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		Land - From: 1849 To: 1899 This page lists 413 cases, and was prepared on 02 April 2018. Â Cope v Thames Haven Dock and Railway Co (1849) 3 Ex 841 1849 Land "The subsection [on the execution of deeds by corporations] removes the necessity for enquiry as to the formalities required under the memorandum, articles, charter, etc., of the corporation; independently of this section the deed would be void unless such formalities were observed." 1 Citers Â Morrell v Fisher (1849) Exch 591; [1849] EngR 1242; (1849) 4 Exch 591; (1849) 154 ER 1350 22 Dec 1849 Alderson B Land 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." 1 Citers [ Commonlii ] Â Adams v London and Blackwall Railway Co (1850) 2 Mac & G 118 1850 Land 1 Citers Â The Queen, On The Prosecution Of The Llanelly Railway And Dock Company v The South Wales Railway Company [1850] EngR 364; (1850) 14 QB 902; (1850) 117 ER 346 26 Feb 1850 Land 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. [ Commonlii ] Â Napier's Trustees v Morrison (1851) 13 D 1404 1851 Lord Cockburn Scotland, Land Dealing with a public right of way, and holding that the defenders had possessed a road "by no trespass or tolerance, but as a public road"the court deprecated the citation in the Court of Session of authorities from England. He really wished, he said - taking a swipe at a future Lord President among others - that Scottish counsel and judges: "could imitate the example set us by the counsel and the judges of that kingdom, who decide their causes by their own rules and customs, without exposing themselves by referring to foreign systems, the very language of which they do not comprehend." 1 Citers Â Hellawell v Eastwood (1851) 6 Exch 295 1851 Parke B Land In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: "The only question, therefore, is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integrè, salvè, et commodè, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causâ, or in that of the Year Book, pour un profit del inheritance (a), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel". 1 Citers Â Doe d. Baddeley v Massey (1851) 17 QB 374 1851 Lord Campbell CJ Land A paper owner, as a stranger to the landlord and tenant relationship, cannot invoke an acknowledgment by the squatter's landlord. The doctrine is based on estoppel. "the landlord is thereby entitled against the tenant who took, but not against a third person." 1 Citers Â Marker v Marker [1851] EngR 344; (1851) 9 Hare 1; (1851) 68 ER 389 17 Apr 1851 Land [ Commonlii ] Â Parkin v Thorold [1851] EngR 542; (1851) 2 Sim NS 1; (1851) 61 ER 239 2 Jun 1851 Equity, Land, Contract 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. 1 Citers [ Commonlii ] Â Eaton v The Swansea Waterworks Company [1851] EngR 559; (1851) 17 QB 267; (1851) 117 ER 1282 5 Jun 1851 Land 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. 1 Citers [ Commonlii ] Â Wilkinson v Fowkes [1851] EngR 1012; (1851) 9 Hare 592; (1851) 68 ER 649 22 Dec 1851 Land Where a conveyance of an estate, obtained upon a pretended purchase from an aged and illiterate man by a person who stood towards him in a confidential position, was set aside, the Court, being of opinion that there was in fact no purchase, refused to give the Defendant a decree for an amount of monies paid by or owing to him, which he alleged (but failed to prove) was the consideration agreed upon for such purchase and conveyance: The rule that a party coming for equity must do equity does not extend so far as to affect matters unconnected with the transaction in respect of which the relief is sought. Case in which a party in a cause, heard upon bill and answer without replication, producing letters of administration to a deceased person the Court may admit them to ascertain the representative character of such party, and may act upon the evidence which they furnish of that character. Case in which, after parties have gone into evidence in an original suit, evidence is material or admissible in a supplemental suit. [ Commonlii ] Â Â Pyrke v Waddingham; ChD 1852 - (1853) 10 Hare 1; [1852] EngR 792; (1852) 10 Hare 1; (1852) 68 ER 813 Â Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287 1852 Coleridge J Land Riparian owners who operated steam engines had a statutory power, under the Act which created the canal company to extract from the canal "such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the sole purpose of condensing the steam used for working any such engines". Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. Held: His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest: "The foundation of the fourth plea is a supposed grant, the existence of which is to be shewn by acts of user. But, if the acts of user would not be legal, the grant cannot be inferred from them. The company here are not the owners of the water, but trustees for the public, under a very limited trust. They are bound to apply all the water that may be required to the purposes of the navigation; they are also bound to allow so much as is wanted for the particular use (specified in [the statute]), of the mill owners within a certain distance of the banks". 1 Citers Â Dyce v Lady James Hay (1852) 1 Macq 305 1852 HL Lord St Leonards LC Land A claim was made for a prescriptive right for all the Queen's subjects "to go at all times upon the . . appellant's property . . for the purpose of recreation". Held: Leonards LC said that the right claimed was one that "cannot be maintained" and "ought not to be maintained". There could not be a prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. He agreed with the Court of Session: "that there is no rule in the law of Scotland which prevents modern inventions and new operations being governed by old and settled legal principles. Thus, when the art of bleaching came into use, there was nothing in its novelty which should exclude it from the benefit of a servitude or easement, if such servitude or easement on other legal grounds was maintainable. The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind. The law of this country, as well as the law of Scotland, frequently moulds its practical operation without doing any violence to its original principles." 1 Citers Â Walker v Bentley [1852] EngR 346; (1852) 9 Hare 629; (1852) 68 ER 665 9 Mar 1852 Land The enactment of the Tithe Commutation Amendment Act (9 & 10 Vict. e. 73, s. 19), that every instrument purporting to merge any tithes, and made with the consent of the Tithe Commissioners, shall be absolutely confirmed and made valid, both at law and in equity, in all respects, is not limited to cases in which the person executing the instrument as a title to the tithe, but operates as well where such person has no estate in the tithe, as where his estate is insufficient to effect the merger. The intention of the Tithe Commutation Acts is that the lands on which the apportionment of the tithe in each parish is cast, and these lands only, shall be liable in respect of the tithe payable for any lands in the parish; and that lands on which no apportionment is cast shall not be liable to tithe. [ Commonlii ] Â Â Parkin v Thorold; CA 1-May-1852 - (1852) 22 LJ Ch 170; [1852] EngR 535; (1852) 16 Beav 59; (1852) 51 ER 698 Â Â Dimes v The Proprietors Of The Grand Junction Canal and Others; 29-Jun-1852 - [1852] EngR 793; (1852) 3 HLC 794; (1852) 10 ER 315 Â Harvey v Lindsay (1853) 15 D 768 1853 Lord Ivory Scotland, Land A new servitudes over land may arise as alterations take place in the progress of society. 1 Citers Â Â Rochdale Canal Company v King; 1853 - (1853) 16 Beav 630 Â Trent v Hunt (1853) 9 Exch 14 1853 Alderson B Land, Landlord and Tenant A mortgagor in possession continues to have a legal right to receive the rents in his own name. However since he had no legal interest in the reversion, he could not forfeit for breach of covenants in the lease. 1 Citers Â Richards v Rose [1853] 9 Exch Rep 218 1853 Pollock CB Land A dispute had arisen as to the ownership of a wall between two houses: "... it seems very clear that, where a number of houses are built upon a spot of ground, all belonging to the same person, being all built together, and obviously requiring the mutual support of each of the others for the purpose of their common protection and security whether the owner first parts with one and then another or parts with two together, which he afterwards subdivides, either by mortgage or sale or divise or any other way, still the mutual support would seem necessary - it is a matter of common sense; and the circumstances whether the houses were separated by one act at one time or at different times, never could make any difference as to what ought to be the result in as much the houses were originally built depending on each other and each require the assistance of the others. As I said before, it seems a matter of plain common sense that that support must continue and that no man who should become possessed of any one of the houses should be in a situation to say, ´You are not entitled to protection of my house and I will pull the house down and let the houses on each side collapse and fall into ruin.' It seems impossible not to come to the conclusion that the law must be in strictness in accordance with what is so plain and sensible." 1 Citers Â Â Patching v Dubbins; 1853 - (1853) Kay 1; [1853] EngR 894; (1853) 69 ER 1 Â Â Pinnington v Gallard; 1853 - (1853) 9 Ex 1 Â Cannock v Jauncey [1853] EngR 601; (1853) 1 Drew 497; (1853) 61 ER 542 26 May 1853 Land [ Commonlii ] Â Sir Henry Edward Bunbury, Bart v Philip Fuller [1853] EngR 768; (1853) 9 Exch 111; (1853) 156 ER 47 25 Jun 1853 Ecclesiastical, Land In a question of jurisdictional or precedent fact the ultimate arbiters are the courts rather than any public authorities involved. A tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe. 1 Citers [ Commonlii ] Â Randall v Stevens And Others [1853] EngR 767; (1853) 2 El & Bl 641; (1853) 118 ER 907 25 Jun 1853 Lord Campbell LC Land, Limitation 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." 1 Citers [ Commonlii ] Â Child v Douglas (1854) Kay 560; 23 LJ Ch 45; 22 LTOS 116; 17 Jur 1113; 2 WR 2; 69 ER 1 1854 Land 1 Cites Â Doe d. Croft v Tidbury (1854) 14 CB 304 1854 Land 1 Cites 1 Citers Â Wiltshear v Cottrell [1854] 1 E&B 674; [1854] 22LJ (QB) 177) 1854 Land A wooden granary was not a fixture. When an article is no further attached to the land, then by its own weight it is generally to be considered a mere chattel. 1 Citers Â Coles v Sims [1854] EngR 103; (1854) 5 De G M & G 1; (1854) 43 ER 768 16 Jan 1854 Land 1 Cites [ Commonlii ] Â Wood v Midgley [1854] EngR 313 (B); (1854) 5 De G M & G 41 28 Feb 1854 HL Land, Contract A defence founded on the Statute of Frauds may be taken by demurrer. A demurrer, for that, it appears on the bill that the agreement therein alleged to have been entered into, is not in writing signed by the Defendant, is not a speaking demurrer. A memorandum that A. had paid to B. Â£60 as a deposit in part payment of Â£1000 for the purchase of a house, the terms to be expressed in an agreement to be signed as soon as prepared. Held, not a sufficient agreement in writing. An allegation that the defendant had approved of a draft agreement, but had asked that, in order to save him the trouble of writing till it was copied, he might be allowed to call and sign the fair copy in the morning, which he promise but failed to do: Held, not a sufficient allegations of fraud to preclude him from setting up the Statute of Frauds as a defence. [ Commonlii ] Â Taylor v Gilbertson [1854] EngR 705; (1854) 2 Drew 391; (1854) 61 ER 770 3 Jul 1854 Land 1 Cites [ Commonlii ] Â Meynell v Surtees [1854] EngR 861; (1854) 3 Sm & G 101; (1854) 65 ER 581 8 Nov 1854 Land 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. [ Commonlii ] Â James Edward Jackson Riccard, Thomas Roe, Clerk, And Mary His Wife, Against William Blanuri, George Derby And Henry Charles Miles [1854] EngR 951; (1854) 4 El & Bl 329; (1854) 119 ER 127 25 Nov 1854 Land [ Commonlii ] Â Johnson v Webster [1854] EngR 952; (1854) 4 De G M & G 474; (1854) 43 ER 592 25 Nov 1854 Land [ Commonlii ] Â Regina v Pratt (1855) 4 E & B 860 1855 Crompton J, Erle J Land, Torts - Other "I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser." 1 Citers Â Ex parte Barclay (1855) 5 De G M & G 403 1855 Land The court asked what was meant by a fixture: "By 'fixtures' we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things." 1 Citers Â Kingsmill v Millard (1855) 11 Exch 313; (1855) 19 JP 661; (1855) 3 CLR 1022; 156 ER 849 1855 Parke B Land, Limitation, Landlord and Tenant Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: "It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord's title. …The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit." 1 Citers Â Scott v Jackman [1855] EngR 774; (1855) 21 Beav 110; (1855) 52 ER 800 10 Nov 1855 Land 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. [ Commonlii ] Â Cawkwell v Russell (1856) 26 LJ Ex 34 1856 CexC Land The dominant user used a right of drainage to drain foul water when the right was to drain clean water. Held: The Court of Exchequer observed that where a party has a limited right in the nature of drainage and exercises the right excessively so as to produce a nuisance, the only remedy is by stopping the whole use. Â The Earl Of Lonsdale v Rigg [1856] EngR 93; (1856) 11 Exch 654; (1856) 156 ER 992 15 Jan 1856 Land The court considered claims of customary rights in the form of cattlegates. [ Commonlii ] Â Thomas v Thomas [1856] EngR 277; (1856) 22 Beav 341; (1856) 52 ER 1139 18 Feb 1856 Land 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. [ Commonlii ] Â 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 [1856] EngR 326; (1856) 3 Sm & G 307; (1856) 65 ER 671 7 Mar 1856 Contract, Land 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. [ Commonlii ] Â Darby v Darby; Rebecca Darby v Alfred Edmund William Darby, Alice Mary Darby, Alfreda Lucy Darby, Abraham Darby [1856] EngR 328; (1856) 3 Drew 495; (1856) 61 ER 992 8 Mar 1856 Land, Trusts A. and B. purchased Iand on a joint speculation with their joint monies for the purpose of laying it out in building plots, and reselling it at the joint profit or loss of A. and B. Held, that it was converted out and out, and the share of one of the partners deceased in part of the unrealised real estate passed to his personal representatives. [ Commonlii ] Â Johnstone v Hall [1856] EngR 336; (1856) 2 K & J 414; (1856) 69 ER 844 11 Mar 1856 Land 1 Cites [ Commonlii ] Â Daniel Rowbotham v William Wilson [1856] EngR 575; (1856) 6 El & Bl 593; (1856) 119 ER 985 30 May 1856 Land Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years before the action, the locus in quo was inclosed by an award made under an Inclosure Act: that the surface was allotted to P., whose estate plaintiff had; and the minerals to H., whose estate defendant had: that on the face of the award it was stipulated that the allottees of the mines should have liberty to work the mines, and the allottees of the surface should have no claim to compensatiori for any consequent sinking of the surface. P. executed the award as a deed. The houses were afterwards built. By defendant’s mining, without negligence, the surface unavoidably sunk. Held, that it sufficiently appeared that, upon the severance of the minerals and surface, the owner of the surface took it as a separate tenement with only a qualified right of support : that no further right of support was gained by the erection of the houses, though they had stood for more than twenty years; and that the subsequelit owners of the surface took it with only the qualified right of support origirially created : and that therefore the plaintiff was not entitled to maintain the action. 1 Citers [ Commonlii ] Â Robertson v Norris (1857) 4 Jur NS 155 1857 Stuart V-C Land A mortgage sale for purposes other than merely to recover payment of the debt was a "fraud on a power". 1 Citers Â Gibson v Doeg (1857) 2 H&N 615; [1857] EngR 925; (1857) 157 ER 253 1857 Pollock CB Land A tenant had openly used the premises for many years in breach of a covenant in the lease. Held: Pollock CB said: "It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of time, and to presume that what has been done was done of right, and not in wrong." 1 Citers [ Commonlii ] Â Rigg v The Earl of Lonsdale [1857] EngR 248; (1857) 1 H & N 923; (1857) 156 ER 1475 7 Feb 1857 Land Customary rights in the nature of cattlegates. [ Commonlii ] Â Pyer v Carter (1857) 1 H&N 916; [1857] EngR 291; (1857) 1 H & N 916; (1857) 156 ER 1472 21 Feb 1857 Land 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. 1 Citers [ Commonlii ] Â The Governor and Company of the New River, Brought from Chadwell and Amwell to London v The Commissioners of Land Tax For The Division of Hertford in the County of Hertford [1857] EngR 517 (B); (1857) 2 H & N 129 8 May 1857 Land, Taxes - Other The court was asked whether shares in land granted by royal decree in perpetuity were real estate and subject to Land Tax. [ Commonlii ] Â David Rowbotham v William Wilson [1857] EngR 717; (1857) 8 El & Bl 123; (1857) 120 ER 45 1 Jul 1857 Land 1 Cites 1 Citers [ Commonlii ] Â Forrest v Overseers of Greenwich [1858] XXI Victoria 890; [1858] EngR 249; (1858) 8 El & Bl 890; (1858) 120 ER 332 1858 Lord Campbell Land, Rating The court was asked whether a landing stage by a river was part of the land. F. moored a barge in the Thames between high and low water mark : the moorings wera stationary, in the bed of the river; and the barge floated at high water and grounded at low water on the posts in the bed of the Thames by which it was moored, and which were in the parish of G. The barge was connected by a chain with stairs on the land, the soil of which was not the property or in the occupation of A, and which was at that point a common highway to the Thames. Moveable planks were laid from the shore on to the barge, and thence to another barge moored farther out in the Thames, and which always floated. By this means a pier was constructed which was permanently kept there and used for embarking in steam boats and landing from them ; and F, was remunerated by the parties so using ; and he had the sole controul of the pier. Held that he was rateable to the poor rate for G, as occupier of the land in the bed of the river. 1 Citers [ Commonlii ] Â Attorney-General v Hanmer (1858) 27 LJCh 837 1858 Land Letters patent granted mineral rights in the waste lands. Held: the term included the lands between the high and low water marks. 1 Citers Â Â Berkeley Peerage case; 1858 - (1858-61) 8 HLC 21 Â Roddy v Fitzgerald [1858] UKPC 16 17 Apr 1858 PC Trusts, Land [ Bailii ] Â Ockenden v Henly [1858] EngR 757; (1858) El Bl & El 485; (1858) 120 ER 590 31 May 1858 Contract, Land 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. [ Commonlii ] Â Regina v Broke (1859) 1 F & F 514 1859 Pollock CB Land, Crime The defendant faced an accusation of having blocked a public right of way. The defendant landowner claimed to have instructed his servants to allow only seafaring men and pilots to use the path and to turn back anyone else, and that this proved that there was no intention to create a public right of way. Held: Pollock CB said: "Even supposing these instructions to have been given and acted on, yet, unless it can be proved that they were communicated to the persons who used the path, and that they did so by virtue thereof, and not of right, their user was a user by the public, and the right of way has been gained, if the user has been continued long enough." 1 Citers Â Dowson v Solomon (1859) 1 Drew & Sm 1 1859 Land 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. 1 Citers Â Â Chasemore v Richards; HL 1859 - [1859] 7 HLC 349 Â Cuthbertson v Irving [1859] EngR 767; (1859) 4 H & N 742; (1859) 157 ER 1034; (1859) 4 Hurl & N 742 24 Jun 1859 Martin B Estoppel, Land 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 . . ." 1 Citers [ Commonlii ] Â Â Holmes v Bellingham; 24-Jun-1859 - [1859] EngR 769; (1859) 7 CBNS 329; (1859) 144 ER 843 Â Prannath Roy Chowdry v Rookea Begum, Syed Aman Ally, And Ram Rutton Rae [1859] EngR 824; (1859) 7 Moo Ind App 323; (1859) 19 ER 331 8 Jul 1859 Land, Commonwealth A Bye-bil-wuffa, or Kut-kubala (mortgage or conditional sale), is redeemable like an ordinary mortgage, and is subject to foreclosure. [ Commonlii ] Â Pell v Addison (1860) 2 F&F 29 1860 Land Extent of lay rector's duty of repair of the parish church. 1 Citers Â Henry Rowbotham, And Others v William Wilson [1860] EngR 892; (1860) 8 HLC 348; (1860) 11 ER 463 19 Jun 1860 HL Lord Wensleydale Land Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the term of the deed by which they are conveyed. Under a grant of minerals, a power to get them is a necessary incident. 1 Cites 1 Citers [ Commonlii ] Â Â Dawes v Hawkins; 6-Jul-1860 - (1860) 8 CB (NS) 848; [1860] EngR 968; (1860) 8 CB NS 848; (1860) 144 ER 1399 Â The Directors, Etc of The Stockton and Darlington Railway Company v John Brown, A Lunatic, By His Committees [1860] EngR 1043; (1860) 9 HLC 246; (1860) 11 ER 724 24 Jul 1860 Health, Land [ Commonlii ] Â Hodson v Coppard [1860] EngR 1088; (1860) 29 Beav 4; (1860) 54 ER 525 6 Nov 1860 Land 1 Cites [ Commonlii ] Â Bowser v Maclean [1860] EngR 1170; (1860) 2 De G F & J 415; (1860) 45 ER 682 21 Nov 1860 Lord Campbell LC Land The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain the lord from using the tramway for the latter purpose ; nor is it an objection to such a bill that the copyholder is not in possession of the surface, but has let it to a tenant. 1 Citers [ Commonlii ] Â Regina v Mathias; The Attorney-General v. Mathias (1861) 2 F&F 570; 27 Law J Ch 761 1861 Byles J Land A profit a prendre in another man's soil cannot be claimed by custom, however ancient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. "The easement in this case is a public right of 'footway' and 'A prescription, to be good, must be both reasonable and certain. . and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad.' Â Haynes v Barton In The Matter Of The Metropolitan Railway Act, 1854 And In The Matter Of The Lands Clauses Consolidation Act, 1845, 1861 [1861] EngR 40; (1861) 1 Dr & Sm 483; (1861) 62 ER 463 1861 Land Lands Clauses Consolidation Act 1845 - Lands Clauses Consolidation Act 1861 - Metropolitan Railway Act 1854 [ Commonlii ] Â Norris v Chambres (1861) 29 Beav 246 1861 Sir John Romilly MR Land A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to buy the Prussian mine, as planned, but the director's suicide intervened before completion. The result was that his estate was temporarily short of funds, further instalments he was supposed to pay according to the contract were not paid, and the property was in danger of being lost. Accordingly, the other directors caused the contract to be cancelled and they set up a new company instead, which acquired the mine under a replacement contract. The shortfall was made up by crediting the vendor with the monies already advanced by the deceased director. The deceased director's estate had no shares in the new company, and nothing to show for the large sum advanced. The plaintiff brought two suits, one in Prussia and the other in England. The English claim was for a declaration that the plaintiff had a lien on the coal mine, an account, and a declaration that the defendants had purchased the mine subject to the lien and as his trustees, and that unless the money was repaid the mine should be sold in order to generate the sum required for that purpose. It will be obvious to the modern reader of the reports that England was a forum non conveniens. Indeed by the date of the first-instance hearing the Prussian suit had already succeeded. Held: "I am told that according to late decisions, and according to the law of England, if a man sell an estate to B and receive part of the purchase-money, and then repudiate the contract, and sell the estate to C, who has notice of the first contract and of the payment of part of the purchase-money by B, B shall, in that case, have a lien on the estate in the hands of C, for the money paid to the original owner. But assume this to be so, this is purely a lex loci which attaches to persons resident here and dealing with land in England. If this be not the law of Prussia, I cannot make it so, because two out of the three parties dealing with the estate are Englishmen, and I have no evidence before me that this is the Prussian law on this subject, and it if it be so, the Prussian Courts of Justice are the proper tribunals to enforce these rights. If the owner of an estate in Prussia mortgage that estate to an Englishman, it is new to me that the Courts of Equity in this country will administer, as between those persons, the law obtaining in England with relation to mortgages, and foreclose or direct a sale of the Prussian estate, if payment be not made of the amount due . . . there is no equity between the parties; here the Plaintiff is entitled to no decree against the Defendants for payment of any sum of money, nor is any such claimed, but the equity and relief sought begin and end with a prayer to make a certain transaction between other persons, one of whom is a stranger to the Plaintiff, an interest to an estate in Prussia, belonging to that stranger, and this independently of all personal equities attaching upon him. I never heard of any such case, and I will not be the first Judge to create such a precedent, which if adopted, for ought I see, would go to assert a right in the Courts here to determine questions between foreigners, relating exclusively to immoveable property in their own country." 1 Citers Â Berridge v Ward (1861) 30 LJCP 218; (1861) 25 JP 695; (1861) 7 Jur NS 876; (1861) 142 ER 507; [1861] EngR 272; (1861) 10 CB NS 400 1861 Land The court set out the presumption ad medium filum as follows: "Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law, is that the soil of the highway usque ad medium filum passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it." 1 Citers [ Commonlii ] Â Frewen v Philipps [1861] EngR 30; (1861-1862) 11 CB NS 449; (1861) 142 ER 871 1861 CEC Land The plaintiff and defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz the 18th of December, 1788, and both expiring at the same time. The defendant by building on his own premises obstructed a window in the house of the plaintiff though the latter had had an uninterrupted enjoyment of light and air for more than twenty years : Held:The circumstance of the two houses being held under the same landlord, and for the same term, did not prevent the one tenant from acquiring an indefeasible right to light as against the other. 1 Citers [ Commonlii ] Â Ewart v Cochrane (1861) 4 Macq 117 1861 Lord Campbell LC Land, Scotland The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership. Held: Lord Campbell LC said: "My Lords, I consider the law of Scotland as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance. When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant." 1 Citers Â Howard v Harris [1681] EngR 89; [1681] 23 ER 288 (A); (1681) 1 Vern 33 1861 Land Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem. 1 Citers [ Commonlii ] Â Tupper v Foulkes (1861) 9 CB (NS) 797; [1860] EngR 271 (A); (1860) 2 F & F 167 1861 Williams J Land Anything which shows that a party treats an instrument as his deed will suffice to make it his deed. 1 Citers [ Commonlii ] Â Webb v Bird (1861) 10 CB (NS) 268; [1861] EngR 518; (1861) 10 CB NS 268; (1861) 142 ER 455 1861 Willes J Land The use of prescription for the acquisition of an an easement of light is anomalous. The owner of the land over which the easement is claimed can do nothing to prevent the installation of windows in a neighbour's house. 1 Citers [ Commonlii ] Â Tupper And Others v Foulkes [1861] EngR 240; (1861) 9 CB NS 797; (1861) 142 ER 314 26 Jan 1861 Land 1 Cites [ Commonlii ] Â In The Goods of Elizabeth Godfrey (Deceased), Motion [1861] EngR 317 (A); (1861) 2 Sw & Tr 133 13 Feb 1861 Land Mortgage of an interest under a will - Administration to mortgagee [ Commonlii ] Â Westhead And Others v Sproson And Piper [1861] EngR 544; (1861) 6 H & N 728; (1861) 158 ER 301 1 May 1861 Land, Contract 1 Citers [ Commonlii ] Â Talbot v Staniforth [1861] EngR 625; (1861) 1 J & H 484; (1861) 70 ER 837 27 May 1861 Land, Trusts 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. [ Commonlii ] Â The Mersey Docks And Harbour Board v Penhallow And Others [1861] EngR 734; (1861) 7 H and N 329; (1861) 158 ER 500 18 Jun 1861 CEC Land, Transport Trustees incoiporated by statnte for the puirpose of constriicting a dock, and who receive rates and have fundss which they are bound to appIy in maintaining and cleansing the dock, so that it may be in a fit stste for vessels to enter, are liable for irijurv to a vessel caused by an accumulation of mud in the dock, of which by their servants they had the means of knowing, and were riegligently ignorant. [ Commonlii ] Â Chamberlain v West End of London Railway Co (1862) 2 B&S 617 (Ex Ch) 1862 CExC Erle CJ Land, Damages The court had found that, after railway works cut off highway access, and, notwithstanding the provision of a deviation road, the value of the claimant's properties as shops had been "greatly diminished" by the reduction in the number of people passing them. Held: The court accepted, on the basis of the umpire's finding, that the claimants' houses had been depreciated in value "because the highway was stopped up, and the easy access which before existed was taken away". 1 Citers Â Attorney-General v Thames Conservators (1862) 1 H & M 1 1862 Land 1 Citers Â Allen v England [1862] EngR 1; (1862) 3 F & F 49; (1862) 176 ER 22 1862 Erle CJ Land, Limitation The court considered a claim for land by adverse possession against the owner on paper. Erle CJ said: "It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it." 1 Citers [ Commonlii ] Â Earl of Fyfe v Duff (1862) 24 D 936; (1863) 4 Macq 469 1862 HL Lord Westbury LC Land 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 followed by tradition of the subject to the transferee. "The legal effect of such a disposition, even before it is followed by tradition of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; and to settle the estate by mortis causa dispositions and deeds of entail. The right so created is transmissible from one person to another by voluntary disposition; and on the death of any person, in whom it is vested, it is transmissible to his heir by general service; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee - a denomination importing not that the subject of it is moveable, for it is truly heritable, but that it is not feudal, and indicating at the same time that, even while not followed by solemn tradition or infeftment, the right is still sua natura a right of fee. Secondly, such dispositive act, although it operates as a de praesenti alienation, and not merely as an obligation to alienate, does farther by implication impose upon the disponer an obligation of a different kind - viz a consequent obligation (as Lord Stair calls it) - as to delivery or tradition of the subject disponed." 1 Cites 1 Citers Â Curling v Austin [1862] EngR 299; (1862) 2 Dr & Sm 129; (1862) 62 ER 570 18 Jan 1862 Contract, Land [ Commonlii ] Â Cordingley v Cheesebrough [1862] EngR 426; (1862) 3 Giff 496; (1862) 66 ER 504 11 Feb 1862 Land, Contract A lot sold by auction, described in the particulars of sale as a mansion-house and pleasure-grounds containing an area of 7683 square feet or thereabouts, contained in fact but 4350 square feet ; but one of the conditions being "that the admeasurements are presumed to be correct, but if any error be discovered therein no allowance shall be made or required either way." On a bill by the purchaser seeking specific performance with compensation the Court decreed specific performance without compensation, and ordered the Plaintiff to pay the costs of the suit. [ Commonlii ] Â Cordingley v Cheeseborough [1862] EngR 605; (1862) 4 De G F & J 379; (1862) 45 ER 1230 28 Apr 1862 Land, Contract [ Commonlii ] Â Â Dillwyn v Llewelyn; ChD 12-Jul-1862 - [1862] EWHC Ch J67; [1862] 45 ER 1284; (1862) 4 De GF & J 517; [1862] EngR 908; (1862) 4 De G F & J 517; (1862) 45 ER 1285 Â Lechmere v Clamp [1862] EngR 1177; (1862) 31 Beav 578; (1862) A) 17 Dec 1862 Land [ Commonlii ] Â Eastwood v Lever [1863] EngR 23; (1863) 4 De G J & S 114; (1863) 46 ER 859 1863 Knight Bruce LJ Land [ Commonlii ] Â Isenberg v East India House Estate Co Ltd (1863) 3 De G J & S 263 1863 Lord Westbury LC Land, Damages The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff's light and exercised instead the Court of Chancery's recently-acquired jurisdiction under the 1858 Act to order payment of damages: ". . . I hold it . . . to be the duty of the court in such a case as the present not, by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained." Lord Cairns's Act 1858 1 Citers Â Â Malcolmson v O'Dea; HL 1863 - (1863) 10 HL Cas 618 Â Sowerby v Wadsworth [1863] EngR 87; (1863) 3 F & F 734; (1863) 176 ER 336 1863 Land A right of highway does not include a right to race ; and a person who had been party to a ''hurdle race," was held jointly liable for the putting the hurdles on the ground, although he did not take part in that particular act. [ Commonlii ] Â Ingram v Morecroft (1863) 33 Beav 49 1863 Sir John Romilly MR Land "... if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; ..." 1 Citers Â Webb v Bird And Others [1863] EngR 93; (1863) 13 CB NS 841; (1863) 143 ER 332 1863 Land 1 Cites [ Commonlii ] Â Malcomson v O'Dea (1863) 10 HLC 592 1863 Land In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right. 1 Citers Â Mounsey v Ismay (1863) 1 H & C 729; [1863] EngR 163; (1863) 1 H & C 729; (1863) 158 ER 1077 20 Jan 1863 Martin B Land 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 time of Richard the First; and why may it not have been reasonable in the then state of the land?" 1 Citers [ Commonlii ] Â Â Smith v Howden; 20-Apr-1863 - (1863) 14 CB (NS) 398; 2 New Rep 30; 143 ER 500; [1863] EngR 422; (1863) 14 CB NS 398; (1863) 143 ER 500 Â Ellis v The Mayor, Aldermen, And Burgesses of The Borough of Bridgnorth [1863] EngR 786; (1863) 15 CB NS 52; (1863) 143 ER 702 6 Jul 1863 Land, Local Government [ Commonlii ] Â Regina v The Board of Works For The Strand District [1863] EngR 911; (1863) 4 B & S 526; (1863) 122 ER 556 7 Nov 1863 Land 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. [ Commonlii ] Â Â Freeman v Butler; 16-Nov-1863 - [1863] EngR 954 (A); (1863) 33 Beav 289 Â Jane Robbins, Administratrix of Edwin James Robbins, Deceased v Jones [1863] EngR 956; (1863) 15 CB NS 221; (1863) 143 ER 768 16 Nov 1863 Land 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. 1 Citers [ Commonlii ] Â Sowerby v Wadsworth [1863] EngR 1008; (1863) 2 H & C 701; (1863) 159 ER 290 24 Nov 1863 Land [ Commonlii ] Â Middleton v Magnay (1864) 2 H&M 233 1864 Page-Wood V-C Contract, Land The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed a lien to secure repayment to him of expenditure on improvements undertaken by him pursuant to a term in the contract. Held: The claim succeeded to the extent of the vendor's interest. In law the contract took effect as one to assign such interest as the vendor did have. 1 Citers Â Skull And Another v Glenister And Others [1864] EngR 82; (1864) 16 CB NS 81; (1864) 143 ER 1055 1864 Land A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothiiig is said about it at the time of the demise. - A, having a right of way to D close, demised the close to B. The latter, being possessed of an adjoining close, upon which he was erecting certain houses, used the way for carting building materials to A.'s close for the purpose of using them upon his own land :- Held, that it was properly left to the jury to say whether B.'s use of the road was a bona fide exercise of the right of way to A's close, or a mere colourable mode of getting to his own land. Such "a mere colourable use" of a way for the purpose of entering the dominant land (when the real purpose was some other) will fall outside the grant. 1 Citers [ Commonlii ] Â St Leonard's Shoreditch Vestry v Hughes (1864) 17 CB (NS) 137 1864 Land The vendor of land is only allowed a reasonable time within which to make his decision whether to rescind or not in reliance on a contractual term providing for this right where requisitions have been raised which he cannot fulfil. 1 Citers Â Â Suffield v Brown; 15-Jan-1864 - [1864] EngR 129; (1864) 4 De G J & S 185; (1864) 46 ER 888 Â Mace v Philcox [1864] EngR 170; (1864) 15 CB NS 600; (1864) 143 ER 920 25 Jan 1864 Erle CJ, Williams J Land 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" 1 Cites 1 Citers [ Commonlii ] Â Rose v Watson (1864) 10 HLC 671; (1864) 33 LJCh 385; [1864] EngR 300; (1864) 10 HLC 672; (1864) 11 ER 1187 7 Mar 1864 HL Lord Westbury, Lord Cranworth Contract, Land The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a claim for specific performance made against him. He now claimed against the vendor's successors in title to the land contracted to be sold the purchasers asserting a lien over that land to secure the repayment to them of the deposits paid under the contract. Held: The purchasers' claim succeeded. He was entitled, so far as the payments extended, to claim a lien on the estate for their amount, and to enforce that claim against the assignees of the vendor. Lord Westbury said: "I think that your Lordships will agree with me that the case is determinable by principles which are very simple and very clear, and which have long been established in the Courts. When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate. My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money. Then, my Lords, if that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the obvious question arises, is the purchaser to be deprived of the interest in the estate which he has acquired by that bona fide payment? And yet, my Lords that he ought to be so deprived is the whole controversy of the Appellants at your Bar. " Lord Cranworth said: "There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase-money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent. It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships' House, we are able to lay down a rule that may conclusively guide such questions for the future." 1 Citers [ Commonlii ] Â Purdey And Others v Field And Another And Hatch (Intervening) [1864] EngR 327; (1864) 3 Sw & Tr 576; (1864) A) 18 Mar 1864 Land [ Commonlii ] Â Galloway v The Mayor, Aldermen And Commons Of The City Of London [1864] EngR 397; (1864) 2 De G J & S 213; (1864) 46 ER 356 26 Apr 1864 Land In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing of this Act, the corporation agreed with a railway company, which had no power to take the Plaintiff's land, that if the Act passed the company would purchase certain lands under the Act and sell for a certain price a specified part of them to the company, such part including the bulk of the Plaintiff’s land, only a small portion of which was required to be thrown into the new street. The Corporation, after the passing of the Act, gave the Plaintiff notice to take the whole of his land. Held. by the Lord Justice Knight Bruce, the Lord Justice Turner inclining to the same opinion, that the Corporation had, by entering into the above agreement, incapacitated themselves from forming a just judgment, as between them and the plaintiff concerning the quantity of his land which they should require, arid that an injunction ought to be granted to restrain them from proceeding on their notice. Per the Lord Justice Turner. Whether an injunction ought not to be granted on the ground that the corporation were buying in order to sell to a body which had no capacity to take, quaere? 1 Citers [ Commonlii ] Â Beeston v Marriott [1864] EngR 631; (1864) 4 Giff 436; (1864) 66 ER 778 2 Jul 1864 Land Rails and other chattels which by the terms of the contract when placed on the land became the absolute property of the company, the contractor to have no property therein, except the right of using them on the land for the purpose of the works, except on completion of the line, as a condition precedent, the plant was to be given to the contractor as part consideration, or, if used by the company, to be paid for : Held, not liable to be taken in execution for the company's debts. [ Commonlii ] Â Delacherois v Delacherois (1864) 11 HL Cas 62; [1864] EngR 680; (1862-64) 11 HLC 62; (1864) 11 ER 1254 30 Jul 1864 HL Land 1 Citers [ Commonlii ] Â Eddison And Others, The Commissioners Of The Nottingham Inclosure, v The Rev Joshua William Brookes, Vicar Of St Mary, Notthingham [1864] EngR 720; (1864) 17 CB NS 606; (1864) 141 ER 243 9 Nov 1864 Land [ Commonlii ] Â Arthur Heelis v Thomas Goad Blain [1864] EngR 794; (1864) 18 CB NS 90; (1864) 141 ER 374 23 Nov 1864 Land [ Commonlii ] Â Rede v Oakes [1864] EngR 880; (1864) 4 De G J & S 505; (1864) 46 ER 1015 21 Dec 1864 Land, Trusts [ Commonlii ] Â Regina v Heath (1865) 6 B & S 578 1865 QB Crompton J, Cockburn CJ Land The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the defendant, who objected that these costs did not arise from an attempt to repair the highway. The Board argued that the sum represented only the cost of a repair, and were recoverable as 'other expenses in relation to such highways'. The parish replied that the Acts made distinctions between repair of highways and removal of obstructions. Held: Disussing the sections of the 1835 Act at issue, Crompton J said that the sections are cumulative. When counsel attempted to distinguish between the costs of removing an obstruction and the costs of litigation, he was answered by Cockburn CJ: 'If the surveyor is entitled to charge the expense of removing a nuisance by manual or mechanical labour, why is he not entitled to charge the expense of doing it by legal proceediings adding, 'Litigation leads to the same end' and 'If this had been the case of a prosecution by the surveyor under the former Act for removing an obstruction on a highway I should have been disposed to hold that he had power to include the expenses of it in a highway rate; for by sect. 27 he was directed to make a rate in order to raise money for carrying the several purposes of that Act into execution. The main purpose of the Act was to repair the highways and keep them in a proper condition; but the existence of an obstruction on a highway amounting to a nuisance is inconsistent with that condition. And therefore, according to a wise and liberal construction of the Act the expenses of such a prosecution might have been fairly and legitimately included in the highway rate.' The expenses claim fell within the wider provisions of s20. Highways Act 1835 6 27 - Highways Act 1862 20 1 Citers Â Shuttleworth v Le Fleming (1865) 19 CBNS 687 1865 Land The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross. Prescription Act 1832 1 Citers Â Asher v Whitlock (1865) LR 1 QB 1 1865 Land Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A claimant's previous possession is evidence of his title (or of his prior seisin), but it is rebuttable evidence, and if rebutted by other evidence, the right to claim possession dissolves 1 Citers Â Herring v Metropolitan Board of Works (1865) 19 CBNS 509 1865 CCP Willes J Land, Damages All the main sewers in the metropolis were vested in the Metropolitan Board of Works by the Act, gaving it wide powers to maintain and improve them, and for that purpose to carry out works in streets and other land, "making compensation for any damage done thereby…" The Board erected a hoarding in Northumberland Street for the purpose of enabling it to reconstruct a sewer running under the street. The hoarding was very close to the access to the claimant's premises, where he carried on business as a livery stable keeper, and as a result the access to the premises was rendered less convenient. The decision of a magistrate, holding that the claimant was not entitled to compensation, was upheld by the Court of Common Pleas. Willes J: "…I am clearly of opinion that, where the metropolitan board are engaged in the performance of a public work which renders it necessary to erect a hoarding or to deposit materials or rubbish in a public street, the mere fact that thereby the passage along the street becomes more difficult and inconvenient to A than to B and C, gives A no claim to compensation under the act…In other words, it appears to me that, the construction of the hoarding being necessary for the due performance of the works by the board, and the obstruction not having been more than was necessary, or kept for an unreasonable time, would give the appellant no cause of action, and consequently no claim for compensation under the act." and Byles J "My judgment rests upon this ground, that the injury here complained of, viz the temporary obstruction of the public way, rendering the access to the appellant's premises more inconvenient for a short time, gave him no cause of action and no right to compensation. As a general rule, all the Queen's subjects have a right to the free and uninterrupted use of a public way: but, nevertheless, all persons have an equally undoubted right for a proper purpose to impede and obstruct the convenient access of the public through and along the same. Instances of this interruption arise at every moment of the day. Carts and waggons stop at the doors of shops and warehouses for the purpose of loading and unloading goods. Coal-shoots are opened on the public footways for the purpose of letting in necessary supplies of fuel. So, for the purpose of building, rebuilding, or repairing houses abutting on the public way in populous places, hoardings are frequently erected inclosing a part of the way. Houses must be built and repaired and hoarding is necessary in such cases to shield persons passing from the danger from falling substances. If this be the right of private persons, a fortiori must it be the right of a public body to which extensive power is intrusted for the general good of all. On the ground, therefore, that the obstruction here was of a temporary character, and was done for a proper purpose, and not continued for an unreasonable time, I am of opinion that this is not a case for compensation under the Metropolis Local Management Act." Metropolis Management Act 1855 135 1 Citers Â Tapling v Jones [1865] 11 HLC 290 1865 Land The land owner had a building with three stories. Each had a window with established rights of light. He extended the windows in the ground and first floor, and added two new stories. The neighbour built on his own land to an extent sufficient to block the new windows. Held: The right to an ancient light is a matter of positivi juris, and is not derived from a presumption of lost grant. It arises automatically after enjoyment for 20 years, and is not lost by subsequent temporary interruption. The owner of a building does not exceed the limits of his right by opening new windows overlooking his neighbour's land, whose remedy is solely to build so as to interrupt any new right without obstructing an existing right. 1 Citers Â Mounsey v Ismay [1865] EngR 165; (1864) 3 H & C 486; (1865) 159 ER 621 25 Jan 1865 Cexc Baron Martin Land A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an 'easement' within the 2nd section of the Prescription Act 2 and 3 Wm, c 71. That section points to a right belonging to an individual in respect of his land, not to a class such as freemen or citizens claiming a right in gross wholly irrespective of land; and to bring the right within the term 'easement', in that section, it must be one analogous to that of a right of way or a right of watercourse, and must be a right of utility and benefit and not one of mere recreation and amusement. Semble, that an easement in gross is within the Prescription Act. Baron Martin said: "however this may be, we are of opinion that to bring the right within the term "easement" in the second section [of the Prescription Act 2and3 Wm. 4, c.71] it must be one analogous to a right of way which precedes it and a watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement". Prescription Act 2and3 Wm. 4, c.71 1 Cites 1 Citers [ Commonlii ] Â Galloway v The Corporation Of London [1865] EngR 241 (B); (1865) 34 Beav 203 13 Feb 1865 Land, Constitutional In July 1862 the Corporation of London obtained Parliamentary powers for taking the Plaintiffs land for public purposes. But, prior thereto (June 1862) the Corporation had contracted to sell these lands to another company, not then empowered to purchase them, The Court held that the Corporation had so fettered their judgment and discretion, by contracting to sell that which they had no power to purchase, and that, to a company not then authorized to buy them that the Plaintiff was entitled to an injunction to restrain the Corporation from taking more of his land than they bona fide required. After this, another Act passed in 1864, which, after referring to the contract of 1862, provided that that Act should not prejudice the right of the conipany under that agreement, but that the covenants thereof shou!d be as applicable to the said land, if purchased under the powers of this Act, as they would have been, if they had been purchased under the Act of 1863. Held, by the Master of the Rolls, that the last Act removed the objection to the agreement, and amounted to a declaratory enactment as to its validity, and that, consequently, the Plaintiff was not entitled to an injunction. The decision was affirmed, Lord Justice Turner dissentiente. 1 Cites 1 Citers [ Commonlii ] Â Galloway v The Mayor, Commonalty And Citizens Of The City Of London [1865] EngR 415; (1865) 2 De G J & S 639; (1865) 46 ER 523 2 May 1865 Land, Constitutional The Corporation of London in 1862 obtained an Act authorising them to make a new street and buy land for that purpose, with certain powers of reselling land not required for the street. About the same time a railway company obtained an Act authorizing the company and the Corporation to enter into agreements for the sale of land by the corporation to the company. Shortly before either Act had passed the corporation entered into an agreement with the company to take under the powers of their Act and sell to the company certain lands, including land of the plaintiff. The Plaintiff filed his bill to restrain the corporation from taking his land on the ground of this agreement and obtained an injunction. After this another Act was passed authorising the corporation to take lands for another undertarking ; and by this Act, after reciting that certain lands might be taken under it which were liable to be taken by the corporation under their fomer Act, and with respect to which an agreement was "under the authority" of that Act and the Railway Act entered into between the Corporation and the company, and that it was expedient "that the rights of the company under such agreement, should be preserved," it was enacted that nothing in the present Act should prejudice "the rights of that company under the said agreement," but that all the provisions of the agreement should be as applicable to the lands if purchased under the powers of the present Act as they would have been if they had been purchased under the former Act. The Plaintiff land was liable to be taken under this latter Act. Held. by the Lord Justice Knight Bruce, affirming the decision of the Master of the Rolls, the Lord Justice Turner dissenting, that the Legislature had by the latter Act recognized the validity of the agreement, and that the agreement was therefore no obstacle to the corporation taking the land of the Plaintiff under the latter Act. 1 Cites 1 Citers [ Commonlii ] Â Gaved v Martyn [1865] EngR 533; (1865) 19 CB NS 732; (1865) 141 ER 974 3 Jun 1865 CCP Byles J, Erle CJ, Willes J Land The parties disputed whether a right had been acquired to use a watercourse. The plaintiff's predecessor (Hooper) had been given permission from the defendant's predecessor (Geach) to cut a "leat" or stream to carry water from a natural brook on Geach's land to his land. In 1835, the plaintiff acquired a tenancy to the land and enjoyed the water from this stream until 1855, when the defendant sought to block the flow of water. At trial the judge (Channell B) left for the jury the question whether the plaintiff enjoyed the stream as of right, and their verdict was that he did not. The plaintiff sought to set aside that verdict. Held: When there has been a personal licence granted to the dominant owner, it may be possible to infer the grant of a similar licence to his successor. This was a question of fact for the jury. Erle CJ stated: "The question is whether that enjoyment in fact for more than twenty years established an indefeasible right in the plaintiff, or left it as a question for the jury whether the plaintiff was not limited to the same right as Hooper had, viz. by virtue of his agreement with Geach." and "I think there was evidence from which the jury were warranted in finding that there had not been any enjoyment for twenty years previously to the commencement of the action, by the plaintiff or those through whom he claimed, as of right; but that the enjoyment was precarious, and procured by the permission of the owner of the soil. I do not lay it down as a matter of law that the plaintiff is affected by the licence which Hooper had; but only that the learned judge was bound to leave the question to the jury, and that they were warranted in acting upon it as they have done." Willes J said: "If the learned Baron had told the jury that the effect of the agreement between Hooper and Geach was to stamp the character of precariousness on the enjoyment by Gaved, Hooper's successor, his direction might have been objectionable." However, the judge had left the matter open as a question for the jury on the evidence. The question was therefore: "whether there was any evidence from which the jury might properly find that the enjoyment of the leat in question was precarious. A plaintiff who is seeking to establish an enjoyment for the statutable period of twenty years, must, - with this exception, that he need not satisfy the jury of the fact of there having been a lost grant, or that the enjoyment commenced before the time of legal memory, - make out that his enjoyment has been under a claim of right. And I apprehend it would clearly be competent, in answer to such a claim, to shew that the enjoyment originated under an agreement with the tenant or owner of the servient tenement, and therefore was precarious and not as of right: and, upon proof of that fact, it would be for the jury to say whether the tenant of the dominant tenement had not continued the enjoyment in pursuance of a similar agreement, and whether it was not precarious." Byles J said:"The question left, as far as the foul leat is concerned, was, 'Has the plaintiff or those through whom he claims had an uninterrupted enjoyment of the leat as of right for more than twenty years?' The answer is in the negative. It seems to me that the question was rightly put to the jury, and that there was abundant evidence to warrant their answer. The rule was also moved on the ground that the verdict was against the evidence. I think that, if the plaintiff had notice of the circumstance under which Hooper's enjoyment of the leat began, his subsequent enjoyment was not under a claim of right." Prescription Act 1832 1 Citers [ Commonlii ] Â Galloway v The Mayor, Commonalty And Citizens of London [1865] EngR 639; (1865) 3 De G J & S 59; (1865) 46 ER 560 29 Jun 1865 HL Land, Constitutional A bill filed by the Plaintiff to restrain the Defendant from taking certain property of his under their statutory powers had been dismissed and the order of dismissal enrolled. The Plaintiff presented a petition of appeal to the House of Lords, and now applied to the Court for an interim order to protec the property till the appeal could be heard. Held, that as the bill had been simply dismissed without any reservation, the Court had no jurisdiction to make the order asked. 1 Cites 1 Citers [ Commonlii ] Â Dent v Dent [1865] EngR 773; (1865) 35 Beav 126; (1865) A) 12 Dec 1865 Land [ Commonlii ] Â Thomas Walker v Auber George Jones [1865] EngR 790; (1865) 3 Moo PC NS 397; (1865) 16 ER 151 19 Dec 1865 PC Land [ Commonlii ] Â Carr v Lambert (1866) 1 Ex 168 1866 Land Levancy and couchancy is a "measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits". 1 Citers Â Le Strange v Rowe [1866] EngR 10 (B); (1866) 4 F & F 1048 1866 Land The court considered a claim for the right to take mussels from the foreshore. Held: Erle CJ directed the jury that "there is evidence of what to my mind was a very strong act of ownership in respect to the taking of mussels". 1 Citers [ Commonlii ] Â Indermaur v Dames (1866) LR 1 CP 27 1866 Willes J Land The court described as an occupier's duty towards his invitees: "And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact." and "We consider it sound law that such visitor, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows, or ought to know, and which the other party does not know." 1 Citers Â Bickett v Morris (1866) LR 1 SC & Div 47 1866 Land 1 Citers Â Galloway v Mayor and Commonalty of London (1866) LR 1 HL 34 1866 HL Lord Cranworth LC Land, Constitutional Lord Cranworth LC said: "The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers." 1 Cites 1 Citers Â D'Eyncourt v Gregory (No 1) (1866) LR 3 Eq 382 1866 Lord Romilly MR Wills and Probate, Land If the intention is apparent to make the articles part of the land, they become part of the land. Sculptures which simply rested by their own weight were held to form part of the architectural design for the hall in which they were placed and so fell to be treated as part of the freehold. 1 Citers Â Toombs' Case [1866] EngR 46; (1866) 35 Beav 524; (1866) A) 1866 Land [ Commonlii ] Â Craggs v Gray [1866] EngR 52; (1866) 35 Beav 166; (1866) A) 12 Jan 1866 Land [ Commonlii ] Â Western v MacDermot [1866] EngR 55; (1865-1866) 35 Beav 243; (1866) 55 ER 889 12 Jan 1866 Land [ Commonlii ] Â Re Lathropp's Charity [1866] EngR 63; (1866) 35 Beav 297; (1866) 55 ER 910 20 Jan 1866 Land [ Commonlii ] Â Harman v Gurner [1866] EngR 71; (1866) 35 Beav 478; (1866) B) 30 Jan 1866 Wills and Probate, Land [ Commonlii ] Â The Queen v The Local Board Of Health Of The Borough Of Godmanchester [1866] EngR 78; (1866) 5 B & S 936; (1866) 122 ER 1078 3 Feb 1866 Land [ Commonlii ] Â The Crenver, &C, Mining Company (Limited) v Willyams [1866] EngR 88; (1866) 35 Beav 353; (1866) 55 ER 932 9 Feb 1866 Land [ Commonlii ] Â Calcraft v Thompson [1866] EngR 85; (1865-1866) 35 Beav 559; (1866) 55 ER 1013 9 Feb 1866 Land [ Commonlii ] Â The Attorney-General, on Behalf of Her Majesty v The Sitting-Bourne, &C, Railway Company [1866] EngR 91; (1866) 35 Beav 268; (1866) 55 ER 899 10 Feb 1866 Land, Contract [ Commonlii ] Â Mullins v Hussey [1866] EngR 92; (1866) 35 Beav 301; (1866) B) 12 Feb 1866 Land [ Commonlii ] Â Burmester v Moxon [1866] EngR 98; (1866) 35 Beav 310; (1866) 55 ER 915 14 Feb 1866 Land [ Commonlii ] Â Micholls v Corbett [1866] EngR 109; (1865-1866) 34 Beav 376; (1866) 55 ER 680 24 Feb 1866 Land, Contract [ Commonlii ] Â In Re St Cuthbert Lead Smelting Company [1866] EngR 111; (1866) 35 Beav 384; (1866) B) 27 Feb 1866 Land [ Commonlii ] Â Earl Cowley v Wellesley [1866] EngR 112; (1866) 35 Beav 635; (1866) 55 ER 1043 28 Feb 1866 Land, Wills and Probate [ Commonlii ] Â In Re Drew Ex Parte Mason [1866] EngR 136; (1865-1866) 35 Beav 443; (1866) 55 ER 968 18 Apr 1866 Land [ Commonlii ] Â Paterson v Paterson [1866] EngR 141 (B); (1866) 35 Beav 506 24 Apr 1866 Land [ Commonlii ] Â Clark v Wallis [1866] EngR 143; (1866) 35 Beav 460; (1866) B) 26 Apr 1866 Land, Contract [ Commonlii ] Â Belaney v Belaney [1866] EngR 155; (1866) 35 Beav 469; (1866) 55 ER 978 25 May 1866 Land, Wills and Probate [ Commonlii ] Â Benyon v Fitch [1866] EngR 158; (1866) 35 Beav 570; (1866) 55 ER 1018 1 Jun 1866 Land [ Commonlii ] Â Redmayne v Forster [1866] EngR 163; (1866) 35 Beav 529; (1866) 55 ER 1002 5 Jun 1866 Land [ Commonlii ] Â Baxendale v McMurray [1867] 2 Ch App 790; [1867] 31 JP 821 1867 Lord Cairns LJ Land, Environment The plaintiff's land was next to the river Chess. The defendant had for more than twenty years discharged refuse from his paper factory into the Chess upstream of the plaintiff. Latterly a change in the manufacture had led to a different and greater discharge of refuse. The plaintiff sought an order restraining the discharge. Held: The defendant had acquired an easement. That right was to discharge such refuse as was generally produced by the reasonable and proper course of paper manufacturing using whatever materials were proper for the purpose. The claim was dismissed. Lord Cairns LJ indicated though a change of materials had been involved in the business of the dominant owner, the servient owner had cause for complaint if he could show "a greater amount of pollution and injury arising from the use of this new material" in order to establish a breach of his rights . Â Ricket v Metropolitan Railway Co (1867) LR 2 HL 175 1867 HL Lord Cranworth Land, Damages Lord Cranworth considered the adverse effect of building railways on nearby businesses, and in particular the Pickled Egg public house: "The very existence of a railway must cause loss to many persons in its neighbourhood. Every inn or posting-house at which post horses were kept suffered, as is well known, grievous loss by the first establishment of a railroad in its neighbourhood; in fact, the business of such a house was often utterly destroyed. But it was never contended that this was an injury for which compensation should be demanded." and "there is nothing in authority or logic to say that the letting value of the premises cannot be affected by an interference which makes it less convenient to conduct the kind of business for which they would otherwise have been suitable. A plaintiff who can prove such a reduction in value, for whatever period, is entitled to compensation." 1 Citers Â Boyd v Shorrock (1867) LR 5 Eq 72 1867 Sir W. Page Wood V.-C Land 1 Cites 1 Citers Â Williams v James [1867] LR 2 CP 577 1867 Bovill CJ, Willes J Land A right of way had been granted over the plaintiff's land for the benefit of "Nine acre field" in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining "Parrott's land" had been mowed and stored on Nine acre field in the summer of 1866, and in September 1866 its whole bulk was sold to the defendant who carted it away over the plaintiff's land to the highway. The jury held that the original storage on Nine acre field had been done honestly and not in order to gain the advantage of the right of way. The stacking and subsequent dealing with the hay must have been regarded by the jury as being in the ordinary and reasonable use of Nine acre field. Held: The test identified judgments was whether Nine acre field was being used for purposes others than those included in its ordinary and reasonable use. However, Bovill CJ said: "If no additional burthen was cast upon the servient tenement the jury might well find that there had been only the ordinary and reasonable use of the right of way". A right of way obtained by prescription for the purpose of carting hay to field "cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen". 1 Citers Â Layard v Maud (1867) LR 4 Eq 397 1867 Malins VC Equity, Land Wood borrowed money from Austen to complete the purchase of an advowson, covenanting that he would within six months complete the purchase and give a legal mortgage to secure the loan. Two years later, Austen not having required the delivery of the title deeds or taken any other steps to perfect his security, Wood completed the purchase and obtained the deeds, and after another four months had passed he deposited the deeds with the defendants as security for a loan. The defendants had no notice of the prior equitable mortgage. Austen had taken no steps to possess himself of the deeds over a long period of time. Held: Though Malins VC did not found himself on this delay, saying, at 406: "I have not a shadow of doubt that where there is merely an equitable mortgage . . ., in every case where the equitable mortgagee either omits to get, or having got, gives up possession of the deeds, he must always be postponed." Where two equities are equal, possession of the title deeds gives priority. Â Â Morton v Woods; QBD 1867 - (1867) LR 4 QB 292 Â Bryant v Foot (1867) LR 2 QB 161 1867 Cockburn CJ Land, Limitation It is to be presumed from a period of 20 years' user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in grant, it should be capable of being created by an express grant made by deed. Cockburn CJ said that the fiction of lost modern grant, animus dedicandi and the like are "a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people." 1 Citers Â Â Rylands v Fletcher; HL 1868 - (1868) LR 3 HL 330; [1868] UKHL 1 Â Ferrar v City Sewers Commissioners (1868-69) LR4 Ex 227 1868 Land (Year?) A special Act incorporated the provisions of the 1845 Act other than those related to "the taking of land otherwise than by agreement". Held: Section 68 was not incorporated, because it was one of a series of clauses headed "with respect to the taking of land otherwise than by agreement". Land Clauses Consolidation Act 1845 68 1 Citers Â Rangeley v Midland Railway Company [1868] 3 Ch App 306 1868 CA Cairns LJ Land Where there is a highway, the surface of the land or other property is dedicated to public use. Cairns LJ described a highway as: "a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing." 1 Citers Â Morland v Cook (1868) LR 6 Eq 252 1868 CA Lord Romilly MR Land Land below sea level was partitioned by a deed with a covenant that the expense of maintaining the sea wall should be borne by the owners of the lands and payable out of the lands by an acre-scot. Held: The covenant was enforced against a purchaser of the lands on the grounds that he had purchased with notice of the covenant. 1 Citers Â Gayford v Moffatt [1868] 4 Ch App 133 1868 Landlord and Tenant, Land The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords. 1 Citers Â Nash v Coombs (1868) LR 6 Eq 5 1868 Sir William Page Wood VC Land The parties disputed interests in a sum of £3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in 1797 made under an Inclosure Act of 1795. The resident freemen sought division of the fund between them under section 104 of the 1845 Act and sections 15 to 17 of the 1854 Act. Held: Freeman had no fee simple right (that is, they did not own the land) and therefore the money should be held in trust for the freemen resident from time to time. After referring to the award in 1797, the court said: "What I should suppose would be the right of the parties under that would be, that whoever these trustees might be, whether a corporation or not, they became trustees for the resident freemen for all time, and not for those only who at the time when the Act passed (1795) had become and were resident freemen. It would be just as reasonable to say that at that moment all those resident freemen would have had a right to file a bill to have the land divided amongst them, as to say that the present resident freemen have the right contended for. Their rights are simply shifting rights. A body is attempted to be constituted – either a corporation or a body of persons – who were named trustees, and as trustees their trust was for the resident freemen of the borough for all time....It is a trust given to them to hold in lieu of the rights of common, so that all they had to do was to regulate the mode in which it should be enjoyed. The Legislature has simply indicated that this land is available for any purpose to which the trustees and freemen like to put it. Suppose it turned out very valuable for building purposes, possibly they might have had to have recourse to this Court before applying it to those purposes, regard being had to the particular nature of the trust, but I apprehend that they could use the land in any way most agreeable to the resident freemen. These existing resident freemen say they are the only persons interested in the land, and that the money which has been paid for the fee simple, ought to be divided between them....A person who has only got an interest every year that he resides has not got a free simple interest. Take the case of the owner of an enclosed farm who has a commonable right attached to the occupation of the property. If he is only tenant for life the committee who are "to pay the amount to the persons interested according to their respective interests", ought not to pay him the whole value of the land. It must be invested, so that tenant for life and tenant in remainder shall get their proper shares.....[T]he Legislature thought, rightly or wrongly, that as to commonable interests, when they were found to be trifling, they might be apportioned to the holders of them, whoever they might be, and however small or however precarious the existing interest might be. But there might be a case where the land would be valuable for building purposes when this right of feeding cattle was disposed of. In such a case the interest might be considerable in the different persons who had rights, and I cannot hold that it was intended to hand over the whole fee simple interest in the property to persons having only this temporary and fluctuating interest....What I propose, therefore, to do is to declare that the money paid into Court ought to be re-invested in land, to be held on the same trusts as those upon which the lands taken by the railway company were held, viz., in trust for the freemen of the borough of Bedford from time to time residing within the limits of the ancient borough, and in the meantime the same ought to be invested, and the dividends paid (subject to payment of costs) to the trustees, and divided by them amongst such resident freemen at the same time or times as such freemen have been accustomed in each year to enter upon the enjoyment of their rights of common." 1 Citers Â Carington v Wycombe Railway Co (1868) 3 Ch App 377 1868 Land Land Clauses (Consolidation) Act 1845 1 Citers Â Le Strange v Lynn Corporation Unreported 1885 1868 QBD Lord Coleridge CJ Land 1 Citers Â Blackmore v London and South Western Railway Company (1868) 38 LJ Ch 19 1868 Land, Contract 1 Citers Â Fatima Khatoon Chowdrain And Nuseeba Bebee Chowdrain v Mahomed Jan Chowdry, Alias Kufeeluddeen Mahomed Ahsan Chowdry And Others [1868] EngR 15; (1868) 12 Moo Ind App 65; (1868) 20 ER 265 29 Jun 1868 Commonwealth, Land On appeal from the High Court of Judicature at Bengal. In order to save a family estate about to be sold, under a decree of Court made in a suit against one member of the family; other members interested in the property, being entitled to dower charged on the estate, paid the amount decreed into Court to be handed over to the decree-holder under protest of their respective rights in the estate, and subject to a suit to be brought by them to set aside a summary Order rejecting a claim to their charge on the estate. The money so deposited was taken out of Court by the decree-holder. In an action to recover back the amount it appeared, that the decree-holder had no right to proceed against such part of the estate as belonged to the parties paying the money into Court. Held, that an action would lie against the decree-holder, to recover the amount so paid into Court, and handed over to him, as it was a deposit under protest to prevent an injurious sale. [ Commonlii ] Â Â Lord St Leonards v Ashburner; 1869 - (1869) 21 LT 595 Â Engell v Fitch (1869) LR 4 QB 659; 10 B&S 738; 38 LJQB 304; 17 WR 894 ex Ch 1869 ChD Land, Damages, Contract The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession. Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach. 1 Citers Â Walters v Webb (1870) LR 5 Ch App 531 1870 Land 1 Citers Â Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37 1870 Cockburn CJ Land, Damages In compensation for compulsory purchase (in this case, of graveyards), 'value' means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector. Cockburn CJ said: 'When Parliament gives compulsory powers, and provides that compensation shall be made to the person from whom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it.' 1 Citers Â Watts v Kelson (1870) 6 Ch App 166 1870 CA Land Property containing cattle sheds was sold, together with an implied right to the supply of water along pipes leading from a tank on the vendor's land. The purchaser demolished the cattle sheds and erected cottages in their place. Held: A drainage easement is "continous and apparent". "[W]hat passed to [the purchaser] was a right to have the water flow in the accustomed manner through the [servient] premises to his premises, and . . when it arrived at his premises he could do what he liked with it, and . . he would not lose his right to the water by any alteration he might make in his premises." 1 Citers Â Turner v Ringwood Highway Board [1870] LR 9 Eq 418 1870 Land Once a highway exists the public has a right to use the whole of the width of the highway and not just that part of it currently used to pass or re-pass. 1 Citers Â Corbett v Hill (1870) LR 9 Eq 671; (1870) 39 CJCh 547; (1870) 2 LT 263; (1870) 7 Digest (Repl) 267 1870 Sir William James VC Land The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns 'everything up to the sky'. 1 Citers Â Heasman v Pearce (1871) 7 Ch App 275 1870 Land The rule against perpetuties will not invalidate a limitation after an entailed interest. Â London and South Western Railway Company v Blackmore (1870) 4 AC 610; (1870) LR 4 HL 610; (1870) LJ Ch 713; (1870) 23 LT 504; (1870) JP 324; (1870) 19 WR 305; (1870) LR 4 HL 610; 39 LJCh 713 1870 HL Lord Westbury, Lord Hatherley LC Land, Contract In 1861 the railway company used its statutory powers to buy some of Mr Blackmore's land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their joint expense. The agreement included a release of claims in general terms. In 1866 the railway company decided that it did not need the land it had taken and proposed to sell it as surplus land. Mr Blackmore claimed that, as the person from whom it had been taken, he had a statutory right of pre-emption under the Land Clauses Consolidation Act 1845. The railway company argued (rather faintly, it would seem, by their second counsel) that it fell within the description of claims which he surrendered when settling the boundary dispute. Held: Where a release of a contractual obligation is given, its language will be interpreted having regard to the surrounding circumstances against which it came into existence and with special reference to the ambit of the dispute that was the occasion of its creation. Lord Westbury said: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release." Land Clauses (Consolidation) Act 1845 127 128 1 Cites 1 Citers Â Pattabhiramier v Vencatarow Naicken And Narasimha Naicken [1870] EngR 56; (1870) 13 Moo Ind App 560; (1870) 20 ER 660 10 Dec 1870 Commonwealth, Land The doctrine of the English law with respect to the equity of redemption, after default of payment of the mortgage money, is unknown to the ancient law of India prevailing in Madras, which, in the absence of any Regulation, or Act of the Legislature, altering such law, determines the interest of a Mortgagor, in favour of the Mortgagee under a conditional sale made absolute by failure of the Mortgagee to redeem at the time specified in the Deed. [ Commonlii ] Â Ranee Surut Soondree Debea v Baboo Prosonno Coomar Tagore, And After His Death, Romanath Tagore And Others [1870] EngR 59; (1870) 13 Moo Ind App 607; (1870) 20 ER 677 14 Dec 1870 PC Commonwealth, Land [ Commonlii ] Â In re River Steamer Company (1871) LR 6 Ch App 822 1871 Mellish LJ Land, Limitation A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title. Held: The letter was written in the context of a dispute which had advanced to the point of an arbitrator having been appointed, and "a letter which is stated to be without prejudice cannot be relied on to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract." (Mellish LJ) 1 Citers Â Richardson v Younger (1871) 6 Ch App 478 1871 Land, Limitation When there are two joint claimants to possessory title, and it is said that they had acknowledged the paper owner's title, the acknowledgment must be given by or on behalf of both of them. 1 Citers Â Â Jegon v Vivian; 1871 - (1871) LR 6 Ch App 742 Â Marshall v Ulleswater Steam Navigation Co (1871) LR 7 QB 166 1871 Land A public right of navigation may, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake 1 Citers Â Radanath Doss And Others v Gisborne And Co [1871] EngR 1; (1871) 14 Moo Ind App 1; (1871) 20 ER 687; [1871] UKPC 2 19 Jan 1871 PC Land, Commonwealth ER (Fort William (Bengal)) A usufructuary mortgage, to run over a certain number of years, was executed in 1828 by a member of a joint Hindoo family, with the consent of the other members, to R., who afterwards sold the mortgaged estate to H. and H, whose Agent R. was. H. and If. subsequently, in 1811 and 2851, conveyed the estate tn, G. and Co., as an absolute purchaser in fee. In a suit for redemption of the mortgage brought in 1864 G and Co. set up as a defence their title as bona fide Purchasers without notice, and, having been in possession more than twelve years, pleaded the Limitation of suits Act, NO. XIV of 1859, sect. 6, as a bar to the suit. Held : First, that the onus was on G and Co. to establish by clear and satiefactory evidence the termination of the mortgage and the absolute sale by the mortgagees to R . the root of their title; and, in the absence of such proof, that the transaction in 1841 and 1851 was merely an assignment of the mortgage and, Secondly in the circumstances that G and Co were not Purchasers within the true construction of section 5 of Act No XIV of 1859, to entitle them to the benefit of the twelve years' limitation as a bar to the suit for redemption. [ Commonlii ] - [ Bailii ] Â William Farquharson v Dwarkanath Singh And The Government Of India [1871] EngR 26; (1871) 14 Moo Ind App 259; (1871) 20 ER 784 1 Jul 1871 PC Land ER Suit by an Auction Purchaser of a Putnee, sold under Ben. Reg. VIII. of 1819, for possession of 3000 beegahs of land within his Putnee, and to enhance the rent against a Ghatwal, and the Government, charging encroachment against the Ghatwal beyond the quantity of 100 beegahs held ghatwally, according to a return made by a former Ghatwal. The only evidence of encroachment consisted of the Isumnovisee returns made by the Thanadars to the Magistrates in the years 1811, 1813, 1813, from which it appeared, that the quantity of land the then Ghatwal held ghatwally was 100 beegahs. Held, that the evidence of the Defendants of long-interrupted possession of the 3000 beegahs, presumably before the Decennial Settlement, outweighed the effect of the Isumnovisee returns, which were, though prima facie, not conclusire evidence of the quantity of the land held ghatwally; and further that, though such return was not objected to by the then Ghatwal, it did not affect the right of the Ghatwal in possession. [ Commonlii ] Â Brojonath Koondoo Chowdry and Others v Khelut Chunder Ghose [1871] EngR 28; (1871) 14 Moo Ind App 144; (1871) 20 ER 740 4 Jul 1871 PC Land A mortgage made in 1845 in the English form, contained a proviso for redemption, and for the Mortgagor continuing in possession until default in payment, in which event the mortgage Deed gave a right of entry to the Mortgagee. Default was made in payment of the mortgage money by the Mortgagor, but no steps were taken by the Mortgagee to obtain possession. In 1849 the Mortgagor sold part of the mortgaged estate, and the Purchaser entered into possession and registered his title. The Assignee of the Mortgagee afterwards brought a suit for foreclosure to which the Purchaser was not made a party, and in the year 1862 obtained a decree for foreclosure. In a suit brought by the Assignee of the Mortgagee against the Purchaser for possession of that part of the estate so purchased by him from the Mortgagor, held, by the Judicial Committee, affirming the judgment of the High Court at Calcutta, that as the Mortgagor after default, and the Purchaser under him, had been in possession for more than twelve years before the suit for possession was instituted, the Limitation of suits Act, No. XIV. of 1859, sect. I, cl. 12, was a bar to the suit. [ Commonlii ] Â Hurryhur Mookhopadhya v Madub Chunder Baboo And Another; Nobokishto Mookerjee v Koylaschundro Buttacharjee And Others [1871] EngR 30; (1871) 14 Moo Ind App 152; (1871) 20 ER 743 5 Jul 1871 Land ER Review of the Ben. Regs. relating to Latkhiraj tenures, within the Provinces included by the Perpetual Settlement. Construction of Act, No. X, of 1859, sect. 28, in respect to the operation of the law of limitation in suits brought under Ben. Regs. XIS. of 1793, sect. 10, and 11. of 1519, sect. 30, for resumption and assessment of lands as mal, or rent-paying lands, held as Lakhiraj. [ Commonlii ] Â Kooldeep Narain Singh,-Appellant; The Government And Others,-Respondents [1871] EngR 40; (1871) 14 Moo Ind App 247; (1871) 20 ER 779 18 Jul 1871 Land An auction Purchaser of a Zemindary at a sale for arrears of Government revenue, cannot resume lands, held under a ghatwally tenure, at a fixed rent, created before the Permanent Settlement, on the ground, that the services have ceased do be perf formed by the Ghatwal and that there was no necessity for such services; if the government refuse to renounce its claim to the performance of such ghatwally services. [ Commonlii ] Â Rhodes v Ainsworth [1871] EngR 43; (1817) 1 B & A 87; (1871) B) 7 Nov 1871 Land On an issue to try whether the inhabitants of A, were immemorially bound to repair a chapel; the owner of the inheritance having leased his property for years at a rent certain, without any deduction, and residing himself in a different county; is not a competent witness to negative the liability, although he was not upon the rate, and the rate was in fact paid by his tenant; for such owner has an interest in discharging the inheritance from a permanent burden. [ Commonlii ] Â Juggut Mohini Dossee, And Others,-Appellants; Mussumat Sokheemoney Dossee, And Others,-Respondents [1871] EngR 49; (1871) 14 Moo Ind App 289; (1871) 20 ER 795 23 Nov 1871 Trusts, Land Suit for possessiun of lands dedicated to the religious service of a family Idol, and for the appointment as Sabaet, or Manager of the religious endowment, under a Deed of dedication; against a party in cessession, claiming title as a bona fide Purchaser for value, without notice of the alleged trust, whose title, however, was derivable through the Deed of dedication; held wrongly dismissed by the Court below, the Purchaser proceeded against having had sufficient notice to throw upon him the onus of proving exemption from the religious trusts in the lands, which he had failed to do. [ Commonlii ] Â Llanelly Railway and Dock Company v London and North Western Railway Company [1872] Ch App 948 1872 CA James LJ Land, Contract James LJ said: "I start with this proposition that prima facia every contract is permanent and irrevocable and it lies upon a person who say that it is revocable or determinable to show either something special in the contract itself, or something in the nature of the contract which it is reasonably to be implied that it was not intended to be permanent and perpetual, but was to be in someway or other subject to determination." 1 Citers Â Holland v Hodgson (1872) LR 7 CP 328 1872 Blackburn J Land (Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: “There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel; see Wiltshire -v- Cottrell (1 E&B 674; 22LJ (QB) 177) and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D'Eyncourt -v- Gregory. (Law Rep 3 Eq 382) Thus blocks of stone placed on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. This last proposition seems to be in effect the basis of the judgment of the Court of Common Pleas delivered by Maule J., in Wilde -v- Waters. (16 CB 637; 24 LJ (CP) 193) This, however, only removes the difficulty one step, for it still remains a question in each case whether the circumstances are sufficient to satisfy the onus. In some cases, such as the anchor of the ship or the ordinary instance given of a carpet nailed to the floor of a room, the nature of the thing sufficiently shews it is only fastened as a chattel temporarily, and not affixed permanently as part of the land.” 1 Cites 1 Citers Â Forbes v Ecclesiastical Commissioners for England (1872) LR 15 Eq 51 1872 Land The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights. Inclosure Act 1845 1 Citers Â Shaw v Foster (1872) LR 5 HL 321 1872 HL Lord Cairns, Lord O'Hagan, Lord Hatherley LC Land, Equity As regards the trusteeship which arises for a vendor of land after exchange of contracts: "there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the property for the purchaser; the purchaser was the real beneficial owner in the eye of a Court of Equity of the property, subject only to this observation, that the vendor, whom I have called the trustee, was not a mere dormant trustee, he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it". A purchaser of land obtains rights which are akin to ownership after exchange, and a purchaser had not only the right to devise the property (under the equitable doctrine of conversion) but also the right to alienate it or charge it. Lord O'Hagan said that the purchaser's interest could be the subject of a charge or assignment, and that the sub-assignee or encumbrancer could enforce his rights against the original vendor. Lord Hatherley LC referred to the "fiction of Equity which supposes the money to be paid away with one hand and the estate to be conveyed away with the other," 1 Citers Â Hyder Hossain vMahomed Hossain And Ali Hossain [1872] EngR 4; (1871, 1872) 14 Moo Ind App 401; (1872) 20 ER 836 14 Jan 1872 Land [ Commonlii ] Â Mussumat Buhuns Kowur v Lalla Buhooree Lall, And Jokhee Lall [1872] EngR 9; (1872) 14 Moo Ind App 496; (1872) 20 ER 871 24 Jan 1872 Land, Commonwealth [ Commonlii ] Â Anund Loll Doss v Jullodhur Shaw And Another [1872] EngR 12; (1872) 14 Moo Ind App 543; (1872) 20 ER 888 31 Jan 1872 PC Land [ Commonlii ] Â The Government Of Bombay v Desai Kullianrai Hakoomutrai [1872] EngR 19; (1872) 14 Moo Ind App 551; (1872) 20 ER 892 14 Mar 1872 PC Commonwealth, Land [ Commonlii ] Â Sham Chand Bysack v Kishen Prosaud Surma Alias Rajah Baboo [1872] EngR 23; (1872) 14 Moo Ind App 595; (1872) 20 ER 908 26 Mar 1872 PC Land, Limitation, Commonwealth Two riparian proprietors of land on opposite sides of a river, respectively claimed churs which had been diluviated for a great many years, and afterwards re-formed by a change of the course of the River, as belonging to their respective estates. After a police inquiry, the Magistrate, in 1836, put A in possession. B, the other riparian proprietor took no steps till the year 1847 to obtain posession of the churs. Held. (1), that the long delay in bringing a suit raised a presuption against B’s title, and (2), that he had failed to identify the churs as having been formerly part of his lands or an accretion thereto. [ Commonlii ] Â Des Barres and Another v Shey (1873) 29 LT (NS) 592 1873 Land, Limitation The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors. Held: The defendants were taken to have acquired legal possession by way of possession; the licensee's or lessee's occupation was properly counted by the squatter as acts of possession as against the paper owner. 1 Citers Â Â Pearce v Watts; 1873 - (1873) LR 20 Eq 492 Â Â Rudge v Richens; 1873 - (1873) LR 8 CP 358 Â Harvey v Walton (1873) LR 8 CP 162 1873 Grove J Land (Court of Common Pleas) A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. "We are of opinion that the question here … is whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement … [T]here must be an additional or different servitude and the change must be material either in the nature or in the quantum of the servitude imposed." 1 Citers Â Â Johnson v Barnes; 1873 - (1873) LR 8 CP 527 Â Harvey v Walters (1873) LR 8CP 162 1873 CCP Grove J Land The court was asked whether an easement survived a change in usage: "We are of the opinion that the question here . . is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement . . there must be an additional or different servitude, and the change must be material either in the nature or in the quantum of the servitude imposed." 1 Citers Â G W H Riddell, Petitioner (1874) 1 R 462 1874 IHCS Lord President Inglis Scotland, Land The date of the deed must be taken to be the date when the trust deed was made and executed, which is the literal meaning of the words used Entail Amendment (Scotland) Act 1848 47 1 Citers Â Â Metropolitan Board of Works v McCarthy; HL 1874 - [1874] LR 7 HL 243 Â National Society v School Board of London (1874) 18 Eq 608 1874 Land, Charity The National Society raised large sums by subscription and made grants in favour of schools in which children were to be instructed (in addition to reading, writing and arithmetic) in holy scripture and in the liturgy and catechism of the established church. Former owners of land conveyed under the 1841 Act had only the remedy of complaint to the Educational Board. School Sites Act 1841 1 Citers Â Ellis v Loftus Iron Co (1874) LR 10 CP 10 1874 Lord Coleridge CJ Torts - Other, Torts - Other, Nuisance, Animals, Agriculture, Land The pasturing of cattle must be one of the most ordinary uses of land, and strict liability for damage done by cattle enclosed on one man's land if they escape thence into the land of another, is one of the most ancient propositions of our law. It is in fact a case of pure trespass to property, and thus constitutes a wrong without any question of negligence. Lord Coleridge CJ said: "It is clear that, in determining the question of trespass or no trespass, the court cannot measure the amount of the alleged trespass; if the defendant places a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it." 1 Citers Â Â Bain v Fothergill; HL 1874 - (1874) LR 7 HL 158; 43 LJ Ex 243; 31 LT 387; 39 JP 228; 23 WR 261 Â Clifford v Hoare (1874) LR 9 CP 362 1874 Land 1 Citers Â Bagshaw v Buxton Local Board of Health (1875-76) LR 1 Ch D 220 1875 CA Jessel LJ MR Land House owners requested an injunction to stop the surveyors of highways removing a low wall and railing enclosing a piece of ground in front of it. The surveyors alleged that the ground was part of a highway and that the wall and railing were an obstruction to the safe and convenient passage along it. The road opposite the house, exclusive of the piece of ground, was about 36 feet wide. The owners said that given that, the wall did not obstruct "the safe and convenient passage along [the] street" referring to the type of obstruction against which the surveyors of highways could act under the 1847 Act. Held: Jessel MR said that "along the street" meant along the whole of the street: "[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held" Towns Improvement Clauses Act 1847 1 Citers Â Wood v Saunders (1875) 10 Ch App 582 1875 Sir Charles Hall V-C Land The dominant land at the time of sale contained a house "adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat" on land retained by the vendor. The purchaser subsequently extended the house, "and turned it into a lunatic asylum in which 150 persons were resident" and also "altered the drains and made them all discharge into the ditch or moat". An easement had been expressly granted, in a lease, and enlarged on acquisition of the freehold. The easement was to drain sewage through a drain into an existing open cesspool ditch on the servient property. The change in the dominant tenement caused a large increase in the volume of sewage that went into the open cesspool. Held: "There had been a stipulation in the lease that the buildings were not to be altered without the lessor's consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor, and it must be held that the grant was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings. The Plaintiff, therefore, had not made out a right to the passage of soil and water from the building in its enlarged state. It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition." "It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of a user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle . . . in Williams v James ... as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is, in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase. It had also been argued that the easement must be measured by the quantity which the ditch would contain, but there was no authority for such a doctrine, which would give rise to very difficult questions. Some similar questions might no doubt arise in this case, as the owner of the easement might send down so large a quantity as not to leave room for the quantity sent by the owner of the land, but this would probably be of much less importance.'" 1 Cites 1 Citers Â Bailey v Jamieson (1875-76) LR 1 CPD 329 1875 CCP Lord Coleridge CJ, Denman and Lindley JJ Land There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any access to the footpath from a highway, or any other land to which the public had access. That the earlier stopping up orders had left this isolated footpath appears to have been an error: if a stopping up order had been sought in respect of this footpath also, it seems inevitable that it would have been granted. However, it was not sought. The evidence was that the defendants had no permission from any adjacent landowners to be on their land; so that they could only access the footpath by trespassing on the adjacent land to get to it. The defendants, accused of trespass, relied upon the common law maxim, "Once a highway, always a highway". They submitted that the public footpath could only be extinguished by a stopping up order or other device provided by statute. Held: The court discharged the rule: "A way ceases to be a 'public highway' where the access to it at either end has become impossible by reason of ways leading to it having been legally stopped up." Lord Coleridge CJ said: "It is necessary, therefore, to determine whether or not [the footpath] remains a highway. I am of opinion that it does not. Its character of a public highway is altogether gone." Denman J said that despite the dictum, "Once a highway, always a highway": "I think we are compelled to hold that this is a case where that which formerly was a highway, but which, though it has been not been stopped by statutory process, has, by reason of legal acts at either end of it, ceased to be a place which the Queen's subjects can have access, loses its character of a highway." Lindley J agreed, adding: "[The plaintiff's] argument amounts in substance to this, that there cannot be a public highway public access to which has lawfully been stopped at either end. I agree to that." 1 Citers Â Cattle v The Stockton Waterworks (1875) LR 10 QB 453 1875 Blackburn J Land, Torts - Other The owner of land had contracted with the plaintiff for him to build a tunnel under a road, along which there was a defective water pipe. The pipe leaked, and when the contractor started to dig, the water that had accumulated under the road flowed out, obstructing the works. This either reduced the contractor's profit or caused him to make a loss, and he claimed in Rylands v Fletcher. Held. The contractor had no title to claim. Blackburn J said: "In the present case the objection is technical and against the merits, and we should be glad to avoid giving it effect. But if we did so, we should establish an authority for saying that, in such a case as that of Fletcher v. Rylands … the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and person employed in the mine, who in consequence of its stoppage made less wages than he would otherwise have done. And many similar cases to which this would apply might be suggested. It may be said that it is just that all such persons should have compensation for such a loss, and that, if the law does not give them redress, it is imperfect. Perhaps it may be so. But, as was pointed out by Coleridge, J., in Lumley v. Gye . . Courts of justice should not "allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds, which our law, in a wise consciousness as I conceive of its limited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts." In this we quite agree." 1 Citers Â Hall v Nottingham (1875) 1 Ex D 1; [1875] 45 LJQB 50; [1875] 33 LT 697; [1875] 24 WR 58 1875 Kelly CB, Cleasby B Land The parties sought to establish a customary right to enter on land, erect a maypole and to dance around it, and otherwise to enjoy the land for innocent recreation at any time. Held: The claim was good. A custom might be understood as a local law arising from the assent of the neighbourhood before time immemorial. A customary right over land must be compatible with appropriate seasonable use of the land by the owner. 1 Citers Â Â Wimbledon and Putney Commons Conservators v Dixon; CA 1875 - (1875) 1 Ch D 362 Â Â Wilson v Waddell; HL 1876 - (1876) 2 App Cas 95 Â Â Bain v Brand; HL 1876 - (1876) 1 App Cas 762 Â Â Lysaght v Edwards; 1876 - (1876) 2 Ch D 449 Â Â Hammerton v Honey; CA 1876 - (1876) 24 WR 603 Â Â Smith v Webster; CA 1876 - [1876] 3 Ch D 49 Â Â Cooke v Chilcott; 1876 - (1876) 3 ChD 694 Â Â Regina v Inhabitants of Greenhow; 1876 - (1876) 1 QBD 703; (1876) 45 LJMC 141; (1876) LT 363; (1876) 41 JP 7 DC Â Lyon v Fishmongers' Co (1876) 1 App Cas 662 1876 Land 1 Citers Â Â Sutherland v Thomson; 1876 - (1876) 3 R 485 Â Â Jepson v Gribble; 1876 - (1876) 1 TC 78 Â Ranee Sonet Kooer v Mirza Himmut Bahadoor [1876] UKPC 11 11 Feb 1876 PC Land (Fort William (Bengal)) Question as to mokurreree [ Bailii ] Â Bisheswari Debya v Govind Persad Tewari and Others [1876] UKPC 26 6 May 1876 PC Land (Fort William (Bengal)) [ Bailii ] Â Â Dalton v Henry Angus and Co; 1877 - (1877) 3 QBD 85 Â Â Seddon v Smith; 1877 - [1877] 36 LTR 168 Â Â Attorney-General v Tomline (No 3); ChD 1877 - (1877) 5 Ch D 750 Â Â Egmont v Smith; CA 1877 - (1877) 6 Ch D 469 Â Baylis v Tyssen-Amhurst [1877] 6 Ch 500 1877 Sir George Jessel MR Land In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was claimed was not, however, a fixed and certain number nor a number limited by levancy and couchancy. It was said to be a number dependent on the value of the dominant land relative to the value of the other tenements in respect of which pasturage rights were being claimed "according to a scale fixed by the homage of the manor". 1 Citers Â Â Orr Ewing v Colquhoun; HL 1877 - (1877) 2 App Cas 839 Â Â The Divisional Council of The Cape Division v De Villiers; PC 28-Apr-1877 - [1877] UKPC 14; (1876-77) LR 2 App Cas 567 Â Â Dioru v Lachambre Gautreau and Co; PC 7-Jul-1877 - [1877] UKPC 33 Â Chambers v Kingham (1878) 10 Ch D 743 1878 Fry J Land The court was asked whether a lease vested in an administrator in his own right merged in the reversion held by him as administrator. Held: "mergers are odious in equity and never allowed unless for special reason". There was no merger because the interests were held in different rights. 1 Citers Â Â Dalton v Henry Angus and Co; CA 1878 - (1878) 4 QBD 162 Â Â Bowman v Hyland; 1878 - (1878) 8 Ch D 588 Â McLaren v City of Glasgow Union Railway Co (1878) 5 R 1042 1878 Lord Justice Clerk Moncreiff Land, Scotland The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked. 1 Citers Â Fairclough v Marshall (1878) 4 Ex D 37; [1878] 48 LJQB 146; [1878] 39 LT 389; [1878] 27 WR 145 1878 CA Bramwell LJ Land The plaintiff owned land charged by a previous owner who had rented it subject to the defendant's predecessor subject to a covenant not to use it as an beerhouse. The defendant now used it as a beerhouse, and said that since the plaintiff had mortgaged his interest he had no right to enforce the covenant. Held. The plaintiff could enforce the covenant under the 1873 Act and under the general principles of equity, and did not have to join in his mortgagee. Judicature Act 1873 25(5) 1 Citers Â Cox v Schoolbred Times, 15 November 1878 15 Nov 1878 CA Jessel MR Land Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that "people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using Shooters'-hill". 1 Citers Â Â Sturges v Bridgman; CA 1879 - [1879] 11 Ch D 852 Â Â Leigh v Jack; CA 1879 - (1879) 5 Ex D 264 CA; (1879-80) LR 5 Ex D 264 Â Â Renals v Cowlishaw; 1879 - (1878) 9 Ch D 125 Â Â Lord Advocate v Lord Blantyre; HL 1879 - (1879) 4 App Cas 770 Â Finch v Great Western Railway Company (1879) 5 Exch 254; (1879) 5 Exch D 254 1879 Stephen J Land The extent of the right of way acquired by prescription must be measured by the extent of user during the period of time relied upon. 1 Citers Â Britan v Rossiter (1879) 11 QBD 123 1879 Contract, Land A contract which fails to meet the standards required under the Act is not not void, but is merely unenforceable. Statute of Frauds 1677 3 1 Citers Â Attorney General v Biphosphated Guano Company (1879) 11 Ch D 327 1879 CA Land Land might be dedicated for a term of years only and not in perpetuity, although that had not happened in this case. 1 Citers Â Bolton v Bolton (1879) 11 ChD 968 1879 Land 1 Citers Â M'Adam v M'Adam (1879) 6 R 1256 1879 IHCS Lord President Inglis Land The house referred to "the owner of a personal right to land" to describe the position of an uninfeft proprietor. 1 Citers Â Watson v Gray [1879] Ch D 192 1879 Land 1 Citers Â In Re Banister; Broad v Munton (1879) 12 ChD 131 1879 CA Fry J, Je ssel MR , LJ Cotton Land, Contract Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective. Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure. Fry J said: "It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser." Jessel MR said: "in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division." Cotton LJ said: "but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting." 1 Citers Â Moody v Steggles (1879) 12 Ch D 261; 48 LJ Ch 639; 41 LT 25 1879 Land The owners of a public house claimed the right to affix a sign to the defendant's house, having been so affixed for more than forty years. The houses had been in common ownership, but it was not clear whether the sign had first gone up whilst the properties remained in common ownership. Held: No assumption could be made that it had been erected whilst in common ownership. The interest claimed was in the nature of a legal easement, and a grant was to be presumed. An injunction was granted to support the right. Â Bryant v Lefever (1879) 4 CPD 172 1879 Land A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription. 1 Citers Â Hill v Maclaren (1879) 6 R 1363 1879 Lord Justice Clerk Moncreiff Land, Scotland A servitude right must be exercised "so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor." 1 Citers Â Â Wheeldon v Burrows; CA 1879 - [1879] 12 ChD 31; [1879] 28 WR 196; [1879] 48 LJ Ch 853; [1879] 41 LT 327 Â Â Knight v Pursel; 1879 - [1879] 11 ChD 412 Â Â Renals v Cowlishaw; CA 2-Jan-1879 - (1879) 11 Ch D 866 Â Â Gledhill v Hunter; CA 1880 - (1880) 14 Ch D 492 Â Burgess v Northwich Local Board (1880) 6 QBD 264; [1880] LJQB 219; [1880] 44 LT 154; [1880] JP 256; [1880] 26 Digest (Repl) 352 1880 Lindley J Land, Torts - Other, Local Government In the context of the duty of a local parish to maintain a highway, Lindley J said: "An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair." Counsel accepted that: "There is no authority whatever for indicting a parish in respect of a road being impassable by reason of water, unless of course the water was a consequence of neglect to cleanse ditches or some such omission of duty." 1 Cites 1 Citers Â Lord Advocate v Lord Lovat (1880) 5 App Cas 273 1880 Lord O'Hagan Land Lord O'Hagan considered the nature of possession as regards land: "As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession." Lord Blackburn said: "I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value." 1 Cites 1 Citers Â Rains v Buxton [1880] 14 ChD 537 1880 Fry J Land, Limitation Fry J said: "The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed in by others." A defendant to a claim for adverse possession does not escape it by proving that he had not known of the acts relied upon against him nor by proving that that omission was not attributable to some negligence or default on his part. 1 Citers Â Nash v Eads (1880) 25 Sol J 95 1880 CA Sir George Jessel MR Land Sir George Jessel MR: "The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then said, 'The mortgagor is a member of an old county family, and I don't wish to turn him out of his property, and will not sell it at present,' and then on July 1 he said, 'I have had a quarrel with the mortgagor, and he has insulted me; I will show him no more mercy, but will sell him up at once' - if all this was proved, the Court could not restrain the mortgagee from exercising his power of sale, except on the terms of payment of the mortgage debt. The Court could not look at the mortgagee's motives for exercising his power. Lord Eldon had never said anything of the kind which Vice-Chancellor Stuart supposed him to have said. The Vice-Chancellor was entirely mistaken, and must have been citing the judgments to which he referred from his recollection, without looking at the reports. Of course there were some limits to the powers of the mortgagee. He, like a pledgee, must conduct the sale properly, and must sell at a fair value, and he could not sell to himself. But he was not bound to abstain from selling because he was not in urgent want of his money, or because he had a spite against the mortgagor.". 1 Cites 1 Citers Â Wilmott v Barber (1880) 15 Ch D 96 1880 ChD Fry J Estoppel, Land Fry J set out the test of unconscionability: "A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description. In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do." 1 Citers Â Stevenson v McLean (1880) 5 QBD 346 1880 Land 1 Citers Â Corporation of London v Riggs (1880) 13 Ch D 798 1880 CA Jessel MR Land The court considered whether a right of way of necessity had been granted: "the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the grantor to enable him to get to the reserved, or excepted, or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then that state. There is no distinct authority on the question. It seems to me to have been laid down in very early times that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserve close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, all where the close is reserved, as it is here, as a re-grant." He went on to consider what the necessity of the case required, saying "the object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use not occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is. I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided." 1 Citers Â Rolls v Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785; (1880) 49 LJ Ch 691; (1880) 43 LT 140; (1880) 44 JP 680; (1880) 28 WR 867 1880 CA James LJ Land The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had been vested under the 1855 Act served notices to prevent this. Held: The vesting of the land with the defendants applied only for so long as the land was used as a roadway, and the plaintiff could go ahead. James LJ explaining the difficulties arising out of a provision in the Act: "It appears to me that the legitimate construction of the enactment that streets being highways shall vest is that streets if and so long as they are highways shall be vested. There are no words of inheritance, there are no words of perpetuity in the Act, there is nothing to say whether the streets are to vest in fee simple or for any limited estate, and it appears to me that they are given to and vested in the public body for the purposes of the Act and during the time for which those purposes require them to be held, and no longer. Words of divesting or defeasance are not required, because to my mind the interest of the vestry is exactly like a limited estate. If an estate is given to a woman during her widowhood words of defeasance are not required to divest it on her marriage, because the estate has ceased when the original limit is arrived at. So in this case it appears to me that when the thing has ceased to be a highway, when it has ceased to be a street, then it ceases to be vested, because the period for which it was to be vested in the board has come to an end. " Metropolis Management Act 1855 96 1 Citers Â Attorney-General v Tomline (No 3) (1880) 15 ChD 150 1880 CA James LJ, Cotton LJ, Thesiger LJ Land The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired. Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: "From the time of the determination of Mair's tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before 1833 Act it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute." Cotton LJ said: "the title of the Plaintiffs simply rests on possession, and prima facie a title by possession is a freehold and not a copyhold title." Real Property Limitation Act 1833 1 Cites 1 Citers Â Baboo Het Narain Singh v Baboo Ram Pershad Singh and Another [1880] UKPC 29 12 May 1880 PC Commonwealth, Land Fort William (Bengal) [ Bailii ] Â Â Heath v Pugh; CA 1881 - (1881) 6 QBD 345; [1881] 50 LJQB 473; [1881] 44 LT 327; [1881] 29 WR 904 Â Banner v Berridge (1881) ChD 254 1881 Land 1 Citers Â Â Rayner v Preston; 1881 - (1881) 18 Ch D 1 Â Â Scottish Property Investment Company Building Society v Horne; 1881 - (1881) 8 R 737 Â Â Haywood v The Brunswick Permanent Benefit Building Society; CA 1881 - (1881) 8 QBD 403 Â Â Turner v Walsh; PC 1881 - (1881) 6 App Cas 636; [1881] UKPC 20 Â Â Rosenberg v Cook; 1881 - (1881) 8 QBD 162 Â Gibbons v Gibbons The Younger (1880-81) LR 6 App Cas 471; [1881] UKPC 17 14 May 1881 PC Land (New South Wales) Ascertainment of entitlement to shares in trust for land. [ Bailii ] Â Dalton v Henry Angus and Co (1881) 6 App Cas 740; [1881] UKHL 1 14 Jun 1881 HL Lord Selborne LC, Lord Blackburn, Fry J (advising) Land, Limitation The court explained the doctrine of lost modern grant. Where there has been more than 20 years' uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some reason the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. ". . the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest." Lord Blackburn, delivering the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty: "Ever since Quarman v Burnett (1840) 6 M & W 499, [1840] EngR 182, it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H & N 488, [1861] EngR 170; Pickard v Smith 10 CB (NS) 470, [1861] EngR 71, Tarry v Ashton (1876) 1 QBD 314." Fry J (asked to give his opinion to the house said: "But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest." 1 Cites 1 Citers [ Bailii ] Â Â Sutton v Sutton; 1882 - (1882) 22 Ch D 511 Â Â Fearnside v Flint; 1882 - (1882) 22 Ch D 57 Â Â Goodman v Mayor of Saltash; HL 1882 - (1882) 7 App Cas 633 Â Caledonian Railway Co v Walker's Trustees (1882) App Cas 259 1882 Lord Selborne LC Land, Nuisance The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: "The obstruction by the execution of the work, of a man's direct access to his house or land, whether such access be by a public road or by private way, is a proper subject for compensation." 1 Citers Â Â Neill v Duke of Devonshire; HL 1882 - (1882) LR 8 HL 135; (1882) 8 App Cas 135 Â London and South Western Railway Co v Gomm (1882) 20 ChD 563 1882 CA Jessel MR, Lindley LJ Land 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 to repurchase. Jessel MR set out the basis on which an equitable interest arises in the case of an option: "The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land." He went on to consider the possibility of it being enforced in equity: "With regard to the argument founded on Tulk v. Moxhay, 2 Ph. 774 that case was very much considered by the Court of Appeal in Haywood v. The Brunswick Permanent Benefit Building Society, 8 Q.B.D. 403, and the court there decided that they would not extend the doctrine of Tulk v. Moxhay to affirmative covenants, compelling a man to lay out money or do any other act of what I may call an active character, but that it was to be confined to restrictive covenants. Of course that authority would be binding upon us if we did not agree to it, but I most cordially accede to it. I think that we ought not to extend the doctrine of Tulk v. Moxhay in the way suggested here. The doctrine of that case appears to me to be either an extension in equity of the doctrine of Spencer's case to another line of cases, or else an extension in equity of the doctrine of negative easements. The covenant in Tulk v. Moxhay was affirmative in its terms, but was held by the court to imply a negative. Where there is a negative covenant expressed or implied, the court interferes on one or other of the above grounds. This is an equitable doctrine, establishing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land or on analogy to an easement. The purchaser took the estate subject to the equitable burden, with the qualification that if he acquired the legal estate for value without notice he was freed from the burden." Lindley LJ said that because in Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403 it was sought to extend the doctrine of Tulk v. Moxhay: "to a degree which was thought dangerous, considerable pains were taken by the court to point out the limits of that doctrine. The conclusion arrived at was that Tulk v. Moxhay, when properly understood, did not apply to any but restrictive covenants." 1 Cites 1 Citers Â Cato v Thompson (1882) 9 QBD 616 1882 Land The phrase “a good marketable title” must mean “to the property contracted to be sold”. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or leasehold and without stating that it is subject to incumbrances, it means “to the fee simple free from incumbrances.” 1 Citers Â Austerberry v Oldham Corporation (1885) 29 ChD 750; [1882] 55 LJ Ch 633; [1882] 53 LT 543; [1882] 49 JP 532; [1882] 33 WR 807; [1882] 1 TLR 473 1882 CA Cotton LJ Land Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns. Held: Neither the benefit nor the burden of this covenant ran with the land. A purchaser from the trustees was not bound even with notice of the covenant and of the disrepair. A covenant to perform positive acts is not one the burden of which runs with the land so as to bind the covenantor's successors in title. Cotton LJ said: "Undoubtedly, where there is a restrictive covenant, the burden and benefit of which do not run at law, courts of equity restrain anyone who takes the property with notice of that covenant from using it in a way inconsistent with the covenant. But here the covenant which is attempted to be insisted upon on this appeal is a covenant to lay out money in doing certain work upon this land; and, that being so … that is not a covenant which a court of equity will enforce: it will not enforce a covenant not running at law when it is sought to enforce that covenant in such a way as to require the successors in title of the covenantor, to spend money, and in that way to undertake a burden upon themselves. The covenantor must not use the property for a purpose inconsistent with the use for which it was originally granted; but in my opinion a court of equity does not and ought not to enforce a covenant binding only in equity in such a way as to require the successors of the covenantor himself, they having entered into no covenant, to expend sums of money in accordance with what the original covenantor bound himself to do." 1 Citers Â Earl of Zetland v Hislop [1882] UKHL 1; (1882) 9 R (HL) 40; (1881-82) LR 7 App Cas 427 12 Jun 1882 HL Scotland, Land 1 Cites [ Bailii ] Â Mayor, Constables and Company of the Merchants of the Staple v Bank of England (1887) 21 QBD 160 1883 Wills J Land, Company The sealing of a deed prima facie imported not only due execution but also delivery. "The affixing the seal is not enough; there must be delivery of the deed also …. Prima facie, putting the seal imports delivery; yet, if it be intended otherwise, it is not so …." 1 Citers Â Hollins v Verney (1883) 11 QBD 715 1883 Land A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close. Prescription Act 1832 1 Citers Â Â Dunford v McAnulty; HL 1883 - (1883) 8 AC 456 Â Moore v Shelley [1883] 8 App Cas 285 1883 PC Land Under a mortgage deed, the mortgagor was to remain in possession, and manage it until a default was made. Demand was made during the plaintiff's absence and upon non-payment the person purporting to be the defendant's agent took possession. The plaintiff claimed in trespass. Held: A non-payment where the mortgagor was given no opportunity to verify the identity of the person making the claim was not a default, and the defendant was liable in damages for trespass. 1 Citers Â Pountney v Clayton (1883) 11 QBD 820 1883 CA Bowen LJ Land Bowen LJ was asked as to rights of support to land. He said: 'Prima facie the owner of the land has everything under the sky down to the centre of the earth.' 1 Citers Â Countess of Ossalinsky v Manchester Corporation (1883) Browne & Allen 659 1883 Land, Damages Land bounding Thirlmere in the Lake District was acquired for use as a reservoir to supply water to Manchester. The prospect that the land, because of its particular characteristics, would be likely to be developed as a reservoir was a matter which might give the land an enhanced value. That should be taken into account. The particular purpose to which the Manchester Corporation was going to put the land should not be taken into account. But the fact of the acquisition of the land for this particular purpose might have evidential value showing that suggested alternative reservoir development schemes 'are not visionary, but are schemes with a certain probability in them.' 1 Citers Â In re Sneyd; Ex parte Fewings (1883) 25 Ch D 338 1883 CA Cotton, Fry LJJ Land The mortgagee's costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the equity of redemption, they are added to the amount due under the mortgage and must be paid as a condition of redeeming. Fry LJ said: "When there is a covenant for the payment of a principal sum, and that judgment has been obtained upon the covenant for that sum, it is plain that the covenant is merged in the judgment, and, if there is a covenant to pay interest which is merely incidental to the covenant to pay a principal debt, that covenant also is merged in a judgment on the covenant to the principal debt. Of course a covenant to pay interest may be so expressed as not to merge a judgment for the principal; for instance, if there was a covenant to pay interest so long as any part of the principal should remain due either on the covenant or on a judgment." 1 Citers Â Heywood v Mallalieu (1883) 25 ChD 357 1883 Vice-Chancellor Bacon Land A house was sold at auction by a mortgagee "subject to any easements." It turned out to be subject to an easement in favour of a neighbour entitling her to come and wash her clothes in the kitchen. The vendor's solicitor had been told that the neighbour claimed such a right but made no inquiries because he "was not going to put other people on their guard about mere claims". Held: The solicitor's response was not good enough. The vendor's solicitor had been put on inquiry and had a duty to investigate the claim further. The court dismissed the vendor's action for specific performance, and ordered the return of the deposit. 1 Citers Â Kettlewell v Watson (1884) 26 Ch D 501 1884 Land, Contract A vendor's lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings. 1 Citers Â Re Maddever (1884) 27 Ch D 523 1884 Equity, Land A specialty creditor who applied to set aside a conveyance as fraudulent under the statute 13 Eliz. c.5 was not barred by laches and could be brought at any time before his own claim as a creditor became statute-barred. 1 Citers Â Rolls v Miller (1884) 27 ChD 71 1884 CA Lindley LJ Land The court was asked as to the effect of a restrictive covenant requiring a house not to be used for trade or business. Lindley LJ said that the dictionary meanings of the term 'business' embrace 'almost anything which is an occupation, as distinguished from a pleasure - anything which is an occupation or duty which requires attention is a business.' 1 Citers Â Rolls v London School Board (1884) LR 27 ChD 639 (Ch D) 1884 ChD Land 1 Citers Â Tiverton and North Devon Company v Loosemore (1884) 9 HLC 480 1884 Land After entry onto land under a compulsory purchase order, the Council had a right to possession even though it had been forced out of possession immediately after entry. 1 Citers Â Â Leigh v Dickeson; 1884 - (1884) 15 QBD 60; [1881-5] All ER Rep 1099 Â Howe v Smith (1884) LR 27 Ch D 89 1884 CA Bowen, Cotton, Fry LJJ Contract, Land A contract for the sale of land required the purchaser to pay Â£500 "as a deposit and in part payment of the purchase money", and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency in price as liquidated damages. The purchaser failed to complete and the vendor resold the property for the same price. The question for the Court of Appeal was whether the vendor was entitled to retain the Â£500, having suffered no loss. Held: The court considered the contract and, in particular, what was meant by the words "as a deposit and in part payment of the purchase money". The contract meant that the payment was not to be merely a part payment but also a guarantee of performance, entitling the vendor to forfeit the payment if the purchaser failed to complete. Bowen LJ said: "The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made." 1 Citers Â Great Eastern Railway v Goldsmid (1884) 9 App Cas 927 1884 Lord Selborne Land, Limitation The City of London Corporation had implicitly given up a franchise consisting of an exclusive right to markets within London that had apparently been conferred on it by an Act or charter of Edward III in circumstances in which it had acquiesced for centuries in the holding of other markets. Lord Selborne discussed the reasoning behind te law of prescription: "In the first place, if there be a valuable principle in our law, the observation of which within its proper limits is of cardinal importance, it is this, that all reasonable presumptions shall be made in support and not in destruction of long enjoyment and usage….It is, as I have said, a principle of vital importance to the maintenance of public and private rights in this country, where no law can be repealed by mere desuetude, that reasonable presumptions shall be made of all things which are reasonably possible in support of such long enjoyment." 1 Citers Â Wandsworth Board of Works v United Telephone Co (1884) 13 QBD 904 1884 CA Land, Torts - Other A land-owner had the right to cut a wire wrongfully placed over his property. 1 Citers Â Hollins v Verney (1884) 13 QBD 304; [1884] LJQB 430; [1884] 51 LT 753; [1884] 48 JP 580; [1884] WR 5 1884 CA Lindley LJ Land A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted. Lindley LJ said: "It is difficult, if not impossible, to enunciate a principle which will reconcile all the decisions, and still more all the dicta to be found in them; the only safe course is to fall back on the language of the statute, to give effect to it, and to introduce into it nothing which is not to be found there. It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of twenty years before action. No use can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended. Can an user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute. Without therefore professing to be able to draw the line sharply between long and short periods of non-user, without holding that non-user for a year or even more is necessarily fatal in all cases, without attempting to define that which the statute has left indefinite, we are of opinion that no jury can properly find that the right claimed by the defendant in this case has been established by evidence of such limited user as was mainly relied upon, and as was contended by the defendant to be sufficient in the present case" Prescription Act 1832 1 Cites 1 Citers Â Mann v Brodie (1885) 10 App Cas 378; (1884-85) LR 10 App Cas 378 1885 HL Lord Blackburn, Lord Watson, Lord Kinnear, Lord Atkinson Land The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary to rely on prescription to establish a public way. It was enough that there was evidence on which those who had to find the fact may find that there was a dedication by the owner whoever he was. (Lord Watson) The constitution of such a right according to the law of Scotland does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. The inference of intention to dedicate drawn from long and uninterrupted user as of right was an inference of fact and that the justices were not bound to draw the affirmative inference. Lord Blackburn said that: "where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was." Lord Kinnear said: "The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee." and after emphasising that "the question is whether the facts are sufficient to raise the presumption", he said: "I think it fallacious to assume dedication on a partial view of the evidence, and only after that has been done to inquire whether conflicting facts are strong enough to dislodge a conclusion already reached". And "the presumption cannot be held to be established in law at any intermediate stage of the proof, or until the whole facts and circumstances have been fully considered" and "The question is one of fact, turning upon probabilities of conduct". Lord Atkinson rejected the respondent counsel's argument that there had been a deciation which he summed up as: "Proof of open, uninterrupted, and continuous user raises a praesumptio juris in favour of dedication. If evidence be not produced to rebut this presumption, it must prevail. In the present case there was such evidence of user, no rebutting evidence was produced, the justices were therefore bound in law to find that this way was dedicated to the public, and their decision to the contrary was a decision made without any evidence to support it, and consequently invalid in point of law". Lord Watson explained: "According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. . . I am aware that there are dicta to be found, in which the prescriptive acquisition of a right of way by the public is attributed to implied grant, acquiescence by the owner of the soil, and so forth; but these appear to me to be mere speculations as to the origin of the rule, and their tendency is to obscure rather than to elucidate its due application to a case like the present." 1 Citers Â Marshall and Another v Mcclure and Another (1884-85) LR 10 App Cas 325; [1885] UKPC 15 17 Mar 1885 PC Land, Banking, Commonwealth (Victoria) Claim as equitable mortgagee [ Bailii ] Â In Re Williams (1886) 34 ChD 558 1886 Wills and Probate, Limitation, Land The purpose of the section is to allow time to run against an administrator as from the intestate's death, irrespective of whether a grant of administration has been obtained or not. Real Property Limitation Acts of 1833 6 1 Citers Â In Re Beetham, Ex parte Broderick (1886) 18 QBD 380 1886 QBD Cave, Wallis JJ Land, Equity The Court considered whether certain facts were sufficient to establish an equitable mortgage by deposit of title deeds. Cave J said: "The law on the subject . . forms a branch of the equitable doctrine of the specific performance of oral contracts relating to land based on part performance. It has been held that there is an inference from the mere deposit of title deeds that it was intended to give an interest in the land, and in that way there is something more than a mere oral contract, something in the nature of part performance, so as to take the case out of the Statute of Frauds." 1 Citers Â Homer v Cadman (1886) 50 JP 455 1886 Mathew and Smith JJ Land The appellant had come with a band to the bull ring in Sedgley. A crowd formed for about an hour to listen to him. The magistrate found there was an obstruction of the highway. The appellant contended that there was still space outside the crowd and between it and the footpaths for vehicles and passengers to pass. Held: There was evidence on which the magistrate could convict the appellant of obstructing the highway under section 72. Highway Act 1835 72 1 Citers Â Serff v Acton Local Board (1886) 31 Ch D 679 1886 ChD Pearson J Land A right of way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented. 1 Citers Â Â In Re Bright-Smith; 1886 - (1886) 31 Ch D 314 Â Â Micklethwait v Newlay Bridge Co; CA 1886 - (1886) LR 33 Ch D 133. Â Scott v Pape (1886) 31 ChD 554 1886 CA Cotton LJ, Bowen LJ Land Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired. Cotton LJ said: "In my opinion the question to be considered is this, whether the alteration is of such a nature as to preclude the Plaintiff from alleging that he is using through the new apertures in the new wall the same cone of light, or a substantial part of that cone of light, which went to the old building. If that is established, although the right must be claimed in respect of a building, it may be claimed in respect of any building which is substantially enjoying a part, or the whole, of the light which went through the old aperture. " Bowen LJ said: "Mr Barber endeavoured to persuade us that no right could be enjoyed after the lapse of twenty years if there had been any fluctuation in the measure of the access and use of the light during the twenty years. I cannot myself see that the statute warrants any such view. I should have thought that if there has been a use, for ten years out of the twenty, of a small window, which is enlarged during the remaining ten years of the twenty to double its size, the only right acquired in the twenty years was the right to have arrive for the use of your house the minimum portion of the pencils of light which had passed through this smaller structure; because you could not be said to have enjoyed the larger amount of light for twenty years when you had enjoyed it for ten years only - and I should pause for some time before coming to the conclusion that a man after using the smaller access of light for twenty years through the windows had lost his right to all access whatsoever merely because at some time during that period he had fruitlessly attempted to acquire an enjoyment of more. ... What the person who has acquired the right is entitled to is not the window but the free access of such an amount of light as has passed through that window." 1 Citers Â Elwes v Brigg Gas Co (1886) 33 Ch D 562 1886 Chitty J Land 1 Citers Â Â Darley Main Colliery Co v Mitchell; HL 1886 - (1886) 11 App Cas 127 Â Brown v Allabastor (1887) 37 ChD 490 1887 Kay J Land 1 Citers Â Â Orr Ewing v Colqhoun; 1887 - (1887) 2 App Cas 839 Â Lord Advocate v Young (1887) 12 App Cas 544 1887 Lord Watson, Lord Halsbury, Lord MacNaghten, Lord Fitzgerald (dubitante) Land, Limitation Lord Watson said: "It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend on its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity….. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strictest sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject." 1 Citers Â Newcomen v Coulson (1887) 5 Ch D 133 1887 CA Jessel MR Land The grantee of an easement may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him. 1 Citers Â Charles v Jones [1887] Ch 544 1887 Land 1 Citers Â Mitchell v Cantrill (1887) 37 Ch D 36 1887 CA Cotton, Lindley, Lopes LJJ Landlord and Tenant, Land In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house "with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the conversion or appropriation at any time thereafter of such land for building or other purposes, obstructive or otherwise." A house was built on the adjoining land and this was leased to a Mr Cantrill. Mr Cantrill's executrix sought to build an extension on the Cantrill land which interfered with light to the plaintiff's windows. The plaintiff applied for an injunction to restrain the building works. The question was whether the exception of easements was an agreement or consent for the purposes of section 3. Held: The court eversed the decision of the District Registrar in the Palatine Court, held that the plaintiff was entitled to an injunction. The clause quoted above did not trigger the proviso to s.3. Cotton LJ said: "Now does this clause which I have read bring it within that? In my opinion it does not. It is not an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff's lights. That is the reasonable, and I think, the only meaning of this clause. It was in effect saying, "If I grant this house to you without protecting myself, you will say, if I build up any adjoining house, that is derogating from my own grant; and this clause is to prevent any such contention being made." But if independently of the grant the lessee has enjoyed the use of these windows for twenty years he will have the same right as against the adjoining lessee as against a stranger. There was certainly no case referred to in the argument to shew that such claim as is contended for by the Plaintiff exists. But he has the right simply by the effect and operation, not of the grant, but of the statute, and in my opinion he is entitled to enforce that." Then there was another point which was suggested, that this must be considered an agreement between the landlord and the lessee, that the landlord should be at liberty if he thought fit to do anything, even although it would operate so as to interfere with his right to light; but I do not think that is the true meaning of it. If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort." . .and: "The enactment is this, that the right to light is granted where there has been an enjoyment of the access and use of light for twenty years, "unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." Now does this clause which I have read bring it within that? In my opinion it does not. It is an agreement given for the purpose of the enjoyment of the light, but it is simply an exception out of the grant made of appurtenances and rights, so as to prevent the lessee from urging as against the landlord or anybody claiming through him, before a right had been obtained under the statute, that the landlord could not derogate from his own grant either by his building or granting to anybody else a right to build so as to interfere with the Plaintiff's lights. . . .If you had an express proviso in the contract between the parties that, notwithstanding the grant to the Plaintiff, the landlord should be at liberty to build so as to interfere with his right, that would be another point, but that is not the express form of it, and in my opinion the fair and clear meaning of this clause, construing it without reference to the consequences to one party or the other, is not anything of that sort." Lindley LJ said: "The last words in the section mean that when you find an agreement under which the light is enjoyed you must look at that agreement and see what, if any, right to light is expressly given by it. Here the Plaintiff falls under the words of the statute, and it appears to me the contention of the Defendant is not warranted by the words at the end of the section. There is nothing except the grant coupled with the words which Cotton LJ has alluded to, and which obviously are for the purpose of preserving to the lessee a right, until an adverse right is acquired, of doing what he likes with the adjoining property. Under the grant he could deal with that property as he liked within the twenty years, and within that period he might have blocked up all these lights; but after the Plaintiff has enjoyed them without interruption for twenty years the statute confers upon him the right to their future enjoyment. I think therefore this appeal should be allowed." Lopes LJ saw the exception as directed only to acquisition by the original grant, rather than by subsequent enjoyment. As to the argument that the exception was a consent or an agreement within section 3 he said "for the reasons which have already been given I am clearly of opinion that cannot be brought within those words". Prescription Act 1832 3 1 Citers Â Farrar v Farrars Ltd (1888) 40 Ch D 395 1888 CA Land, Company The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale. Held: A mortgagee in possession exercises a personal right primarily in his own interests as a mortgagee, The self-dealing rule applies in that a mortgagee cannot exercise the power to sell to himself or to a nominee or to a company of which he is the sole director and shareholder, but he can sell to a company in which he has a significant interest but the onus lies on him to justify the terms of sale. The mortgagees had shown that the sale was made in good faith, and at a proper price; with the consequence that the sale stood. 1 Citers Â Birmingham, Dudley and District Banking Co v Ross (1888) 38 Ch D 295 1888 CA Cotton, Lindley, Bowen LJJ Land, Contract Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants' buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action. Held: The court dismissed the appeal. (Cotton LJ) Referring to the Act said that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. When the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. The light then enjoyed could not be considered as enjoyed within the meaning of the section because both parties had no expectation of the continuance of that light. A light enjoyed by a person under the statute must be "that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious" . referred to the implied obligation of a grantor not to interfere with his grant and said "But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties." On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants' rights. (Lindley L.J) Considered it as at the time of the grant "I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important." He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation's land to Daniell's house after the corporation had built what it liked on the other side of the street. (Bowen L.J) Daniell's knew that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road. Conveyancing Act 1881 6 1 Citers Â Â Ex parte Lewis (The Trafalgar Square Case); QBD 1888 - (1888) 21 QBD 191 Â Brown v Alabaster (1888) 37 Ch D 490 1888 Land 1 Citers Â Â Blount v Layard; CA 1888 - [1891] 2 Ch 681 Â Â Regina v Cunningham Graham and Burns; 1888 - (1888) 16 Cox 420 Â Â Spicer v Martin; HL 1888 - (1888) 14 App Cas 12 Â Agency Co Ltd v Short (1888) 13 AC 793 1888 Land Where there has been insufficient adverse possession, it "does not leave behind it any cloud on the title of the rightful owner." 1 Citers Â Re Christchurch Inclosure Act (1888) 38 Ch D 520 1888 Land 1 Citers Â Inland Revenue Commissioners v G Angus and Co (1889) 23 QBD 579 1889 CA Lindley LJ, Lord Esher MR Land, Contract, Stamp Duty Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: "And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be considered as a conveyance in equity, or an 'equitable conveyance.' If that were true, it would be an equitable conveyance of a legal property or a legal right. But let us consider what the doctrine of specific performance is. If the instrument is a 'conveyance' in itself, why do you want a decree for specific performance? If the instrument has conveyed the property to the purchaser, he does not require specific performance of an agreement with reference to his own property which has been already conveyed to him. The fact that the instrument is one of which equity will decree specific performance, fixes it at once as an 'agreement,' and not as a 'conveyance.' It would be a contradiction of terms to say that that which requires a decree for specific performance is in itself a 'conveyance' which has conveyed the property to the purchaser. If there has been a 'conveyance' of the property, you do not require specific performance. If property sold is conveyed by an instrument to the purchaser, and after that conveyance the vendor keeps it, the purchaser's remedy would not be by way of specific performance, but, if the property be personal property, by an action of trover; or, if it be real property, by an action of ejectment. In my opinion, therefore, however clear it may be that an instrument is an agreement of which a Court of Equity would instantly decree specific performance, if it were not performed by the vendor, such an instrument is not a 'conveyance on sale' within the meaning of the Act, but is only an 'agreement'." Stamp Act 1870 70 1 Cites 1 Citers Â Nicholls v Nicholls (1889) 81 LT 811 1889 Land 1 Citers Â Re Fawcett and Holmes' contract (1889) 42 ChD 150 1889 CA Lord Esher MR Land, Contract It was not a sufficient misdescription of land under a contract to allow rescission, that the vendor had no title to 339 square yards out of the 1372 square yards at which it had been estimated. A clause in the contract allowed for a possibility of compensation for any error pointed out before completion. The buyer was restricted to that compensation, and had to proceed to complete. Only covenants relating to benefitted land, and not covenants personal to a vendor, will run with the burdened land. Â The Mutual Provident Land Investing and Building Society Limited v Macmillan and Wife [1889] UKPC 46; (1889) LR 14 App Cas 596 27 Jul 1889 PC Land (New South Wales) [ Bailii ] Â Â Tilbury v Silva; 1890 - (1890) 45 Ch D 98 Â Reilly v Booth (1890) 44 Ch D 12 1890 Lopes LJ Land The express grant of a right over land which would place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land may not constitute the grant of an easement but may be construed as a grant of the fee simple. 1 Citers Â Booth v Ratte (1890) 15 AC 188 1890 Land 1 Citers Â Bourke v Davis (1890) 44 Ch D 110 1890 Kay J Land Kay J considered that a customary right over land might be confined to the inhabitants of a district. 1 Citers Â MacKenzie v Childers (1890) 43 ChD 265 1890 ChD Kay J Land A deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each purchaser covenanted with the vendors and with the other purchasers to conform to certain stipulations restrictive of the mode of building on the plots, but there was no express covenant to the like effect by the vendors. Some of the plots were sold, and the several purchasers executed the deed, as did also the vendors. For twenty years subsequently the stipulations were observed, and as plots were from time to time sold the respective purchasers executed the deed. Held: Kay J discussed the appropriate interpretative techniques to be applied to a recital, saying: "I am clearly of opinion that the recitals in this deed do not mean that the intention was one which the trustees were at liberty to change, but that the meaning is that the land coloured green, whether sold or unsold, should not be used in a manner contrary to the building scheme, or, to take the very point now in controversy, that none of the lots marked on the building plan should have more than one house built on it. Then, if that is the meaning of this deed, what is its effect? It is a deed inter partes, the several parties being the vendors and the purchasers who execute. No formal words are necessary to make a covenant in such a deed. A statement of a binding intention on the part of the vendors who execute the deed, made, on the face of it, for the purpose of inducing the several purchasers to buy, is as good a covenant as could be made by the most formal words." 1 Citers Â Â Philipps v Halliday; HL 1891 - [1891] AC 228 Â Attorney General v Emerson [1891] AC 649 1891 Land, Agriculture Forms of fishing which involve fixtures into the soil of the foreshore are more likely to be regarded as acts of possession of the soil itself than would be more ephemeral forms of fishing. 1 Citers Â Clarke v Ramuz [1891] 2 QB 456 1891 CA Lord Coleridge CJ Land The vendor was accused of failing to prevent a trespasser removing soil from land between exchange and completion. Lord Coleridge CJ said: " in the case of a contract for the sale and purchase of land, although the legal property does not pass until the execution of the conveyance, during the interval prior to completion the vendor in possession is a trustee for the purchaser, and as such has duties to perform towards him, not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and, so far as may be, as it was when the contract was made." 1 Citers Â Â Smith v Andrews; 1891 - [1891] 2 Ch 678 Â Mander v Falcke [1891] 2 Ch 554 1891 Land A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged. 1 Citers Â Laybourn v Gridley [1892] 2 Ch 53; [1892] 61 LJCh 352; [1892] 7 Digest (Repl) 267 1892 North J Land Part of a room protruding into the property conveyed avbove ground level was included in the conveyance. 1 Citers Â Tichborne v Weir (1892) 67 LT 735 1892 CA Land The 1833 Act provided that after 20 years of adverse possession 'the Right and Title' to the land 'shall be extinguished'. Held: By barring the remedy and extinguishing the title of the person out of possession, the Act did not create a new title in the disseisor or convey the dispossessed person's title to him. Real Property Limitation Act 1833 Â Â Salt v Marquis of Northampton; 1892 - [1892] AC 1 Â Metropolitan Railway Co v Fowler [1892] 1 QB 165 1892 CA Lord Esher MR Land Lord Esher MR said: "An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land.." 1 Citers Â Â Hawksley v Outram; CA 1892 - [1892] 3 Ch 359 Â Salt v The Marquess of Northampton [1892] AC 1 1892 Land 1 Cites 1 Citers Â Eyre v New Forest Highway Board [1892] 56 JP 517 1892 Wills J Land Wills J said: "All highways, all rights of passage over the property of individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say he either says in so many words, or he so conducts himself as to lead the public to infer that he meant to say: "I am willing that the public should have this right of passage." If a man has actually conceded that right of passage to the public it is irrevocable, and that is expressed by the maxim with which we are all familiar, I suppose, "once a highway always a highway." Up till the year 1835 when the Highway Act which is the foundation of our present system, was passed, if there was a dedication of a road to the public by the owner either expressed by deed, as occasionally happens, or inferred from public user for such a time as to any tribunal who judges the case will appear sufficient to found that inference, if the proper inference was that he had said or so conducted himself as to imply that he had granted that right of passage to the public; and the public had on their part accepted it and used the road, from that moment there was not only a right of passage on the part of the public but there was the liability to repair on the part of the parish…." 1 Citers Â Phillips v Low [1892] 1 Ch 47 1892 ChD Chitty J Land, Wills and Probate There had been a conveyance of land with a house on it whose window looked onto other land of the vendor. Held: There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of a testator's property to different grantees the same salutary principle that governs the implication and acquisition of easements on the contemporaneous grants to different grantees of properties previously in the ownership of the grantor. 1 Cites 1 Citers Â Virgo v Harford Unreported, 11 August 1892 11 Aug 1892 Land A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset. 1 Citers Â Cooke v Ingram (1893) 68 LT 671 1893 Wright J Land Wright J said: "There is nothing in the original grant of the way which expressly limits the grantee to one line of access or to access only at the points, if any where his land actually adjoined the new way. And the parties certainly acted from the first upon the construction that the grantee was not limited to the shorter line of access, for the track always in fact used was not the shortest. In the absence of any such express limitation and of anything to shew that the right as claimed is unreasonable or destructive of the object of the grant I am unable to see any ground on which any obligation to elect one particular line of access can be implied". 1 Citers Â Ellis v Goulton [1893] 1 QB 350 1893 Land, Contract Under an open contract for the sale of land, the deposit paid by the purchaser to the vendor's solicitor is received as agent for the vendor. Â Â Driver v Broad; 1893 - [1893] 1 QB 744 Â Â Harrison v Duke of Rutland; CA 1893 - [1893] 1 QB 142; (1893) The Times LR 115 Â Â Orr v Mitchell; 1893 - (1893) 20 R (HL) 27 Â Â Powell v London and Provincial Bank; 1893 - [1893] 2 Ch 555 Â Â British South Africa Company v Companhia de Mocambique; HL 1893 - [1893] AC 602 Â Â Haigh v West; CA 1893 - [1893] 2 QB 19 Â Harvey and Another v Facey and others [1893] UKPC 1; [1893] UKPC 46 29 Jul 1893 PC Commonwealth, Contract, Land (Jamaica) [ Bailii ] - [ Bailii ] Â Lancashire v Hunt (1894) 10 TLR 310 1894 Wright J Land A right of common was accepted over land to play cricket and other games on 160 acres of Stockbridge Common Down. The owner applied to prevent a local trainer from exercising his horses over the land. The trainer claimed that he had a customary right to train his horses over the common. Held: The customary right asserted had not been established. However, the inhabitants of the borough did have the right to ride their horses for recreation over any part of the 160 acres. A second claim against villagers who asserted a right to meet on the land and to run fetes and cricket matches failed, since customary rights were established. 1 Citers Â Â In re Clergy Orphan Corporation; CA 1894 - [1894] 3 Ch 145 Â Henderson v Astwood [1894] AC 150 1894 PC Lord Macnaghten Land A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently sold and conveyed the land to a bona fide purchaser for value without notice of the defect in the title. This last-mentioned sale was held to be valid, but the transaction between the mortgagee and his nominee was held to be ineffective to extinguish the equity of redemption. The result was that on the taking of the mortgage account the mortgagor was entitled to the benefit of the sale to the ultimate purchaser. “The so-called sale was of course inoperative. A man cannot contract with himself. A man cannot sell to himself, either in his own person or in the person of another.” 1 Citers Â Lemmon v Webb [1894] 3 Ch 1 1894 CA Lindley, Lopes and Kay LJJ Land, Torts - Other A neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner's land. A similar right of abatement by cutting applied to encroaching roots. Lindley LJ said: "But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case." Kay LJ: "The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so." 1 Citers Â Â Wood v Cooper; 1894 - [1894] 3 Ch 671 Â In re McHenry (1894) 3 Ch 290 1894 CA Lord Herschell LC, Lindley LJ Land, Limitation The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the security on personal property (a scrip certificate of bonds) between the proceeds of the realisation and the amount of the advance. The issue was whether the limitation period ran from the date of realisation of the security, which was within the limitation period, or from the earlier date when the principal sum became repayable. Held: The court rejected the contention that the time only began to run when the security was sold and the actual amount payable was ascertained and that there was a separate claim on the express promise to pay the difference. The cause of action arose when the original mortgage debt became due and that the promise to pay the difference did not create a new debt. Lord Herschell LC: "I cannot say that the right of realisation gave a new, separate and independent cause of action, so that the statute did not begin to run until from that date. The truth is that the debt is one debt only. The second clause of the document did not create a new debt, but only prescribed what should be done in the event of realisation and what should be made of the money realised. The words gave the creditor no right which would not equally have existed without them." Lindley LJ: " The promise to pay the deficiency does not create a new obligation to pay: it only applies the old obligation to a reduced sum. The realisation of the security does not add to the cause of action; the cause of action accrued long before." . 1 Citers Â Chastey v Ackland [1895] 2 Ch 389; [1895] 64 L J QB 523; [1895] 72 LT 845; [1895] 43 WR 627; [1895] 11 TLR 460; [1895] 39 Sol Jo 582 1895 CA Lopes LJ, Lindley LJ Nuisance, Land The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance granted an injunction against the new building. Held: on appeal, that since the defendant was not the originator of the nuisance, the stagnation air caused by the new building was not actionable either as interference with an easement or as a nuisance. The injunction was discharged. A right to air from particular direction can be established by immemorial user, though not by prescription. Lindley LJ said: "speaking generally, apart from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of air is not actionable as a nuisance." 1 Cites 1 Citers Â Shelfer v City of London Electric Lighting Company, Meux's Brewery Co v Same [1895] 1 Ch 287; [1891-4] All ER Rep 838; (1895) 64 LJ Ch 216; (1895) 72 LT 34; (1895) 12 R 112 1895 CA Lindley LJ, A L Smith LJ Nuisance, Damages, Land The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house. Held: The court set out the rules for when a court should not grant an injunction for an infringement of light. The fact that the wrongdoer is in some sense a public benefactor has never been considered a sufficient reason to refuse an injunction against a nuisance he creates. The Act which gave the Courts of Equity a discretion to award damages in place of an injunction did not thereby alter the rules on the grant of injunctions, and where an injunction was a proper remedy, the use of the discretion was not to be used to excuse wrong doing. A party with the benefit of a restrictive covenant is, as a general rule, entitled to an injunction on the trial of the action as distinct from an award of damages unless (1) the injury to the plaintiff's legal rights is small, (2) it is capable of being estimated in terms of money, (3) it can adequately be compensated for by a small payment and (4) it would be oppressive to the defendant to grant an injunction. AL Smith LJ said: "Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which the damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that - (1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: - then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff's legal right to light to a window in a cottage represented by Â£15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the plaintiff is certainly not small; nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment." Lindley LJ said: 'Ever since Lord Cairns' Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that court into a tribunal for legalizing wrongful acts: or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrondgoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrondoer is in some sense a public benefactor (eg a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it.' and "Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy - as where the acts complained of are already finished - an injunction can be properly refused." Chancery Amendment Act 1858 (Lord Cairns' Act) 1 Citers Â Henderson v Dawson (1895) 22 R 895 1895 Lord McLaren Scotland, Land 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 1 Citers Â Manchester Trust v Furness [1895] 2 QB 539 1895 CA Lindley LJ Land, Commercial Lindley LJ said: "In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralyzing the trade of the country." 1 Citers Â Â Re Scott and Alvarez's Contract No 2; CA 1895 - [1895] 2 Ch 603 Â Smith v Wallace [1895] 1 Ch 385 1895 Romer J Land, Contract Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so "fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage of his position, and to leave the purchaser in ignorance whether the contract [is] to be treated as rescinded or not." 1 Citers Â Midland Railway Company v Gribble [1895] 2 Ch 827 1895 CA Land The Act required the railway company to make gates and passages over the railway for the accommodation of the owners and occupiers of land adjoining the railway. The conveyance to the railway company reserved to the landowner and his successors in title a right of way over the level crossing that was made. Held: The right granted by the Act to a landowner owning land on both sides of the railway as an easement. The landowner on subsequently conveying away land on one side, without granting a right of way over the retained land and without reserving a right of way over the land conveyed away, was held to have abandoned his easement over the level crossing. Railway Clauses Consolidation Act 1845 68 Â The Benwell Tower (1895) 72 LT 664 1895 Land Conveyancing Act 1881 1 Citers Â Bradford v Mayor of Eastbourne [1896] 2 QB 205 1896 Lord Russell CJ Land, Local Government, Utilities Lord Russell CJ said of section 13: "the vesting . . is not a giving of the property in the sewer and in the soil . . but giving such ownership and such rights only as are necessary for the purpose of carrying out the duties of a local authority" Public Health Act 1875 13 1 Citers Â Beckenham Urban District Council v Wood [1896] 60 JP 490 1896 Cave J, Wills J Land The court considered at what point a drain became a sewer: "The general rule, as I understand, is, that where a drain receives the sewage of two or more houses it is a sewer; where it receives the sewage of one house only it may still remain a drain, though not necessarily, because it may be a sewer whether it takes the sewage of one house only or no house at all. A main sewer may be laid down by the local authority in a new street where no houses are built, but where it is intended houses shall be built. Subsequently, the buildings may be commenced at the lower end of the street, and when the drains of one house are connected with the main sewer the connecting pipes will be drains and not sewers, but the sewer itself will no less continue to be a sewer, although it receives only the drainage of that one house. And, consequently, a sewer without a drain at all will be a sewer." 1 Citers Â Edwards v Jenkins [1896] 1 Ch 308 1896 Kekewich J Land Application was made to register a customary right over land. Held: The 'locality rule' applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land in Beddington: 'One parish, one custom.' Kekewich J said: "The only question, therefore, is whether it is properly laid in "all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham." It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority". rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes, saying: "But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word "district" as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes. Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case . . He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred. . and should have to decide against the defendants, because they had proved a custom larger than they claimed". 1 Cites 1 Citers Â Gaskell v Gosling [1896] 1 QB 669 1896 CA Rigby LJ (dissenting) Agency, Land The agency of a receiver for the mortgagor is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver. "For valuable consideration he has committed the management of his property to an attorney whose appointment he cannot interfere with" and "a receiver and manager appointed by a mortgagee under an agreement that he shall be the agent of the mortgagor is in the same position as if appointed by the mortgagor himself, and as if every direction given to him emanated from the mortgagor himself." . . And "The following results seem to follow from the principles already states : (a) that creditors cannot be made responsible for the liabilities of a business carried on for the purpose, among others, of securing and paying their debts, even though they may have considerable control: . . (b) that a receiver and manager appointed by a mortgagee under an agreement that he shall be the agent of the mortgagor is in the same position as if appointed by the mortgagor himself, and as if every direction given to him emanated from the mortgagor himself : . . (c) that a mortgagee is not made a mortgagee in possession by such an appointment, and would not be even if the mortgagor appointed him to receive income." Law of Property Act 1925 109 1 Citers Â Paterson v Gas Light and Coke Co. [1896] 2 Ch 476 1896 Land 1 Citers Â Dryburgh v Gordon (1896) 24 R 1 1896 Scotland, Land 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. 1 Citers Â Kirby v Harrogate School Board [1896] 1 CH 437 1896 CA Lindley LJ, Kay LJ, A L Smith LJ Land, Damages The Board had power under the 1870 Act to acquire land to build school accommodation. The 1845 Act was to apply "with respect to the purchase of land" for the purposes of the 1870 Act. The Board began to erect a school building on a site which they had acquired by agreement. The plaintiff alleged that it infringed a restrictive covenant attached to his land, and sought an injunction. Held: The claim failed. The work was authorised by the statute, and the only remedy for the infringement of the private right was a claim for compensation under section 68 of the 1845 Act. Lindley LJ thought the language of the 1845 statute to be unhappy, but: "when regard is had to the object of the section, it would be misreading the Lands Clauses Act if we were to hold that a person injuriously affected by the construction of the works could not have the benefit of section 68 if the company had managed to acquire the land by agreement rather than by the exercise of their compulsory powers. I have not the slightest doubt myself that s. 68 properly applies to all cases of purchase by railway companies under their powers, and to all cases of purchase by school boards under the powers conferred upon them by this Act of 1870." Kay LJ would not confine the words of section 68 to works on land which had been acquired compulsorily. Elementary Education Act 1870 - Land Clauses Consolidation Act 1845 1 Citers Â Plant v Bourne [1897] 2 Ch 281 1897 CA Lindley LJ Land, Contract Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land was receivable. Once that is admitted there is no room for dispute. The general rule applicable was "Id certum est quod certum reddi potest" - "That is certain which can be rendered certain" 1 Cites 1 Citers Â Â Lambeth Overseers v London County Council; HL 1897 - [1897] AC 625 Â Gaskell v Gosling [1897] AC 575 1897 HL Land Affirmed 1 Cites 1 Citers Â Rymer v McIlroy [1897] 1 Ch 528 1897 Byrne J Land B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of Three-acre to C who sought to exercise the right of way over Blackacre. B contended that C had no such right because it was attached only to A's leasehold estate, which had been extinguished. Held: The argument was rejected. The right of way continued for the benefit of the freehold estate. Having regard to "the whole tone and tenour of the deed, and the fact that John Drummond shortly afterwards acquired the fee", he concluded: "The true construction is that, so long as the Drummonds, or either of them, or the heirs or assigns of either of them were interested, this right of way was to subsist. The probability is, and it is not an unnatural inference to draw, that it was within the contemplation of the parties that the Drummonds might obtain the fee simple in one or more of the plots in which they had then only a limited interest, and that in that case the right of way should continue. I can see nothing illegal in such an agreement, and if that is the contract no such doctrine as that the covenant was with the reversioner, who has destroyed the reversion, arises." 1 Citers Â Hobson v Gorringe [1897] 1 Ch. 182 1897 CA Blackburn J Land The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: "the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil." 1 Citers Â Â Chastey v Ackland; HL 1897 - [1897] AC 155 Â Conservators of the River Thames v Smeed Dean and Co [1897] 2 QB 334 1897 CA Chitty LJ, Smith LJ Land, Utilities The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by a Navigation Authority and in all likelihood a nuisance. Chitty LJ said: "The Conservators are a statutory body brought into existence for the purpose of preserving, improving and maintaining the navigation of the River Thames . . but the powers granted to them by the 1894 Act are all subservient thereto and except for these purposes no powers are granted to them at all." The court discussed the meaning of the word 'bed' as to the bed of the river. "bed" in the context of a tidal and non-tidal river meant: ". . the soil or ground which is covered by water in the ordinary course of nature - the ground over which the water flows or on which it lies." Thames Conservancy Act 1894 1 Citers Â Asbury v Asbury [1898] 2 Ch 111 1898 Land A defendant to a claim for adverse possession made by two joint claimants, and who asserts an acknowledgement of his title must show that the acknowledgement was by both claimants. 1 Citers Â Â Bethnal Green Vestry v London School Board; HL 1898 - [1898] AC 190 Â Biggs v Hoddinott [1898] 2 Ch 307 1898 Contract, Land The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money. 1 Citers Â Levy v Stogdon (1898) 1 Ch.478 1898 Stirling J Land, Contract Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld. 1 Citers Â Â In re White's Charities; Charity Commissioners v Mayor of London; 1898 - [1898] 1 Ch 659 Â Forbes's Trustees v Macleod (1898) 25 R 1012 1898 Land 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 appeared from the record to be unqualified, as the assignation to him was ex facie absolute. But he acknowledged in a back letter that the assignation had been made to him in security of the advance, and he undertook to reconvey the bond when the debt had been repaid. The rule that the creditors of the ex facie absolute proprietor could take no higher right than he himself possessed was applied. As soon as the debt was paid, Mr Carrick ceased to have any pecuniary interest in the subjects. So there was nothing left for his creditors to attach. His title was, as Lord McLaren put it at p 1015, merely nominal. 1 Citers Â Titchmarsh v Royston Water Company Limited (1899) 81 LT 673 1899 Kekewich J Land The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult. Held: Kekewich J said: "the peculiar circumstances here are that the land in question is not blocked on all sides, though it is blocked on three sides by land of the vendor. The question arises, is the doctrine which calls into existence a way of necessity applicable to such a case? In the notes in Pomfret v Ricroft it is thus stated: 'where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant; for without it he cannot derive any benefit from the grant.' 'A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.' This statement, by the use of the words 'surrounded with his own land' excludes such a case as this where the granted premises are not surrounded by land of the vendor, but abut on one side on land of a stranger. There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: 'So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere'. For this reference is made to Rolle's Abridgement and Viner's Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has foundered. No such excrescence is justified by the old and often-quoted case all Clarke v Cogge ….where the extension of the doctrine to a reservation in favour of the vendor or as against the purchaser is established. Some argument was addressed to the peculiar feature of this case –viz that the boundary on the fourth side is a highway, and the fact that such highway runs in a cutting, which would make connection with the granted land difficult. There is no occasion to discuss the right of a man whose land adjoins a highway to make, if he has not already got, access thereto, and the difficulty is met by the observation that the very road over which the purchasers claimed a right of way was constructed so as to overcome it, and making a connection between the vendors land – including the part sold – and the same highway and the same cutting." 1 Cites 1 Citers Â Cronin v Sutherland (1899) 2 F 217 1899 Lord Justice Clerk Macdonald Scotland, Land The parties disputed whether a servitude right of passage which had been limited to the use of the road by carts drawn by horses and laden with fuel or manure could be used by the owners of the dominant tenement as a means of egress from their property for vehicles containing the contents of an ashpit. Held: There must be a strict interpretation of the document produced, so as not to make the burden upon the servient tenement more heavy than is the necessary consequence of the grant. 1 Citers Â Bourke v Davis (1899) 44 Ch D 110 1899 Kay J Utilities, Land A public right of navigation over a river is "similar to a right of highway on land not covered by water." Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user. 1 Citers Â Llandudno Urban District Council v Woods [1899] 2 Ch 705 1899 Cozens-Hardy J Torts - Other, Land 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, although he had no right to do what he was doing, it was harming nobody. 1 Cites 1 Citers Â Santley v Wilde [1899] 2 Ch 474 1899 Lord Lindley MR Equity, Land Lord Lindley considered the nature of a mortgage and said: "The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption, and is therefore void. It follows from this that 'once a mortgage always a mortgage,' but I do not understand that this principle involves the further proposition that the amount or nature of the further debt or obligation, the payment or performance of which is to be secured, is a clog or fetter within the rule." Lord Lindley MR said: "a clog or fetter is something which is inconsistent with the idea of security; a clog or fetter is in the nature of a repugnant condition." 1 Citers Â In re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540 1899 Land, Legal Professions The practice of conveyancers of repute was strong evidence of real property law. 1 Citers Â In re Summerson (Note) [1898] S 1192; [1899] 1 Ch 112 23 Feb 1899 Romer J Land The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property had in fact been used for many years in breach of that covenant with the knowledge of the lessor. Held: For more than thirty years the property had been used openly in breach of the covenant, and assignments had been registered with and accepted by the landlord identifying its use as a public-house. Romer J said: "there can be no question as to the purchaser getting a good title. This property was carried on as an inn even before the date of the lease." and "What is the conclusion? Inevitably that there has been a licence, and a binding licence, from the corporation to the lessee to use these premises as a public-house, or a release of this covenant, so far as it affects these particular premises, one way or another." 1 Cites 1 Citers Â Hepworth v Pickles [1900] 1 Ch 108; [1900] 69 LJ Ch 55; [1900] 81 LT 818; [1900] 48 WR 184; [1900] 44 Sol Jo 44 2 Nov 1899 ChD Farwell J Land The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract. Held: His action failed. The covenant had been waived or released. Farwell J said: "if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful." 1 Cites 1 Citers Â
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