Published: Fri, 12 Oct 2018
Armstrong v Shepperd and Short Ltd  2 QB 384
The availability of an injunction for trespass where damage was very limited. Whether oral agreement could create an easement
The defendant built a sewer on land belonging to the claimant, but before doing so consulted with the claimant and the claimant raised no objection to the building. However, at this stage the claimant was not aware that he had an interest in the land because his title deeds were held with his mortgage lender. The defendant used the sewer for seven months without objection, but then, through a letter from his solicitor, the claimant instructed the defendant to remove the sewer. The claimant acknowledged that the sewer caused him no damage, but also stated that he had not been consulted about the building by the defendant. At first instance the trial judge awarded damages of 20 shillings and refused an injunction.
The issues in this circumstance were the extent of the defendant’s rights granted over the claimant’s land and the availability of an injunction and the extent of the damages awarded.
On appeal, it was held that the claimant was not prevented from seeking an injunction on the basis that he had acquiesced to the building of the sewer because at that time he was not aware of his rights. However, the claimant, because he had misled the court and because of the minor nature of the complaint was not permitted an injunction. Despite this, the oral agreement to allow the building did not create an easement in favour of the defendant, merely a bare licence. In this respect, there could be no action for the building of the sewer because the claimant had agreed. However, once the solicitor’s letter was received, use of the sewer should have ceased because this revoked the licence. The result was that damages were payable for this use and the amount awarded at first instance was reasonable in the circumstances.
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