Targett and Targett v Ferguson and Diver: 1996

The common intention of the parties to a contract is to be construed objectively. The objective test to be satisfied is, what would the reasonable layman think he was buying?

Judges:

Sir John Balcombe

Citations:

(1996) 72 P and CR 114

Jurisdiction:

England and Wales

Citing:

Dictum ApprovedSpall v Owen 1981
There was a description of a property as ‘the property known as plot number 1’.
Held: Peter Gibson LJ said that such a description cried aloud for evidence of the surrounding circumstances. . .

Cited by:

CitedRogers and Another v Freeguard and Another CA 19-Oct-1998
The parties had drawn up and executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.197728

Hereford and Worcester County Council v Pick: 1 Apr 1995

The issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. The court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed.
Held: The user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and for that reason the user could not lead to a presumed dedication. ‘Public rights cannot be based on long use where the user is prohibited by statute.’

Judges:

Stuart-Smith LJ

Citations:

(1995) 71 P and CR 231

Statutes:

Road Traffic Act 1988 34(1)

Jurisdiction:

England and Wales

Citing:

CitedHanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
CitedRobinson v Adair QBD 2-Mar-1995
The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway. The prosecutor appealed.
Held: It had to be decided whether a particular road had become by presumed dedication a public highway. The use . .

Cited by:

Doubted in partBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.195484

Pyer v Carter: 21 Feb 1857

Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entititled to the benefit and is subject to the burthen of all existing drains communicating with the other house, without any express reservation or grant for that purpose. The plaintiff’s and defendant’s houses adjoined each other. They had formerly been one house and were converted into two by the owner of the whole property. Subsequently the defendant’s house was conveyed to him, and after that the plaintiff took a conveyance of his house. At the times of these conveyances, a drain ran under the plaintiff’s house and thence under the defendant’s, and discharged itself into the common sewer. Water from the eaves of the defendant’s house fell on the plaintiff’s house, and then ran into a drain on the plaintiff’s premises and thence through the drain into the common sewer. The plaintiff’s house was drained through this drain.
Held: The plaintiff was, by implied grant, entitled to have the use of the drain as it was used at the time of the defendant’s purchase of the house. A drainage easement is deemed to be continuous and apparent.

Citations:

[1857] EngR 291, (1857) 1 H and N 916, (1857) 156 ER 1472, (1857) 1 HandN 916

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedMcAdams 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: 25 November 2022; Ref: scu.194009

Copeland Borough Council v Secretary of State for the Environment: 1976

An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the construction of the house as a whole.
Held: This was an error sufficient to require the enforcement notice to be quashed. The character of the development to be considered derives from the whole development, and to construct only a small part would result in something different in character.
Lord Widgery CJ said: ‘For my part, and in the absence of authority, I would have had no hesitation in saying that in a case of this kind where there is to be new development on land previously undeveloped one ought, subject to any special provisions in the planning permission itself, to treat the operation as single one, and I test it for myself in this way. The purpose of all town and country planning is to preserve amenities and the sensible and attractive lay-out of properties, and if the appellants are right in this case and the grant of a permission of this kind is really the grant of multiple permissions to install brick by brick it would mean that an eccentric land developer could produce most extraordinary results on his land, results which might perfectly well redound to the disadvantage of others, without in any way falling foul of this legislation; he could leave holes in the walls of his house; he could leave half the roof off; he could do all sorts of eccentric things of that kind, and when he was tackled about it by the planning authority he would say: ‘But every brick is in accordance with the plans; at no point have I done anything which the plans did not authorise.’ If it were asked: ‘What about the all the vacant spaces which the plans intended to be filled?’ the answer would be: ‘There is no breach of planning control there. There is nothing done there and if you do nothing you cannot be wrong.”

Judges:

Lord Widgery CJ

Citations:

(1976) 31 PandCR 403

Jurisdiction:

England and Wales

Cited by:

CitedC F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
CitedRoberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 25 November 2022; Ref: scu.188858

S v France: ECHR 1990

The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation was payable in a control of use case (involving substantial interference with the applicant’s enjoyment of her property) there was no infringement of Article 1P1.

Citations:

[1990] 65 DR 250

Jurisdiction:

Human Rights

Cited by:

CitedTrailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
CitedTrailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 25 November 2022; Ref: scu.193775

Spall v Owen: 1981

There was a description of a property as ‘the property known as plot number 1’.
Held: Peter Gibson LJ said that such a description cried aloud for evidence of the surrounding circumstances.

Judges:

Lord Justice Peter Gibson

Citations:

(1981) 44 P and CR 36

Jurisdiction:

England and Wales

Cited by:

Dictum ApprovedTargett and Targett v Ferguson and Diver 1996
The common intention of the parties to a contract is to be construed objectively. The objective test to be satisfied is, what would the reasonable layman think he was buying? . .
CitedRogers and Another v Freeguard and Another CA 19-Oct-1998
The parties had drawn up and executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 25 November 2022; Ref: scu.197729

Regina v Cunningham Graham and Burns: 1888

The court rejected a suggestion that there was a right of public meeting in Trafalgar Square or any other thoroughfare. ‘So far as I know the law of England, the use of public thoroughfares is for people to pass and repass along them. That is the purpose for which they are, as we say, dedicated by the owner of them for the use of the public, and they are not dedicated to the public use for any other purpose that I know of other than for the purpose of passing and repassing; and, if you come to regard Trafalgar Square as a place of public resort simply, it seems to me it would be very analogous to the case of public thoroughfares.’

Judges:

Charles J

Citations:

(1888) 16 Cox 420

Jurisdiction:

England and Wales

Cited by:

CitedDirector of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Lists of cited by and citing cases may be incomplete.

Crime, Land

Updated: 25 November 2022; Ref: scu.192194

Morrell v Fisher: 22 Dec 1849

A devise of ‘all my leasehold farm-house, homestead, lands, and tenements at Headington, containing about 170 acres, held under Magdalen College, Oxford, and now in the occupation of Thomas Burrows’ was construed as excluding two parcels of land not occupied by Thomas Burrows at Headington, the words relating to the acreage being rejected as a false description. The court considered the maxim ‘that if there be an adequate and sufficient description, with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it. The characteristic of cases within the rule is that the description, so far as it is false, applies to no subject at all; and so far as it is true, applies to one only.’

Judges:

Alderson B

Citations:

(1849) Exch 591, [1849] EngR 1242, (1849) 4 Exch 591, (1849) 154 ER 1350

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedRogers and Another v Freeguard and Another CA 19-Oct-1998
The parties had drawn up and executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.197726

Dryburgh v Gordon: 1896

A search against land which produces an adverse entry ex facie of the record, even if it relates to an inhibition which was laid on after the missives were entered into, is not a clear search.

Citations:

(1896) 24 R 1

Jurisdiction:

Scotland

Cited by:

CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.194224

Young v Leith: IHCS 1844

Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be clearly taken as the law of Scotland, that unrecorded sasines are a nullity.’

Judges:

Lord Campbell

Citations:

(1848) 2 Ross’s LC 81, (1844) 6 D 370

Jurisdiction:

Scotland

Citing:

Appealed toYoung v Leith HL 1847
The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .

Cited by:

CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal fromYoung v Leith HL 1847
The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 25 November 2022; Ref: scu.194217

Hesketh v Birmingham Corporation: 1924

The court rejected a claim for nuisance where a claim was available under the 1875 Act.

Judges:

Scrutton LJ

Citations:

[1924] 1 KB 260

Statutes:

Public Health Act 1875

Jurisdiction:

England and Wales

Cited by:

CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land, Utilities, Nuisance

Updated: 25 November 2022; Ref: scu.188630

Chastey v Ackland: CA 1895

The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance granted an injunction against the new building.
Held: on appeal, that since the defendant was not the originator of the nuisance, the stagnation air caused by the new building was not actionable either as interference with an easement or as a nuisance. The injunction was discharged. A right to air from particular direction can be established by immemorial user, though not by prescription. Lindley LJ said: ‘speaking generally, apart from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of air is not actionable as a nuisance.’

Judges:

Lopes LJ, Lindley LJ

Citations:

[1895] 2 Ch 389, [1895] 64 L J QB 523, [1895] 72 LT 845, [1895] 43 WR 627, [1895] 11 TLR 460, [1895] 39 Sol Jo 582

Jurisdiction:

England and Wales

Citing:

CitedBland v Moseley 1587
The court distinguished the elements of an easement of light and an easement of air. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour’s land. . .

Cited by:

Appeal fromChastey v Ackland HL 22-Feb-1897
Immemorial user . .
CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Land

Updated: 25 November 2022; Ref: scu.195586

Bybrook Barn Garden Centre Ltd and Others v Kent County Council: CA 8 Jan 2001

A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an obstruction leading to the claimant’s property being flooded. It was checked regularly, but no steps taken to increase the capacity. It was held that the local authority could become liable in nuisance when such a feature for which they had responsibility came to be an obstruction to the escape of material occurring naturally on land.

Citations:

Times 08-Jan-2001, Gazette 05-Apr-2001, [2000] EWCA Civ 300, [2000] EWCA Civ 299, [2001] BLR 55

Links:

Bailii, Bailii

Statutes:

Highways Act 1980 41 58(1)

Jurisdiction:

England and Wales

Citing:

Appeal fromBybrook Barn Garden Centre Ltd and Others v Kent County Council QBD 5-Nov-1999
Owners of land downstream of a culvert had their lands flooded after works on land upstream changed the water flow, causing the culvert to be inadequate to cope with the water now running off.
Held: The culvert did not constitute a nuisance, . .
CitedCorporation of Greenock v Caledonian Railway Company HL 1917
The West Burn flowed in a channel considerably below the surrounding ground which drained into it and in particular was below the level of Inverkip Road. In 1908, in order to form a playground for children, the natural channel of the West Burn was . .
CitedSedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
AppliedLeakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
CitedPemberton v Bright and Another CA 1960
A culvert had been altered and extended in 1926 and the entrance left uncovered and unprotected.
Held: The interference with the flow of water created a potential nuisance in that ‘heavy rain was always a potential danger unless properly . .
CitedRadstock Co-operative and Industrial Society v Norton-Radstock Urban District Council 1976
. .
CitedGoldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
CitedRex v Bell 1822
‘that which is not a nuisance at the time it is done, cannot become so by length of time’ . .
CitedGlossop v Heston and Isleworth Local Board CA 9-May-1879
The local authority was held not liable for damage caused by an overflow of their sewage systems which had been adequate when installed but became inadequate over time. . .
CitedSmeaton v Ilford Corporation ChD 1954
Overloading caused the corporation’s foul sewer to erupt through a manhole and discharge ‘deleterious and malodorous matter’ into Mr Smeaton’s garden.
Held: The authority were not liable for the connections with the sewer and discharge of . .
CitedGreat Central Railway v Hewlett HL 1916
A railway company had been empowered to erect in a highway certain gateposts and in a war-time blackout a taxi-driver had run into them. The company was found not liable for the accident.
Held: The accident was caused by the post which had . .
CitedMoore v Lambeth Waterworks Co 1886
The defendants were found not liable when a fireplug lawfully fixed in a highway had become exposed as the road surface had worn. . .
CitedThompson v Brighton Corporation CA 1894
A manhole cover became exposed as the road surface eroded, causing injury.
Held: The Corporation were not liable. . .
CitedPride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd CA 1953
The plaintiff brought an action for nuisance against the local authority for having discharged insufficiently treated effluent into the river Derwent.
Held: The plaintiffs: ‘have a perfectly good cause of action for nuisance, if they can show . .
CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
CitedStovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
CitedNeath Rural District Council v Williams QBD 1951
A watercourse became silted by natural causes and the local authority served an abatement notice on the landowner, who failed to respond, and when prosecuted relied on a proviso which excluded from liability ‘any person other than the person by . .
CitedCambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
CitedDear v Thames Water and Others 1992
. .
CitedJob Edwards Ltd v Birmingham Navigations Proprietors CA 1924
Land next to the canal was used for the deposit of refuse by trespassers. The mound spread until, for a fee, it was dumped also across the canal. It caught fire, and the fire spread toward the canal. By agreement the parties got together to put out . .

Cited by:

CitedStannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Land

Updated: 25 November 2022; Ref: scu.78788

Eyestorm Ltd v Hoptonacre Homes Ltd: CA 19 Dec 2007

The appellant had agreed to take leases on a development of the defendant, hoping to sell the apartments on at a profit. After difficulties, the appellant refused to complete, and the defendant forfeited the deposits.
Held: Eyestorm’s appeal was dismissed. It had failed to show the breach of the contract by the defendant.

Judges:

Tuckey LJ, Lawrence Collins LJ, Rimer LJ

Citations:

[2007] EWCA Civ 1366

Links:

Bailii

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Citing:

CitedProsper Homes Ltd v Hambros Bank Executor and Trustee Co Ltd 1980
The court considered whether a contract had been validly rescinded. The validity of a completion notice was challenged on the ground that the vendors were not ready, able and willing to complete the sale when the notice was served because they were . .
CitedMcCausland and Another v Duncan Lawrie Ltd and Another CA 18-Jun-1996
The parties entered into a written contract for the sale of land which, in error, provided for completion on a Sunday. The parties varied the date to the Friday but did not execute a new contract which would comply with section 2(1) of the 1989 Act. . .
CitedTrego v Hunt HL 1896
The court defined the meaning of the goodwill of a business: ‘What ‘goodwill’ means must depend on the character and nature of the business to which it is attached. Generally speaking, it means much more than what Lord Eldon took it to mean in the . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedOmar v El-Wakil CA 11-Jul-2001
The parties entered into two linked contracts providing for a property and a business to be transferred, a lease granted and otherwise. The transfer of the property was in the sum expressed in the sum and at the time the other agreement provided for . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 24 November 2022; Ref: scu.262931

Barstow and Others v Rothwell Urban District Council: 1971

Citations:

(1971) 22 PandCR 942

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 24 November 2022; Ref: scu.245986

Wright v Williams: 1836

The plaintiff landowner had a copper mine. The water from the mine, which had been contaminated with metallic substances discharged over a neighbour’s land. He sought to establish a right to do so by prescription. The right was claimed over land subject to a tenancy for life.
Held: Such a claim was in the nature of a claim to a water course. The claim should be pleaded as ‘for the full period of forty years next before the commencement of the suit’ . It was no full answer to say that the servient land was subject to a tenancy for life, siince though the period of the tenancy for life was to be excluded, that exclusion was conditional upon the reversioner making objection within three years after the end of the tenancy for life.

Citations:

[1836] 1 M and W 77, [1836] 1 Gale 410, [1836] Tyr and Gr 375, [1836] 150 ER 353

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Land, Limitation

Updated: 24 November 2022; Ref: scu.223973

Isenberg v East India House Estate Co Ltd: 1863

The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order payment of damages: ‘. . I hold it . . . to be the duty of the court in such a case as the present not, by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.’

Judges:

Lord Westbury LC

Citations:

(1863) 3 De G J and S 263

Statutes:

Lord Cairns’s Act 1858

Jurisdiction:

England and Wales

Cited by:

CitedJaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedCo-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 24 November 2022; Ref: scu.222601

Cogan v Cogan: 1596

A legal remainder was void if it was limited so that it took effect by defeating the particular estate: ‘The remainder must wait for the regular ending of the estate.’

Citations:

(1596) Cro Eliz 360

Jurisdiction:

England and Wales

Land

Updated: 24 November 2022; Ref: scu.222685

Re Wembley Park Estate Co Ltd’s Transfer: 1968

The court confirmed the rule in Jeffkins and added that ‘the costs payable to the defendant should be paid on the common fund basis ‘since the obtaining of the order is something in the nature of a luxury to the plaintiff for which he ought to pay.’

Judges:

Goff J

Citations:

[1968] Ch 491

Jurisdiction:

England and Wales

Citing:

ConfirmedRe Jeffkins Indentures 1965
‘a plaintiff seeking a declaration that restrictive covenants do not affect his property is expected to pay his own costs. He is also expected to pay the costs of any defendants who enter an appearance down to the point in proceedings at which they . .

Cited by:

CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Lists of cited by and citing cases may be incomplete.

Costs, Land

Updated: 24 November 2022; Ref: scu.220712

Chambers v Kingham: 1878

The court was asked whether a lease vested in an administrator in his own right merged in the reversion held by him as administrator.
Held: ‘mergers are odious in equity and never allowed unless for special reason’. There was no merger because the interests were held in different rights.

Judges:

Fry J

Citations:

(1878) 10 Ch D 743

Jurisdiction:

England and Wales

Cited by:

CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 November 2022; Ref: scu.220710

Re Jeffkins Indentures: 1965

‘a plaintiff seeking a declaration that restrictive covenants do not affect his property is expected to pay his own costs. He is also expected to pay the costs of any defendants who enter an appearance down to the point in proceedings at which they have had a full opportunity of considering the matter and deciding whether or not to oppose the application. Any defendant who then decides to continue, and appears unsuccessfully before the judge, does so at his own risk as to his own costs at that stage. Such defendant should not however be ordered to pay the plaintiff’s costs.’

Judges:

Cross J

Citations:

[1965] 1 WLR 375

Jurisdiction:

England and Wales

Cited by:

ConfirmedRe Wembley Park Estate Co Ltd’s Transfer 1968
The court confirmed the rule in Jeffkins and added that ‘the costs payable to the defendant should be paid on the common fund basis ‘since the obtaining of the order is something in the nature of a luxury to the plaintiff for which he ought to pay.’ . .
CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 14-Dec-2004
The parties had litigated the sale of land free of restrictive covenants.
Held: The rule that a party was entilted to its costs of defending an action under the Act for the discharge of a covenant at least as far as was necessary for it to . .
Lists of cited by and citing cases may be incomplete.

Costs, Land

Updated: 24 November 2022; Ref: scu.220711

Re Ecclesiastical Commissioner’s Conveyance: 1936

Judges:

Luxmoore J

Citations:

[1936] Ch 430

Statutes:

Conveyancing Act 1881

Jurisdiction:

England and Wales

Cited by:

CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
CitedBeswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 November 2022; Ref: scu.220706

Cubitt v Porter: 1828

A question arose as to the user of a wall separating adjoining lands belonging to different owners. It was held that common user is prima facie evidence that the wall and the land on which it stands belongs to the owners of those adjoining lands in equal moieties as tenants in common. The jury found that the wall was a party wall. The plaintiff having brought an action against the defendant for trespass to the wall because he had pulled it down, the argument was whether the verdict of the jury was, in fact, a verdict for the defendant. ‘There was evidence of a common user by both parties, which justified the presumption either that the wall was originally built, on land belonging in undivided moieties to the owners of the respective premises, and at their joint expense; or that it had been agreed between them that the wall and the land on which it stood should be considered the property of both as tenants in common, so as to insure to each a continuance of the use of the wall.’

Judges:

Bayley J

Citations:

[1828] 8 B and C 257

Jurisdiction:

England and Wales

Cited by:

CitedDean v Walker CA 10-May-1996
The appellant sought to challenge an order granting his neighbour access across his land in order to maintain a gable end wall.
Held: The judge was plainly correct to make the order. The appellant’s fear that this would prejudice any future . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 November 2022; Ref: scu.219080

Rex v Jones: 1811

(Year?) A land owner has the right to obstruct the highway for the purpose of repairing his house so long as the inconvenience is ‘necessarily’ so caused and it is not prolonged for an unreasonable time.

Citations:

3 Camp 230

Jurisdiction:

England and Wales

Cited by:

CitedWestminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 November 2022; Ref: scu.201636

In re Gough and Aspatria, Silloth and District Joint Water Board: 1903

On assessment of value for a compulsory purchase of land for a reservoir, if the site had ‘peculiar natural advantages’ for the supply of water that could be taken into account, but ‘there is no value for which compensation ought to be given on this head if the value is created or enhanced simply by the Act or by the scheme of the promoters’ .

Judges:

Wright J

Citations:

[1903] 1 KB 574

Jurisdiction:

England and Wales

Cited by:

ApprovedIn re Gough and Aspatria, Silloth and District Joint Water Board CA 1904
. .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 24 November 2022; Ref: scu.196509

Cheltenham and Gloucester Plc v Appleyard and Another: CA 15 Mar 2004

The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, but on the day it was to be completed, provisional liquidators to BCCI were appointed, who refused to acknowledge the discharge of their charge, and the C and G charge could only have protection as an equitable charge. BCCI acknowledged that they had received the sums due, and so had BBBS.
Held: Even though the C and G had received some reduced security, they were entitled to be subrogated to the first chargees whose loan was repaid by their funds. Otherwise the Appleyards would be unjustly enriched to the extent that their property was burdened with a lesser security. Subrogation was a private remedy intended to avoid unjust enrichment.

Judges:

Lord Justice Kennedy, Lord Phillips Of Worth Matravers, Mr Lord Justice Neuberger

Citations:

Times 29-Mar-2004, [2004] EWCA Civ 291, Gazette 01-Apr-2004, [2004] 13 EG 127, [2004] 13 EG 12

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedHalifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedBurston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
CitedPaul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
AppliedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
CitedBoscawen 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 . .

Cited by:

CitedSerious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
CitedPickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.

Banking, Land, Equity

Updated: 24 November 2022; Ref: scu.194462

Bell of Blackwoodhouse v Gartshore: 1737

Alexander Oliphant bought a tenement in Kelso which was being sold by the adjudging creditors of William Chatto. Without becoming infeft, in 1730 Oliphant disponed the decree of sale to Chatto’s son, who also was not infeft. Two years later Chatto junior granted a heritable bond to Bell of Blackethouse who had paid two bills of exchange for him and was entitled to relief. Bell entered into possession but was not infeft. In 1734 John Gartshore, another creditor of Chatto junior, adjudged the decree of sale of the tenement from him and obtained a charter of resignation from the superior, the Duke of Roxburgh, on which he was infeft. A question arose as to the respective entitlements of Chatto junior’s two creditors, Bell and Gartshore.
Held: No conveyance of a personal right to lands can so divest the disponer as to prevent him from granting a posterior deed that may, by prior sasine, be made the preferable.

Citations:

1737 M 2848, 5 Br Suppl 198, 2 Ross’s LC 410

Jurisdiction:

Scotland

Cited by:

CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 24 November 2022; Ref: scu.194226

Mayor, Constables and Company of the Merchants of the Staple v Bank of England: 1883

The sealing of a deed prima facie imported not only due execution but also delivery. ‘The affixing the seal is not enough; there must be delivery of the deed also . . . Prima facie, putting the seal imports delivery; yet, if it be intended otherwise, it is not so . . .’

Judges:

Wills J

Citations:

(1887) 21 QBD 160

Jurisdiction:

England and Wales

Cited by:

CitedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
Lists of cited by and citing cases may be incomplete.

Land, Company

Updated: 24 November 2022; Ref: scu.188673

Cobham v Frett: PC 18 Dec 2000

(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or intermittent occupation. The parties had had resolved a dispute as to the ownership of land, but the winner moved to England, and the neighbour began acts to retake the land. The action to retake the land was heard, but judgement was not given until over a year after the hearing.
Held: There was a suggestion that the judge had misremembered some of the evidence, but his notes were detailed, and there was no evidence that the delay had actually effected the judgement. Such would have to be shown to justify setting aside a judgement on this ground. Similarly the judge’s analysis of the law was correct.
Legatt LJ said: ‘As to demeanour, two things can be said. First, in their Lordships’ collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re-reading. Second, every experienced judge, and Georges J was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses. Notes of this character would not, without the judge’s permission or special request being made to him, form part of the record on an appeal. They might be couched in language quite unsuitable for public record.’

Judges:

Lord Slynn of Hadley Lord Hope of Craighead Lord Scott of Foscote Sir Ivor Richardson The Rt. Hon. Edward Zacca

Citations:

Times 24-Jan-2001, [2000] UKPC 49, [2001] 1 WLR 1775

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Citing:

CitedGoose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
CitedWest Bank Estates Ltd v Arthur PC 1967
(From Federal Supreme Court of the West Indies) A claim was made for possessory title to a strip of land, based upon acts of cultivation, the cutting of timber, wood and grass, fishing and growing rice. The trial judge disallowed the claim to a . .

Cited by:

CitedBoodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .
CitedBangs v Connex South Eastern Ltd CA 27-Jan-2005
The failure of a tribunal to promulgate its decision was a matter of fact not of law, and could not therefore itself be a ground of appeal to the EAT. The EAT had allowed an appeal on the fair trial provision of the Convention. A failure to . .
CitedBond v Dunster Properties Ltd and Others CA 21-Apr-2011
The defendant appealed against the judge’s findings as to fact delivered some 22 months after the hearing.
Held: The appeal failed. Though such a delay must require the court carefully to investigate the judgment, it did not of itself . .
CitedSS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Litigation Practice

Updated: 24 November 2022; Ref: scu.163263

Elwes v Brigg Gas Co: 1886

Judges:

Chitty J

Citations:

(1886) 33 Ch D 562

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 23 November 2022; Ref: scu.421406

Georgeski v Owners Corporation SP49833: 22 Nov 2004

Austlii (Supreme Court of New South Wales) REAL PROPERTY – Crown lands – licence granted by Crown over site of jetty and slipway on bank of tidal river – nature of rights created – whether jetty and slipway are fixtures – effect of provisions of licence declaring them to be ‘property of’ licensee but precluding alteration, removal and destruction while licence subsists – common law rights of public in relation to tidal foreshore – attenuation thereof by statute – TORTS – trespass to land – whether contractual licensee without right of exclusive possession may maintain action in trespass – Manchester Airport plc v Dutton considered – EQUITY – declaratory relief – whether court should at suit of A declare B’s rights against C – lack of utility – postulated rights inconsistent with statutory provision

Judges:

Barrett J

Citations:

(2004) 62 NSWLR 534, [2004] NSWSC 1096

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedHall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.420963

Goodtitle, Ex Dimiss Chester v Alker and Elmes: 28 Jan 1757

The owner of land over which ran a public highway did not lose any of his rights of ownership whether of the surface or subsoil. Any trees growing in the highway were his trees

Citations:

[1757] EngR 48, (1757) 1 Burr 133, (1757) 97 ER 231

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.342194

Bridget and Papendick v William Bridgwater: 31 May 1855

Plaintiff claimed a right of common by prescription, in respect of a que estate in land, and also by thirty and sixty years’ enjoyment by the occupiers of the land. Defendant offered evidence that A., now deceased, while tenant of the land for years, had declared that he had no such right in respect of the land.
Held: That the declaration was not admissible in evidence, inasmuch as it was in derogation of the title of the reversioner

Citations:

[1855] EngR 515, (1855) 5 El and Bl 166, (1855) 119 ER 443

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Evidence

Updated: 23 November 2022; Ref: scu.292437

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 Crown could not acquire title by adverse possession, by a wrong against a subject. The Crown argued that section 37 applied the law equally to actions by or against the Crown.
Held: The claim failed. ‘Quite apart from the express provision putting the Crown on the same footing as its subjects in matters of limitation, the general purpose and policy of setting time limits on actions for the recovery of land by the paper title owner (the protection of long continued possession of land in the public interest of certainty and stability, and the protection of defendants against the injustice of stale claims, which become more difficult to rebut with the loss of evidence in the passage of time) apply to land in the possession of the Crown as much as they apply in the case of land in the possession of another subject. ‘ and ‘if contrary to my opinion, there ever was a constitutional principle or rule limiting the right of the Crown to acquire title to land by adverse possession, it ceased to exist by reason of the combined effect of the 1947 Act and the 1939 Act. As against another subject, a subject can obtain adverse possession of land having a root in an unlawful entry into possession. The same law that applies between subjects applies as between the Crown and its subjects. ‘

Citations:

[2008] EWCA Civ 98, [2008] 2 P and CR 1, [2008] 8 EG 157, [2008] Ch 439, [2008] 2 WLR 1111, [2008] 1 EGLR 129, [2008] 1 WLR 1111, [2008] NPC 21

Links:

Bailii

Statutes:

Limitation Act 1980 37(1), Crown Proceedings Act 1947 2(1)(a), Magna Carta 29

Jurisdiction:

England and Wales

Citing:

CitedJ A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
CitedCase 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 . .
CitedAttorney-General v Tomline (No 3) ChD 1877
For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The . .
CitedMcDonnell v McKinty 1847
Discontinuance of possession of land can occur where the paper title owner having abandoned possession, actual possession is taken by another person in whose favour or for whose protection the Limitation Act could operate. . .
CitedFriend 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 . .
CitedGoodman v Mayor of Saltash HL 1882
A gift was made of a right to fish to the freemen of the Borough of Saltash.
Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. When long and continuous enjoyment is established, . .
Lists of cited by and citing cases may be incomplete.

Land, Constitutional, Limitation

Updated: 23 November 2022; Ref: scu.264635

Dodsworth v Dodsworth and Another: CA 3 Jul 1973

Judges:

Russell L

Citations:

[1973] EWCA Civ 4, [1973] EGD 233

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedInwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
CitedAyer v Benton 1967
A was by will given a right to reside rent-free in a house. She left due to ill health, and the trustees for sale sold. The question was whether A was entitled to the income of the proceeds of sale on the ground that the house was settled land and A . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 23 November 2022; Ref: scu.262740

Ewart v Cochrane: 1861

The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership.
Held: Lord Campbell LC said: ‘My Lords, I consider the law of Scotland as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance.
When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant.’

Judges:

Lord Campbell LC

Citations:

(1861) 4 Macq 117

Jurisdiction:

Scotland

Cited by:

CitedMoncrieff 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: 23 November 2022; Ref: scu.260024

Re Martin and Another’s Application: CA 10 May 1988

The applicants had agreed with the planning authority under section 37 of the 1962 Act that part of their land would be used only as a private open space. They later sought planning consent to build a house. The consent was granted on appeal to the Secretary of State. When the authority still refused to release them, they applied to the Lands Tribunal under section 84 of the 1925 Act. The application was dismissed.
Held: The Court rejected the applicants’ argument that the purpose of the section 37 agreement had gone with the grant of planning permission and that the covenant should therefore be discharged or modified. The section 37 regime and the regime governing the grant of planning permission were distinct and independent from each other.
Fox LJ said: ‘In my view, the applicants’ contention is wrong in so far as it suggests that the granting of planning permission by the Secretary of State necessarily involves the result that the Lands Tribunal must discharge the covenant. The granting of planning permission is, it seems to me, merely a circumstance which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, destructive of the express statutory jurisdiction conferred by section 84. It is for the tribunal to make up its own mind whether the requirements of section 84 are satisfied. All the facts of the case have to be examined by the Lands Tribunal.’

Judges:

Fox LJ, Balcombe LJ, Sir Frederick Lawton

Citations:

[1989] 05 EG 85, [1988] EWCA Civ 1, [1989] 1 EGLR 193, [1988] 3 PLR 45, [1988] 57 PandCR 119

Links:

Bailii

Statutes:

Law of Property Act 1925 84, Town and Country Planning Act 1962 37

Jurisdiction:

England and Wales

Cited by:

CitedLawntown Ltd v Camenzuli and Another CA 10-Oct-2007
Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.260193

District Bank v Webb: 1958

The court was asked whether a lease constituted an incumbrance on a title: ‘In the first place, I am not satisfied that a lease was an incumbrance to these parties. It is true that in certain circumstancess a lease may be regarded as an incumbrance, but it seems to me that an incumbrance, normally, is something in the nature of a mortgge and not something in the nature of a lease or tenancy.’

Judges:

Danckwerts J

Citations:

[1958] 1 All ER 126, [1958] 1 WLR 148

Jurisdiction:

England and Wales

Cited by:

CitedBelvedere Court Management Ltd v Frogmore Developments Ltd CA 24-Oct-1995
Landlords had sold flats to Frogmore without serving a section 5 notice under the 1987 Act. Prior to receipt of a purchase notice, Frogmore granted certain leases in the block of flats to another party.
Held: The agreements were upheld, and . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land

Updated: 23 November 2022; Ref: scu.245012

Laybourn v Gridley: 1892

Part of a room protruding into the property conveyed avbove ground level was included in the conveyance.

Judges:

North J

Citations:

[1892] 2 Ch 53, [1892] 61 LJCh 352, [1892] 7 Digest (Repl) 267

Jurisdiction:

England and Wales

Cited by:

CitedGrigsby v Melville CA 6-Jul-1973
The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.244812

Rightside Properties Ltd v Gray: ChD 1975

The vendor had served an invalid notice to complete on the purchaser. When the purchaser did not comply with the notice the vendor purported to terminate the contract by accepting the purchaser’s alleged repudiation. Walton J held that it was in fact the vendor who had repudiated, and that the purchaser was entitled to accept that repudiation and recover damages without having to show that it was at any stage itself RWA to perform its own contractual obligations.
Walton J said: ‘In my judgment, in equity as well as at common law the wrongful repudiation by one party of his obligations under the contract entitles the other to accept such repudiation, and thereby put an end to the contract, and such other is, as a consequence, discharged from performing any conditions precedent which it would otherwise fall upon him to discharge . .
. . There was at all times until, and there was persisted in during, the trial, a wrongful repudiation. It appears to me that in consequence the plaintiffs were never at any time under any obligation to show that they were ‘able’ to perform their part of the contract. ‘Ability,’ in this connection, means arranging the finance, which, under modern conditions, could be done either by arranging a mortgage or a sub-sale, and doubtless there are other methods as well. But they all involve some form of preparation on the part of the person raising the finance; and it appears to me pessimi exempli if the vendor was in a position to say, ‘Because you were not on a particular day ready with your finance, you cannot claim damages against me. True it is that it would have been perfectly useless for you to make the preparations because I told you I was not going to complete, but I can now huff you for having failed to carry out this perfectly useless exercise.’ This is the morality of a game, not of a serious legal contest.’

Judges:

Walton J

Citations:

[1975] Ch 72, [1974] 2 All ER 1169

Jurisdiction:

England and Wales

Cited by:

CitedCountry and Metropolitan Homes Surrey Ltd v Topclaim Ltd 1996
The issue was the proper construction and effect of condition 6.8 of the Standard Conditions of Sale, 2nd edition, in relation to the giving of a notice to complete a contract for the sale of land.
Held: The condition provided exclusively for . .
CitedAstea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 23 November 2022; Ref: scu.223520

Adams v London and Blackwall Railway Co: 1850

Citations:

(1850) 2 Mac and G 118

Jurisdiction:

England and Wales

Cited by:

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

Land

Updated: 23 November 2022; Ref: scu.223474

Richards v Rose: 1853

A dispute had arisen as to the ownership of a wall between two houses: ‘… it seems very clear that, where a number of houses are built upon a spot of ground, all belonging to the same person, being all built together, and obviously requiring the mutual support of each of the others for the purpose of their common protection and security whether the owner first parts with one and then another or parts with two together, which he afterwards subdivides, either by mortgage or sale or divise or any other way, still the mutual support would seem necessary – it is a matter of common sense; and the circumstances whether the houses were separated by one act at one time or at different times, never could make any difference as to what ought to be the result in as much the houses were originally built depending on each other and each require the assistance of the others. As I said before, it seems a matter of plain common sense that that support must continue and that no man who should become possessed of any one of the houses should be in a situation to say, ‘You are not entitled to protection of my house and I will pull the house down and let the houses on each side collapse and fall into ruin.’ It seems impossible not to come to the conclusion that the law must be in strictness in accordance with what is so plain and sensible.’

Judges:

Pollock CB

Citations:

[1853] 9 Exch Rep 218

Jurisdiction:

England and Wales

Cited by:

CitedDean v Walker CA 10-May-1996
The appellant sought to challenge an order granting his neighbour access across his land in order to maintain a gable end wall.
Held: The judge was plainly correct to make the order. The appellant’s fear that this would prejudice any future . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.219079

Norris v Chambres: 1861

A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to buy the Prussian mine, as planned, but the director’s suicide intervened before completion. The result was that his estate was temporarily short of funds, further instalments he was supposed to pay according to the contract were not paid, and the property was in danger of being lost. Accordingly, the other directors caused the contract to be cancelled and they set up a new company instead, which acquired the mine under a replacement contract. The shortfall was made up by crediting the vendor with the monies already advanced by the deceased director. The deceased director’s estate had no shares in the new company, and nothing to show for the large sum advanced. The plaintiff brought two suits, one in Prussia and the other in England. The English claim was for a declaration that the plaintiff had a lien on the coal mine, an account, and a declaration that the defendants had purchased the mine subject to the lien and as his trustees, and that unless the money was repaid the mine should be sold in order to generate the sum required for that purpose. It will be obvious to the modern reader of the reports that England was a forum non conveniens. Indeed by the date of the first-instance hearing the Prussian suit had already succeeded.
Held: ‘I am told that according to late decisions, and according to the law of England, if a man sell an estate to B and receive part of the purchase-money, and then repudiate the contract, and sell the estate to C, who has notice of the first contract and of the payment of part of the purchase-money by B, B shall, in that case, have a lien on the estate in the hands of C, for the money paid to the original owner. But assume this to be so, this is purely a lex loci which attaches to persons resident here and dealing with land in England. If this be not the law of Prussia, I cannot make it so, because two out of the three parties dealing with the estate are Englishmen, and I have no evidence before me that this is the Prussian law on this subject, and it if it be so, the Prussian Courts of Justice are the proper tribunals to enforce these rights. If the owner of an estate in Prussia mortgage that estate to an Englishman, it is new to me that the Courts of Equity in this country will administer, as between those persons, the law obtaining in England with relation to mortgages, and foreclose or direct a sale of the Prussian estate, if payment be not made of the amount due . . . there is no equity between the parties; here the Plaintiff is entitled to no decree against the Defendants for payment of any sum of money, nor is any such claimed, but the equity and relief sought begin and end with a prayer to make a certain transaction between other persons, one of whom is a stranger to the Plaintiff, an interest to an estate in Prussia, belonging to that stranger, and this independently of all personal equities attaching upon him. I never heard of any such case, and I will not be the first Judge to create such a precedent, which if adopted, for ought I see, would go to assert a right in the Courts here to determine questions between foreigners, relating exclusively to immoveable property in their own country.’

Judges:

Sir John Romilly MR

Citations:

(1861) 29 Beav 246

Jurisdiction:

England and Wales

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Appeal fromNorris v Chambres 1862
A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.199476

Cope v Thames Haven Dock and Railway Co: 1849

‘The subsection [on the execution of deeds by corporations] removes the necessity for enquiry as to the formalities required under the memorandum, articles, charter, etc., of the corporation; independently of this section the deed would be void unless such formalities were observed.’

Citations:

(1849) 3 Ex 841

Jurisdiction:

England and Wales

Cited by:

CitedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.188671

Henderson v Dawson: 1895

An inhibition which is laid on after the missives have been concluded but before the date of the disposition, apparently striking at the sale, may cause difficulty in a question with a subsequent purchaser

Judges:

Lord McLaren

Citations:

(1895) 22 R 895

Jurisdiction:

Scotland

Cited by:

CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 23 November 2022; Ref: scu.194225

M’Mahon v Burchell: CA 1846

Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children (Hannah) who had never occupied the house claimed that William was liable to Hannah’s estate for a seventh of the rent in respect of his occupation.
Held: Mere occupation (in the absence of agreement) would not make one co-owner liable to the others for rent. The house was open to all the tenants in common, William had been in occupation, but there was no exclusion of the other tenants in common: ‘Where there was neither contract nor exclusion, nor anything received, occupation by one tenant in common created no liability for rent to the other tenants in common.’

Judges:

Cottenham LC

Citations:

(1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889)

Jurisdiction:

England and Wales

Citing:

See AlsoMacMahon v Burchell 20-Apr-1843
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
See AlsoM’Mohan v Burchell 30-Apr-1845
. .

Cited by:

CitedByford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
See AlsoM’Mohon v Burchell 5-Jun-1846
. .
See AlsoWilliam M’Mahon And Wife v Burchell And Another 4-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 23 November 2022; Ref: scu.183863

Railtrack Plc (In Railway Administration) v Guinness Ltd: CA 17 Oct 2002

Application for leave to appeal against order of lands tribunal.

Judges:

Lord Justice Carnwath

Citations:

[2002] EWCA Civ 1431

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromRailtrack Plc and Another v Guinness Ltd LT 11-Feb-2002
ARBITRATION – access rights – development land – value of access rights over railway to allow development – residual valuations – value of rights determined at pounds 5 million . .

Cited by:

Application for leave to appealRailtrack Plc (In Railway Administration) v Guinness Limited CA 20-Feb-2003
The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 23 November 2022; Ref: scu.177730

Clift and Another v Welsh Office: CA 23 Jul 1998

Whilst it was settled law that no compensation was payable for temporary disturbance to neighbouring land by building works on land compulsorily purchased, as soon as that disturbance came to produce physical damage, compensation became payable.

Judges:

Beldam and Ward LJJ and Sir Christopher Slade

Citations:

Gazette 23-Sep-1998, Times 24-Aug-1998, [1998] EWCA Civ 1273, [1999] 1 WLR 796, [1998] 4 All ER 852

Links:

Bailii

Statutes:

Compulsory Purchase Act 1965 10

Jurisdiction:

England and Wales

Citing:

CitedCaledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
CitedAndreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .

Cited by:

CitedWestminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
CitedMoto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
CitedHiscox Syndicates Ltd and Another v The Pinnacle Ltd and others ChD 25-Jan-2008
The claimants sought an injunction in nuisance, saying that the defendants had agreed to use all reasonable endeavours to avoid causing a nuisance to them in demolition works on their neighbouring land.
Held: The injunction should be granted. . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 23 November 2022; Ref: scu.144752

Hesketh v Willis Cruisers Ltd: CA 1968

Where the fishing rights have not been severed from the lake or river bed, they simply pass automatically as part of the land; and there is no need for them to be separately transferred to the purchaser of the land

Judges:

Diplock LJ

Citations:

(1968) 19 P and CR 573

Jurisdiction:

England and Wales

Cited by:

CitedBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Lists of cited by and citing cases may be incomplete.

Land, Animals

Updated: 22 November 2022; Ref: scu.650620

Stillwell v New Windsor Corporation: 1932

The Plaintiff owned a house bounded on the west and north by public highways. There were a number of post-adoption trees of which the Plaintiff claimed the property. Having refused to comply with the Defendant’s notice to remove the trees on the ground that they were dangerous and obstructive to traffic, and the Defendants as highway authority having, in consequence of the refusal, themselves removed three of the trees, the Plaintiff brought the action seeking an injunction to restrain the Defendants from removing the remaining trees.
Held: Since the trees which had been cut down were a nuisance to the highway the Defendants had not merely a right but a duty to remove them: as to the remaining trees they were authorised to remove them as being an obstruction to the rights of the public over the entire width of the roads, which was not limited to the use of the carriageways. And further that the trees, as being parts of the ‘streets’ or as produce of the soil thereof, vested under S.149 of the 1875 Act, in and under the control of the highway authority, with the result that the Plaintiff was not in a position to complain.
As to the argument that the trees vested in the Defendants as highway authority under S.149 the Judge said: ‘The argument is that these trees, in the circumstances which I have stated and as I find them to be, are part of the ‘street,’ they are things provided for the purposes of the street, the trees are planted and stand as trees in a street, an amenity of the street, possibly, as marking off the footway from the carriageway, a convenience and a protection to the public; and the argument is that under that section they vest in and are under the control of the urban authority. It is pointed out that, if the trees are injured, compensation for the injury is to be paid by the local authority: that would suggest that the property in the trees would be in the local authority. It is pointed out further that a penalty is put upon persons who without the consent of the local authority wilfully displace the trees; that would seem to imply that displacing the trees with the consent or by arrangement with the urban authority would not be an offence, which again fits in with the suggestion that the effect of this section is to place the control and, in some sense or other, the property in the trees in the local authority. In my view that is the effect of the section as regards such trees as those with which I am here dealing. In my view, for all the purposes of exercising the rights of the highway authority, these trees are to be treated as the highway authority’s trees, and if they think it convenient to remove them it is proper that they should remove them. I am not called upon in this action to decide to whom the timber would belong when the trees were removed.’

Judges:

Clauson J

Citations:

[1932] 2 Ch 155

Jurisdiction:

England and Wales

Cited by:

CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2022; Ref: scu.650699

Ewart v Graham: HL 1859

The parties disputed the scope and extent of a reservation to the respondent’s father in an Act of Parliament of ‘all rights of hunting, shooting, fishing and fowling’ over certain specified land which had been owned by the respondent’s father and later came into the ownership of the appellant.
Held: Lord Campbell LC described the sporting rights in question as being ‘an interest in the realty which is well known to the law’. He went on to say: ‘The property in animals ferae naturae while they are on the soil belongs to the owner of the soil and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling and so forth; that right may be granted by the owner of the fee simple, and such a grant is a licence of a profit a prendre.’

Judges:

Lord Campbell LC

Citations:

(1859) 7 HLC 331

Jurisdiction:

England and Wales

Cited by:

CitedBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Lists of cited by and citing cases may be incomplete.

Land, Animals

Updated: 22 November 2022; Ref: scu.650623

Kearry v Pattinson: CA 1939

A claim was made for damages by the plaintiff bee-keeper, against the defendant, his neighbour. The plaintiff’s bees swarmed and settled in the garden of the defendant. He sought to recover his bees but the neighbour initially refused to give the plaintiff permission to enter his property. But on the next day, the neighbour gave permission to the beekeeper to enter his property. But the bees had flown.
Held: Bees are animals ferae naturae, but become the qualified property of the person who hives them.
‘There is no doubt in this case that these bees had been hived by the plaintiff. Therefore, before they swarmed, they were his property, and I think that the bees, when they swarmed, so long as they were in his sight, and so long as he had power to pursue them, would remain his property . . To that extent he has power to pursue, but I cannot think that he has a legal right to go on to the land of another in order to pursue them. Bees are ferae naturae before being hived. When hived, they are taken into the disposition of the owner, and become his property. They remain his property while they are swarming only so long as they are in his sight, and he has lawful power to pursue them. That is how I read the authorities. Whether the point is right or not, I think that, as a matter of legal principle, it is clear that, once it is established that he has no right to follow the bees, they cannot, the moment his right to follow ceases, be considered his or anybody’s chattels until they are hived again. For that reason, I think that this action is misconceived, because the bees had ceased altogether to be in the disposition of the plaintiff.’

Judges:

Slesser, Clauson and Goddard LJJ

Citations:

[1939] 1 KB 471, [1939] 1 All E R 65

Jurisdiction:

England and Wales

Cited by:

CitedBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Lists of cited by and citing cases may be incomplete.

Animals, Land

Updated: 22 November 2022; Ref: scu.650627

Borwick Development Solutions Ltd v Clear Water Fisheries Ltd: ChD 24 Jul 2019

Dispute as to ownership of fish in fishing lake on its sale, and whether solar panels were fixtures. The fish had been purchased for the fishery. Small fish might escape through meshes, but larger fish were captive. The contract of sale of the land had not made explicit provision. The buyer asserted that the process of enclosing the fish created a qualified property per industrial in the fish.
Held: The claim succeeded ut only in part. Fish in their nature and even if held captured were wild animals and not capable of being subject to absolute property rights, though a qualified right could be asserted whilst they were held captive. That qualified property had not been assigned by the contract. Therefore the claimant had a possessory title on which it could found its conversion claim.
As to the solar panels, they were fixtures, and had passed with the contract.

Judges:

Hodge QC HHJ

Citations:

[2019] EWHC 2272 (Ch), [2020] 1 WLR 559, [2019] WLR(D) 626

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

CitedGreyes Case 1593
Grey brought an action of trespasse against Bartholmew : the case was : A man did purchase divers fishes, viz. carpes, tenches, trouts, Be. arid put them into his pond for store, and then died.
The question was, whether the heire or the . .

Cited by:

Appeal fromBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Land, Animals

Updated: 22 November 2022; Ref: scu.640880

The Attorney General for The Provinces British Columbia v The Attorney General for The Dominion of Canada and Another: PC 2 Dec 1913

Canada – Lord Haldane set out the principles under which fishery rights might be acquired by prescription.
Fish stocks are a public resource, and there is no property in fish until they are caught. The right to fish in tidal waters or in the sea was a right of the public in general and was not dependent on any proprietary title. Interference with such right would at common law be actionable as a public nuisance.
Viscount Haldane LC, speaking for the Privy Council, said: ‘In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise.’

Judges:

Viscont Haldane LC

Citations:

[1913] UKPC 63, [1914] AC 153

Links:

Bailii

Jurisdiction:

Canada

Cited by:

CitedLoose v Lynn Shellfish Ltd and Others CA 19-Jun-2014
The parties disputed the rights to take shellfish from the foreshore. Fishermen now appealed against a finding as to the extent of a private fishery from which they were excluded, in particular as to the rights overfomer sandbanks, at the western, . .
CitedLynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
CitedBorwick Development Solutions Ltd v Clear Water Fisheries Ltd CA 1-May-2020
Only Limited Ownership of pond fish
BDS owned land with closed fishing ponds. They sold the land to the respondents, but then claimed that the fish, of substantial value, were not included in the contract. The court as asked whether the captive fish were animals ferae naturae or . .
Lists of cited by and citing cases may be incomplete.

Land, Agriculture

Updated: 22 November 2022; Ref: scu.467510

Matila Ltd v Lisheen Properties Ltd and Others: ChD 16 Jul 2010

The Claimants sought specific performance of a number of contracts for the grant of leasehold interests over the individual residential apartments and commercial units in a development

Judges:

His Honour Judge Stephen Davies (sitting as a Judge of the High Court)

Citations:

[2010] EWHC 1832 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Contract, Equity

Updated: 22 November 2022; Ref: scu.420965

Turner v Ringwood Highway Board: 1870

The highway extended to a width of 50 feet. After adoption trees grew in that part not used as the actual road.
Held: Once a highway exists the public has a right to use the whole of the width of the highway and not just that part of it currently used to pass or re-pass. The Highway Board was entitled to cut the trees and the Plaintiff who had bought the adjoining land was not permitted to stop them.
Sir WM James VC said: ‘The right of the public is to have the whole width of the road preserved free from obstructions, and is not confined to that part which was used as via trita.’

Judges:

Sir WM James VC

Citations:

[1870] LR 9 Eq 418

Jurisdiction:

England and Wales

Cited by:

CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2022; Ref: scu.320858

Udal and Another v Dutton and Another: TCC 30 Nov 2007

The claimants sought an interim injunction to restrain the defendants from demolishing a party wall in the garden.

Judges:

Culson QC J

Citations:

[2007] EWHC 2862 (TCC)

Links:

Bailii

Statutes:

Party Wall etc. Act 1996

Jurisdiction:

England and Wales

Citing:

CitedNottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2022; Ref: scu.262200

Winter and Another v Traditional and Contemporary Contracts Ltd: CA 7 Nov 2007

The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the nil compensation awarded.
Held: ‘it is perhaps difficult, as a matter of logic, to see why impact on the amenity of one property can in any way be related to the enhanced profitability of another.’ The award stood.

Judges:

Ward LJ, Rix LJ, Carnwath LJ

Citations:

[2007] EWCA Civ 1088

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedFairclough Homes Ltd, Re LT 8-Jun-2004
Application was made to vary a restrictive covenant: ‘ . . how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without . .
CitedShepherd v Turner CA 2006
. .
CitedRe Kershaw’s Application LT 1975
Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably . .
CitedSkupinski, Re Law of Property Act 1925 LT 30-Nov-2004
A covenant prevented new building other than for a garage. The owner proposed a three-car garage extension, but with a play-room above, for the applicant’s own use. The relevant property of the objector was not her own house, but consisted of a . .
CitedJaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
CitedRe Fisher and Gimson (Builders) Ltd’s Application LT 1992
A new house was built in contravention of a covenant, which the builder thought to be unenforceable. A neighbour objected, and having been found to have the benefit of the covenant after other neighbours had settled, he claimed 100% of the . .
CitedSJC Construction v Sutton London Borough Council CA 1976
An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word ‘substantial’ required applicants to show: ‘that the . .
CitedStockport Metropolitan Borough Council v Alwiyah Developments CA 1983
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
CitedWrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 22 November 2022; Ref: scu.260276

Paragon Finance Plc v Pender and Another: CA 27 Jun 2005

The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio of mortgages, had lost the right to possession. The assignments had been left uncompleted.
Held: The legal title remained vested in the claimants subject to the equitable rights of the assignee. The position for registered land and unregistered land was different. For registered land the rights of the transferor were unaffected until the assignment was registered. The right to make a possession claim had not been affected. ‘One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property.’

Citations:

[2005] EWCA Civ 760, Times 19-Jul-2005, [2005] 1 WLR 3412

Links:

Bailii

Statutes:

Lawof Property Act 1925 114, Land Registration Act 1925 33

Jurisdiction:

England and Wales

Citing:

CitedParagon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
CitedBarclays Bank Ltd v Bird 1954
An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’ . .
CitedCity of London Building Society v Flegg And Another HL 14-May-1987
A couple bought a property and registered it in their own names with substantial financial assistance from the parents of one of them. The parents occupied the house with them. Without telling the parents, the owners borrowed again, executing . .
CitedCredit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
CitedAbu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
CitedWhiteley v Delaney HL 1914
A farm in Yorkshire had been charged by O first to A and then to the plaintiff, and the charges registered under the Yorkshire Registry Acts. An attempt was made to sell of part of the land by o to his daughter to repay some of the money. She . .
CitedBroadwick Financial Services Limited v Spencer, Spencer CA 30-Jan-2002
The respondents appealed an order for possession under a legal charge which they argued was an extortionate credit bargain, and had been improperly executed and was unenforceable. The appellants were ‘non-status borrowers’.
Held: A concession . .
Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Updated: 22 November 2022; Ref: scu.227926

Pugh v Savage: CA 14 Jan 1970

The enjoyment of an easement by a succession of tenants may be sufficient to create a right by prescription for the landlord.

Judges:

Harman, Salmon LJJ

Citations:

[1970] 2 QB 373, [1970] EWCA Civ 9, [1970] 2 WLR 634, [1970] 2 All ER 353, (1970) 21 P and CR 242

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedLlewellyn and Another v Lorey and Another CA 3-Feb-2011
The parties disputed whether a right of way was exerciseable for commercial as well as private purposes.
Held: The judge had made a finding as to use which was not supported by the evidence before him. . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 22 November 2022; Ref: scu.222580

Cumberland Consolidated Holdings Limited v Ireland: CA 1946

A vendor of a warehouse left in the cellars of a warehouse rubbish including bags of hardened cement which would be difficult to remove, and which affected the value of the property and precluded the proper use of the cellar. The buyer complained that he had not been given vacant possession as agreed under the contract.
Held: He had not been given vacant possession. Lord Greene MR said: ‘But it appears to us that what he bargains for is not merely the right in law, but the power in fact to exercise the right. When we speak of a physical impediment we do not mean that any physical impediment will do. It must be an impediment which substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property.’

Judges:

Lord Greene MR

Citations:

[1946] KB 264, [1946] 1 All ER 284

Jurisdiction:

England and Wales

Cited by:

CitedEnglewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
CitedArea Estates Ltd v Weir CA 20-Jul-2010
The parties contracted for the sale and purchase of land with vacant possession. It was subject to a lease which the seller said had been surrendered, and it refused to accept any requisitions of objections. After exchange it appeared that the . .
CitedScott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 22 November 2022; Ref: scu.219174

Smith v Garrard: CA 17 Nov 2004

The parties disputed the nature and effect of covenants between neighbours and as to whether parking by one neighbour was a breach of the easement, and in particular whether a covenant against parking on a driveway was to be read to import a condition that the restriction only applied where the parking might operate as an obstruction.
Held: The appeal failed. Such disputes fell to be settled on a careful interpretation of the documets involved: ‘the answer is to be found from the words used in the context in which they were used. It is to be found in the impression which the words make on the mind of an informed reader. To my mind, in this context, the restriction against parking vehicles was not intended to be an absolute restriction, but was to be construed as a restriction against parking vehicles which would interfere with the exercise of rights of way, whether granted in this conveyance or granted in some earlier conveyance or, indeed, granted subsequently.’

Judges:

Chadwick LJ

Citations:

[2004] EWCA Civ 1655

Links:

Bailii

Jurisdiction:

England and Wales

Land

Updated: 22 November 2022; Ref: scu.221011

Besley v John: CA 29 Oct 2003

The defendant farmed land adjacent to land over which he had registered rights of common allowing him to graze sheep. The freeholders brought the action saying that the use was in excess of the rights. He counter-claimed that the extension of a golf course on the land breached the rights of common.
Held: The defendant’s rights did not include the right to bring additional food onto the land, nor to drive at will over the common land. He could only drive over the land to an extent agreed as reasonable. The counterclaim failed.

Judges:

Lords Justice Buxton and Laws

Citations:

[2003] EWCA Civ 1737, Gazette 13-Nov-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCelsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
CitedRegina v Secretary of State for Environment ex parte Billson Admn 16-Feb-1998
A deed granting access to a common in accordance with the section included access by horseback as well as by foot. The court upheld the Inspector’s decision that the 20-year user of the land relied upon by the applicant for the modification was not . .
CitedB and Q Plc v Liverpool and Lancashire Properties Ltd ChD 26-Jul-2000
The dominant owner wished to deal with delivery vehicles in a manner where they were left parked awaiting emptying. The servient owner (a lessee) wanted to construct buildings over a large part of the land. The servient owner objected.
Held: . .
CitedRegina v Planning Inspectorate Cardiff ex parte Elwyn Ivor Howell Admn 15-Jun-2000
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 20 November 2022; Ref: scu.188476

Hayling v Harper and Another: CA 2 Apr 2003

The case asked whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way.
Held: Hanning barred a claim to the easement under section 2 of the 1832 Act. The user relied on had been illegal since 1930 and the claimants could not, therefore, rely on the user between 1930 and the commencement of the proceedings. The evidence of user pre 1930 enabled the claimants to establish the acquisition of an easement by lost modern grant before the advent of section 14 of the Road Traffic Act 1930.

Judges:

Ward LJ

Citations:

[2003] EWCA Civ 1147

Links:

Bailii

Statutes:

Road Traffic Act 1988, Prescription Act 1832 2, Road Traffic Act 1930 14

Jurisdiction:

England and Wales

Citing:

Relied uponHanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .

Cited by:

CitedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Lists of cited by and citing cases may be incomplete.

Land, Road Traffic

Updated: 20 November 2022; Ref: scu.185293

Johnson v Humphrey: 1946

The open contract for the sale of land was held to be unenforceable because the memorandum relied upon omitted any reference to a term that vacant possession was not to be given until the vendor could make suitable arrangements for herself and her furniture.
Under an open contract for the sale of land, completion must take place within a reasonable time. What is a reasonable time has to be measured by the legal business which has to be performed in connection with the investigation of title and the preparation of the necessary conveyancing documents.

Citations:

[1946] 1 All ER 460

Jurisdiction:

England and Wales

Land, Contract

Updated: 20 November 2022; Ref: scu.182544

George Legge and Son Ltd v Wenlock Corporation: HL 1938

The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the fact that that act involved continued polluting of a river.
Held: There is no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention would be quite untenable. ‘it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships’ House in effect held in the Airdrie case to be a legal impossibility.’
Lord MacMillan said that a water channel may be a sewer though it may carry no sewage and its contents consist solely of innocuous surface drainage. Since any natural stream or watercourse which is still open will almost always contain some surface water, at any rate in or after wet weather, the fact that a flow of water does contain such surface water cannot show that it is a sewer, and cannot transform what was once a watercourse into a sewer.

Judges:

Lord Maugham, Lord Macmillan, Lord Atkin, Lord Roche

Citations:

[1938] AC 204

Statutes:

River Pollution Prevention Act 1876

Jurisdiction:

England and Wales

Citing:

AppliedAirdrie Magistrates v Lanark County Council 1910
Lord Loreburn LC said: ‘But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely . .

Cited by:

CitedNeaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
FollowedHanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
CitedTinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
CitedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
CitedRaglan Housing Association Ltd v Southampton City Council and Southern Water Services Ltd CA 30-Jul-2007
The claimant sought damages in nuisance from the defendants saying that a channel for which they were responsible flooded causing damage. The defendant appealed a finding that the culvert had become a sewer. It had been a natural stream, but had . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 20 November 2022; Ref: scu.179842

In the Matter of University of Westminster: CA 15 Jul 1998

Appeal, by way of case stated, from a decision of the Lands Tribunal refusing to order the discharge of certain restrictions affecting land of which the appellant, the University of Westminster, is the freehold owner.

Judges:

Swinton Thomas, Waller, Chadwick LJJ

Citations:

[1998] 3 All ER 1014, [1998] EWCA Civ 1215

Links:

Bailii

Statutes:

Law of Property Act 1925 84(1)

Jurisdiction:

England and Wales

Land

Updated: 20 November 2022; Ref: scu.144694

London Borough of Bromley v l Morritt: CA 20 Jul 1998

The defendant sought an extension of time to apply for leave to appeal. He had been ordered to remove a wall which the claimant said enclosed what was part of the highway, and which the defendant said he had acquired by adverse possession.
Held: It was arguable that a mandatory injunction should not have been granted and leave was given.

Citations:

[1998] EWCA Civ 1239

Jurisdiction:

England and Wales

Citing:

CitedNorwich and Peterborough Building Society v Steed CA 1991
The four factors to be taken into account when considering an application to extend the time for leave to appeal are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is . .

Cited by:

Application for leaveLondon Borough of Bromley v Morritt CA 21-Jun-1999
The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 20 November 2022; Ref: scu.144718