Land - 1970- 1979

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This page lists 145 cases, and was prepared on 28 October 2012.

Dolphin's Conveyance,In Re [1970] 2 All ER 664; [1970] Ch 654
1970 Stamp J	Land	Casemap 1 Citers
	The court considered whether a building scheme had been established so as to allow the mutual enforcability of restrictive covenants. A particular question arose as to the extent of the scheme involved. Held: A building scheme was established. The court could take evidence from the town clerk of Birmingham Corporation showing the limits of the Selly Hill Estate mentioned in the conveyances.

Eagling -v- Gardner [1970] 2 All ER 838
1970	Land	Casemap 1 Citers
	Introductory words in a covenant in a conveyance of land such as 'to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . . Estate . . .' are words of express annexation, but they are also not inconsistent with the establishment of a building scheme.

Barclay -v- Barclay [1970] 2 QB 677
1970	Land, Trusts	Casemap 1 Citers

Chung Khiaw Bank -v- United Overseas Bank [1970] AC 767
1970	Land	Casemap 1 Citers
	A judgment creditor who obtains a charging order against his debtor's property can take only such interest as the debtor has in the property.

Holmes -v- Cowcher [1970] 1 WLR 834
1970 ChD Stamp J	Land, Limitation	Casemap 1 Citers
	The court accepted the proposition put forward by counsel for the mortgagee that on an application by the mortgagor to redeem the mortgage, all the arrears of interest (amounting to almost 10 years) had to be paid as a condition of redemption, not just interest for the last 6 years.

Redbridge London Borough Council v Jaques [1970] 1 WLR 1604
1970 Lord Parker CJ	Land	Casemap 1 Citers
	An authority cannot authorise an unlawful restriction on the use of land subject to a public right of way.

Manchester Corporation -v- Connolly [1970] Ch 420
1970 CA Lord Diplock	Planning, Land, Litigation Practice	Casemap 1 Citers
	The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: "The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. "

West Midland Baptist (Trust) Association (Inc) -v- Birmingham Corporation [1970] AC 874
1970 HL Reid L, Lord Donovan	Constitutional, Damages, Land	Casemap 1 Cites 1 Citers
	The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. The date of entry into land under a compulsory purchase is what fixes the date for the assessment of compensation. No question regarding interest arose because "the claimants had been allowed to remain in possession on the terms that they claimed no interest on the compensation and paid no rent." The House considered the possibility of prosepctive rulings, rulings which would take effect only as to the future. Lord Reid said: 'We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.'
	Compulsory Purchase Act 1965 11(1)

Pugh -v- Savage [1970] 2 QB 373; [1970] EWCA Civ 9; [1970] 2 WLR 634; [1970] 2 All ER 353; (1970) 21 P & CR 242
14 Jan 1970 CA Harman, Salmon	Land, Landlord and Tenant	Casemap 1 Citers
	The enjoyment of an easement by a succession of tenants is sufficient to create a right by prescription for the landlord.
	Link[s] omitted

In Re St Peter's, Bushey Heath [1971] 1 WLR 357
26 Oct 1970 Conc G. H. Newsom Q.C.	Ecclesiastical, Land	Casemap 1 Cites
	cw Ecclesiastical Law - Faculty - Secular purpose - Use of unconsecrated curtilage of church - Jurisdiction to grant faculty A faculty was sought for the grant of a right of way easement over unconsecrated land, but within the curtilage of the church. Held: Such an easement could be granted, but the land itself must remain the property of the incumbent. Private rights of way should be granted only after full and open argument. The only way to grant an easement over consecrated land is through an Act of parliament or a church measure.
	Link[s] omitted

Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) -v- Anglia Building Society [1971] AC 1004; [1970] UKHL 5
9 Nov 1970 HL Lord Wilberforce, Lord Reid	Contract, Land, Undue Influence	Casemap
	The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum. Held: The common law doctrine of non est factum has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended. Lord Reid: 'the matter generally arises when an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity.' Lord Wilberforce: "leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests upon him."
	Link[s] omitted

Willson and Another -v- Greene and Another [1971] 1 WLR 635
10 Nov 1970 ChD Mr Justice Foster	Land, Contract	Casemap 1 Cites
	A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used 'for identification purposes only', and the purchaser knew the layout of the actual boundary. Held: Since the plans were used for identification purposes only, and the parties knew of the actual position of the boundary, the court was entitled to take into account the surrounding circumstances to construe the contract. The actual layout on the land prevailed.
	[ lip ]

Barstow and Others -v- Rothwell Urban District Council (1971) 22 P&CR 942
1971	Land	1 Citers

Coleen Properties Ltd -v- Minister of Housing and Local Government [1971] 1 All ER 1049; (1971) 1 WLR 433
1971 CA d Denning MR, Sachs LJ, Buckley LJ	Land, Administrative	Casemap 1 Citers
	The minister confirmed a compulsory purchase order depite it having been made without any supporting evidence. Held: The order was set aside.

Southwark London Borough Council -v- Williams [1971] 1Ch 734; [1971] 2 All ER 175; [1971] 2 WLR 467
1971 CA Lord Denning MR, Edmund-Davies LJ	Torts - Other, Crime, Housing, Land	Casemap 1 Citers
	The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity. Held: The proper use of abandoned council properties is best determined by political decision making processes. Squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was “an obstinate and longstanding state of affairs”, rather than an immediate or emergent threat. The court denied that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft. Lord Denning MR said: "If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good." Edmund Davies LJ said: "But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -necessity can very easily become simply a mask for anarchy."

Cuckmere Brick Co Ltd -v- Mutual Finance Ltd [1971] Ch 949; [1971] 2 All ER 633; [1971] EWCA Civ 9; (1971) 22 P & CR 624; [1971] 2 WLR 1207
1971 CA Salmon LJ, Cross LJ	Land	Casemap 1 Citers
	A mortgagee selling as mortagee in possession must "take reasonable care to obtain the true value of the property at the moment he chooses to sell it" and obtain the best price for the property reasonably obtainable on the open market. It is not a duty breach of which is actionable without proof of damage. In default of provision to the contrary in the mortgage, the power of sale is conferred upon the mortgagee by way of bargain by the mortgagor for his own benefit and he has an unfettered discretion to sell when he likes to achieve repayment of the debt which he is owed. Salmon LJ said: "a mortgagee in exercising his power of sale does owe a duty to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which he decides to sell it. No doubt in deciding whether he has fallen short of that duty the facts must be looked at broadly, and he will not be adjudged to be in default unless he is plainly on the wrong side of the line." and "It is well settled that a mortgagee is not a trustee of the power of sale for the mortgagor. Once the power has accrued, the mortgagee is entitled to exercise it for his own purposes whenever he chooses to do so. It matters not that the moment may be unpropitious and that by waiting a higher price could be obtained. He has the right to realise his security by turning it into money when he likes. Nor, in my view, is there anything to prevent a mortgagee from accepting the best bid he can get at an auction, even though the auction is badly attended and the bidding exceptionally low. Providing none of those adverse factors is due to any fault of the mortgagee, he can do as he likes. If the mortgagee's interests, as he sees them, conflict with those of the mortgagor, the mortgagee can give preference to his own interests, which of course he could not do were he a trustee of the power of sale for the mortgagor." Cross LJ said: "A mortgagee exercising a power of sale is in an ambiguous position. He is not a trustee of the power for the mortgagor, for it was given him for his own benefit to enable him to obtain repayment of his loan. On the other hand, he is not in the position of an absolute owner selling his own property but must undoubtedly pay some regard to the interests of the mortgagor when he comes to exercise the power. Some points are clear. On the one hand, the mortgagee, when the power has arisen, can sell when he likes, even though the market is likely to improve if he holds his hand and the result of an immediate sale may be that instead of yielding a surplus for the mortgagor the purchase price is only sufficient to discharge the mortgage debt and the interest owing on it. On the other hand, the sale must be a genuine sale by the mortgagee to an independent purchaser at a price honestly arrived at."
	Link[s] omitted

Allan's Trustes -v- Lord Advocate 1971 SC (HL) 45
1971 HL Lord Reid	Scotland, Land	Casemap 1 Citers
	The House set out the requirements for a declaration of trust. The truster must have an intention to make himself trustee of his own property and must also do something equivalent to delivery or transfer of the trust fund. The origin of trusts in Scotland is very different and English law is not a good guide.

Tehidy Minerals Ltd -v- Norman [1971] 2 QB 528
1971 CA Buckley LJ	Land, Limitation	Casemap 1 Cites 1 Citers
	The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the Prescription Act 1832 but not at common law. Discussing Angus v Dalton, applying the doctrine of lost modern grant: "where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason . . the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made."
	Prescription Act 1832

Giles -v- County Building Constructors (Hertford) Limited (1971) 22 P&CR 978
1971 ChD Brightman J	Land	Casemap 1 Cites 1 Citers
	A right of way had arisen by prescription in favour of land which had two detached dwelling houses on it. Held: The right of way could continue to be used, even after the two houses had been demolished and replaced by a three-storey block of six flats, a bungalow, a house and eight garages, a redevelopment which also involved constructing a roadway on the dominant land so that traffic could pass over it, rather than merely up to it. Rather than involving a change of identity or a radical change of character, the development was "evolution rather than mutation". "To some extent, of course, the matter must be one of degree, because I quite see that the erection of a skyscraper block of flats upon the [dominant property] might well be said to cause a radical change in the character of the dominant tenement which alters its identity. But that is not what is proposed here."

Wilson -v- Liverpool Corporation [1971] 1WLR 302
1971 CA Widgery LJ, Lord Denning MR, Megaw LJ	Land, Damages	Casemap 1 Cites 1 Citers
	The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder. Held: The purpose of the Pointe Gourde principle is to prevent the compensation for the value of the land on compulsory acquisition from being inflated by the very scheme which gives rise to the acquisition. An enhancement in value resulting entirely from the underlying scheme has to be ignored. In assessing compensation, the Tribunal was required to assume that planning permission for residential development would have been granted on his land, but to make appropriate deductions from the “dead ripe value” in the real world, in order to reflect the enhancement of value due to the public’s knowledge of the authority’s involvement in the scheme, including its investment in infrastructure, and also to the consequent acceleration of development. Widgery LJ spoke of: "the well known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below." and "Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project. Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word "scheme" as though it had some magic of its own. It is merely synonymous with the other words to which I have referred, and the purpose of the so called Pointe Gourde rule is to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition. The extent of the scheme is a matter of fact in every case, as is shown by the decision in Fraser v Fraserville City [1917] A.C. 187 to which Lord Denning M.R. has referred. It is for the tribunal of fact to consider just what activities-past, present or future-are properly to be regarded as the scheme within the meaning of this proposition." Lord Denning MR: "A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite and known to all. Correspondingly, its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded at the time when the value is to be assessed."
	Land Compensation Act 1961 6(1)

North Sydney Printing Property Ltd -v- Sobemo Investment Co. Ltd [1971] NSWLR 150
1971 Hope J	Commonwealth, Land	Casemap 1 Citers
	(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a contiguous car park owned by that authority. The proposed sale to the local authority went off, and the company was left with its retained land, which was landlocked. The company then sought a declaration that its retained land had a way of necessity over the land sold. The company contended that it was entitled to a way of necessity by virtue of public policy, and that the intention of the parties was irrelevant. The purchaser contended that public policy was irrelevant, and that the company was entitled to no right of way, since the intention of the parties was that the company should have no such right. Held: The claim failed. A way of necessity arises to give effect to an actual or presumed intention. On the facts the company's intention was the contrary: its intention was that the land retained should have no access over the land conveyed, but instead should have access over the car park.

Brunner -v- Greenslade [1971] Ch 993
1971	Land	Casemap 1 Citers

Texaco Antilles Ltd -v- Kernochan [1972] AC 609
1972 HL	Land	Casemap 1 Citers
	The court considered the doctrine of unity of seisin of land as it affected restrictive covenants: "if the restrictions in question exist simply for the benefit of two adjoining premises [and not as part of a building scheme] and both those properties are bought by one man, the restrictions will automatically come to an end and will not revive on a subsequent severance unless the common owner then recreates them."

Grigsby -v- Melville & Another [1972] 1 WLR 1355; [1973] 1 All ER 385
1972 ChD Brightman J	Land	Casemap 1 Citers
	A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller's retained property had been included in the conveyance of 'all that dwellinghouse' Held: The right asserted by the seller to use the premises as a store gave, in effect, an exclusive right of user over the whole of the servient tenement, and was not to be supported. The cellar had been included in the sale.

Hutton -v- Esher Urban District Council [1972] 3 All ER 504
1972 ChD	Land	Casemap 1 Cites 1 Citers
	The council sought to build a sewer. It had power to acquire land for this purpose, and sought to acquire the plaintiff's bungalow. He argued that the word land did not include a building on land.

Lee-Parker -v- Izzett (2) [1972] 1 WLR 775; [1972] All ER 800
1972 Goulding J	Land, Contract	Casemap 1 Cites
	A contract was exchanged subject to 'the purchaser obtaining a satisfactory mortgage'. Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for uncertainty.

F T Challinor -v- Stone Rural District Cuncil Ref/161/1971
1972 LT JR Laird	Land	Casemap 1 Citers

Banning -v- Wright (Inspector of Taxes) [1972] 2 All ER 987; [1972] 1 WLR 972
1972 HL Lord Hailsham of St Marylebone LC	Land	Casemap 1 Citers
	Lord Hailsham of St Marylebone LC pointed out that the word 'waiver' is derived from the same root as the word 'waif' – a thing, or person, abandoned. Lord Hailsham , continued: "In my view, the primary meaning of the word 'waiver' in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted."

British Railways Board -v- Herrington [1972] AC 877; [1972] 2 WLR 537; [1971] 1 All ER 749; [1972] UKHL 1
16 Feb 1972 HL Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilberforce, Lord Pearson and Lord Diplock	Land, Personal Injury, Nuisance, Children, Negligence, Evidence	Casemap 1 Cites 1 Citers
	The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser. Held: Whilst a land-owner owes no general duty of care to a trespasser, the creation by him of particular risks which may be unknown to sections of the public, including children, might create such a liability. The test may be subjective, as to whether a land-owner of this character might reasonably be expected to do or refrain from doing something on his land to avoid the risk. A duty might arise where the owner had, or ought to have had, actual knowledge of trespassers using the land, and of the risk they might face, and the risk was such as might cause a person with ordinary humane feelings to seek to avoid it. The duty does not extend beyond taking reasonable steps to enable a trespasser to avoid the danger. Lord Diplock said that the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees: "This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold."
	Link[s] omitted

Smout -v- Farquharson Unreported, 12 December 1972
12 Dec 1972 CA	Land	Casemap 1 Citers
	The court considered a case where there was difficulty in deriving the horizontal boundaries of a property.

Official Custodian for Charities -v- Goldridge (1973) 26 P & CR 191
1973 CA Lord Denning MR	Land	1 Citers
	The social policy underlying the 1967 Act is that "the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder."
	Leasehold Reform Act 1967

Sinclair-Hill -v- Southcott (1973) 26 P&CR 490
1973 Graham J	Land, Contract	Casemap 1 Citers
	There was an unconditional sale of a property to a developer for which the vendor was seeking planning permission. The vendor withdrew his application for planning permission after the contract. Held: The principle of the vendor's trusteeship extended to prohibit withdrawal of a planning application in such circumstances: "It was not suggested that a term to keep the planning application in being should be implied. Nor could it be said that a planning application could properly be regarded as part of property passing on sale in the same way and for the same reasons as the roses in the front garden. If it were the principle of trusteeship on the part of the vendor could be applied without any hesitation. … Under modern conditions, where all potential building land is subject to planning consents of various kinds, and where local authorities are likely to have large numbers of such applications before them, it is obvious that a high rather than a low place in the queue was of value to a speculative bidder … It follows that the vendor in such circumstances is in my judgment under an obligation after the contract has been signed, not to withdraw a planning application which must be assumed to be of value to the purchaser, at any rate without obtaining the purchaser's consent to such withdrawal."

Halifax Building Society -v- Clark [1973] Ch 307
1973 ChD Sir John Pennycuick V-C	Land, Litigation Practice
	In order to satisfy the requirements for obtaining statutory relief under the 1970 Act, the mortgagor had to be able to show that he was likely to be able to pay within the reasonable period referred to not only the arrears of instalments but also the principal sum due under the mortgage. Sir John Pennycuick V-C interpreted "any sums due under the mortgage" in sub-section (1) restrictively as the entire mortgage debt.
	Administration of Justice Act 1970 36(1)

Wroth -v- Tyler [1974] Ch 30; [1973 1 All ER 897
1973	Land, Professional Negligence	Casemap 1 Citers
	The buyer's solicitor failed to register the contract to purchase the house after exchange. The seller's wife then registered a class F Land Charge to protect her right to occupy the house. The buyer refused to complete. Held: The seller was not giving vacant possession under the contract, and the buyer's solicitor was negligent.

Hutton -v- Esher Urban District Council [1973] 2 All ER 1123
1973 CA	Local Government, Land	Casemap 1 Cites 1 Citers
	(reversed) The local authority sought to acquire the plaintiff's bungalow by compulsory powers which allowed it to purchase land required to construct a new sewer. Held: By the 1978 Act, the word land was to be read to include buildings upon the land, and this was a correct purchase.
	Interpretation Act 1978

Rugby Joint Water Board -v- Shaw-Fox [1973] AC 202
1973 HL Lord Pearson, Lord Simon of Glaisdale	Land, Damages	Casemap 1 Cites 1 Citers
	The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act. Held: (Majority) Because the land subject to notices to treat was required for a use other than agriculture the tenancies were no longer protected. The Point Gourde principle did not prevent reference to the effect of the scheme of acquisition to ascertain the interest of a claimant at the date of acquisition. What was prevented by the Point Gourde principle was the use of the scheme in arriving at the value of the interest, once that interest had been ascertained. (Lord Simon of Glaisdale dissenting) Compulsory acquisition by public authorities for public purposes has always been in this country entirely a creature of statute.
	Agricultural Holdings Act 1948

Smith -v- Scott [1973] Ch 314; [1972] 3 All ER 645; [1972] 3 WLR 783
1973 ChD Sir John Pennycuick VC	Land, Nuisance	Casemap 1 Cites 1 Citers
	It is not open to the court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donoghue v Stevenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting his tenants. Where land is let by a landlord to a tenant the landlord is not liable for acts of nuisance permitted by his tenant unless he has specifically authorised them. Sir John Pennycuick VC said: "It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance . . This exception has in the reported cases been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let."

St Edmundsbury and Ipswich Diocesan Board of Finance -v- Clark (No.2) [1975] 1 WLR 468; [1973] 3 All ER 902
1973 Sir John Pennycuick, Russell and Orr LJJ	Land, Contract	Casemap 1 Cites 1 Citers
	When looking at a contract "one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances." The words 'without any regrant' in the context of a lease back arrangement mean only “without any words of regrant". Considering the presence of a gate and its effect on the use of a right of way, Sir John Pennycuick said: "But the gate remains, to our mind, a factor of the first importance. Mr. Vinelott referred to cases in which it was held that the owner of a dominant tenement, having once established his right of way, is entitled to remove an obstacle which obstructs it: See Bulstrode v Lambert [1953] 1 WLR 1064 and Keefe v Amor [1965] 1 QB 334 in the Court of Appeal. But that does not mean that the existence of the obstruction at the time of the reservation is any the less an important factor in determining whether the right of way has been established at all."

Lloyds Bank Limited -v- Marcan [1973] 1 WLR 1387
1973 CA Russell LJ, Cairns LJ	Equity, Land
	The mortgagor, knowing of the bank's application for possession of the property, granted a lease to his wife for a term of twenty years. He intended to deprive the mortgagee bank of the ability to obtain vacant possession of the property as and when a possession order was made. Held: Before section 172 could be used to avoid a transaction, dishonesty had to be shown. This transaction was dishonest. Russell LJ said:- "If he disposes of an asset which would be available to his creditors with the intention of prejudicing them by putting it, or its worth, beyond their reach, he is in the ordinary case acting in a fashion not honest in the context of the relationship of debtor and creditor" Cairns LJ said that:- "a conveyance for good consideration would be regarded as fraudulent if made with the deliberate intention of hindering creditors and for the benefit of the debtor himself rather than as a bona fide… arrangement"
	Law of Property Act 1925 172

Re Endricks' Conveyance [1973] 1 All ER 843
1973 ChD Goulding J	Land, Contract	Casemap 1 Citers
	Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity.

Saint -v- Jenner [1973] Ch 275
1973	Land	Casemap 1 Citers
	The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way. Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car's undercarriage.

Murrayfield Ice Rink Ltd -v- Scottish Rugby Union Trustees 1973 SC 21
1973 Lord Justice Clerk Grant	Scotland, Land	Casemap 1 Citers
	The court referred to a clause in the feu charter which described a right of use of an area of ground as a car park as a servitude right as "a mere servitude right."

Wroth -v- Tyler [1974] Ch 30; [1973] 1 All ER 897
1973	Professional Negligence, Land
	The presence of a class F Land Charge registered against a property was a breach of the condition requiring vacant possession. A solicitor failing to complete a registration becomes liable to his client in negligence.

Grigsby -v- Melville [1973] 3 All ER 455
6 Jul 1973 CA Russell LJ, Stamp LJ, James Lj	Land	Casemap 1 Cites 1 Citers
	The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as 'all that dwellinghouse'. A cellar under the part sold off had access only from the retained property, but contained supports for the room above. The plainttiff sought an injunction to restrain the seller from using the cellar. Held: The seller's appeal failed. The term dwellinghouse was to be interpreted to include the cellar. There was no ambiguity in the description so as would allow the court to look to any surrounding circumstances to construe the deed. Had he intended to exclude the cellar, it would have been easy to do so. This was not an action for rectification.

Holiday Inns Inc –v- Broadhead (1974) 232 EG 951
1974 Goff J	Land, Contract	Casemap 1 Cites 1 Citers
	The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, entitling the plaintiff to relief in equity. The defendant had repeatedly assured the plaintiffs that he would stand by his word. Held: Goff J said: "while they [i.e. the plaintiff] have never suggested that the understanding, arrangement or bargain was sufficiently precise to be enforceable as a contract, they claim to be entitled to relief in equity." and "In my judgment the authorities clearly establish that there is a head of equity under which relief will be given where the owner of property seeks to take an unconscionable advantage of another by allowing or encouraging him to spend money, whether or not on the owner's property, in the belief, known to the owner, that the person expending the money will enjoy some right or benefit over the owner's property which the owner then denies him. This arises where the person expending the money does so under a mistaken belief that the property is his own, that belief being known to the other, as in Ramsden v Dyson (1866) LR 1 HL 129, but mistake is not an essential element of a claim to relief of this nature. The authorities also establish, in my judgment, that this relief can be granted although the arrangement or understanding between the parties was not sufficiently certain to be enforceable as a contract, and that the court has a wide, albeit of course judicial, discretion to what extent relief should be given and what form it should take." and "Mr Waite [counsel for the defendants]… rested his case on what he described, and rightly described, as the crucial question whether there was present a belief on the part of the plaintiffs, induced by Mr Broadhead's words or silence, that they would receive a sufficient interest in the land to justify the expenditure. He said this was an arrangement between commercial men dealing with each other at arm's length with their eyes open, and so the plaintiffs must be taken to have elected as a matter of commercial judgment to run the risk that Mr Broadhead might, as I add he clearly did, have private reservations undisclosed at the date of the expenditure which might frustrate the conclusion of the anticipated bargain, and indeed they might have similar reservations themselves. I am wholly unable to draw any such inference or conclusion. Mr Wilson's [the head of the plaintiff] evidence, which I accept, was that he thought this was a gentleman's agreement which would be honoured. Mr Tigrett [the plaintiff's representative] in his evidence, which I also accept, said that no reservations or thought of backing our ever occurred to him, and the whole tenor of Mr Broadhead's conduct and letters was calculated to make the plaintiffs believe that if planning permission were obtained they would have a straight 3 and 1 lease on the standard terms. I am satisfied and find as a fact that both Mr Wilson and Mr Tigrett believed that and Mr Broadhead well knew that they did. His failure to inform them of his true state of mind was deceitful and unconscionable. " The plaintiff had made out a clear case for relief. The plaintiff's equity was best satisfied by a declaration that the site was held upon trust for sale, and, as to the proceeds of sale, after paying various costs and expenses, on trust for the plaintiff and defendants in equal shares.

Myers -v- Milton Keynes Development Corporation [1974] 1 WLR 696
1974 CA Lord Denning MR	Land, Damages	Casemap 1 Cites 1 Citers
	Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the "scheme" meant that the valuer should disregard the scheme altogether or permitted him to have regard to it when identifying the "proposals of the acquiring authority" in accordance with which the valuer had to assume planning permission would be granted. A valuer assessing land for compulsory purchase was at risk of having to 'conjure up a land of make-believe' and 'let his imagination take flight to the clouds' "What is to be assumed about the Walton Manor Estate itself? Here again one thing is clear. You are not to assume that it would have been developed in accordance with the proposals of the development corporation. You are to disregard any increase by reason of the estate itself being developed in accordance with their proposals. . . But you are to assume that after 10 years planning permission would be available for development as a residential area." and “It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a café), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.”

British Railways Board -v- G J Holdings Ltd (1974) 230 EG 973
1974	Limitation, Land	Casemap 1 Citers
	There can be no adverse possession where the squatter's use of the land was not inconsistent with the use intended by the paper owner.

Argyle Motors (Birkenhead) -v- Birkenhead Corporation [1974] CLY 374; [1975] AC 99
1974 HL Lord Wilberforce	Land	Casemap 1 Citers
	The House described the way that the 1845 Act continued to affect the calculation of compensation: "The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording - which itself has an earlier history - in some sort of accord with the realities of the industrial age."
	Land Compensation Act 1965 10

Quadrangle Development and Construction Co Ltd v Jenner [1974] 1 ALL ER 729; [1974] 1 WLR 68
1974 CA Russel LJ, Buckley LJ	Land, Contract	1 Citers
	A Notice to Complete binds both parties to a land contract. Buckley LJ said that the party giving the notice must be ready and willing at the time of the giving of the notice to fulfill his own outstanding obligations under the contract, and also at any time during the period of the notice up to and including the time set for completion.

In Re Wallis & Simmonds (Builders) Ltd [1974] 1 WLR 391; [1974] 1 All ER 561; [1974] AC 467
1974 ChD Templeman J	Land, Equity	Casemap 1 Citers
	The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness. Templeman J said: "But in my judgment this is a contractual lien - it is said to be a contractual lien - and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.' The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95."

Longbottom and Longbottom -v- Bingley Urban District Council [1974] 14 RVR 139
1974 LT	Land	Casemap 1 Citers
	When calculating compensation on the compulsory purchase of property occupied by a partnership, an allowance should be made for managerial or supervisory wages by adding back the wages or drawings of both partners to the average net profits for three years. This was because the council were required to take the premises and the business as they found them and the business was a partnership of the two claimants and it was irrelevant that it might have been bought by a limited company if sold as a going concern.

Trocette Property Co Ltd –v- GLC [1974 RVR 306
1974 CA Lawton LJ	Land	1 Citers
	Lawton LJ considered the scheme of compensation under the 1961 Act and said: “It is important that this statutory world of make-believe should be kept as near as possible to reality”
	Land Compensation Act 1961

Harrison -v- Battye [1975] 1 WLR 58; [1974] 3 All ER 830
1974	Contract, Land	Casemap 1 Citers
	Where it is intended that a contract should come into existence upon exchange of parts executed by the various parties, it was necessary for the parts exchanged to be identical. The effective date when parties are bound is the date of exchange.

Commissioner for Railways -v- Valuer-General [1974] AC 328
1974 PC Lord Wilberforce	Land, Rating	Casemap 1 Citers
	The parties disputed the value of a property in the centre of Sydney beneath which there had been extensive excavations to a depth of 40 feet or more. The question was how the property was to be valued for rating purposes. The statute proceeded on the basis that it was a parcel of land that had to be valued. The Commissioner said that this meant land defined only by vertical boundaries – land usque ad coelum et ad inferos, in other words. The Valuer-General said that it was only possible to value as land that which had a recognisable connection with the surface. Otherwise it had to be valued as stratum, to which special provisions applied. Held: The question that the Valuer-General's argument gave rise to was whether there was a complete dichotomy between land and strata beneath it and, if so, what that dichotomy was. The statutory definition did not answer the question how, in the context of the legislation, layers defined by horizontal boundaries were to be treated. "It is in relation to this question", he said, "that the Latin tag usque ad coelum et ad inferos has been introduced and given a prominent place in the argument." Lord Wilberforce said that it was unlikely that such a sweeping, unscientific and unpractical doctrine as that 'land' meant the whole of the space from the centre of the earth to the heavens would appeal to the common law mind.

Heron Garage Properties Ltd -v- Moss [1974] 1All ER 421
1974 Brightman J	Land	Casemap 1 Cites 1 Citers
	Brightman J said: "Without seeking to define the precise limits within which a contracting party seeking specific performance may waive a condition on the ground that it is intended only for his benefit, it seems to me that in general the proposition only applies where the stipulation is in terms for the exclusive benefit of the plaintiff because it is a power or right vested by the contract in him alone . . or where the stipulation is by inevitable implication for the benefit of him alone . . If it is not obvious on the face of the contract that the stipulation is for the exclusive benefit of the party seeking to eliminate it, then in my opinion it cannot be struck out unilaterally. I do not think that the court should conduct an enquiry outside the terms of the contract to ascertain where in all the circumstances the benefit lies if the parties have not concluded the matter on the face of the agreement they have signed."

Haron Development Company Ltd (in liquidation) -v- West Sussex County Council Ref/167/1973
1974 LT Douglas Fanks QC	Land

Worcestershire County Council -v- Newman [1974] 2 All ER 867
1974 QBD Cairns LJ	Land, Torts - Other	Casemap 1 Citers
	A complaint had been made to the magistrates that the authority had failed in its duty to repair pathways. The paths were crossed by fencing, by barbed wire, and vegetation had grown.

Storer -v- Manchester City Council [1974] 1 WLR 1403
1974	Land, Contract	Casemap

Clearbrook Property Holdings Limited -v- Verrier [1974] 1 WLR 243
1974 ChD Templeman J	Land, Contract	Casemap 1 Citers
	The issue was whether a caution registered in the Land Registry by a plaintiff purchaser who was claiming specific performance of an agreement for sale should be vacated. The effect of the vacation of the caution was that the plaintiff's claim for specific performance would have been put in a position in which it was bound to fail in limine. Held: To redress the unfairness to the defendant vendor, whose property was unsaleable while the caution remained registered, the caution should be vacated on the plaintiffs being given the opportunity to make an immediate application for an interlocutory injunction restraining the defendant from dealing with the land in any way inconsistent with the plaintiff's claim pending the trial, which would not be opposed by the defendant, and the defendant getting a cross undertaking in damages.

Wickham Tools v Schuler AG [1974] AC 235
1974 HL Lord Wilberforce	Land	Casemap 1 Cites 1 Citers
	Lord Wilberforce referred to the Watcham case as: "a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate." but "Whether in its own field, namely that of interpretation of deeds relating to real property by reference to acts of possession, it retains any credibility in the face of powerful judicial criticism is not before us."

Law -v- Jones [1974] Ch 112
1974	Contract, Land	Casemap 1 Citers
	A "subject to contract" document might satisfy section 40 of the Law of Property Act 1925 if the stipulation was later waived. A memorandum or note must, if it is to be effective, not only state the terms of the contract but also contain an acknowledgement or recognition by the signatory to the document that a contract had been entered into. The defendants lost because the alleged memorandum was expressly "subject to contract" and therefore did not satisfy section 40 because it did not recognise or admit the existence of a contract.
	Law of Property Act 1925 40

Wrotham Park Estate Ltd -v- Parkside Homes Ltd [1974] 1 WLR 798; [1974] 2 All ER 321
1974 ChD Brightman J	Contract, Land, Damages	1 Cites 1 Citers
	55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant. Held: The restrictive covenant not to develop other than in accordance with an agreed lay-out plan was valid. It remained, or had not been shown not to remain, capable of being of benefit to the dominant estate, but the court refused injunctions against developers for breach of the injunction (and retained ownership of the roads) and against house-purchasers because it would be an unpardonable waste of much needed houses to pull them down. No damage of a financial nature had been done to the plaintiffs by breach of the lay-out stipulation. The absence of financially measurable loss flowing from a breach of contract was not necessarily fatal to a claimant’s claim for compensation. It would be unjust that the defendants should "be left in undisturbed possession of the fruits of their wrongdoing" merely because the court considered it wasteful to issue an injunction ordering the demolition of the houses. The court awarded damages as a substitute for an injunction. The damages were measured as the amount that might reasonably have been demanded by the plaintiff as payment for relaxing the covenant - five per cent of the developer's anticipated profit. Brightman J said: "I turn to the consideration of the quantum of damages. I was asked by the parties to assess the damages myself, should the question arise, rather than to direct an inquiry. The basic rule in contract is to measure damages by that sum of money which will put the plaintiff in the same position as he would have been in if the contract had not been broken. From that basis, the defendants argue that the damages are nil or purely nominal, because the value of the Wrotham Park Estate as the plaintiffs concede is not diminished by one farthing in consequence of the construction of a road and the erection of 14 houses on the allotment site. If, therefore, the defendants submit, I refuse an injunction I ought to award no damages in lieu. That would seem, on the face of it, a result of questionable fairness on the facts of this case. Had the offending development been the erection of an advertisement hoarding in defiance of protest and writ, I apprehend (assuming my conclusions on other points to be correct) that the court would not have hesitated to grant a mandatory injunction for its removal. If, for social and economic reasons, the court does not see fit in the exercise of its discretion, to order demolition of the 14 houses, is it just that the plaintiffs should receive no compensation and that the defendants should be left in undisturbed possession of the fruits of their wrongdoing? Common sense would seem to demand a negative answer to this question". And "In the present case I am faced with the problem what damages ought to be awarded to the plaintiffs in the place of mandatory injunctions which would have restored the plaintiffs' rights. If the plaintiffs are merely given a nominal sum, or no sum, in substitution for injunctions, it seems to me that justice will manifestly not have been done. As I have said, the general rule would be to measure damages by reference to that sum which would place the plaintiffs in the same position as if the covenant had not been broken. Parkside and the individual purchasers could have avoided breaking the covenant in two ways. One course would have been not to develop the allotment site. The other course would have been for Parkside to have sought from the plaintiffs a relaxation of the covenant. On the facts of this particular case the plaintiffs, rightly conscious of their obligations towards existing residents, would clearly not have granted any relaxation, but for present purposes I must assume that it could have been induced to do so. In my judgment a just substitute for a mandatory injunction would be such a sum of money as might reasonably have been demanded by the plaintiffs from Parkside as a quid pro quo for relaxing the covenant."

Davis -v- Whitby [1974] 1 Ch 186
1974 ChD Lord Denning MR, Stamp LJ	Land, Limitation	Casemap 1 Citers
	The court discussed the need for some system of acquisition of right by user. Lord Denning MR: "…. the long user as of right should by our law be given a lawful origin if that can be done." Stamp LJ: "…. if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin."
	Law of Property Act 1925 40

Wallis's Cayton Bay Holiday Camp Ltd -v- Shell-Mex and BP Ltd [1974] 3 WLR 387; [1975] QB 94
10 Jul 1974 CA Lord Denning MR, Stamp and Ormrod L.JJ.	Land, Limitation	Casemap 1 Cites 1 Citers
	A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the disputed land. They farmed the disputed land for several years. The garage was sold to the defendants, but the land remained unidentified, and the plaintiffs continued to farm it. The new road was abandoned, and the defendants tried to sell the disputed land to the plaintiffs. When they sought to fence the land, the action was begun, claiming possessory title, but failed. The plaintiffs appealed. Held: The owners of the disputed land had left it unoccupied for the purposes of eventual use in connection with the proposed new road and there had been no sufficient ouster of the owners so as to create 12 years' adverse possession within the Limitation Act 1939. The appeal failed.
	Link[s] omitted

Time Products Ltd -v- Combined English Stores Unreported, 2 December 1974
2 Dec 1974 Oliver J	Land, Trusts	Casemap 1 Citers
	The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property in a manner to the advantage of both. The arrangement was not sufficiently detailed as to constitute an enforceable contract and the offeror, having become the purchaser with the other refraining from competing, sought to keep the property for itself, excluding the other from any benefit. Held. The property was declared to be held on trust for the two parties in equal shares.

Lund -v- Taylor [1975] 31 P & C R 167
1975 CA	Land	Casemap 1 Cites 1 Citers
	The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect's plan prepared for the common vendor or was told that the common vendor was proposing to exact similar (or indeed any) covenants from the purchasers of other plots. Held: The appeal succeeded. There was no sufficient evidence from which it could be inferred that the common vendor intended to create a scheme of local law.

Michael Richards Properties Ltd -v- Corporation of Wardens of St Saviour's Parish Southwark [1975] 2 All ER 416
1975 Goff J	Contract, Land	Casemap 1 Citers
	Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words "subject to contract" at the bottom. The purchaser had refused to complete after discovering that the local authority intended to acquire the property compulsorily. Held: Since there was nothing left to negotiate, the words subject to contract could be rejected as meaningless. As to the request for the return of the deposit: "Section 49, however, was passed to remove the former hardship which existed where a defendant had a good defence in equity to a claim for specific performance but no defence in law, and, therefore, the deposit was forfeited. I am not prepared to say that the jurisdiction can only be exercised in such a case, but outside that ambit, it should only be exercised, if at all, sparingly and with caution. Here the plaintiffs have advanced only two reasons why I should exercise my discretion in their favour. First, that if I do not, the defendants will have made a profit, and secondly, that the warning concerning the views of the local authority could have been communicated before the deposit was paid. The first element, however, is inherent in cases where a deposit is forfeited, and the second is not really significant because the contract was concluded before then by the letter of acceptance…."
	Law of Property Act 1925 49(2)

Regina -v- Secretary of State for the Environment ex parte Hood [1975] 1QB 891
1975 CA Lord Denning Master of the Rolls	Land	Casemap 1 Citers
	The court considered the nature of the 1949 Act: "The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into existence before 1835. They were created in the days when people went on foot or on horseback or in carts. They went to the fields to work, or to the village, or to the church. They grew up time out of mind. The law of England was: once a highway, always a highway. But nowadays with the bicycle, the motorcar and the bus, many of them have fallen into disuse. They have become overgrown and no longer passable. But yet it is important that they should be preserved and known, so that those who love the countryside can enjoy it, and take their walks and rides there. That was the object of the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968." Obiter: on reclassification of a RUPP as a bridleway public vehicular rights could be extinguished.
	National Parks and Access to the Countryside Act 1949

Schindler -v- Pigault [1975] 30 P&CR 328
1975 Megarry J VC	Contract, Land	Casemap 1 Citers
	The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2). Held. He was entitled to the repayment of the deposit on the first ground. The court went further to hold that, even if the purchaser had been at fault, section 49(2) was wide enough to enable the court to grant relief, giving a broad range of action. Megarry J said: "In its 50 years of life, this section has remained remarkably quiescent. There are few authorities on it. From Charles Hunt Limited v Balmer, Finkielkraut v Monohan and James Macara Ltd. v Barclay, it appears, as one might expect, that the jurisdiction is discretionary and that it is to be exercised where justice requires it, but it will not be exercised so as to deprive a purchaser of the deposit which he is legally entitled to recover. This sub-section is essentially one that is available for use in mitigation of the vendor's right at law to forfeit the deposit: see Williams' Contract of Sale of Land (1930), pp. xv.94. Mr Lightman, basing himself mainly on Galbraith v Mitchenhall Estates Ltd, and the authorities there cited, contended that the jurisdiction under section 49(2) should only be exercised in favour of one party if there was unconscionable conduct by the other, but I do not think that what is appropriate in relation to any alleged equity of restitution provides any reliable touchstone for the exercise of the statutory jurisdiction conferred by section 49(2). That jurisdiction is, I think, exercisable on wider grounds than that, including a general consideration of the conduct of the parties (and especially the applicant), the gravity of the matters in question and the amounts at stake: see Shiloh Spinners Ltd v Harding which, though on a quite different point, provides a helpful analogy. The jurisdiction is, of course, statutory and is not the product of equity, but its discretionary character in relation to deposits on the sale of land makes it at least akin to equitable relief against forfeiture. A purchaser who does not claim rescission or is unable to establish a sufficient case for it may nevertheless recover his deposit by suing for its return and making out a proper case under the subsection."
	Law of Property Act 1925 49(2)

Bracewell -v- Appleby [1975] Ch 408
1975 ChD Graham J	Land, Damages	Casemap 1 Cites 1 Citers
	The defendant wrongly used and asserted a right of way over a private road to a house which he had built. Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the grounds of the plaintiff's delay in commencing proceedings. The defendant was "liable to pay an amount of damages which so far as it can be estimated is equivalent to a proper and fair price which would be payable for the acquisition of the right of way in question." Graham J said: "I think that for the purposes of estimating damages [the plaintiffs] and the other servient owners in Hill Road, albeit reluctant, must be treated as being willing to accept a fair price for the right of way in question and must not be treated as if they were in the extremely powerful bargaining position which an interlocutory injunction would have given them if it had been obtained before the defendant started operations and incurred expense. Such is to my mind the penalty of standing by until the house is built. On the evidence here the probable figure of notional profit which the defendant has made, being the difference between the overall cost of the new house and its present-day value seems to be somewhere between £4,000 and £6,000 and I think it is fair to take £5,000 as about as accurate a figure as one can get. The circumstances here are very different from those in the Wrotham Park case and I think that the proper approach is to endeavour to arrive at a fair figure which, on the assumption made, the parties would have arrived at as one which the plaintiffs would accept as compensating them for loss of amenity and increased user [of the private road], and which at the same time, whilst making the blue land a viable building plot, would not be so high as to deter the defendant from building at all. . . . I think he would have been prepared to pay what is relatively to his notional profit quite a large sum for the right of way in question and to achieve the building of his new home. This was a time of rising property values and I think he would have been prepared to pay £2,000 to get his right of way and if he had made such an offer, I think the other five owners in Hill Road ought also to have been prepared to accept it.. . . "

Higgs -v- Nassauvian Ltd [1975] AC 464
1975 PC Sir Harry Gibbs	Land	Casemap 1 Cites
	A claim was made for possession of two plots of land, one some 92 and the other some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed. Held: Sir Harry Gibbs said: "It is clearly settled that acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole." and as to the case of Blantyre, "This rule is not applicable to a question of undefined and disputed boundary (Clark v. Elphinstone (1880) 6 6 App.Cas. 164, 170-171; West Bank Estates Ltd. v. Arthur [1967] 1 AC 665, 679-680), but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is enclosed by a wall or other physical barrier. The property claimed by possession may be sufficiently defined in other ways, e.g. where the claim is to trees in a belt of woodland (Stanley v. White (1811) 14 East 332), to the bed or foreshores of a river (Jones v. Williams) (1837) 2 M&W 326 and Lord Advocate v. Lord Blantyre, 4 App.Cas. 770) or to the right to fish in a river (Lord Advocate v. Lord Lovat (1880) 5 App.Cas. 273, 289). In the present case, although the two tracts were not physically enclosed, their boundaries were known and undisputed, and possession of the whole tracts might have been established by appropriate evidence of acts done on parts of them. The question was one of fact and degree and depended upon a consideration of all the circumstances of the case."

Hereford and Worcester County Council -v- Newman [1975] 2 All ER 673; [1975] 1 WLR 901
1975 CA Cairns, Lawton LJJ And Mackenna J (Dissenting)	Local Government, Land	Casemap 1 Cites 1 Citers
	The council had been found responsible by the magistrates for allowing footpaths to be 'out of repair'. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung across. Held: The appeal was allowed in part. A roadway was 'out of repair' within the statute only if the road surfcae itself was in some way disturbed. It was not want of repair merely not to remove something which had fallen across it. A fence which passed across a pathway was not out of repair as such. The hedgerow did affect the surface and those paths were out of repair. Cairns LJ said: "I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair – e.g. an icy road would not in my view be out of repair. But if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair…I cannot imagine anybody describing the presence of such a fence as a want of repair of the path…The other two paths have a substantial growth of vegetation in them. That vegetation no doubt constitutes an obstruction, but it must also interfere with the surface of the paths. If there had been merely branches and thorns overhanging from the sides of the footpaths I should not consider that they were out of repair, but I understand that a hawthorn hedge in one case and thick undergrowth in the other is actually rooted in the surface of the paths. With some hesitation I am of the opinion that this did cause the paths to be out of repair."
	Highways Act 1959 44(1)(a) 59(4)(b)

St Edmunsbury -v- Clark (No 2) [1975] 1 WLR 468
1975 CA	Land	Casemap 1 Citers
	The conveyance created "a right of way". The court considered the manner of construction of a conveyance, saying: "We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances." However, "one may have words so unambiguous that no surrounding circumstances could affect their construction."

St Edmondsbury and Ipswich Diocesan Board of Finance -v- Clark (No 2) [1975] 1 All ER 772; [1975] 1 WLR 468
1975 ChD Sir John Pennycuick	Land	Casemap 1 Citers
	A reservation contained In a conveyance must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances. Held: Sir John Pennycuick said: "Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. But that is emphatically not the position here, where the reservation is in the loosest terms, i.e. simply ´right of way.' Indeed those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott's contention, even if well-founded, seems to us to lead nowhere in the present case."

Edwards -v- Marshall Lee (1975) 235 EG 901; Times, 18 June 1975
1975 ChD Brightman J	Land	Casemap 1 Citers
	The parties contracted for the sale and purchase of land. A mortgage receipt was executed by a different company (Barclays Bank Trust Co ltd, not Barclays Bank Ltd) and therefore did not operate as a statutory receipt to discharge it. The plaintiff purchaser requisitioned a discharge. The defendant replied with a confirmation of release from both banks, but the plaintiff refused to complete and sought return of his deposit. Held: The receipt did show that the money had been paid and the mortgage discharged. The receipt implied an authority to act on behalf of the original chargee, even if it did not strictly comply. There was no defect in the title. The second receipt, in any event satisfied the requisition.
	Law of Property Act 1925 115

Re Kershaw's Application (1975) 31 P& CR 187
1975 LT Douglas Frank QC	Land, Damages	Casemap 1 Citers
	Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours. Held: The neighbours would "suffer considerably from the noise of builder's vehicles, from the construction of the driveway and by the general disturbance associated with building works". This would be a considerable disadvantage for up to a year and "One of the questions, perhaps the most important question I have to decide, is what weight I should give to this intensive inconvenience and noise generated by builders' traffic for this very limited period. Clearly for that period the restrictive covenant does secure practical benefits of substantial value or advantage to (the objector). On the other hand, I cannot think that such a literal construction of the section is intended, but rather one should look at the matter in a broader context and regard this as a short term, albeit intensive interference but small and not so substantial in relation to the overall long term enjoyment of the property." In principle, protection from short term disturbance arising from construction, although providing a "substantial" benefit during the construction period, had to be looked at in a broader context for the purposes of section 84.
	Law of Property Act 1924 84

LE Walwin and Partners Limited v West Sussex County Council [1975] 3 All ER 604
1975 ChD Plowman V-C	Land	Casemap 1 Citers
	The parties disputed the extent of a public bridleway. The definitive map appeared to show a bridleway stopping at a point where it met a footpath. However the definitive statement described the bridleway as running "to the foreshore" ie. beyond the point at which the bridleway met the footpath. Held. The bridleway extended to the foreshore. The unequivocal statement prevailed because of inconsistencies in the map. In considering the definitive map of right of way, the map and statement must be read together. The map and statement when read together demonstrated that the right of way extended to the foreshore. It is necessary for the interested member of the public only to establish that the map in general shows a path which the statement purports to particularise. Held. the correct approach to interpretation of the definitive map and statement must be a practical one. They should be examined together with a view to resolving the question whether they are truly in conflict or the statement can properly be read as describing the position of the right of way. If they are in conflict, then the map must take precedence since the discretionary particulars depend for their existence upon the conclusiveness of the obligatory map. Unless the statement can properly be interpreted as describing the same footpath as that shown on the map, then the statement cannot be regarded as conclusive evidence of the position of the footpath shown on the map.

Smirk -v- Lyndale Developments Ltd [1975] Ch 321; [1975] 1 All ER 690
1975 ChD Pennycuick V-C	Land, Limitation, Landlord and Tenant	Casemap 1 Citers
	The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,

Tiverton Estates Ltd -v- Wearwell Ltd [1975] Ch 146
1975 CA Lord Denning MR, Stamp LJ, Scarman LJ	Land, Contract, Litigation Practice	Casemap 1 Cites 1 Citers
	"subject to contract" proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: "for over a hundred years, the courts have held that the effect of the words "subject to contract" is that the matter remains in negotiation until a formal contract is executed" It was vital that the meaning and effect of the phrase must not be diluted. As to the required memorandum, it must contain a recognition of the existence of the prior contract and must state its terms. Lord Denning MR said: "These courts are masters of their own procedure and can do what is right even though it is not contained in the rules." Stamp LJ said that a memorandum must, to satisfy the section, recognise the contract.
	Law of Property Act 1925 40

New Windsor Corporation -v- Mellor [1975] 3 All ER 44; [1975] 3 WLR 25; [1975] Ch 380
1975 CA Denning MR L, Browne LJ, Brightman J	Land	Casemap 1 Cites 1 Citers
	The respondent had obtained registration of land used as a car park in the register of town and village greens under the Act as a customary green. The plaintiff sought to deny the rights. The Commons Commissioner and Queens Bench upheld the registration. Held: The land had been used since 1651 by the burgesses under various leases, allowing all to have access and for shooting and to maintain water butts. Improvements had been mde by the inhabitants in 1809. There was clearly a customary right to use the land for recreational purposes. That was a reasonable use and the registration as a village green was good. It may not be clear how the land could be used, but it could clearly not be used in a way inconsistent with the customary uses as wanted by the plaintiff. The period of 20 years in the Act referred to the 20 years before its passing. Lord Denning considered the 'one locality' rule, and criticised the case of Edwards v Jenkins. Lord Denning MR said: "To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large: see Fitch v. Rawling (1795) 2 Hy.B1. 394. In Edwards v. Jenkins [1896] 1 Ch. 308 Kekewich J. held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it "and otherwise enjoy any lawful and innocent recreation at any times in the year": see Hall v. Nottingham (1875) 1 Ex D. 1, 2" Brightman LJ said this about the locality point: "I should prefer to reserve my opinion as to whether Edwards v. Jenkins [1896] 1 Ch. 308 is good law. There is some authority for supposing that a customary right cannot normally exist over land in one locality for the benefit of the inhabitants of a different locality. Nevertheless, were it relevant to this appeal, I would feel it difficult to understand why such a right cannot exist over land in one locality for the benefit of the inhabitants of that and one or more other localities, which was in effect the right unsuccessfully claimed in Edwards v. Jenkins. For myself, I express no concluded view".
	Commons Registration Act 1965 3

Rightside Properties Ltd -v- Gray [1975] Ch 72
1975 Walton J	Contract, Land	Casemap

Crabb -v- Arun District Council [1976] Ch 179; [1975] 3 All ER 865; [1975] EWCA Civ 7
23 Jul 1975 CA Denning MR, Lawton LJ, Scarman LJ	Equity, Land	1 Cites 1 Citers
	The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked. Held: His claim to have raised an equity was upheld. The plaintiff should have a right of access without payment. Scarman LJ said: "There being no grant, no enforceable contract, no licence, I would analyse the minimum equity to do justice to the plaintiff as a right either to an easement or to a licence on terms to be agreed. I do not think it is necessary to go further than that. … If there is no agreement as to terms, if agreement fails to be obtained, the court can, in my judgment, and must, determine in these proceedings upon what terms the plaintiff should be put to enable him to have the benefit of the equitable right which he is held to have." The court should approach the task cautiously to achieve "the minimum equity to do justice to the plaintiff."
	Link[s] omitted

Horrocks and Another -v- Forray [1975] EWCA Civ 9; [1976] 1 All ER 737; [1976] 1 WLR 230
7 Nov 1975 CA	Land, Wills and Probate
	Link[s] omitted

Harris -v- Birkenhead Corporation [1976] 1 All ER 341; [1975] EWCA Civ 10; [1975] 1 WLR 379
12 Nov 1975	Land	Casemap 1 Citers
	For the purposes of that Act the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
	Occupiers Liability Act
	Link[s] omitted

Wills Trustees -v- Cairngorm Canoeing and Sailing School [1976] SC (HL) 30
1976 HL Lord Wilberforce, Lord Salmon, Lord Fraser of Tullybelton	Utilities, Transport, Scotland, Land	Casemap 1 Citers
	The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. "A public right of way on highways is established by use over the land of a proprietor." The existence of the right does not depend upon there being two termini for any journey. The right may embrace the passage of articles without human accompaniment, for instance, the floating of logs on the current either singly or in rafts.

Bird and Bird -v- Wakefield Metropolitan Borough Council (1976) 33 P&CR 478
1976 Browne LJ, Shaw LJ and Megaw LJ	Land, Damages	Casemap 1 Cites
	The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a small part of the underlying scheme. Browne LJ: "It is true that [the scheme] did not provide for the compulsory acquisition of any land for industrial development. I do not, however, think it necessary for the scheme to provide for the acquisition; it is enough that it 'underlies' it."

Copeland Borough Council -v- Secretary of State for the Environment (1976) 31 P&CR 403
1976 Lord Widgery CJ	Land, Damages	Casemap 1 Citers
	An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the construction of the house as a whole. Held: This was an error sufficient to require the enforcement notice to be quashed. The character of the development to be considered derives from the whole development, and to construct only a small part would result in something different in character. Lord Widgery CJ said: “For my part, and in the absence of authority, I would have had no hesitation in saying that in a case of this kind where there is to be new development on land previously undeveloped one ought, subject to any special provisions in the planning permission itself, to treat the operation as single one, and I test it for myself in this way. The purpose of all town and country planning is to preserve amenities and the sensible and attractive lay-out of properties, and if the appellants are right in this case and the grant of a permission of this kind is really the grant of multiple permissions to install brick by brick it would mean that an eccentric land developer could produce most extraordinary results on his land, results which might perfectly well redound to the disadvantage of others, without in any way falling foul of this legislation; he could leave holes in the walls of his house; he could leave half the roof off; he could do all sorts of eccentric things of that kind, and when he was tackled about it by the planning authority he would say: ‘But every brick is in accordance with the plans; at no point have I done anything which the plans did not authorise.’ If it were asked: ‘What about the all the vacant spaces which the plans intended to be filled?’ the answer would be: ‘There is no breach of planning control there. There is nothing done there and if you do nothing you cannot be wrong.’”

SJC Construction -v- Sutton London Borough Council [1974] 28 P & CR 200; (1975) 234 EG 363; [1976] RVR 219
1976 CA Stephenson LJ	Land, Damages	Casemap
	An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word 'substantial' required applicants to show: "that the benefit is not of any real importance in either money terms or in having some other advantage" The application of the word "substantial" was "a question of fact and degree having regard to all the circumstances"; and "The question I have asked myself in this case is whether the benefits and advantages to the (covenantee) are of so little weight in relation to what is proposed by the appellants that they can regard as having no real importance." The answer in this case was 'No'. Held: The award was upheld: "the modification of this restrictive covenant clearly resulted in the respondents suffering the loss of a practical benefit of substantial value or advantage. For that substantial loss or disadvantage they were entitled to substantial compensation."
	Law of Property Act 1925 84

Security Trust Co -v- The Royal Bank of Canada [1976] AC 503; [1975] UKPC 23
1976 PC Lord Cross	Commonwealth, Land, Equity, Contract	Casemap 1 Citers
	(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the agreed proportion of the price. Fisher failed to pay the stipulated sum on the fixed date. Fisher then granted a debenture, creating a fixed charge on its existing property and a floating charge on future property. A receiver was subsequently appointed under the debenture. The contract was eventually completed. In the subsequent litigation, the question arose whether the charge over the property created by the debenture took priority over the vendor's mortgage. The Judicial Committee of the Privy Council, allowing the vendor's appeal, held that Fisher's interest in the land was merely an equity of redemption subject to the vendor's mortgage, and that the mortgage accordingly took priority over the charge created by the debenture. Lord Cross limited the extent of the law of escrow: "On fulfilment of the condition subject to which it was delivered as an escrow, a deed is not taken to relate back to the date of its delivery for all purposes, but only for such purposes as are necessary to give efficacy to the transaction - ut res magis valeat quam pereat (see Butler and Baker's case (1591) 3 CoRep 25a). Thus, the fact that the grantor has died before the condition of an escrow is fulfilled does not entail the consequence that the disposition fails. If and when the condition is fulfilled the doctrine of relation back will save it, but notwithstanding the relation back for that limited purpose the grantee is not entitled to the rents of the property during the period of suspense or to lease it or to serve notices to quit."
	Link[s] omitted

Chang -v- Registrar of Titles (1976) 137 CLR 177
1976 Mason J, Jacob J	Land, Contract	1 Citers
	The court discussed the trusteeship arising on a contract for the sale of land. Mason J: "It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor 'is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay' (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel's view was accepted by the Court of Appeal in Rayner v Preston. It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale". Jacob J: "Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties".

Gibson -v- Hunter Home Designs Limited 1976 SC 23
1976 Lord President Emslie	Scotland, Land	1 Citers
	A disposition had been executed but not delivered. Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. There was no evidence of the constitution of a trust and that it was impossible to entertain the suggestion that as a result of the purchaser's entry to the subjects and payment of the price a trust in his favour had come into existence. "In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition. On delivery of the disposition the purchaser becomes vested in a personal right to the subjects in question and his acquisition of a real right to the subjects is dependent upon recording the disposition in the appropriate Register of Sasines. Putting the matter in another way the seller of subjects under missives is not, in a question with the purchaser, divested of any part of his right of property in the subjects of sale until, in implement of his contractual obligation to do so, he delivers to the purchaser the appropriate disposition."

Treloar -v- Nute [1976] 1 WLR 1295
1976	Land, Limitation	Casemap 1 Citers

Crown Estate Commissioners -v- Fairlie Yacht Slip Ltd 1976 SC 161
1976 Lord Dunpark	Land, Scotland	Casemap 1 Citers
	The defenders had laid down moorings on the seabed in Fairlie Bay. They argued that the right to lay moorings was a necessary incident of the public right of navigation. The pursuers maintained, however, that the right to anchor was restricted to temporary anchorage in the course of passage and that it did not extend to quasi-permanent anchorage between voyages. Held: A right to lay up a vessel between voyages is a not necessary incident of a public right of navigation: "the public right of navigation is restricted in the manner for which the pursuers contend. In my opinion, the earliest point of time when navigation begins is when a vessel is being prepared for a voyage, and navigation ends when the ship is left, either unmanned or with a caretaker crew, at the end of a voyage. A ship moored between voyages is not being navigated. The laying up of a vessel is, in my opinion, an incident of ownership; it cannot properly be regarded as a necessary incident of the right of navigation."

Central Electricity Generating Board -v- Clwyd County Council [1976] 1 All ER 251; [1976] 1 WLR 151
1976 Goff J	Land	Casemap 1 Citers

Munton -v- Greater London Council [1976] 1 WLR 649
1976 CA Lord Denning MR	Contract, Land	Casemap 1 Cites 1 Citers
	With respect to the words 'subject to contract', Lord Denning said, "It is of the greatest importance that no doubt should be thrown on the effect of those words". As to the difference netween the procedures of compulsory purchase and ordinary contracts: "First, when notice to treat is given, it binds the acquiring authority to purchase and the owner to sell at a price to be ascertained… Second, when there is an unconditional agreement fixing the price – whether in writing or by word of mouth – it is the equivalent of a binding contract between the parties…. Once, therefore a notice to treat has been served and there is an agreement on the price, a binding obligation is created which is equivalent to a contract between the parties."
	Law of Property Act 1925 840

Steadman -v- Steadman [1976] AC 536
1976 HL Lord Reid	Contract, Land	Casemap 1 Citers
	A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. There is no general rule against the payment of a sum of money constituting an act of part performance for the purposes of s 40. It is necessary to look at the surrounding circumstances, including payments of money, to see if they pointed to some oral contract consistent with the alleged contract. Lord Reid said: "This matter has a very long history. Section 40 replaced a part of section 4 of the Statute of Frauds 1677 (29 Car. 2 c. 3), and very soon after the passing of that Act authorities on this matter began to accumulate. It is now very difficult to find from them any clear guidance of any general application. But it is not difficult to see at least one principle behind them. If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement is unenforceable. Using fraud in its other and less precise sense, that would be fraudulent on his part and it has become proverbial that courts of equity will not permit the statute to be made an instrument of fraud . . It must be remembered that this legislation did not and does not make oral contracts relating to land void; it only makes them unenforceable. And the statutory provision must be pleaded; otherwise the court does not apply it. So it is in keeping with equitable principles that in proper circumstances a person will not be allowed “fraudulently” to take advantage of a defence of this kind. There is nothing about part performance in the Statute of Frauds. It is an invention of the Court of Chancery and in deciding any case not clearly covered by authority I think that the equitable nature of the remedy must be kept in mind."
	Law of Property Act 1925 40 - Statute of Frauds 1677 4

Kingston -v- Phillips Unreported, 1976 Transcript 279
1976 CA Buckley LJ	Land	Casemap 1 Citers
	The court was asked to construe a parcels clause in a transfer: "It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade Estate and part of the dwelling house thereon. Unhappily, the plan which was annexed to that conveyance is wholly inadequate to perform the function which the draftsman of the conveyance seems to have contemplated that it would. It is a very dangerous practice for a conveyancer to frame a conveyance with parcels which are not adequately described. Perhaps the most important feature of all the features of a conveyance is to be able to identify the property to which it relates; and, if the draftsman of the conveyance chooses to identify the property solely by reference to a plan, it is of the utmost importance that he should make use of a plan which is on a scale sufficiently large to make it possible to represent the property and its boundaries in precise detail, giving dimensions and any other features which may be necessary to put beyond doubt the subject matter of the conveyance."

Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council [1977] AC 1014; [1976] UKHL 6
21 Oct 1976 HL Lord Wilberforce, Viscount Dilhorne, Lord Diplock, Lord Salmon, Lord Russell of Killowen	Land, Judicial Review	Casemap 1 Citers
	An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.' A mere factual mistake has become a ground of judicial review, being described as "misunderstanding or ignorance of an established and relevant fact". The House asked what it was for the Secretary of State to be 'satisfied' as to a state of affairs: "This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account."
	[ Bailii ]

Berkley -v- Poulett and others [1976] EWCA Civ 1; [1977] 1 EGLR 86; (1977) 241 EG 911
29 Oct 1976 CA Stamp LJ, Scarman LJ, Goff LJ	Land, Contract	1 Cites
	The court was asked whether some pictures, prints, a statue, and a sundial, each affixed to the land, had become fixtures or had remained chattels. If fixtures, they passed on the conveyance of the land; if chattels they did not. Held: The modern answer to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation. Here, the paintings had been hung for their better enjoyment, and were not fixtures. Neither the statue nor the sundial were physically attached to the realty, and remained chattels. Lord Justice Scarman said: "If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty. "
	Link[s] omitted

Twentieth Century Banking Corporation Ltd v Wilkinson [1977] Ch 99
1977 Templeman J	Land, Limitation	Casemap 1 Citers
	Property was charged in 1973. The principal was be repayable in 1988 with interest payable. There was no provision by which a default made the power of sale exercisable or the advance repayable. When the borrower defaulted the mortgagee had to apply to court for an order for sale in lieu of foreclosure under section 91(2) of the 1925 Act. Held: The order was made. As to the proceeds: "The plaintiffs will of course be entitled, having paid the expenses of the sale, to discharge all arrears of interest down to date; that will leave a principal sum outstanding, the principal sum of £19,000. There will remain in the hands of the plaintiffs, after discharging arrears of interest, and if the sale produces only the £18,000 expected, a sum of, say, £15,000. Now, in my mind, as the plaintiffs will have that sum of £15,000 in hand they will be unable to say in future as regards that £15,000 "Payment is not yet due, therefore we can invest it. Interest at the high rate secured by the mortgage will continue to accrue, and we will give credit for the interest produced by investing the money at a rate inevitably less than the mortgage rate." It seems to me that either as a necessary consequence, or as a matter of a condition which I can impose, the plaintiffs must treat any money which is in hand after payment of expenses and interest down to date as being in satisfaction pro tanto of the principal secured by the mortgage, and of all future interest on the principal so satisfied. That seems to me to be fair to both parties and to produce an equitable result."
	Law of Property Act 1925 91(2)

Shaw -v- Applegate [1977] 1 WLR 970
1977 CA Buckley LJ, Goff LJ	Land	Casemap 1 Cites
	There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay. Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant. Buckley LJ said: "The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it." As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right — as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant — acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.”

Britford Common, In re [1977] 1 WLR 39; [1977] 1 All ER 532
1977	Land	Casemap 1 Citers

Yateley Common, Hampshire, In re [1977] 1 All ER 505; [1977] 1 WLR 840
1977	Land	Casemap 1 Citers

Dunton -v- Dover District Council [1977] QB 87
1977 Griffiths J	Land, Nuisance	Casemap 1 Citers
	References to decibels in actions for noise nusance, are not helpful unless compared with everyday sounds to which others can all relate.

Western Bank Ltd -v- Schindler [1977] Ch 1
1977 Lord Justice Scarman, Lord Justice Buckley, Lord Justice Goff	Land, Constitutional	Casemap 1 Citers
	The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could exercise the powers conferred by section 36(2) of the Act in a case where no sums being due under the mortgage and there being no default. Held: The Court found it possible to construe section 36 of the Act of 1970 in such a way as to avoid what the court perceived would be an obvious lacuna if the words were given a literal meaning. The section in its terms was enacted in order to deal with problem which had arisen following Caunt; and which had been the subject of examination and recommendation by the Payne Committee. However an insertion by a judge must not be too big, or too much at variance with the language used by the legislature. Lord Justice Buckley: “If sub-s (1) [of section 36] is read literally, the conditional clause introduced by the words ‘if it appears to the court’ (which I shall refer to as ‘the conditional clause’) appears to restrict the operation of the section to cases in which some sum is due or some default has taken place and remains unremedied when the application comes before the court. This, however, seems to me to lead to a ridiculous result.” The words of the section being unfair and irrational, the court “must therefore investigate whether the section is capable of some other construction” and “Section 36 is an enabling section which empowers the court to inhibit the mortgagee’s right to take possession. It confers a discretionary power on the court to achieve this result. It is, in my judgment, impossible to spell out of it a positive abrogation of an important property right, and, moreover, an abrogation of it only in particular circumstances.” Lord Justice Scarman saw three ways forward: “The first is to treat the section as having a ‘casus omissus’ which only Parliament can fill. The second . . . is to treat the section as excluding the common law right to possession from mortgages of dwelling houses. The third is to treat the section as giving the court a power to delay making an order in all cases where, upon whatever ground, a mortgagee is seeking possession of a mortgaged dwelling house.” and “Judicial legislation is not an option open to an English judge. Our courts are not required, as are, for instance, the Swiss courts (see the Swiss Civil Code, arts 1 and 2), to declare and insert into legislation rules which the judge would have put there had he been the legislator. But our courts do have the duty of giving effect to the intention of Parliament, if it be possible, even though the process require a strained construction of the language used or the insertion of some words in order to do so; see Luke v Inland Revenue Commissioners [1963] AC 557, per Lord Reid at p.577. The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw. Suffice it to say that before our courts can imply words into an Act the statutory intention must be plain and the insertion not too big, or too much at variance with the language in fact used by the legislature. The courts will strain against having to take the first of the three courses I mentioned; that is to say, leaving unfulfilled the ‘casus omissus’. In the case of this section, is there an acceptable reading which would enable us to give effect to Parliament’s intention within the principle which I think governs the problem? It would be going too far, in my judgment, to adopt the second course. It would, indeed, be judicial legislation to read a section conferring discretionary powers on the court as abrogating a common law right. I am not prepared to go that far in an attempt to make sense. If one had to go that far, then it would be for the legislature, not the courts, to take the step.” Lord Justice Goff: Section 36 could not be held, by a side wind, to have abrogated the mortgagee’s proprietary right to take possession: “This would not, I think, be applying the principle of liberal construction to avoid absurdity stated in Luke v Inland Revenue Commissioners [1963] AC 577, but disregarding the statute or overriding it, which as Ungoed-Thomas J. pointed out in In re Maryon-Wilson’s Will Trusts [1968] Ch 268, 282, and in my judgment rightly pointed out, is what the court is not allowed to do.” There were only two courses open to the court: to construe the section as conferring a discretion in all cases; or to construe the section literally and face whatever anomalies or absurdities that produced. He preferred the latter; on the ground that he could not see how any sensible effect could be given to the powers in subsection (2) if there was nothing to be done by the mortgagor which an adjournment, stay, suspension or postponement would enable to be done within a time which the court was required to decide was a reasonable time.
	Administration of Justice Act 1970 36

Powell -v- McFarlane (1977) 38 P&CR 452
1977 ChD Slade J	Land, Limitation	1 Citers
	A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner. Held: Slade J said: "In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to the persons who can establish a title as claiming through the paper owner. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')." and "Factual possession signifies an appropriate degree of physical control. It must be a single [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot be both in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed . . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so." and "The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with a right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner." Slade J said: "In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intention sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him." and "What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." and "Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession."
	Limitation Act 1980

Buckley -v- Lane Herman and Co [1977] CLY 3143
1977	Land, Professional Negligence, Legal Professions
	A solicitor instructed to exchange contracts on a related sale and purchase must achieve simultaneous exchange. If he failed to do so he will be liable in negligence to the client for any losses.

Tito -v- Waddell (No 2); Tito -v-Attorney General [1977] Ch 106; [1977] 3 All ER 129; [1977] 3 WLR 972
1977 ChD Megarry VC	Land, Equity, Constitutional	Casemap 1 Cites 1 Citers
	Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees "But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: "Will a sale of trust property by the trustee to his wife be set aside?", nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee's wife from whom he has been living separate and in enmity for a dozen years." The issue arose, in relation to "the 1931 transaction", as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: "In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government."
	Crown Proceedings Act 1947 40(2)(b)

Chewton Common, In re [1977] 3 All ER 509; [1977] 1 WLR 1242
1977	Land	Casemap 1 Citers

Jelson Ltd -v- Blaby District Council [1977] 1 WLR 1020; (1978) 1 All ER 548
1977 CA	Land	Casemap 1 Citers
	A strip of land had been originally reserved for a road, and was subsequently sold to the council under a purchase notice. A claim for compensation was made. On appeal the Minister issued a nil certificate on the basis that the correct time at which to consider whether planning permission might reasonably have been expected to be granted was the date of the deemed notice to treat and at that time, after the land on either side had been developed, the land was incapable of development. Held. The Minister was correct. Under the judicial version of the rule permission could be assumed for residential development.

Red House Farms (Thorndon) Ltd -v- Catchpole [1977] 1 EGLR 125
1977 CA Cairns LJ	Land	Casemap 1 Citers
	Cairns LJ said: "The authorities make it clear that what constitutes possession of any particular piece of land must depend upon the nature of the land and what it is capable of use for: see, for example, Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, at p 641. I am quite satisfied that between 1945 and 1964 the only profitable use of this land was for shooting. Our attention was drawn by Mr Cullen, on behalf of the defendant, to the Privy Council case of Cadija Umma & Anr v S Don Manis Appu [1939] AC 136, where, as appears at p 140, cutting the grass was treated as possession in relation to the particular piece of land. So here I think that the learned judge was quite right to treat the shooting activity as constituting possession."

Williams -v- Burlington Investments [1977] SJ 121
1977	Equity, Land	Casemap 1 Citers

Berkely -v- Poulett [1977] 1 EGLR 86; [1977] 261 EG 911
1977 CA Stamp LJ, Scarman LJ	Land, Contract	Casemap 1 Citers
	The court discussed the duties of a vendor to the property between exchange and completion: "These duties and rights [of a purchaser] arise from the contract of sale and it is because of their existence that the vendor is said to be a constructive trustee, or a trustee sub modo, of the estate for the purchaser from the time when the contract is constituted. But to say that it is the duty of the vendor as trustee for the purchaser to care for the property is to put the cart before the horse and may lead you into error. He is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. That this is so is sufficiently illustrated by the fact that prima facie the vendor is until the date fixed for the completion entitled to receive and retain the rents and profits and that as from that date the purchaser is bound to pay interest. And you may search the Trustee Act 1925 without obtaining much that is relevant to the relationship of vendor and purchaser. Thus, although the vendor because of his duties to the purchaser is called a trustee, it is wrong to argue that because he is so called he has all the duties of or holds the land on a trust which has all the incidents associated with the relationship of a trustee and his cestui que trust." Scarman LJ discussed what were the two tests for whether an item became affixed to the land: "(1) the method and degree of annexation; and (2) the object and purpose of the annexation. " and “In other words, a degree of annexation which in earlier time the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, not withstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one. The relationship of the two tests to each other requires consideration. If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless, an object, resting on the ground by its own weight alone, can be a fixture, if it is so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima Facie, however, an object resting on the ground by its own weight alone is not a fixture: see Megarry and Wade , p 716. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture, if, for example, the purpose of its affixing be that “of creating a beautiful room as a whole” (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619. An in the famous instance of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty.” . . . and the tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. It must be remembered that in many cases the item being considered may be one that has been bought by the mortgagor on hire purchase, where the ownership of the item remains in the supplier until the instalments have been paid. Holding such items to be fixtures simply because they are housed in a fitted cupboard and linked to the building by an electric cable, and, in cases of washing machines by the necessary plumbing would cause difficulties and such findings should only be made where the intent to effect a permanent improvement in the building is incontrovertible. The type of person who instals or attaches the item to the land can be a further indicator. Thus items installed by a builder, eg the wall tiles will probably be fixtures, whereas items installed by eg a carpet contractor or curtain supplier or by the occupier of the building himself or herself may well not be. The judge's directions to himself on the law were these: that the primary test whether an item is or is not a fixture is the degree of annexation of the item to the building. He cited Megarry and Wade on Real Property at page 732: “An article is prima facie a fixture if it has some substantial connection with the land or a building on it” and “A chattel attached to the land or a building on it, in some substantial manner, eg by nails or screws, were prima facie a fixture even if it would not be difficult to remove it. Examples in this category are a fireplace, panelling, wainscot and a conservatory on a brick foundation.”

Derby & Co Ltd -v- ITC Pension Trust Ltd [1977] 2 All ER 890
1977 Oliver J	Contract, Land	Casemap 1 Citers
	The court considered a party resisting a claim to an estoppel: " ….. where parties negotiate on a basis "subject to contract" everybody knows there is a risk that, at the end of the day, either side may back out of negotiations, up to the point where leases are exchanged."

Gray -v- Wykeham Martin & Goode Unreported, 17 January 1977
17 Jan 1977	Land, Limitation	Casemap 1 Citers

Bernstein of Leigh (Baron) -v- Skyview and General Ltd (Summary) [1977] EWHC QB 1; [1977] 3 WLR 136; [1977] 241 EG 917; [1977] 2 All ER 902; [1978] QB 479
9 Feb 1977 QBD Griffiths J	Intellectual Property, Land	Casemap 1 Cites 1 Citers
	The claimant complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff relied on the maxim: Cujus est solum ejus est usque ad coelum et ad inferos (whose is the soil his is also that which is above and below it). Held: The claim failed. If the latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. The problem in this case was to balance the rights of a landowner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offered in the use of airspace. The best way to strike that balance in our present society was to restrict the rights of an owner in the airspace above his land to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height he had no greater rights in the airspace than any other member of the public.
	Civil Aviation Act 1949 40
	Link[s] omitted

Moreton Cullimore -v- Routledge Unreported, February 11 1977
11 Feb 1977 CA Lord Denning MR	Land	Casemap 1 Citers
	Where a property being conveyed was said to be more particularly described or delineated on a plan, the verbal description prevailed but this was only because the court treated the combined expressions as meaning no more than "for the purpose of identification only". Lord Denning MR: "In this case we have the words 'for the purpose of identification only'. Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof."

Miller -v- Jackson [1977] 1 QB 966; [1977] 3 All ER 338; [1977] EWCA Civ 6
6 Apr 1977 CA Geoffrey Lane, Cumming Bruce LJJ, Denning MR	Land, Nuisance	Casemap 1 Citers
	The activities of a long established cricket club were adjudged to be a nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of cricket balls landing in their gardens. The defendant appealed. Held: A factor to be taken into account was that the plaintiffs had purchased their properties knowing of the club. That could constitute the exceptional circumstances allowing the court to use its discretion not to award an injunction. Lord Denning MR, dissenting: "In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . . [h]e has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built . . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket." If the injunction were upheld, cricket would cease in the village and "the young men will turn to other things…" The public interest in the playing of cricket should prevail over the individual interests of the householders, and, instead of the injunction, he awarded £400 for past and future inconvenience.
	Chancery Amendment Act 1858 (Lord Cairns' Act)
	Link[s] omitted

G & K Ladenbau (UK) Ltd -v- Crawley & De Reya [1978] 1 WLR 266; [1977] 2 All ER 118
25 Apr 1977 QBD Mocatta J	Land, Professional Negligence, Damages	Casemap 1 Cites
	The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve. Held: In the light of the defendants' knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.
	Commons Registration Act 1965 10
	Link[s] omitted

Sovmots Investments Ltd -v- Secretary of State for the Environment; Brompton Securities Limited -v- Secretary of State for the Environment and others [1979] AC 144; [1977] UKHL 3; [1977] 2 All ER 385; [1977] 2 WLR 951; [1977] QB 411
28 Apr 1977 HL Lord Wilberforce, Lord Edmund-Davies, Lord Keith of Kinkel	Land, Damages	Casemap 1 Cites 1 Citers
	The section in the 1881 Act does not apply to a quasi-easement because "When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist." and "He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment." Lord Edmund-Davies said as to Wheeldon v Burrows: "The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that "The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property…" But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent." Lord Keith of Kinkel said that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had "no place in compulsory purchase". Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order: "To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer." and ". . . section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist
	Conveyancing Act 1881 6 - Law of Property Act 1925 62
	Link[s] omitted

Smith -v- UMB Chrysler [1977] UKHL 7; 1978 SLT 21; [1978] 1 All ER 18; 8 BLR 1; [1978] 1 WLR 165; 1978 SC (HL) 1
9 Nov 1977 HL	Scotland, Land, Contract
	Link[s] omitted

Wigginton & Milner Ltd -v- Winster Engineering Ltd [1978] 1 WLR 1462
7 Dec 1977 CA Buckley and Bridge LJJ and Sir David Cairns, Megarry J	Land	Casemap 1 Cites 1 Citers
	Various conveyances had dealt with land. By mistake, certain land was excluded from the plans. Held: The plan had been included 'for identification purposes only', but that did not mean that the plan was to be disregarded. It could not overrule the description in the parcels, but the indications it provided were properly used to establish what land had been intended to be conveyed. In this case the land and parcels description was sufficient to say that the land had not been intended to be included in the relevant conveyance: "providing a plan did not conflict with explicit descriptions in the parcels, the fact that it was said to be 'for identification only' did not exclude it from consideration in order to solve problems left undecided by the explicit descriptions in the parcels." In fixing a boundary line, the first recourse is to the description of the property in the relevant conveyance. If the relevant conveyance, in normal circumstances the parcels clause, contains a verbal description of the property in question, sufficient to enable the disputed line to be ascertained; there is no need to refer to the conveyance plan. If, however, no definite conclusion can be reached from the parts or the whole of the description, the recitals and other parts of the deed can be considered for expressions of the intention of the parties. If these cannot be found, extrinsic evidence can, in some few cases, be used, for example to show to what property the description applies. Buckley LJ explained Neilson v Poole: "There, Brooklands South is a specific description of a piece of land, the boundaries of which could be established by extrinsic evidence. If the plan was not to control the parcels, the plan could not have any relation to the boundaries of what was known as Brooklands South, those being matters which were implicit in the explicit description of the parcel concerned as 'what was known as Brooklands South'; and the observation by Megarry J that words such as 'for the purposes of identification only seemed to him to confine the use of the plan to ascertaining where the land is situated, was I think an obiter observation on his part and not part of his decision at all, for he was not concerned merely with that phrase but with its use in conjunction with 'more particularly delineated'."
	Link[s] omitted

Cole -v- Rose [1978] 3 All ER 1121
1978 Mervyn Davies QC J	Contract, Land	Casemap 1 Cites 1 Citers
	The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price. Held. The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies said: "With those observations in mind, it seems that one can contemplate an order under s 49(2) only if there are some special circumstances in the particular matter, being circumstances that suggest that it is perhaps unfair or inequitable that the purchaser should lose his deposit. I cannot see any special circumstances in the present case. It is a straightforward case of a contract for sale that was not completed because the purchaser could not find the purchase price in time."
	Law of Property act 1925 49(2)

Laing Homes Ltd -v- Eastleigh Borough Council (1978) 250 EG
1978 LT E C Strathon FRICS	Land, Damages	Casemap
	The tribunal considered the compulsory acquisition of land for the construction of a spine road through a housing development, where rule (3) of the Rules had been considered in the context of whether the land held the key to its completion. Held: In so far as the reference land attracted a special value as the key to the completion of the spine road, rule (3) in the section would exclude such special value. Within the terms of rule (3), the reference land possessed the quality of special suitability for building the spine road. The market for such a purpose would be limited. In this case, the special suitability of the reference land for the purpose of building the spine road should not be taken into account because for that purpose there is no market apart from the requirements of Eastleigh or the special needs of Mill Lodge on behalf of Eastleigh"
	Land Compensation Act 1961 5

Hesperides Hotels Ltd -v- Aegean Turkish Holidays Ltd, Muftizahde [1979] AC 508; [1978] 2 All ER 1168; [1978] 3 WLR 378; 142 JP 541; 122 Sol Jo 507
1978 HL Lord Wilberforce	Jurisdiction, Land	Casemap 1 Cites 1 Citers
	No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the law.

Swordheath Properties Ltd -v- Floyd [1978] 1 WLR 550; [1978] 1 All ER 721
1978	Land, Damages	Casemap 1 Cites 1 Citers
	The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the premises.

In re Niyazi's Will Trusts [1978] 1 WLR 910
1978	Land	Casemap 1 Citers
	Terms in older documents could be re-interpreted to accord with current useage.

Ferguson -v- Tennant 1978 SC (HL) 19
1978 HL Lord Fraser of Tullybelton, Lord Grieve	Scotland, Land	Casemap 1 Citers
	Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is "proper to the dominant" - that, is, that the number that the proprietor of the dominant tenement can support from his own resources.

In re Turnworth Down Dorset [1978] 1 Ch 251
1978 Oliver J	Land	Casemap 1 Citers
	The only effect of non-registration of rights of common was to deprive the inhabitants of the benefit of the conclusive presumption furnished by section 10 of the Act and to require them to prove the existence of the rights in question. The land was not deemed to be a village green but did not exclude the possibility that it actually was
	Commons Registration Act 1965 10

Daulia Ltd -v- Four Millbank Nominees Ltd [1978] 1 Ch 231
1978	Land, Contract	Casemap 1 Citers
	In a contract the Defendants promised certain properties to whoever first arrived with the requisite draft contract and bankers drafts. The Plaintiffs did. Held: They failed in their claim. It involved a unilateral contract and the Defendants' oral promises was expressly made subject to contract, but the Court decided the dispute by reference to the central consideration that the contract concerned the disposition of an interest in land to which section 40 of the Law of Property Act applied.
	Law of Property Act 1925 40

Laurence -v- Lexcourt Holdings Ltd [1978] 1 WLR 1128; [1978] 2 All ER 810
1978 ChD Dillon QC	Contract, Land	Casemap 1 Citers
	The purchasers sought rescission of a 15 year lease of business premises. Unknown to either party, the planning permission restricted their use as offices to a period of no more than two years. Held: There had been a misrepresentation by the lessors which entitled the lessees to rescind the agreement. Dealing with an alternative plea of common mistake, the court followed Solle v Butcher and Grist v Bailey in holding that the lease could be rescinded on the ground that it had been concluded under a mistake which was fundamental. The defendant's failure to make the search which would have disclosed the mistake did not disentitle them from relying on their mistake.

Appleby -v- Ireland [1978] RVR 156
1978	Land, Damages	Casemap 1 Citers
	"the multiplier that has come to be regarded as fair and reasonable as between a dispossessed trader and an acquiring authority is 3YP of ascertained net profit, assuming the business to have been trading at a steady level of profitability and from its own freehold premises".

Allen and Another -v- Greenwood and Another
16 Oct 1978 CA Buckley, Orr and Goff L.JJ	Land, Limitation	1 Cites
	cw Easement - Prescription - Right to light - Greenhouse - Claim for sufficient light to cultivate plants - Whether specially high amount of light - Whether right to extraordinary amount of light capable of being acquired by prescription - Whether right is to light for illumination only or capable of including sun's warmth The claimants greenhouse had been in the same position for over 20 years. They complained about work on the defendant neighbour's land which interfered with the rights of light they had acquired. Held: The Act set the standard for the easement acquired by prescription as the extent required for the use which had been made. The greenhouse required extra light, and that was the extent of the easement acquired.
	Prescription Act 1832 3
	Link[s] omitted

Pascoe -v- Turner [1979] 1 WLR 431; [1978] EWCA Civ 2; [1979] 2 All ER 945
1 Dec 1978 CA Ore LJ, Lawton LJ, Cumming Brice LJ	Equity, Land	Casemap 1 Citers
	The defendant had been assured by the plaintiff that "the house is yours and everything in it." In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of the defendant's savings. She claimed a constructive trust of the entire beneficial interest. Held: The principle claim failed, but an equity had nevertheless been established in the form of a proprietary estoppel. The court went on to consider the extent of the relief that should be granted. The essential choice was between a licence for life or a conveyance of the freehold. The court came to the conclusion that the plaintiff intended to pursue his purpose of evicting the defendant "by any legal means at his disposal with a ruthless disregard of the obligations binding on conscience." In the light of that conclusion, the court concluded that the only way of assuring the defendant security in her home was by ordering the transfer of the freehold.
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Melwood Units Pty Ltd v- Commissioner of Main Roads [1979] AC 426
1979 PC Lord Russell of Killowen	Land, Commonwealth, Damages	Casemap 1 Citers
	The board considered the compensation payable on the compulsory purchase of land for the purpose of an expressway between Brisbane and Combabah. At the date of compulsory acquisition the project had reached the stage where it was reasonable to assume that a strip of the appellant’s land would be acquired for the expressway. The Land Appeal Court assessed compensation on the basis that the value of the land was to be arrived at by adjusting the price paid by the appellant for it in the light of the proposal. The Full Court of the Supreme Court of Queensland took the view that the question of the status and effect of the expressway proposal raised issues of fact upon the valuation but no question of law. Held. A failure to properly apply the Point Gourde principle did disclose a question of law. The Pointe Gourde principle is part of the "common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition." The principle operates both with respect to the consequential enhancement and adverse effect of a scheme for public works upon resumed land. A resuming authority cannot by its project of resumption destroy the potential for the highest and best use of the land and then resume land severing it from part of the previous holding, on the basis that the destroyed potential never existed. The principle remains applicable where planning permission is refused for development for the highest and best use of the whole of the land, because of the apprehended use of part of the land for a public purpose. Lord Russell of Killowen said: "Under the principle in Point (sic) Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] A.C. 565 the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships' opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the [land to be resumed] and then resume and sever on the basis that the destroyed potential had never existed."

Dicconson Holdings Ltd -v- St Helens Metropolitan Borough (1979) 249 EG 1075
1979	Land	Casemap 1 Citers

Universal Corporation -v- Five Ways Properties Limited [1979] All ER 552
1979 CA Buckley LJ, Eveleigh LJ	Contract, Land	Casemap 1 Cites 1 Citers
	The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds. There was no attempt to exclude section 49(2) and the purchaser applied under that section for the repayment of the deposit. Held: The application for a strike out failed. The court considered the jurisdiction to order the return of a deposit paid under a contract for the sale of land. Buckley LJ said: "a discretion which must, of course, be exercised judicially, and with regard to all relevant considerations, including the very important consideration of the terms of the contract into which the parties have chosen to enter . . . the jurisdiction is one to be exercised where the justice of case requires. In this connection I take the word "justice" to be used in a wide sense, indicating that repayment must be ordered in any circumstances which make this the fairest course between the two parties." and "I prefer to the judge's approach to the construction of this subsection the approach of Megarry V-C who has expressed the view that the jurisdiction is one to be exercised where the justice of the case requires: see what he said in Schindler v Pigault. In this connection I take the word 'justice' to be used in a wide sense, indicating that repayment must be ordered in any circumstances which makes this the fairest course between the two parties. It is, I think, relevant in the present case that condition 22 of the national conditions does not confer on the vendor an unqualified right to forfeit a deposit. The words in para 3 of the conditions are ". . the purchaser's deposit may be forfeited (unless the court otherwise directs)". This formula may well have been adopted with the terms of section 49(2) in mind. However that may be, in my view the language makes clear that the vendor does not have an absolute right to retain the deposit paid by a purchaser who is in default under the condition." Eveleigh LJ said that the limitation applied by the judge was not "plain and obvious".
	Law of Property Act 1925 49(2)

Leonidis -v- Thames Water Authority (1979) 251 EG 669
1979 Parker J	Land, Damages	Casemap 1 Citers
	The court considered the liability of an authority executing works under authority of the Act for damages for disturbance: “if a private individual had done what the defendants did in the present case the claimant would have had a good cause of action ... .”.
	Public Health Act 1936

Regina -v- Surrey County Council, ex parte Send Parish Council (1979) 40 P&CR 390
1979	Land	Casemap 1 Citers
	Under the section, the highway authority has duties when informed by a parish council that a highway has been unlawfully stopped. The highway authority must, "unless satisfied that the representations are incorrect", take proper proceedings accordingly. It is not for the court to decide whether there is a public footpath or not: the question is whether there is sufficiently strong evidence on which the highway authority could reasonably have decided that a public footpath existed.
	Highways Act 1959

Singh -v- Nazeer [1979] Ch 474
1979 Sir Robert Megarry VC	Land, Litigation Practice	Casemap 1 Citers
	Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it .

Suffolk County Council -v- Mason [1979] AC 705; [1979] 2 All ER 369
1979 HL Lord Diplock	Land, Planning	Casemap 1 Citers
	The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: "The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and published. They provide an elaborate procedure for enabling representations or objections to be made to the surveying authority (with a right of appeal to the minister) as to anything contained in or omitted from the draft map. Such representations and objections can be made not only by persons interested in the land, but also by members of the public, so that a person who alleges that a right of way as shown on the draft map ought to be upgraded from "footpath" to "bridleway," or from "bridleway" to "road used as a public path," has an opportunity at this stage of adducing evidence to make good his claim. The next step in the procedure is the preparation by the surveying authority of a provisional map incorporating any modifications to the draft which, as a result of representations, have been accepted by the surveying authority or upheld by the minister on appeal. The procedure for verifying the accuracy of what is eventually to be shown on the definitive map does not stop here; though the remaining step is not likely to bring to light the existence of more extensive rights of way than are shown on the provisional map. Its presence may, however, supply an explanation of why a reasonable allegation that a right of way of a particular kind exists is treated as sufficient justification for entering it on the draft map. The owner, lessee, or occupier of the soil over which any right of way shown on the provisional map passes has the right under section 31 to apply to quarter sessions (now the Crown Court) for declarations inter alia that a right of way shown on the provisional map either does not exist or is there shown as being more extensive than it really is; and, if he does so, the onus of proving the existence of the disputed right lies on the county council. But failing any proceedings in the Crown Court under this section, an entry of a right of way that originally appeared on the draft map on no firmer basis than that the surveying authority was of opinion that an allegation that it existed was a reasonable one is carried through to the definitive map unaltered." and "The way in which ramblers . . are to be benefited is by providing them with an easy and conclusive way of proving their rights to walk . . on particular routes". Lord Diplock also said: "At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public - a rule of law that is the origin of the brocard "once a highway, always a highway."
	National Parks and Access to the Countryside Act 1949

Jackson -v- Bishop (1979) 48 P &CR 57
1979 CA Bridge LJ	Land, Contract	Casemap 1 Citers
	Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground: "It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result."

Sharpe Re, Ex parte Trustee of the Bankrupt -v- Sharpe [1980] 1 WLR 219; (1980) 39 P & CR 459; [1980] 1 All ER 190
30 Jul 1979 ChD Browne-Wilkinson J	Insolvency, Land, Trusts	1 Citers
	A couple lived in a maisonette with their aunt. The property had been purchased in the name of the husband but the aunt had contributed a partial sum towards the purchase price, while the rest of the amount was raised by way of a mortgage. The couple subsequently went bankrupt and the aunt claimed to be entitled to a proprietary interest in the maisonette by means of a resulting trust presumed from her contribution to the purchase price. Held: The money had in fact been advanced by way of a loan with the intention that it be repaid. She was, therefore, not entitled to any share of the equitable interest of the property. Monies advanced by way of loan are not, on this basis alone to be treated as contributions to the purchase price of property so that the lender acquires a beneficial interest in that property as a result. A constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust. Browne-Wilkinson J said: "I will first consider whether she has established an equitable interest in the property and its proceeds of sale by virtue of having provided the bulk of the purchase money, that is to say, has she an interest under a resulting trust? I have no doubt that she has not established any such interest. It is clear that the parties never worked out in any detail what was the legal relationship between them, but no one has suggested that Mrs. Johnson advanced the money to the debtor otherwise than by way of gift or loan. In his public examination, the debtor suggested that the monies were a gift, but I find as a fact that the monies were advanced by way of loan."

MEPC Ltd -v- Christian-Edwards [1981] AC 205; [1979] 3 All ER 752
8 Nov 1979 HL Lord Russell of Killowen, Lord Wilberforce, Viscount Dilhorne, Lord Salmon, Lord keith of Kinkel	Land	Casemap 1 Citers
	The testator had granted an option to his son, and in his will directed that if he did not exercise it, he should be granted a lease. A later deed then recited that the will had been varied by an agreement. That deed was referred to indirectly many years later, and the purchaser objected that the unfulfilled contract was a flaw in the title. Held: The House was asked whether the seller had deduced a title good enough to be accepted. Lord Russell of Killowen said that a purchaser is entitled to be satisfied that: "that his vendor is seized of the estate which he is purporting to sell, in this case the fee simple, and that he is in a position, without the possibility of dispute or litigation, to pass that fee simple to the purchaser."

Domb and Another -v- Isoz [1980] 2 WLR 565; [1980] Ch 548; [1980] 1 All ER 942
29 Nov 1979 CA Buckley, Bridge and Templeman LJJ	Legal Professions, Contract, Land, Agency	Casemap 1 Cites
	In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor's solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor's solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract. Held: A contract had been created. The solicitor had his client's authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance. Buckley LJ: "the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party's solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange." BRIDGE LJ: "A solicitor acting for a vendor or a purchaser who holds his client's signed part of the contract has his client's ostensible authority to effect exchange of contracts." Templeman LJ: "In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law."
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