The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not an easement but only a personal licence. It existed not for the accommodation and better enjoyment of the land but more the land was required to exploit the right. Bramwell B said that ‘it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right.’
Pollock CB said: ‘I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v Smith (1850) 10 CB 164 expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee.’
Bramwell B, Pollock CB
[1863] EWHC Exch J26, [1863] EngR 493, (1863) 2 H and C 121, (1863) 159 ER 51
Bailii, Commonlii
England and Wales
Cited by:
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.189971