Category: Land

Lord Melville v Paterson: 1842

A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in the sequestration of a living debtor: ‘No doubt, the right thus declared to be vested in the trustee, will be no more than a right tantum et tale with what actually belonged to the bankrupt at the date of sequestration; and where the bankrupt, therefore, has previously granted a prior personal right, in the shape of a conveyance or security, to an individual creditor or other third party, upon which it would be in the power of such a party to run a race against the trustee, it may be necessary for the latter, with a view to exclude the completion of this inchoate adverse right, to obtain his own title first completed according to all the feudal forms, and so entered upon the records.’
References: (1842) 4 D 1311
Judges: Lord Ordinary Ivory
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194244

Burnett’s Trustee v Grainger and Another: HL 4 Mar 2004

A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the estate of the person sequestrated, and vested those assets in his trustee for the benefit of the sequestrator. The purchaser who failed to register his interest lost it. ‘In the present case the respondent has done nothing more than take advantage of the mistake or error of his rivals, the appellants, in failing to get off their mark and record the disposition from Mrs Burnett promptly. Even once their agents had become aware that her estate had been sequestrated and that the respondent had been appointed as permanent trustee, for whatever reason, they failed to act. In retrospect at least, that was a mistake, since it allowed the respondent to record his notice of title before the appellants. As the authorities show, even although the respondent was well aware that the appellants held a disposition from Mrs Burnett, he was fully entitled to take advantage of their mistake by recording the notice of title and so completing the diligence by acquiring the real right in the subjects for the creditors.’
References: 2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, [2004] UKHL 8, Times 08-Mar-2004, [2004] 11 EGCS 139
Links: House of Lords, Bailii
Judges: Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry
Statutes: Bankruptcy (Scotland) Act 1985 31(1), Abolition of Feudal Tenure etc (Scotland) Act 2000, Conveyancing (Scotland) Act 1924 5
Jurisdiction: Scotland
This case cites:

  • Cited – Heritable Reversionary Company Ltd v Millar HL 9-Aug-1892 ((1892) 19 R (HL) 43, , [1892] AC 598, [1892] UKHL 2)
    Where the bankrupt had been the trustee of property, the bare legal title to that property did not form part of ‘the whole property of the debtor’ and so did not vest in the permanent trustee in bankruptcy under the section. ‘My Lords, if this House . .
  • Cited – Allan’s Trustes v Lord Advocate HL 1971 (1971 SC (HL) 45, , [1970] UKHL 7, [1970] TR 417, 1971 SLT 62)
    The House set out the requirements for a declaration of trust. The truster must have an intention to make himself trustee of his own property and must also do something equivalent to delivery or transfer of the trust fund. The origin of trusts in . .
  • Distinguished – Sharp v Thomson HL 1997 (1997 SC (HL) 66, , [1997] UKHL 60, [1998] BCC 115, 1997 SC (HL) 66, 1997 SCLR 328, 1997 GWD 9-364, [1997] 1 BCLC 603, 1997 SLT 636)
    A floating charge was given over the whole of a company’s property which might from time to time be ‘comprised in our property and undertaking’. The charge terms echoed the section which allows a company to create a charge ‘over all or any part of . .
  • Cited – Rodger (Builders) Ltd v Fawdry 1950 (1950 SC 483)
    Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are . .
  • Cited – Bell v Gartshore IHCS 1737 (2 Ross’s LC 410, (1737) M 2848;)
    The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights. . .
  • Cited – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .
  • Cited – Young v Leith IHCS 1844 ((1848) 2 Ross’s LC 81, (1844) 6 D 370)
    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 . .
  • Cited – Earl of Fyfe v Duff IHCS 1861 ((1861) 23 D 657)
    The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
  • Cited – Earl of Fyfe v Duff HL 1862 ((1862) 24 D 936, (1863) 4 Macq 469)
    The Earl sought a declarator to allow the sale of land. Others said it was subject to rights of ntail. The court referred to an uninfeft proprietor as a ‘personal fee’. Voluntary transmission of feudal subjects is effected by a dispositive act . .
  • Cited – M’Adam v M’Adam IHCS 1879 ((1879) 6 R 1256)
    The house referred to ‘the owner of a personal right to land’ to describe the position of an uninfeft proprietor. . .
  • Cited – Stewart v Jarvie IHCS 1938 (1938 SC 309)
    The permanent trustee acts under the statute for each and every one of the creditors of the sequestered individual, not for himself as an individual. . .
  • Cited – Young v Leith HL 1847 ((1847) 9 D 932)
    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 – Orr v Mitchell 1893 ((1893) 20 R (HL) 27)
    Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the . .
  • Cited – Henderson v Dawson 1895 ((1895) 22 R 895)
    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 . .
  • Cited – Dryburgh v Gordon 1896 ((1896) 24 R 1)
    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. . .
  • Cited – Bell of Blackwoodhouse v Gartshore 1737 (1737 M 2848, 5 Br Suppl 198, 2 Ross’s LC 410)
    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 . .
  • Cited – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .
  • Cited – Wylie v Duncan 1803 (1803 M 10269, 3 Ross’s LC 134)
    Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The . .
  • Cited – Mansfield v Walker’s Trustees; Inglis v Mansfield 1833 ((1833) 11 S 813, (1835) 1 S and Macl 203)
    The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was . .
  • Cited – Buchan v Farqhuarson 1797 (1797 M 2905)
    . .
  • Cited – Colquhouns’ Trustee v Campbell’s Trustees 1902 ((1902) 4 F 739)
    Law agents had failed to record two bonds and dispositions granted by the owner of a property in Glasgow in security of loans which their clients had made to him. They then obtained and recorded an ex facie absolute disposition of the same subjects . .
  • Cited – Forbes’s Trustees v Macleod 1898 ((1898) 25 R 1012)
    The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick’s title to the subjects . .
  • Cited – Bank of Scotland v Hutchison Main (in liquidation) HL 6-Feb-1914 (1914 SC (HL) 1, , [1914] UKHL 3, [1914] AC 311, (1914) 1 SLT 111)
    A mere declaration of intent is not sufficient to create a trust, as there must be a clear and identifiable declaration of trust – an express declaration. . .
  • Cited – Gibson v Hunter Home Designs Limited SCS 7-Nov-1975 (1976 SC 23, , [1975] ScotCS CSIH – 1)
    A disposition had been executed but not delivered.
    Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. . .
  • Cited – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
    A debtor had acquired the land by fraud.
    Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . .
  • Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
    . .
  • Cited – In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949 ([1949] Ch 78)
    The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
    Held: Equity will not compel an imperfect gift to be . .
  • Cited – Russell v Ross’s Creditors; Pierse v Ross 31-Jan-1792 (31 January 1792 FC, 1792 M 10300, 3 Ross’s LC 177)
    . .
  • Cited – Black and Grant v Gordon HL 1794 ((1794) 3 Pat 317)
    An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants’ argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines. . .
  • Cited – Thomson v Douglas, Heron and Co 15-Nov-1786 (15 November 1786 FC, 1786 M 10229)
    Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to . .
  • Cited – Buchan v Farquharson 24-May-1797 (24 May 1797 FC, 1797 M 2905, 3 Ross’s LC 137)
    On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon’s estate did not vest in the trustee in bankruptcy . .
  • Cited – Cormack v Anderson 1829 ((1829) 7 S 868)
    . .
  • Cited – Tod’s Trusteess v Wilson 1869 ((1869 ) 7 M 1100)
    A trustee’s right and the right of the purchaser, heritable creditor or assignee were ‘simply two independent rights running a race against each other’ . .
  • Cited – Lord Melville v Paterson 1842 ((1842) 4 D 1311)
    A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in . .
  • Cited – Alex Brewster and Sons v Frank Mitchell Caughey and others SCS 2-May-2002 (, , [2002] ScotCS 123, 2002 GWD 15-506)
    If a purchaser becomes aware ‘that there may be a prior purchaser in the same queue for Register House he must ask the latter if he be such a purchaser and in the event of a positive, correct answer yield place to him’ . .
  • Appeal from – Michael James Meston Reid (Permanent Trustee on the Estates of Carlene Rose Burnett) v Harvey Leighton Grainger and Moira Elizabeth Grainger SCS 15-May-2002 (,
    . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194162

Gibson v Hunter Home Designs Limited: SCS 7 Nov 1975

A disposition had been executed but not delivered.
Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. There was no evidence of the constitution of a trust and that it was impossible to entertain the suggestion that as a result of the purchaser’s entry to the subjects and payment of the price a trust in his favour had come into existence. ‘In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition. On delivery of the disposition the purchaser becomes vested in a personal right to the subjects in question and his acquisition of a real right to the subjects is dependent upon recording the disposition in the appropriate Register of Sasines. Putting the matter in another way the seller of subjects under missives is not, in a question with the purchaser, divested of any part of his right of property in the subjects of sale until, in implement of his contractual obligation to do so, he delivers to the purchaser the appropriate disposition.’
References: 1976 SC 23, [1975] ScotCS CSIH – 1
Links: Bailii
Judges: Lord President Emslie
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
  • Cited – Sharp and Others v Woolwich Building Society HL 6-Feb-1997 (Times 26-Mar-97, , , [1997] UKHL 8)
    The House was asked: what is meant by the word property in a floating charge and in section 53(7) of the 1986 Act which provides for the effect of the appointment of a receiver by the holder of such a charge in the following terms: ‘(7) On the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194234

Attorney-General v Doughty: 1752

As to any right of prospect, a building erected so as to spoil a view cannot at common law be a nuisance for that reason.
Lord Hardwicke LC said: ‘I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .’
References: (1752) 2 Ves Sen 453, [1752] 28 ER 290
Judges: Lord Hardwicke LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195583

Smith v Spaul: CA 16 Dec 2002

The landlord sought to forfeit the lease for breach of a repairing covenant. The mortgagee had gone into possession, and having received the s146 notice, had served a counter-notice under the 1938 Act. The mortgagee having assigned the lease to the respondent, and the landlord seeking forfeiture, the respondent argued that the Landlord was obliged, following the counter-notice, first to seek the consent of the court.
Held: The mortgagee’s interest was less than that of the lessee, and he was not able to serve a counter-notice. Mortgagee’s of leasehold properties must know of the risk, and ensure that the property was repaired by the tenant. Since the counter-notice was invalid, the landlord did not require permission from the court to forfeit the lease.
References: Times 28-Dec-2002, [2002] EWCA Civ 1830, [2003] 1 All ER 509, [2003] 2 WLR 495, [2003] 1 P and CR D36, [2003] 2 P and CR 300, [2003] QB 983
Links: Bailii
Judges: Kay, Arden LJJ
Statutes: Law of Property Act 1925 146, Leasehold Property (Repairs) Act 1938 1(3)
Jurisdiction: England and Wales
This case cites:

  • Cited – Church Commissioners for England v Ve-Ri-Best Manfacturing Co Ltd 1956 ([1957] 1 QB 238, [1956] 3 WLR 990, 100 Sol Jo 875)
    The lease provided for re-entry for breach of covenant. The landlord served a notice requiring repairs and payment of compensation on both the tenant and the mortgagee. The mortgagees served a counter-notice, and the landlord proceeded against the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.178619

Scarfe v Adams: CA 1981

Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was part of the land comprised in the specified title). The coiurt had to identify what land was transferred.
Held: The court criticised the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.
Cumming-Bruce LJ said: ‘the question raised in these proceedings is only the proper construction to the Plaintiff’s Transfer Deed. And the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. Counsel for the Plaintiff submits that this deed is uncertain, contradictory and ambiguous. Counsel in the court below invited the judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made, and the true effect of the plan to which they referred as showing the land transferred. The judge admitted extrinsic evidence de bene esse but decided that there was no such uncertainty or ambiguity as to make it right to admit that evidence as an aid to construction. . . The learned deputy judge said that he had derived most assistance from the cases of Grigsby v Melville [1973] 3 All ER 455 and Neilson v Poole [1969] 20 P and CR 909. The judge was wrong in thinking that Grigsby was an action for rectification. The decision was founded on the determination that, as a matter of construction, the deed was clear, certain and unambiguous, so there was no room for extrinsic evidence about the inconvenient consequences. Neilsen v Poole was a case in which Megarry J as a matter of construction of the conveyance with plan attached, decided that it was uncertain and that therefore it was right to admit and consider extrinsic evidence. Having done so, Megarry J decided that the conveyance as a whole and the dividing line on the plan showed that the dividing line was along a line drawn on the plan, and the other conveyances supported the conclusion. I have difficulty in understanding how the decision of either case or the reasoning of Megarry J supported the deputy judge’s conclusion.

. . . ‘The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.’
Griffiths LJ said: ‘Although we have had the benefit of a fairly extensive citation of authority, I do not find it necessary to review these authorities, as I regard the legal principle to be applied in this appeal as well established and the cases cited as illustrations of the practical application of that principle. The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interests to transfer it, then extrinsic evidence is admissible so the court may (to use the words of Lord Parker in Eastwood v Ashton [l915] AC 900 at 913) ‘do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used.’
References: [1981] 1 All ER 843
Judges: Cumming-Bruce LJ, Griffith LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Eastwood v Ashton HL 1915 ([1915] AC 900)
    A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .
  • Cited – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
    The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
  • Cited – Grigsby v Melville CA 6-Jul-1973 ([1973] 3 All ER 455)
    The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
  • Cited – Kingston v Phillips CA 1976 (Unreported, 1976 Transcript 279)
    The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .

This case is cited by:

  • Cited – Partridge and others v Lawrence and others CA 8-Jul-2003 (, [2003] EWCA Civ 1121, [2004] 1 P and CR 176)
    The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
    Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
  • Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005 (, [2005] EWCA Civ 1006)
    The neighbour parties disputed the existence of a right of way over one plot. . .
  • Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997 (, [1997] EWCA Civ 2539, (1997) 80 PandCR 126)
    The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . .
  • Cited – Joyce v Rigolli CA 2-Feb-2004 (, [2004] EWCA Civ 79)
    An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
    Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 19-Dec-1997 (, [1997] EWCA Civ 3069)
    The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998 (Gazette 07-May-98, , [1998] EWCA Civ 746)
    A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 1-Jul-1998 (, [1998] EWCA Civ 1121)
    Boundary Dispute . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 10-Jun-1999 (, [1999] EWCA Civ 1552)
    Boundary dispute . .
  • Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
    The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
    Held: In the circumstances the plan would . .
  • Cited – Gillon v Baxter and Another CA 10-Oct-2003 (, [2003] EWCA Civ 1591)
    Boundary dispute . .
  • Cited – Horn and Another v Phillips and Another CA 18-Dec-2003 ([2003] EWCA Civ 1877, )
    In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. . .
  • Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
    A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
    The . .
  • Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002 (Times 27-Aug-02, , Gazette 03-Oct-02, [2002] EWCA Civ 1078, [2003] P and CR 16, [2002] 44 EG 175, [2003] 4 All ER 83, [2003] 1 WLR 360)
    Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
    Held: . .
  • Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
    In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
    Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
  • Cited – Dixon and Another v Hodgson and Others CA 20-Dec-2011 (, [2011] EWCA Civ 1612)
    The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182549

Brook v Smith: 26 Nov 1830

The testator devised his estate to two tenants in common in fee ; one died after the testator, leaving an infant heir. In a creditor’s suit after a decree for sale of the estate, the infant heir was ordered to join in the conveyance to the purchaser
References: [1830] EngR 862, (1830) 2 Russ and My 73, (1830) 39 ER 322
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.321742

Wallington v Townsend: 1939

Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
Morton J said: ‘The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law’.
References: [1939] Ch 588, [1939] 2 All ER 255
Judges: Morton J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
  • Cited – Hopgood v Brown CA ([1955] 1 WLR 213, [1955] 1 All ER 550, (1055) 99 Sol Jo 168, Bailii, [1955] EWCA Civ 7)
    Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

These lists may be incomplete.
Last Update: 26 August 2020; Ref: scu.421539

A G of Southern Nigeria v John Holt and Company (Liverpool) Limited: PC 1915

References: [1915] AC 599
Coram: Lord Shaw of Dunfermline
Ratio: The right to use servient land for the purpose of storage was claimed. It was argued that such a right could not exist as an easement.
Held: Lord Shaw of Dunfermline said: ‘there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such.’
This case is cited by:

  • Cited – Moncrieff and Another v Jamieson and others HL (Bailii, [2007] UKHL 42, [2007] 1 WLR 2620)
    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 . .

(This list may be incomplete)

Last Update: 30 December 2017
Ref: 260030

Mounsey v Ismay: 25 Jan 1865

References: [1865] EngR 165, (1864) 3 H & C 486, (1865) 159 ER 621
Links: Commonlii
Ratio: A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 Wm, c 71. That section points to a right belonging to an individual in respect of his land, not to a class such as freemen or citizens claiming a right in gross wholly irrespective of land; and to bring the right within the term ‘easement’, in that section, it must be one analogous to that of a right of way or a right of watercourse, and must be a right of utility and benefit and not one of mere recreation and amusement. Semble, that an easement in gross is within the Prescription Act
This case cites:

  • Appeal from – Mounsey v Ismay ((1863) 1 H & C 729, [1863] EngR 163, Commonlii, (1863) 1 H & C 729, (1863) 158 ER 1077)
    The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
    Held: Martin B: ‘It must be assumed that the custom has existed since the . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 06-Apr-17
Ref: 281077

Geoghegan v Henry; 11 Jan 1922

References: [1922] 2 IR 1
Ratio:
This case cites:

  • Approved – Flynn v Harte ([1913] 2 IR 322)
    Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .

(This list may be incomplete)
This case is cited by:

  • Cited – Bramwell and Others v Robinson ChD (Bailii, [2016] EWHC B26 (Ch))
    Neighbour dispute as to right of way.
    Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
  • Cited – Owers v Bailey ChD ([2006] AER (D) 106 (Sep))
    Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .

(This list may be incomplete)
Jurisdiction: Ireland

Last Update: 29-Oct-16
Ref: 570358

Eaton v The Swansea Waterworks Company; 5 Jun 1851

References: [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282
Links: Commonlii
Ratio: Case for disturbing a watercourse which of right ought to flow into plaintiff’s close to irrigate it, On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present muree for more than twenty years, past plaintiff’s close. There was evidence that during that period plaintiff, and those under whom he claimed, had been constantly in the habit of drawing off the water to irrigate his close, and that the owners of the watercourse resisted it. On one occasion, when plaintiff’s servant drew off the water, he was summoned before a justice for so doing; plaintiff’s son by his direction attended and defended the servant, and paid a fine of 1s. The conviction was under a local Act, from which there was a power of appeal. The conviction was tendered in evidence, and rejected. In summing up, the Judge explained that the enjoyment to defeat an adverse right must be for twenty years, without interruption acquiesced in for a year. One of the jury asked what would be the effect in law of a state of perpetual warfare between the parties? which question the Judge did not answer. The jury found that ”the watercourse had been enjoyed as of right for twenty years, and without interruption for a year,’ and were directed to find for Plaintiff. Held that the evidence was improperly rejected, as the conviction, unappealed against, was, under the circumstances, evidenoe of an acknowledgment by the plaintiff, that the usage, to draw off the water for irrigation, was not as of right: Held also that interruptions, though not acquiesced in for a year, might shew that the enjoyment never was of right, but contentious throughout ; though, if once the enjoyment as of right had begun, no interruption for less than a year could defeat it : and consequently that the manner in which the question was left, and the verdict found, was not satisfactory ; and a new trial was granted.
This case is cited by:

  • Cited – Winterburn and Another v Bennett and Another CA (Bailii, [2016] EWCA Civ 482, [2016] WLR(D) 297, WLRD)
    The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .

(This list may be incomplete)
Jurisdiction: EW

Last Update: 08-Oct-16
Ref: 296875

Dowson -v Solomon: 1859

References: (1859) 1 Drew & Sm 1
Ratio: The defendant had agreed at auction to buy a leasehold house from the trustees for sale under a will. The lease contained a covenant on the lessee to keep the premises insured against fire, with a clause for forfeiture in the event of non-performance of any of the covenants. The auction was in June 1858, and completion was fixed for July 20, 1858, but was delayed until August 26, 1858. The trustee who was acting for all the trustees, anticipating completion in July, renewed the insurance policy for one month only, and the policy expired on July 24, 1858. On the completion date the purchaser refused to complete on the ground that the lease was forfeited by reason of the breach of covenant. The vendors refused to obtain a waiver of the forfeiture from the lessors (Dulwich College) as a condition of completion. The purchaser then gave notice that the contract of purchase was at an end, and demanded the return of his deposit. The defendant argued that the failure to insure resulted in the title becoming defective.
Held: The question posed was ‘how long did it continue to be the duty of the vendors . . to keep up the insurance, and to perform the other covenants in the lease so as to prevent a forfeiture?’ There was an express covenant to clear all outgoings (including the insurance) until the date fixed for completion, which carried with it the implication that the vendors were not responsible thereafter. The question was whether the failure to inform the purchaser that the insurance lapsed, and the dropping of the insurance, entitled the purchaser to rescind the contract, and that ‘question must be tried upon the same grounds as if upon the dropping of the insurance the lessors had actually entered for the forfeiture and avoided the lease’. In the ‘special and peculiar circumstances’ specific performance was not decreed: the conduct of the trustee operated as a trap and caused great risk to the purchaser, and a court of equity would not lend the vendors its assistance. In the case of a sale of leasehold interests the vendor is under a duty to give good title, and therefore (subject to the express terms of the contract) to take care not to take steps which may result in forfeiture.
This case is cited by:

  • Cited – Englewood Properties Limited v Shailesh Patel, Cornberry Limited ChD (Bailii, [2005] EWHC 188 (Ch), Times 09-Mar-05, [2005] 3 All ER 307, [2005] 1 WLR 1961)
    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 . .

(This list may be incomplete)

Last Update: 09-Aug-16
Ref: 223737

Tulk v Moxhay; 22 Dec 1848

References: (1848) 2 Ph 774, [1848] 1 H & TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, [1848] EWHC Ch J34, [1848] EngR 1005, (1848) 11 Beav 571, (1848) 50 ER 937, [1848] EngR 1059, (1848) 1 H & Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, (1848) 41 ER 1143
Links: Bailii, Commonlii, Commonlii, Commonlii
Coram: Lord Cottenham LC, Knight Bruce LJ
Ratio:A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was bound by it in equity, whether he was bound at law or not, and an injunction was granted to restrain him infringing the covenant. The equitable doctrine is that restrictive covenants follow the land to the new owner on notice. The subsequent owner must be found to have notice before he will be bound by the covenants.
The burden of a positive covenant will not run with the land. In order to bind a successor in title: 1) the covenant must be negative in substance 2) It must benefit the land of the covenantee, 3) The burden must be intended to run with the land, and 4) the successor must have notice of the covenant.
Lord Cottenham LC said: ‘It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.’ and ‘if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.’
This case cites:

  • Cited – Keppell -v- Bailey ChD (Bailii, [1834] EWHC Ch J77, (1834) 2 My & K 517, [1834] 39 ER 1042, Commonlii, [1834] EngR 193, (1834) Coop T Br 298, (1834) 47 ER 106, Commonlii, [1834] EngR 448, (1834) 39 ER 1042)
    The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
    Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to . .
  • Cited – Whatman -v- Gibson (, Commonlii, [1838] EngR 539, (1838) 9 Sim 196, (1838) 59 ER 333 (B))
    A, the owner of a piece of land, divided it into lots for building a row of houses, and a deed was made between him of the one part and X and Y, (who had purchased some of the lots from him) and the several persons who should at any time execute the . .
  • Cited – The Duke of Bedford -v- The Trustees of The British Museum (Commonlii, [1822] EngR 457, (1822) 2 My & K 552, (1822) 39 ER 1055)
    Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, . .
  • Cited – Mann -v- Stephens ([1846] EngR 921 (B), Commonlii, (1846) 15 Sim 377)
    A. being seised in fee of a house and a piece of open land near to it, sold and conveyed the house to E, and covenanted, for himself, his heirs and assigns, with B., his heirs and assigns, that no building whatever should at any time thereafter be . .

(This list may be incomplete)
This case is cited by:

  • Criticised – London County Council -v- Allen ([1914] 3 KB 642)
    A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .
  • Considered – Patching -v- Dubbins ((1853) Kay 1, [1853] EngR 894, Commonlii, (1853) 69 ER 1)
    The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to . .
  • Considered – Child -v- Douglas ((1854) Kay 560, 23 LJ Ch 45, 22 LTOS 116, 17 Jur 1113, 2 WR 2, 69 ER 1)
    . .
  • Cited – Crest Nicholson Residential (South) Ltd -v- McAllister CA (Bailii, [2004] EWCA Civ 410, Times 06-May-04, [2004] 1 WLR 2409, [2004] 2 All ER 991, [2004] 2 P & CR 486)
    Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
    Held: The land having the benefit of a covenant had to be . .
  • Applied – Hemingway Securities Ltd -v- Dunraven Ltd and another ChD ([1995] 1 EGLR 61, (1995) 09 EG 322, Bailii, [1994] EWHC Ch 1, (1996) 71 P & CR 30)
    The lease contained a covenant against sub-letting. The tenant created a sub-lease in breach of that covenant and without the consent of the landlord.
    Held: The head landlord was entitled to an injunction requiring the sub-tenant to surrender . .
  • Cited – Abbey Homesteads (Developments) Limited -v- Northamptonshire County Council CA ([1986] 1EGLR 24)
    Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field . .
  • Cited – University of East London Higher Education Corporation -v- London Borough of Barking & Dagenham and others ChD (Bailii, [2004] EWHC 2710 (Ch), Times 03-Jan-05)
    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 . .
  • Cited – Rhone and Another -v- Stephens HL (Independent 23-Mar-94, Times 18-Mar-94, [1994] 2 WLR 429, [1994] 2 AC 310, Bailii, [1994] UKHL 3, [1994] 2 All ER 65)
    A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
  • Cited – London and South Western Railway Co -v- Gomm CA ((1882) 20 ChD 563)
    A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
    Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
  • Cited – Noakes and Co Ltd -v- Rice HL ([1902] AC 24, Bailii, [1901] UKHL 3)
    A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
    Held: The clauses operated as a . .
  • Cited – Coles -v- Sims ([1854] EngR 103, Commonlii, (1854) 5 De G M & G 1, (1854) 43 ER 768)
    . .
  • Cited – Taylor -v- Gilbertson ([1854] EngR 705, Commonlii, (1854) 2 Drew 391, (1854) 61 ER 770)
    . .
  • Cited – Johnstone -v- Hall ([1856] EngR 336, Commonlii, (1856) 2 K & J 414, (1856) 69 ER 844)
    . .
  • Cited – Hodson -v- Coppard ([1860] EngR 1088, Commonlii, (1860) 29 Beav 4, (1860) 54 ER 525)
    . .
  • Cited – Heywood -v- Heywood RC ([1860] EngR 1155, Commonlii, (1860) 29 Beav 9, (1860) 54 ER 527)
    . .
  • Cited – Earl of Zetland -v- Hislop HL (Bailii, [1882] UKHL 1, (1882) 9 R (HL) 40, (1881-82) LR 7 App Cas 427)
    . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 181987

Dawes v Hawkins; 6 Jul 1860

References: (1860) 8 CB (NS) 848, [1860] EngR 968, (1860) 8 CB NS 848, (1860) 144 ER 1399
Links: Commonlii
Coram: Byles J
Ratio:A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years later, the defendant tried to pull down trees which the plaintiff owner grew on the substituted road.
Held: The plaintiff was entitled to damages to trespass as there was no evidence that the substituted road had been dedicated to the public. A dedication of land as a public highway must be in perpetuity, and cannot be for a term of years. Byles J said: ‘once a highway always a highway, for the public cannot release their right and there is no extinctive presumption or prescription. The only methods of stopping up a highway are either by the old writ of adquam damnum or by proceedings before Magistrates under the statute.’
This case is cited by:

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 186481

Sir Ludovick Grant, andC v Alexander Brodie, Esq: HL 25 Apr 1769

References: [1769] UKHL 6_Paton_779
Links: Bailii
Ratio This was a dispute about the right to the mussel-scalps in the river Findhorn.
A grant from the Crown to Ross of Kilravock, of the mussel-scalps in the River Findhorn, which is a public river, supported by long possession, was preferred before a similar grant of later date, in favour of the appellants.

Last Update: 14-Apr-16
Ref: 561658

Thomas Patten, Esq and The Representatives of Richard Richardson, Esq v Wm Carruthers, George Clerk, Wm Dunbar, Charles Warner Dunbar: HL 24 Mar 1770

References: [1770] UKHL 2_Paton_238
Links: Bailii
Ratio Power to Grant Leases of Mines – Implied Recall of Factory.-
Two persons acted in this country as trustees for a person abroad, owner of an entailed estate in Scotland. Their previous letters advised them to enter into agreements in regard to the lead mines on the estate, and that any such, entered into by them, would be affirmed and ratified by him. They entered into an agreement with the appellants for a lease of the mines of the estate, binding themselves, so soon as powers to that effect arrived from Antigua, to grant them a regular lease. On this agreement possession followed. These powers arrived; but, before the regular lease was granted, the owner’s affairs became embarrassed, and he sent home to Scotland his son with powers to raise money on his estate, either by lease, assignation, or conveyance of the same, and conferring on him power to grant deeds to that effect. The son granted letter agreeing to give a lease of the same mines to other parties; Held, reversing the judgment of the Court of Session, that the second factory was not meant as an implied revocation of the first, but was to be viewed only as a power to raise money on the estate, and that the trustees’ obligations remained good to grant a lease to the appellants in terms of the first agreement with them.

Last Update: 14-Apr-16
Ref: 561675

Mace v Philcox; 25 Jan 1864

References: [1864] EngR 170, (1864) 15 CB NS 600, (1864) 143 ER 920
Links: Commonlii
Coram: Erle CJ, Williams J
Ratio The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to regulate the use by byelaws.
Held: The powers conferred upon locaal commissioners or local boards of health under the 10 CYL 11 Vict. cc. 34, 39, or under any special act, for regulating the mode of bathing on the seashore, and licensing bathing-machines there, do not warrant the licensees of such machines iri placing them or any part of the foreshore which is private property
Erle CJ was apparently unenthusiastic about the majority view in Blundell, saying ‘I am desirous of guarding my judgment so as not to restrict the valuable usage or right of Her Majesty’s subjects to resort to the sea-shore for bathing purposes’
This case cites:

  • Cited – Blundell -v- Catterall ((1821) 5 B&ALD 268, Commonlii, [1821] EngR 579, (1821) 5 B & A 268, (1821) 106 ER 1190 (B))
    The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 20-Apr-16
Ref: 281884

Blundell v Catterall; 7 Nov 1821

References: (1821) 5 B&ALD 268, [1821] EngR 579, (1821) 5 B & A 268, (1821) 106 ER 1190 (B)
Links: Commonlii
Coram: Abbott CJ, Holroyd, Best JJ
Ratio The defendant used a beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities (including bathing machines and carriages for members of the public who wished to swim in the sea). The plaintiff, the Lord of the Manor of Great Crosby and owner of the beach in question, sought an injunction to restrain this use. The defendant argued that all members of the public had the right to use a beach for the purpose of gaining access to, and bathing in, the sea.
Held: (Best J dissenting) Unless such a right could be established by usage and custom, there was no ‘common-law right for all the King’s subjects to bathe in the sea and to pass over the seashore for that purpose’.
Ratio Holroyd J said: ‘By the common law, all the King’s subjects have in general a right of passage over the sea with their ships boats and other vessels, for the purposes of navigation commerce trade and intercourse, and also in navigable rivers . .’
. . And : ‘Where the soil remains the King’s, and where no mischief or injury is likely to arise from the enjoyment or exercise of such a public right, it is not to be supposed that an unnecessary and injurious restraint upon the subjects would, in that respect, be enforced by the King, the parens patriae.’
This case is cited by:

  • Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) -v- East Sussex County Council and Another SC (Bailii, [2015] UKSC 7, [2015] BLGR 232, [2015] AC 1547, [2015] 2 All ER 991, [2015] 2 WLR 601, [2015] WLR(D) 109, Bailii Summary, WLRD, UKSC 2013/0102, SC, SC Summary, SC Video)
    The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .
  • Cited – Mace -v- Philcox ([1864] EngR 170, Commonlii, (1864) 15 CB NS 600, (1864) 143 ER 920)
    The ‘sea-beach or foreshore throughout the whole length of the borough of Hastings, including the locus in quo’ had been used ‘from time immemorial’ by the public ‘as a place of public resort’, subject only to the corporation’s statutory powers to . .
  • Cited – Llandudno Urban District Council -v- Woods ([1899] 2 Ch 705)
    A clergyman set up a pulpit and was holding services and delivering addresses on the seashore.
    Held: An injunction was refused. The court discouraged actions for trespass on public highways where the inteference was trivial. In this case, . .
  • Cited – Brinckman -v- Matley ([1904] 2 Ch 313)
    Members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing. . .

(This list may be incomplete)

Last Update: 20-Apr-16
Ref: 200679

Talbot v Staniforth; 27 May 1861

References: [1861] EngR 625, (1861) 1 J & H 484, (1861) 70 ER 837
Links: Commonlii
Where a tenant for life purchased the reversion of his nephew in the family estate : Held, that the transaction fell within the ordinary rule as to reversionary interests, and was not to be regarded as a family arrangement.
The fact that a reversion is dependent on contingencies, which do not admit of estimation by actuaries, does not relieve the purchaser from the onus of shewing that fair value was given.
A family estate stood settled on A. (a bachelor) for life, with remainder to his issue in tail male, with remainder to his nephew B. in tail male, with remainder to the brothers of B. successively in tail male. A. purchased B.’s interest, and required B. to concur in disentailing the estate and conveying the fee. The sale was bona fide intended to be for a fair price ; and the object of the purchaser appeared to be to prevent the estate being sold by B. out of the family. The devisees of A. having failed to prove that fair value was given, the sale was set aside, without costs on either side.
Semble, that the estate to be valued was the reversion in fee which the purchaser acquired, and not merely the base fee which the vendor alone could have sold to a stranger.
Last Update: 29-Jan-16 Ref: 284386

British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another; 18 Apr 1913

References: Times 18-Apr-1913
Coram: Lush J
Light fittings were not shown by the evidence to be part of the electrical installation in a flat, and therefore were not fixtures but fittings.
This case is cited by:

  • Cited – Graham Charles Botham and others -v- TSB Bank Plc CA (Bailii, [1996] EWCA Civ 549)
    A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
    Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a . .

(This list may be incomplete)
Last Update: 22-Jan-16 Ref: 241282

Thomas v Thomas; 18 Feb 1856

References: [1856] EngR 277, (1856) 22 Beav 341, (1856) 52 ER 1139
Links: Commonlii
A mortgagee may tack simple contract debts to his mortgage as against the heir where the property descended is assets in his hands for payment of simple contract debts, and consequently since the stat. 3 & 4 Will. 4, c. 104, a mortgagee of freeholds may tack his simple contract debt as against the heir.
Last Update: 12-Jan-16 Ref: 291032

Thomas v Gwynne; Thomas v Thomas; 17 Feb 1846

References: [1846] EngR 424 (A), (1845-1846) 9 Beav 275
Links: Commonlii
An infant devisee had been ordered to convey real estate sold for payment of the testator’s debts. He made default, and was not amenable to process. The Court, under the 1 W 4 c 60 s 8, directed a person to convey in his place.
This case cites:

  • See Also – Thomas -v- Gwynne; Thomas -v- Thomas ([1845] EngR 1096 (A), Commonlii, (1845) 8 Beav 312)
    Process by attachment to compel an infant to convey estates sold in a creditor’s suit. It is a contenpt to interfere and prevent an infant obeying the the order of the court to convey. . .

(This list may be incomplete)
Last Update: 12-Jan-16 Ref: 302319

Port of London Authority v Devere and 7 Others: LRA 27 Feb 2013

References: [2013] EWLandRA 2011_0733-0755
Links: Bailii
LRA Rivers, Waterways and Foreshore – Trial of a preliminary issue as to whether the Applicant can establish documentary title to part of the bed and foreshore of the River Thames; the ‘ad medium filum’ rule; true construction of the words ‘in front of or immediately adjacent to’; Port of London Act 1908, sections 1, 7; Port of London Act 1912; Port of London Act 1968, section 212, and Schedule 11; Thames Conservancy Act 1857, sections 50, 51; Thames Conservancy Act 1894, sections 58, 59; Port of London (Consolidation) Act 1920, section 7; Crown Lands Act 1702, section 5; Crown Lands Act 1853, section 5; Crown Lands Act 1829, section 8; Law of Property Act 1925, section 62(3); Poor Law Amendments Act 1868, section 27;
Last Update: 04-Jan-16 Ref: 550827

The Queen, On The Prosecution Of The Llanelly Railway And Dock Company v The South Wales Railway Company; 26 Feb 1850

References: [1850] EngR 364, (1850) 14 QB 902, (1850) 117 ER 346
Links: Commonlii
The South Wales Fiailway Company, having power to take and purchase lands and to construct a railway according to the plans and books of reference deposited under their Act, gave notice to the Llanelly Railway & Dock Company that they (the South Wales Railway Company) required to purchase a small piece of land, on part of which the Llanelly Railway was actually constructed, such piece of land being set out, in the said plans and books of reference, as part of the proposed line of the South Wales Railway : but they afterwards refused to issue their warrant to the sheriff to assess the amount of purchase moriey, on the ground that the Llanelly Railway & Dock Company had no power under their Act to sell any portion of land on which their railway was constructed. Held, on mandamus to the South Wales Railway Company to issue their warrant, that, as there was no express clause in any special or general Act of Parliament, which authorised either the Llanelly Railway & Dock Company to sell any part of their actual line of railway, or the South Wales Railway Company to purchase it, the authority was not to be implied from the general power given to the South Wales Railway Company to make their line, and to purchase lands, according to their deposited plans and books of reference.
Last Update: 08-Nov-15 Ref: 297711

Tasker v Small; 3 Jun 1836

References: , [1836] EngR 780, (1836) Donn Eq 82, (1836) 47 ER 241 (B)
Links: Commonlii
Coram: Lord Cottenham LC
The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others.’
This case is cited by:

(This list may be incomplete)
Last Update: 30-Oct-15 Ref: 315112

Cuthbertson v Irving; 24 Jun 1859

References: [1859] EngR 767, (1859) 4 H & N 742, (1859) 157 ER 1034, (1859) 4 Hurl & N 742
Links: Commonlii
Coram: Martin B
Martin B said: ‘There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; in other words a tenant cannot deny his landlord’s title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then take effect in interest and not by estoppel . . .’
This case is cited by:

  • Cited – Scott -v- Southern Pacific Mortgages Ltd and Others SC (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    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 . .
  • Appeal from – Cuthbertson -v- Irving ([1860] EngR 980, Commonlii, (1860) 6 H & N 135, (1860) 158 ER 56)
    Held: Decision affirmed. Neither the lessee nor the lessor can dispute one another’s title and if the lessor without a legal estate later acquires one, the estoppel is ‘fed’ . .

(This list may be incomplete)
Last Update: 26-Oct-15 Ref: 288119

Tanwar Enterprises Pty Ltd v Cauchi; 7 Oct 2003

References: (2003) 217 CLR 315, [2003] HCA 57
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
High Court of Australia – Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – Purchase price available following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
Equity – Relief against forfeiture – Contracts for sale of land – Default by purchaser – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by ‘accident’ – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
This case is cited by:

(This list may be incomplete)
Last Update: 25-Oct-15 Ref: 553537

Meynell v Surtees; 8 Nov 1854

References: [1854] EngR 861, (1854) 3 Sm & G 101, (1854) 65 ER 581
Links: Commonlii
In a suit for specific performance, where possession and expenditure are fairly referable to an express agreement with the landowner to give an adequate consideration to be calculated on a principle sufficiently defined in the agreement, the Court will in favour of the possession and expenditure endeavour to decree a specific performance: but not where the Plaintiff after filing his bill, but before the hearing, has obtained by an Act of Parliament the means of securing and keeping his possession without the aid of the Court.
A landowner offered a way-Ieave for a railway over his land to an iron mining company for sixty years, upon the payment of triple damages only. The company, pending a suit by them for specific performances, sold its line to a railway company for public traffic, who procured an Act authorising them compulsorily to purchase the land in fee over which the way-leave had been granted. Held, at the hearing, that there had been a variation as to the parties and the subject matter of the contract, and that there was no right to specific Performance.
Last Update: 25-Oct-15 Ref: 293718

Tooth v The Dean And Chapter Of Canterbury; 13 May 1829

References: [1829] EngR 460, (1829) 3 Sim 49, (1829) 57 ER 919
Links: Commonlii
The Dean and Chapter of C., being rectors of a parish, leased all the tithes belonging to the rectory. The lessees filed a bill for tithe of hops against the occupiers, to which the vicar was made a party as claiming that tithe. The occupiers then file a cross-bill against the dean and chapter and their lessees, for a discovery and production of documents. Demurrer by the dean and chapter alIowed.

Jane Robbins, Administratrix of Edwin James Robbins, Deceased v Jones; 16 Nov 1863

References: [1863] EngR 956, (1863) 15 CB NS 221, (1863) 143 ER 768
Links: Commonlii
It is for the grantee of an easement, and not the grantor, to maintain and repair the subject matter of the easement, with a duty to do so if by his neglect the servient tenement suffers damage.
This case is cited by:

  • Cited – Southwark London Borough Council -v- Mills/Tanner; Baxter -v- Camden London Borough Council HL (Times 22-Oct-99, Gazette 10-Nov-99, Gazette 03-Nov-99, House of Lords, Bailii, [1999] 4 All ER 449, [2001] 1 AC 1, [1999] UKHL 40, [1999] 3 WLR 939, [1999] 3 EGLR 35, [2000] 32 HLR 148, [1999] 45 EG 179, (2000) 79 P & CR D13, [1999] EGCS 122, [2000] Env LR 112, [1999] NPC 123, [2000] L & TR 159, [2000] BLGR 138)
    Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
    Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .

Ministry of Defence v Wiltshire County Council; 3 May 1995

References: [1995] 4 All ER 931
Coram: Harman J
The court considered that the time period of twenty years necessary to establish a right of common under the Act was the period ending with the date of the application.
Held: The court rectified the register under section 14 so as to remove the registration of an area of land between a row of houses occupied by military personnel and the Ministry’s airbase. The user by the inhabitants of the Ministry’s houses was not ‘as of right’ as was required.
Harman J said that his views on locality were a second ground for his decision: ‘Other points were argued. In particular, Mr Drabble QC argued that it was impossible for a village green to be created by the exercise of rights save on behalf of some recognisable unit of this country–and when I say recognisable I mean recognisable by the law. Such units have in the past been occasionally boroughs, frequently parishes, both ecclesiastical and civil, and occasionally manors, all of which are entities known to the law, and where there is a defined body of persons capable of exercising the rights or granting the rights.
The idea that one can have the creation of a village green for the benefit of an unknown area–and when I say unknown I mean unknown to the law, not undefined by a boundary upon a plan, but unknown in the sense of unrecognised by the law-then one has, says Mr Drabble, no precedent for any such claim and no proper basis in theory for making any such assertion. In my belief that also is a correct analysis.’ and ‘Upon that basis there can be no possible claim of right here arising, and the activities are not activities which could give rise to a claim of right sufficient to found a basis that the activity is enough to create a village green. That would be, in my view, the end of the case and it would then be just to rectify the register because, in my view, it would be unfair and burdensome, that is unjust, to a landowner to have an entry made upon a register which hampers and burdens him in the exercise of his rights over his own land when those burdens have no proper existence at all in law. My judgment therefore is that the motion should succeed’.
Statutes: Commons Registration Act 1965
This case is cited by:

  • Cited – Oxfordshire County Council -v- Oxford City Council, Catherine Mary Robinson ChD ([2004] EWHC 12 (Ch), Bailii, Times 30-Jan-04, [2004] 2 WLR 1291, [2004] Ch 253)
    Land had been registered in part as a common. The council appealed.
    Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
  • Cited – Oxfordshire County Council -v- Oxford City Council and others HL (Bailii, [2006] UKHL 25, Times 31-May-06, Gazette 08-Jun-06, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817)
    Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
  • Cited – Paddico (267) Ltd -v- Kirklees Metropolitan Council and Others ChD (Bailii, [2011] EWHC 1606 (Ch), [2011] 26 EG 84, [2011] BLGR 727, [2011] NPC 66)
    The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
  • Cited – Paddico (267) Ltd -v- Kirklees Metropolitan Council and Others ChD (Bailii, [2011] EWHC 1606 (Ch), [2011] 26 EG 84, [2011] BLGR 727, [2011] NPC 66)
    The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .

Egerton v Jones; 3 May 1830

References: [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B)
Links: Commonlii
Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the objection.
This case cites:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051)
    An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my . .

This case is cited by:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266)
    An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .

Egerton v Jones; 5 Aug 1830

References: [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266
Links: Commonlii
An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court had sustained, was, in the circumstances, immaterial.
This case cites:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051)
    An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my . .
  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B))
    Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .

The Duke of Bedford v The Trustees of The British Museum; 6 Jul 1822

References: [1822] EngR 457, (1822) 2 My & K 552, (1822) 39 ER 1055
Links: Commonlii
Coram: Lord Eldon
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, not to use the land in a particular manner, with a view to the more ample enjoyment by the feoffor of such adjoining lands, and the subsequent acts of the feoffor, or of those claiming under him, have so altered the character and condition of the adjoining lands that, with reference to the land conveyed, the restriction in the covenant ceases to be applicable according to the intent and spirit of the contract, a Court of Equity will not interpose to enforce the covenant but will leave the parties to law.
Whether upon such a covenant there could be any remedy at law against the assigns of the covenantor, quaere.
This case is cited by:

  • Cited – Tulk -v- Moxhay ((1848) 2 Ph 774, [1848] 1 H & TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, Bailii, [1848] EWHC Ch J34, [1848] EngR 1005, Commonlii, (1848) 11 Beav 571, (1848) 50 ER 937, [1848] EngR 1059, Commonlii, (1848) 1 H & Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, Commonlii, (1848) 41 ER 1143)
    A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
    Held: A purchaser from B, with notice of the covenant, was . .
  • See Also – The Duke of Bedford -v- British Museum (Commonlii, [1822] EngR 456, (1822) 1 Coop T Cott 90, (1822) 47 ER 761 (B))
    . .

Morrell v Fisher; 22 Dec 1849

References: (1849) Exch 591, [1849] EngR 1242, (1849) 4 Exch 591, (1849) 154 ER 1350
Links: Commonlii
Coram: Alderson B
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.’
This case is cited by:

  • Cited – Rogers and Rogers -v- Freeguard and Freeguard CA (Times 22-Oct-98, Gazette 25-Nov-98, Bailii, [1998] EWCA Civ 1572, [1999] 1 WLR 375)
    The parties had drawn up ands 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 . .

Pyer v Carter; 21 Feb 1857

References: (1857) 1 H&N 916, [1857] EngR 291, (1857) 1 H & N 916, (1857) 156 ER 1472
Links: Commonlii
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.
This case is cited by:

  • Cited – McAdams Homes Ltd -v- Robinson and Another CA (Bailii, [2004] EWCA Civ 214, Gazette 11-Mar-04, [2005] 1 P&CR 520, [2004] 3 EGLR 93)
    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, . .

In re An Act For Enabling The Newcastle And Darlington Junction Railway Company To Purchase The Brandling Junction Railway And In The Matter Of The York, Newcastle And Berwick Railway Act, 1847 etc; 7 Mar 1856

References: [1856] EngR 326, (1856) 3 Sm & G 307, (1856) 65 ER 671
Links: Commonlii
One of the conditions at an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that, if from any cause whatever the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the Court. The purchase-money was a fund in Court, and after a long delay the conveyancing counsel approved of the title for the purchasers.
Held: Neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest.

Randall v Stevens And Others; 25 Jun 1853

References: [1853] EngR 767, (1853) 2 El & Bl 641, (1853) 118 ER 907
Links: Commonlii
Coram: Lord Campbell LC
A landlord evicted a tenant who had failed to pay any rent for twenty years. Statute provided that a house could not be repossessed simply by exercising a right of entry.
Held: Lord Campbell LC, giving the judgment of the Court of Queen’s Bench on appeal from a judgment given at assizes, held that entry could be made ‘by stepping on any corner of the land in the night time and pronouncing a few words, without any intention or wish to take possession.’ However, where possession was taken with an intention to possess, then ‘whether possession was retained by the landlord an hour or a week must for this purpose [i.e. taking possession other than by mere entry] be immaterial.’
This case is cited by:

  • Cited – Zarb and Another -v- Parry and Another CA (Bailii, [2011] EWCA Civ 1306, [2011] WLR (D) 331, WLRD)
    The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .

Flight v Booth; 24 Nov 1834

References: [1834] 1 Bing NC 370, [1834] 1 Scott 190, [1834] 131 ER 1160, [1834] EngR 1087
Links: Commonlii
Coram: Tindal CJ
The auction particulars stated that the land was subject to covenants restricting use of the property for certain offensive purposes. After successfully bidding it was shown to be subject to other substantial restrictions against non-ofensive trades also.
Held: The purchaser was entitled to rescind the contract and recover his deposit. Even though a misdescription may be unintended, where it is a material and substantial point, and a court could infer that the purchaser would not have bid for the property, the purchaser is not restricted to recovering compensation but may choose to rescind.
This case is cited by:

  • Applied – In re Puckett & Smith’s Contract CA ([1902] 2 Ch 258, [1902] 71 LJ Ch 666, [1902] LT 189)
    Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser’s intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable . .
  • Cited – Cleaver and Others -v- Schyde Investments Ltd CA (Bailii, [2011] EWCA Civ 929)
    The parties had contracted for the sale of land. The purchaser secured the rescinding of the contract for innocent misrepresentation. A notice of a relevant planning application had not been passed on by the seller’s solicitors. The seller appealed . .

Scott v Jackman; 10 Nov 1855

References: [1855] EngR 774, (1855) 21 Beav 110, (1855) 52 ER 800
Links: Commonlii
By the conditions of sale, the title-deeds were to be delivered to ‘the purchaser of the largest lot’. A purchased the largets lot in value, and extent, but B purchased several lots, whose aggregate value and extent exceed those of A’s title.
Held: A was entitled to custody of the deeds.

Lake District Special Planning Board, ex parte Bernstein; 3 Feb 1982

References: Times 03-Feb-1982
A diversion of a footpath must be along an entirely new path, and not an existing way.
This case is cited by:

  • Cited – Mear and others -v- Cambridgeshire County Council ChD (Bailii, [2006] EWHC 2554 (Ch))
    The claimants sought a declaration that a path over neighbouring land was a public vehicular highway as recorded by the respondents, and not a footpath as asserted by the owners, and that gates over the path infringed the public rights. The council . .

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

References: [1863] EngR 911, (1863) 4 B & S 526, (1863) 122 ER 556
Links: Commonlii
Order for expenses. Auditors of District Board. An Act of 30 Car. 2, ‘for making part of the parish of St. Martin in the Fields a new parish, to be called the parish of St. Anne within the Liberty of Westminster, enacted that all that precinct included within the bounds hereafter expressed, that is to say, all the houses, tenements, lands and grounds beginning at &c. with all the east side of Soho Street to the sign of &c., being the corner at the north end of the said Soho Street abutting upon the king’s highway or great road,’ now Oxford Street, ‘with all the houses and grounds abutting on and upon the said road leading from the said sign of’ &c., should be a new parish. Before the passing of The Metropolitan Local Management Act, 18 & 19 Vict. c. 120, and after the passing of it down to the making of the order after mentioned, the vestry of the parish of St. Marylebone paved the whole of Oxford Street.

Parkin v Thorold; 2 Jun 1851

References: [1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239
Links: Commonlii
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.
This case is cited by:

  • Appeal from – Parkin -v- Thorold CA ((1852) 22 LJ Ch 170, [1852] EngR 535, Commonlii, (1852) 16 Beav 59, (1852) 51 ER 698)
    The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .

R and R Fazzolari Pty Limited v Parramatta City Council etc; 2 Apr 2009

References: [2009] HCA 12
Links: Austlii
Coram: French CJ
(High Court of Australia) French CJ said: ‘Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights . . The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights . . The terminology of ‘presumption’ is linked to that of ‘legislative intention’. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights’
This case is cited by:

The Barnsley Canal Company v Twibell; 17 Nov 1843

References: [1843] EngR 1096, (1843) 7 Beav 19, (1843) 49 ER 969
Links: Commonlii
A canal company was authorised by, its Act, to purchase the coal, which the safety of the canal required to be left unworked. The purchase of part was delayed many years, and in the meantime a lease had been granted by the owner to a coal worker. The company purchased the interest of the owner. Held, that the coal worker was also entitled to compensation.
No equity can be founded on an allegation that a Court legally constituted is not properly competent to decide questions within its jurisrdiction; and where the legislature has given jurisdiction to a Court provided by the Act, and has made its decision final, if any inconvenience arises from the legal exercise of the jurisdiction, the Legislature alone can supply a remedy.

Walsingham’s Case; 11 Jan 1573

References: (1573) 2 Plowd 547, [1573] EWHC KB J99, 75 ER 805
Links: Bailii
An owner of an estate in fee simple ‘has a time in the land without end, or the land for time without end,’ and ‘An estate in the land is a time in the land, or land for a time.’ and ‘the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time’

Partriche v Powlet; 17 Oct 1740

References: [1740] EngR 185, (1740) 2 Atk 54, (1740) 26 ER 430
Links: Commonlii
Coram: Lord Hardwicke LC
A declaration of one of the parties that a joint tenancy should be severed was not sufficient unless it amounted to an actual agreement.

Ockenden v Henly; 31 May 1858

References: [1858] EngR 757, (1858) El Bl & El 485, (1858) 120 ER 590
Links: Commonlii
Plaintiff put up for sale by auction real property, upon Conditions of sale which stipulated that the purchaser of each lot should ‘forthwith pay into the hands of the auctioneer deposit of 20 per cent. on the purchase money, and sign the agreement ‘to pay the remainder, and ‘that, if the purchaser of either lot shall fail to comply with these conditions, the deposit money shall be actually forfeited to the vendor, who shall be at full liberty to resell such lot either by public auction or private contract ; and any deficiency tbat may arise upon such resale, together with all expences attending the same, shall immediately after such second sale be made good by such defaulter ; and, on non-payment thereof, such amount shall be recoverable by the vendor, as and for liquidated damages.’ Defendant became a purchaser at the auction, but did not pay the deposit or complete the purchase. Plaintiff resold at a price below that for whiich defendant had purchased ; and the deficiency, with the expences of sale, exceeded the amount of the deposit.-Held: that plainitiff was entitled to recover from defendant the amount of the deficiency and expences only, and not, in addition to this, the amount of the deposit.–Per Curiam, Had the deposit been paid, and the bargain completed, the deposit would have gone in part payment of the purchase money : and, in the case of the non-completion of the bargain, if the deficiericy and expences had together been less than the deposit, the purchaser would have been entitled to the whole deposit, but nothing more.

Bliss v Hall; 17 Jan 1838

References: , [1838] EngR 346, (1838) 4 Bing NC 183, (1838) 132 ER 758
Links: Commonlii
Coram: Tindal CJ
To an action of nuisance for carrying on the business of a tallow chandler, in a messuage adjoining the messuage of the Plaintiff, it is no plea that the Defendant was possessed of his messuage, and the business was carried on, before the Plaintiff became possessed of and occupied the adjoining messuage. However, a right to emit ‘noxious vapours and smells’ might be acquired by prescription
This case is cited by:

  • Cited – Coventry and Others -v- Lawrence and Another SC (Bailii, [2014] UKSC 13, [2014] 2 P &CR 2, [2014] 2 All ER 622, [2014] BLR 271, [2014] HLR 21, [2014] Env LR 25, [2014] 1 AC 822, 152 Con LR 1, [2014] 2 WLR 433, [2014] PTSR 384, Bailii Summary, UKSC 2012/0076, SC Summary, SC)
    C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
    Held: The neighbour’s . .

Suffield v Brown; 15 Jan 1864

References: [1864] EngR 129, (1864) 4 De G J & S 185, (1864) 46 ER 888
Links: Commonlii
Coram: Lord Chancellor Lord Westbury
To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with, the principles of English law that regulate the effect and operation of grants of real property.
If the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant ; and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down hy the fiction of an implied reservation.
The grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent casements enjoyed by an adjoining tenement which remains the property of the grantor.
The comparison of the disposition of the owner of two tenements to the destination du pere de famille of the French code civil is a fanciful analogy from which rules of law ought not to be derived.
Where the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end by contract to any relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burthen imposed upon it during his joint occupation ; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership.
The right to overhang a bowsprit is capable of being an easement.
This case is cited by:

  • Cited – Bradley and Another -v- Heslin and Another ChD (Bailii, [2014] EWHC 3267 (Ch))
    The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

Lambourn v London Brick Co Ltd; 28 Jul 1950

References: [1950] EG 28 July 1950
Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: ‘the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.’
This case is cited by:

  • Cited – Stagecoach South Western Trains Ltd -v- Hind and Another TCC (Bailii, [2014] EWHC 1891 (TCC))
    A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
    Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .

Hertfordshire County Council v Bolden; 9 Dec 1986

References: Times 09-Dec-1986
A court may allow a de minimis incursion over a public right of way.
This case is cited by:

  • Cited – Herrick and Another -v- Kidner and Another Admn (Bailii, [2010] EWHC 269 (Admin), Times)
    A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .

Drewell v Towler; 4 Jun 1832

References: , [1832] EngR 642, (1832) 3 B & Ad 735, (1832) 110 ER 268
Links: Commonlii
In trespass for cutting lines of the plaintiff and throwing down linen thereon hanging ; defendant pleaded, that he was possessed of a close, and because the linen was wrongfully in and upon the close he removed it. Replication, that J. G. being seised in fee of the close and of a messuage with the appurtenances contiguous to it, by lease and release conveyed to W. H., the messuage and all the easements, liberties, privileges, &c. to the said messuage belonging, or therewith then or late used, &c. ; that before and at the time of such conveyance, the tenants and occupiers of the messuage used the easement, &c. of fastening ropes to the said messuage, and across the close, to a wall in the said close, in order to hang linen thereon, and of hanging linen thereon to dry, as often as they had occasion so to do, at their free will and pleasure, and that the plaintiff being tenant to W, H. of the said messuage, did put up the lines, &c. Rejoinder took issue on the right as alleged in the replication : Held, that proof of a privilege for the tenants to hang lines across the yard, for the purpose of drying the linen of their own families only, did not support the alleged right.
This case is cited by:

  • Cited – Bradley and Another -v- Heslin and Another ChD (Bailii, [2014] EWHC 3267 (Ch))
    The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

Kalatara Holdings Ltd v Benedict Thomas Andersen and Another; Chd 25 Jan 2008

References: [2008] EWHC 86 (Ch)
Links: Bailii
Coram: Evans-Lombe J
The claimant sought specific performance of a contract to buy land from the defendant. The defendant sought summary dismissal of the claim and forfeiture of the deposit. It had been intended that the property would be ‘rolled over’ on a sub-sale. The owner refused to execute a transfer into the name of the eventual purchaser.
Held: The arrangements would have been possible, and the defendants’ failure amounted to a breach of contract. The defendants were not entitled to rescind the contract and forfeit the deposit.
Statutes: Finance Act 2003 45, Law of Property (Miscellaneous Provisions) Act 1994 2(1)(A)
This case cites:

  • Cited – Union Eagle Limited -v- Golden Achievement Limited PC (Times 07-Feb-97, Bailii, [1997] UKPC 5, [1997] 2 WLR 341, [1997] AC 514, [1997] 2 All ER 215)
    (Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
  • Cited – Redwell Investments Ltd -v- 1-3 Cuba Street Ltd CA (Bailii, [2005] EWCA Civ 1799)
    Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that . .
  • Cited – Aero Properties Ltd and Another -v- Citycrest Properties Ltd and Another ChD (Gazette 21-Feb-02, [2000] 2 P&CR 21)
    Contracts were entered into for the sale of five flats. Completion of each contract was conditional upon simultaneous completion of the others. Completion did not occur, and the defendant sellers issued a notice to complete, then rescinded the . .

Hereford and Worcester County Council v Pick; 1 Apr 1995

References: (1995) 71 P & CR 231
Coram: Stuart-Smith LJ
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.’
Statutes: Road Traffic Act 1988 34(1)
This case cites:

  • Cited – Hanning and Others -v- Top Deck Travel Group Ltd CA (Gazette 09-Jun-93, Times 06-May-93, [1993] NPC 73 CA, [1993] CLY 1821, [1994] P & C R 14)
    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 – Robinson -v- Adair QBD (Times 02-Mar-95)
    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 . .

This case is cited by:

  • Doubted in part – Bakewell Management Limited -v- Brandwood and others HL (House of Lords, [2004] UKHL 14, Bailii, Times 02-Apr-04, [2004] 2 WLR 955, [2004] 2 P & CR DG6, [2004] 15 EGCS 104, [2004] 2 All ER 305, [2004] RTR 26, [2004] 20 EG 168, [2004] 2 AC 519, [2004] NPC 53)
    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 . .

Chang v Registrar of Titles; 11 Feb 1976

References: (1976) 137 CLR 177, (1976) 50 ALJR 404, (1976) 8 ALR 285, [1976] HCA 1
Links: Austlii
Coram: Mason J, Jacob J
(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor ‘is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay’ (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel’s view was accepted by the Court of Appeal in Rayner v Preston.
It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale’. Jacob J: ‘Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties’.
This case is cited by:

  • Cited – Jerome -v- Kelly (Her Majesty’s Inspector of Taxes) HL (House of Lords, [2004] UKHL 25, Bailii, Times 20-May-04, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176)
    In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
  • Cited – Scott -v- Southern Pacific Mortgages Ltd and Others SC (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    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 . .

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 196888

Midland Counties Railway Company v Oswin; 12 Feb 1844

References: [1844] EngR 251, (1844) 1 Coll 74, (1844) 63 ER 327
Links: Commonlii
A railway company having, under their Act of Parliament, power to contract with incapacitated persons for the purchase of lands, and a right, upon payment of the purchase-money into the bank, to the fee-simple of the purchased lands, contracted with an incapacitated person, who died before the purchase-money was paid. Held, that the title of the company could not be completed without the assistance of a Court of Equity.
A bequest of ”money, goods, chattels, estates and effects’ held to pass real estate.
In the absence of special clauses for that purpose the effect of a Railway Act is not to alter the course of devolution of property without the consent of the owner ; and therefore if a company, by virtue of their Act, contract with an incapacitated person for the purchase of lands, the purchase-money is to be considered as real and not as personal estate.

Berrysford v Millward; 18 Jul 1740

References: [1740] EngR 162, (1740) Barn C 101, (1740) 27 ER 571
Links: Commonlii
Where a Person shall lose the Benefit of a Mortgage, by reason of his being present at the Time a Settlement was made of the Estate, and his not disclosing it.

Chandler v Thompson; 11 Aug 1811

References: [1811] EngR 500, (1811) 3 Camp 80, (1811) 170 ER 1312 (B)
Links: Commonlii
If an ancient window be raised and enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of light and air to any part of thespace occupied by the ancient window, although a greater portion of light and air be admitted through the unobstructed part of the enlarged window than was anciently enjoyed.

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

References: [1832] EngR 386, (1832) 8 Bing 275, (1832) 131 ER 407 (B)
Links: Commonlii
The corporation of T. having proved a prescriptive right to tolls, Held, that it was not destroyed by a charter of Elizabeth granting and confirming among, other things all the ancient rights of the corporation, but exempting the inhabitants from toll in all places except London : Held, that this exemption applied to the tolls of all other places (except London), but not to the tolls of T.

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

References: [1852] EngR 793, (1852) 3 HLC 794, (1852) 10 ER 315
Links: Commonlii
Coram: Lord Brougham, Lord Campbell
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his decision could not stand. The court now considered again the plaintiff’s appeal from the order of the Vice-Chancellor.
Held: The appeal failed and the order was confirmed. There was indeed a difficulty in the Act under which the land had been conveyed, but the Vice-Chancellor had found the correct interpretation of it.
This case cites:

  • Second Appeal from – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
  • See Also – Dimes -v- Lord Cottenham ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
    The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • Principal Judgment – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .

Laird v Pim and Another; 18 Jan 1841

References: [1841] EngR 237, (1841) 7 M & W 474, (1841) 151 ER 852
Links: Commonlii
Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the purchase-money, but only the damages actually sustained by his breach of contract. – In assumpsit by the vendor against the purchasers of land, the declaration stated, that in consideration of the plaintiff’s selling to the defendats certain land to be paid for as soon as the conveyance should be completed, the defendants promised to purchase and pay for the same. Averment, that although the plaintiff had allowed the defendant to enter into possession of the lands, and had always been ready and willing to make a good title, and offered the defendants to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing ; yet the defendants did not regard their said promise, and did not pay the plaintiff the purchase-money, or any part thereof. Plea, that no conveyance had ever been made or executed to the defendants:-Held, on general demurrer, that the plea was bad, and the declaration good. Quaere, whether, the declaration would have been sufficient on a special demurrer.
This case is cited by:

  • Cited – Hooper and Another -v- Oates CA (Bailii, [2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P &CR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287, WLRD)
    The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. . .

Peters v Sinclair; 6 May 1913

References: 1913 CanLII 8 (SCC), 48 SCR 57
Links: Canlii
Coram: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Ratio Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
This case cites:

  • Cited – Attorney-General -v- Antrobus ChD ([1905] 2 Ch 188)
    The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
    Held: The court rejected a suggestion that . .

(This list may be incomplete)

Last Update: 15-May-16
Ref: 540228

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

References: [1846] EngR 55, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, (1846) 15 Sim 402, (1846) 60 ER 675
Links: Commonlii, Commonlii
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the form prescribed by the Act, which, notwithstanding some of the lands were copyhold, was adapted to the conveyance of freeholds only. A copyholder used the form and afterwards died without having made any surrender of the tenements comprised in it to the lord of the manor.
Held: The company, being a corporation, was not entitled to be admitted to the tenements, but that they were entitled to have the customary heir of the deceased tenant admitted ; and the Court declared that, on his admittance, he would be a trustee for the company.
This case is cited by:

  • Appeal from – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1850] EngR 243, Commonlii, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, Commonlii, (1849) 17 Sim 38, (1849) 60 ER 1041)
    The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
  • See Also – Dimes -v- Lord Cottenham ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
    The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
  • Second Appeal from – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Smith v Howden; 20 Apr 1863

References: (1863) 14 CB (NS) 398, 2 New Rep 30, 143 ER 500, [1863] EngR 422, (1863) 14 CB NS 398, (1863) 143 ER 500
Links: Commonlii
A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, and the plot served by the path owned only an easement.
This case cites:

  • Applied – Holmes -v- Bellingham ([1859] EngR 769, Commonlii, (1859) 7 CBNS 329, (1859) 144 ER 843)
    In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining . .

This case is cited by:

  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Wigginton and Milner Ltd v Winster Engineering Ltd: CA 1978

References: [1978] 1 WLR 1462
Coram: Buckley, Bridge LJJ
The court was asked to construe a conveyance where the plan attached was referred to using the phrase ‘for the purposes of identification only’ and also the phrase ‘more particularly delineated’.
Held: Where in a conveyance of land there is an inconsistency between the verbal description and the plan, the plan must be disregarded.
Buckley LJ said: ‘in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being ‘for identification purposes only’ it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of the parcel’.
Bridge LJ said: ‘I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan ‘for the purposes of identification only’ is the sole means by which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words ‘for the purpose of identification only’ should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.’
This case is cited by:

  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Liverpool City Council v Attorney General; 15 May 1992

References: Unreported, 15 May 1992, Times 01-May-1992
Land had been given to the local authority ‘for use as a recreation ground and for no other purpose’ The Attorney-General sought to oblige the authority to maintain it as such.
Held: The form of gift was not charitable, and no obligation to maintain it was created. Even if the authority had allowed creation of a charitable trust, only the original donor could enforce that trust, and not the Attorney-General.
This case cites:

  • Applied – Attorney-General -v- Poole ([1938] 1 Ch 23)
    Open space land had been conveyed to Poole Corporation ‘in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use.’
    Held: There was no . .

This case is cited by:

Fordyce v Sir Henry Bridges, Catherine Elizabeth Mary Reid, Madeline Curling, Jane Curling, Isabella Curling, Agnes Catherine Thomson, Mary Louisa Thomson, Emily Harriet Thomson, Gertrude Eliza Thomson, Florence Jessie Thomson, And Jo; 15 Mar 1848

References: [1848] EngR 347 (C), (1847-1848) 2 Coop T Cott 325
Links: Commonlii
If all the heirs of a Scotch entail were necessary parties to a suit in this Court, touching matters in which they are interested as such heirs of entail, the suit could not proceed, not only on account of their number, but because future heirs of entail coming into esse would not be bound by any proceedings in it, as their claim is not through any persons parties to the suit.
As you cannot have, in any shape, before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some are out of the jurisdiction.
When, to avoid a failure of justice in the Court from the peculiar nature of the interest under a Scotch entail, it shall become necessary to decide the point [as to making all the heirs of a Scotch entail parties to a suit], some rule must be laid down, for which there is no precedent.
Not possible to dispute the proposition, that the heir of a Scotch entail is not bound by the proceedings in a suit to which he was no parly, he claiming under the entail, and not deriving title through anyone, a party to the suit, and having a direct interest in the subject of that suit in his own right, though not in possession.
Although the heir is not bound by the proceedings in such suit, he cannot have a decree in his own suit, unless he can shew that he was injured by the former decree, or has interests inconsistent with its directions.

Post Investments Pty Ltd v Wilson; 1 Feb 1990

References: (1990) 26 NSWR 598
Coram: Powell J
Ratio (New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has developed by analogy with the law relating to easements, and the benefit of a restrictive covenant is destroyed ‘upon the ownership and possession of both dominant and servient tenements coming into the same hands’. The basis for the qualification is that a restrictive covenant is not to be extinguished if there continues to exist a person (whether or not the successor in title to the estate held by the original covenantor or the original covenantee) entitled to the benefit or subject to the burden of the restrictive covenant.
This case is cited by:

(This list may be incomplete)

Last Update: 14-May-16
Ref: 220708

Freeman v Butler; 16 Nov 1863

References: [1863] EngR 954 (A), (1863) 33 Beav 289
Links: Commonlii
The defendant, the trustee and executor, was also a mortgagee on part of the estate. Upon a bill for the administration of the estate, Held that the Defendant was not bound to produce the mortgage and title-deeds, but that he must produce all, accounts in his possession relating to the mortgage.

Vowles v Miller; 9 Jul 1810

References: [1810] 3 Taunt 137, [1810] EngR 416, (1810) 128 ER 54
Links: Commonlii
Coram: Lawrence J
Lawrence J said: ‘The rule about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on the top of it.’
This case is cited by:

  • Cited – The Earl of Craven -v- Pridmore & others CA ([1902] 18 Times LR 282)
    The well established presumption that the boundary of plots of land separated by a hedge and ditch, that the boundary is the hedge on the far side of the ditch is a rebuttable presumption. The question was ‘how far the presumption had been displaced . .
  • Cited – Alan Wibberley Building Ltd -v- Insley CA (Times 24-Nov-97, Gazette 26-Nov-97, Bailii, [1997] EWCA Civ 2698, [1998] 1 WLR 881, [1998] 2 All ER 82)
    Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
    Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
  • Cited – Alan Wibberley Building Ltd -v- Insley HL (Times 30-Apr-99, Gazette 26-May-99, House of Lords, Bailii, [1999] UKHL 15, [1999] 1 WLR 894, [1999] 24 EG 160, [1999] NPC 54, (1999) 78 P & CR D19, (1999) 78 P & CR 327, [1999] EG 66, [1999] 2 EGLR 89, [1999] 2 All ER 897)
    The parties disputed ownership of a strip of land between a garden and a farm. The land was registered.
    Held: The reference to boundaries on an Ordnance Survey plan in a conveyance showing the boundary along the hedge did not displace the . .
  • Cited – Parmar and Others -v- Upton CA (Bailii, [2015] EWCA Civ 795)
    The parties disputed the application of the hedge and ditch rule in settling their boundary. . .

Island Holdings Ltd v Birchington Engineering Co Ltd; 7 Jul 1981

References: Unreported, 7 July 1981
Coram: Goulding J
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.
This case is cited by:

  • Cited – Banner Homes Group Plc -v- Luff Developments and Another CA (Gazette 10-Feb-00, Times 17-Feb-00, Bailii, [2000] EWCA Civ 18, [2002] 2 All ER 117, Bailii, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372)
    Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
    Held: Although there was no formal . .
  • Cited – Gonthier and Another -v- Orange Contract Scaffolding Ltd CA (Bailii, [2003] EWCA Civ 873)
    The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
  • Cited – Thames Cruises Limited -v- George Wheeler Launches Limited, Kingwood Launches Limited ChD (Bailii, [2003] EWHC 3093 (Ch))
    The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188287

Holmes v Bellingham; 24 Jun 1859

References: [1859] EngR 769, (1859) 7 CBNS 329, (1859) 144 ER 843
Links: Commonlii
Coram: Cockburn CJ
In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining property on either side.
Held: That direction was correct. The doctrine of extent ad medium filum is at common law applicable to private roads as well as public roads. The presumption may be rebutted by acts of ownership inconsistent with the result achieved by applying the presumption.
Cockburn CJ said: ‘The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. The presumption is allowed to prevail upon grounds of public convenience, and to prevent disputes as to the precise boundaries of property; and it is based upon the supposition – which may be more or less founded in fact, but which at all events has been adopted, that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to a private road: but in the latter case it must of course be taken with this qualification that the user of it has been qua road and not in the exercise of a claim of ownership. If the learned judge had told the jury that the presumption was to prevail against evidence of acts of ownership, I should have said that his direction was not correct. But I do not understand that he so put it to them. He merely stated that the same presumption which arises in the case of a public way arose also in the case of a private way. But he went through the evidence as to the acts of ownership upon which the plaintiff relied as rebutting the presumption. I therefore think there is no ground for saying that there has been any substantial misdirection.’
This case is cited by:

  • Applied – Smith -v- Howden ((1863) 14 CB (NS) 398, 2 New Rep 30, 143 ER 500, [1863] EngR 422, Commonlii, (1863) 14 CB NS 398, (1863) 143 ER 500)
    A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, . .
  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Cheltenham and Gloucester Building Society v Aaron Krausz and Rebecca Krausz: CA 22 Oct 1996

References: Gazette 20-Nov-1996, Times 20-Nov-1996, [1996] EWCA Civ 780, [1997] 1 WLR 1558
Links: Bailii
The County court may not suspend a possession order pending an application to the High Court for an order for sale. The court considered the protection given by s15(1) of the 1970 Act, and found the protection to be limited, but nevertheless of considerable value to mortgagors who are in default.
Statutes: Law of Property Act 1925 91(2), Administration of Justice Act 1970 15(1)
This case is cited by:

  • Cited – Ropaigealach -v- Barclays Bank plc CA (Times 06-Jan-99, Gazette 10-Feb-99, Bailii, [1998] EWCA Civ 1960, [2000] QB 263, [1999] 4 All ER 235)
    The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .