Published: Fri, 12 Oct 2018
Davies v Marshall (1861) 10 CBNS 697; 31 LJCP 61; 7 Jur NS 1247;
9 WR 866; 142 ER 627; 4 LT 581
EASEMENT, ACCESS TO LIGHT, OBSTRUCTION OF CHIMNEYS, LACK OF SUPPORT, NOTICE OF ACTIONS, CONSENT, FALSE REPRESENTATIONS, EQUITABLE DEFENCE, REPLICATION
The plaintiff complained that the defendant had obstructed the light and air from entering his antient windows, that the defendant had built walls and buildings, which prevented the smoke and vapour from the plaintiff’s chimneys from being carried off and that by pulling down some adjoining buildings belonging to him, the defendant had deprived the plaintiff’s house of the support he was entitled to. The defendant pleaded by way of equitable defence that the grievances that the plaintiff raised were occasioned by the pulling down and rebuilding of her house. The plaintiff was given notice of the defendant’s actions. The defendant believed that her house was pulled down and a new one erected with the knowledge, acquiescence and consent of the plaintiff. The plaintiff argued that he agreed to the building work upon the faith of false representations by the defendant and her agents. The way in which the work was presented to the plaintiff was not such as to result in such damages.
(1) Did the defendant’s excuse amount to a defence to the plaintiff’s claim?
(2) Was the plaintiff’s reply a good response to the defendant’s excuse?
The decision was in favour of the plaintiff.
(1) The defendant’s excuses amounted to an equitable defence because if someone conducts himself so as to induce another to believe that he has given his consent to some building work being carried out, and the latter spends money upon the faith of such consent, the former has no right to withdraw his consent afterwards.
(2) However, the equitable defence of the defendant was nevertheless well answered by the plaintiff. The replication, therefore, took away from the defendant the equitable defence that she relied upon.
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