the said demise, and were the thorns, thorn trees, and bushes of the said plaintiff; and that the said plaintiff could maintain his said action notwithstanding his said lease. And the said justices then and there held and affirmed, that the plaintiff could maintain the action, notwithstanding the said demise, and that the said trees, bushes, and thorns were excepted from the said demise, and were the trees, bushes, and thorns of the plaintiff. And the counsel for the defendants further insisted, that the order hereinbefore mentioned was a good order in point of law; but the said justices then held and affirmed, and directed the jury, that the said order was bad on the face of it. And the counsel for the defendants further insisted, that the said order, even if bad in law, yet, being a subsisting order, the defendants were justified in committing the trespasses aforesaid. But the said justices held, and affirmed, and directed the jury, that, if the said order was bad in law, the defendants could not justify the said trespasses under it. And the said justices further directed the jury, that, if the said trees, bushes, and thorns were, in fact, cut, pruned, and plashed, by the defendants, the jury should find a verdict for the plaintiff. And the said justices, by their direction to the said jury according to their opinion, left the consideration thereof to the jurors aforesaid. Whereupon &c., the counsel for the defendants, conceiving that the jury, being directed as aforesaid, were misdirected as to the legal effect of the said order, made their exceptions to the said opinion of the justices; and the jurors aforesaid gave then the verdict aforesaid against the defendants upon the issue aforesaid," &c. 66 The causes of error assigned were, "that the said justices then and there held and affirmed, and directed the said jury, that the said order was bad on the face of it; and that, if the said order was bad in law, the said Edward 1844. JENNEY v. BROOK. 1844. JENNEY t. BROOK. Jenney and George Runnacles could not justify the said trespasses under it; and that, if the said trees, bushes, and thorns were in fact cut, pruned, and plashed by the said E. Jenney and G. Runnacles, the jury ought to find a verdict for the said Abraham Brook; and that the said justices by their direction to the said jury, according to their opinion, left the consideration thereof to the said jurors aforesaid; whereas the said order is not bad on the face of it, nor ought the said justices so to have directed the jury, nor ought the said jury to have found a verdict for the said A. Brook, if the said trees, bushes, and thorns were in fact cut, pruned, and plashed by the said E. Jenney and G. Runnacles, nor ought the said justices so to have directed the said jury. Prayer, that the judgment aforesaid, for the errors aforesaid, &c., may be reversed, annulled, &c.; and that the said E. Jenney and G. Runnacles may be restored to all things which they have lost by occasion of the said judgment." The case was argued in Easter Vacation, (May 9th, 1844), before Tindal, C. J.; Pollock, C. B.; Cresswell, J.; and Parke and Rolfe, Bs. Martin appeared for the plaintiffs in error, (the defendants below), and Kelly for the defendant in error. The authorities cited were Hall v. Biggs (a), Rex v. Aire and Calder Navigation Company (b), 1 Burn's Justice, p. 693, n. (by Williams), Rex v. Austrey (c), and Regina v. Martin (d); but the argument is omitted, being fully commented upon in the judgment. Cur. adv. vult. TINDAL, C. J., now delivered the judgment of the Court. In this case the plaintiff below brought an action of trespass against the defendants for breaking down his close, and cutting down and destroying the (a) Salk. 674. (c) 6 M. & S. 319. hedges and fences, and felling and cutting down the trees, bushes, and thorns of the plaintiff. The defendants pleaded, Not guilty, by statute; and, on the trial before my Brother Atcherley, it appeared, that the plaintiff, being the owner of a farm, demised the same to a tenant, excepting timber, timber trees, and all other trees, stands, pollards, woods, underwoods, bushes, and thorns, other than such bushes and thorns as were necessary for the repair of the fences. The lease contained a covenant by the tenant to cut, cleanse, and scour the fences and ditches, and to keep the fences in good repair and condition, the landlord finding rough wood for making such repairs, if growing on the premises, and the plaintiff covenanted to find such wood. Evidence was then given that the defendants cut down a hedge on the farm of the plaintiff, and adjoining to the highway, and the bushes and thorns there, particularly sixteen thorn trees of fifty years' growth, which never had been cut down before, but which grew on the side of the bank in the hedge. The defendants called witnesses to prove that the alleged thorn trees were only thorns, and that, they being surveyors of the highways, a certain carriage-way there was prejudiced by the shade of the hedge, and the exclusion of the sun and wind thereby, and that the hedge obstructed the highway; that they applied to a justice of the peace, and afterwards obtained the following order of two justices at the special sessions for the highways. (His Lordship read the order). This order was served on the plaintiff, and he did not within ten days cause the hedges or trees to be cut, pruned, or plashed, so that the sun and wind should not be excluded, nor did he remove the obstruction; thereupon the defendants, as surveyors, cut, pruned, and plashed the hedge, and removed the obstruction, and in so doing cut down the thorns or thorn trees. (His Lordship then gave judgment on the first question, namely, as to the effect of the exceptions in the lease). 1844. JENNEY v. BROOK. 1844. JENNEY v. BROOK. The second objection taken on the trial was to the validity of the order of the justices. My Brother Atcherley ruled that the order was altogether bad on the face of it. The defendants then insisted, that, if it was so, still they were justified in acting as they did, there being a subsisting order unappealed from and disobeyed. The learned Judge held, that the defendants were not justified unless the order was valid; and in the propriety of this latter ruling we all concur, being of opinion that the surveyors cannot act unless there has been a previous default of the party in obeying a valid order. It is no answer to say, that the party might have appealed from it, and that, if he did not, third persons might act as if he had acquiesced; so to hold would in effect be to deprive parties of part of the time for appeal allowed by the statute, namely, fourteen days, the surveyors being authorized to act at the expiration of the first ten. The only remaining question is, whether the direction of the learned Judge, that the order was invalid altogether, can be supported; and we think it cannot, and that it is bad in part only. When this cause was before the Court of Queen's Bench after the first trial, the Court directed a new trial; (my Brother Patteson having been of opinion, on the trial, that the order was good, and a protection to the surveyors as to all they did); the Court, and my Brother Patteson also on further consideration, thinking that the order was bad; and the principal ground assigned was, that the direction in the order, " to cut, prune, and plash," was general, without any description of the extent to which it was to be done, so that any cutting, pruning, or plashing would have been a compliance with the order. This was all that was necessary to be decided on a motion for a new trial: but we are now called upon to decide whether the order was altogether invalid; for, if it was invalid in part only, and the remainder was a justification for any of the acts done, the direction of my Brother Atcherley was wrong. In the argument before us it was contended, that the construction of the order by the Court of Queen's Bench was wrong, and that it was plain that the justices intended that the cutting, pruning, and plashing should be made to such an extent as to remove the obstruction to the access of the sun and wind to the road, as well as the obstruction to the highway itself, by the hedges and trees adjoining. We cannot, however, concur in this mode of reading the order; we agree that a reasonable construction must be put upon the whole instrument, without making any intendment for or against it. But it appears to us by the context, which contains a recital of the summons, that the exclusion of the sun and wind by the trees and hedges, and the obstruction to the road, are treated as different things, as, indeed, the enactment of the statute 5 & 6 Will. 4, c. 60, s. 65, clearly intended. And, consequently, there should be a direction in the order, which there is not, as to the extent to which the cutting and pruning should take place, with reference to the injury to the high road by the exclusion of the sun and wind. If the order had followed the summons in this respect, and directed the plaintiff to cut, prune, and plash the hedges, and prune and lop the trees, so as to prevent the sun and wind from being excluded, it might have been sufficient, without any more precise direction as to the number of feet or inches that were to be cut and pruned. We, therefore, agree with the Court of Queen's Bench in the view which they took of this part of the order. But it is said, that the remainder of the orde: is good, and is sufficient to justify the defendants in removing any actual obstructions to the highway by the trees or hedges, or, at least, such as were caused by the projecting branches of the trees or hedges, and which might be removed by cutting, plashing, lopping, or pruning, though it would not justify such further cutting as was neces 1844. JENNEY v. BROOK. |