Category: Land

Newcomen v Coulson: CA 1887

The grantee of an easement may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him.

Judges:

Jessel MR

Citations:

(1887) 5 Ch D 133

Jurisdiction:

England and Wales

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.581424

Bond v Norman: ChD 1939

If an Act is to have the effect of taking away a property right, ‘it must be by plain enactment or necessary intendment’

Judges:

Simonds J

Citations:

[1939] 1 Ch 847

Jurisdiction:

England and Wales

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.581423

Prior of Southwards: 1498

The prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it.
Held: If the glover had dug the lime pit in the prior’s soil, the action ought to be in trespass: but if it was made in the glover’s soil it should be in case.

Citations:

[1498] YB Henry 7 26

Jurisdiction:

England and Wales

Cited by:

Cited – Routledge v McKay and others CA 10-Mar-1954
In considering whether a statement amounts to a warranty in a contract, the court may have regard to the time which has elapsed between the time of making the statement and the final implementation of the agreement; if the interval is a long one, . .
Cited – Southport Corporation v Esso Petroleum Co Ltd CA 3-Jun-1954
The defendant’s tanker came aground, spilling fuel, for which the corporation claimed damages. The corporation appealed against rejection of that claim.
Held: In order to support an action for private nuisance the defendant must have used his . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 04 May 2022; Ref: scu.581031

Gee v Liddell: ChD 1913

A co-mortgagor has an ‘interest in [and] a charge upon the estate of the principal debtor’. An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of ‘a charge upon the estate of the principal debtor by way of indemnity for the purpose of enforcing against that estate the right which [the beneficiary] has, as between [the beneficiary] and the principal debtor, to have that estate resorted to first for the payment of the debt’

Judges:

Warrington J

Citations:

[1913] 2 Ch 62

Jurisdiction:

England and Wales

Cited by:

Cited – Day v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Cited – Armstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 04 May 2022; Ref: scu.567251

Regina v Secretary of State for the Environment, ex parte Andrews: Admn 1996

Judges:

Schiemann J

Citations:

(1996) 71 P and CR 1

Jurisdiction:

England and Wales

Cited by:

Appeal from – In the Matter of an Application for Judicial Review R v Secretary of State for Home Department ex parte Stephen Andrews CA 4-Jul-1997
. .
See Also – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.570118

Cooke v Ingram: 1893

Wright J said: ‘There is nothing in the original grant of the way which expressly limits the grantee to one line of access or to access only at the points, if any where his land actually adjoined the new way. And the parties certainly acted from the first upon the construction that the grantee was not limited to the shorter line of access, for the track always in fact used was not the shortest. In the absence of any such express limitation and of anything to shew that the right as claimed is unreasonable or destructive of the object of the grant I am unable to see any ground on which any obligation to elect one particular line of access can be implied’.

Judges:

Wright J

Citations:

(1893) 68 LT 671

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 04 May 2022; Ref: scu.561492

HE Green and Sons v Minister of Health (No 2): 1948

On an application under the 1936 Ac, provided that the field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community.
Denning J said: ‘The next question is whether the order [that was the compulsory purchase order] is invalid because, in addition to houses being put up on this land, the co-operation proposed to put up nurseries, a health centre, a youth centre, shops, a public house, and so forth. It is said, and truly said, that in providing or contemplating the provision of those amenities, the co-operation intend that they should be available, not only to the persons living in the houses that are going to be put up in this estate, but also for persons from the neighbouring areas. It is said that makes the proposal invalid. This contention depends on the true interpretation of s 80. That section, contemplates that, providing the Minister consents, the land may be used, not only for houses, but also for shops, recreation grounds, and other buildings, which ‘will serve a beneficial purpose in connecxion with the requirements of the persons for whom the housing accommodation is provided.’ It is said if this proposed health centre, shops, etc, are in connexion with the requirements of other persons, in addition to those of this estate, that makes it outside the powers of s 80. I do not think that is a correct interpretation. The fact that it will also serve a beneficial purpose for other persons does not make it any the less a beneficial purpose for the persons in this housing estate. I see no reason for introducing the limitation which is suggested, and I do not think the proposed development is invalid.’

Judges:

Denning J

Citations:

[1948] 1 KB 34

Statutes:

Housing Act 1936 80

Cited by:

Cited – Barkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.543885

Ilford Urban District Council v Beal and Judd: 1925

A defendant land owner is not liable in nuisance to a property below them when they had neither created any nuisance nor continued it when they knew or ought to have known that their property constituted a nuisance or hidden danger to the properties below.

Citations:

[1925] 1 KB 671

Cited by:

Cited – Coope and Others v Ward and Another CA 28-Jan-2015
The court was asked: ‘ (i) whether the Appellants, owed to the Respondents a ‘measured duty of care’ which, in certain circumstances, may arise as between adjoining landowners in respect of a hazard arising on their land without their fault; (ii) . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 04 May 2022; Ref: scu.542055

Weld v Petre: 1929

Delay simpliciter is immaterial in the case of equitable remedies. A mortgagor’s redemption suit was held not time-barred under laches despite his delay of twenty-six years.

Citations:

[1929] 1 Ch 33

Jurisdiction:

England and Wales

Cited by:

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

Equity, Land

Updated: 04 May 2022; Ref: scu.539582

Ley v Devon County Council: QBD 28 Feb 2007

The claimant tripped as she walked along a pathway across the estate on which she lived. There was a sign to the effect that the path was for ‘Residents Only’. Hshe sued for persoanla injury on the basis that despite the sign, the pathway was a public footpath.
Held: The Council’s appeal succeeded. Despite a possible use for over 20 years, the sign was sufficient to negate any intention to designate the path as a public highway and it was not such.

Citations:

Unreported, 28.2.07

Land, Personal Injury

Updated: 04 May 2022; Ref: scu.538905

Brown v Harrison: CA 1947

Somervell LJ reiterated the relevant test (formulated by the judge at first instance) in these terms: ‘If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act.’

Judges:

Somervell LJ

Citations:

[1947] 177 LT 281

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence, Land

Updated: 04 May 2022; Ref: scu.526446

Corporation of Truro v Rowe: 1901

Where a public fishery in tidal waters exists no person – including the Crown – has the right to exclude the public or substantially to interfere with fishery.
Wiles J said: ‘It is quite true that the oyster-laying may interfere with the uninterrupted user of the foreshore by the owner; but a like interference with territorial rights takes place in many instances which present no legal difficulty. The rights of inhabitants to recreate themselves on a village green have been repeatedly established by evidence and upheld by the Courts, and yet they may absolutely destroy all chance of the owner making any, or any but the slightest, beneficial use of land which is undoubtedly his. The custom here alleged is not open to the objection that it is in substance a claim to a profit a prendre, nor in my judgment to any other legal objection to its validity. Apart from custom, the owner of the foreshore owns and enjoys the foreshore subject to the common rights of all members of the public, which are such as to reduce the value of the foreshore in nine cases out of ten to something of very small pecuniary value. The owner cannot build on it, because the public have rights of passage over it everywhere per mare et per terram. In all but some exceptional cases he cannot graze it, because no herbage will grow upon it. Where herbage will grow upon it, as in the fens, I do not think oysters will be found to be composite factors. At all events, the enjoyment of the foreshore is subject to the common rights of fishing, and if oysters constitute a part of the fish to be taken, the right of fishing must include the necessary and practical incidentals, and if they involve the consequences that in some places the owner cannot dig ballast or sand for sale, as he can generally, he suffers no inconvenience or loss which is not common to him and the owner – for example, – of the village green, who cannot dig pits or do other acts of ownership which would interfere with the rights of recreation of the inhabitants.’

Judges:

Wills J

Citations:

[1901] 2 KB 870

Land, Agriculture

Updated: 04 May 2022; Ref: scu.526742

Lambourn v London Brick Co Ltd: 28 Jul 1950

Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: ‘the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.’

Citations:

[1950] EG 28 July 1950

Cited by:

Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Lists of cited by and citing cases may be incomplete.

Land, Negligence, Nuisance

Updated: 04 May 2022; Ref: scu.526447

Lawrence and Another v Fen Tigers Ltd and Others: CA 2012

Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of the locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in the locality cease to constitute a nuisance.’
. . And ‘time does not run for the purposes of prescription unless the activities of the owner (or occupier) of the putative dominant land can be objected to by the owner of the putative servient land. The notion that an easement can only be acquired by prescription if the activity concerned is carried on ‘as of right’ for 20 years, ie nec vi, nec clam, nec precario, would seem to carry with it the assumption that it would not assist the putative dominant owner if the activity was carried on ‘of right’ for 20 years, as no question of force, stealth or permission could apply.’

Judges:

Jackson, Mummery, Lewison LJJ

Citations:

[2012] 3 All ER 169

Jurisdiction:

England and Wales

Citing:

See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
Application to strike out passages from witness statements. . .
See Also – Lawrence and Another v Fen Tigers Ltd and Others QBD 18-Oct-2010
The court made orders to assist the future management of the case. . .
Appeal from – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .

Cited by:

Cited – Thomas and Another v Merthyr Tydfil Car Auction Ltd QBD 8-Oct-2012
The claimant complained of nuisance from adjoining car auctions works belonging to the defendants. . .
Cited – Merthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
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 . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Limitation, Land

Updated: 04 May 2022; Ref: scu.526350

Taylor v Taylor: CA 1968

Mrs T, by summons under section 17 sought a declaration that she and her husband were beneficial owners in equal shares of the matrimonial home and that the premises should be sold and the proceeds divided equally between them. She registered a lis pendens under the Land Charges Act. The house was in the husband’s name.
Held: Her interest was, at best, a share in the proceeds of sale of the house and was not an interest in land (which under the Act, was defined not to include ‘an undivided share in land,’) and it vacated the registration in exercise of its inherent jurisdiction. The court has both statutory and inherent jurisdiction to order vacation of an entry on the register on ‘other good cause’, and the inherent jurisdiction of the court is co-extensive with that of the High Court.
Russell LJ said: ‘The lis (the dispute) is not about any land, but about what is the entitlement to the beneficial interest in the land, and therefore the proceeds of sale. The purpose of registration of a lis pendens is to prevent effective disposition of the land pendente lite. How can a suit which demands that the land be disposed of be properly registrable? . . how could it be said . . that a purchaser with notice of a lis, in which there was no reference to the land except a demand that it should be sold by the defendant, could get a defective title?. . If the wife’s claim . . had been made in a writ and statement of claim, the lis could not possibly have been properly registrable.’

Judges:

Russell LJ

Citations:

[1968] 1 WLR 378

Statutes:

Married Women’s Property Act 1882 17, Land Charges Act 1925

Cited by:

Cited – Nugent v Nugent ChD 20-Dec-2013
The court was asked whether the court has, following the the 2002 Act, an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.519752

Lanfear v Chandler: CA 20 Nov 2013

Appeal in boundary dispute case.
Held: There is no presumption that T-marks indicate the ownership of the boundary feature .

Citations:

[2013] EWCA Civ 1497

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Witt v Woodhead UTLC 18-Nov-2020
No determined Boundary – Court Findings Enough
Land Registration – Boundary Disputes – Construction of Conveyance – Straight Line Boundary – usefulness of computer-generated lines – party wall – fence posts
Held: ‘It should be borne in mind that a carefully-drawn conveyance plan showing a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.518312

Hampshire County Council v Attorney General: ChD 1994

The Council wished to dispose of two plots of land. In each case the land had been provided many years ago to build schools on. In the first case, the land had been conveyed to a school board ‘upon trust for the purposes of a public elementary school’. In the second, it was conveyed to a school board ‘by way of free gift for the purposes of a site for an elementary school’. The council argued that the trusts were not charitable.
Held: Each plot was held on charitable trusts. The first conveyance had been at an undervalue, and so constituted a bounty. Though no express charitable trust had been created, this was exactly the situation where a donor might have insisted on a charitable trust, and the presumption of regularity should be used to remedy any defect. The second conveyance was a gift and so a good reason for a charitable trust was created.

Judges:

Millett J

Citations:

[1994] NPC 62

Jurisdiction:

England and Wales

Charity, Land

Updated: 04 May 2022; Ref: scu.517443

Watson v Gray: 1879

Citations:

[1879] Ch D 192

Cited by:

Cited – Burns and Burns v Morton CA 27-May-1999
The parties disputed the line of the boundary between their neighbouring properties.
Held: The appeal failed: ‘the conveyance in respect of each property refers to the wall between the properties as being a division or dividing wall. That . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.518367

Central London Railway v City of London Land Tax Commissioners: 1911

Swinfen Eady J said: ‘It is a well-settled rule of construction that, where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side by a public thoroughfare, then half of the road passes unless there is enough in the expressions of the instrument or in the surrounding circumstances to show that this is not the intention of the parties.’

Judges:

Swinfen Eady J

Citations:

[1911] 1 Ch 467

Land

Updated: 04 May 2022; Ref: scu.515411

Clark v Lindale Homes Limited: SCS 1994

The court set out the conditions to found a claim for breach of warrandice on a land purchase: ‘Although eviction did not mean physical removal, it did involve the emergence of a real or threatened burden on the property which had to come from a competing title – holder, that title itself being beyond doubt.’ Where the pursuer did not aver that any action had been taken by the party with the competing title, the pursuer had no relevant case.
Lord President Hope said: ‘As I understand the statement of principle in that paragraph, eviction occurs when there is a loss to the buyer due to the fact that someone else has a competing title which is beyond doubt. This is a fact which can be demonstrated judicially, or by the seller’s action admitting that there is such a defect, or by proof that the defect is unquestionable.’ and
‘The significance of the warning in sec 895 of Bell’s Principles that warrandice is an obligation to indemnify, not to protect, is that the mere possibility that there may be an eviction, where the defect is unclear, will not do. There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to an indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice’.
Though actual eviction in the sense of ejection or removal from the property is not required: ‘This still leaves open, however, the question whether it is essential, in order to bring the obligation to indemnify into existence, that a challenge to the pursuer’s title has been made by the party with the prevailing title or whether it is sufficient that there is a defect in the title which has caused loss to the grantee and would, if it had been insisted upon, have been unquestionable . . more is required to justify a claim under the warrandice clause than a mere deficiency in the title of the grantee’. And
‘As Lord McLaren observed in Welsh v Russell at p. 773, the obligation of warrandice remains latent until the conditions that give it force and effect have come into existence. The fact that the pursuer did not acquire a good title to the flat is in itself not sufficient to give rise to the obligation to indemnify. She was not entitled to incur expense to remove the defect simply in order to protect herself against the possibility of loss on its re-sale. Something else was required, and according to expressions used in the authorities it is eviction which gives rise to the claim. The word ‘eviction’ might be thought to imply that the loss is in some respect due to action by the party who has the competing title to assert his rights’.
Lord Morison said: ‘It is of course obvious that ‘eviction’ does not mean physical removal. But it is in my view equally clear on these authorities, and confirmed by the case of Welsh v Russell, that it does involve the emergence of a real or threatened burden on the property. The word itself in any event clearly indicates this to be the case. If such a burden has been judicially established, the position is clear. If it has not been judicially established the warrandice clause may still be invoked if eviction in the strict sense is threatened, provided that the threat is based on an unquestionable right. Such a threat could only come as a result of a demand from the competing title-holder, for no one else has any right, let alone an unquestionable right to make it. In my opinion the absence of any averment by the pursuer that she suffered loss either as a result of the constitution of a real burden by judicial decree or as a result of a demand by the competing title-holder, renders her case irrelevant’.

Judges:

Lord President Hope, Lord Morison

Citations:

1994 SC 210

Cited by:

Cited – Morris v Rae SCS 5-Apr-2011
The complainer had purchased land from the defender, but the Keeper of the Registers refused to register the transfer, saying that the disponer was not the owner. The claim was for breach of warrandice. . .
Cited – Morris v Rae SC 7-Nov-2012
The pursuer had bought land from the responder which in turn had bought from a company now in liquidation. On application for registration, the Keepr of the registers said the title had not been made out, and he was unable to complete the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 04 May 2022; Ref: scu.467714

John v Germany: ECHR 2006

The court considered the operation of post-reunification German land re-organisation: ‘The Court reiterates that an interference with the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights . . The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions . .
In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question . .’

Citations:

(2006) 42 EHRR 1084

Citing:

Cited – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .

Cited by:

Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing, Land

Updated: 04 May 2022; Ref: scu.467716

Bendall v McWhirter: CA 1952

The trustee in the husband’s bankrupty, by virtue of his statutory position, was subject to the same special restriction as would prevent the husband himself from evicting his wife.
The deserted wife had a personal licence to occupy the former matrimonial home that was valid as against the trustee in bankruptcy of her husband. Every subordinate interest perishes with the superior interest upon which it is dependent.
Denning LJ (dissenting) said that the wife had an equity which was binding on the trustee.

Judges:

Denning LJ, Somervell and Romer LLJ

Citations:

[1952] 2 QB 466

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 04 May 2022; Ref: scu.467180

Scott v Pape: CA 1886

Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired.
Cotton LJ said: ‘In my opinion the question to be considered is this, whether the alteration is of such a nature as to preclude the Plaintiff from alleging that he is using through the new apertures in the new wall the same cone of light, or a substantial part of that cone of light, which went to the old building. If that is established, although the right must be claimed in respect of a building, it may be claimed in respect of any building which is substantially enjoying a part, or the whole, of the light which went through the old aperture. ‘
Bowen LJ said: ‘Mr Barber endeavoured to persuade us that no right could be enjoyed after the lapse of twenty years if there had been any fluctuation in the measure of the access and use of the light during the twenty years. I cannot myself see that the statute warrants any such view. I should have thought that if there has been a use, for ten years out of the twenty, of a small window, which is enlarged during the remaining ten years of the twenty to double its size, the only right acquired in the twenty years was the right to have arrive for the use of your house the minimum portion of the pencils of light which had passed through this smaller structure; because you could not be said to have enjoyed the larger amount of light for twenty years when you had enjoyed it for ten years only – and I should pause for some time before coming to the conclusion that a man after using the smaller access of light for twenty years through the windows had lost his right to all access whatsoever merely because at some time during that period he had fruitlessly attempted to acquire an enjoyment of more. … What the person who has acquired the right is entitled to is not the window but the free access of such an amount of light as has passed through that window.’

Judges:

Cotton LJ, Bowen LJ

Citations:

(1886) 31 ChD 554

Cited by:

Criticised in part – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.463813

Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18: 1220

Citations:

[1220] EngR 368, (1220-1623) Jenk 204, (1220) 145 ER 138 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Richard Liford’s Case 1572
. .
See Also – Liford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.461280

Case XCVIII 10 Jac Cr 311, Merret v Smith Hob 76, 246 Count, Common, Bank, Ejectment: 1220

In ejectione firman, the course of the Common pleas is, where the defendant appears, to count, aud after imparlance to make a second count by way of recial ; but the first ought to contain the substance of the matter

Citations:

[1220] EngR 62, (1220-1623) Jenk 341, (1220) 145 ER 247 (E)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 04 May 2022; Ref: scu.460974

Dolphin Quays Developments Ltd v Mills and others: CA 17 May 2007

The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from the original developer, and charged it to a bank, who in due course appointed receivers. It had been argued that the contract was unenforceable under the 1989 Act because the use of the set off was an integral part of the contract, but was not evidenced in writing. Having successfully defended his claim he now sought his costs from the bank who, although not parties, had the financial interest in the claim.
Held: The order was refused. The making of a third party costs order requires some ‘exceptional’ circumstance. What is ‘exceptional’ has to be ascertained by reference to the ordinary range of litigation which comes before the courts. The circumstances were not quite usual and were not speculative, and nor had there been any impropriety.

Citations:

[2007] EWHC 1180 (Ch)

Links:

Bailii

Statutes:

Law of Property Act 1925 109(2), Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Knight v FP Special Assets Ltd 25-Jun-1992
(High Court of Australia) Two orders for the payment of costs had been made against the receivers and managers of the claimant in the action, Forest Pty Ltd, and the defendant to a counterclaim brought by the defendants to the action, Howe . .
See Also – Dolphin Quays Developments Ltd v Mills and others ChD 17-May-2007
. .
Cited – Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd CA 7-Oct-1996
A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Goodwood Recoveries Ltd v Breen CA 19-Apr-2005
A claim against the defendant for money owed to someone else had been bought by the claimant of which Slater, a solicitor, was a director and shareholder. The claim was pursued in the name of the claimant by Slater as its solicitor and principal . .
Cited – Petromec Inc v Petroleo Brasileiro Sa Petrobras CA 19-Jul-2006
A Mr Efremovich, a third party to the action was ordered to pay the costs of Petrobras and Brasoil which on the failure of its claim against them had been ordered to be paid by Petromec. The judge found that Mr Efromovich controlled the proceedings . .
Cited – Bacal Contracting Ltd v Modern Engineering (Bristol) Ltd 1980
Costs were sought against the receivers as from the commencement of the winding up of the plaintiff, and were granted on the basis that if the claim had been continued by the liquidator the applicant would have been a secured creditor. . .
Cited – Anderson v Hyde and Others CANI 2-May-1996
The defendant company was wound up after the receiver had been appointed and the liquidator declined to take over the defence to the action. The judge had refused an application for a third party costs order against the receivers.
Held: Had . .
Cited – Donnelly and others v Weybridge Construction Ltd TCC 22-Mar-2006
Application for specific dicslosure order. . .
Cited – BE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
Lists of cited by and citing cases may be incomplete.

Land, Costs, Insolvency

Updated: 04 May 2022; Ref: scu.252383

Richard Liford’s Case: 1572

Citations:

[1572] EngR 311, (1572-1616) 11 Co Rep 46, (1572) 77 ER 1206

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18 1220
. .

Cited by:

See Also – Liford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.432277

The Case of A Fine Levied By The King Tenant In Tail, and co: 1572

The King being tenant in tail by a gift made to some of his ancestors being subjects, may by fine levied on a grant aud reader bar the estate tail : but after the render made it seems necessary to have letters patent to grant to the conusee by express words, that he may enter into the land.
Where the King claims in respect of his natural capacity as heir of the body of a subject per furmam doni, he shall be bound by an Act of Parliament.
But where he claims in his Royal and politic capacity, a General Act shall not, bind him, unless he be expressly named, except in special cases.

Citations:

[1572] EngR 390, (1572-1616) 7 Co Rep 32, (1572) 77 ER 459

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.432356

Carr v Foster: 1842

The plaintiff claimed a profit a prendre saying had been acquired under s.1 of the 1832 Act, by use for 30 years, the applicable period in relation to a profit a prendre. The evidence was that the right in question, to pasture cattle on a common, had not been exercised in two years out of the period of thirty because the person claiming the right had no commonable cattle in those years. Lord Denman CJ overruled an objection that the acquisition of the profit could not be shown by reason of the non-use in two years, and the jury found for the plaintiff claiming the profit a prendre. Cause was shown, so the matter was reconsidered en banc.
Held: Lord Denman CJ had not changed his mind. He said: ‘I am of opinion that the thirty years’ enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years’ enjoyment cannot have taken place where there has been a two years’ intermission. But the words of sect. 1 are ‘without interruption’, not ‘without intermission’. And the intermission must be a matter open, in every case, to explanation . . where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time.’
Patteson J said: ‘I think there is no difficulty in the construction of the statute. ‘Interruption’ in sect. 1 must clearly mean an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord . . It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say that it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine.’
Williams J said: ‘I am of the same opinion. ‘Interruption’ means an obstruction, not a cesser or intermission, or any thing denoting a mere breach in time. There must be an overt act, indicating that the right is disputed. Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle by the fact that there were not, at the time, commonable cattle to turn on. No necessary inference arises from the cesser during two, three, or seven years. In this particular case enjoyment for the requisite period was abundantly made out.’

Judges:

Lord Denman CJ, Patteson J, Williams J

Citations:

(1842) 3 QBR 581

Statutes:

Prescription Act 1832

Cited by:

Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
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, Limitation

Updated: 02 May 2022; Ref: scu.430353

Hawker v Vickers: 1991

(New Zealand Court of Appeal) The court considered the ability of a party to waive compliance with a condition, saying: ‘there is nothing inconsistent in providing expressly or by necessary implication for unilateral waiver of a condition up to a certain date and thereafter for allowing either party to avoid the contract for non fulfilment of the condition. Such a provision simply recognises the commercial reality that the nature and significance to the parties of a condition in a contract may change over time or at a point in time. If the contract [sic] is fulfilled or waived, the parties then have the certainty of an unconditional contract. If not fulfilled or waived by the nominated date, each is free to end the contract by appropriate notice to the other.’

Citations:

[1991] 1 NZLR 399

Cited by:

Applied – Globe Holdings Ltd v Floratos 1998
(New Zealand Court of Appeal) A block of apartments was sold with possession to be given on ‘the first Friday three months after confirmation’. Special conditions required a sub-divisional consent to be obtained within 60 days of acceptance, and . .
Cited – Irwin v Wilson and Others ChD 23-Feb-2011
The claimant sought a declaration that his contract for the sale of leasehold property to the defendants had been lawfully terminated by a letter from his solicitors. The defendants had moved in before completion, but the claimant found himself . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Commonwealth

Updated: 02 May 2022; Ref: scu.430313

Jones v Price and Morgan: CA 16 Jan 1992

At trial, the use of a track across a neighbouring farm for the driving of sheep was found to be originally by oral permission, and that although the permission was not expressly renewed ‘there was a tacit understanding that did not need to be expressed overtly between neighbours, then on good terms’ that when the one farm made arrangements to bring sheep along the track ‘it was on the assumption on both sides that the permission to do so was still in force.’ The judge also found that other farmers, who could not by reason of the location of their land prescribe for an easement, similarly used the track.
Held: The appeal failed. The 1832 Act could not be used to acquire a right of way where there was found a tacit understanding that a permission given before the suggested prescription period was still in place. The use was permissive so as to preclude a prescriptive easement being acquired.
Parker LJ said: ‘Oral permission given within the period will of course negative user as of right or any claim to user as of right, but so also, in my view, will a user which continues on a common understanding that the user is and continues to be permissive. If both parties have such a common understanding it cannot be, in my judgment, that there is an assertion to a claim as of right, nor could any such user bring home to the mind of the alleged servient owner that a claim of right was being asserted. This common understanding has been found by the judge, and there was ample evidence on which he could so find.’

Judges:

Parker LJ

Citations:

(1992) 64 P and CR, Independent 16-Jan-1992

Statutes:

Prescription Act 1832

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

Land

Updated: 02 May 2022; Ref: scu.425622

St Edmunsbury v Clark (No 2): CA 1975

The conveyance created ‘a right of way’. The court considered the manner of construction of a conveyance, saying: ‘We feel no doubt that the proper approach is that upon which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances.’ However, ‘one may have words so unambiguous that no surrounding circumstances could affect their construction.’

Citations:

[1975] 1 WLR 468

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

Land

Updated: 02 May 2022; Ref: scu.425623

R G Kensington Management Co Ltd v Hutchinson IDH Ltd: ChD 2003

Neuberger J decided that he could not follow the court in Jelson, saying: ‘The defendant’s case is that the reference to ‘the parties’ in s.2(3) is to the parties to the proposed conveyance or transfer. Two strands of authority are put forward as supporting that contention. First, that the purpose of s. 2 was to introduce a new and strict regime in relation to contracts for the creation or transfer of interests in land, can be seen from observations of the Court of Appeal in First Post Home Ltd v. Johnson [1995] 1 W.L.R. 1567 at 1571B to H, and McCausland v. Duncan Laurie and Partners [1997] 1 W.L.R. 38 at 44G. Secondly, the result for which the defendant contends is compelled by the reasoning and decision at first instance in this division of Mr David Mackie Q.C. in Jolson [sic] Ltd v. Derby County Council [1999] 3 E.G.L.R. 1991. Despite these authorities, I reject the defendant’s case on s.2.
The purpose and effect of s.2 is to be assessed by reference to the words used by the legislature, and nothing said by the Court of Appeal suggests otherwise. Those words are to be given their natural meaning unless there is some very good reason to the contrary. The closing words of s.2(3) require the contract, or the parts of the contract to be signed by ‘each party to the contract’, not by ‘each party to the prospective conveyance or transfer’. In this case that means that the freehold agreement must be signed by the parties to it, the defendant and Mr Caan. Kensington is not a party to the freehold agreement and, as it is not a party to that contract, it seems there is no reason to require it to sign it. I see no reason to give an artificial meaning to s.2(3) as the defendant’s argument involves, nor do I consider it permissible to do so. Mr Dowding, in his concise submissions on this issue, said that it would be consistent with the spirit of s.2 if a contract such as the freehold agreement could only be enforced in Kensington’s favour if it could be enforced against Kensington. I accept, that the freehold agreement could not be enforced against Kensington unless Kensington had signed it. Accordingly, I see the force of the point, but there is nothing to suggest that the legislature had that sort of consideration in mind when enacting s.2. To give s.2 the meaning and effect that the defendant contends for, would involve an impermissible re-writing and extension or extension of s.2(3). It would also involve giving s.2 a greater degree of interference with Common Law rights and freedom to contract than it naturally bears.
I am not obliged to follow Jolson, but I should only depart from it if I am satisfied that it was wrongly decided, I am clear in my mind that it cannot be supported. It is fair to say that, at least judging from the report, it appears that the simple argument as to why s.2 does not preclude the enforcement of a contract such as the freehold agreement, which causes me to reject the defendant’s case, does not seem to have been raised in terms in Jolson-see the summary of the losing argument at [1999] 3 EGLR 96 B to E.’

Judges:

Neuberger J

Citations:

[2003] 2 P and CR 13

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 82

Jurisdiction:

England and Wales

Citing:

Not Followed – Jelson Ltd v Derbyshire County Council CA 1-Aug-1999
Section 2 of the 1989 Act had to bite at the point where a party could be compelled, in certain circumstances, which could or could not come about, to sell or dispose of an interest in land. The agreement here contained in effect an option for the . .
Cited – Firstpost Homes Ltd v Johnson and Others CA 14-Aug-1995
The parties disputed whether a contract had been made. The proposed contract was contained in a letter and a plan but only the plan was signed by both parties.
Held: The requirements of Section 2 had not been satisfied because it was the . .

Cited by:

Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.415912

Lovelace v Reynolds: 1653

If the jury find the defendant has common by prescription prout he has prescribed, ‘paying for it every year one penny to the plaintiff,’ the verdict is with the plaintiff.

Citations:

[1653] EngR 1259, (1653) Cro Eliz 546, (1653) 78 ER 792 (B)

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.413566

Smy v June and Alios: 1653

The use of a fine to A. and his eldest son, and the heirs male of the son does not make an estate tail.

Citations:

[1653] EngR 1829, (1653) Cro Eliz 219, (1653) 78 ER 476

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.414136

Prest v Secretary of State for Wales: CA 1982

Lord Denning MR said: ‘I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands . .’
Watkins LJ said: ‘The taking of a person’s land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought.’

Judges:

Lord Denning MR

Citations:

(1982) 81 LGR 193

Cited by:

Explained – Regina v Secretary of State for Transport, ex parte de Rothschild CA 1988
The court considered the use of powers of compulsory purchase of land under the Acts.
Held: ‘In answer to counsel’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 02 May 2022; Ref: scu.414936

Saunders v Hord: 1660

Demur to a Bill for Redemption of a Mortgage, because of the Antiquity, and plead the Stat. 21 Jac. good.

Citations:

[1660] EngR 225, (1660-61) 1 Rep Ch 184, (1660) 21 ER 544 (D)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.410215

Cook v The Earl of Arundel and others: 1660

The case was upon English bill at the suit of Cook, to make the defendant’s lands subject to the payment of a fee-farm rent, and to charge them with it

Citations:

[1660] EngR 87, (1655, 1656, 1657, 1658, 1659 and 1660) Hard 87, (1660) 145 ER 394 (C)

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.410077

Hoggett v Hoggett: CA 1980

The court considered whether there had been an effective surrender of a property at law.
Held: Where a person claims to have been in occupation of land at law, but was not physically present, it was necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy.

Judges:

Sir David Cairns

Citations:

(1980) 39 P and CR 121

Jurisdiction:

England and Wales

Citing:

Appeal from – Hoggett v Hoggett and Wallis 1979
An act of surrender of a lease by one of two joint tenants was ineffective where the other joint tenant remained living in the property. . .

Cited by:

Cited – Link Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.408606

Stockholm Finance Ltd v Garden Holdings Inc: 26 Oct 1995

Robert Walker J considered how a court should decide on whether a person was in actual occupation of a house: ‘Whether a person’s intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as continuous occupation marked (but not interrupted) by occasional absences, or whether it should be seen as a pattern of alternating periods of presence and absence, is a matter of perception which defies deep analysis. Not only the length of any absence, but also the reason for it, may be material (a holiday or a business trip may be easier to reconcile with continuing and unbroken occupation than a move to a second home, even though the duration is the same in each case). But there must come a point at which a person’s absence from his house is so prolonged that the notion of his continuing to be in actual occupation of it becomes insupportable; and in my judgment that point must have been reached in this case, long before Mr Dawkins visited the house on 4 January 1990 (and still more so, long before 20 February 1990). By then Princess Madawi had not set foot in the property for over a year: she had for over a year been living with her mother in the Islamic household at Riyadh.’

Citations:

[1995] LTL

Jurisdiction:

England and Wales

Cited by:

Cited – Link Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.408605

Baylye v Knighton: 1669

In a partitione facienda, by tenant in common against the other, an estrepment was granted, for all that the plaintiff had confest to be held in common, and not of more, for by such means, a man may be inhibited to cut his own bows, according to his occasions. But Benelowes. cap. 5. fo. 4. Seem’d, that an estrepment does not lie between tenants in common. But in M. 6 Jac. it was rul’d that the estrepment shall be granted, although that Cook Chief Justice held with Benelowes. But note, that in 5 Jac. An estrepment was granted in a partititione faciend. because it is a real action, and no damages to be recovered. And Brownlowe shewed many presidents contrary to Benelowes.

Citations:

[1669] EngR 47, (1669) Noy 143, (1669) 74 ER 1106 (B)

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.406887

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 tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.
It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor.’

Judges:

Cory JA

Citations:

(1982) 35 OR (2d) 379

Cited by:

Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
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 . .
Cited – Foodco UK Llp (T/A Muffin Break) and Others v Henry Boot Developments Ltd ChD 3-Mar-2010
The claimants had been persuaded to take up leases on a service area constructed by the defendants. They said that the publicity materials had wildly exaggerated the actual number of visitors, and sought damages for fraudulent misrepresentation.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 02 May 2022; Ref: scu.402568

Homer v Cadman: 1886

The appellant had come with a band to the bull ring in Sedgley. A crowd formed for about an hour to listen to him. The magistrate found there was an obstruction of the highway. The appellant contended that there was still space outside the crowd and between it and the footpaths for vehicles and passengers to pass.
Held: There was evidence on which the magistrate could convict the appellant of obstructing the highway under section 72.

Judges:

Mathew and Smith JJ

Citations:

(1886) 50 JP 455

Statutes:

Highway Act 1835 72

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: 02 May 2022; Ref: scu.401658

Plant v Bourne: CA 1897

Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land was receivable. Once that is admitted there is no room for dispute.
The general rule applicable was ‘Id certum est quod certum reddi potest’ – ‘That is certain which can be rendered certain’

Judges:

Lindley LJ

Citations:

[1897] 2 Ch 281

Citing:

Approved – Ogilvie v Foljambe 25-Jul-1817
Sir William Grant said: ‘The subject-matter of the agreement is left, indeed, to be ascertained by extrinsic evidence; and, for that purpose, such evidence may be received. The defendant speaks of ‘Mr Ogilvie’s house’ . . and parol evidence has . .

Cited by:

Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.393013

Scamler v Johnson: 1729

Trespass quare clausum fregit, and herbam suam depastur. The defendant pleaded that J. Ramsey, long before the trespass, was seised of an ancient messuage with the appurtenances, and prescribed for common of pasture, in the plaintiff’s close for his cattle, levant and couchant on tbe said messuage, with the appurtenances, and made title to the wife of Ramsey for her life, who bad entred and adhuc seisata existit, and conveyed to himself the said messuage at, the will of the wife, and justified utendo communia praedict’. Whereupon the plaintiff demurred. And Sanders for the plaintiff said, that the prescription is not good, for cattle cannot be levant and couchant on a messuage. Holt for the defendant, that the prescription is good, and a messuage comprehends the curtilage, which may be an acre or more, on which the cattle may be levant and couchant. And per Cur. the prescription is good, for it is not a common appendant but appurtenant, and such commori is usual in the county of Lincoln, and other counties, and that this is maintainable better for cattle levant and couchant than otherwise, 2. It was objected that the life of Frances ia not aver’d, and if she be dead, the defendant her lessee at will hath no title, But non allocatur; for (adhuc seisita existit) is a good averment of her life.

Citations:

[1729] EngR 214, (1729) T Jones 227, (1729) 84 ER 1230 (A)

Links:

Commonlii

Agriculture, Land, Animals

Updated: 02 May 2022; Ref: scu.388162

Berrysford v Millward: 18 Jul 1740

Where a Person shall lose the Benefit of a Mortgage, by reason of his being present at the Time a Settlement was made of the Estate, and his not disclosing it.

Citations:

[1740] EngR 162, (1740) Barn C 101, (1740) 27 ER 571

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.385207

Partriche v Powlet: 17 Oct 1740

A declaration of one of the parties that a joint tenancy should be severed was not sufficient unless it amounted to an actual agreement.

Judges:

Lord Hardwicke LC

Citations:

[1740] EngR 185, (1740) 2 Atk 54, (1740) 26 ER 430

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.385230

Finch v Great Western Railway Company: 1879

The extent of the right of way acquired by prescription must be measured by the extent of user during the period of time relied upon.

Judges:

Stephen J

Citations:

(1879) 5 Exch 254, (1879) 5 Exch D 254

Jurisdiction:

England and Wales

Cited by:

Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.383831

William Belchier And Others v John Renforth: PC 9 Feb 1764

It is an established rule of equity, that a third mortgagee having lent his money, without knowing there was a second mortgage upon the same estate, may, by paying off the first incumbrancer, and taking an assignment of his interest to himself, hold the estate against the second mortgagee, till he shall be paid what is due to him upon both mortgages. The principle upon which this doctrine was first established, and has ever since prevailed, is that the third mortgagee having innocently lent his money, without knowing that the second had any claim upon the estate, has in conscience as good a right to be paid the whole money he has lent, as the second mortgagee has to the payment of what he advanced ; and having by the assignment of the first mortgage got a right to hold the estate absolutely at law, and having possession of the title deeds, without which the estate cannot be sold, a Court of Conscience ought not to take from him his legal protection of an honest debt.

Citations:

[1764] EngR 26, (1764) 5 Bro PC 292, (1764) 2 ER 686

Links:

Commonlii

Land, Equity

Updated: 02 May 2022; Ref: scu.375235

Lady Wingfield v Littleton, Knight: 1794

A. covenants by indenture to assure lands to B. her son-in-law in fee to the uses after-mentioned, B covenanted to make back an estate for life, remairider to himself and wife in special tail, remainder to the wife in fee. No use was declared. Afterwards a recovery was suffered, but no estate being made back, the use shall not be changed by the indenture.

Citations:

[1794] EngR 978, (1794) 2 Dy 162 a, (1794) 73 ER 352 (B)

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.369910

Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case): PC 1939

Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special purchaser’ by imagining an auction, as being ‘an entire waste of the arbitrator’s imagination’. Potentiality should be valued even if the only likely purchaser is the acquiring authority itself.

Judges:

Lord Collins, Lord Romer

Citations:

[1939] AC 302

Cited by:

Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
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.

Commonwealth, Land, Damages

Updated: 02 May 2022; Ref: scu.372333

Farmer v Shereman: 1792

Dismes demanded of abbey-lands, entailed before the statute of 31 Hen. 8. Benl. 143. Hetl. 135. Dismes Br. 17.
Inter Farmer and Sherernan in prohibition the case fell out, that an abbot having a privilege to be discharged of tythes quamdiu manibus propriis, in the time of E. 4. made a gift in tail, and 31 H. 8. the abbey was dissolved. The question was, whether the donee of the issue should be discharged. It seemeth clear he shall not be discharged, for the statute dischargeth none; but as the abbot was discharged at the time of the dissolution, so they must claim the estate and discharge under the abbot, since the statute, so if by a common recovery the reversion had been barred before or after the statute: but if the land had returned to the abbot or King, before or after the statute, the case had been otherwise.

Citations:

[1792] EngR 808, (1792) Hob 248, (1792) 80 ER 394 (C)

Links:

Commonlii

Ecclesiastical, Land

Updated: 02 May 2022; Ref: scu.359020

Chandler v Thompson: 11 Aug 1811

If an ancient window be raised and enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of light and air to any part of thespace occupied by the ancient window, although a greater portion of light and air be admitted through the unobstructed part of the enlarged window than was anciently enjoyed.

Citations:

[1811] EngR 500, (1811) 3 Camp 80, (1811) 170 ER 1312 (B)

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.339584

Early v Garrett and Lankester: 1829

The assignees of A. proposed to sell to B. a piece of land, with all faults and defects. Before any conveyance was executed, the latter asked the assignees whether any rent had ever been paid for the land. They replied, none had been paid by the bankrupt, or by any person under whom he claimed. In fact, rent had been paid by the person who had sold the land to the bankrupt. That person having recovered possession of the lands, it was held, in an action brought against the assignees to recover back the purchase-money, that it was properly left to the jury to say, whether the assignees, at the time when they represented that no rent had been paid bona fide believed that to be true, and the jury having found that they did; it was held, that the plaintiff was not entitled to recover back the purchase-money.

Citations:

[1829] EngR 61, (1829) 9 B and C 928, (1829) 109 ER 345

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.321929

Bliss v Hall: 17 Jan 1838

To an action of nuisance for carrying on the business of a tallow chandler, in a messuage adjoining the messuage of the Plaintiff, it is no plea that the Defendant was possessed of his messuage, and the business was carried on, before the Plaintiff became possessed of and occupied the adjoining messuage. However, a right to emit ‘noxious vapours and smells’ might be acquired by prescription

Judges:

Tindal CJ

Citations:

[1838] EngR 346, (1838) 4 Bing NC 183, (1838) 132 ER 758

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: 02 May 2022; Ref: scu.312352

The Mayor And Burgesses of Truro v Reynalds Same v Bastian: 23 Jan 1832

The corporation of T. having proved a prescriptive right to tolls, Held, that it was not destroyed by a charter of Elizabeth granting and confirming among, other things all the ancient rights of the corporation, but exempting the inhabitants from toll in all places except London : Held, that this exemption applied to the tolls of all other places (except London), but not to the tolls of T.

Citations:

[1832] EngR 386, (1832) 8 Bing 275, (1832) 131 ER 407 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.319333

The Barnsley Canal Company v Twibell: 17 Nov 1843

A canal company was authorised by, its Act, to purchase the coal, which the safety of the canal required to be left unworked. The purchase of part was delayed many years, and in the meantime a lease had been granted by the owner to a coal worker. The company purchased the interest of the owner. Held, that the coal worker was also entitled to compensation.
No equity can be founded on an allegation that a Court legally constituted is not properly competent to decide questions within its jurisrdiction; and where the legislature has given jurisdiction to a Court provided by the Act, and has made its decision final, if any inconvenience arises from the legal exercise of the jurisdiction, the Legislature alone can supply a remedy.

Citations:

[1843] EngR 1096, (1843) 7 Beav 19, (1843) 49 ER 969

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.306790

Dimes v The Company of Proprietors of The Grand Junction Canal: CExC 1846

By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the form prescribed by the Act, which, notwithstanding some of the lands were copyhold, was adapted to the conveyance of freeholds only. A copyholder used the form and afterwards died without having made any surrender of the tenements comprised in it to the lord of the manor.
Held: The company, being a corporation, was not entitled to be admitted to the tenements, but that they were entitled to have the customary heir of the deceased tenant admitted ; and the Court declared that, on his admittance, he would be a trustee for the company.

Citations:

[1846] EngR 55, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, (1846) 15 Sim 402, (1846) 60 ER 675

Links:

Commonlii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal from – The Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
See Also – The Grand Junction Canal Company v Dimes 2-Jun-1849
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
See Also – The Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See Also – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Second Appeal from – Dimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.301951

Midland Counties Railway Company v Oswin: 12 Feb 1844

A railway company having, under their Act of Parliament, power to contract with incapacitated persons for the purchase of lands, and a right, upon payment of the purchase-money into the bank, to the fee-simple of the purchased lands, contracted with an incapacitated person, who died before the purchase-money was paid. Held, that the title of the company could not be completed without the assistance of a Court of Equity.
A bequest of ”money, goods, chattels, estates and effects’ held to pass real estate.
In the absence of special clauses for that purpose the effect of a Railway Act is not to alter the course of devolution of property without the consent of the owner ; and therefore if a company, by virtue of their Act, contract with an incapacitated person for the purchase of lands, the purchase-money is to be considered as real and not as personal estate.

Citations:

[1844] EngR 251, (1844) 1 Coll 74, (1844) 63 ER 327

Links:

Commonlii

Land, Wills and Probate

Updated: 02 May 2022; Ref: scu.304843

Parkin v Thorold: 2 Jun 1851

A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.

Citations:

[1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239

Links:

Commonlii

Cited by:

Appeal from – Parkin v Thorold CA 1-May-1852
Time Not of Essence in Standard Land Contract
The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Contract

Updated: 02 May 2022; Ref: scu.296858

Dimes v The Proprietors Of The Grand Junction Canal and Others: 29 Jun 1852

The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his decision could not stand. The court now considered again the plaintiff’s appeal from the order of the Vice-Chancellor.
Held: The appeal failed and the order was confirmed. There was indeed a difficulty in the Act under which the land had been conveyed, but the Vice-Chancellor had found the correct interpretation of it.

Judges:

Lord Brougham, Lord Campbell

Citations:

[1852] EngR 793, (1852) 3 HLC 794, (1852) 10 ER 315

Links:

Commonlii

Citing:

Second Appeal from – Dimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
See Also – The Grand Junction Canal Company v Dimes 1-May-1849
In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
See Also – The Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
Principal Judgment – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.295916

Ockenden v Henly: 31 May 1858

Plaintiff put up for sale by auction real property, upon Conditions of sale which stipulated that the purchaser of each lot should ‘forthwith pay into the hands of the auctioneer deposit of 20 per cent. on the purchase money, and sign the agreement ‘to pay the remainder, and ‘that, if the purchaser of either lot shall fail to comply with these conditions, the deposit money shall be actually forfeited to the vendor, who shall be at full liberty to resell such lot either by public auction or private contract ; and any deficiency tbat may arise upon such resale, together with all expences attending the same, shall immediately after such second sale be made good by such defaulter ; and, on non-payment thereof, such amount shall be recoverable by the vendor, as and for liquidated damages.’ Defendant became a purchaser at the auction, but did not pay the deposit or complete the purchase. Plaintiff resold at a price below that for whiich defendant had purchased ; and the deficiency, with the expences of sale, exceeded the amount of the deposit.-Held: that plainitiff was entitled to recover from defendant the amount of the deficiency and expences only, and not, in addition to this, the amount of the deposit.–Per Curiam, Had the deposit been paid, and the bargain completed, the deposit would have gone in part payment of the purchase money : and, in the case of the non-completion of the bargain, if the deficiericy and expences had together been less than the deposit, the purchaser would have been entitled to the whole deposit, but nothing more.

Citations:

[1858] EngR 757, (1858) El Bl and El 485, (1858) 120 ER 590

Links:

Commonlii

Contract, Land

Updated: 02 May 2022; Ref: scu.289228

The Governor and Company of the New River, Brought from Chadwell and Amwell to London v The Commissioners of Land Tax For The Division of Hertford in the County of Hertford: 8 May 1857

The court was asked whether shares in land granted by royal decree in perpetuity were real estate and subject to Land Tax.

Citations:

[1857] EngR 517 (B), (1857) 2 H and N 129

Links:

Commonlii

Land, Taxes – Other

Updated: 02 May 2022; Ref: scu.290263

Holmes v Bellingham: 24 Jun 1859

In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining property on either side.
Held: That direction was correct. The doctrine of extent ad medium filum is at common law applicable to private roads as well as public roads. The presumption may be rebutted by acts of ownership inconsistent with the result achieved by applying the presumption.
Cockburn CJ said: ‘The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. The presumption is allowed to prevail upon grounds of public convenience, and to prevent disputes as to the precise boundaries of property; and it is based upon the supposition – which may be more or less founded in fact, but which at all events has been adopted, that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to a private road: but in the latter case it must of course be taken with this qualification that the user of it has been qua road and not in the exercise of a claim of ownership. If the learned judge had told the jury that the presumption was to prevail against evidence of acts of ownership, I should have said that his direction was not correct. But I do not understand that he so put it to them. He merely stated that the same presumption which arises in the case of a public way arose also in the case of a private way. But he went through the evidence as to the acts of ownership upon which the plaintiff relied as rebutting the presumption. I therefore think there is no ground for saying that there has been any substantial misdirection.’

Judges:

Cockburn CJ

Citations:

[1859] EngR 769, (1859) 7 CBNS 329, (1859) 144 ER 843

Links:

Commonlii

Cited by:

Applied – Smith v Howden 20-Apr-1863
A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, . .
Cited – Paton and Another v Todd ChD 11-May-2012
The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
Held: The claimant’s . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.288121

Frewen v Philipps: CEC 1861

The plaintiff and defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz the 18th of December, 1788, and both expiring at the same time. The defendant by building on his own premises obstructed a window in the house of the plaintiff though the latter had had an uninterrupted enjoyment of light and air for more than twenty years :
Held:The circumstance of the two houses being held under the same landlord, and for the same term, did not prevent the one tenant from acquiring an indefeasible right to light as against the other.

Citations:

[1861] EngR 30, (1861-1862) 11 CB NS 449, (1861) 142 ER 871

Links:

Commonlii

Cited by:

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

Land

Updated: 02 May 2022; Ref: scu.283790

Regina v The Board of Works For The Strand District: 7 Nov 1863

Order for expenses. Auditors of District Board. An Act of 30 Car. 2, ‘for making part of the parish of St. Martin in the Fields a new parish, to be called the parish of St. Anne within the Liberty of Westminster, enacted that all that precinct included within the bounds hereafter expressed, that is to say, all the houses, tenements, lands and grounds beginning at andc. with all the east side of Soho Street to the sign of andc., being the corner at the north end of the said Soho Street abutting upon the king’s highway or great road,’ now Oxford Street, ‘with all the houses and grounds abutting on and upon the said road leading from the said sign of’ andc., should be a new parish. Before the passing of The Metropolitan Local Management Act, 18 and 19 Vict. c. 120, and after the passing of it down to the making of the order after mentioned, the vestry of the parish of St. Marylebone paved the whole of Oxford Street.

Citations:

[1863] EngR 911, (1863) 4 B and S 526, (1863) 122 ER 556

Links:

Commonlii

Land

Updated: 02 May 2022; Ref: scu.283566

Freeman v Butler: 16 Nov 1863

The defendant, the trustee and executor, was also a mortgagee on part of the estate. Upon a bill for the administration of the estate, Held that the Defendant was not bound to produce the mortgage and title-deeds, but that he must produce all, accounts in his possession relating to the mortgage.

Citations:

[1863] EngR 954 (A), (1863) 33 Beav 289

Links:

Commonlii

Wills and Probate, Land

Updated: 02 May 2022; Ref: scu.283609

Skull And Another v Glenister And Others: 1864

A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. – A, having a right of way to D close, demised the close to B. The latter, being possessed of an adjoining close, upon which he was erecting certain houses, used the way for carting building materials to A.’s close for the purpose of using them upon his own land :- Held, that it was properly left to the jury to say whether B.’s use of the road was a bona fide exercise of the right of way to A’s close, or a mere colourable mode of getting to his own land.
Such ‘a mere colourable use’ of a way for the purpose of entering the dominant land (when the real purpose was some other) will fall outside the grant.

Citations:

[1864] EngR 82, (1864) 16 CB NS 81, (1864) 143 ER 1055

Links:

Commonlii

Cited by:

Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – Inverugie Investments Ltd v Hackett PC 1995
The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%.
Held: The defendants . .
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.281796

Suffield v Brown: 15 Jan 1864

To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with, the principles of English law that regulate the effect and operation of grants of real property.
If the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant ; and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down hy the fiction of an implied reservation.
The grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent casements enjoyed by an adjoining tenement which remains the property of the grantor.
The comparison of the disposition of the owner of two tenements to the destination du pere de famille of the French code civil is a fanciful analogy from which rules of law ought not to be derived.
Where the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end by contract to any relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burthen imposed upon it during his joint occupation ; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership.
The right to overhang a bowsprit is capable of being an easement.

Judges:

Lord Chancellor Lord Westbury

Citations:

[1864] EngR 129, (1864) 4 De G J and S 185, (1864) 46 ER 888

Links:

Commonlii

Cited by:

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

Land

Updated: 02 May 2022; Ref: scu.281843

Mounsey v Ismay: Cexc 25 Jan 1865

A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 Wm, c 71. That section points to a right belonging to an individual in respect of his land, not to a class such as freemen or citizens claiming a right in gross wholly irrespective of land; and to bring the right within the term ‘easement’, in that section, it must be one analogous to that of a right of way or a right of watercourse, and must be a right of utility and benefit and not one of mere recreation and amusement. Semble, that an easement in gross is within the Prescription Act.
Baron Martin said: ‘however this may be, we are of opinion that to bring the right within the term ‘easement’ in the second section [of the Prescription Act 2and3 Wm. 4, c.71] it must be one analogous to a right of way which precedes it and a watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement’.

Judges:

Baron Martin

Citations:

[1865] EngR 165, (1864) 3 H and C 486, (1865) 159 ER 621

Links:

Commonlii

Statutes:

Prescription Act 2and3 Wm. 4, c.71

Jurisdiction:

England and Wales

Citing:

Appeal from – Mounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Not followed – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.281077

Tennaro Ltd v Majorarch: 2003

The parties entered into three related contracts to grant long leases of three flats in the same block (Nos 37, 32 and 31), and deposits paid. The vendor served notices to complete and when the purchaser did not comply, he rescinded each agreement and forfeited the deposits. The purchaser sought repayment of the deposits under section 49(2).
Held: Special circumstances are needed to justify the return of a deposit where the purchaser is in breach of contract. The fact that the vendor has resold the property elsewhere for a profit might constitute such a special circumstance. Two of the deposits were ordered to be returned. As to Dimsdale, Neuberger J said: ‘As I understand it, (the judge) considered that the fact that the Seller had sold the property at a substantially higher price than it would have received under the contract with the defaulting Buyer, was the crucial factor which justified the return of the deposit. However, it is right to add that he made deductions from the deposit, in favour of the Seller, in relation to expenditure wasted by the Seller under the abortive contract.’

Judges:

Neuberger J

Citations:

[2003] EWHC 2601

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

Approved – Dimsdale Developments (South East) Ltd v De Haan 1983
The court considered the interpretation of clauses allowing a notice to complete a contract for the sale of land. Godfrey QC said: ‘In my judgment this notice, served as it was under cover of the letter of November 10, 1981, referring to the . .
Too restrictive – Universal Corporation v Five Ways Properties Limited CA 1978
The purchaser had failed to complete, notwithstanding the service of a notice to complete. The purchaser a Nigerian company suffered a delay in obtaining funds due to a change in the exchange control regulations. There was no attempt to exclude . .
Too restrictive – Omar v El-Wakil CA 11-Jul-2001
The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for . .

Cited by:

Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.279041

Re Hewitt’s Contract: 1963

The interpretation and effect of standard conditions governing the sale of land are informed by the background rules of equity governing the operation of contracts for the sale of land.

Judges:

Wilberforce J

Citations:

[1963] 1 WLR 1298

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 02 May 2022; Ref: scu.277557

Selkirk v Romar Investments Ltd: PC 1963

A vendor of land may properly only rescind a contract on receipt of requisitions for reasons associated with the contract.

Judges:

Viscount Radcliffe

Citations:

[1963] 1 WLR 1415

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 02 May 2022; Ref: scu.277560

Sharma and Another v Simposh Ltd: CA 23 Nov 2011

The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed against an order for the refund of the deposit. The appeal succeeded, and the deposit was repayable: ‘The fact that property was intended to pass and did pass does not, of course, exclude the possibility of a claim for restitution, but such a claim depends on the claimant being able to establish a recognised ground of restitution. In this case the only suggested ground is failure of consideration. Since the claimants obtained the benefit for which the payment was made, there is no merit in their claim and no injustice in the defendant retaining the money. The justice of the matter is entirely on the defendant’s side.’

Judges:

Laws, Toulson, Black LJJ

Citations:

[2011] EWCA Civ 1383, [2013] Ch 23, [2012] 1 EGLR 113, [2012] 3 WLR 503, [2011] 48 EG 8, [2012] 6 EG 92, [2012] 2 All ER (Comm) 288, [2012] 1 P and CR 12

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Howe v Smith CA 1884
A contract for the sale of land required the purchaser to pay andpound;500 ‘as a deposit and in part payment of the purchase money’, and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency . .
Cited – Gribbon v Lutton and Another CA 19-Dec-2001
The defendant solicitors acted in obtaining and holding a deposit on the sale of land. They issued interpleader proceedings which decided that the deposit was payable to the purchaser. The vendor then sued the solicitors in negligence. The . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Chillingworth v Esche CA 1923
The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s . .
Cited – Spiro v Glencrown Properties Ltd and Another ChD 1991
The court considered the nature of an option to buy land. Hoffman J said: ‘The granting of the option imposes no obligation upon the purchaser and an obligation upon the vendor which is contingent upon the exercise of the option. When the option is . .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .

Cited by:

Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Leading Case

Updated: 02 May 2022; Ref: scu.448491

Matthews v Usher: CA 1900

Section 25(5) of the 1873 Act did not give to a mortgagor any power of re-entry or right of forfeiture which he did not have before the Act. Romer LJ described the mortgagor’s position before the 1873 Act: ‘He had certain equitable rights and certain restricted legal rights. As an example of the former, he has a right to restrain by injunction the tenant from doing injury to the land. As an example of a legal right, he is entitled to receive the rents payable by the tenant, and to distrain at law as bailiff for the mortgagee. But before the Judicature Act 1873, the mortgagor was not entitled to say that he had the legal reversion which would entitle him to sue on the covenants of the lease. It is clear, having regard to the state of the authorities, that the mortgagor had no implied authority to act on behalf of the mortgagee and re-enter for breach of covenants . .’

Judges:

Romer LJ

Citations:

[1900] 2 QB 535

Statutes:

Judicature Act 1873 25(2)

Cited by:

Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.276789

Salt v Marquis of Northampton: 1892

The court was asked whether a life policy, the premiums on which were charged against the mortgagor, was comprised in the mortgage security. That question having been decided in the affirmative, it was declared to be redeemable, notwithstanding an express provision to the contrary contained in the deed.

Citations:

[1892] AC 1

Cited by:

Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.276437

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 possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole.’ and as to the case of Blantyre, ‘This rule is not applicable to a question of undefined and disputed boundary (Clark v. Elphinstone (1880) 6 6 App.Cas. 164, 170-171; West Bank Estates Ltd. v. Arthur [1967] 1 AC 665, 679-680), but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is enclosed by a wall or other physical barrier. The property claimed by possession may be sufficiently defined in other ways, e.g. where the claim is to trees in a belt of woodland (Stanley v. White (1811) 14 East 332), to the bed or foreshores of a river (Jones v. Williams) (1837) 2 MandW 326 and Lord Advocate v. Lord Blantyre, 4 App.Cas. 770) or to the right to fish in a river (Lord Advocate v. Lord Lovat (1880) 5 App.Cas. 273, 289). In the present case, although the two tracts were not physically enclosed, their boundaries were known and undisputed, and possession of the whole tracts might have been established by appropriate evidence of acts done on parts of them. The question was one of fact and degree and depended upon a consideration of all the circumstances of the case.’

Judges:

Sir Harry Gibbs

Citations:

[1975] AC 464, [1975] 2 WLR 72, [1975] 1 All ER 95

Citing:

Cited – 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 . .

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

Updated: 01 May 2022; Ref: scu.267381

Attorney-General v Tomline (No 3): CA 1880

The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired.
Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: ‘From the time of the determination of Mair’s tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before 1833 Act it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute.’
Cotton LJ said: ‘the title of the Plaintiffs simply rests on possession, and prima facie a title by possession is a freehold and not a copyhold title.’

Judges:

James LJ, Cotton LJ, Thesiger LJ

Citations:

(1880) 15 ChD 150

Statutes:

Real Property Limitation Act 1833

Jurisdiction:

England and Wales

Citing:

Appeal From – Attorney-General v Tomline (No 3) ChD 1877
For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.267384

Attorney General v Emerson: 1891

Forms of fishing which involve fixtures into the soil of the foreshore are more likely to be regarded as acts of possession of the soil itself than would be more ephemeral forms of fishing.

Citations:

[1891] AC 649

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, Agriculture

Updated: 01 May 2022; Ref: scu.267375

Commissioner for Railways v Valuer-General: PC 1974

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

Judges:

Lord Wilberforce

Citations:

[1974] 1 AC 328

Cited by:

Cited – Bernstein of Leigh (Baron) v Skyviews and General Ltd QBD 9-Feb-1977
The plaintiff complained that the defendant had flown over his and neighbouring properties and taken aerial photographs, and said that this was a gross invasion of his privacy, and that the defendant had invaded his airspace to do so. The plaintiff . .
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, Rating

Updated: 01 May 2022; Ref: scu.268226

Chatsworth Estates Company v Fewell: 1931

The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had suggested that the covenants may be modified by the Lands Tribunal, but he made no application.
Held: The area was ‘mainly’ residential, although many flats had been erected and a few boarding houses and schools had come into existence in ‘technical breach of the covenants’. The covenants remained enforceable although a court may rule that a restrictive covenant has ceased to be enforceable through obsolescence.
Farwell J discussed the defence put forward that the character of the area had changed: ‘But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose.
Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief. ‘

Judges:

Farwell J

Citations:

[1931] 1 Ch 224

Statutes:

Law of Property Act 1925

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

Land

Updated: 01 May 2022; Ref: scu.263765

Metropolitan Water Board v Paine: 1907

The context was used showed that ‘premises’ mean land with buildings. Land still vacant on which the owner proposed in the future to erect buildings did not qualify as premises within section 79 of the 1853 Act.

Judges:

Ridley J

Citations:

[1907] 1 KB 285

Statutes:

East London Waterworks Act 1853

Jurisdiction:

England and Wales

Cited by:

Mentioned – Majorstake Ltd v Curtis HL 6-Feb-2008
The tenant had served a notice under the 2003 Act to acquire a new lease. The landlord in replying that he wished to redevelop the site, sought himself to define the extent of the ‘estate’ to include only the tenant’s apartment and a neighbouring . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities

Updated: 01 May 2022; Ref: scu.266087