Carlisle Patriot, 13 Aug 1825 - Cumberland Summer Assizes (17)

[petra.mi...@doctors.org.uk]

Saturday 13 Aug 1825   (p. 4, col. 1-6)

 

CUMBERLAND SPRING [sic] ASSIZES.

  

[continued]

 

PORTER v. FERGUSON & OTHERS.  S. J.

 

Special jurors sworn: Joseph SALKELD, Esq., Henry HOWARD of Corby, Esq., Richard LOWRY, Esq., C. S. FETHERSTONHAUGH, Esq., Christopher PARKER, Esq., William HEBSON, Esq., Daniel HEBSON, Esq. Tales: Anthony ROBINSON, John HOGARTH, Anthony STEEL, Geo. WHITTAKER, John ROBINSON.

 

Counsel for the plaintiff: Messrs. SCARLET [sic], ALDERSON, and PATTESON. For the defendants: Messrs. BROUGHAM, PARK, TINDAL, and BLACKBURN.

 

Mr. PATTESON opened the pleadings. Mr. Robert PORTER, of Carlisle, was the plaintiff; Messrs. Joseph, John, and George FERGUSON, of the same place, the defendants. The declaration stated that Mr. PORTER, being in possession of certain rooms, the defendants caused to be erected an arch-way and other buildings over the public street, by which the said rooms were deprived of light and air, &c.

 

Mr. SCARLETT.—This action was brought by Mr. Robert PORTER, as the jury had heard, to recover compensation for damage sustained by an encroachment on the part of the defendants. Mr. Robert PORTER was the post-master of the town, and used as a post-office, a certain room or chamber, situate in Blackfriar's-street, Carlisle. The defendants were proprietors of property in an ancient Lane, opposite the post-office, bearing their own name. The complaint was, that they had erected an arch over one end of this lane, and built on it a house, which not merely decreased the light, but intercepted from Mr. PORTER's premises the morning sun, which could only find its way to the house down that lane. Twenty years' enjoyment of a right of this kind gave a title to it: light enjoyed for that period, could not be legally obstructed nor essentially diminished. He should show that the right claimed had been enjoyed more than twenty years. The house had been taken down and rebuilt, and was now the property of three brothers; but the manner in which the other parts of it were let off, rendered it necessary to bring the action in the name of Mr. Robert PORTER alone. A few years ago the present window was enlarged to what it now is; but it was not of the blocking up of the modern part that he complained, only of so much of it as anciently existed. He was glad that some of the gentlemen of the Jury had taken a view of the premises. They however saw it, he understood, in the evening, when the setting sun shone in at the back window (the room having what is called a through light), precisely at a moment when it appeared to the greatest advantage. Had they seen it in the morning, they would have observed the actual effect produced by Mess. FERGUSON's encroachments. The lane was about eight feet wide; the arch at the end of it 19 ft. 8 in. up the lane, across the whole breadth of it, occupying exactly the part through which the morning sun could alone reflect its brightness upon Mr. PORTER's room. The disadvantage of this deprivation might thus be placed in a strong point of view. Before the alteration, notwithstanding the through-light, all the shadows in the room were thrown from east to west; now, all are thrown from west to east; a clear proof that the direction of the light had been changed. He would prove that milliners worked in the room, before the enlargement of the window, and enjoyed sufficient light for all purposes: though now, with a greater extent of window, Mr. PORTER was at certain times of the year compelled to use candles in sorting the letters so late as ten in the forenoon. He wished not to be understood as contending that a man was justified in bringing an action because he might be deprived of light by other buildings in ever so small a degree. This he was not ready to say. But he would maintain that it was not only an unneighbourly, but also an illegal act, to deprive the room in question of the sun as Messrs. FERGUSON had deprived it for their own convenience and profit. At the time that they began to erect the building, Mr. PORTER, mistaking the law of incroachment [sic], had taken upon himself to throw down the bricks in the course of erection before they were so high as to become a nuisance, and therefore they brought an action against him, and he, finding that he could not legally abate by force a nuisance which was not completed, had been obliged to pay the costs. He mentioned this to show that though the defendants had erected a costly building over this arch, they were not now taken by surprise; that they had done so with a full knowledge that their claim would be disputed. Mr. PORTER did not wish to do an unneighbourly action. It was not his intention to ask them to pull down what they had set up at so much cost; but he could not but be alive to the deterioration of his own property, in more ways than one; for as his room was more chiefly dependent upon the back part of his premises for light, he was thereby prevented from extending his buildings in that direction, if ever so much inclined. With this feeling, he had now no objection that some competent person should view the premises, and assess the damages, he taking a verdict. If the other side chose to avail themselves of this offer, made for the last time, let them say so. He himself (Mr. S.) had seen the premises, and would say that he must have a verdict—

 

Mr. BROUGHAM.—I doubt if you could get up the lane. (A laugh.)

 

Mr. Baron HULLOCK.—Then that must be owing to your building.

 

Mr. BROUGHAM.—Oh, no, no, no, my Lord!

 

Mr. SCARLETT.—If Mr. BROUGHAM could have winded his way up the lane, for the obstructions that he has raised, and had looked at the premises, he would have no more doubt on the subject than I have. He wishes to make a decent struggle, and then, I perceive, he intends to consent to my taking a verdict.

 

Mr. Baron HULLOCK.—What say you, Mr. BROUGHAM?

 

Mr. BROUGHAM.—Mr. friend [sic], my Lord, seems to have no wish to let one make a decent struggle, as he has reduced the thing to such mathematical certainty. If we refer, we must refer the whole. There is a dispute about a garden.

 

This was objected to on the part of the plaintiff, and the cause proceeded.

 

 

[to be continued]