Category: Land

Parochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank: ChD 5 Feb 2007

The defendants, had been found liable as owners of land which made them lay rectors of the local parish church, were called upon to contribute to the costs of repair of the church. They argued that the duty extended only to keeping it wind and watertight.
Held: The duty was a duty to keep the church in proper repair.

Judges:

Lewison J

Citations:

Times 21-Feb-2007

Statutes:

Chancel Repairs Act 1932 2(3)

Jurisdiction:

England and Wales

Citing:

Cited – Wise v Metcalfe 1829
The responsibility of a lay rector to his church was to keep it into substantial repair but without ornament. . .
Cited – Pell v Addison 1860
Extent of lay rector’s duty of repair of the parish church. . .
See Also – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 May 2022; Ref: scu.253500

Peskett v Portsmouth City Council: CA 25 Jun 2002

The defendant had land across which a path ran. It had a right angled turn, and users cutting across wore away the land causing a dip, where the claimant tripped and fell. She claimed damages. The council accepted that the short cut was regularly taken, but said there had been no previous incidents or complaints, and appealed a finding of 50% liability for contributory negligence.
Held: The judge had been entitled to apportion liability as he had. The council had not been free to assume users would always succeed in avoiding the dangers. All such cases fall to be determined on their own facts.

Judges:

Lords Justice Pill and Potter

Citations:

Gazette 04-Jul-2002, [2002] EWCA Civ 1175

Links:

Bailii

Statutes:

Occupiers Liabilities Acts 1957, Occupiers Liabilities Acts 1984

Jurisdiction:

England and Wales

Land, Personal Injury

Updated: 19 May 2022; Ref: scu.217313

Hector v Lyons: 1988

The appellant contracted to buy a house but used his under-aged son’s name. He sought specific performance when the vendor failed to complete.
Held: Since he was neither the purchaser nor the purchaser’s agent, specific performance was refused. In unilateral mistake case goods are sold by V, to P, believing P to be X. P may fraudulently represent that he is X. In a face to face sale, the fact that V mistakes the identity of X does not render the contract void for mistake. It is a unilateral mistake as to a quality of the purchaser; only in cases where the identity of the purchaser is of direct and important materiality in inducing the vendor to enter into the contract is a mistake of that kind capable of avoiding the contract. Those principles have no application where the contract is wholly in writing. The identity of the parties is established by the names put in the contract. Once there, the court’s only task is to identify who they are. ‘In the present case the deputy judge has found as a fact that the party named in the written contract was Mr. Hector junior. It follows, in my judgment, that in the absence of rectification, which has not been claimed, or Mr. Cogley’s alternative argument based on agency the only person who can enforce that contract is the party to it, namely Mr. Hector junior.’

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

(1988) 58 PandCR 156

Jurisdiction:

England and Wales

Citing:

Cited – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – King’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .

Cited by:

Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 19 May 2022; Ref: scu.188421

Conservators of the River Thames v Smeed Dean and Co: CA 1897

The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by a Navigation Authority and in all likelihood a nuisance. Chitty LJ said: ‘The Conservators are a statutory body brought into existence for the purpose of preserving, improving and maintaining the navigation of the River Thames . . but the powers granted to them by the 1894 Act are all subservient thereto and except for these purposes no powers are granted to them at all.’ The court discussed the meaning of the word ‘bed’ as to the bed of the river. ‘bed’ in the context of a tidal and non-tidal river meant: ‘. . the soil or ground which is covered by water in the ordinary course of nature – the ground over which the water flows or on which it lies.’

Judges:

Chitty LJ, Smith LJ

Citations:

[1897] 2 QB 334

Statutes:

Thames Conservancy Act 1894

Jurisdiction:

England and Wales

Cited by:

Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Cited – Jones, Regina (on the Application Of) v The Environment Agency Admn 13-Jul-2005
The Environment Agency sought to persuade the claimants that they must pay for licences for their moorings for craft on the Thames. The boat owners said that they had placed poles in the banks for many years, and that because the moorings were not . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 19 May 2022; Ref: scu.187537

Margaret Ribee v Michael Norrie: CA 22 Nov 2000

An owner of a property let to tenants was liable to a neighbour injured after a fire in the property, where the fire arose in circumstances which the owner had power, through the making of rules to prevent. The damage arose from a tenant smoking in a communal area. The test was whether the owner had the right to debar such behaviour. Since he did, he must be treated as the occupier of the land for this purpose and was therefore liable to the neighbour.

Citations:

Times 22-Nov-2000, [2000] EWCA Civ 275, [2001] L and TR 23

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Land, Personal Injury

Updated: 19 May 2022; Ref: scu.88772

Regina v Somerset County Council Ex Parte Fewings and Others: CA 22 Mar 1995

The local authority had accepted the argument that stag hunting was cruel and had banned it from the land it owned in the Quantocks. The ban was challenged.
Held: The ban was unlawful. The decision had been reached on moral, and not on administrative grounds. The purposes it sought to implement were not within the purposes for which the land was held, and so was invalid. As to section 120: ‘At first sight this section has little to do with the present case, since we are not dealing with the acquisition of land but with the management or use of land which the County Council acquired over 70 years ago. But the County Council is a principal council within the statutory definition; we have been referred to no statutory provision or rule of law more closely in point; any other provision, unless more specific, would be bound to require powers to be exercised for the public good; and it seems perhaps reasonable to accept that the purposes for which land may be required are or may often be those to which the land should be applied after acquisition.’ Section 120(1)(b) was the statutory authority for the power of a council to manage its land and accordingly set out the criteria by which the land was to be managed. Sir Thomas Bingham MR emphasised that it was critical to distinguish between the legal position of the private landowner and that of a landowning local authority:- ‘To the famous question asked by the owner of the vineyard (‘Is it not lawful for me to do what I will with mine own? St Matthew, chapter 20 verse 15) the modern answer would be clear: ‘Yes, subject to such regulatory and other constraints as the law imposes’ but if the same question were posed by a local authority the answer would be different. It would be: ‘No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have.’
and ‘The point is often made that unelected, unrepresentative judges have no business to be deciding questions of potentially far reaching social concern which are more properly the preserve of elected representatives at a national or local level….The court has no role whatever as an arbiter between those who condemn hunting as barbaric and cruel and those who support it as a traditional country sport…..This is of course a question on which most people hold views one way or the other. But our personal views are wholly irrelevant to the drier and more technical question which the court is obliged to answer. That is whether the County Council acted lawfully in making the decision it did on the grounds it did.’
Swinton Thomas LJ:- ‘Whereas the provisions of Section 120(1)(b) of the Act of 1972 are entirely apt to a decision to acquire land, they are, in my judgment singularly inapt to decisions taken in relation to management of land, and this causes difficulty in resolving the question that arises on this appeal.’

Judges:

Sir Thomas Bingham MR, Simon Brown LJ

Citations:

Gazette 26-Apr-1995, Times 23-Mar-1995, Independent 22-Mar-1995, [1995] 1 WLR 1037, [1995] EWCA Civ 24, (1995) 7 Admin LR 761, [1995] 3 All ER 20

Links:

Bailii

Statutes:

Local Government Act 1972 120(1)(b), Open Spaces Act 1906 10, Countryside Act 1968 11

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Somerset County Council ex parte Fewings and Others QBD 10-Feb-1994
A Local Authority could include ethical considerations in making a decision to ban hunting over land which it owned if the power which it sought to use was in the Act. . .

Cited by:

Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Regina on the Application of Dart Harbour and Navigation Authority v the Secretary of State for Transport Local Government and the Regions QBD 26-Jun-2003
Captain Wyatt owned land near the harbour and wanted to moor his boat by it. The Harbour authority said he needed a licence. The Harbour authority requested him to move the boat as a danger to navigation. The Captain sought a judicial review of the . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land, Animals

Updated: 19 May 2022; Ref: scu.88074

Regina v Lands Tribunal, Ex Parte Jafton Properties Ltd: COL 31 Jul 2000

After a tribunal application, the applicant submitted his costs for taxation. After the hearing there was further correspondence about the decision, resulting in the applicant formally objecting to the taxation. He suggested that the correspondence after the award meant that taxation had not been concluded. It was held that he was out of time. The taxation award had all the elements necessary to make it final, and the President’s refusal of extension of time was not irrational or unreasonable. The reasons were succinct, but correct.

Judges:

Langley J

Citations:

Gazette 31-Aug-2000, [2000] EWHC Admin 384

Links:

Bailii

Statutes:

Lands Tribunal Rules 1996 (1996 No 1022) 52

Costs, Administrative, Land

Updated: 19 May 2022; Ref: scu.87117

Re Palmer (A Deceased Debtor), Palmer v Palmer: CA 6 Apr 1994

Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. The wife argued that by the doctrine of survivorship the house was already hers. The administrator said that the effect of the order was backdated so as to have severed the joint tenancy before the death, and that therefore the deceased’s interest passed into the administration.
Held: The appeal was allowed. The rule that a judicial act takes effect from the first moment of the day on which it is made is not universal. ‘the time has come to say the fiction should have no place when the true facts are known, at least in cases where the court’s jurisdiction is concerned. . . The respondent’s submission in the present case is that the insolvency administration order which was made on the 17th August 1991 is deemed by paragraph 12 of the 1986 Order (Sch.1 Part II) to take effect for the purposes of the vesting of property in the trustee as if it had been made on 22 November 1990, the date of Mr Palmer’s death. To this statutory fiction, it is submitted, must be added the common law fiction that the Order was made at the earliest moment of that day, and therefore whilst Mr Palmer was alive.’ The submission failed.

Judges:

Balcomve LJ, Evans LJ, Roch LJ

Citations:

Independent 06-Apr-1994, [1994] EWCA Civ 15

Links:

Bailii

Statutes:

Insolvency Act 1986 421

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .
Cited – Williams v Hensman 10-Jun-1861
A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy . .
Cited – Burgess v Rawnsley CA 15-Apr-1975
. .
Cited – Wright v Mills 1859
A judgment was signed when the Court’s offices opened at 11 am but the defendant had died at 9.30 the same morning. The Court held that the judgment was regular, applying the rule that judicial acts, being acts of the Crown, have precedence over . .
Cited – Edwards v Regina CExc 1854
The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court’s judgment added that even if the . .
Cited – Shelley’s case; Wolfe v Shelley 1581
If it is possible to do so, every word in a deed must be given effect. A judgment and the process known as recovery were effective even though the defendant had died in the early morning of the day on which, after his death, the court orders were . .
Cited – Clarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
Cited – Clarke v Bradlaugh CA 1881
The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was . .
Cited – Re Seaford Dec’d CA 1968
A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made. . .
Cited – Tabernacle Permanent Building Society v Knight 1892
The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Land

Updated: 19 May 2022; Ref: scu.85849

Rahman v Sterling Credit Ltd: CA 17 Oct 2000

A lender sought repossession of a property securing a loan from 1998. The borrower sought to assert that the loan was an extortionate credit bargain under the Act. The lender asserted that that claim was out of time.
Held: A claim under a statute was an action upon a specialty, and that accordingly the limitation period applicable was twelve years, and the order was to stand.

Judges:

Simon Brown and Mummery LJJ

Citations:

Times 17-Oct-2000, Gazette 17-Aug-2000, [2000] EWCA Civ 222, [2001] 1 WLR 496

Links:

Bailii

Statutes:

Consumer Credit Act 1974, Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Consumer

Updated: 19 May 2022; Ref: scu.85644

Parochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another: ChD 7 Feb 2000

A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when purchasing land which had been part of the rectorship, and whether or not he was a lay or spiritual rector. Such an imposition may well not be capable of being set aside under the new Act when it comes into force. The law relating to chancel repairs did not involve a deprivation of possessions. The liability to repair the chancel is one of the incidents of ownership of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is an unusual incident not amounting to a charge on the land, not limited to the value of the land and in imposing a personal liability on the owner of the land, but it cannot be distinguished from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title.

Judges:

Ferris J

Citations:

Gazette 28-Apr-2000, Times 30-Mar-2000

Statutes:

Chancel Repairs Act 1932 5, Human Rights Act 1998 5

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Dean and Chapter of Ripon Cathedral ChD 1945
Uthwatt J said: ‘The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts’ . .

Cited by:

Appeal from – Wallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
At first instance – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Ecclesiastical

Updated: 19 May 2022; Ref: scu.84588

Oldham Borough Council v Attorney General: CA 28 Jul 1992

The cy-pres doctrine could be allowed to be applied to allow the sale of land if such an action would remain within the purpose of the original charitable gift.

Judges:

Dillon, Russell, Farquharson LJJ

Citations:

Gazette 28-Oct-1992, [1992] EWCA Civ 21, [1993] Ch 210, [1993] 2 WLR 224, [1993] 2 All ER 432

Links:

Bailii

Statutes:

Charities Act 1960 13

Jurisdiction:

England and Wales

Charity, Land

Updated: 19 May 2022; Ref: scu.84438

Stanton, Mills; Mills v Blackwell and Blackwell: CA 15 Jul 1999

Two strips of land were adjacent but separated by a wall with a gate. The owner of one plot was given broadly phrased rights of way over both strips. He removed part of the wall over the neighbour’s land in order to make full use of the wider strip.
Held: The removal of the wall was not justified. In the absence of express rights to do so, the cross rights were to be construed in the context of the physical situation when granted. The original plan setting out the rights had shown the wall as it was, and it was not for the dominant land owners to choose at what point they were to have access.
Morritt LJ discussed the appropriate principle of construction, saying: ‘Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties’ intention was as expressed in the deed.
The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd [1993] 1 Ch 190, St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards [1993] 68 PandCR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert [1953] 1 WLR 1064, Keefe v Amor [1965] 1 QB 234 and Charles v Beach [1993] EGCS 124 they did not.

Judges:

Morritt LJ, Wilson J

Citations:

Gazette 28-Jul-1999, [1999] EWCA Civ 1852

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Cited – Todrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .
Cited – White v Richards CA 1993
A right had been granted to ‘pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.’ The county court . .
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited – St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) ChD 1975
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 . .
Cited – Charles v Beach 1993
The parties shared a right of way over land. The common way could be used for most of its length, except for an intervening flowerbed on the land of the servient owner.
Held: The existence of the flowerbed was insufficiently permanent or . .

Cited by:

Cited – Lomax and Another v Wood CA 11-Jun-2001
Land owners were granted a right of way over an occupation road to the highway. They had other means of access to the highway, but eventually sought to construct a gateway onto the occupation road. The owners of the occupation road resisted. It was . .
Cited – Oliver v Symons CA 15-Mar-2012
The parties disputed the extent of a right of way, the claimant appealing against the rejection of his claim for ‘swing space’ alongside the right of way.
Held: The appeal failed. Elias LJ said that the ‘argument for swing space fails. That is . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 May 2022; Ref: scu.83732

Holder and Others v APC Supperstone and Others: ChD 24 Nov 1999

Tenants obtained a charging order against their landlord, and, after his bankruptcy, incurred substantial costs defending their charge against other claimants. The trustee declined to allow payment of the costs.
Held: The costs were properly payable under the Act. The charge operated also as an equitable charge, and such a charge would carry the costs of defending the chargee’s rights. A charging order covers not only the judgment debt, but also future interest on the debt and ‘all costs charges and expenses reasonably and properly incurred in enforcing or preserving (the) security.’

Citations:

Gazette 08-Dec-1999, [2001] 1 All ER 473, [1999] EWHC Ch 189

Links:

Bailii

Statutes:

Charging Orders Act 1979 1(1) 3(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 19 May 2022; Ref: scu.81437

Minor v Groves: CA 20 Nov 1997

The parties were neighbours, with houses adjacent to a right of way. Slabs had been laid next to the houses forming a raised pavement. The respondents had sought to enclose their area of this raised pavement, building a porch. They now appealed an order requiring to remove what had already been built.
Held: The pavement did not form part of the right of way, and had been conveyed to them by implication of the section. A dominant owner of land subject to a right of way may build on his land up to the very edge of the right of way established.
Millett LJ said: ‘I know of no principle of law which precludes the owner of land from building right up to the boundary of his land. If this land abuts on a right of way, building right up to the end of his land does not interfere with the right of way. It is of course true that if he leaves the land unbuilt on, it may be that vehicles properly using the right of way may from time to time be able to deviate onto the adjoining land and temporarily trespass upon the land by driving over it, or commit a technical trespass by permitting part of the superstructure of the vehicles to intrude into the airspace over the adjoining land. But they have no right to do so. In the case of dispute, in my judgment, the dominant owner has no cause for complaint if he is restricted in his user of the way to the exact width of the way.’

Judges:

Hirst LJ, Millett LJ, Swinton Thomas LJ

Citations:

Times 20-Nov-1997, [1997] EWCA Civ 2565, (2000) P and C R 136

Statutes:

Law of Property Act 1925 62(2)(ii)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Robinson v Bailey CA 1948
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: ‘While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a . .
Cited – Todrick v Western National Omnibus Co Ltd ChD 1934
A vendor sold land with a reservation for the benefit of certain land of ‘a perpetual right of way in common with the Purchaser her heirs and assigns at all times and for all purposes with or without vehicles and animals from and to the public . .
Cited – Bulstrode v Lambert ChD 1953
The parties disputed the effective extent of an easement which gave an express right to pass and repass providing access across a yard to a side door at premises on which a business was conducted at the time of the grant.
Held: The court . .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
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 contra preferetem rule can only come into play . .
Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .

Cited by:

Cited – Phelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 May 2022; Ref: scu.81061

Graham v Pitkin: PC 9 Mar 1992

A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because the purchaser could always have decided that the mortgage was satisfactory and proceeded.

Judges:

Lord Templeman

Citations:

Gazette 29-Apr-1992, [1992] 1 WLR 403, [1992] UKPC 8

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Lee-Parker v Izzett (1) ChD 1971
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 19 May 2022; Ref: scu.80964

Green and Another v Wheatley: CA 19 May 1999

Where a garage had been built upon land, and allowed to stay there for over twenty years, title had been acquired by adverse possession, and a right of way which might previously have existed over the land, had also been lost.

Judges:

Stuart Smith LJ, Laws LJ, Jonathan Parker LJ

Citations:

Gazette 03-Jun-1999, [1999] EWCA Civ 1442

Jurisdiction:

England and Wales

Land, Limitation

Updated: 19 May 2022; Ref: scu.81003

Director of Buildings and Lands v Shun Fung Ironworks Ltd: PC 20 Feb 1995

Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: ‘In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today’s currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow’s depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require.’

Judges:

Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 27-Feb-1995, [1995] 2 AC 111

Links:

PC

Statutes:

Compulsory Purchase Act 1965 11(1)

Cited by:

Cited – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
Cited – Mohammed Aslam v South Bedfordshire District Council CA 21-Dec-2000
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
Cited – Faraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
Cited – Ryde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth, Damages

Updated: 19 May 2022; Ref: scu.79977

British Waterways Board v Severn Trent Water Ltd: CA 23 Mar 2001

The parties disputed discharges from a sewer outfall into the Stourbridge canal which had been constructed by a regional water authority in about 1976, under the previous statutory regime. The relevant outfall was therefore already in use at the transfer date pursuant to a right enjoyed by the regional water authorities under the Public Health Act 1936 and transferred to the privatised sewerage undertakers under the Water Act 1989. The powers given to sewerage undertakers did not include a power, either express or implied for a sewerage contractor to lay sewage outfall over land belonging to someone else without their consent. Express powers were given for certain acts including the laying of pipes, but not for discharges. This contrasted with express powers for water undertakers which did include outfalls. No implicit power could be inferred; this was neither necessary, and nor could sufficient precision be achieved.
The Water Industry Act had to be construed as a coherent scheme in its own right, without any a priori assumption that it was intended to reproduce everything in the previous statute law.
Chadwick LJ summarised the position: ‘The fallacy, as it seems to me, lies in the underlying (but unspoken) premise that Parliament must have intended that sewerage undertakers should have facilities to discharge (which, plainly, they do require in order to carry out their functions) without paying for those facilities. Whether or not that premise could have been supported in the context of a public authority charged with functions imposed in the interests of public health, it cannot be supported, as it seems to me, in the context of legislation enacted following a decision to privatise the water industry.’

Judges:

Peter Gibson, Chadwick, Keene LJJ

Citations:

Times 23-Mar-2001, Gazette 29-Mar-2001, Gazette 20-Apr-2001, [2001] 3 WLR 613, [2002] Ch 25, [2001] EWCA Civ 276, [2002] EHLR 1, [2001] 3 All ER 673, [2001] Env LR 45, [2001] NPC 53

Links:

Bailii

Statutes:

Water Industry Act 1991 159, Public Health Act 1936, Water Act 1989

Jurisdiction:

England and Wales

Citing:

Appeal from – British Waterways Board v Severn Trent Water Ltd ChD 26-Oct-1999
A water company may have the implied power to discharge surface run-off water from sewers into canals. The powers and duties of water companies and sewerage undertakers were different both under statute and in general. The power to lay a run-off . .

Cited by:

Cited – The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .
Lists of cited by and citing cases may be incomplete.

Environment, Utilities, Land

Updated: 18 May 2022; Ref: scu.78652

Bowers v Kennedy: IHCS 28 Jun 2000

A landowner who had no alternative means of access to his land could not lose a right of way to it by a failure to use it. It was not a right of servitude, but rather an incident of the rights inherent as owner. The inapplicability of periods and rules of limitation in such cases was well established.

Citations:

Times 27-Jul-2000, [2000] ScotCS 178, [2000] ScotCS 179

Links:

Bailii, Bailii

Land, Limitation, Scotland

Updated: 18 May 2022; Ref: scu.78518

Bettison and others v Langton and others: HL 17 May 2001

A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze a certain number of animals on the common. That right was no longer defined by reference to the dominant tenement, and so was a separate right which could be sold and conveyed on to a third party as an asset separated from the land.

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Scott of Foscote

Citations:

Times 30-May-2001, Gazette 21-Jun-2001, [2001] UKHL 24, [2001] 3 All ER 417, [2001] 2 WLR 1605

Links:

Bailii, House of Lords

Statutes:

Commons Registration Act 1965 15, Law of Property Act 1925 187

Citing:

Appeal from – Bettison and Another v Penton and Another CA 22-Jan-1998
A common right of grazing which was quantified but not related to the ability of the land to sustain it was capable of existing in gross, and was therefore severable entirely from the land to which it related. The severance was no necessary . .
Cited – White v Taylor (No 2) ChD 1969
The alienation of grazing rights for a fixed number of beasts cannot prejudice the residual interest of the owner of the servient common. Whoever the grazing right belongs to, the number of beasts that can be grazed upon the common pursuant to the . .
Cited – Drury v Kent 1603
‘he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over.’ . .
Cited – Daniel v Hanslip 1672
‘if a man hath common appurtenant to a messuage and land for certain number of beasts, he may alien the same; aliter if it be common for all his beasts levant and couchant upon the land, he cannot by his alienation sever that from the land.’ It was . .
Cited – Richards v Squibb 1698
A right to depasture a fixed number of beasts differs from a right for beasts levant and couchant. It is not confined to enjoyment by beasts levant and couchant on the dominant land and may be enjoyed by beasts that do not come from the tenement to . .
Cited – Carr v Lambert 1866
Levancy and couchancy is a ‘measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits’. . .
Cited – Baylis v Tyssen-Amhurst 1877
In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was . .
Cited – Lord Chesterfield v Harris CA 27-Jun-1908
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye.
Held: Lord Chesterfield’a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that . .
Cited – Lord Chesterfield v Harris HL 17-Jul-1911
The House considered the nature and ownership of fishing rights on the River Wye. Freeholders in adjoining parishes had been fishing a non-tidal portion of the river for centuries, not by stealth or indulgence, but openly, continuously, as of right . .
Cited – Pritchard v Briggs CA 1980
A conveyance of part in 1944 gave a right of pre-emption over retained land. The vendor’s successors the let the retained land to the plaintiff with an option to buy the freehold reversion. The retained land was sold to the defendants in purported . .
Cited – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .

Cited by:

Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.78374

Batchelor v Marlow and Another: CA 12 Jul 2001

The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that the extent of use claimed destroyed the owner’s ability to use the land, to the point where his ownership was illusory. The court agreed, and declared that there was no easement if it extended to that point.
Tuckey LJ asked: ‘Does an exclusive right to park six cars for 9.5 hours every day of the working week leave the plaintiff without any reasonable use of his land, whether for parking or anything else?’ and he gave the answer: ‘[The plaintiff’s] right to use his land is curtailed altogether for intermittent periods throughout the week. Such a restriction would, I think, make his ownership of the land illusory.’

Judges:

Henry LJ, Tuckey LJ, Kay LJ

Citations:

Gazette 12-Jul-2001, [2001] EWCA Civ 1051, [2003] 1 WLR 764

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd ChD 29-Jul-1992
A right to park was claimed as an easement.
Held: The question whether the right to park that had been claimed was consistent with the nature of an easement was one of degree: ‘A small coal shed in a large property is one thing. The exclusive . .
Cited – Dyce v Lady James Hay HL 1852
A claim was made for a prescriptive right for all the Queen’s subjects ‘to go at all times upon the . . appellant’s property . . for the purpose of recreation’.
Held: Leonards LC said that the right claimed was one that ‘cannot be maintained’ . .
Cited – Copeland v Greenhalf ChD 1952
If a right claimed by way of an easement would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, than that right is not capable of being an easement. The rights asserted here were both . .
Cited – Bilkus v London Borough of Redbridge 1968
The court was asked to construe the terms of a covenant given by the council to the claimant. . .
Cited – London and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
Appeal from – Batchelor v Marlow and Another ChD 25-May-2000
The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate . .

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.78279

Batchelor v Marlow and Another: ChD 25 May 2000

The applicant claimed parking rights as an easement. If an easement was capable of arising by virtue of a deed of grant, it could also be acquired by prescription. This was such an easement. Use in the absence of planning permission did not vitiate the acquisition by prescription, since the use did not become unlawful until a planning enforcement notice had been served.

Citations:

Times 07-Jun-2000, Gazette 25-May-2000, Gazette 08-Jun-2000, (2001) 82 P and CR 36

Cited by:

Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Appeal from – Batchelor v Marlow and Another CA 12-Jul-2001
The applicant claimed parking rights as an easement acquired by prescription. At first instance the rights were recognised as an easement. The rights included parking during daylight hours during weekdays. The land-owner appealed on the ground that . .
Lists of cited by and citing cases may be incomplete.

Land, Road Traffic, Limitation

Updated: 18 May 2022; Ref: scu.78277

Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD 6 Sep 2000

Where there was a gift of land on charitable trusts, but where the gift was first expressed to be unlimited in time, but later in the deed provided powers for revocation, and conditions for defeasance, it must remain a matter of construction of the particular deed to decide whether the gift was in perpetuity. In the current cases the reversionary provisions were void for remoteness, and the trustees had acquire a possessory title for charity on the trusts of the original deeds.

Citations:

Times 06-Sep-2000, Gazette 05-Oct-2000

Land, Charity, Trusts

Updated: 18 May 2022; Ref: scu.78288

Battersea Freehold and Leasehold Property Company Ltd v Wandsworth London Borough Council: ChD 2 Mar 2001

The tenant of the applicant had occupied land adjacent to the tenanted land and belonging to the council respondent for more than 12 years. The applicant sought to assert that he had acquired possessory title. The tenant had however shared the keys when requested.
Held: The claimants appeal failed. Even if the tenant’s use of the land had not been permissive, in order to establish adverse possession the claimant had to show that its tenant had intended to exclude the whole world at large from the disputed land; The sharing of the keys by the tenant indicated that he had not viewed himself as asserting exclusive possession, by excluding the world at large.

Judges:

Rimer J

Citations:

Gazette 17-May-2001

Land, Limitation

Updated: 18 May 2022; Ref: scu.78291

Banque National De Paris Plc v Montman Ltd and others: ChD 2 Sep 1999

A person claiming to be ‘interested’ in property had to demonstrate either some proprietary interest or similar or that he was directly affected by a charging order. An unsecured creditor could not take priority over the liquidator in seeking to overturn a charging order predating the winding up.

Citations:

Times 02-Sep-1999

Statutes:

Charging Orders Act 1979

Land

Updated: 18 May 2022; Ref: scu.78179

B and Q Plc v Liverpool and Lancashire Properties Ltd: ChD 26 Jul 2000

The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: Whether an easement was being subjected to an actionable interference, was answered by asking whether insistence upon the use of the entire easement contracted for was reasonable. The grantee should not be deprived of the full extent of what might appear to be an ample right only because he reasonably might require a lesser extent of right.
Blackburne J concluded that there are three propositions which can be deduced from the authorities: (1) the test of an ‘actionable interference’ is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what is contracted for is reasonable; (2) it is not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee’s preference is unreasonable or perverse; (3) if the grantee has contracted for the ‘relative luxury’ of an ample right, he is not to be deprived of that right in the absence of an explicit reservation merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required. He summarised the third proposition as follows: ‘In short, the test . . is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?’.

Judges:

Mr Justice Blackburne (Vice-Chancellor of the County Palatine of Lancaster)

Citations:

Times 06-Sep-2000, Gazette 12-Oct-2000, [2001] 1 EGLR 93, (2001) 81 P and CR 20, [2000] EG 10

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Keefe v Amor CA 1965
The Court declined to limit the extent of a right of way 20 feet wide by reference to the bottleneck at its entrance from the road of 4 feet 6 inches, consisting of a pair of gate pillars and a gate of that width. The grant was over the whole 20 . .
Cited – VT Engineering Limited v Richard Barland and Co Limited ChD 1968
The court was asked whether a right of way ‘at all times and for all purposes’ over a roadway included an ancillary right to lateral and vertical ‘swing space’ in the course of loading and unloading in the exercise of the principal right.
Cited – West v Sharp CA 1999
Mummery LJ set out the test to be applied when asking whether there had been a substantial interference in the exercise of an easement so as to be actionable: ‘Not every interference with an easement, such as a right of way, is actionable. There . .
Cited – Celsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .

Cited by:

Cited – Besley v John CA 29-Oct-2003
The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf . .
Cited – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Zieleniewski v Scheyd and Another CA 6-Mar-2012
The parties disputed the existence of a right of way. Briggs J set out the legal principles involved in a claim of interference with a right of way: ‘1) Not every interference with a right of way is actionable. The owner of the right may only object . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.78036

Anderson v Dickie: SCS 26 May 1914

A disposition of lands by X contained a declaration that it should not be lawful for A (the disponee) or his foresaids to sell or feu part of the lands disponed except under certain specified conditions as to the number and value of the dwelling-houses to be erected thereon, ‘which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of’ B (another disponee of X) and his foresaids in all time coming.
Held that the declaration merely placed upon A and his heirs a personal prohibition against selling or feuing except under the conditions specified, and did not constitute the restriction a real burden on the lands, and that, accordingly, a singular successor of B was not entitled to interdict a singular successor of A from contravening the restriction.

Citations:

[1914] SLR 614

Jurisdiction:

Scotland

Cited by:

Appeal from – Anderson v Dickie HL 22-Apr-1915
S. feued a piece of his ground to M., the feucontract containing this clause-‘Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.621101

Kirby v Hunslet Union Assessment Committee: HL 1906

The Act provided that the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alon
Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory’s assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it.
Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory’s assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it.
Lord Halsbury said that he would: ‘decline myself to enter into what I may call the original equities which might have guided this matter. It is, enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely’. that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may hot be attached to the freehold.’

Judges:

Lord Macnaghten,Lord Halsbury

Citations:

[1906] AC 43

Statutes:

Parochial Assessment Act 1836

Jurisdiction:

England and Wales

Cited by:

Much Criticised – Iceland Foods Ltd v Berry (Valuation Officer) SC 7-Mar-2018
Air System plant excluded from Rating value
The court was asked whether the services provided by a specialised air handling system, used in connection with refrigerated merchandise in the appellant’s retail store, are ‘manufacturing operations or trade processes’ for rating purposes.
Cited – Iceland Foods Ltd v Berry (Valuation Officer) CA 23-Nov-2016
The court was asked whether the air handling system used by Iceland Foods Limited in its retail store at Liverpool was plant or machinery ‘used or intended to be used in connection with services mainly or exclusively as part of manufacturing . .
Lists of cited by and citing cases may be incomplete.

Land, Rating

Updated: 18 May 2022; Ref: scu.605769

Irani Finance Ltd v Singh: CA 1970

Two brothers had acquired land as joint tenants with the aid of a mortgage. Distinct orders were made against each of them charging their respective interests in the land. The mortgagee assigned the mortgage. The brothers held under a trust for sale. The judgment creditor sought to redeem the mortgage which was opposed by the party to whom the mortgage had been assigned, presumably to give effect to the charges upon the proceeds of sale of the land. There was a power to make a charging order over land or an interest in land. The Court was now asked whether a charging order could be made on the debtor’s interest in the proceeds of sale of land.
Held: The purpose of the trust for sale was to make sure, by shifting the equitable interests away from land and into the proceeds of sale, that a purchase of land is free from equitable interests. Joint owners holding the property or trust for sale and for themselves beneficially did not hold sufficient interests in land as required by the legislation to support a charging order.
Cross LJ said: ‘The words ‘interest in land’ are no doubt capable in an appropriate context of including interests under trusts for sale of land, and though there is no need for us to express a concluded opinion on the point we certainly do not wish to be taken to be casting any doubt on the correctness of the dicta in Cooper v. Critchley [1955] Ch. 431, but for 100 years before 1956 the words, or equivalent words, have been held in this field not to include interests arising under trusts for sale . . To turn finally to Bull v. Bull and Barclay v. Barclay; in the judgments in Bull v. Bull and Cook v. Cook [1962] P. 235, in which the principle laid down in Bull v. Bull was applied, the beneficiaries are in places described as ‘equitable tenants in common’ of the house in question. But the use of these words – which are apt enough to describe the physical situation – does not, we think, necessarily imply that the court considered that the interests of the beneficiaries were interests in realty and not interests in personalty. It is true that in his judgment in Barclay v. Barclay [1970] 2 Q.B. 677, Lord Denning M.R., at p. 684, does refer to the interests that the beneficiaries in Bull v. Bull as equitable interests in land, but that expression of opinion was not necessary to the decision in any of the cases and, with respect, we cannot agree with it. No doubt such tenants in common are interested in the land in a general sense as was remarked by Russell L.J. in In re Kempthorne [1930] 1 Ch. 268, 292. But that is not the same thing as their being owners of equitable interests in the realty. The whole purpose of the trust for sale is to make sure, by shifting the equitable interest away from the land and into the proceeds of sale, that a purchaser of the land takes free from the equitable interests. To hold these to be equitable interests in the land itself would be to frustrate this purpose. Even to hold that they had equitable interests in the land for a limited period, namely, until the land is sold, would, we think, be inconsistent with the trust for sale being an ‘immediate’ trust for sale working an immediate conversion, which is what the Law of Property Act, 1925, envisages (see section 205(l)(xxix)), though, of course it is not in fact only such a limited interest that the plaintiffs are seeking to charge.’

Judges:

Russell, Cross, Widgery LJJ

Citations:

[1971] Ch 59, [1970] 3 All ER 199

Statutes:

Administration of Justice Act 1956 35

Jurisdiction:

England and Wales

Cited by:

Cited – Clark and Another v Chief Land Registrar and Another ChD 2-Dec-1992
The defendant had made a mistake resulting in an equitable chargee not being given proper opportunity to object to the registration of a further charge with priority. The chargee sought compensation from the defendant registrar.
Held: The . .
Distinguished – National Westminster Bank Ltd v Allen ChD 1971
The defendants, a husband and wife, were jointly and severally liable on two joint accounts which were overdrawn. The defendants were joint owners of a house property as joint tenants holding on trust for sale. The plaintiff was seeking a charging . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.536057

Slack v Leeds Industrial Co-operative Society Ltd: CA 1924

Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages

Judges:

Sir Ernest Pollock MR, and Warrington and Sargant LJJ

Citations:

[1924] 2 Ch 475

Jurisdiction:

England and Wales

Citing:

Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .

Cited by:

Appeal from – Leeds Industrial Co-operative Society Ltd v Slack HL 1924
The plaintiff complained of a threatened interference with ancient lights.
Held: Damages may be awarded in lieu of an injunction even where the injunction sought is a quia timet injunction, but that power imports a further power to give an . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Litigation Practice

Updated: 18 May 2022; Ref: scu.536798

Toplis v Green: CA 14 Feb 1992

Butler-Sloss LJ said, as to the construction of a conveyance with a plan: ‘In taking the objective approach, one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?’

Judges:

Butler-Sloss LJ

Citations:

Unreported 14 February 1992

Land

Updated: 18 May 2022; Ref: scu.515259

Case XXV 7 Co 40 A B, Bedel’s Case Uses, Covenants, Inrollment: 1220

A father covenants by indenture, in consideration of continuing the land in his blood, and of natural affection, to stand seized to the use of himself for life, remainder to his wife for life, remainder to his second son in tail : resolved that the use to the wife is well raised ; for the naming of her, being his wife, is sufficient: so of any cousin ; for it is a consideration of money paid by the wife or son, the indenture ought to be inrolled.
Adjudged and affirmed in error.
If the consideration be of blood and money paid ; where there is kindred; an use will rise upon a covenant by indenture without inrollment : for the words of 27 H. 8, cap. 16, for inrollments, are, where a freehold or inheritance passes by bargain and state only : not where blood is joined.

Citations:

[1220] EngR 599, (1220-1623) Jenk 289, (1220) 145 ER 209 (B)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461511

2 Jac Cr 40, Earl of Rutland’s Case 1 Co 76 A B Curia Wardor’, Surrender, Tail, Fines, Discontinuance, Bar Baldwin’s Case: 1220

A tenant for life, remainder to B. in tail ; B. levies a fine, with proclamations, sur concessit, to A. and C. for their lives : this fine bars the intail during the said two lives only, and is not a discontinuance omnio : for B. was riot seised by force of the tail, and the fine is sur concessit : it seems that A.’s acceptance of this estate to him and C. is a surrender of the former estate which he had : as in the case of a lease for years made to A. and during the years, he accepts a lease for years of the same land to him and B.

Citations:

[1220] EngR 274, (1220-1623) Jenk 321, (1220) 145 ER 233 (D)

Links:

Commonlii

Land, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.461186

Case VI 2 H 8 9 Co 118 H Dally, 25, Pl 8 11 Co 59 A B Keyleway, 159, 204 Forcible Entry, Restitution Commissioners De Oyer And Terminer, Bank Le Roy: 1220

Commissioners of oyer and terminer have no power to exclude upon the statute of forcible entry : for the statute of 8 H 6, cap. 3, which provides an enquiry and restitutiori in this case, appropriates it to the justices of peace : but the judges of the King’s Bench are wittin the statute ; for the King sits there, and where the King sits est plenitudo potestatis. Proprietates verborum tuendae sunt.

Citations:

[1220] EngR 269, (1220-1623) Jenk 197, (1220) 145 ER 132 (B)

Links:

Commonlii

Land, Constitutional

Updated: 18 May 2022; Ref: scu.461181

35 H 6, 52 28 H 8 Br Livery, 55 Br Cases, 187, 78, 113, 114 12 H 4, 18 Stamf Praer 10 Dally, 90, Pl 8 Co Lit 77 A F N B 258, 256 Gard, Livery, Charrel Br Cases, 322 By 12 C 2, Ch 24, These Tenures And Services Are Abolish’D: 1220

No livery shall be sued by any heir, if the tenure be not of the King by knight’s service in capite, or in socage in capite, if the heir be of full age at the time of the death of his father, he shall pay half a year’s value of the land : if the tenure be socage in capite, such heir shall pay relief: if he be fourteen years of age at the time of the death of his ancestor, he shall pay nothing. Where the King has a ward, because of another ward who is the King’s tenant in capite by knight’s service ; and the ward because of ward comes first to full age, he shall sue his livery ; but not where his guardiian has sued his livery before him : but though his guardian has sued his livery before him, yet the King shall retain the land and body of the ward because of ward till his full age. So shall every other lord do who has a ward because of ward ; if he has not the seigniory by a defeasible title : if so, the entry of him who has right shall avoid it : so of a mortgage redeemed, and a seigniory granted upon condition. The heir of the King’s tenant by knight’s service, not in capite, at his full age, after he has paid relief, shall have an ouster le maine. The King’s tenant of lands within the Dutchy of Lancaster shall sue livery, but not for lands held of the dutchy, and lying out of the dutchy. 21 E. 4, 60. 26 H. 8.

Citations:

[1220] EngR 445, (1220-1623) Jenk 113, (1220) 145 ER 80 (A)

Links:

Commonlii

Children, Land

Updated: 18 May 2022; Ref: scu.461357

Case LIII 2 H 4, 23 Jointenants, Petition, Scire Facias, Joinder In Actions: 1220

There are two jointenants in fee, their land is seised into the King’s hands ; each of them may hy himself sue a petition of right to the King: and if the King has granted this land; upon a scire facias upon such petition against the Kings patentee ; the jointenancy of the plaintiffs is not a plea for the patentee. By all the judges.
This also seems to be the law in a monstrans de droit and a traverse ; for they are not properly actions. An action does not lie against the King. But regularly jointenants ought to join in actions real and personal.

Citations:

[1220] EngR 253, (1220-1623) Jenk 78, (1220) 145 ER 56 (B)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461165

Case XXIX 19 E 3 Co Lit 222 A B 2 Co 80 A Fitz Entry Congeable, 39 18 Ass Ult Tourson’s Case, 8 Co 170 B, 91 A Cromwell’s Case, 4 Co 27: 1220

A tenant in capite obtains the King’s licence to enfeoff two of the manor of Dale, upon condition to give it back to him in tail, the remainder to E. iri fee ; the feoffment was made to two accordingly ; A. afterwards dies, his heir being within age, afterwards the gift was made to the heir of the body of A. the remainder ut supra. Resolved, that this licence doth not extend to give this land to the heir of the body of A. but a new licence is necessary ; and the obtaining of this licence is a new charge to the land suffered by the two feoffees, and therefore in this case the condition is broken. A. dies seised of other land held of the King in capite, his dying seised of this land, and all this other matter is fond by office. The Kirig shall seize the said manor for the breach of this condition, in right of the said heir being within age, and shall have all the profits of it, as guardian after the deat of A.
By all the justices.
Verba accipienda sunt cum effectu.

Citations:

[1220] EngR 220, (1220-1623) Jenk 16, (1220) 145 ER 13 (A)

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.461132

Leeds v Shakerley: 1599

In an action for diverting a water-course from one of three mills, on not guilty, the ven. Fac. shall be where the nuisance was done, sed aliter on a prescription; but a seisin of the mill at the time of the nuisance must be shewn.

Citations:

[1653] EngR 1212, (1599) Cro Eliz 751, (1653) 78 ER 983 (A)

Links:

Commonlii

Cited by:

Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 18 May 2022; Ref: scu.413519

Torbay Borough Council v Cross: QBD 1995

The highway was 15 metres wide and pedestrianised. Shop owners displayed goods outside their shops, projecting no more than five percent of the total width of the road. The magistrates acquitted them of obstruction.
Held: The appeal was allowed and the case remitted to them with a direction to convict. A possible exception to the rule in Seekings was on the principle of de minimis, where there was a fractional projection. Dyson J held that the de minimis principle could not be applied. That principle was reserved for cases of fractional obstructions, which this case was clearly not.

Judges:

Dyson J, McCowan LJ

Citations:

(1995) 159 JP 682

Jurisdiction:

England and Wales

Citing:

Applied – Seekings v Clarke 1961
Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’. . .

Cited by:

Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.401659

British Commonwealth Holdings plc v Quadrex Holdings Inc: 1989

In considering the reasonableness of a time set in a notice to complete for construction works, the time it would actually take to complete the work is not the only consideration.

Citations:

[1989] 1 QB 842

Jurisdiction:

England and Wales

Cited by:

Cited – North Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.403476

Earl of Peterborough v Mordaunt: 21 Feb 1760

A. created a trust for the payment of incumbrances out of the rents and profits of his real estate, part of which being subject to the arrears of a rent charge to the crown, was discharged by a privy seal, provided l5000 be paid to B. and C.. for securing which a term was created by act of Parliament ; held, that this was a debt affecting the estate, and not within the trusts of the deed, and therefore that the tenants for life must keep down the interest.

Citations:

[1760] EngR 693, (1760) 1 Eden 474, (1760) 28 ER 769

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 18 May 2022; Ref: scu.377032

Ravenhill v Dansey: 1723

A reversionary term raised for securing maintenance and portions for daughters, shall in case of necessity, be mortgaged to pay either, and when fallen into possession shall pay all the arrears of maintenance incurred before it came intom possession.

Judges:

Lord Macclesfield

Citations:

[1723] EngR 33, (1723) 2 P Wms 179, (1723) 24 ER 690

Links:

Commonlii

Land

Updated: 18 May 2022; Ref: scu.389921

Davy v Leeds Corporation: CA 1964

Harman LJ described the section as ‘monstrous legislative morass’ and ‘a Slough of Despond’.

Judges:

Harman LJ

Citations:

[1964] 3 All ER 390, [1964] 1 WLR 1218

Statutes:

Land Compensation Act 1961 6

Cited by:

Appeal from – Davy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 18 May 2022; Ref: scu.372347

Porter v Secretary of State for Transport: LT 1995

A positive section 17 (or section 18) certificate has been issued on the basis that the relevant land would be developed, or could only be developed, in conjunction with other land in the vicinity. It was argued that no assumption arose as a matter of law that planning permission would be granted for such development of the other land.
Held: In such circumstances an issue estoppel arose so as to preclude the acquiring authority from reopening the issues of fact on the basis of which a section 18 certificate had been granted.

Judges:

Judge Marder QC

Citations:

[1995] 2 EGLR 175

Jurisdiction:

England and Wales

Cited by:

Appeal from – Porter v Secretary of State for Transport CA 1996
Land had been compulsorily acquired for a road. The plaintiff was granted on appeal under section 18 of the 1961 Act a certificate of appropriate alternative development in respect of the land acquired, namely that the land acquired would have been . .
Lists of cited by and citing cases may be incomplete.

Land, Damages, Estoppel

Updated: 18 May 2022; Ref: scu.372589

St Ives Corporation v Wadsworth: ChD 1908

A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they wished.
Held: On the facts, the land had been part of an ancient highway and must remain as such. Swinfen Eady J said ‘The question for decision has reference to a small piece of land in the corner between a bridge over the River Ouse and the defendant’s house. The plaintiff’s allege that the land is part of an ancient highway, and forms part of the highway today. The defendant claims it as his own property not through his father from whom he derives the house, but solely by title gained by possession for 12 years.’

Judges:

Swinfen Eady J

Citations:

[1908] Knight’s Local Government Reports 306, (1908) 72 JP 73, (1908) 6 LGR 306

Jurisdiction:

England and Wales

Cited by:

Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 18 May 2022; Ref: scu.320861

Haigh v West: CA 1893

The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil of the road vested.
Held: It was to be presumed that the road vested in the church wardens as trustees or alternatively, and to the extent that was not correct, that they had acquired a title by adverse possession. The highway had originally all been grass but for the 20 years prior to the start of the claim, it had been metalled in the middle with grass at the sides. It was the grass at the sides which was used by the tenants of the church wardens for pasturing sheep.
Lindley LJ said: ‘apart from all presumptions the parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century and this occupation and enjoyment is that of the church wardens and overseers acting through the vestry. We see no legal difficulty in the acquisition by the church wardens and overseers of a title by the Statute of Limitations, although, of course, the title so acquired must be subject to the public right of way.’

Judges:

Lindley LJ

Citations:

[1893] 2 QB 19

Jurisdiction:

England and Wales

Cited by:

Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Lists of cited by and citing cases may be incomplete.

Land, Animals

Updated: 18 May 2022; Ref: scu.320864

Laird v Pim and Another: 18 Jan 1841

Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the purchase-money, but only the damages actually sustained by his breach of contract. – In assumpsit by the vendor against the purchasers of land, the declaration stated, that in consideration of the plaintiff’s selling to the defendants certain land to be paid for as soon as the conveyance should be completed, the defendants promised to purchase and pay for the same. Averment, that although the plaintiff had allowed the defendant to enter into possession of the lands, and had always been ready and willing to make a good title, and offered the defendants to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing ; yet the defendants did not regard their said promise, and did not pay the plaintiff the purchase-money, or any part thereof. Plea, that no conveyance had ever been made or executed to the defendants. Held, on general demurrer, that the plea was bad, and the declaration good. Quaere, whether, the declaration would have been sufficient on a special demurrer.
Parke B said that the plaintiff was ‘substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase-money, but he is in the same situation for the purpose of recovering damages for the non-payment of the price, as if all had been done by him.’

Judges:

Parke B

Citations:

[1841] EngR 237, (1841) 7 M and W 474, (1841) 151 ER 852

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Hooper and Another v Oates CA 20-Feb-2013
The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. . .
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 18 May 2022; Ref: scu.308415

Lake v Brutton: 9 Jul 1856

Where a mortgage was taken in part in respect of a sum for which the mortgagee represented himself to the mortgagor as being liable as a surety for the latter, and such representation was erroneous, to the knowledge of the mortgagee : Held, that to that extent the security could not be supported.
A debtor deposited a policy with his creditor as a security. Afterwards the debtor; with a surety who did not know of the deposit, covenantal with the creditor for payment of the debt, and contemporaneously the debtor executed a deed of counter security to the surety, neither deed referring to the deposit of the policy. Subsequently the debtor assigned the policy to the creditor as a security. Held, that the surety, on paying the debt, was entitled to the policy.

Citations:

[1856] EngR 763 (B), (1856) 8 De G M and G 440

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Contract

Updated: 18 May 2022; Ref: scu.291518

Henry Rowbotham, And Others v William Wilson: HL 19 Jun 1860

Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the term of the deed by which they are conveyed. Under a grant of minerals, a power to get them is a necessary incident.

Judges:

Lord Wensleydale

Citations:

[1860] EngR 892, (1860) 8 HLC 348, (1860) 11 ER 463

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

At First Instance – Daniel Rowbotham v William Wilson 30-May-1856
Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years . .
Appeal from – David Rowbotham v William Wilson 1-Jul-1857
. .

Cited by:

Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.285731

Hudson v Macrae: 14 Nov 1863

Angling. Jurisdiction of justices. Claim of right. Non-navigable river. Bona fides. Mens rea. In answer to an information before two justices under stat. 24 and 25 Vict. c. 96, s. 24, for unlawfully and wilfully attempting to take fish in water where another person had a private right of fishery, by angling at an hour not between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, the accused justified under a supposed right on the part of the public to fish in that water.

Citations:

[1863] EngR 949, (1863) 4 B and S 585, (1863) 122 ER 579

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Agriculture

Updated: 18 May 2022; Ref: scu.283604

Galloway v The Mayor, Commonalty And Citizens of London: HL 29 Jun 1865

A bill filed by the Plaintiff to restrain the Defendant from taking certain property of his under their statutory powers had been dismissed and the order of dismissal enrolled. The Plaintiff presented a petition of appeal to the House of Lords, and now applied to the Court for an interim order to protec the property till the appeal could be heard. Held, that as the bill had been simply dismissed without any reservation, the Court had no jurisdiction to make the order asked.

Citations:

[1865] EngR 639, (1865) 3 De G J and S 59, (1865) 46 ER 560

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Galloway v The Mayor, Aldermen And Commons Of The City Of London 26-Apr-1864
In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing . .
See Also – Galloway v The Corporation Of London 13-Feb-1865
In July 1862 the Corporation of London obtained Parliamentary powers for taking the Plaintiffs land for public purposes. But, prior thereto (June 1862) the Corporation had contracted to sell these lands to another company, not then empowered to . .
See Also – Galloway v The Mayor, Commonalty And Citizens Of The City Of London 2-May-1865
The Corporation of London in 1862 obtained an Act authorising them to make a new street and buy land for that purpose, with certain powers of reselling land not required for the street. About the same time a railway company obtained an Act . .

Cited by:

See Also – Galloway v Mayor and Commonalty of London HL 1866
Lord Cranworth LC said: ‘The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 18 May 2022; Ref: scu.281551

In re Lloyd; Lloyd v Lloyd: CA 1903

The court was asked as to a mortgagee’s entitlement to require the mortgagor to pay all arrears of interest as a condition of redemption, even if some of the arrears would be statute-barred if the mortgagee were seeking to recover them by action, or to retain all such arrears on accounting to the mortgagor for the proceeds of a sale by the mortgagee.
Held: The mortgagee was not affected by the limitation statute because it was not seeking to recover the interest by bringing an action.

Citations:

[1903] 1 Ch 385

Land, Limitation

Updated: 18 May 2022; Ref: scu.277163

Holmes v Cowcher: ChD 1970

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.

Judges:

Stamp J

Citations:

[1970] 1 WLR 834

Cited by:

Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.277164

Rochdale Canal Company v King: 1853

Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear.’

Judges:

Sir John Romilly MR

Citations:

(1853) 16 Beav 630

Citing:

Cited – Dann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .

Cited by:

Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 18 May 2022; Ref: scu.276430

Green v Green: 1981

Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions ‘consequential’ on setting aside a disposition which was reviewable under sub-section 2 and sub-section 2 only applied to dispositions made by one or other of the parties to a marriage.

Judges:

Eastham J

Citations:

[1981] 1 WLR 391

Statutes:

Matrimonial Homes Act 1983 37(3)

Jurisdiction:

England and Wales

Cited by:

Not applied – Ansari v Ansari and others CA 19-Dec-2008
The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 18 May 2022; Ref: scu.279009

Poole Corporation v Moody: CA 1945

In relation to a power of sale, the subsection was treated by the Court solely as a provision which excluded the operation of section 2 in claims for equitable relief, without any mention of the possibility of it applying the section by analogy.

Judges:

Morton LJ

Citations:

[1945] KB 350

Statutes:

Limitation Act 1939 2(7)

Jurisdiction:

England and Wales

Cited by:

Cited – Yorkshire Bank Finance Ltd v Mulhall and Another CA 24-Oct-2008
The bank had obtained a judgement against the defendant, and took a charging order. Nothing happened for more than twelve years, and the defendant now argued that the order and debt was discharged.
Held: The enforcement of the charging order . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 18 May 2022; Ref: scu.277165

Hughes v Doncaster Metropolitan Borough Council: HL 1991

A claimant’s claim for compensation on the compulsory acquisition of his land is but one claim for all those losses which flow from a compulsory acquisition of which the value of the land taken and any injury to retained land is but part of the compensation claim. The value of the land and the disturbance loss are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner

Judges:

Lord Bridge of Harwich

Citations:

Gazette 30-Jan-1991, [1991] 2 WLR 16, [1991] 1 AC 382

Statutes:

Land Compensation Act 1973 37

Jurisdiction:

England and Wales

Citing:

Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd SCS 1988
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and . .

Cited by:

Cited – Nicholls v Highways Agency LT 31-Dec-1997
LT COMPENSATION – simplified procedure – compulsory acquisition of grassland with hardstanding and shed – whether undertaking given at CPO inquiry that compensation would be assessed on cost of reinstatement – . .
Cited – Roberts v John Roberts (Bexley) Ltd LT 9-Aug-2005
LT COMPENSATION – compulsory purchase – preliminary issue – company owned and run by landowner carrying on business on land acquired – company closing business and ceasing occupation before vesting date – whether . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 May 2022; Ref: scu.270270

Allied Irish Bank Group (Uk) Plc v Henelly Properties Ltd and Others: ChD 7 Jun 2000

The fact that a mortgage advance was to be paid by stages as a building progressed, did not mean that the mortgage securing the advance was delivered in escrow until the building work was complete. If the mortgagee defaulted in his payments the lender was entitled to seek possession of the land at that time.

Citations:

Times 07-Jun-2000

Jurisdiction:

England and Wales

Land, Financial Services

Updated: 17 May 2022; Ref: scu.77758

Alliance and Leicester Plc v Slayford and Another: CA 12 Oct 2000

Property was transferred into a divorcing husband’s name, and his new partner signed a form disclaiming any rights as against the lender. After possession proceedings, she later asserted that her consent had been obtained by the undue influence of her partner and that her equitable interest was an overriding one. The applicant applied to amend the pleadings to add to the claim for possession a claim against the original chargor for the debt secured.
Held: This was not an abuse of process even though the result might be that the partner’s insolvency came to defeat the new partner’s equitable interest. It was not an abuse of process, where a lender seeking to take possession of a mortgaged property was faced with an assertion of an interest by a resident spouse, for that lender to seek as an alternative, the bankruptcy of the borrower under the loan agreement itself. Such an action was clearly available to them. An occupier in such circumstances could now taking advantage of the more detailed exposition of rights contained in the Act which would be an appropriate way of establishing the protection to be given.

Citations:

Gazette 26-Oct-2000, Times 19-Dec-2000, [2000] EWCA Civ 257

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996

Jurisdiction:

England and Wales

Undue Influence, Banking, Land, Financial Services

Updated: 17 May 2022; Ref: scu.77751

Fowley Marine (Emsworth) Ltd v Gafford: 1968

A paper title owner of land is deemed to be in possession of the fee simple unless and until someone else acquires possession of it

Citations:

[1968] 2 QB 618

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 17 May 2022; Ref: scu.267382

Lord Advocate v Lord Blantyre: HL 1879

The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.’

Judges:

Lord Blackburn

Citations:

(1879) 4 App Cas 770

Jurisdiction:

Scotland

Citing:

Cited – Jones v Williams ExcC 1837
A four-judge of the Court was asked as to the admissibility of evidence in a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the . .

Cited by:

Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Higgs v Nassauvian Ltd PC 1975
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 . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.267380

Bell v Norman C Ashton Ltd: 1957

The property was on land part of a building scheme, with a covenant not to erect more than two houses on any one plot on the estate. Other restrictive covenants had been breached by the use of some properties as shops and by the erection of dwelling houses which did not meet the minimum value criterion laid down, and in particular there had been fifty ‘temporary or . . semi-temporary residences’ of low value. However eventually the scheme ended up broadly as intended. It was argued that a planning permission which would permit greater densities made the covenants obsolete.
Held: Where the only persons who could consent were the original vendors and they had ceased to be available, there was no dispensing power and, hence, the covenant was absolute. Harman J rejected the argument saying that the defendant’s surveyor had said: ‘that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation.’ and
‘It is said that, quite apart from what happens on the estate, what happened round it affects it. That is a somewhat doubtful doctrine. But supposing that to be so, what has happened? There are three estates round about this one now where people live and jostle each other cheek by jowl, being closer together than are the persons on this estate. The character of the neighbourhood, I agree, has entirely changed in that it is no longer a rural area with an outlying estate upon it, but an urban or suburban area of the City of Leeds. But the change of itself is not such a change as will disentitle the plaintiff to succeed. The area remains a residential area. It is not a commercial area. It is a place for people to live in. The plaintiff and those who share the benefits of these covenants are lucky to live in a place where a little more room is given to breathe the crowded air of this country than have their neighbours. They are lucky, but it is a right which in my judgment the law will support unless by their own negligence they have disentitled themselves to protection.’

Judges:

Harman J

Citations:

(1957) 7 P and CR 358

Cited by:

Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.263766

Hill v Maclaren: 1879

A servitude right must be exercised ‘so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor.’

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1879) 6 R 1363

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 17 May 2022; Ref: scu.260034

F T Challinor v Stone Rural District Cuncil: LT 1972

Judges:

JR Laird

Citations:

Ref/161/1971

Jurisdiction:

England and Wales

Cited by:

Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.245983

Grigsby v Melville and Another: ChD 1972

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.

Judges:

Brightman J

Citations:

[1972] 1 WLR 1355, [1973] 1 All ER 385

Jurisdiction:

England and Wales

Cited by:

Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
Appeal from – Grigsby v Melville CA 6-Jul-1973
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 . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.244810

Deen v Andrews: 1986

Land was sold. The parties disputed whether a greenhouse was included.
Held: It was a large greenhouse consisting of a sectional frame bolted to a large concrete base. ‘Building’ was to be given the meaning ascribed by s62 of the 1925 Act. The greenhouse was not sufficiently affixed but rested by its own weight on the land.

Judges:

Hirst J

Citations:

[1986] 1 EGLR 262, (1986) 52 PandCR 17

Statutes:

Law of Property Act 1925

Citing:

Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Followed – H E Dibble v Moore CA 1969
A greenhouse was not an ‘erection’ within section 62(1). Megaw LJ noted that it was customary to move the greenhouse every few years, . .

Cited by:

Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.240407

Edwards v Jenkins: 1896

Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington: ‘One parish, one custom.’ Kekewich J said: ‘The only question, therefore, is whether it is properly laid in ‘all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham.’ It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority’.
rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes, saying: ‘But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word ‘district’ as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes.
Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case . . He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred. . and should have to decide against the defendants, because they had proved a custom larger than they claimed’.

Judges:

Kekewich J

Citations:

[1896] 1 Ch 308

Citing:

Cited – Fitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .
Cited – Cox v Schoolbred CA 15-Nov-1878
Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that ‘people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using . .
Cited – Bourke v Davis 1890
Kay J considered that a customary right over land might be confined to the inhabitants of a district. . .

Cited by:

Criticised – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.242328

Hammerton v Honey: CA 1876

A claim was made for a local custom of common rights over Stockwell Green.
Held: The claim failed. The evidence did not show that use of the green was confined to inhabitants of Stockwell. Sir George Jessel MR said: ‘A custom is local Common Law. It is Common Law because it is not Statute Law; it is Local Law because it is the law of a particular place, as distinguished from the general Common Law. Local Common Law is the law of the country (i.e., particular place) as it existed before the time of legal memory’

and ‘If you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom.’
and ‘Again what must be the usage proved? It must not only be consistent with the custom alleged, but if I may use the expression, not too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom. I know that there have been some observations made in cases which come to this – that the general legal usage is not destroyed because an occasional illegal usage is shown: but that does not apply where you have evidence of a totally different state of things which does not support a local custom at all. That, I think, is the general law of this case’.

and ‘It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time’

Judges:

Sir George Jessel MR

Citations:

(1876) 24 WR 603

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.242327

Tiverton and North Devon Company v Loosemore: 1884

After entry onto land under a compulsory purchase order, the Council had a right to possession even though it had been forced out of possession immediately after entry.

Citations:

(1884) 9 HLC 480

Cited by:

Cited – Rhondda Cynon Taff Borough Council v Watkins CA 12-Feb-2003
Land had been purchased compulsorily, but the respondent unlawfully returned to possession in 1966, and now claimed title by adverse possession. The Council executed a vesting deed poll in 1988. The Council asserted that he could not be in adverse . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.238202

Regina v Secretary of State for the Environment, ex parte Cowell: CA 1993

The question of sufficiency of evidence for the purpose of the proviso in the subsection is a question of fact for the tribunal to determine in each case. The court rejected a broad submission from the appellant that the 1980 Act and its predecessor had fundamentally altered the common law by introducing much more stringent requirements on a landowner than hitherto if he sought to rely on evidence of no intention to dedicate. Rose LJ (obiter) the proviso did not limit ‘sufficient evidence’ of no such intention to, or by, the matters referred to in section 31(3)-(6), although proof of such matters would provide sufficient evidence in a particular case. The sufficiency of evidence in other cases would necessarily vary from case to case and whether there was sufficient evidence of a lack of intention to dedicate was a matter of fact to be determined by the tribunal of fact in accordance with the evidence in the particular case.
Staughton LJ noted that Denning LJ’s requirements in Faiery of overt and notorious acts were dicta, went on to say that although ‘that was not said in the section itself’, it ‘seemed a sensible rule.’

Judges:

Rose LJ, Staughton and Balcombe LJJ

Citations:

[1993] JPL 851

Statutes:

Highways Act 1980 31(1) 31(2)

Jurisdiction:

England and Wales

Citing:

Cited – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .

Cited by:

Cited – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.236554

Mercury Communications Ltd v London and India Dock Investments Ltd: 1993

Judges:

Judge Hague QC

Citations:

(1993) 69 P and CR 135, [1994] 1 EGLR 229

Jurisdiction:

England and Wales

Citing:

Cited – Stokes v Cambridge Corporation LT 1961
The tribunal considered case concerned 5.1 ha of land with an assumption of planning permission for industrial development under Planning legislation. There was only one possible access over adjoining land in different ownership.
Held: When . .

Cited by:

Approved – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 17 May 2022; Ref: scu.229248

Doe d. Lewis v Rees: 1834

Encroachments made by a tenant enured for the benefit of his landlord, ‘unless it appears clearly by some evidence at the time of the making of the encroachments that the tenant intended the encroachments for his own benefit . . ‘

Judges:

Parke B

Citations:

(1834) 6 C and P 610

Jurisdiction:

England and Wales

Cited by:

Approved – Doe d. Croft v Tidbury 1854
. .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.228937

Smirk v Lyndale Developments Ltd: ChD 1975

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,

Judges:

Pennycuick V-C

Citations:

[1975] Ch 321, [1975] 1 All ER 690

Jurisdiction:

England and Wales

Citing:

Cited – Kingsmill v Millard 20-Jun-1855
Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a . .
Approved – Tabor v Godfrey 1895
Where a tenant occupies land adjacent to land demised to him by the landlord, he occupies it as additional to the tenancy, and subject to its terms. . .

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Appeal from – Smirk v Lyndale Developments Ltd CA 2-Jan-1975
Judgment upheld . .
Cited – Trustees In the Charity of Sir John Morden v Mayrick; Graham v Mayrick CA 12-Jan-2007
The claimant had owned tracts of land in London for very many years, but the title deeds had been lost. The defendant had purchased a part from a company who had in turn purchased from the claimants, but the parties disputed an adjacent strip of . .
Cited – Graham and others v Mayrick ChD 23-Mar-2006
The claimants sought specific performance of a compromise agreement with the defendant after a dispute over a strip of land. The defendant appealed a finding that the claimants had shown satisfactory title.
Held: ‘It has long been established . .
Cited – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228931

Doe d. Croft v Tidbury: 1854

Citations:

(1854) 14 CB 304

Jurisdiction:

England and Wales

Citing:

Approved – Doe d. Lewis v Rees 1834
Encroachments made by a tenant enured for the benefit of his landlord, ‘unless it appears clearly by some evidence at the time of the making of the encroachments that the tenant intended the encroachments for his own benefit . . ‘ . .

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 17 May 2022; Ref: scu.228938

Kingsmill v Millard: 20 Jun 1855

Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: ‘It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title. . . The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.’

Judges:

Parke B

Citations:

(1855) 11 Exch 313, (1855) 19 JP 661, (1855) 3 CLR 1022, 156 ER 849, [1855] EngR 616, (1855) 156 ER 849

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Smirk v Lyndale Developments Ltd ChD 1975
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 . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Childs and Another v Vernon CA 16-Mar-2007
The parties disputed the boundary between their properties, alleging various trespasses. The judge ordered a single expert witness. The court had been unable to establish the line of the boundary from the conveyances or the Land Registry plans. . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228930

Kern Corporation Ltd v Walter Reid Trading Pty Ltd: 1987

(High Court of Australia) The court discussed the status of the owner of land between exchange and completion on a sale: ‘it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . . [T]he ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a ‘trustee sub modo’ unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription’

Judges:

Deane J

Citations:

(1987) 163 CLR 164

Jurisdiction:

England and Wales

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth

Updated: 16 May 2022; Ref: scu.223742

Willoughby v Eckstein: ChD 1936

The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height of the new building was such as to prevent the proper escape of smoke from his chimneys, and was an actionable nuisance. The lease under which the plaintiff held his property conferred upon the tenant certain rights over adjoining land but continued: ‘but without including any rights of light or other easements over other ground or premises and subject nevertheless to all rights and easements belonging to any adjacent property and subject to the adjacent buildings or any of them being at any time or times rebuilt or altered according to plans both as to height elevation extent and otherwise as shall or may be approved of by the ground landlord for the time being.’
Held: The claim for nuisance disclosed no actionable case, and was struck out. Any immediate right of light had been expressly excepted out of the demise.
Luxmoore J said: ‘It is to be observed that the exception to be operative must fulfil three conditions: (a) the agreement must be by deed or writing, (b) it must be express, and (c) it must also have been entered into for the purpose referred to in the section. There is no difficulty with regard to (a) and (b). The real difficulty appears to me to arise on (c). The purpose referred to in the exception to the section is described in the section as ‘that purpose.”
After reviewing the authorities he said: ‘I think the principle to be deduced from these decisions is that in order to prevent the acquisition of a statutory right to light under the Prescription Act there must be an express written agreement under which the actual enjoyment of light by a lessee is permissive throughout the whole of the term created by the lease.’ Applying that approach to the document and having referred in particular to the words about rebuilding or altering the adjacent buildings, he concluded: ‘Taken in conjunction with the exception they appear to me to constitute a grant by the lessee of the right to build during the full term of the demise on the adjacent land including No. 15 Balfour Mews, notwithstanding the effect of such building on the light to No. 13 Balfour Mews; and to constitute, together with the exception from the demise of any right to light, an agreement by the lessee of No. 13 Balfour Mews that any enjoyment of light in respect of the premises demised to her was to be permissive only throughout the whole of the term.’ Accordingly the agreement did come within the terms of section 3.
The court must apply the law as it thinks it stands.

Judges:

Luxmoore J

Citations:

[1937] 1 Ch 167, [1936] 1 All ER 650

Statutes:

Prescription Act 1832 3

Cited by:

Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Cited – Marlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
Cited – Salvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.222585

Lemmon v Webb: CA 1894

A neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner’s land. A similar right of abatement by cutting applied to encroaching roots.
Lindley LJ said: ‘But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case.’
Kay LJ said: ‘The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so.’

Judges:

Lindley, Lopes and Kay LJJ

Citations:

[1894] 3 Ch 1

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lemmon v Webb HL 27-Nov-1894
A land-owner was free to lop off boughs from his neighbours trees to the extent that they reached over his land, and he could lop them without going on to the neighbour’s land. He was not required to give notice of his intention to do so. . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 16 May 2022; Ref: scu.219081

Denaby and Cadeby Main Collieries v Anson: 1911

A right of public navigation includes the necessary incidents of such passage including the right to drop an anchor. In principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a vessel which, at least for some of the time, floats above that part and does not always rest on it.
Fletcher Moulton LJ said that it was wrong to seek to balance real or supposed advantages against encroachments upon public rights

Judges:

A T Lawrence J, Fletcher Mpulton LJ

Citations:

[1911] 1 KB 171

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – The Port of London Authority v Ashmore CA 4-Feb-2010
The Port sought to register ownership of the river bed and tidal foreshore. The defendant’s boat had been moored at a wharf, and he claimed adverse possession. The court was asked whether it was possible to acquire any title by adverse possession to . .
Cited – Dillner, Regina (on The Application of) v Sheffield City Council Admn 27-Apr-2016
The claimant challenged the policy of the respondent council to replace many established trees along streets in the City.
Held: Permission to apply for review was refused: ‘Some concern has been expressed by objectors to the scheme that, in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.214609

Barclay v Barclay: CA 1970

The question arose prior to sale between the sole trustee and an occupying beneficial tenant in common as to whether the property should be sold.
Held: The trustee of land was entitled to sell the property and divide the proceeds as the prime object of the trust was that the house should be sold, notwithstanding the fact that one of the beneficiaries had subsequently moved into the house.

Citations:

[1970] 2 QB 677

Jurisdiction:

England and Wales

Cited by:

Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 16 May 2022; Ref: scu.207072

Rudge v Richens: 1873

The mortgagee of land had entered into possession, and sold the property. He sought a declaration that he remained entitled to the balance due on the loan over and above the proceeds of sale. The defendant replied that he was not liable since the mortgagee had deprived him of his chance to repay the loan and recover possession of the property.
Held: The defendant’s plea was bad and dishonest, and the court would not intervene on his behalf. The sale of land by a mortgagee who has taken possession does not discharge the borrower from the covenant to pay any balance remaining due.

Citations:

(1873) LR 8 CP 358

Jurisdiction:

England and Wales

Cited by:

Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 16 May 2022; Ref: scu.199717

Harrop v Hirst: 1868

The inhabitants of a named district, Tamewater, in the parish of Saddleworth, claimed a right to take water from a spout in the highway The claim was for diverting water.
Held: The right was upheld. An action for diverting water is maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff’s legal rights. If you have an infringement of a legal right there is a right of action without actual damage being proved.

Citations:

(1868) LR 4 Ex 43

Jurisdiction:

England and Wales

Cited by:

Cited – Nicholas v Ely Beet Sugar Factory Ltd CA 1936
The plaintiff owned several fisheries and sought damages after the defendant polluted the riner. He was unable to prove any actual loss.
Held: Disturbance of a several fishery was an invasion of a legal right, and in such a case the injury to . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Land

Updated: 16 May 2022; Ref: scu.199942

Mount Carmel Investments Limited v Peter Thurlow Limited: CA 1988

The court considered a defence to an assertion of adverse possession, that the plaintiff had given notice of his intention to recover the land: ‘no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his house simply by reason of receiving a demand that he should quit.
On the owner’s argument time starts to run afresh by making a demand for possession. That is in flat contradiction to the long-recognised position and the statutory scheme where a squatter is in possession of another’s land. Unless the squatter vacates or gives a written acknowledgment to the owner, the owner has to issue his writ within the prescribed time limit. Otherwise he is barred, because by section 15(1) he is barred from bringing any action to recover the land after the expiration of the 12-year period.’
‘We do not accept that, in a case where one person is in possession of property, and another is not, the mere sending and receipt of a letter by which delivery up of possession is demanded, can have the effect in law for limitation purposes that the recipient of the letter ceases to be in possession and the sender of the letter acquires possession.’
‘If recovery of land is time-barred by adverse possession the right to recover mesne profits is lost, just as is the right to recover rent’

Judges:

Nicholl LJ

Citations:

[1988] 1 WLR 1078, [1988] 3 All ER 129

Statutes:

Land Registration Act 1925 15(1) 75(1)

Jurisdiction:

England and Wales

Citing:

Applied – In Re Jolly CA 1900
Mrs Jolly let a farm to her son who paid rent until 1881, but not thereafter, and her title to the farm was extinguished in 1893. She died in 1898. The question which arose was whether at her death any rent arrears remained due.
Held: The . .

Cited by:

Cited – Markfield Investments Ltd v Evans CA 9-Nov-2000
The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
Held: With regard to any particular action the . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 16 May 2022; Ref: scu.197882