Category: Land

Lockwood v Wood: 1844

A customary right over land becomes in effect a local law.

Judges:

Tindal CJ

Citations:

(1844) 6 QB 50

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.242336

AB v Lord Advocate: 1916

The complainers in a note of suspension and interdict, owned lands round a loch and the loch itself. The military took possession of the lands and loch in September 1915 in order to carry out works. They sought interdict against the commanding officer and those acting under his orders from entering on the lands in question without the owners’ consent, from erecting any buildings without the owners’ consent and from blasting rocks and carrying out certain other operations. The Lord Advocate, as representing the War Office, was called for any interest he might have. He lodged answers. The defence was, of course, that the military authorities had powers under the Defence of the Realm legislation and regulations to do what they did and that the commanding officer and his men were acting in accordance with those powers. But, at first instance, the Lord Ordinary on the Bills initially granted interim interdict against the blasting and other operations. He subsequently recalled the interim interdict but passed the note. The respondents reclaimed against the passing of the note. The First Division held that, having regard to the Defence of the Realm provisions, the note must be refused. Lord President Strathclyde pointed out that the foundation of the proceedings was that the respondent was a wrongdoer and trespasser. The Lord President had no doubt that the respondent ‘might have been interdicted if the complainer had been able to shew that the action was taken outwith the statute and the regulations of 1914, which have the force of statute.’ Lord Johnston observed that ‘the true object of the complainers [was] to strike at the War Department through Captain CD . . ‘

Citations:

1916 2 SLT 200

Jurisdiction:

Scotland

Cited by:

Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.237572

Longbottom and Longbottom v Bingley Urban District Council: LT 1974

When calculating compensation on the compulsory purchase of property occupied by a partnership, an allowance should be made for managerial or supervisory wages by adding back the wages or drawings of both partners to the average net profits for three years. This was because the council were required to take the premises and the business as they found them and the business was a partnership of the two claimants and it was irrelevant that it might have been bought by a limited company if sold as a going concern.

Citations:

[1974] 14 RVR 139

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 07 December 2022; Ref: scu.230996

Holiday Inns Inc v Broadhead: 1974

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

Judges:

Goff J

Citations:

(1974) 232 EG 951

Jurisdiction:

England and Wales

Citing:

Cited – Ramsden v Dyson HL 11-May-1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .

Cited by:

Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 07 December 2022; Ref: scu.223729

Pennard Dock Engineering Co Ltd v Pounds: 1963

Citations:

[1963] 1 LI 359

Jurisdiction:

England and Wales

Cited by:

Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 07 December 2022; Ref: scu.193780

Rex v Lord Grosvenor: 1819

An obstruction interfering with navigation on the Thames with a public right of navigation was unlawful even if erected with the Conservators’ consent unless the Conservators were granted statutory power to give such consent.

Citations:

(1819) 176 ER 720

Jurisdiction:

England and Wales

Cited by:

Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Lists of cited by and citing cases may be incomplete.

Utilities, Land

Updated: 07 December 2022; Ref: scu.187535

Wood v Saunders: 1875

The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, ‘and turned it into a lunatic asylum in which 150 persons were resident’ and also ‘altered the drains and made them all discharge into the ditch or moat’. An easement had been expressly granted, in a lease, and enlarged on acquisition of the freehold. The easement was to drain sewage through a drain into an existing open cesspool ditch on the servient property. The change in the dominant tenement caused a large increase in the volume of sewage that went into the open cesspool.
Held: ‘There had been a stipulation in the lease that the buildings were not to be altered without the lessor’s consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor, and it must be held that the grant was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings. The Plaintiff, therefore, had not made out a right to the passage of soil and water from the building in its enlarged state. It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition.’ ‘It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of a user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle . . . in Williams v James … as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is, in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase. It had also been argued that the easement must be measured by the quantity which the ditch would contain, but there was no authority for such a doctrine, which would give rise to very difficult questions. Some similar questions might no doubt arise in this case, as the owner of the easement might send down so large a quantity as not to leave room for the quantity sent by the owner of the land, but this would probably be of much less importance.”

Judges:

Sir Charles Hall V-C

Citations:

(1875) 10 Ch App 582

Jurisdiction:

England and Wales

Citing:

Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .

Cited by:

Cited – Gardner and Gardner v Davis and others CA 15-Jul-1998
Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
Held: The drainage easement was to be read according to . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.185408

Ingram v Morecroft: 1863

‘… if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; …’

Judges:

Sir John Romilly MR

Citations:

(1863) 33 Beav 49

Jurisdiction:

England and Wales

Cited by:

Cited – Gardner and Gardner v Davis and others CA 15-Jul-1998
Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
Held: The drainage easement was to be read according to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.185409

Lord Binning, Petitioner: 1984

Citations:

1984 SLT 18

Jurisdiction:

Scotland

Citing:

Disapproved – Murray v Murray’s Tutor 1915
The date of a mortis causa trust disposition and settlement for the purposes of section 48 of the 1848 Act was the date of the truster’s death and not the date of its execution. . .

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.186369

In re Yateley Common, Hampshire: 1977

Rights of common were held to exist in land even though the land had been requisitioned for use as an airfield and had been used for that purpose for over thirty years.

Citations:

[1977] 1 All ER 505, [1977] 1 WLR 840

Jurisdiction:

England and Wales

Cited by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.181788

Child v Douglas: 5 May 1854

Citations:

(1854) Kay 560, 23 LJ Ch 45, 22 LTOS 116, 17 Jur 1113, 2 WR 2, 69 ER 1, [1854] EngR 478, (1854) Kay 560, (1854) 69 ER 237

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Considered – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .

Cited by:

See Also – Child v Douglas 1-Aug-1854
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.183263

Attorney-General v Hanmer: 1858

Letters patent granted mineral rights in the waste lands.
Held: the term included the lands between the high and low water marks.

Citations:

(1858) 27 LJCh 837

Jurisdiction:

England and Wales

Cited by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.180561

Cowling v Higginson: 1838

A right of way may be for one purpose to the exclusion of other purposes. It is a question of fact on the evidence whether a right of way is for a limited purpose or purposes or is a general right for all purposes.

Citations:

(1838) 4 M and W 245

Jurisdiction:

England and Wales

Cited by:

Cited – Richard Jonathan Brett Guise v John Drew ChD 8-Jun-2001
A right of way had been acquired by prescription, but its extent was disputed. It had been used for mainly residential purposes, but then to a greater extent for a different business use.
Held: A right of way may be for one purpose, to the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 December 2022; Ref: scu.181196

Stevenson and Others v Steel Co of Scotland: HL 24 Jul 1899

In 1871 A’s trustees (the first party) feued to trustees for the firm of B. and Sons (the second party), their heirs and assignees, two plots of ground forming part of the estate of Blochairn, under the ‘declaration and provision that a street shall be made’ of 60 feet width along the south boundary of the plots, and that it should be formed upon such levels as the first party or their successors in the said lands and estate ‘including any parties who have feued or who may feu or purchase the ground on the opposite side of the said street,’ and the second party or their foresaids might think fit, ‘having regard to the continuation of the same eastward so as to conveniently accommodate the portion of’ the first party’s ‘remaining lands lying . . to the east of the ground hereby feued.’ It was also declared that the second party and their foresaids should be bound ‘whenever required by the first party or their foresaids, including as aforesaid’ to make the one-half of the roadway lying next to the plots disponed to the second party. It was further declared that the first party and their foresaids should be entitled to give a right to use the said road and any others that might be formed by the second party and their foresaids on the ground disponed to their feuars in the remaining parts of the lands of Blochairn, and that the second party and their foresaids should have right of access and power to use any streets which should be formed by the first party or their feuars in the remaining portions of the lands of Blochairn, and the first party bound themselves to insert clauses sufficient to secure these objects in all future conveyances of the lands of Blochairn or parts thereof.
I 1877 A’s trustees sold and disponed part of the lands of Blochairn, lying to the east of the ground feued off in 1871, to C, with their ‘whole rights, title, and interest, present and future, there-in.’ The disposition imposed no obligation upon the disponees to construct any road or any real burden in pursuance of the superior’s obligation contained in the feucontract of 1871.
In an action by C. to compel a successor of the firm of B. and Sons to implement their obligation to make the 60 feet road contained in the feucontract of 1871, held (aff. judgment of the First Division) that the superiors having failed to implement their part of the mutual stipulations as to streets in the said feucontract, neither they nor their successors were in titulo to enforce the counter obligations undertaken by B. and Sons’ trustees.
Opinion that if the superiors under the feucontract had retained the right to enforce the said obligations, that right would have been carried to C. by the disposition of 1877, although neither ‘a successor’ of the superior in terms of the feucontract of 1871, nor vested with a jus quaesitum under that contract.

Judges:

Lord Watson (in the Chair), Lord Shand, and Lord Davey

Citations:

[1899] UKHL 946, 36 SLR 946

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 06 December 2022; Ref: scu.631840

Clos Farming Estates v Easton and Another: 9 Dec 2002

(New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held that there was no easement creating an interest in land. The Court of Appeal agreed holding that not only were the rights claimed novel but that they breached what is fundamental to constituting an easement in two respects. First, the connection between the benefited land and the supposed servient tenement went no further than to render the latter but ‘a convenient incident to the exercise of the right’. As it is put in the headnote ‘The imperatives of the commercialising of the viticulture operation cannot be seen as necessarily supporting a finding that the rights conferred do sufficiently accommodate the dominant tenement’. Secondly, the owners of the servient tenement were left with mere rights of residual recreational activities that are totally subordinated to the overarching rights of Clos Farming Estates. The rights of the servient owner were so attenuated that they no longer met the description of exclusive possession.
Ms McAllister said that in this context ‘accommodation’ firstly required that: ‘there be a natural connection between the dominant and servient tenement. The right must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer an advantage on the owner of that tenement, as would a mere contractual right.’

Judges:

Ms McAllister

Citations:

[2002] NSWCA 389

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.408428

Star Energy UK Onshore Ltd and Another v Bocardo Sa: CA 15 Jun 2009

The appellant had taken out a licence to drill for oil on its land. To maximise its return it drilled at a deep level out under the claimant’s land. It now appealed against a finding that this was a trespass, and that it should pay damages on a licence basis.
Held: The drilling was a trespass for which damages would be payable. However there was no damage to the claimant’s land, and the damages were reduced to a nominal andpound;1000.
Aikens LJ said that it was logical to examine the question of whether there was a trespass as at July 2000 when, having taken account of the fact that the limitation period under section 2 of the Limitation Act 1980 for a claim in trespass is six years, the cause of action arose.

Judges:

Jacob, Aikens, Sullivan LJJ

Citations:

[2009] EWCA Civ 579, [2010] Ch 100, [2010] 1 All ER 26, [2009] 25 EG 136, [2009] 2 P and CR 23, [2009] 3 WLR 1010, [2009] NPC 78

Links:

Bailii

Statutes:

Petroleum (Production) Act 1934

Jurisdiction:

England and Wales

Citing:

Appeal from – Bocardo Sa v Star Energy UK Onshore Ltd and Another ChD 24-Jul-2008
The defendant had obtained a licence under the Act to extract oil from beneath its land. To do so, it had to drill at a deep level under the claimant’s land. It did so without the claimant’s permission. The claimant sought damages in trespass.

Cited by:

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

Land, Damages, Limitation

Updated: 06 December 2022; Ref: scu.346891

Enfield London Borough Council v McKeon: CA 1986

In order to enforce the right to buy, a person must normally be a secure tenant throughout the period from service of the original notice, exercising the right to buy, until completion is effected. Each part of the process is an ‘exercise’ of the right to buy.
Slade LJ said that the 1980 Act: ‘treats a tenant as purporting to exercise his right to buy at any time and from time to time when he takes steps towards implementation of that right, up to and including completion of the purchase. If, therefore, any of the circumstances set out in part 2 of schedule 1 . . subsist at any time between the time when he serves his section 5 notice and completion, his right to buy ceases to be exercisable.’

Judges:

Slade LJ

Citations:

[1986] 1 WLR 1007

Statutes:

Housing Act 1980 2(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Knowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
Lists of cited by and citing cases may be incomplete.

Local Government, Land

Updated: 06 December 2022; Ref: scu.278701

Chopra v Bindra: CA 19 Mar 2009

The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge had sought to interpret the deed so as to give the provision effect by restricting the gifts during the joint lives to life interests.
Held: The appeal failed. The judge had correctly interpreted the deed: ‘in interpreting the deed the court can have regard to the fact that it is unlikely that the parties intended clause 4 to be ineffective; on the contrary, they plainly intended it to be effective. If the house was not sold during their joint lives, they intended that it should belong to both during their joint lives and to the survivor absolutely upon the death of the first to die.’

Judges:

Rimer LJ

Citations:

[2009] EWCA Civ 203, [2009] Fam Law 581, [2009] NPC 48, [2009] WTLR 781, [2009] 2 FLR 786, (2008-09) 11 ITELR 975

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Langston v Langston 1834
. .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – In re Dugdale, Dugdale v Dugdale 1888
Kay J considered whether a condition in a trust was repugnant: ‘I apprehend that this is the test. An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which . .
Cited – In re Richerson, Scales v Heyhoe 1892
The court considered the doctrine of conversion. . .
Cited – Re Pfrimmer 1936
(Manitoba Court of Appeal) Mr Pfrimmer in his will in 1930, disposed of a house on various trusts. On his death, the question arose as to whether the carrying into effect of the testamentary trusts was prevented by two documents (one called a . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 06 December 2022; Ref: scu.323703

Regina v Mathias; The Attorney-General v. Mathias: 1861

A profit a prendre in another man’s soil cannot be claimed by custom, however ancient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. ‘The easement in this case is a public right of ‘footway’ and ‘A prescription, to be good, must be both reasonable and certain. . and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad.’

Judges:

Byles J

Citations:

(1861) 2 FandF 570, 27 Law J Ch 761

Jurisdiction:

England and Wales

Land

Updated: 06 December 2022; Ref: scu.259536

Whitworth v Gaugain: 1844

Citations:

(1844) 3 Hare 416, [1844] EngR 406, (1844) 3 Hare 416, (1844) 67 ER 444

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Henry Billington Whitworth And Robert Whitworth v Philip Augustus Gaugain, Joseph Mayor, And George Pel 1-Jun-1841
. .

Cited by:

Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
See Also – Whitworth v Gaugain 3-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.259366

Chung Khiaw Bank v United Overseas Bank: PC 1970

(Singapore) A judgment creditor who obtains a charging order against his debtor’s property can take only such interest as the debtor has in the property. Charging orders take effect subject to prior mortgages, whether legal or equitable.

Citations:

[1970] AC 767

Jurisdiction:

England and Wales

Cited by:

Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.259367

Rymer v McIlroy: 1897

B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of Three-acre to C who sought to exercise the right of way over Blackacre. B contended that C had no such right because it was attached only to A’s leasehold estate, which had been extinguished.
Held: The argument was rejected. The right of way continued for the benefit of the freehold estate. Having regard to ‘the whole tone and tenour of the deed, and the fact that John Drummond shortly afterwards acquired the fee’, he concluded: ‘The true construction is that, so long as the Drummonds, or either of them, or the heirs or assigns of either of them were interested, this right of way was to subsist. The probability is, and it is not an unnatural inference to draw, that it was within the contemplation of the parties that the Drummonds might obtain the fee simple in one or more of the plots in which they had then only a limited interest, and that in that case the right of way should continue. I can see nothing illegal in such an agreement, and if that is the contract no such doctrine as that the covenant was with the reversioner, who has destroyed the reversion, arises.’

Judges:

Byrne J

Citations:

[1897] 1 Ch 528

Jurisdiction:

England and Wales

Cited by:

Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.252422

Gibson v Doeg: 1857

A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of time, and to presume that what has been done was done of right, and not in wrong.’

Judges:

Pollock CB

Citations:

(1857) 2 HandN 615, [1857] EngR 925, (1857) 157 ER 253

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Followed – In re Summerson (Note) 23-Feb-1899
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property . .
Followed – Hepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .
Cited – Attorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.252341

Virgo v Harford: 11 Aug 1892

A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset.

Citations:

Unreported, 11 August 1892

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.242323

Eagling v Gardner: 1970

Introductory words in a covenant in a conveyance of land such as ‘to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . Estate . .’ are words of express annexation, but they are also not inconsistent with the establishment of a building scheme.

Judges:

Mr Justice Ungoed-Thomas

Citations:

[1970] 2 All ER 838

Jurisdiction:

England and Wales

Cited by:

Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.242386

Niven v Pitcairn: 1823

Large leaden vessels which were not fastened to the building in any way but simply rested by their own weight were held to be heritable since they had had to be taken to pieces in order to be removed and had then been sold as old lead.

Citations:

(1823) 2 S 270

Jurisdiction:

Scotland

Cited by:

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

Land

Updated: 06 December 2022; Ref: scu.240420

Wiltshear v Cottrell: 1854

A wooden granary was not a fixture. When an article is no further attached to the land, then by its own weight it is generally to be considered a mere chattel.

Citations:

[1854] 1 E and B 674, [1854] 22LJ (QB) 177)

Jurisdiction:

England and Wales

Cited by:

Cited – Holland v Hodgson 1872
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: ‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with . .
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.240410

Zarraga v Newcastle upon Tyne Corporation: 1968

‘in assessing the business profits, no deduction should be made in respect of ‘wages’ of the claimant’s wife, notwithstanding a figure in respect thereof had been allowed for income tax purposes, since the wife could not fairly be classed as a ‘paid employee”.

Citations:

[1968] 19 P and CR 609

Jurisdiction:

England and Wales

Cited by:

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

Land, Damages

Updated: 06 December 2022; Ref: scu.230990

Taylor v Neeham: 1810

‘It would be a very odd in the law of any country, if A could take by any form of conveyance, a greater or better right than he had who conveys it to him; it would be contrary to all principle. But it does not rest merely on the general principle; if you look into all the books upon estoppel, you find it laid down, that parties and privies are not estopped, and he who takes an estate under a deed, is privy in estate, and therefore never can be in a better situation than he from whom he takes it.’

Judges:

Mansfield CJ

Citations:

[1810] 2 Taunt 278

Jurisdiction:

England and Wales

Land, Estoppel

Updated: 06 December 2022; Ref: scu.183682

Hall v Dorling and Another: 26 Mar 1996

Land once conveyed by the owner, could not be again conveyed. ‘ . . if the trustees had specifically conveyed land delineated on a plan to the defendant they could not subsequently in law transfer it to the plaintiff’.

Judges:

Beldam LJ

Citations:

Unreported, 26 March 1996

Jurisdiction:

England and Wales

Cited by:

Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.183683

In re Britford Common: 1977

Citations:

[1977] 1 WLR 39, [1977] 1 All ER 532

Jurisdiction:

England and Wales

Cited by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2022; Ref: scu.181346

Highland Council (Formerly Ross and Cromarty District Council) v Patience and Others (Scotland): HL 14 Nov 1996

Local Authority tenants sought to exercise their statutory right to purchase their council house. The third defendant had registered against the title a right of pre-emption protecting a feu charter registered in the Registry of Sasines.
Held: A Local Authority could sell a house to a secure tenant despite a feu charter on the title giving a right of pre-emption. The right to buy was akin to a compulsory purchase. The procedure involved clearly suggested that the tenant’s right to buy must be unimpeded.

Judges:

Lord Goff of Chieveley, Lord Griffiths, Lord Mustill, Lord Steyn, Lord Clyde

Citations:

Times 09-Jan-1997, [1996] UKHL 7

Links:

House of Lords, Bailii

Statutes:

Housing (Scotland) Act 1987

Jurisdiction:

Scotland

Citing:

Cited – Kirkness v John Hudson and Co Ltd HL 1955
Viscount Simonds said: ‘the beliefs or assumptions of those who frame Acts of Parliament cannot make the law’. While subsequent legislation could resolve ambiguity in earlier legislation, it could only do so where the subject of the subsequent . .
Cited – Henderson v City of Glasgow District Council 1994
. .
Lists of cited by and citing cases may be incomplete.

Housing, Local Government, Land, Registered Land

Updated: 06 December 2022; Ref: scu.135036

Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another: Admn 2 May 2013

Challenges to compulsory purchase orders.
Held: The Orders stand

Judges:

Sycamore HHJ

Citations:

[2013] EWHC 973 (Admin)

Links:

Bailii

Statutes:

Acquisition of Land Act 1981

Jurisdiction:

England and Wales

Cited by:

Appeal from – Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Others CA 8-Oct-2013
Appeal against dismissal of claim for quashing of compulsory purchase order. . .
Lists of cited by and citing cases may be incomplete.

Land, Planning

Updated: 05 December 2022; Ref: scu.491916

C and G Homes Ltd v Secretary Of State For Health: CA 1991

The court was asked whether a health authority’s housing of former mental in-patients in two houses on a residential estate resulted in a breach of one or both of two covenants burdening the houses. One covenant, (20) was: ‘Not to cause or permit or suffer to be done in or upon the property any act or thing which may be or become a nuisance, annoyance, danger or detriment to the transferor or owners or occupiers for the time being of other parts of the estate’
Held: the appeal succeeded. There had been no breach of covenant.
Nourse LJ said: ‘Mr Macdonald’s [for the appellant] primary submission was that the covenant does not impose any restriction on the persons who may occupy the property. It only restricts the acts or things which the occupants, whoever they be, may do there. Although Ferris J thought that that was too narrow a view, I suspect that it accords with the construction which most conveyancers would put on a covenant in this form, again a very familiar one’.
Lord Donaldson of Lymington MR said: ‘The position in relation to covenant 20 is quite different. Once again I have to look to the object and to the words. It is not directed to the use being made of the property, that being the subject matter of covenant 24(2). It is directed instead at conduct in or upon the premises which causes or may cause nuisance, annoyance, danger or detriment to other owners . . or occupiers of other parts of the estate or to the plaintiff. No complaint whatsoever is being made in relation to the conduct of the occupants in or upon the premises. The evidence relied upon as constituting a detriment to the plaintiff relates solely to the use of the premises made by the Secretary of State and amounts to no more than that in a buyers’ market a particular purchaser was astute enough to use the general nature of that use as a lever to obtain a small reduction in the purchase price. There has been no breach of covenant 20′.

Judges:

Nourse LJ, Lord Donaldson of Lymington MR

Citations:

[1991] Ch 365

Jurisdiction:

England and Wales

Cited by:

Cited – Davies v Dennis and Others CA 22-Oct-2009
The land owner appealed against an injunction given to prevent him carrying out building works which the neighbours said would breach a restrictive covenant. The covenants negatived a building scheme.
Held: The appeal failed. Covenants of the . .
Cited – Triplerose Ltd v Beattie and Another UTLC 4-Jun-2020
Short term visitor sublets were breach of lease
Landlord and Tenant – Breach of Covenant – covenant against use of flat other than as a private dwelling house and prohibiting use for trade or business – whether breached by use of flat as serviced apartment advertised on internet booking sites – . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.377204

Osborn v Wise: 1837

Easement of necessity for use arising after grant but predictable.

Judges:

Parke B

Citations:

(1837) 7 Car and P 761

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 05 December 2022; Ref: scu.258293

Young, Regina (on the Application Of) v Secretary of State for the Environment, Food and Rural Affairs and Another: Admn 12 Apr 2002

The court considered the proposed diversion of a public footpath.
Held: ‘ the expression ‘substantially less convenient to the public’ is eminently capable of finding a satisfactory meaning by reference to consideration of such matters as the length, difficulty of walking and purpose of the path. Those are features which readily fall within the presumed contemplation of the draftsman of this section as falling within the natural and ordinary meaning of the word ‘convenient’.’
The inspector had conflated the concept of convenience with the concept of expediency as contained within the subsection.

Judges:

Turner J

Citations:

[2002] EWHC 844 (Admin)

Links:

Bailii

Statutes:

Highways Act 1980 119

Jurisdiction:

England and Wales

Judicial Review, Land

Updated: 05 December 2022; Ref: scu.251512

Brown v Alabaster: 1888

Citations:

(1888) 37 Ch D 490

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 05 December 2022; Ref: scu.239383

Millechamp v Jordan: 1740

A claim was made that land was subject to a customary right for recreation.
Held: The right would be limited to ‘legal and reasonable times of year’ so as not to allow the user to deprive the landowner of all profits of the land.

Citations:

(1740) Willes 202

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.242332

Fitch v Fitch: 1798

The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel.
Held: The court considered the rights arising from land being declared to be a common: ‘The inhabitants have a right to take their amusement in a lawful way. It is supposed, because they have such a right, the plaintiff should not allow the grass to grow: there is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers.’

Judges:

Heath J

Citations:

(1798) 2 Esp 543, [1795] EngR 4032, (1795) 2 H Bl 393, (1795) 126 ER 614

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Fitch v Rawling 1795
A common was claimed at Steeple Bumpstead in Essex for ‘all kinds of lawful games, sports and pastimes . . at all seasonable times of the year.’ including cricket.
Held: Rights of common over land can include the right of local inhabitants to . .

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.242329

Hall v Nottingham: 1875

The parties sought to establish a customary right to enter on land, erect a maypole and to dance around it, and otherwise to enjoy the land for innocent recreation at any time.
Held: The claim was good. A custom might be understood as a local law arising from the assent of the neighbourhood before time immemorial. A customary right over land must be compatible with appropriate seasonable use of the land by the owner.

Judges:

Kelly CB, Cleasby B

Citations:

(1875) 1 Ex D 1, [1875] 45 LJQB 50, [1875] 33 LT 697, [1875] 24 WR 58

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.242334

HE Green and Sons v Minister of Health (No 2): 1947

The plaintiff challenged a compulsory purchase order, saying that the purpose of the order went beyond the statutory purpose.
Held: The provision of ‘houses’ must be taken to include the provision of ancillary facilities. Denning J said that he was satisfied that the local authority did not mean to restrict itself in its letting of the houses, it was to build on the land it was attempting to acquire, to those who were of any particular class. That did not however, invalidate the exercise of the powers: ‘The next question is whether the 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, [1947] 2 All ER 469

Jurisdiction:

England and Wales

Cited by:

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

Land, Local Government

Updated: 05 December 2022; Ref: scu.223477

Dyer v Dyer: 27 Nov 1988

Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several; whether jointly or successive – results to the man who advances the purchase money. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence.’

Judges:

Eyre CJ

Citations:

(1788) 2 Cox 92, [1788] EWHC Exch J8, [1788] EWHC Exch J8, [1775-1802] All ER Rep 205, (1788) 2 RR 14, 30 ER 42

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Re a Policy No 6402 of the Scottish Equitable Life Assurance Society 1902
Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Land

Updated: 05 December 2022; Ref: scu.187423

Phillips v Mobil Oil: 1989

Citations:

[1989] CLY 2087

Jurisdiction:

England and Wales

Cited by:

Cited – Co-operative Insurance Society Ltd v Hastings Borough Council ChD 23-Jun-1993
The local authority made a CPO in 1981 in respect of a sports ground. The applicants later acquired the land. In 1989 the order was confirmed and in March 1989 a vesting order was made. The authority was unable to afford to complete the purchase. In . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.186345

Barnes v Derby Diocesan Board of Finance and Another: ChD 14 Nov 2002

Permission was sought to sell land within to the parish, and directions sought as to the application of the proceeds of sale.
Held: The land had been transferred to the diocesan board of finance on the merger of two parishes, and was held for parochial or diocesan purposes. This was not special property, and since it was no longer needed, it could be sold, but the proceeds were to be applied within the parish and not for general purposes of the diocese.

Judges:

Etherton J

Citations:

Times 22-Nov-2002

Statutes:

Pastoral Measure 1983 31(1)(1)(d)

Jurisdiction:

England and Wales

Ecclesiastical, Land, Charity

Updated: 05 December 2022; Ref: scu.178290

Earnshaw and Others v Hartley: CA 31 Mar 1999

An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A delay in the application for the grant did not apply where time had not in any event begun to run before the application

Judges:

Lord Justice Nourse Lord Justice Buxton And Sir Christopher Staughton

Citations:

Gazette 21-Apr-1999, Times 29-Apr-1999, Gazette 12-May-1999, [1999] EWCA Civ 1141, [2000] Ch 155

Statutes:

Limitation Act 1980 Sch 1 Para 9, Administration of Estates Act 1925 9

Jurisdiction:

England and Wales

Citing:

Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Re Leigh’s Will Trusts; Handyside v Durbridge ChD 1970
The testatrix’s husband and only child had drowned in an accident. She was his administratrix and sole beneficiary under his intestacy. At his death, the husband had been the owner of 51% of the issued shares in a company and had been owed money by . .
Cited – Paradise Beach and Transportation Co Ltd v Price-Robinson PC 1968
(Bahamas) The provisions in the Acts of 1833 and 1874 did away with the earlier doctrine of ‘non adverse’ possession, under which, in the absence of an ouster, the possession of one joint tenant or tenant in common was regarded as the possession of . .
Mentioned – Re Deans 1954
A Probate Judge is not considered to be a trustee. . .
Cited – In Re Williams 1886
The purpose of the section is to allow time to run against an administrator as from the intestate’s death, irrespective of whether a grant of administration has been obtained or not. . .

Cited by:

Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Land, Wills and Probate, Limitation

Updated: 05 December 2022; Ref: scu.146056

Wynn Realisation Ltd v Vogue Holdings Inc: CA 24 Mar 1999

Appeal of Wynn Realisations Ltd from an order dismissing the claim of Wynn to 107,250 pounds as being part of the price due but unpaid on the sale of certain land by Wynn to the defendant Vogue Holdings Incorporated. The sum represented the VAT element, the contract expressing the purchase price to be exclusive of VAT. Held; The appeal succeed, and the sum representing VAT was payable. The parties considered that no VAT would be payable or that it could only be payable if the option to tax were taken, but the reason VAT is payable has nothing do with whether or not Wynn opted to tax.
Morritt LJ said: ‘First, VAT, where payable, is charged by reference to the value of the supply which, when in money, is to be taken to be such amount as with the addition of the VAT is equal to the consideration: the price is VAT inclusive. This is apparent from section 19(2) of the 1994 Act. It is for that reason that where VAT is not to be included, the parties normally makes express reference to the fact that the price does not include VAT by reference to a number of formulae, of which ‘exclusive of VAT’ is perhaps the most common.’

Judges:

Morritt, Auld, Clarke LJJ

Citations:

[1999] STC 524, [1999] EWCA Civ 1087, [1999] BTC 5224, [1999] BVC 245

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Mason v Boscawen ChD 18-Dec-2008
The landlord had opted to charge VAT on part of the rent. The tenant fell into arrears and now challenged a notice to quit which included the VAT. The court was asked what constituted ‘rent’ for the purposes of a demand for rent founding a notice to . .
Lists of cited by and citing cases may be incomplete.

Land, VAT

Updated: 05 December 2022; Ref: scu.146002

Berkshire Capital Funding Limited v Street and Barker, Nationwide Building Society: CA 14 Apr 1999

The court can make an order for possession in favour of the second mortgagee, subject to the rights of a prior mortgagee. Where the first mortgagee grants a tenancy of the mortgaged property, the second mortgagee will be bound by that tenancy and will not be entitled to possession as against that tenant.

Citations:

[1999] EWCA Civ 1158, (1999) 78 P and CR 321

Jurisdiction:

England and Wales

Cited by:

Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.146073

Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown: CA 4 Mar 1999

The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant had been granted a licence by the National Trust to enter and occupy this land for these purpose. The purpose for which the licence is granted is to enable the works agreed between the parties . . to be carried out. The Defendants objected to what was proposed and, without any licence from anyone, set up encampments on the land so as to make it difficult or impossible to lop and fell the trees. The Claimants started possession proceedings under RSC Order 113.
Held: A temporary stay was granted. A licensee, prevented by the acts of a squatter from exercising the rights of occupation, given by the licence, was entitled to apply for possession even though he himself might not be in occupation under the licence.
Chadwick LJ said: ‘possession is synonymous . . with exclusive occupation – that is to say occupation (or a right to occupy) to the exclusion of all others, including the owner or other person with superior title.’

Judges:

Chadwick, Laws LJJ

Citations:

Gazette 03-Mar-1999, Times 05-Mar-1999, Gazette 17-Mar-1999, [1999] EWCA Civ 897, [2000] 1 QB 133

Jurisdiction:

England and Wales

Citing:

See Also – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
See Also – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .

Cited by:

Cited – Countryside Residential (North Thames) Ltd v Tugwell CA 4-Apr-2000
A company was granted a licence to enter on land, for surveys and technical investigations, with a view eventually to its purchase. The land was occupied by protesters, and the company sought an injunction to exclude them. It was held that the . .
Cited – Alamo Housing Co-operative Ltd v Meredith and others CA 4-Apr-2003
The local authority had let a row of houses to the claimant who then sublet the individual houses to the defendant tenants. The authority obtained possession under the head lease for redevelopment, but the tenants resisted giving possession, saying . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – Clarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.145812

Manchester Airport Plc v Dutton and others: CA 23 Feb 1999

The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence to enter on the land to remove the trees. The respondents said the claimant had insufficient interest to found the request for the order.
Held: The objectors appeal failed. (Lord Chadwick dissenting) The National Trust could not grant exclusive possession to the claimant. ‘There is no doubt that a licensee may have a right to exclusive possession without thereby becoming a tenant – for example where the licence is gratuitous – but that will depend on the terms of the licence. ‘ A letter from the National Trust could not assist: ‘The legal effect of a written document is a matter for the court which has to give effect to its terms. The ‘right as licensor to enter should the need arise’ is not reserved in any express term of the licence; it exists, in my view, because the licence grants no right of possession which would enable the airport company to exclude the National Trust. The right to control access to and egress from the site is not mentioned in the licence; nor is there, in the licence, any mention of responsibility for security measures. ‘
Laws LJ: ‘in this I hear the rattle of mediaeval chains.’ The historical law of ejectment was based upon a fiction: ‘the remedy by way of ejectment was by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant; and the fictions, first introduced in the latter half of the sixteenth century and in effect maintained until 1852, were designed to cut out the consequences of pleading points that might be taken if the plaintiff did not plead his case as to the relevant legal relationships with complete accuracy. ‘ and ‘there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. ‘ The court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. ‘

Judges:

Laws LJ, Chadwick LJ

Citations:

[1999] EWCA Civ 844, [2000] 1 QB 133, [1999] 2 All ER 675, (2000) 79 P and CR 541, [1999] 1 EGLR 147, [1999] 3 WLR 524, [1999] EG 31

Links:

Bailii

Statutes:

Rules of The Supreme Curt Order 113 Rule 1, Common Law Procedure Act 1852

Jurisdiction:

England and Wales

Citing:

Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .
See Also – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
Cited – Allan v Liverpool Overseers 1874
The court was asked whether a steamship company was liable to be rated in respect of its occupation of sheds which it occupied under a licence from the Mersey Docks and Harbour Board. The court noted that liability for rates fell only on a person . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Appah v Parncliffe Investments Ltd CA 1964
The test of whether a person is a lodger, as opposed to a sub-tenant, must be determined by the degree of control retained by the householder over the rooms which the lodger occupies. . .
Cited – Manchester Corporation v Connolly CA 1970
The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is . .
Cited – Radaich v Smith 7-Sep-1959
(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and . .
Cited – Hounslow London Borough Council v Twickenham Gardens Development Limited 1971
The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate . .
Cited – Dunford v McAnulty HL 1883
Lord Blackburn: ‘in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to . .
Cited – In Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .
Cited – Wiltshire County Council v Frazer CA 1984
For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: ‘(1) of the plaintiff that he should have a right to possession of the land in . .

Cited by:

See Also – Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown CA 4-Mar-1999
The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.145759

Caradon District Council v Paton; Same v Bussell: CA 10 May 2000

The council had applied for an injunction to restrain the defendants from letting their properties on short term lets for holidaymakers. The houses had been sold by the council under the right to buy schemes, and they remained subject to covenants restraining the use of the property other than as a private dwelling house and not for business use. It now appealed against the refusal of such injunctions.
Held: The appeal succeeded. The use for lettings of one or two weeks at a time were not lettings as a private dwelling house, since they lacked the necessary permanence. The tenants could not be said to be using the properties as a home even for the short period, and the lettings were in breach. The use as a private dwellinghouse required some occupation as a home. That element implied a permanence and intention to reside in the property which was missing from such lets. Lord Justice Latham emphasised that covenants must be construed in their context. The context here was the desire to preserve the availability of housing stock built with public funds. Given this finding it was unnecessary to decide whether the use was in breach of the covenant against use for business

Judges:

Latham LJ, Clarke LJ

Citations:

Times 17-May-2000, Gazette 31-May-2000, [2000] 3 EGLR 57, (2001) 33 HLR 34

Statutes:

Housing Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Triplerose Ltd v Beattie and Another UTLC 4-Jun-2020
Short term visitor sublets were breach of lease
Landlord and Tenant – Breach of Covenant – covenant against use of flat other than as a private dwelling house and prohibiting use for trade or business – whether breached by use of flat as serviced apartment advertised on internet booking sites – . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.78885

Jaques v Secretary of State for the Environment: 1995

Laws pointed out that the law on dedication of had moved forward, saying: ‘Taking the passage cited from Scott LJ in Jones v Bates as a full and convenient description of the common law, it seemed that the material change effected by the statute of 1932 (and carried through to the Act of 1980) did not merely consist in a shift of the burden of proof. The common law required not only that the claimant to the right should show that the landowner had evinced an intention to dedicate, he had to show actual dedication; and it was precisely because such an event was usually fictitious or imaginary that the common law was unsatisfactory. But under section 31 the landowner had to prove merely that he had no intention to dedicate; certainly, he had to prove it by overt acts, directed (as Lord Denning indicated in Fairey) to the public who use the way in question. Lord Denning contemplated that the traditional means of closing the way for one day in the year would suffice.
The result was, in his view, that under the statute the landowner had a lesser proposition to disprove than under the common law the claimant had to prove. That approach vindicated the plain purpose of the Act of 1932 for the very reason explained by Scott LJ; it expunged from the law the Alice in Wonderland requirement of any actual dedication.’

Judges:

Laws J

Citations:

[1995] JPL 1031

Statutes:

Rights of Way Act 1932, Highways Act 1980 31

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .

Cited by:

Cited – Regina v Nicholson and Another, Secretary of State for Environment and others Admn 20-Dec-1996
N objected to the reclassification of a public footpath over his farm as a byway open to all traffic, saying that there had been insufficient evidence to establish a dedication at common law.
Held: N’s appeal failed. ‘A track can become a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 December 2022; Ref: scu.651703

Webb v Baldwin: 1911

Parker J said: ‘Dedication . . may be established by proof of definite acts of dedication on the part of the owner, or it may be inferred from use and enjoyment on the part of the public; but such use and enjoyment must be use and enjoyment as of right known to the owner and acquiesced in by him.
Further, this knowledge and recognition on the part of the owner may itself be inferred from the fact that the use and enjoyment has been so open and notorious as of right as to give rise to the presumption that the owner must have been aware of it and has acquiesced in it . . ‘

Judges:

Parker J

Citations:

[1911] 75 JP 564

Jurisdiction:

England and Wales

Land

Updated: 04 December 2022; Ref: scu.651704

The Duke of Bedford v British Museum: 6 Jul 1822

Citations:

[1822] EngR 456, (1822) 1 Coop T Cott 90, (1822) 47 ER 761 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – The Duke of Bedford v The Trustees of The British Museum 6-Jul-1822
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 December 2022; Ref: scu.329349

Malcomson v O’Dea: 1863

In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right.

Citations:

(1863) 10 HLC 592

Jurisdiction:

England and Wales

Cited by:

Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 December 2022; Ref: scu.279922

Agency Co Ltd v Short: 1888

Where there has been insufficient adverse possession, it ‘does not leave behind it any cloud on the title of the rightful owner.’

Citations:

(1888) 13 AC 793

Jurisdiction:

England and Wales

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: 04 December 2022; Ref: scu.267400

Boggis, Regina (on the Application of) v Natural England and Another: CA 29 Feb 2008

Renewed application for leave to bring judicial review – making of SSSI – granted.

Judges:

Mummery LJ, Munby J

Citations:

[2008] EWCA Civ 335

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981 28

Jurisdiction:

England and Wales

Cited by:

see Also – Boggis and Another, Regina (on the Application of) v Natural England and Another Admn 5-Dec-2008
The claimants wanted to erect a sacrificial barrier by way of a sea defence in order to protect cliffs from erosion. The site was then designated as a site of special scientific interest, and permission was required from the defendant, who refused, . .
See Also – Boggis and Another v Natural England CA 20-Oct-2009
Natural England appealed against the quashing of an SSSI.
Held: The notification of an SSSI was not the making of a plan as respects the land affected, but the flagging up of it. The real purpose of the proceedings was to allow the land owners . .
Lists of cited by and citing cases may be incomplete.

Land, Environment

Updated: 04 December 2022; Ref: scu.266778

Briggs v McCusker: 1996

Where one of the plots subject to a building scheme had been sub-divided, the benefit of the covenant in the scheme which originally burdened the whole plot did not pass to the owner of one of the subdivided plots so as to enable that owner to enforce the covenant against an owner of one of the other subdivided plots.

Judges:

Judge Rich QC

Citations:

[1996] 2 EGLR 197

Jurisdiction:

England and Wales

Citing:

Binding – In Re Beechwood Homes Limited’s Application CA 1994
Dillon LJ said that the case had proceeded below in the Lands Tribunal and had, therefore, to proceed in the Court of Appeal on the common basis that the power to consent to breach of a covenant was a dispensing power attached to another otherwise . .

Cited by:

Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 December 2022; Ref: scu.263764

Robins v Berkeley Homes (Kent) Ltd: 1996

A building scheme applied to land. A development was challenged as being in breach.
Held: The defences both of change of character of the neighbourhood and acquiescence both failed, and a final injunction was granted.

Citations:

[1996] 2 EGLR

Jurisdiction:

England and Wales

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: 04 December 2022; Ref: scu.263767

Case of the Duchy of Lancaster: 1561

Queen Elizabeth I wished to know whether a lease granted by Edward VI of some land within the Duchy while under the age of 21 (‘during his nonage’) was voidable.
Held: It was not voidable. The king’s natural body was inseparable from his body politic (a corporation sole), which was never under age. Seisin can only pass to the Crown as a matter of record. Furthermore, seisin could not therefore pass to the Crown either by livery of seisin or by the disseisin of a subject’s land by a Crown servant.

Citations:

(1561) 1 Plow 213

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Updated: 04 December 2022; Ref: scu.264648

Friend v Duke of Richmond: 1667

Two subjects brought action for ejectment. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant. There could not be an entry, as the Crown had already obtained a judgment based on an information of intrusion and a person could not enter against the Crown. The plaintiff responded that he was not bound by the judgment, as he was not a party to that action and so he could allege an entry.
Held: The objection was overruled. Sir Matthew Hale observed obiter that ‘And though the judgment in intrusion includes an amoveas manum, yet it extends only to such as may lawfully be amoved. And if the sheriff do otherwise, he is a disseisor; as if in a judgment against A., in a real action, he should oust B., who neither claims under A., nor is tenant to the action. And the King cannot gain anything by wrong; so that he cannot be a disseisor, but they that enter.’

Judges:

Hale CB

Citations:

(1667) Hardres 461

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Crown Estate Commissioners CA 20-Feb-2008
The commissioners sought to claim title to a foreshore by adverse possession. The claimant asserted that he had acquired title in his capacity of Lord Marcher of Magor which had owned the bed of the estuary since the Norman Conquest, and that the . .
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.

Constitutional, Land

Updated: 04 December 2022; Ref: scu.264649

Chapman v Gatcombe: 1836

One separate hereditament cannot be appurtenant to another.

Citations:

[1836] 2 Bing N C 516

Jurisdiction:

England and Wales

Cited by:

Still Good Law – Public Trustee v Duchy of Lancaster CA 1927
The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself.
Held: The farm and the tithe rentcharge were two separate hereditaments and express . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 December 2022; Ref: scu.263190

Crown Estate Commissioners v Fairlie Yacht Slip Ltd: 1976

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

Judges:

Lord Dunpark

Citations:

1976 SC 161

Jurisdiction:

Scotland

Cited by:

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

Land

Updated: 04 December 2022; Ref: scu.260032

Hogg v Campbell: 2 Apr 1993

The proposition that the dominant proprietors are the only persons interested in an easement cannot be taken too strictly. The right extends to the proprietors’ guests, visitors, employees and others who come there for the purposes to which the land is being put. But that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement.

Judges:

Lord Clyde

Citations:

1993 GWD 27-1712, Unreported, 2 April 1993

Jurisdiction:

Scotland

Cited by:

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

Land

Updated: 04 December 2022; Ref: scu.260027

Pell v Addison: 1860

Extent of lay rector’s duty of repair of the parish church.

Citations:

(1860) 2 FandF 29

Jurisdiction:

England and Wales

Cited by:

Cited – Parochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank ChD 5-Feb-2007
The defendants, had been found liable as owners of land which made them lay rectors of the local parish church, were called upon to contribute to the costs of repair of the church. They argued that the duty extended only to keeping it wind and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.253502

Flight v Barton: 1832

The silence of the vendor’s agent is equivalent to a representation that there is no covenant prohibiting the current use of a property being sold.

Citations:

(1832) 3 My and K 282

Jurisdiction:

England and Wales

Cited by:

Cited – Hepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.252342

Barraclough v Johnson: 1838

A public right of way was claimed and it was said that what mattered was the impression given to the public. Littledale J directed the jury: ‘A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded, but it would be for a jury to say whether he had intended to dedicate it or not. The facts may warrant them in believing that the way was dedicated, though he has said that he did not so intend: and, if his intention be insisted upon, it may be answered that he should have shewn it by putting up a gate, or by some other act.’

Judges:

Littledale J

Citations:

(1838) 8 Ad and E 99

Jurisdiction:

England and Wales

Land

Updated: 01 December 2022; Ref: scu.253531

Howton v Frearson: 1798

Where trustees sell land, and retain other land, and the sold land has no means of access save over the retained land, a right of way over the retained land in favour of the land sold is implied by operation of law.

Citations:

(1798) 8 Term Rep 50, [1798] 101 ER 1261

Jurisdiction:

England and Wales

Land

Updated: 01 December 2022; Ref: scu.253271

Forbes v Ecclesiastical Commissioners for England: 1872

The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights.

Citations:

(1872) LR 15 Eq 51

Statutes:

Inclosure Act 1845

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.242325

Thomas v Dering: 1837

The court put forward: ‘the general principle that the court will not execute a contract, the performance of which is unreasonable or will be prejudicial to persons interested in the property, but not parties to the contract’

Judges:

Lord Langdale

Citations:

(1837) 1 Keen 729, [1837] EngR 595, (1837) 1 Keen 729, (1837) 48 ER 488

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cedar Holdings Ltd v Green CA 1981
A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 01 December 2022; Ref: scu.238940

Regina v Secretary of State for the Environment ex parte Riley: 1990

The court considered the effect of a reclassification of a road under the 1968 Act.
Held: Reclassification as a bridleway left open the possible existence of public vehicular rights since the 1968 Act had left the effect of the proviso in section 32(4)(b) in th e1949 Act unaltered and contained no positive word about extinguishment save for the one reference in Paragraph 10(c).

Judges:

Macpherson J

Citations:

[1990] 59 P and CR 1

Statutes:

National Parks and Access to the hcountryside Act 1948, Countryside Act 1968

Jurisdiction:

England and Wales

Citing:

Disapproved – Regina v Secretary of State for the Environment ex parte Hood CA 1975
The court considered the nature of the 1949 Act: ‘The object of the statute is this: it is to have all our ancient highways mapped out, put on record and made conclusive, so that people can know what their rights are. Our old highways came into . .

Cited by:

Cited – Kind, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs Admn 27-Jun-2005
The applicant challenged a refusal to confirm a draft order recognising a road used as a path as a byway open to all traffic.
Held: The challenge succeeded. The path had been shown under the 1948 Act as a road used as a public path. The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.229816

Re Jilla’s Application: 2000

Citations:

[2000] 2 EGLR 99

Jurisdiction:

England and Wales

Cited by:

Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.228508

Cryer v Scott Brothers Sunbury Ltd: 1986

A covenant had been taken on the sale of building land to require all building plans to be submitted to the transferors for their approval before building work was commenced.
Held: There was an implication that the transferors would not withhold approval unreasonably, in which context the members of the court referred to withholding approval arbitrarily or capriciously.

Judges:

Waite J

Citations:

(1986) P and CR 183

Jurisdiction:

England and Wales

Cited by:

Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 01 December 2022; Ref: scu.228507

Cato v Thompson: 1882

The phrase ‘a good marketable title’ must mean ‘to the property contracted to be sold’. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or leasehold and without stating that it is subject to incumbrances, it means ‘to the fee simple free from incumbrances.’

Citations:

(1882) 9 QBD 616

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 December 2022; Ref: scu.229221