Cases - Burton v Winters
Record details
- Name
- Burton v Winters
- Date
- [1993]
- Citation
- 1 WLR 1077
- Legislation
- Keywords
- Easements - rights of light
- Summary
-
The plaintiff had established at trial that the garage built by the defendants' predecessors in title encroached onto her property by about 4.5 inches, but the judge had declined to grant her a mandatory injunction requiring removal of the encroaching part of the garage. The plaintiff appealed the refusal of the injunction and lost in the Court of Appeal. Her petition to the House of Lords was refused. She was unwilling to accept that this was the end of the matter and embarked on a campaign of trespass, including building a wall in front of the defendants' garage! As a result of her conduct the defendants sought and obtained an injunction restraining her from trespassing on their land. She breached this and was ultimately committed to prison for 2 years.
In the course of considering the appropriateness of the sentence of imprisonment, the Court of Appeal were concerned that at some point the plaintiff might seek to demolish the encroaching part of the garage relying upon the common law right of abatement. The court commented that for a long time the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. Even if the plaintiff had acted promptly, this would not be an appropriate case for abatement.
Where exercise of the right to abate is appropriate, great care must be taken in exercising it. For example, the party exercising the right must go no further in his or her actions than is necessary to abate the nuisance. To go further exposes that party to an action for trespass and possibly prosecution.