immediate injury to the plaintiff by putting his right into hazard, and by preventing the actual enjoyment of it whenever he thinks fit to resume it, independently of the narrower ground on which we first relied, we think this action maintainable, and that the rule for a new trial must be made absolute. Rule absolute, for a new trial (b). (a) Jesser v. Gifford, 4 Burr. 2141. (b) On the second trial, before Mr. Justice Littledale, at the Spring Assizes for Northampton, 1835, the plaintiff was a second time nonsuited-on the ground that there was no evidence given that any boat or barge of the plaintiff's, or that any hired servant of the plain- 1835. BOWER บ. HILL. 1835. Monday, Jan. 26th. given damages (under 207.) in an action by landlord against tenant, for an injury to the former arising from the tenant WOODS v. POPE. The jury having THIS was an action brought by a landlord against a tenant from year to year, for rent, and for money expended in repairs which the tenant was bound to perform, and damages sustained by the plaintiff in being deprived of the beneficial use of the premises during the time occupied in repairing. The defendant paid into court the amount claimed for rent and repairs. At the trial it appeared, that, in consequence of the dilapidated state in which the to year without defendant had left the premises, the plaintiff was for some months unable to let them: but that part of that time was employed in the performance of substantial repairs. The jury returned a verdict for the plaintiff, damages 137. 10s. quitting premises occupied by him as tenant from year having done re pairs he was bound to do The court refus ed to disturb the verdict, al though it appeared that the larger portion of the repairs re quired ought to Mr. Humfrey, in pursuance of leave, moved to set aside the verdict and enter a nonsuit. He submitted that the have been done evidence shewed that the plaintiff's inability to let the premises arose principally from his own default. by the landlord himself. PER CURIAM.-The verdict being under 201., we ought not to interfere unless satisfied that it is manifestly against law: if there was any fact to go to the jury, their finding is conclusive. Now, it is clear that the plaintiff must have been deprived of the proper use of his premises during the period required for doing those repairs which the defendant ought to have done: and it is no answer to say that the premises would be still uninhabitable until the substantial repairs also were completed; for the plaintiff might have chosen to occupy them himself. (a) As to the extent of the liabi- Rule refused (a). 590-Horsefall v. Mather, Holt, 7 -Edwards v. Hetherington, 7 D. & R. 117, R. & M. 268—Auworth v. Johnson, 5 C. & P. 239-Torriano v. Young, 6 C. & P. 8. |