The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had managed a golf course on the land without objection from the claimants, and that therefore the use of the land by the residents had not itself been as of right.
Held: The residents’ appeal succeeded, and the land should be registered as a green. The question whether user was as of right was to be determined solely by reference to the tripartite test: that the user must be nec vi, nec clam and nec precario. The fact that residents had accommodated the use of parts of the land as a golf course did not prevent their use being as of right. Although the local residents’ private beliefs as to their rights are irrelevant, the same is not true of their outward behaviour on the land in question.
The local inhabitants’ rights to use a green following registration could not interfere with competing activities of the landowner to a greater extent than during the qualifying period.
Lord Hope said: ‘the English theory of prescription is concerned with ‘how the matter would have appeared to the owner of the land’ . . But I have great difficulty in seeing how a reasonable owner would have concluded that the residents were not asserting a right to take recreation on the disputed land, simply because they normally showed civility (or, in the inspector’s word, deference) towards members of the golf club who were out playing golf. It is not as if the residents took to their heels and vacated the land whenever they saw a golfer. They simply acted (as all the members of the Court agree, in much the same terms) with courtesy and common sense. But courteous and sensible though they were (with occasional exceptions) the fact remains that they were regularly, in large numbers, crossing the fairways as well as walking on the rough, and often (it seems) failing to clear up after their dogs when they defecated. ‘
Lord Walker confirmed that: ‘ ‘as of right’ is sufficiently described by the tripartite test nec vi, nec clam, nec precario established by high authority’. Persons claiming to have acquired a right by prescription ‘must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him’.

Judges:

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr

Citations:

[2010] UKSC 11, UKSC 2009/0127, [2010] NPC 27, [2010] 2 All ER 613, [2010] 10 EG 116, [2010] BLGR 295, [2010] 2 WLR 653, [2010] 2 AC 70

Links:

Bailii, SC, SC Cumm, Times

Statutes:

Commons Act 2006 15, Housing Act 1985

Jurisdiction:

England and Wales

Citing:

At First Instance – Lewis, Regina (on the Application of) v Redcar and Cleveland Borough Council Admn 20-Dec-2007
The claimant sought registration of an open area as a Commons under the 2006 Act. Until 2002 it had been tenanted by a golf club. The inspector had recommended against registration, saying that the use by the public for lawful pastimes had been for . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
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 – Regina (Laing Homes Ltd) v Buckinghamshire County Council Admn 8-Jul-2003
Land was used for ‘low-level agricultural activities’ such as taking a hay crop at the same time as it was being used by the inhabitants for sports and pastimes.
Held: The Act was not intended to prevent the owner using the land in a way which . .
Cited – Humphreys v Rochdale Metropolitan Borough Council Admn 18-Jun-2004
Acts of grazing and fertilising by the owner which would have contravened the 1857 and 1876 Acts if the land had been a village green at the time, prevented the land from satisfying the section 22 definition. . .
Appeal from – Lewis, Regina (on the application of) v Redcar and Cleveland Borough Council and Another CA 15-Jan-2009
The claimants sought registration of land as a common, saying that it had been used by the local residents for social activities for many years. The council had licenced the land for use as a golf course for many years.
Held: The residents’ . .
Cited – Fitch v Fitch 1798
The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel.
Held: The court considered the rights arising from land being declared to be a common: ‘The inhabitants have a . .
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 . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – Gardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
Cited – Bright v Walker 1834
Where a way had been used adversely and under a claim of right, for more than twenty years, over land in the possession of a lessee who held under a lease for lives granted by the Bishop of Worcester. Held that under the act 2 and 3 Will. 4, c. 71, . .
Mentioned – Hollins v Verney 1883
A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close. . .
Cited – Hollins v Verney CA 1884
A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted. Lindley LJ said: ‘It is difficult, if not impossible, to enunciate a principle which will reconcile all . .
Cited – Bridle v Ruby CA 1989
The plaintiff was able to establish a right of way by prescription despite his personal belief that he had such a right by grant.
Ralph Gibson LJ said: ‘For mistake as to the origin of the right asserted by the user to be relevant, it seems to . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Cited – Henderson v Volk 1982
(Court of Appeal of Ontario) Cory JA said: ‘It is different when a party seeks to establish a right-of-way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient . .

Cited by:

Cited – London Tara Hotel Ltd v Kensington Close Hotel Ltd ChD 1-Nov-2010
The defendant asserted that it had acquired the right to use a private access road over the claimant’s land. There had been a licence granted under which an earlier owner had been said to have used the land. The defendant claimed under the 1832 Act . .
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 . .
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 . .
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 . .
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Cited – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another SC 6-Mar-2014
The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.402003

Parker J said that ‘the mere fact that a natural watercourse is culverted or piped by the several owners of the lands which are intersected by it does not make it a drain or sewer so as to vest it in the local authority’ under the 1875 Act.

Judges:

Parker J

Citations:

[1911] 1 Ch 521

Statutes:

Public Health Act 1875

Cited by:

Cited – Raglan Housing Association Ltd v Southampton City Council and Southern Water Services Ltd CA 30-Jul-2007
The claimant sought damages in nuisance from the defendants saying that a channel for which they were responsible flooded causing damage. The defendant appealed a finding that the culvert had become a sewer. It had been a natural stream, but had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.260137

Judges:

Darling J, Channell J

Citations:

[1900] 2 QB 129

Cited by:

Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.263192

The plaintiff sought rectification of its lease.
Held: The court ordered rectfication applying section 63(1): ‘I need not read any further. But [Counsel] submits, I think rightly so, that under that provision the transfer, which was a transfer of the freehold reversion, subject, of course, to the lease, from the original landlords to the present Plaintiffs, it is effective to pass such interest as there may be or may have been in the original landlords to have the lease rectified in the manner now sought to have it rectified.’

Judges:

Falconer J

Citations:

(1983) 268 EG 817

Statutes:

Law of Property Act 1925 63(1)

Cited by:

Cited – Harbour Estates Limited v HSBC Bank Plc ChD 15-Jul-2004
The lease contained a break clause. The parties disputed whether the benefit of the clause was personal to the orginal lessee, or whether it touched and concerned the land, and therefore the benefit of it passed with the land.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.263196

Pasturage is, in itself, a well-recognised servitude. Lord Grieve said that the number of cattle that may be put on the lands of the servient tenement must not exceed that which is ‘proper to the dominant’ – that, is, that the number that the proprietor of the dominant tenement can support from his own resources.

Judges:

Lord Fraser of Tullybelton, Lord Grieve

Citations:

1978 SC (HL) 19

Jurisdiction:

Scotland

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

Updated: 14 May 2022; Ref: scu.260022

A cottage on Mull had no public water supply. The owner had a right to draw water for domestic purposes from a ‘spring or well’ on neighbouring land, but without any guarantee as to its sufficiency, purity or suitability; ‘and for the above purpose to lay and maintain at the expense of my said disponee and her foresaids adequate water pipes for the purpose of withdrawing water for the purposes aforesaid.’ The owner of the cottage employed a firm, carried on by the man behind the company that owned the land on which the source of water lay, to construct a piped water supply from the source to her cottage. The work was not done satisfactorily and the owner terminated her contract with the firm and employed other contractors to complete the necessary works, which included a dam and settling tank. The company threatened to remove the entire installation, on the ground that, due to a misdescription of the source of the water in the title, the owner of the cottage had no servitude whatever over its land. She brought proceedings to interdict the company from interfering with her water supply. The company contended that, even if the misdescription point were rejected – as it was – the settling tank should none the less be removed, on the ground that, in terms of the disposition, the dominant proprietor had no right to do anything more than lay water pipes on its land.
Held: The company’s appeal failed. It was not entitled to remove the settling tank. Although the right to construct and maintain a settling tank on the servient land was different from the right to lay pipes on the land, a servitude right to lay pipes could carry with it an implied right to construct a settling tank on the servient land, where the works ‘were essential to make the servitude effective’ (Lord Reid) or were ‘essential to the carrying out of the purpose for which the original servitude was granted’ or were a ‘means of obtaining an effective supply of water’ (Lord Guest).
After noting that the company admitted that some kind of dam was necessary to provide a source from which water would flow into the pipe, Lord Reid said: ‘And if it is equally necessary for the enjoyment of the right to draw a domestic water supply from this point that there should be a settling tank, in my opinion the making of such a tank is equally authorised by the grant. The owner of the dominant tenement must not erect works of a size or character beyond what is necessary for the enjoyment of the right granted. But it must have been the intention of the granter of the servitude should have a right to construct on his land such works as were essential to make the servitude effective, and I find nothing in the wording of the grant to prevent that from being done.’
Lord Guest pointed out that without the settling tank, the pipes became blocked, and said ‘If the respondent was entitled to draw water from the stream and she was entitled to collect the water by means of a dam and to take it by means of pipes for domestic purposes, my view is that the servitude comprehended that she would be given an effective water supply system. Ferguson on The Law of Water, page 264, states the matter thus: ‘The principle appears to be that that may be done which is essential to the carrying out of the purpose for which the original servitude was granted . . .’ Without a settling tank the water supply granted by the servitude would be rendered useless as the pipes would be at times blocked. Whether the settling tank be regarded as part of the system of water pipes or as a means of obtaining an effective supply of water, I am clearly of opinion that the appellants cannot object to the presence of the settling tank.’

Judges:

Lord Reid, Lord Guest

Citations:

Unreported, 20 June 1967

Jurisdiction:

Scotland

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

Updated: 14 May 2022; Ref: scu.260031

Judges:

Kay J

Citations:

(1887) 37 ChD 490

Cited by:

Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.258292

A public right of way was claimed. It was argued that, in the absence of evidence of facts inconsistent with a dedication of the pathway, the jury were obliged to make such a finding.
Held: The House rejected this submission. User was no more than evidence from which dedication could be inferred. It was open to the jury to ascribe the user to toleration or some other cause.
The presumption of dedication from use by the public is ‘a probable inference from facts proved to the fact in issue, and it follows that in a particular case it is for the judges of fact to determine whether, on the evidence adduced, it can reasonably be drawn’
Lord Dunedin said: ‘User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no one can see into a man’s mind, and therefore dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts. But that still leaves as matter for inquiry what was the user, and to what did it point. And this must be considered, not after the method of the Horatii and Curiatii, by taking a set of isolated findings, saying that they presumably lead to a certain result, and then proceeding to see if that presumption can be rebutted, but by considering the whole facts, the surroundings which lead to the user, and from all those facts, including the user, coming to the conclusion whether or not the user did infer dedication.’
. . ‘If you know nothing about a road except that you find it is used, then the origin of the road is, so to speak, to be found in the user, and in such cases it is safe to say, whether strictly accurate or not, that the user raises a legal presumption of dedication. That really means no more than this, that the evidence points all one way. Hundreds of highways are in this position. But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. But from that house there leads another avenue to the north which connects with a public road different from that from which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up the one avenue and down the other-perhaps without actually calling at the house-raise a presumption that the landholder had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.’
. . And: ‘With deference to the learned judges,. I do not think that is a proper way to approach the question, and its defect, to my mind, consists in regarding ‘user’ as an inflexible term, which, if found to apply, can lead to only one legal result. User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no-one can see into a man’s mind, and therefore dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts. But that still leaves as matter for enquiry what was the user, and to what did it point. And this must be considered, not after the method of the Horatii and Curiatii, by taking a set of isolated findings, saying that they presumably lead to a certain result, and then proceeding to see if that pre sumption can be rebutted, but by considering the whole facts, the surroundings which lead to the user, and from all those facts, including the user, coming to the conclusion whether or not the user did infer dedication’.

Citations:

[1914] AC 338

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Cited – Brand and Another v Philip Lund (Consultants) Ltd ChD 18-Jul-1989
The plaintiffs objected to the transport of wood from the defendant’s neighbouring land by lorry along an accessway to the plaintiff’s land. They said the defendants had no right of vehicular access. The defendants asserted a public vehicular . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.253529

The fact that a way is not itself made up or identifiable on the ground may not be fatal to the establishment of an easement under Wheeldon v. Burrows or section 62 of the 1925 Act, if the ends of the way are apparent and it is clear that it was the intention of the parties to the conveyance that there was to be a way between the two ends.

Judges:

Russell J

Citations:

[1921] 1 Ch 322

Statutes:

Law of Property Act 1925 62

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.253409

A jury asked to uphold a public right of way has to find as a fact that there has been an act of dedication accompanied by the necessary animus dedicandi on the part of the landowner.

Citations:

(1843) 11 M and W 827

Cited by:

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: 14 May 2022; Ref: scu.253527

Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures.

Citations:

[1911] 1 Ch 237

Jurisdiction:

England and Wales

Cited by:

Cited – Berkley v Poulett and others CA 29-Oct-1976
Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.252429

A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is granted to be used, everything necessary to support that use is carried. Twysdon J said: ‘where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor’s land as incident to the grant; for without it he cannot derive any benefit from the grant.’ ‘A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.’

Judges:

Twysdon J

Citations:

(1669) 1 Wms Saund 321, (1669) 2 Keb 543, (1669) 1 Sid 429, (1669) 1 Vent 26, (1669) 85 ER 454

Jurisdiction:

England and Wales

Cited by:

Cited – Titchmarsh v Royston Water Company Limited 1899
The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult.
Held: . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
See Also – Pomfret v Ricroft (No 1) 1685
. .
See Also – Pomfret v Ricroft (No 2) 1685
. .
See Also – Pomfret v Ricroft 1714
. .
See Also – Pomfret v Roycroft 1726
. .
See Also – Pomfret v Ricroft 1726
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.253272

The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult.
Held: Kekewich J said: ‘the peculiar circumstances here are that the land in question is not blocked on all sides, though it is blocked on three sides by land of the vendor. The question arises, is the doctrine which calls into existence a way of necessity applicable to such a case?
In the notes in Pomfret v Ricroft it is thus stated: ‘where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor’s land as incident to the grant; for without it he cannot derive any benefit from the grant.’ ‘A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.’ This statement, by the use of the words ‘surrounded with his own land’ excludes such a case as this where the granted premises are not surrounded by land of the vendor, but abut on one side on land of a stranger. There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: ‘So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere’. For this reference is made to Rolle’s Abridgement and Viner’s Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has foundered. No such excrescence is justified by the old and often-quoted case all Clarke v Cogge . . .where the extension of the doctrine to a reservation in favour of the vendor or as against the purchaser is established. Some argument was addressed to the peculiar feature of this case -viz that the boundary on the fourth side is a highway, and the fact that such highway runs in a cutting, which would make connection with the granted land difficult. There is no occasion to discuss the right of a man whose land adjoins a highway to make, if he has not already got, access thereto, and the difficulty is met by the observation that the very road over which the purchasers claimed a right of way was constructed so as to overcome it, and making a connection between the vendors land – including the part sold – and the same highway and the same cutting.’

Judges:

Kekewich J

Citations:

(1899) 81 LT 673

Citing:

Cited – Pomfret v Ricroft 1669
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is . .

Cited by:

Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.253248

Citations:

[1969] 1 WLR 1807

Statutes:

Land Charges Act 1925

Cited by:

Cited – Oceanic Village Ltd v United Attractions Ltd, Shirayama ChD 9-Dec-1999
The tenant sought an injunction against its neighbour and landlord to prevent it letting an adjoining property without a restriction similar to the one in its own lease. The claimants sought reassurance from the defendant tenants of the adjoining . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.246738

The court was asked to construe the terms of a covenant given by the council to the claimant.

Citations:

[1968] 207 EG 803

Cited by:

Cited – 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

Updated: 14 May 2022; Ref: scu.245981

Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times.
Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but for the purposes of the fishermen’s trade as fishermen.
The court was asked whether a custom for fishermen to spread their nets to dry upon the beach could be a right capable of being acquired by prescription. The beach belonged to a private owner.
Held: It could. A separate issue was whether the custom, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed. Farwell J held that it could.

Judges:

Farwell J

Citations:

[1904] 2 Ch 534

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 . .
Appeal from – Mercer v Denne CA 1905
The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed.
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.242335

The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed.
Held:
Stirling LJ said: ‘It is next said that a considerable portion of the ‘beach ground’ consists of an accretion during the last fifty or sixty years, and that the custom cannot extend to that part. Custom, it is argued, is a local law, which must have existed from time immemorial – that is, from the beginning of the reign of Richard I – and cannot be applicable to land which can be shewn to have emerged from the sea in modern times. In Rex v. Lord Yarborough . . it was established that lands ‘formed by alluvion, that is by gradual and imperceptible deposit, on the shore of the sea,’ belonged, not to the Crown as owner of the foreshore, but to the owner of the demesne lands of a manor, which were formerly bounded by the sea, as parcel of those demesne lands. Every manor must have existed prior to the statute of Quia Emptores; but it was not suggested that the operation of the rule was excluded by reason of the accretions having taken place in modern times. The reason of that rule is stated by Alderson B. in In re Hull and Selby Ry. Co . . to be ‘that which cannot be perceived in its progress is taken to be as if it never had existed at all.’ This was approved by Lord Chelmsford in Attorney-General v. Chambers . . and has been applied in the present case by Farwell J., who held that this accretion is to be treated as though it had occurred in 1189.’
Cozens-Hardy LJ said: ‘It is contended that the ‘local law’ can only affect a definite close, which must have been available for the exercise of the customary right in the reign of Richard I., and that the evidence shews that a considerable part of the ‘beach ground,’ now eleven acres in extent, was at that time covered by the sea, and therefore could not have been used for drying nets. In my opinion this contention ought not to prevail. It appears certain, from the evidence of geologists and from the discovery of Roman remains immediately to the west of the ‘beach ground,’ that at least the western part of the ‘beach ground’ existed in and long prior to the reign of Richard I. in substantially the same condition as it does at present. Within living memory the sea has gradually receded on this part of the coast, but there is nothing improbable in the suggestion that the reverse process may have gone on since the reign of Richard I., with the result that the line of high water is now practically the same as at that date, in which case the point under discussion would not arise. Assuming, however, that the sea has gradually and continuously receded, I think the land which has been added by accretion to the defendant’s land must be subject to the customary right. The principle stated by Alderson B. in In re Hull and Selby Ry. Co . . that ‘that which cannot be perceived in its progress is taken to be as if it never had existed at all’ – a principle which is applied between two private owners, and between the Crown and a private owner – should be applied here. In the view of the law this is the same close as that which was affected by the local law in the time of Richard I. It is urged that this extension of area renders the custom uncertain, and, if the sea should still further recede, unreasonable. I cannot assent to that argument. It must not be forgotten that the persons claiming under the custom are bound to exercise their rights reasonably and with due regard to the interest of the owner of the soil.’

Judges:

Stirling, Cozens-Hardy, Vaughan-Williams LJ

Citations:

[1905] 2 Ch 538

Jurisdiction:

England and Wales

Citing:

Appeal from – Mercer v Denne 1904
Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times.
Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but . .

Cited by:

Mentioned – 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 – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.242337

Citations:

[1950] Ch 247

Cited by:

Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.239382

Environment – Whether diminution in the value of a property listed as an asset of community value is a legitimate head of claim for compensation under regulation 14 of the Assets of Community Value (England) Regulations 2012 Environment – When a loss is ‘incurred’ for the purposes of regulation 14(5)(b). Environment – Whether a local authority has a discretion to extend the thirteen-week time limit in regulation 14(5)(b).

Citations:

[2020] UKUT 288 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 14 May 2022; Ref: scu.656584

The presumption as to ownership of a lane by adjoining owners, the ad medium filum viae presumption, operates in the absence of evidence to the contrary.

Citations:

[1902] 1 Ch 269

Land

Updated: 14 May 2022; Ref: scu.235520

A conveyance under section 77 of the 1845 Act does not pass the minerals beneath unless they are expressly included in that conveyance, i.e. otherwise they are retained by the vendor. A deed which gave accurate effect to a pre-existing opion could not be rectified to reflect what was claimed to be the true intention of the parties.

Citations:

[1907] 1 Ch 550

Statutes:

Railway Clauses Consolidation Act 1845

Land

Updated: 14 May 2022; Ref: scu.235522

Where a property being conveyed was said to be more particularly described or delineated on a plan, the verbal description prevailed but this was only because the court treated the combined expressions as meaning no more than ‘for the purpose of identification only’. Lord Denning MR: ‘In this case we have the words ‘for the purpose of identification only’. Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof.’

Judges:

Lord Denning MR

Citations:

Unreported, February 11 1977

Jurisdiction:

England and Wales

Cited by:

Cited – Druce v Druce CA 11-Feb-2003
The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
Held: In the circumstances the plan would . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 14 May 2022; Ref: scu.235516

A necessary consequence of the legal foundation of a mortgage is that the court may not to refuse, or to suspend, an order for possession sought by a mortgagee who was otherwise entitled to enter by virtue of his estate.

Judges:

Harman J

Citations:

[1957] Ch 317

Cited by:

Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.230369

On the compulsory purchase of a hairdresser’s business, the tribunal adopted a three years’ purchase basis.

Citations:

[1996] RVR 94

Cited by:

Cited – Halil v London Borough of Lambeth LT 2-Mar-2001
LT COMPENSATION – compulsory acquisition of leasehold shop and premises – total extinguishment of business – disturbance – analysis of accounts – treatment of wife’s earnings – depreciation of capital assets – . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.230994

A paper owner, as a stranger to the landlord and tenant relationship, cannot invoke an acknowledgment by the squatter’s landlord. The doctrine is based on estoppel. ‘the landlord is thereby entitled against the tenant who took, but not against a third person.’

Judges:

Lord Campbell CJ

Citations:

(1851) 17 QB 374

Jurisdiction:

England and Wales

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: 13 May 2022; Ref: scu.228939

Maugham J said: ‘Where . . two properties belong to a single owner and are about to be granted and are separated by a common road, or where a plainly visible road exists over one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, the right to use the road will pass with the quasi-dominant tenement, unless that right is excluded by the terms of the contract that right is excluded.’

Judges:

Maugham J

Citations:

[1930] 1 Ch 493

Cited by:

Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.225887

Citations:

[1926] Ch 521

Jurisdiction:

England and Wales

Cited by:

Cited – Millman v Ellis CA 1996
The defendant had sold part of his land to the claimant. A right of way was granted over a lane. The purchaser asserted that he had the use of a lay-by on the lane which would otherwise be dangerous. The vendor said the plan did not include a right . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.225888

A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently sold and conveyed the land to a bona fide purchaser for value without notice of the defect in the title. This last-mentioned sale was held to be valid, but the transaction between the mortgagee and his nominee was held to be ineffective to extinguish the equity of redemption. The result was that on the taking of the mortgage account the mortgagor was entitled to the benefit of the sale to the ultimate purchaser. ‘The so-called sale was of course inoperative. A man cannot contract with himself. A man cannot sell to himself, either in his own person or in the person of another.’

Judges:

Lord Macnaghten

Citations:

[1894] AC 150

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Kildrummy (Jersey) Ltd v Inland Revenue Commissioners IHCS 1990
It was not possible in Scottish law for a man to grant a lease to a nominee for himself: (Lord Hope) ‘I have, as I have said, no difficulty in the concept by which the title to property and the beneficial interest are separated, the title being held . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.223767

The defendant had agreed at auction to buy a leasehold house from the trustees for sale under a will. The lease contained a covenant on the lessee to keep the premises insured against fire, with a clause for forfeiture in the event of non-performance of any of the covenants. The auction was in June 1858, and completion was fixed for July 20, 1858, but was delayed until August 26, 1858. The trustee who was acting for all the trustees, anticipating completion in July, renewed the insurance policy for one month only, and the policy expired on July 24, 1858. On the completion date the purchaser refused to complete on the ground that the lease was forfeited by reason of the breach of covenant. The vendors refused to obtain a waiver of the forfeiture from the lessors (Dulwich College) as a condition of completion. The purchaser then gave notice that the contract of purchase was at an end, and demanded the return of his deposit. The defendant argued that the failure to insure resulted in the title becoming defective.
Held: The question posed was ‘how long did it continue to be the duty of the vendors . . to keep up the insurance, and to perform the other covenants in the lease so as to prevent a forfeiture?’ There was an express covenant to clear all outgoings (including the insurance) until the date fixed for completion, which carried with it the implication that the vendors were not responsible thereafter. The question was whether the failure to inform the purchaser that the insurance lapsed, and the dropping of the insurance, entitled the purchaser to rescind the contract, and that ‘question must be tried upon the same grounds as if upon the dropping of the insurance the lessors had actually entered for the forfeiture and avoided the lease’. In the ‘special and peculiar circumstances’ specific performance was not decreed: the conduct of the trustee operated as a trap and caused great risk to the purchaser, and a court of equity would not lend the vendors its assistance. In the case of a sale of leasehold interests the vendor is under a duty to give good title, and therefore (subject to the express terms of the contract) to take care not to take steps which may result in forfeiture.

Citations:

(1859) 1 Drew and Sm 1

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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.223737

Citations:

(1884) LR 27 ChD 639 (Ch D)

Jurisdiction:

England and Wales

Cited by:

Cited – Capital Investments Ltd v Wednesfield Urban District Council ChD 12-Feb-1964
The council set out to acquire two plots of land for development for housing. After the process had begun, it was decided that some of the land should be uised for educational purposes. A Land Charge had been served but the matter not completed. A . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.223475

The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises.
Held: The reservation was effective to prevent a right of being acquired by the tenant by prescription.
Eve J said: ‘The question is whether the words I have just read operate as an agreement within the section or were only meant to negative the implied right which the lessee would otherwise have had of insisting that the lessor should not derogate from his own grant by building on the adjoining land – in other words, does the case fall within the decision of Hayes v King or that in Mitchell v Cantrill? It cannot be disputed that if the words in question had not been inserted, the lessee by virtue of the lessor’s implied covenant not to derogate from his grant, would have been entitled to the continued access over the lessor’s land of the light actually enjoyed at the date of the demise, and that by the uninterrupted enjoyment thereof for the statutory period he could have acquired an absolute right under the Act to the access of that light. As the lease contains a covenant by the lessee not to alter the elevation or the structure of the demised premises without the written consent of the lessor, the only windows in the contemplation of the parties to which reservation was directed must have been those in existence at the date of the demise. Whether the right to which the lessor lays claim by virtue of the qualifying words can really be described as a reservation, I very much doubt, but the matter cannot be disposed of by a criticism of this nature. One must find out the substance of the contract and in my opinion the words must be construed as a grant by the lessee to the lessor of the full right to build on his adjoining land notwithstanding the result of injury to the light of the demised premises.’

Judges:

Eve J

Citations:

[1927] 1 Ch 219, 96 LJ Ch 79

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

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 – Paragon Finance plc v City of London Real Property Co Ltd ChD 16-Jul-2001
The claimants were underlessees of an office building. The offices had enjoyed a right of light for over a hundred years, and the freehold had acquired an easement of light by lost modern grant. The roadway having been closed, the defendant head . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.222584

For a clause to be set aside a a clog on the equity of redemption, the collateral covenant has to be part of the mortgage transaction generally and not limited to the terms of the mortgage instrument.

Citations:

(1928) 41 CLR 181

Land

Updated: 13 May 2022; Ref: scu.219905

Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser’s intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable for any misdescription. In fact it was not fit for development since it extended over a culvert. This was not ascertainable on an inspection, and was unknown to the vendor also.
Held: The purchaser could rescind the contract, since the property was so fundamentally different as not to be the one contracted to buy, and the vendor had therefore failed to make good title.

Citations:

[1902] 2 Ch 258, [1902] 71 LJ Ch 666, [1902] LT 189

Jurisdiction:

England and Wales

Citing:

Applied – Flight v Booth 24-Nov-1834
The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.219186

Dismissed : Localism Act 2011

Citations:

[2017] UKFTT CR-2017-0006 (GRC

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 13 May 2022; Ref: scu.644311

Citations:

(1874) LR 9 CP 362

Jurisdiction:

England and Wales

Cited by:

Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.215861

The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it.
Held: The 1932 Act did apply, and public rights of way applied, but no public rights had been created in this particular case. Several cases and learned textbooks before 1932 refer to a right of navigation as or as analogous to a public highway. If a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a ‘right of way’. A waterway is water in a channel passing through land, and it is no misuse of language to refer to a right of navigation as a right of way ‘over’ land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. The Act sets out to overcome the difficulties inherent in establishing a dedication by sufficiently continuous user. This applies to establishing a right of navigation just as much as as it does to establishing a right to walk or drive on terra firma. Last, a river or other waterway is properly and literally described as ‘land covered by water,’ the land being the bed of the stream, lake or pond in which the water is contained. ‘Accordingly we are satisfied that, at the time when the Act of 1932 was passed, the general law was such that public rights of way could exist over a navigable river which was then, in legal parlance, a highway and that such rights of navigation were properly described as rights of way’ and ‘If . . . the object of the Act of 1932 was to simplify the law relating to the proof of the acquisition of public rights of way over highways, there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz. navigable rivers.’

Citations:

[1991] Ch 185

Statutes:

Rights of Way Act 1932

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton ChD 1990
The 1932 Act did not apply to public rights of navigation over a river. Vinelott J said: ‘ I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land . .’ The extended . .
Appealed to – 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 – Orr Ewing v Colquhoun HL 1877
The House relied upon analogies to compare public rights of navigation over watercourses and rights of way over land, but recognised the differences in language which would be used and the incidents of the rights. . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.214604

The channel of a public navigable river is a King’s highway.

Judges:

Lord Denman CJ

Citations:

[1838] 8 Ad and E 314

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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.214605

The 1932 Act did not apply to public rights of navigation over a river. Vinelott J said: ‘ I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land . .’ The extended definition of land in the Act is apt to cover situations such as a ford or a causeway subject to flooding or perhaps to stepping-stones in a stream.

Judges:

Vinelott J

Citations:

[1990] Ch 136

Statutes:

Rights of Way Act 1932

Jurisdiction:

England and Wales

Cited by:

Appeal from – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton CA 1991
The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it.
Held: The 1932 Act did apply, and public rights of way applied, but no . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.214603

The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who wished to swim in the sea). The plaintiff, the Lord of the Manor of Great Crosby and owner of the beach in question, sought an injunction to restrain this use. The defendant argued that all members of the public had the right to use a beach for the purpose of gaining access to, and bathing in, the sea.
Held: (Best J dissenting) Unless such a right could be established by usage and custom, there was no ‘common-law right for all the King’s subjects to bathe in the sea and to pass over the seashore for that purpose’.
Holroyd J said: ‘By the common law, all the King’s subjects have in general a right of passage over the sea with their ships boats and other vessels, for the purposes of navigation commerce trade and intercourse, and also in navigable rivers . .’
. . And : ‘Where the soil remains the King’s, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae.’

Judges:

Abbott CJ, Holroyd, Best JJ

Citations:

(1821) 5 BandALD 268, [1821] EngR 579, (1821) 5 B and A 268, (1821) 106 ER 1190 (B)

Links:

Commonlii

Cited by:

Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
Cited – Mace v Philcox 25-Jan-1864
The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to . .
Cited – Llandudno Urban District Council v Woods 1899
A clergyman set up a pulpit and was holding services and delivering addresses on the seashore.
Held: An injunction was refused. The court discouraged actions for trespass on public highways where the inteference was trivial. In this case, . .
Cited – Brinckman v Matley 1904
Members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.200679

The council sought to build a sewer. It had power to acquire land for this purpose, and sought to acquire the plaintiff’s bungalow. He argued that the word land did not include a building on land.

Citations:

[1972] 3 All ER 504

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hutton v Esher Urban District Council CA 1973
(reversed) The local authority sought to acquire the plaintiff’s bungalow by compulsory powers which allowed it to purchase land required to construct a new sewer.
Held: By the 1978 Act, the word land was to be read to include buildings upon . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.200608

A mortgagee may under common law go into possession before the ink is dry on the mortgage unless there is something in the contract, express or by implication, whereby he has contracted himself out of that right. He has the right because he has a legal term of years in the property or its statutory equivalent. It is a common law right which is preserved (but not created) by section 95(4).

Judges:

Harman J

Citations:

[1957] 1 Ch 317

Statutes:

Law of Property Act 1925 95(4)

Cited by:

Cited – Owen v Cornell 1967
The mere fact of a sub-mortgage did not prevent the principal mortgagee from exercising his rights under the principal mortgage. ‘The fact was that the legal estate in the term of 3,000 years still remained in the head mortgagee, notwithstanding . .
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.197902

Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’

Judges:

Eve J

Citations:

[1915] 2 Ch 252

Cited by:

Cited – Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands PC 29-Jul-1947
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used . .
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: 13 May 2022; Ref: scu.196519

‘The word ‘occupy’ is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, . . At other times ‘occupation’ denotes nothing more than physical presence in a place for a substantial period of time, . . Its precise meaning in any particular statute . . must depend on the purpose for which, and the context in which, it is used.’

Judges:

Viscount Cave

Citations:

[1922] 1 AC 500

Cited by:

Cited – International Traders Ferry Ltd v Adur District Council CA 26-Feb-2004
The council served a stop notice. The company sought compensation. The council replied that the company had no legal or equitable interest in the land affected.
Held: The company had occupied the land under a licence. A contractual licensee on . .
Cited – Stevens v Bromley London Borough Council 1972
The court referred to the extent of interest in land required by caravan dwellers to support payment of compensation on the issue of enforcement notice.
Held: Salmon LJ said: ‘I agree that the interest referred to in section 45(3)(b) is . .
Cited – Bushell and Others, Regina (on the Application of) v Newcastle Upon Tyne Licensing Justices and Another HL 15-Feb-2006
Licensees appealed against the grant of judicial review of decisions granting special removal of old on-licences for premises. The grant had been challenged on the basis that the magistrates had had no jurisdiction to make the award because the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.194775

Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are disallowed’. A bona fide purchaser is protected by the principle of good faith against any subsequent purchaser of the land who, in the knowledge of the prior sale, wins the race to the register.
‘In a contract for the sale of heritage, where it is stipulated that the price is to be paid on a particular date, payment of the price on the appointed date is not, in general, an essential condition of the contract, and failure to pay on that date does not entitle the seller to rescind.’

Judges:

Lord Justice Clerk Thomson

Citations:

1950 SC 483

Jurisdiction:

Scotland

Cited by:

Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Cited – Simmers v Innes HL 16-Apr-2008
The House was asked whether an option to purchase certain land had been validly exercised. The farm assets had been transferred into a company in order to generate cash. Mr Simmers was apparently gven a right for five years to purchase the business. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.194213

A prescriptive right of way had been enjoyed in connection only with agricultural use of the dominant land, which was a field.
Held: The way could not be used in connection with the use of the field as a caravan and camping site. Harman J said: ‘the use proposed would be an unjustifiable increase of the burden of the easement.’ The court considered the law relating to breaks in the enjoyment an easement.

Judges:

Harman J

Citations:

[1953] 1 All ER 1029

Jurisdiction:

England and Wales

Citing:

Applied – Wimbledon and Putney Commons Conservators v Dixon CA 1875
A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting . .

Cited by:

Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
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 . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.194016

Citations:

(1890) 15 AC 188

Jurisdiction:

England and Wales

Cited by:

Distinguished – Tate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.192598

Though an enquiry as to whether land is a green can only be initiated by an application for the addition of the claimed green to the register by some individual, the enquiry should not be seen as civil litigation between the applicant and any objectors: the public also clearly has an interest in the outcome.

Judges:

Slade LJ

Citations:

[1985] 1 Ch 329

Jurisdiction:

England and Wales

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 – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.192095

Covenants in building scheme – not annexed to land

Citations:

[1957] 2 All ER 517, 101 Sol Jo 554

Jurisdiction:

England and Wales

Citing:

Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 May 2022; Ref: scu.190061