The Crown had granted licenses to cut timber from an area over a period of years.
Held: It was well established that possession is good as against a wrong doer, who may not set up as a defence a jus tertii unless his claim is derived from that right. ‘The appellants contended that this instrument conferred only a license to cut timber and carry it away, and did not give the respondent any right of occupation or interest in the land itself. Having regard to the provisions of the Act under the powers of which it was executed and to the language of the document itself, their Lordships cannot adopt this view of the construction or effect of it. In the so-called licence itself it is called indifferently a licence and a demise, but in the Act it is spoken of as a lease, and the holder of it is called a lessee. It is not, however, a question of words but of substance.’ and ‘it is not open to the Defendant, being a wrong-doer to enquire into the nature or limitation of the possessor’s right, and unless it is competent for him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all, and therefore, as between those two parties, full damages have to be paid without any further enquiry.’ ‘
Lord Davey said: ‘In the so-called licence itself it is called indifferently a licence and a demise but in the Act it is spoken of as a lease, and the holder of it is described as the lessee. It is not, however, a question of words but of substance. If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself.’
Lord Davey MR
[1904] AC 405, [1904-7] All ER Rep 203, (1904) LJPC 62, (1904) 90 LT 741, (1904) TLR 531
Commonwealth
Citing:
Cited – Jeffries v Great Western Railway RW Co 14-Jan-1856
‘I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself is a wrong-doer, and cannot defend himself by showing that . .
Cited by:
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.197765
