Sedleigh-Denfield v O'Callagan

Viscount
Maugham

Lord
Atkin

Lord
Wright

Lord
Romer

Lord
Porter

O'CALLAGHAN AND OTHERS

Viscount Maugham

MY LORDS,

This is an appeal from an order of the Court of Appeal affirming
the decision of Branson J. which dismissed with costs the action of
the Plaintiff who is the Appellant on this Appeal. The Respondents
(the Defendants) are the trustees of the St. Joseph's Society for
Foreign Missions.

The facts are very clearly stated in the judgment of the Court,
of Appeal delivered by Mackinnon L.J. and substantially they are
as follows: —

The Appellant is the owner and occupier of a house and garden
called 1, Victoria Road, Mill Hill. To the north of his plot of land
is a field which is owned by the Respondent. On the southern
edge of that field is a hedge, and to the south of the hedge there is a
ditch. There was evidence that periodically this ditch had been
cleaned out by the Respondent's servants or helpers. Upon this,
and upon the presumption that the area of a ditch alongside a hedge
belongs to the owner of the hedge, there was ground for inferring
that the area of the ditch was the property of the Respondents,
though no other evidence of their title was given. The Trial Judge
dealt with the case on the basis that the area of the ditch was
owned by the Respondents. The Court of Appeal took the same
view, and in the absence of evidence to the contrary, I think it
is clear that we must come to the same conclusion.

To the west of the Respondents' plot of land was another plot
on which stands a block of flats called Holcomb Court. Before
1934 the ditch, as an open watercourse, flowing from east to west,
continued along the northern edge of Holcomb Court, to a roadway
called Lawrence Street, running from north to south on the western
side of Holcomb Court. In 1934 the then owner of Holcomb Court
made an agreement with the Middlesex County Council under
which the latter undertook to substitute a pipe or culvert, 15 inches
in diameter, in (the line of the ditch along the north side of Holcomb
Court. She had no right to do that, as the ditch was not her pro-
perty, but was the property of the Respondents. The County
Council, however, did the work, made the culvert, and covered the
top of it with earth. At the western end, the culvert was connected
with a manhole and sewer in Lawrence Street. The eastern end
of the culvert was carried to a point about 2 feet to the east of
the fence dividing the Appellants plot from the Holcomb Court
plot. To prevent the possibility of wood, leaves or other refuse
carried down by the stream, blocking the opening of the 15-inch
pipe it would have been proper practice to fix a grid or grating
in the…