Annette Nelson and Luscelda Brown v Glasspole Murray

 
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[2012] JMSC Civ 76

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2006 HCV 05100

Between
Annette Nelson
1st Claimant

and

Luscelda Brown
2nd Claimant
and
Glasspole Murray
Defendant

Ms. Vinette Grant instructed by H.G. Bartholomew & Company for the Claimants

Mrs. Sharon Gordon-Townsend instructed by Gordon & Watson for the Defendant

Private Nuisance — Construction of roadway on common property — Roadway constitutes a danger — Whether user unreasonable and alien.

Easement of Necessity — Rule in Wheeldon and Burrows — Presumed intention of parties — Alternate Access — Right of footpath or General right of way

Injunctive Relief — Principles governing the exercise of the courts discretion — Material infringement of Claimant's right — Conduct of parties.

Campbell, Q.C., J.
Background
1

Annette Nelson, 1 st Claimant, is an administrative assistant, aged 38 years old. The defendant is 52 years old and a businessman. The 1 st Claimant is the daughter of the 2 nd Claimant, and the cousin of the Defendant. Caseta Brown, deceased, is the mother of the 2 nd Claimant and the grandmother of the 1 st Claimant and the Defendant. Ms. Caseta Brown died in 1992.

2

All the parties are occupants of an unregistered plot of land of approximately 3 1/2 acres, at Mount Moreland, in the parish of St Catherine. The land is steep and rocky, and had been owned by Caseta Brown for 41 years up to the time of her death, in 1992. All the Parties have been on the land from birth. The land is bounded on three sides by registered properties owned by strangers, and on its western side by the Spanish Town to Sligoville main road.

3

Caseta Brown died intestate, before her death she granted areas of her land to her relatives. This was done simply by pointing out the location where they could build their houses. There was no discussion as to the use of the other areas. The Defendant said he was first given a ‘house spot’ on the lower part of the land. Subsequently, he was offered a spot where his house now stands on the hill which is to the back of the land. He states, ‘She gave me permission to build my house and to use the same dirt track that the Claimant uses to get to my house.’

4

Caseta Brown occupied a dwelling house which fronted on the main road. It consisted of two rooms and a kitchen. It was further added to by the sister of the 1 st Claimant. In 1997, the 1 st and 2 nd Claimants transformed the house into an imposing two-storey structure. The Defendant was raised in a two-family house, occupied by the Defendant's mother and the mother of the 1 st Claimant. The foundation of that house remains at the rear of the land above the Claimant's house. In 1986 the Defendant started construction of his house on the plateau at the rear of the property. The construction would continue for more than a decade and a half. The third house on the property is that of Hector, a son to Caseta Brown, this is separated from the 1 st Claimant's house on the western boundary.

5

The Defendant states that the dirt track had been used for fifty years by the family members. There is no evidence that at any time during that period, that the dirt track accommodated anything other than pedestrian traffic. In any event, the unchallenged evidence before the court it was unable to support anything else. There is no evidence before the court of the exact dimensions of the dirt-track, other than being described as just a track, too narrow for vehicles. The defendant had to clear the land and raise the surface in order to lay the roadway. The evidence was the land was well fruited. The area cleared was a much wider area than the dirt track.

6

Mr. Doyen Johnson, Acting Deputy Superintendent of Roads and Works, testified that the roadway passed within sixteen inches of the front steps to the Claimant's house, and barely two feet three inches from her kitchen. The roadway, as it exists, is 10 feet six inches wide. Where the road curves by the Claimant's house, it comes within 18 inches of the house. The prescribed turning distance would be between nineteen and twenty feet from the house. The unchallenged evidence of Mr. Johnson is that the roadway presents a real and present danger to the Claimant and the adjoining property, because of the inadequacy of the turning area, vehicles attempting such a manoeuvre could overturn on the dwelling house on the adjoining property or on the Claimant's house.

7

The road was retained by walls that rose to some six feet in height on either side of the roadway, and the road surface is on level with these walls. There is no space for a rail to prevent a vehicle from falling into the adjoining property. The retaining wall has no structural integrity, and is unlikely to be able to withstand the pressure caused by vehicles on the road. Instead of its present thickness constituted of one block, the engineers view is that there should be three blocks. The hydrostatic pressure on the wall, would have been lessened if weep holes had been built in the walls to minimize the effect of water building up. Further, the marl is not properly impacted, so the surface has not got the required traction. The septic pit, over which the roadway passes, in the opinion of the engineer, cannot maintain the weight of the vehicle and is liable to collapse. The opinion of Mr. Johnson is that the road, as it exist constitutes a danger. The topography of the land militates against it being able to be reconfigured to take vehicular traffic without a great deal of modification.

Nuisance
8

On the 27 th December 2006, the Claimants filed an action seeking:

  • (a) Damages for Nuisance.

  • (b) An Injunction to restrain the Defendant by himself, his servants and or agents or otherwise howsoever, from continuance or repetition of the said nuisance of constructing a roadway on lands occupied by the Claimants and the Defendant at Mount Moreland.

The Nuisance was particularized, inter alia:

  • (i) Stockpiling marl in the Plaintiff's front yard and in the vicinity of the garage of their house which prevented the 1 st Plaintiff from driving her car in the same garage.

  • (ii) Beginning and continuing the construction of a roadway and a 4 foot retaining wall bordering on the aforesaid roadway and which roadway slopes upward and also passes approximately 3 feet from the side and back of the Plaintiff's house and approximately 7 feet from the front of the aforesaid house whereby the plaintiffs are prevented from exiting their house from the back, using their back or front yard, or walking around the house.

  • (iii) Re-covering the septic pit for the Plaintiff's house with marl which has caused the noxious odours from the aforesaid pit to enter the Plaintiff's dwelling-house through the waste water pipe in the bathroom and kitchen.

9

Has the defendant the right, whether express, implied or prescriptive, to build a roadway on the existing dirt track? Whether the construction of the roadway constitutes a nuisance to the Claimants. In 1940, the House of Lords, in the Sedleigh-Denfield v O'Callaghan {1940} A.C. 880, Lord Atkin, defined the tort of nuisance as follows:

‘I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer, there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required which is connoted, in my definition, by the word “use”. This conception is implicit in all the decisions which impose liability only where the defendant has “caused or continued” the nuisance.’

10

The learned authors of Winfield and Jolowicz on Tort, Thirteenth Edition , 375, states:

‘The essential feature of nuisance liability is that of the protection of private rights in the enjoyment of land, so that the control of injurious activity for the benefit of the whole community is incidental.

There is a distinction between private and public nuisance. Public nuisance deals with an injury to the public at large, and affects the reasonable comfort and convenience of a class of citizen that falls within the scope of its operation. Public nuisance is a crime, private nuisance is a tort. The individual may institute action for public nuisance, if he can prove particulars of damage up and above that cause to the general public at large.

11

Private nuisance, with which we are dealing in this case, is essentially concerned with the wrongful interference of the Claimant's use or enjoyment in land or of some right or interest in land. In a substantial number of cases, the actions are constituted of interferences over a long period of time by owners or occupiers of property with the use and enjoyment of neighbouring property. The impugned conduct will only be deemed unlawful, if it is unreasonable. A balance needs be struck between the contending rights of the occupier and his neighbour. Lord Wright, in Sedleigh-Denfield said:

‘A balance...

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