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Land - From: 1900 To: 1929

This page lists 185 cases, and was prepared on 02 April 2018.

 
Thellusson v Liddard [1900] 2 Ch 635
1900

Stirling J
Land
It was argued that section 63 of the 1881 Act operated to pass whatever estate, right or interest the conveying party had in the property there being considered at the date of the deed that was relevant in that case. Held: Stirling J approved the argument.
Conveyancing Act 1881 63
1 Citers


 
Abercromby v Fermoy Town Commissioners [1900] IR 302
1900


Land
A right of common over land can take the form of a right for recreation to promenade (or wander) over land and every part of it.
1 Citers


 
Hickman v Maisey [1900] 1 QB 752
1900
CA
A L Smith, Collins, Romer LJJ
Land, Torts - Other
A racing tout used the public highway which crossed the plaintiff's property to watch racehorses being trained on the plaintiff's land. On a particular occasion he walked backwards and forwards on a portion of the highway 15 yards long for a period of about one and a half hours watching and taking notes of the trials of race horses on the plaintiff's land. Held: A man resting at the side of the road, or taking a sketch from the highway, would not be a trespasser. The defendant's activities, however, fell outside "an ordinary and reasonable user of the highway" and so amounted to a trespass.
Smith LJ said: "Unless what the defendant did comes within the ordinary and reasonable use of a highway as such and is therefore lawful, it is clear that it would be a trespass".
Collins LJ (applying Esher's judgment) "in modern times a reasonable extension has been given to the use of the highway as such . . The right of the public to pass and repass on a highway is subject to all those reasonable extensions which may from time to time be recognised as necessary to its exercise in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage."
1 Cites

1 Citers


 
Euro-Diam [1900] 1 QB 1
1900
CA
Kerr LJ
Land
The court must bear in mind when reaching a decision, the 'public conscience' element, weighing, or balancing, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment.
1 Citers


 
Matthews v Usher [1900] 2 QB 535
1900
CA
Romer LJ
Land
Section 25(5) of the 1873 Act did not give to a mortgagor any power of re-entry or right of forfeiture which he did not have before the Act. Romer LJ described the mortgagor's position before the 1873 Act: "He had certain equitable rights and certain restricted legal rights. As an example of the former, he has a right to restrain by injunction the tenant from doing injury to the land. As an example of a legal right, he is entitled to receive the rents payable by the tenant, and to distrain at law as bailiff for the mortgagee. But before the Judicature Act 1873, the mortgagor was not entitled to say that he had the legal reversion which would entitle him to sue on the covenants of the lease. It is clear, having regard to the state of the authorities, that the mortgagor had no implied authority to act on behalf of the mortgagee and re-enter for breach of covenants . ."
Judicature Act 1873 25(2)
1 Citers


 
McEvoy v Great Northern Railway Co [1900] 2 IR 325
1900

Palles CB
Land
The acquisition of an easement by prescription did not require a presumption of grant but the incapacity of the owner of the servient tenement to grant excluded prescription.
1 Citers


 
Littledale v Liverpool College [1900] 1 Ch 19
1900
CA
Lord Lindley MR
Land, Limitation
The mere storage of items in a property was insufficient to demonstrate the necessary intention to dispossess the rightful owner. It was a mere exercise of the rights under an easement. Enclosure of land is not necessarily decisive. Lord Lindley MR said: "In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it."
1 Citers


 
Rogers v Hosegood [1900] 2 Ch 388
1900
ChD
Farwell J
Land
A covenant was given for the benefit of the vendors, their heirs and assigns "and others claiming under them to all or any of their lands adjoining or near to the [premises conveyed]." Held: The words were a sufficient description: "The real and only difficulty arises on the question – whether the benefit of the covenants has passed to the assigns of Sir John Millais as owners of the plot purchased by him on March 25, 1873, there being no evidence that he knew of these covenants when he bought. Here, again, the difficulty is narrowed, because by express declaration on the face of the conveyances of 1869 the benefit of the two covenants in question was intended for all or any of the vendor's lands near to or adjoining the plot sold, and therefore for (amongst others) the plot of land acquired by Sir John Millais." and "Covenants which run with the land must have the following characteristics: (1.) they must be made with a covenantee who has an interest in the land to which they refer; (2.) they must concern or touch the land."
1 Citers


 
Irving v Turnbull [1900] 2 QB 129
1900
QBD
Darling J, Channell J
Land

1 Citers


 
Williams v Scott (New South Wales) [1900] UKPC 27; [1900] AC 499
19 Jun 1900
PC
Davey, Robertson, Lindley LL, Sir Henry de Villiers, Sir Ford North
Commonwealth, Land
New South Wales - title to land - whether purchase from self in a different capacity (as co-trustee) was invalid.
[ Bailii ]
 
Wolverhampton Corporation v Emmons [1901] 1 QB 515
1901

Romer LJ
Land, Construction
The court granted an order for specific performance of a covenant in a building contract. Romer LJ said that the first condition for specific enforcement of a building contract was that "the particulars of the work are so far definitely ascertained that the court can sufficiently see what is the exact nature of the work of which it is asked to order the performance".
1 Citers


 
Whitbread and Co Ltd v Watt [1901 1 Ch 911
1901
ChD
Farwell J
Contract, Land
The purchaser contracted to purchase a plot on a building estate belonging to the vendor. The contract provided that "the purchase is to be completed as soon as 300 houses shall have been erected on the said estate". Thus the contract was one under which completion was conditional. It also contained a provision entitling the purchaser to rescind the contract by giving notice to that effect "if 300 houses shall not be erected on the said estate within two years from the date of this agreement". The purchaser rescinded the contract and claimed a lien to secure repayment to him of the deposit paid by him on signing the contract. The vendor contended that there was no lien as the contract had not gone off due to any default of his. Held: It was not necessary for the purchaser to show any fault on the part of the seller. Farwell J said: "The lien is created by the contract under which the money is paid as part of the purchase-money, and on the faith that the contract will be carried out, and not by default of the vendor. The default gives rise to the necessity for enforcing the lien, but the lien arises from the contract. I see no reason why a condition that, if 300 houses are not built, the purchaser may rescind should be held to differ in any way from the ordinary condition in a contract that, if the purchaser makes or insists upon any requisition or objection to the title which the vendor is unable or unwilling to comply with, the vendor may rescind."
1 Citers


 
Moses v Marsland [1901] 1 QB 668
1901


Land
A 'public building' is a building which the public is invited to enter or to which it can demand admission.
1 Citers


 
Corporation of Truro v Rowe [1901] 2 KB 870
1901

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

 
In re De Falbe [1901] 1 Ch 523
1901
CA
Rigby LJ, Vaughan Williams LJ
Land
The court referred to the originally unbending rule that everything affixed to the freehold was held to go with the freehold: "But in modern times there have come to be important exceptions to this rule, one being in favour of trade fixtures and entitling a person who has put up what are now called 'fixtures' (which means removable fixed things) for the purposes of trade to remove them." and "But the question is, whether they were not made 'fixtures,' meaning thereby objects fixed to the wall which might be removed at the will of the person who had fixed them." The exception included objects which had been affixed to the freehold by way of ornament.
Vaughan Williams LJ said that there was not to be an inquiry into the motive of the person who annexed the articles, "but a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case."
1 Citers



 
 Hunt v Luck; 1901 - (1901) 1 Ch 45
 
Greenhalgh v Brindley [1901] 2 Ch 324
1901


Land

1 Cites



 
 Simpson v Attorney General; 1901 - [1901] 2 Ch 671
 
Burrows v Lang [1901] 2 Ch 502
1901

Farwell J
Land
Discussing the book de legibus et consuetudinibus Angliae by Bracton, and its discussion of the meaning of 'precario' saying it was the same as de gratia, of grace, and in the context of a watercourse. The court asked "What is precarious?" and answered his own question: "That which depends, not on right, but on the will of another person."
1 Citers


 
Te Teira Te Paea and Others v The Roera Tareha and Another [1901] UKPC 50; [1902] AC 56
9 Nov 1901
PC

Commonwealth, Land, Trusts
(New Zealand) The Board was asked whether certain lands allotted to the Maori chief were held for himself or as trustee for other natives.
[ Bailii ]
 
Noakes and Co Ltd v Rice [1902] AC 24; [1901] UKHL 3
17 Dec 1901
HL
Earl of Halsbury LC, Lord MacNaghten, Lord Lindley
Equity, Land
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the security of the mortgage, sell malt liquor in the public house other that that purchased from the brewery. Held: The covenant was not enforceable after redemption of the charge.
Lord MacNaghten said of the rule preventing a clog on the equity of redemption of a mortgage: "Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself. And it is, I think, as firmly settled now as it ever was in former times that equity will not permit any device or contrivance designed or calculated to prevent or impede redemption. It follows as a necessary consequence that, when the money secured by a mortgage of land is paid off, the land itself and the owner of the land in the use and enjoyment of it must be as free and unfettered to all intents and purposes as if the land had never been made the subject of the security."
Lord Lindley said: "My Lords, I agree in thinking that the covenant contained in this mortgage, and by which the mortgagees have attempted to convert the house mortgaged from a free public-house into a tied public-house even after redemption, is invalid. I see no answer to the objection taken to it that upon payment off of the mortgage money the mortgagor cannot get back what he mortgaged, namely, a free public-house."
1 Citers

[ Bailii ]
 
Colquhouns' Trustee v Campbell's Trustees (1902) 4 F 739
1902


Land
Law agents had failed to record two bonds and dispositions granted by the owner of a property in Glasgow in security of loans which their clients had made to him. They then obtained and recorded an ex facie absolute disposition of the same subjects in their own name as security for debts owed by the owner to the firm. This was a fraudulent breach of trust. Held: The decision in Heritable Reversionary Company showed that the estate must honestly belong to the bankrupt, and that the creditors cannot enlarge the estate for distribution by adopting a fraud on the part of the bankrupt or doing something which would have been a fraud if it had been done by him when he was solvent.
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The Earl of Craven v Pridmore and others [1902] 18 Times LR 282
1902
CA
Collins MR
Land
The well established presumption that the boundary of plots of land separated by a hedge and ditch, that the boundary is the hedge on the far side of the ditch is a rebuttable presumption. The question was “how far the presumption had been displaced by evidence of acts of ownership on the part of the defendants."
1 Cites

1 Citers


 
Long Eaton Recreational Ground Co v Midland Railway [1902] 1 KB 574
1902


Land

1 Citers


 
Union Lighterage Company v London Graving Dock Company [1902] 2 Ch 557
1902
CA
Stirling LJ, Romer LJ
Land
Stirling LJ said: "in my opinion an easement of necessity means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property."
Romer LJ said that enjoyment of a right over land will not be clam if it is of "such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment."
1 Citers


 
Economic Life Assurance Society v Usborne [1902] AC 147
1902
HL
Lord Halsbury
Contract, Land
If the loan agreement provides that the contract term for payment of interest survives judgment, then the contract term remains enforceable after judgment. Lord Halsbury said: "My Lords, it seems to me that Fry LJ in the case of Ex parte Fewings . . which has been so often referred to, has with great precision and accuracy put the whole point . . My Lords, if that is accurate, and I believe it to be absolutely accurate and precise, it seems to me that the question is a simple one: it is a question of the construction of this particular deed and the remedy that is now being enforced."
1 Cites

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 Hunt v Luck; CA 1902 - [1902] 1 Ch 428
 
Cathcart v Cathcart (1902) 12 SLT 182
1902

Lord Low
Scotland, Jurisdiction, Land
The Court refused to grant a declarator that the pursuer was entitled to a liferent of land situated in England. Lord Low said: "Real estate in England is beyond the jurisdiction of the Scotch courts . . Further, if decree of declarator in terms of the second conclusion was pronounced, this court would have no power to give practical effect to the right thereby declared. The pursuer would require to go to England to obtain his remedy. Would the English courts, according to the principles of international law, be bound to recognise and act upon the declarator of this court? I am of opinion that they would not . . I think that the answer would be that it was for the court of the country where the real estate was situated to say what was the result, as regards the rights of the parties [of the relevant events]. I am therefore of opinion that the question . . is one with which this court is not competent to deal."

 
London and North Western Railway v Mayor of Westminster [1902] 1 Ch 269
1902


Land
The presumption as to ownership of a lane by adjoining owners, the ad medium filum viae presumption, operates in the absence of evidence to the contrary.

 
Neaverson v Peterborough Rural District Council [1902] 1 Ch 557
1902
ChD
Sir Richard Henn Collins MR
Land
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of "sound and healthy sheep" but with an express prohibition of other animals. Nevertheless the land was in the event used, for over sixty years, for the pasturage of horses and cattle, despite the fact that this involved a danger of damage to the drainage system. Held: If a lost modern grant is to be presumed, it is essential to consider who are to be the supposed grantors and grantees. The defendants' counsel found themselves in considerable difficulties in this respect. The Court is endowed with a great power of imagination for the purpose of supporting ancient user. But, in inferring a legal origin for such user, it cannot infer one which would involve illegality. A lost grant cannot be presumed where such a grant would be in contravention of a statute: "If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period." and "such a grant as is here suggested would have been illegal, whoever is supposed to have made it."
Newborough Inclosure Act 1812
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1 Citers


 
In re Puckett and Smith's Contract [1902] 2 Ch 258; [1902] 71 LJ Ch 666; [1902] LT 189
1902
CA

Land
Land was sold for redevelopment after being described as fit for building, and the vendor knew that this was the purchaser's intention. The contract said that the purchaser should rely on his own inspection, and that the vendor should not be liable for any misdescription. In fact it was not fit for development since it extended over a culvert. This was not ascertainable on an inspection, and was unknown to the vendor also. Held: The purchaser could rescind the contract, since the property was so fundamentally different as not to be the one contracted to buy, and the vendor had therefore failed to make good title.
1 Cites


 
Whitbread and Co Ltd v Watt [1902] 1 Ch 835
1902
CA
Williams LJ, Stirling LJ
Contract, Land
The buyer agreed to buy a house when the developer had finished 300 houses on the site, but now sought return of his deposit. Held: The developer's appeal against an order for the return of the deposit failed.
Williams LJ said: "The lien which a purchaser has for his deposit is not the result of any express contract: it is a right which may be said to have been invented for the purpose of doing justice. It is fiction of a kind which is sometimes resorted to at law as well as in equity. For instance, when an action is brought for money had and received to the use of the plaintiff, it is not true that the money has been so received, but that is the way in which the law states the case in order to do justice. When Lord Westbury in Rose v. Watson speaks of a "transfer to the purchaser of the ownership of a part of the estate corresponding to the purchase-money paid," and Lord Cranworth speaks of the purchaser being exactly in the same position of a mortgagee of the estate to the extent of the purchase-money which he has paid, those expressions are merely verbal vehicles to carry the right which justice demands that the purchaser should have. Having read the report of Rose v. Watson, I must say that, speaking for myself, I agree with Mr. Brinton to this extent, that the decision does not expressly carry the purchaser's lien beyond a case in which the contract has gone off through the default of the vendor."
Stirling LJ said: "It is, I think, quite true, as Mr. Brinton has contended, that the question of the existence of the purchaser's lien for his deposit arises in the present case in circumstances which differ from those of all previous reported cases. The contract has here been brought to an end, not by any act or default of the vendor, but by reason of the purchaser's exercising a power of rescinding it which is reserved to him by the contract itself. This does not seem to have occurred in any previous case. Nevertheless, in the judgments in the two leading cases on the subject, Wythes v. Lee and Rose v. Watson, the rule is stated in terms which cover the present case. And, if we look at that which is really the foundation of the doctrine, namely the desire to do justice as between vendor and purchaser, it appears to me that reason applies no less forcibly in the present case than in the ordinary case in which the rescission of the contract takes place by reason of some default on the part of the vendor. In a case in which the vendor had rescinded under a power reserved to him, it would, I think, be absolute injustice if the purchaser were not allowed to have a lien for the purchase-money which he had paid, and by which was the security on his part for the performance by him of the contract. I think also the justice of the case requires that the purchaser should have a lien when the contract reserves to him a power to rescind."
1 Cites

1 Citers



 
 Attorney-General v Trustees of the British Museum; 1903 - [1903] 2 Ch 598
 
Harvey v Truro Rural District Council [1903] 2 Ch 63
1903

Joyce J
Land
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few years previously a somewhat larger space was required and the surveyor for the highway authority had, without any authority from his employers, arranged to pay the owner of the adjoining land in respect of this. Later the surveyor's action was practically repudiated by the authority. Held: In the case of an ordinary highway running between fences, the right of passage prima facie extended to the whole of the ground between the fences, and the public were not confined to the metalled portion. The mere consent of a highway authority to an obstruction on the highway is ineffectual for the purposes of legalising it. Even if the highway authority had actually consented to any obstruction or encroachment upon the strip being part of the highway, such consent could not legalise that which was otherwise illegal.
Joyce J said: "It is an established maxim that once a highway always a highway. The public cannot release their rights. Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway no length of time during which it may not have been used will preclude the public from resuming the exercise of the right to use it if and when they think proper. The authorities for this are to be found in any of the ordinary text-books on the law of highways, and there is a well-known case where some of the encroachments on the roadside waste had existed for more than forty years, but it was held that no period of modern enjoyment was of any avail to deprive the public of the right they had once enjoyed.
Suppose, then, that in the year 1885 the plaintiff's predecessor in title, as owner of the Trenowth estate, had succeeded in inclosing the strip of land now in question in the absence of effective opposition from the then highway authority, it appears to me that even uninterrupted possession for the seventeen years before the present dispute began would not and could not have legalised the encroachment. "
1 Citers



 
 International Tea Stores v Hobbs; 1903 - [1903] 2 Ch 165

 
 Brocklebank v Thompson; 1903 - [1903] 2 Ch 344; [1903] 72 LJ Ch 626; [1903] 89 LT 209; [1903] 19 TLR 285
 
In re Lloyd; Lloyd v Lloyd [1903] 1 Ch 385
1903
CA

Land, Limitation
The court was asked as to a mortgagee's entitlement to require the mortgagor to pay all arrears of interest as a condition of redemption, even if some of the arrears would be statute-barred if the mortgagee were seeking to recover them by action, or to retain all such arrears on accounting to the mortgagor for the proceeds of a sale by the mortgagee. Held. The mortgagee was not affected by the limitation statute because it was not seeking to recover the interest by bringing an action.

 
Mercer v Liverpool St Helens and South Lancashire Railway [1903] 1 KB 652
1903

Stirling J
Land, Contract
Stirling J: "Now at law a contract for the sale of land creates merely a personal obligation between the vendor and purchaser and does not bind the land; in equity such a contract binds the land and that not only as against the vendor, but also as against all persons claiming under him with notice of the existence of the contract. On the other hand legal rights and interests in and to land bind all persons, whether with notice or not; and I apprehend that rights and interests arising under a notice to treat fall within this rule. It is for this reason, as it seems to me, that it has been held that an interest in land which has been created by the owner after service of a notice to treat is not a subject for compensation under the Lands Clauses Consolidation Act, 1845: see, for example, Ex parte Edwards; Wilkins v Mayor of Birmingham. In accordance with the same principle, it was laid down by Lord Romilly in Carnochan v Norwich and Spalding Ry Co. that the purchase of land in respect of which a railway company has served a proper notice to treat, and in respect of which the company has entered into possession, is 'in truth but the purchase of an interest in the purchase-money'."
1 Citers


 
Cowper v Laidler [1903] 2 Ch 337
1903
ChD
Buckley J
Land, Damages
Buckley J said: "The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the easement."
1 Citers



 
 Mappin Brothers v Liberty and Co Ltd; 1903 - [1903] 1 Ch 118

 
 Gardner v Hodgson's Kingston Brewery Co; HL 1903 - [1903] AC 229
 
Osborne v Bradley [1903] 2 Ch 446
1903
ChD
Farwell J
Land, Equity
The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land and houses to the defendant, subject to the covenants. The defendant lodged plans with the local council to convert the houses into shops.The plaintiff brought an action on a covenant against the purchaser of land subject to a negative covenant. The question arose as to whether the purchaser was liable to the owner of the land who had the benefit of the covenant. This depended on whether or not the covenant was entered into as part of a building scheme. The covenant contained a provision under which the original vendor reserved the right to vary or waive the conditions with regard to unsold lots. Held: The evidence did not establish that the land was part of a building scheme when sold. As to the provision relating to waiver, Farwell J said: "The mere fact that the vendor has reserved to himself the right to vary the conditions as regards unsold property might not by itself be sufficient to prevent the existence of a scheme in respect of the plots sold before that period." Farwell J did not hold that such a provision was invalid.
A failure by the convenantee to pursue breaches of covenant which were minor or insignificant would not be considered by the court as amounting to acquiescence in ordinary circumstances.
1 Citers


 
In re Gough and Aspatria, Silloth and District Joint Water Board [1903] 1 KB 574
1903

Wright J
Land, Damages
On assessment of value for a compulsory purchase of land for a reservoir, if the site had 'peculiar natural advantages' for the supply of water that could be taken into account, but 'there is no value for which compensation ought to be given on this head if the value is created or enhanced simply by the Act or by the scheme of the promoters' .
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Ruscoe v Grounsell (1903) 89 LT 426
1903
CA
Cozens-Hardy LJ, Lord Halsbury LC and Lord Alverstone LCJ
Land, Limitation
A stone tablet had been set into the wall of a building in 1816. I was inscribed "this stone is placed by J to perpetuate R's right to build within nine inches of this and any other building." R was selling part of his land (adjoining the plaque) to J. A buidling was erected next to the sign in 1901. The plaintiff objected that the new building obstructed the light to a window. The defendant relied upon the plaque. Held: The claim succeeded. The defence under section 3 did not suceed because it could not be construed as a consent or agreement within section 3 as regards a right of light.
Lord Halsbury said: "Enjoyment of light for twenty years would prima facie, under section 3 of the Prescription Act 1832, give a right to the light. Those who deny that the right has been acquired must show that the right has been cut down by the proviso to section 3. Looking at what has been done in this case, I will assume that the stone tablet contained an agreement and that it was in writing. But the question still remains whether that which appears upon this stone is an express agreement relating to light and made for that purpose. Looking at the possible reasons why the parties may have agreed to this inscription, I am wholly unable to say that it is so. I cannot say why the parties agreed to put this tablet up. If I were to do so, I should be doing that which the tablet itself has carefully avoided doing. I cannot come to the conclusion that it was in the minds of the parties that this tablet was intended to be a reservation as to the acquisition of a right to light. I can imagine it possible that the parties desired to preserve the boundary, when we see the statement as to "nine inches." I cannot, then, come to the conclusion that the right to obstruct the access of light to the windows of these houses was expressly reserved by an agreement expressly made for that purpose."
Prescription Act 1832 3

 
Mercer v Denne [1904] 2 Ch 534
1904

Farwell J
Land
Fishermen claimed a customary right to spread their nets out to dry on land owned by the plaintiff at all seasonable fishing times. Held: The activity was a good and valid custom, even though it was not a right for recreational purposes but for the purposes of the fishermen's trade as fishermen.
1 Citers



 
 Reynolds v Ashby and Son; HL 1904 - [1904] AC 466; [1904-7] All ER Rep 401

 
 Harris v Flower; CA 1904 - (1904) 74 LJ Ch 127; (1904) 91 LT 816
 
Simpson v Attorney General [1904] AC 476
1904
HL
Lord Lindley
Transport, Land
Lord Lindley said: "the doctrine once a highway always a highway is, I believe, applicable to rivers as to roads"
1 Citers


 
In re Gough and Aspatria, Silloth and District Joint Water Board [1904] 1 KB 417
1904
CA
Lord Alverstone CJ
Land

1 Cites

1 Citers


 
Mercer v Liverpool, St Helen's and South Lancashire Railway [1904] AC 461
1904
HL

Contract, Land

1 Cites

1 Citers


 
Brinckman v Matley [1904] 2 Ch 313
1904

Buckley J
Land
Members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea for bathing.
1 Cites

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Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620
1904
SCS
Lord Kinnear, Lord President (Lord Kinross), Lord Adam and Lord McLaren
Land
First Division of the Court of Session - A claim was made that a railway company, which was a statutory undertaker, was obliged to maintain a railway bridge over which a public right of way. Held: There was insufficient evidence of public user for 40 years.
Also, the public could not acquire a public right of way over the railway by user because it was incompatible with the statutory purposes of the railway company.
Lord Kinnear stated: "I am of opinion, in the first place, that no right of way can be acquired by user over the line of the defenders' railway, and especially at a point where the railway traffic is so great as on the main line close to Portobello station. It must always be presumed that if people having no statutory right of any kind have been allowed to cross the line, their passage is permitted only so long as it does not interfere with the purposes of the railway traffic. . . I am of opinion that no such right can be maintained, and that on the same principle on which it has been repeatedly held that a railway company cannot voluntarily grant a right inconsistent with the performance of the purposes for which it acquired its land. I assent entirely to the doctrine laid down by Lord Watson that the reference to the prescriptive right of way to an implied grant is a juridical speculation to account for an established rule, and not itself a rule of law. But at the same time I do not think it possible that a right of way which it would be ultra vires to grant can be lawfully acquired by user."
1 Citers



 
 Colls v Home and Colonial Stores Ltd; HL 2-May-1904 - [1904] AC 179; 73 LJ Ch 484; 90 LT 687; 53 WR 30; 20 TLR 475; [1904] UKHL 1

 
 Attorney-General v Antrobus; ChD 1905 - [1905] 2 Ch 188
 
Mercer v Denne [1905] 2 Ch 538
1905
CA
Stirling, Cozens-Hardy, Vaughan-Williams LJ
Land
The court was asked whether the custom for fishermen to spread their nets to dry upon a privately owned beach, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed. Held:
Stirling LJ said: "It is next said that a considerable portion of the "beach ground" consists of an accretion during the last fifty or sixty years, and that the custom cannot extend to that part. Custom, it is argued, is a local law, which must have existed from time immemorial - that is, from the beginning of the reign of Richard I - and cannot be applicable to land which can be shewn to have emerged from the sea in modern times. In Rex v. Lord Yarborough . . it was established that lands "formed by alluvion, that is by gradual and imperceptible deposit, on the shore of the sea," belonged, not to the Crown as owner of the foreshore, but to the owner of the demesne lands of a manor, which were formerly bounded by the sea, as parcel of those demesne lands. Every manor must have existed prior to the statute of Quia Emptores; but it was not suggested that the operation of the rule was excluded by reason of the accretions having taken place in modern times. The reason of that rule is stated by Alderson B. in In re Hull and Selby Ry. Co . . to be "that which cannot be perceived in its progress is taken to be as if it never had existed at all." This was approved by Lord Chelmsford in Attorney-General v. Chambers . . and has been applied in the present case by Farwell J., who held that this accretion is to be treated as though it had occurred in 1189."
Cozens-Hardy LJ said: "It is contended that the "local law" can only affect a definite close, which must have been available for the exercise of the customary right in the reign of Richard I., and that the evidence shews that a considerable part of the "beach ground," now eleven acres in extent, was at that time covered by the sea, and therefore could not have been used for drying nets. In my opinion this contention ought not to prevail. It appears certain, from the evidence of geologists and from the discovery of Roman remains immediately to the west of the "beach ground," that at least the western part of the "beach ground" existed in and long prior to the reign of Richard I. in substantially the same condition as it does at present. Within living memory the sea has gradually receded on this part of the coast, but there is nothing improbable in the suggestion that the reverse process may have gone on since the reign of Richard I., with the result that the line of high water is now practically the same as at that date, in which case the point under discussion would not arise. Assuming, however, that the sea has gradually and continuously receded, I think the land which has been added by accretion to the defendant's land must be subject to the customary right. The principle stated by Alderson B. in In re Hull and Selby Ry. Co . . that "that which cannot be perceived in its progress is taken to be as if it never had existed at all" - a principle which is applied between two private owners, and between the Crown and a private owner - should be applied here. In the view of the law this is the same close as that which was affected by the local law in the time of Richard I. It is urged that this extension of area renders the custom uncertain, and, if the sea should still further recede, unreasonable. I cannot assent to that argument. It must not be forgotten that the persons claiming under the custom are bound to exercise their rights reasonably and with due regard to the interest of the owner of the soil."
1 Cites

1 Citers


 
In re Nisbet and Potts' Contract [1905] 1 Ch 391
1905

Farwell J
Litigation Practice, Contract, Land
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the equitable right of persons entitled to the benefit of prior restrictive covenants to enforce them against the land.
Farwell J said: "Covenants restricting the enjoyment of land, except of course as between the contracting parties and those privy to the contract, are not enforceable by anything in the nature of action or suit founded on contract. Such actions and suits alike depend on privity of contract, and no possession of the land coupled with notice of the covenants can avail to create such privity: Cox v. Bishop (1857) 8 De G.M. & G. 815. But if the covenant be negative, so as to restrict the mode of use and enjoyment of the land, then there is called into existence an equity attached to the property of such a nature that it is annexed to and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created by covenant or contract, cannot be sued on as such, but stands on the same footing with and is completely analogous to an equitable charge on real estate created by some predecessor in title of the present owner of the land charged. . . . effect is given to the negative covenant by means of the land itself. But the land cannot spend money on improving itself, and there is no personal liability on the owner of the land for the time being, because there is no contract on which he can be sued in contract."
1 Citers


 
Donnelly v Adams [1905] 1 Irish Reports 154
1905


Commonwealth, Land
(Ireland)
1 Citers


 
Behrens v Richards [1905] 2 Ch 614
1905

Buckley J
Land
Buckley J refused an injunction sought by the owner of land leading to the foreshore against fishermen who used the land to gain access to the foreshore, although he held that the fishermen had established no public right of way by long user. Buckley J said: "I cite again, as I did in Brinckman v Matley, Bowen LJ's words in Blount v Layard [1891] 2 Ch 681n, 691n, 'that nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood,' and 'that, however continuous, however lengthy, the indulgence may have been, a jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence.' In permitting persons to stray along the cliff edge or wander down the cliff face or stroll along the foreshore the owner of the land was permitting that which was no injury to him and whose refusal would have been a churlish and unreasonable act on his part. From such a user nothing, I think, is to be inferred."
1 Citers



 
 Kine v Jolly; CA 1905 - [1905] 1 Ch 480
 
George Molyneux Executor Dative of The Estate of Henry Cowey (Deceased) v The Natal Land and Colonization Company Limited [1905] UKPC 34
3 Jul 1905
PC

Land
(Natal)
[ Bailii ]
 
Kirby v Hunslet Union Assessment Committee [1906] AC 43
1906
HL
Lord Macnaghten,Lord Halsbury
Land, Rating
The Act provided that the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alon Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory's assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it. Held: The House disapproved a distinction based on whether the plant was a fixture, in the traditional land law sense. A factory's assessment to poor rate must be based on the standing equipment of machinery in the factory, irrespective of whether or not it was affixed to the freehold so as to form part of it.
Lord Halsbury said that he would: "decline myself to enter into what I may call the original equities which might have guided this matter. It is, enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely'. that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may hot be attached to the free- hold."
Parochial Assessment Act 1836
1 Citers


 
Quinion v Horne [1906] 1 Ch 596
1906


Land, Contract
The vendor's right to elect to unwind the contract on receiving requisitions on title must not be exercised unreasonably.

 
Fielden v Cox (1906) 22 TLR 411
1906


Torts - Other, Land
The defendants had set up appliances on the highway for the purpose of catching moths. Held: The court discouraged actions for minimal obstructions.
1 Citers


 
In re Nisbett and Potts Contract [1906] 1 Ch 386
1906
CA

Land
The purchaser had agreed to accept a possessory title less than the statutory minimum of 40 years. Held: Even though he or she extinguishes the estate of the paper owner, a squatter takes subject to the incumbrances on the estate that are not barred by his or her adverse possession. He had constructive knowledge of all equitable interests he would have known of if he had insisted on a full title, and therefore he took subject to any restrictive covenants which would have been revealed by a full 40 year deduction of title. The appeal failed.
1 Cites


 
Lord Chesterfield v Harris [1908] 1 Ch 230
18 Nov 1906
ChD
Neville J
Land
A claim was made to an unlimited right of fishing on the River Wye, said to be vested in the freehold tenants of the manor and to have been acquired by prescription. Held: The claim was to a right in the nature of a profit a prendre, and was legally capable of proof.
1 Citers


 
Thompson v Hickman [1907] 1 Ch 550
1907


Land
A conveyance under section 77 of the 1845 Act does not pass the minerals beneath unless they are expressly included in that conveyance, i.e. otherwise they are retained by the vendor. A deed which gave accurate effect to a pre-existing opion could not be rectified to reflect what was claimed to be the true intention of the parties.
Railway Clauses Consolidation Act 1845

 
Andrews v Waite [1907] 2 Ch 500
1907

Neville J
Land
Neville J concluded that, even quite substantial alterations in the fenestration during the prescription period were not of themselves material; what mattered was that the light enjoyed should be the same light as that which was enjoyed throughout the 20 year period.
1 Citers



 
 Morgan v Fear; HL 1907 - [1907] AC 425; 76 LJ Ch 660; 51 Sol Jo 702
 
Metropolitan Water Board v Paine [1907] 1 KB 285
1907

Ridley J
Land, Utilities
The context was used showed that "premises" mean land with buildings. Land still vacant on which the owner proposed in the future to erect buildings did not qualify as premises within section 79 of the 1853 Act.
East London Waterworks Act 1853
1 Citers



 
 Milner's Safe Company Limited v Great Northern and City Railway Company; ChD 1907 - [1907] 1 Ch 208

 
 The Lyttelton Times Company Limited v Warners Limited; PC 31-Jul-1907 - [1907] UKPC 47; [1907] AC 476; [1904-07] All ER 200
 
Stevenson v Glasgow Corporation 1908 SC 1034
1908

Lord M'Laren
Negligence, Land
Lord M'Laren said: "in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law."
1 Citers


 
Corsellis v London County Council [1908] 1 Ch 13
1908
CA

Land
The dedication of land as a highway might occur for a limited term as a result of a an estoppel or contract.
1 Citers


 
In Re Pope ex parte Dicksee [1908] 2 KB 169
1908

Sir Herbert Cozens-Hardy MR
Insolvency, Family, Land
In a post-nuptial settlement, the wife had given up all her rights in return for a transfer to her of property from her husband who was later made bankrupt. Held: Sir Herbert Cozens-Hardy MR said: "I am unable to adopt the view that there must be either money or physical property given by the purchaser in order to bring the case within the exception. In my opinion, the release of a right or the compromise of a claim, not being a merely colourable right or claim, may suffice to constitute a person a "purchaser" within the meaning of section 47".
Buckley LJ disagreed: "The purchaser for valuable consideration within this section must be, I think, a person who gives such a valuable consideration as justifies his being described as a purchaser or buyer. That is only satisfied when the valuable consideration is money or property or something capable of being measured by money. It does not, I think, extend to the surrender of such a right as the right to relief for matrimonial offences."
Bankruptcy Act 1883 47
1 Citers



 
 Elliston v Reacher; ChD 1908 - [1908] 2 Ch 665; [1908-1910] All E Rep 612
 
St Ives Corporation v Wadsworth [1908] Knight's Local Government Reports 306; (1908) 72 JP 73; (1908) 6 LGR 306
1908
ChD
Swinfen Eady J
Local Government, Land
A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they wished. Held: On the facts, the land had been part of an ancient highway and must remain as such. Swinfen Eady J said "The question for decision has reference to a small piece of land in the corner between a bridge over the River Ouse and the defendant's house. The plaintiff's allege that the land is part of an ancient highway, and forms part of the highway today. The defendant claims it as his own property not through his father from whom he derives the house, but solely by title gained by possession for 12 years."
1 Citers


 
Re Whaley [1908] 1 Ch 615
1908

Neville J
Land
Items affixed to a room may become fixtures if the purpose of its affixing be that 'of creating a beautiful room as a whole.'
1 Citers


 
Jones v Pritchard [1908] 1 Ch 630
1908
ChD
Parker J
Land
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to keep the driveway in repair.
1 Citers


 
Holloway v Egham 1908 72 JP 433
1908

Neville J
Land
There will inevitably be a certain amount of user by persons other than the owner or occupiers of property within the estate e.g. officials and tradesmen.

 
Deschamps v Miller [1908] 1 Ch 856
1908

Parker J
Land
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband's after-acquired property. The husband left the wife, went to India, and bigamously married a lady who, for want of a briefer expression, I shall refer to as his de facto wife. He acquired business premises in Madras and other lands there. After living a great many years in India (and having been separated from his de jure wife for 30 years) he put them in trust for the benefit of the de facto wife. These lands, it was said, were after-acquired property within the meaning of the marriage contract, and had been transferred to the benefit of the de facto wife other than for valuable and sufficient consideration, in breach of that contract. After the death of all three members of the triangle, the de jure wife's son, claimed as her successor according to the law of France. He took out English letters of administration of her estate. He claimed to be entitled to a share of the Indian property, and sued the trustees of the Indian settlement. However, according to Indian law the estate of the de facto wife was vested in the Administrator-General of Madras. The parties were personally subject to the jurisdiction of the English court. But the Administrator-General was not a party – even though the point had been taken in the defendant's pleadings.
Held: Even on the facts as alleged, the English court ought not to entertain jurisdiction, because the lands were situate in India. An English court has no power to make orders affecting ownership of land in foreign countries, except where the defendant has assumed a personal obligation to transfer the property to another: "But it is alleged that the conveyances of the husband under which the defendants claim title were not made for good consideration according to French law [i.e. were made at an undervalue], and that consequently, according to the same law, the wife could follow the property and claim it in the defendants' hands. It is obvious, however, that whether or not the wife could assert any interest against land outside France would be governed entirely by the law of the place where the land is situate. If, for example, the land were in England, it would not be enough to prove that according to French law the wife had an interest. In order to assert such an interest against the defendants it would have to be made out either that the defendants were not purchasers for value, or that, though they were purchasers for value, they had notice of the wife's interest under the French contract. Of course a purchase for value under the English law may have a totally different meaning from a purchase for good consideration according to French law; and I am told in the present case that in France good consideration for such a purpose as this means full consideration in money or money's worth. In order, therefore, to decide whether the plaintiff can succeed in following the property into the hands of the defendants I should have to consider the law relating to immovable property in India. Not only may that law differ from the law of England in the extent to which equitable interests are recognized, but also in the importance which attaches to the presence or absence of notice. It may also contain provisions such as the statutes for the limitation of actions or suits, or for the registration of title, which would materially affect the matter I have to decide."
"In my opinion the general rule is that the Court will not adjudicate on questions relating to the title to or the right to possession of immovable property out of the jurisdiction. There are, no doubt, exceptions to that rule, but, without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and so not depend for their existence on the law of the locus of the immovable property. Thus, in cases of trusts, specific performance of contracts, foreclosure, or redemption of mortgages, or in the case of land obtained by the defendant by fraud, or other such unconscionable conduct as I have referred to, the Court may very well assume jurisdiction. But where there is no contract, no fiduciary relationship, and no fraud or other unconscionable conduct giving rise to a personal obligation between the parties, and the whole question is whether or not according to the law of the locus the claim of title set up by one party, whether a legal or equitable claim in sense of those words as used in English law, would be preferred to the claim of another party, I do not think the Court ought to entertain jurisdiction to decide the matter. In the present case there is, in my opinion, no such personal obligation as above mentioned, and I do not think I could assume jurisdiction in this case without acting contrary to the decision in Norris v. Chambres."
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Cable v Bryant [1908] 1 Ch 259
1908

Neville J
Land, Landlord and Tenant
A tenant sought a right to ventilation enjoyed by land let to a tenant. It was argued that there could be no implied easement over adjoining property of a lessor where the adjoining property was already let out. It would be an easement in reversion. Held: The court avoided a decision on the point by resort to the doctrine of non-derogation from grant, which prevented the lessor and his successors from interfering with the lessee's use of the dominant land after the lease of the servient land had fallen in.
1 Citers


 
Elliston v Reacher [1908] 2 Ch 665
2 Jan 1908
CA
Lord Cozens Hardy MR, Farwell J
Land
Lord Cozens Hardy MR said: "It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it."
Farwell J referred to Osborne v Bradley, and said: "With reference to the power of the vendor to vary the conditions, I pointed out in Osborne v. Bradley that it was one element to consider and assist the Court in arriving at the conclusion of fact whether there was or was not a scheme, and nothing more than that. I never intended to suggest that it was fatal to the existence of a scheme."
1 Cites

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Lord Chesterfield v Harris [1908] 2 Ch 397
27 Jun 1908
CA
Cozens-Hardy MR, Buckley LJ
Land
The court considered the acquisition of a profit a prendre of fishing, by prescription over a stretch of the River Wye. Held: Lord Chesterfield'a appeal succeeded. To be valid, a profit appurtenant must, as I have said, be limited and that limit is assessed by the "needs of the estate".
Buckley LJ considered that "At this point I emphasize again that the defendants make no claim in gross. It may well be that there can exist in law a right in gross to enter and take without limitation - without stint - the profits or proceeds of another's land commercially for the purposes of sale. But prescription in a que estate, being a prescriptive right in respect of particular land to a profit a prendre in alieno solo, is, I think, necessarily measured by the size or nature or wants of the estate in respect of which the prescription is made. Thus if it be for common of pasture it must be for cattle levant and couchant; that is to say, it must be limited by the number of cattle capable of being supported during the winter upon the estate in respect of which the prescription is made." or "[prescription] must be for a profit a prendre measured by the nature, size and necessities of the estate".
He rejected an argument that a "common of piscary" stood in a different position to other rights of common, for example, the right to pasture which is referred to in the above quotation, the right to turbary and suchlike.
1 Cites

1 Citers


 
Reid v Bickerstaffe [1909] 2 Ch 305; [1908-1910] All E Rep 298
1909
CA
Cozens Hardy MR, Buckley LJ
Land
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so established.
Cozens Hardy MR sad: "What are some of the essentials of a building scheme? In my opinion there must be a defined area within which the scheme is operative. Reciprocity is the foundation of the idea of a scheme. A purchaser of one parcel cannot be subject to an implied obligation to purchasers of an undefined and unknown area. He must know both the extent of his burden and the extent of his benefit. Not only must the area be defined, but the obligations to be imposed within that area must be defined. Those obligations need not be identical. For example, there may be houses of a certain value in one part and houses of a different value in another part. A building scheme is not created by the mere fact that the owner of an estate sells it in lots and takes varying covenants from various purchasers. There must be notice to the various purchasers of what I may venture to call the local law imposed by the vendors upon a definite area."
Buckley LJ: 'For the application of the principle of that case it is, I think, essential to establish as matter of fact the following state of things: that the vendor expressly or by implication contracted with the defendant in the action or his predecessor in title (whom I will call the purchaser) upon the footing that at the date of that contract the vendor told the purchaser that he was proposing to deal with a defined estate in a defined way, and that he offered to sell to the purchaser a plot forming a part of that defined estate on the terms that the purchaser should enter into such restrictive covenants relating to his plot as the scheme contemplated upon the footing that the purchaser should reciprocally have the benefit of such restrictive covenants relating to the other plots on the estate as were indicated by the scheme. There can be no building scheme unless two conditions are satisfied, namely, first, that defined lands constituting the estate to which the scheme relates shall be identified, and, secondly, that the nature and particulars of the scheme shall be sufficiently disclosed for the purchaser to have been informed that his restrictive covenants are imposed upon him for the benefit of other purchasers of plots within that defined estate with the reciprocal advantage that he shall as against such other purchasers be entitled to the benefit of such restrictive covenants as are in turn to be imposed upon them. Compliance with the first condition identifies the class of persons as between whom reciprocity of obligation is to exist. Compliance with the second discloses the nature of the obligations which are to be mutually enforceable. There must be as between the several purchasers community of interest and reciprocity of obligation.' and

'There can be no building scheme unless . . . the nature and particulars of the scheme shall be sufficiently disclosed for the purchaser to have been informed that his restrictive covenants are imposed upon him for the benefit of other purchasers of plots within that defined estate with the reciprocal advantage that he shall as against such other purchasers be entitled to the benefit of such restrictive covenants as are in turn to be imposed upon them.'
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Turner v Walsh [1909] 2 KB 484
1909
CA
Farwell LJ
Land
The landlord sought to enforce the tenant's repairing covenants. After the tenancy had been created, he had charged his interest. The tenant said that, since the lessor had conveyed his interest by way of mortgage, the right to sue lay exclusively with the mortgagee. Held: Section 10 of the 1881 Act conferred on a mortgagor, whose land was let before the execution of the mortgage, the right to sue on the tenant's covenants.
Farwell LJ set of the historical purpose of section 10: "The section provides, in our opinion, for two distinct matters, quite independent one of the other: it first annexes rent and the benefit of covenants to the reversion, notwithstanding the severance of such reversion, and it then makes rent recoverable and covenants enforceable, 'by the person from time to time entitled, subject to the term, to the income of the whole or any part' of the demised land. .
The question then becomes simply one of fact: Who is entitled to the income of the mortgaged property? Where land is both demised and mortgaged, the answer depends on whether the mortgagee has taken possession or given notice of his intention to take possession of the mortgaged property or not: if he has done so then he is entitled; if he has not, the mortgagor was always and is still so entitled, and he receives and retains such income for his own benefit without any liability to account either at law or in equity.

The 10th section makes no alteration in the rights of anyone, but merely alters procedure, so as to give the right of action to the person entitled to the proceeds of such action. This is plain if the true nature and character of a mortgage is borne in mind; it is a mere security for the debt, and (subject to the paramount liability to this debt) the mortgagor retains an estate which can be granted and demised, and which descends to the heir. .
As to the "practical difficulties" for the mortgagor in enforcing the lease covenants, it was probable that difficulty seldom arose, because it was to the interest of the mortgagee as well as of the mortgagor that the lessee's covenants should be performed: "It is plain, therefore, that a construction of s 10 that obviates these technical difficulties interferes with no rights, but merely simplifies procedure. It is urged that s 10 falls under Part III of the Act, headed "Leases," and that "Mortgages," form Part IV, and that mortgages would have been expressly mentioned in s 10 if leases of land in mortgage had been intended. We are unable to follow this. The Act is not constructed in watertight compartments. The object of the Act was to amend the law of property generally, and mortgages and leases constantly overlap; there are probably few large estates in England all or parts of which have not been in mortgage for the last two centuries at least. The words in s 10, "person entitled to the income," are perfectly general. "Income," by s 2(3) includes "rents and profits," and it would be difficult to find a better definition of a mortgagor in possession than the person entitled to the rents and profits of the land, or to the income thereof, if the land is subject to a lease. It is certainly in accordance with the intention expressed in s 25(11) of the Judicature Act, 1873, that this should be so, and it seems probable that when, in 1878, it was suggested in Fairclough v Marshall 4 Ex D 37 that s 25(5) had this defect, s 10 of the Conveyancing Act, 1881, was framed designedly to cure it."
Conveyancing Act 1881 10
1 Citers


 
In re Lucas and Chesterfield Gas and Water Board [1909] 1 KB 16
1909
CA
Fletcher Moulton LJ, Vaughan Williams LJ
Land, Damages
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and exploit the water collected in it. In these circumstances, and bearing in mind the "value to the owner" principle, could the site's suitability for use as a reservoir enhance its value to the owner for which the Water Board should pay? Held: When assessing compensation on the compulsory purchase of land, the value to the owner, as distinct from the value to the purchaser, is 'to be estimated as it stood before the grant of the compulsory powers'. This was an absolute rule. 'The owner is only to receive compensation based upon the market value of his lands as they stood before the scheme was authorized by which they are put to public uses.' Where the special adaptability of land gives the land a special value which exists only for a particular purchaser with compulsory powers, that value cannot be taken into consideration when fixing the price. It is otherwise where the special value exists also for other possible purchasers so as to create a real though limited market for that special value.
Fletcher Moulton LJ had a restrictive approach: “The scheme which authorises the new reservoir only entitles the owner of the land to receive as compensation the value of the land unenhanced by that scheme, and, unless its situation and peculiarities create a market for it as a reservoir site for which other possible bidders exist, I do not think that the single possible purchaser that has obtained parliamentary powers can be made to pay a price based on special suitability merely by reason of the fact that it was easy to foresee that the situation of the land would lead to compulsory powers being some day obtained to purchase it.”
1 Citers


 
Attorney General v Shadwell [1910] 1 Ch 92
1910

Warrington J
Land, Limitation
Land in Northholt was granted under the 1841 Act for use as a school. In 1907 the school was closed, another school having been opened by the local authority nearby. Thereafter the building was used only once a week for a Sunday school. The Board of Education contended that there had been no reverter because although the land was no longer being used for the general education of poor persons, use as a Sunday school provided them with "religious and useful knowledge". The argument of Mr Cave KC for the successor to the grantor was that a reverter occurred if the land ceased to be used for the statutory purpose chosen by the grantor. It did not matter that it was still being used for some other purpose which he could have chosen but did not: "The provision for reverter means that the land is to revert if it ceases to be used for such of the purposes of the Act as are specified in the grant, namely, in this case, the first purpose only." Held: Warrington J accepted this argument, saying that the Act specified three purposes and that "the grantor may select his own purpose from amongst those three". "you must read 'the purposes in this Act mentioned' as meaning such of those purposes as are applicable to the case in question" and "looking at the substance of the matter, as I consider I am bound to do, I must hold that the premises have ceased to be used for the purposes in the Act mentioned."
School Sites Act 1841 82
1 Citers



 
 Butler v Rice; 1910 - [1910] Ch 277

 
 Airdrie Magistrates v Lanark County Council; 1910 - [1910] AC 286
 
Central London Railway v City of London Land Tax Commissioners [1911] 1 Ch 467
1911

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

 
Shepherd v Croft [1911] 1 Ch 521
1911

Parker J
Land
Parker J said that "the mere fact that a natural watercourse is culverted or piped by the several owners of the lands which are intersected by it does not make it a drain or sewer so as to vest it in the local authority" under the 1875 Act.
Public Health Act 1875
1 Citers


 
Denaby and Cadeby Main Collieries v Anson [1911] 1 KB 171
1911

A T Lawrence J, Fletcher Mpulton LJ
Land
A right of public navigation includes the necessary incidents of such passage including the right to drop an anchor. In principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a vessel which, at least for some of the time, floats above that part and does not always rest on it.
Fletcher Moulton LJ said that it was wrong to seek to balance real or supposed advantages against encroachments upon public rights
1 Citers


 
Lord Chesterfield's Settled Estates [1911] 1 Ch 237
1911


Land
Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures.
1 Citers


 
Williams v The Sierra Leone Coaling Company and Another [1911] UKPC 38
24 May 1911
PC

Land
Sierra Leone - claim for reconveyance of land on discharge of mortgage
[ Bailii ]
 
Lord Chesterfield v Harris [1911] AC 623
17 Jul 1911
HL
Earl Loreburn LC, Shaw of Dunfermline, Ashbourne LL
Land
The House considered the nature and ownership of fishing rights on the River Wye. Freeholders in adjoining parishes had been fishing a non-tidal portion of the river for centuries, not by stealth or indulgence, but openly, continuously, as of right and without interruption, and not only for sport or pleasure, but commercially, in order to sell the fish and make a living by it. The riparian owners, the now respondent Lord Chesterfield and a Mrs Foster asserting ownership of the bed of the river brought an action of trespass against the freeholders for fishing. Mr Harris, one of them, now appealed. Held: The appeal failed (Majority, Earl Loreburn LC, Shaw of Dunfermline, and Ashbourne LL dissenting). S legal origin for the right claimed by the freeholders could not be presumed, and the action lay at the suit of the riparian proprietors. A prescription in a que estate for a profit a prendre in alieno solo without stint and for commercial purposes is unknown to the law.
Earl Loreburn LC did not find it necessary to address whether, inter alia, an appurtenant right of fishery could be for more than was needed for consumption on the land, or whether it could be without stint.
He said: "To begin with, it is common ground that at one time this hundred, or manor, was terra regis, and most probable that the manor, or hundred, included all the stretch which is now in question. We know that in quite early times the King alienated the riparian land; whether with or without the bed of the river usque ad medium filum is left in doubt by the terms of such of his grants as are extant and have been produced. We know that his grantees, in fact, suffered (and I cannot suppose this was out of mere good nature for so many hundred years) a continuous fishing by the freeholders under claim of right. A legitimate inference is that before he granted the land he had previously granted his right of fishery. Nor is it strange if he did so. At the time of Domesday Book this was border land contiguous to Wales, a country still the scene of fighting, or in which the King was obliged to have fighting men ready for action, and among them the men of Irchenfield, whose privilege it was to form the vanguard in attack and the rearguard in retreat, as Domesday informs us. It would be natural enough that he should give them a right of fishery, and that they should repay him by a promise of service . . All this is far beyond human ken; but that in some way the King made a grant of this fishery seems a very natural supposition, and it is our duty, as I understand the law, to presume it was granted lawfully if it could be granted at all. The alternative is that the freeholders have been poachers for all these centuries. That would be the most violent presumption I ever heard of."
Lord Ashbourne (dissenting) said: "I have come to the conclusion that it is reasonably possible and probable that the right claimed had a legal origin. The King may have made a grant to freeholders of the area of fishing in gross, and this may have made them a corporation; or the King may have made a grant to an existing corporation upon trust for the freeholders."
Lord Shaw (dissenting) said: "I think, accordingly, that this is pre-eminently a case for the application of the principles of the case of Goodman v. Saltash Corporation. I do not see my way to hold that the right thus asserted and enjoyed for centuries must now be declared to be void and of no effect because it is inconsistent with legal concepts. It appears to me, on the contrary, that the rights of fishing as asserted and enjoyed by these freeholders may, on the principles of Goodman's Case, with perfect propriety be presumed to have had a legal origin."
1 Cites

1 Citers


 
In re Connolly Brothers Ltd (No. 2) [1912] 2 Ch 25
1912
ChD
Buckley LJ, Sir Herbert Cozens-Hardy MR
Land
A company had granted a debenture over all its assets, present and future. Wished to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the propertyat £1,100, with £150 deposit on exchange. The company duly paid the deposit. On completion (at which the lender was present), the lender's cheque for £1,000 was paid into the company's bank account and the company paid the balance of the purchase price (amounting to £950) to the vendor in cash. The same solicitor acted for the vendor, purchaser and lender. The solicitor retained the title deeds, on behalf of the lender. A few days later, the company executed a memorandum of deposit (an equitable charge) in the lender's favour. Warrington J had held that the equitable charge in favour of the lender took priority over the debenture, saying: "the company . . never acquired as against [the lender] any interest in this property at all, except subject to the obligation of giving her a charge for the amount of the purchase-money which she . . advanced." Held: The appeal failed. Since the lender had a contractual right to the security at the time when she advanced the money, she necessarily had priority over the debentures. During argument for the appellant debenture-holders, Buckley LJ identified the question at issue as being "whether the company acquired the property unfettered by any charge to the lender."
Sir Herbert Cozens-Hardy MR said: "we should be shutting our eyes to the real transaction if we were to hold that the unincumbered fee simple in the property was ever in the company so that it became subject to the charge of the debenture-holders.
1 Citers


 
Great Central Railway Company v Balby-with-Hexthorpe Urban District Council [1912] 2 ChD 110
1912

Joyce J
Land
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the red section). Held: Joyce J said: "[The railway company] say reasonably, I think, by reason of the case of Bailey v Jamieson, that if both ends of a piece of land, which is subject to a public right of way, are closed, and there is no access to the intervening piece for the public, then the latter as a matter of fact is also closed, although perhaps, technically there may still be some public legal rights existing in respect of it." and "I think, however, that if the rights of way are extinguished over the yellow, then, on the authority of this case of Bailey v Jamieson, the railway company would have established that the public rights over the red and yellow were gone."
1 Cites

1 Citers


 
Lingke -v -Christchurch Corporation [1912] 3 KB 595
1912
CA
Vaughan Williams LJ, Fletcher Moulton LJ, Buckley LJ
Land
The householder sought compensation under the Act, for the disturbance in the laying of a drain in the highway abutting the claimant's house and furniture shop. Because of the constraints of the work site, excavated soil had been thrown up against the house and shop, with the result that access to the property (particularly for movement of furniture) was seriously impeded. The Act provided for the payment of compensation where any person sustained damage by reason of the exercise of powers under the Act. Held: Compensation was payable. Referring to Herring, hoardings "are the sort of things that it is recognised that people may do in respect of the highway which although they physically obstruct, do not constitute an obstruction of the King's highway for the purpose . . of civil action" and "Putting it shortly, those obstructions which are absolutely necessary for the convenient and safe user of the highway are not deemed by the law to be obstructions of the highway for the purposes of indictment or for the purposes of the individual causes of action . ." and "If there is a public right such as the user of a street and it is interfered with by an individual, that interference does constitute an actionable wrong . ."
Public Health Act 1875
1 Cites

1 Citers


 
Staffordshire and Worcestershire Canal Navigation v Bradley [1912] 1 Ch 91
1912


Land

1 Citers


 
Kynoch Limited v Rowlands [1912] 1 Ch 527
1912

Joyce J, Fletcher Moulton LJ
Land
The parties owned adjoining agricultural land divided by a dry ditch. The Plaintiffs built an enclosing wall on their own side of the ditch, cutting themselves off from access to the ditch. Held: The true boundary between the properties lay along the middle line of the ditch. The erection of the wall accordingly left unenclosed a narrow strip of land belonging to the Plaintiffs; the real boundary, though known to both parties, remaining unmarked. The Plaintiffs afterwards brought an action to restrain the Defendant from trespassing on the strip by tipping earth and rubbish upon it and against the wall. The Defendant contended that by the erection of the wall the Plaintiffs had abandoned the strip and that the Defendant had acquired exclusive possession and retained it for more than the period required to establish a possessory title under the Statute of Limitations then in force. The only evidence of such possession by the Defendant was that cattle belonging to its tenants had been allowed to graze such herbage as grew in the ditch and on the strip between it and the wall. There had been no abandonment or discontinuance of possession by the Plaintiffs. "It would be disastrous to hold that the mere occasional straying of cattle over a known boundary by reason of there not being a fence or anything of that kind is, as against the true owner, an act of such exclusive possession as will enable the trespasser whose cattle have strayed over the boundary to acquire a statutory title. In my opinion, this is a perfectly plain case."
1 Citers


 
George Attenborough and Son v Solomon [1912] UKHL 4; [1913] AC 76
19 Nov 1912
HL
Viscount Haldane LC
Wills and Probate, Land
The court asked whether an executor could validly pawn an asset of the estate. Also, the transfers of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which have become operative because of the assents of them made by her executors.
1 Citers

[ Bailii ]
 
Flynn v Harte [1913] 2 IR 322
1913

Dodd J
Land
Dodd J said: "Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking the law ... The question in most cases is convenience or "cussedness"? ..."
1 Citers



 
 Schweder v Worthing Gas Light and Coke Co (No. 2); 1913 - [1913] 1 Ch 118

 
 White v Grand Hotel Eastbourne Ltd; 1913 - [1913] 1 Ch 113
 
Gee v Liddell [1913] 2 Ch 62
1913
ChD
Warrington J
Land, Equity
A co-mortgagor has an "interest in [and] a charge upon the estate of the principal debtor". An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of "a charge upon the estate of the principal debtor by way of indemnity for the purpose of enforcing against that estate the right which [the beneficiary] has, as between [the beneficiary] and the principal debtor, to have that estate resorted to first for the payment of the debt"
1 Citers



 
 Harpur v Mayor of Swansea; HL 1913 - [1913] AC 567

 
 Lewis v Meredith; 1913 - [1913] 1 Ch 571
 
British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another Times, 18 April 1913
18 Apr 1913

Lush J
Land
Light fittings were not shown by the evidence to be part of the electrical installation in a flat, and therefore were not fixtures but fittings.
1 Citers



 
 Peters v Sinclair; 6-May-1913 - 1913 CanLII 8 (SCC); 48 SCR 57
 
The Attorney General for The Provinces British Columbia v The Attorney General for The Dominion of Canada and Another [1913] UKPC 63; [1914] AC 153
2 Dec 1913
PC
Lord Haldane LC
Commonwealth, Land, Agriculture
Canada - Lord Haldane set out the principles under which fishery rights might be acquired by prescription.
Fish stocks are a public resource, and there is no property in fish until they are caught. The right to fish in tidal waters or in the sea was a right of the public in general and was not dependent on any proprietary title. Interference with such right would at common law be actionable as a public nuisance.
Viscount Haldane LC, speaking for the Privy Council, said: "In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise."
1 Citers

[ Bailii ]
 
Church of Scotland Endowment Committee v Provident Association of London Ltd [1914] SC 165; 1913 2 SLT 412
1914


Land

1 Citers


 
Pettey v Parsons [1914] 2 Ch 653
1914
CA
Pickford LJ, Lord Cozens-Hardy MR and Swinfen-Eady LJ
Land
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which ran roughly north-south. This parcel of land was then subdivided and within it and next to the footpath on its southern side was No 93 which fronted onto Charminster Road. The land of No 93 ran back to the private road. Mr Parsons sold No 93 to Mrs Pettey (the plaintiff). It was agreed between them that the footpath to the north of No 93 should be widened, so the existing fence on the north side of the footpath was set back a further 6 feet. That footpath/road was also conveyed to Mrs Pettey in the same conveyance. But Mr Parsons reserved to himself as vendor, and as owner of the land lying to the north of the footpath/road, a right of way to himself, his tenants, servants and all others authorised by him or them "to pass and repass . . with or without animals, carts and carriages" over and along the pathway/road, but no vehicle was to remain stationary on it.
Mr Parsons then built new shops on the land which he had reserved to himself to the north of the footpath/road. The shops nearest the footpath/road were not built right up to it but set back a little and the fronts of them were in an arc, leaving a roughly triangular space between the shops and the footpath/road which, at this point, had no fence on it. This triangular-like open space between the footpath/road down to Charminster Road was about 16 feet 2 inches (or very nearly 5 metres) long on the footpath/road side of it. Mrs Pettey then put up a fence along this 16 feet 2 inch stretch ie. on her land but at the boundary of her land and that of Mr Parsons. She also put up a gate at the eastern end of the footpath/road which could be fastened back to the wall of No 93. Both were removed (one way or another) by Mr Parsons.
Mrs Pettey sought declarations that she was entitled to erect the gate and the fence, but she said that she was prepared to put a gate in the fence so that Mr Parsons could have reasonable access to the footpath/road from his land. Held: The erection by the servient owner of a building that encroached by, say, one foot on to a ten foot wide domestic driveway would not constitute an actionable interference with a right of way over the driveway. Where a right of way was granted over a roadway, but no point of access specified, the only limitation should be that of reasonableness.
The erection of a gate across the right of way was not necessarily a sufficiently substantial interference with the right of way to be actionable. Whether there was a substantial interference was a question of fact in each case.
Lord Cozens-Hardy MR said that the issue of whether there was a right to enter on the footpath/road "merely by defined gates or passages" or whether there was a right to enter "at any other place where it is desired" was a question of the construction of the deed itself. He regarded Mr Parson's case as a "wholly untenable proposition" at least after the construction of the shops.
1 Citers


 
Pastoral Finance Association v The Minister [1914] AC 1083
1914


Land

1 Citers


 
Cedars Rapids Manufacturing and Power Co v Lacoste [1914] AC 569
1914
PC
Lord Dunedin
Land, Damages
Land at the St Lawrence river was to be valued for a compulsory purchase. Held: Value does not mean the value of 'the realized undertaking as it exists in the hands of the undertaker'. It means the price which possible undertakers would give. This should be tested by the imaginary market which would have ruled if the land had been exposed for sale 'before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realized possibility', and "For the present purpose it may be sufficient to state two brief propositions: (1) The value to be paid for is the value to the owner as it existed at the date of the taking, not the value to the taker. (2) The value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined. Where, therefore, the element of value over and above the bare value of the ground itself (commonly spoken of as the agricultural value) consists in adaptability for a certain undertaking …. the value …. is merely the price, enhanced above the bare value of the ground which possible intended undertakers would give. That price must be tested by the imaginary market which would have ruled had the land been exposed for sale before any undertakers had secured the powers, or acquired the other subjects which made the undertaking as a whole a realised possibility."
1 Cites

1 Citers



 
 Mitchell v Mosley; CA 1914 - [1914] 1 Ch 438; [1914] LJCh 438; [1914] 109 LT 648

 
 Petty v Parsons; CA 1914 - [1914] 2 Ch 653

 
 Folkestone Corporation v Brockman; HL 1914 - [1914] AC 338
 
London County Council v Allen [1914] 3 KB 642
1914

Scrutton J
Land
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of benefitting, and it was conceded that the covenant did not run with the land at law. The land was sold to the defendant who had notice of the restrictive covenant, but built upon the land. The plaintiffs sought to enforce the covenant. Held: The purchaser was not bound at law or in equity despite notice if the covenantee is not in possession of or interested in the land which was intended to benefit. Scrutton J described the mischief arising on the sale of land by local authorities: "For I regard it as very regrettable that a public body should be prevented from enforcing a restriction on the use of property imposed for the public benefit against persons who bought the property knowing of the restriction, by the apparently immaterial circumstance that the public body does not own any land in the immediate neighbourhood. But, after a careful consideration of the authorities, I am forced to the view that the later decisions of this Court compel me so to hold."
1 Cites

1 Citers



 
 Inland Revenue Commissioners v Clay; CA 1914 - [1914] 3 KB 466
 
Whiteley v Delaney [1914] AC 132; 83 LJ Ch 349; 110 LT 434; 58 Sol Jo 218
1914
HL
Viscount Haldane LC
Land, Equity
A farm in Yorkshire had been charged by O first to A and then to the plaintiff, and the charges registered under the Yorkshire Registry Acts. An attempt was made to sell of part of the land by o to his daughter to repay some of the money. She sought, through her solicitor W, a contributor to repay the first loan. Parties were unaware of the first charge. Completion and registration took place. A was repaid by the contributor who now said that instead of the charge being discharged, he now stood in A's stead with a first mortgage. Held: He was not entitled to priority. There had been a common mistake, induced by O, and the deeds as framed, and with his involvement, did not represent the intentions of the parties. The question of merger must, therefore, be decided according to the doctrines of equity, and the principle by which the Court of Equity is guided is the intention.
A purchaser from a mortgagor and a first mortgagee can always, if he chooses, keep the first mortgage alive and so protect himself against subsequent incumbrances and whether or not he had notice.
1 Citers



 
 Pwllbach Colliery Co v Woodman; HL 1915 - [1915] AC 634
 
A G of Southern Nigeria v John Holt and Company (Liverpool) Limited [1915] AC 599
1915
PC
Lord Shaw of Dunfermline
Land
The right to use servient land for the purpose of storage was claimed. It was argued that such a right could not exist as an easement. Held: Lord Shaw of Dunfermline said: "there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such."
1 Citers


 
Howard v Miller [1915] AC 318
1915

Lord Parker of Waddington
Land
The trusteeship which arises as between a vendor and purchaser of land depends on the availability of specific performance. Lord Parker of Waddington said: "It is sometimes said that under a contract for the sale of an interest in land the vendor becomes a trustee for the purchaser of the interest contracted to be sold . . but however useful such a statement may be as illustrating a general principle of equity, it is only true if and so far as a Court of Equity would under all the circumstances of the case grant specific performance of the contract."
1 Citers


 
South Eastern Railway Co v London County Council [1915] 2 Ch 252
1915

Eve J
Land
Compulsory purchase - compensation assessment - "Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded."
1 Citers



 
 Hurst v Picture Theatres Ltd; CA 1915 - [1915] 1 KB 1

 
 Eastwood v Ashton; HL 1915 - [1915] AC 900
 
McGregor v Crieff Co-operative Society Ltd 1915 SC (HL) 93
1915
HL
Earl Loreburn LC, Lord Dunedin
Land

1 Citers


 
Anderson v Dickie [1915] UKHL 5
22 Apr 1915
HL

Scotland, Land

[ Bailii ]
 
Steedman v William R Drinkle and Another [1915] UKPC 71; [1916] AC 275
21 Dec 1915
PC
Viscount Haldane
Commonwealth, Land, Equity
(Saskatchewan) Land in Canada was purchased under an agreement, where the price was to be paid by one initial payment and annual instalments. If the purchaser was to default on any payment, the vendor was free to cancel the agreement and to retain, as liquidated damages, the payments already made. It was also provided that time was to be considered as of the essence of the contract. The first deferred payment was not made on the due date. The vendor gave notice cancelling the agreement. Three weeks after the due date the purchaser tendered the amount due, which was refused. He thereupon brought an action claiming specific performance and relief from forfeiture of the amount already paid. Held: The Board upheld the decision of the Canadian Court, that the stipulation as to the retention of the sums already paid was a penalty. But the Board declined to grant specific performance.
Viscount Haldane said:
"Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance where justice requires it, even though literal terms as to stipulation as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of the bargain".
And "As to the relief from forfeiture, their Lordships think that the Supreme Court was right in holding, for the reasons assigned in the former decision of this Board, that the stipulation in question was one for a penalty, against which relief should be given on proper terms. But as regards specific performance they are of opinion that the Supreme Court was wrong in reversing the judgment of Newlands J. Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties, having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach."
[ Bailii ]
 
Webster v Bakewell Rural District Council (No 2) (1916) 115 LT 678; (1916) LJ Ch 89; (1916) 80 JP 437; (1916) 14 LGR 1109
1916


Land, Litigation Practice
The plaintiff was life tenant of a cottage adjoining the highway. Over a period of time, scrapings from the road had accumulated to form a bank which suited the plaintiff. The defendant, wanting to repair the roadway, removed the bank, and the plaintiff sued. Held: The plaintiff's claim had no prospect of success, and was to be struck out as an abuse of process. The authority had acted within its rights and no actionable damage had arisen.
1 Citers


 
Schwann v Cotton [1916] 2 CH 459 CA
1916
CA

Land, Utilities
Blackacre, Greenacre and Whiteacre had all formerly been in common ownership and the owner of Whiteacre denied that Blackacre was entitled to an easement to pass the water from Greenacre to Blackacre. Held: The Will which effected' the severance of the three properties operated to devise Blackacre with the right of passage of such water as might flow through the pipe and to devise Whiteacre subject to such a right. Further, although the right of Blackacre to a supply of water from Greenacre had not been established, the possible lack of any right to such water as against Greenacre did not impair the validity of the right to the passage of water through Whiteacre. In considering an easement for a water supply the court drew a crucial distinction between a right to supply of water and a right to the passage of water. The obligation was limited to a duty to allow water to flow along the pipe. It was not a duty to supply water.
1 Citers


 
Charlotte Brickles Executrix of The Estate of Isaac Brickles Deceased v William H. Snell [1916] UKPC 75; [1916] 2 AC 599
25 Jul 1916
PC

Commonwealth, Land
Canada - Appeal against order made on application for specific performance of contract by the deceased for the sale of land.
[ Bailii ]
 
Moody v Cox and Hatt [1917] 2 Ch 71
1917
CA
Lord Cozens-Hardy MR, Scrutton LJ, Warrington LJ
Legal Professions, Land, Trusts
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of a will trust, and were selling as such. In addition Hatt acted as solicitor for the purchaser Moody. The contract price was £8,400. Moody complained that Cox had failed to disclose to him a valuation showing the property to be worth less than the contract price, and that Cox had expressly asserted that the cottages were worth £225 each when he knew that they were worth less. A "clean hands" issue arose from the fact that Moody had paid two sums of £100 to Cox as a sweetener. Since Hatt and Cox were selling as trustees, they had a duty to their beneficiaries to obtain the best price reasonably obtainable. It was argued that this modified the extent of Hatt's duty, as a solicitor, to Moody as his client. Held: The argument was decisively rejected. A fiduciary with two principals must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other:
Lord Cozens-Hardy MR said: "A man may have a duty on one side and an interest on another. A solicitor who puts himself in that position takes upon himself a grievous responsibility. A solicitor may have a duty on one side and a duty on the other, namely, a duty to his client as solicitor on the one side and a duty to his beneficiaries on the other; but if he chooses to put himself in that position it does not lie in his mouth to say to the client 'I have not discharged that which the law says is my duty towards you, my client, because I owe a duty to the beneficiaries on the other side'. The answer is that if a solicitor involves himself in that dilemma it is his own fault. He ought before putting himself in that position to inform the client of his conflicting duties, and either obtain from that client an agreement that he should not perform his full duties of disclosure or say - which would be much better - 'I cannot accept this business.' I think it would be the worst thing to say that a solicitor can escape from the obligations, imposed upon him as solicitor, of disclosure if he can prove that it is not a case of duty on one side and of interest on the other, but a case of duty on both sides and therefore impossible to perform."
Scrutton LJ referred to evidence given by the defendant solicitor, Mr Cox to the effect that he, Cox, knew that the price the client, Moody, was paying for the cottages was a good deal more than the value that had been placed on the cottages for probate purposes and that he, Cox, had not told the client the amount of the probate valuation.
He continued: "A man who says that admits in the plainest terms that he is not fulfilling the duty which lies upon him as a solicitor acting for a client. But it is said that he could not disclose that information consistently with his duty to his other clients, the cestius que trust. It may be that a solicitor who tries to act for both parties puts himself in such a position that he must be liable to one or the other, whatever he does. The case has been put of a solicitor acting for vendor and a purchaser who knows of a flaw in the title by reason of his acting for the vendor, and who, if he discloses that flaw in the title which he knows as acting for the vendor, may be liable to an action by his vendor, and who, if he does not disclose the flaw in the title, may be liable to an action by the purchaser for not doing his duty as solicitor for him. It will be his fault for mixing himself up with a transaction in which he has two entirely inconsistent interests, and solicitors who try to act for both vendors and purchasers must appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relation puts upon them."
1 Citers


 
Stickney v Keeble [1915] AC 387
1917
HL
Lord Parker of Waddington
Land, Contract
The purchaser had made repeated complaints about the seller's delay in completing construction. Held: The repeated complaints formed a principal ground for justification of the short specified notice period.
Lord Parker of Waddington set out the principles by which to assess the reasonableness of a time specified in a notice for the completion of the construction of a property: "The time limited by such a notice is sometimes referred to as having become, by virtue of the notice, of the essence of the contract. In considering whether the time so limited is a reasonable time the Court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts: Macbryde v Weekes (1856) 22 Beav 533. Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so. It would be unjust and inequitable to allow the vendor to put forward his own unnecessary delay in the face of the purchaser's frequent requests for expedition as a ground for allowing him further time or as rendering the time limited by such a notice as that to which I have referred an unreasonable time."
1 Citers


 
Alderdale Estate Company v McGrary [1917] 1 Ch 414
1917
CA
Lord Cozens-Hardy MR, Warrington LJ. and Lawrence J
Land, Contract

1 Citers


 
Re Daniel, Daniel v Vassall [1917] 2 Ch 405; 87 LJ Ch 69; 117 LT 472; 33 TLR 503; 61 Sol Jo 646
1917


Land, Contract
The vendor of land who, whether through innocent or wiful default, or with or without bad faith, fails to do everything possible to make good title, makes himself liable in damages for the general losses of the purchaser, including any loss of bargain.
1 Cites


 
Selby v Whitbread and Co [1917] 1 KB 735
1917

McCardie J
Land
McCardie J considered the tension between the common law and statute: "An examination of the code shows that common law rights are dealt with in a revolutionary manner. The two sets of rights . . are quite inconsistent with one another. The plaintiff's common law rights are subject to the defendant's statutory rights. A new series of respective obligations have been introduced, the common law was seen to be insufficient for the adjustment of modern complex conditions. Hence I think the Act . . is not in addition to but in substitution for the common law for matters which fall within the Act. It is a governing and exhaustive code and the common law is, by implication, repealed."
1 Citers


 
Fraser v City of Fraserville [1917] AC 187
1917
PC
Lord Buckmaster
Land, Damages
One ground on which the arbitrators' valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the enhanced value emanating from a reservoir being built by the acquiring authority higher up the river. Held: The question of what is the scheme is a question of fact. "…. the value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired …."
1 Cites

1 Citers



 
 Greenock Corp v Caledonian Railway Co; HL 23-Jul-1917 - [1917] UKHL 3; [1917] AC 556; 1917 SC (HL) 56

 
 Morris v Baron and Co; HL 1918 - [1918] AC 1

 
 Collis v Amphlett; CA 1918 - [1918] 1 Ch 232
 
Miller v Tipling (1918) 43 DLR 649
1918

Mulock CJ Ex
Commonwealth, Land
(Ontario Court of Appeal) Mulock CJ Ex said: "The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where the way has been used in accordance with the term of the grant for the benefit of the land to which it is appurtenant, the party having thus used it must retrace his steps. Having lawfully reached the dominant tenement, he may proceed therefrom to adjoining premises to which the way is not appurtenant; but if his object is merely to pass over the dominant tenement in order to reach other premises that would be an unlawful user of the way".
1 Cites



 
 Nesbitt v Mablethorpe Urban District Council; 1918 - [1918] 2 KB 1

 
 McGrory v Alderdale Estate Co; HL 1918 - [1918] AC 503
 
Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533
1919
PC

Land, Commonwealth
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as "66 3/4 acres, or thereabouts", but included a description by reference to physical features on the ground which would have resulted in an area of 160 acres. There was evidence that the Watcham family had never occupied the more extensive area, part of which had been occupied without objection from them by someone else. Held: The evidence was admissible as an aid to construction, to show that the description in the certificate must be "falsa demonstratio". In a conveyancing matter, it may be possible to take into account the subsequent behaviour of the parties to interpret what was intended by the conveyance.
1 Citers


 
Vandeleur v Sloane [1919] IR 116
1919


Land, Ireland

1 Citers


 
Re Lyne-Stephens and Scott-Miller's Contract [1920] 1 Ch 472
1920
CA

Contract, Land, Landlord and Tenant
A vendor of a house was entitled to retain the benefits of payments from a tenant made between contract and completion, because the vendor had sold the house but not yet also the benefit of the lease.
1 Citers


 
Hemmings v The Stoke Poges Golf Club Limited [1920] 1 KB 720
1920
CA

Landlord and Tenant, Land
The defendant landlord had entered the demised property, in which the plaintiff and his wife were living, and removed them and their furniture, using no more force than was reasonably necessary to do so. The landlord had an immediate right to possession because the tenant's right to live in the property depended upon his continuing to work for the landlord, which he no longer did. Held: The plaintiff had no right of action against the defendant even if the actions of the landlord were a crime under 5 Ric 2, stat 1 c 7. No civil wrong is done by turning out a trespasser using no more force than is reasonably necessary.
1 Citers


 
Lord Northbourne v Johnston and Son [1922] 2 Ch 309, 319
1920

Sargant J
Land
Sargant J: 'Benefit or detriment is often a question of opinion on which there may be the greatest divergence of view, and the greatest difficulty in arriving at a clear conclusion.
1 Citers


 
Hanbury v Bateman [1920] 1 Ch 313
1920


Land
In the course of commenting on a discussion about the effect of section 63 of the 1881 Act: "The effect of the Act may be this, that a conveyance will have the effect of conveying every estate and interest which the person conveying can convey . . [but] I do not think you can read the definition clause of the Act so as to provide that a conveyance shall operate not only to convey everything that the person could convey, but also to appoint everything he could appoint."
Conveyancing Act 1881 63
1 Citers



 
 Colquhoun's Curator Bonis v Glen's Trustee,; 1920 - 1920 SC 737
 
Hansford v Jago [1921] 1 Ch 322
1921

Russell J
Land
The fact that a way is not itself made up or identifiable on the ground may not be fatal to the establishment of an easement under Wheeldon v. Burrows or section 62 of the 1925 Act, if the ends of the way are apparent and it is clear that it was the intention of the parties to the conveyance that there was to be a way between the two ends.
Law of Property Act 1925 62
1 Citers


 
Madrassa Anjuman Islamia of Kholwad v Municipal Council of Johan-Nesburg [1922] 1 AC 500
1922
PC
Viscount Cave
Land
"The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, . . At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time, . . Its precise meaning in any particular statute . . must depend on the purpose for which, and the context in which, it is used."
1 Citers


 
Porter v Ipswich Corporation [1922] 2 KB 145
1922

Greer J
Land
Greer J said: "The expression 'dedicated to public use' is used in reference to land which itself remains the property of the owner in fee of the soil, but for some definite purposes is dedicated to public use."
1 Citers


 
Golden Bread Co. v Hemmings [1922] 1 Ch 162
1922


Land, Contract
Where there was a contract for the sale of premises together with the goodwill of the business carried on from the premises, there was a duty on the vendor not to let the business lapse, and to inform the purchaser with reasonable promptitude of what he was doing.
1 Citers


 
Macedo v Stroud [1922] 2 AC 330
1922
PC

Commonwealth, Land, Equity, Registered Land
(Trinidad) The donor purported to give real property (in part) by memorandum which was not registered. Under the law of Trinidad the transfer did not pass any estate or interest in the land. The donor delivered the instrument to his solicitor telling him to keep the document and not to register it. The document accordingly remained in the solicitor’s custody unregistered until the death of the donor, who during his life continued to receive the rents. The judge found that the instrument was intended to operate as an immediate and unconditional gift to the donee. Held: The memorandum not having been registered nor delivered to the donee for that purpose there was an imperfect gift of the properties with which it dealt to which equity could not give effect: "The memorandum of transfer was never made the subject of registration, nor did the donor present it, or hand it to the transferee, for that purpose. It therefore, having regard to the terms of the ordinance, transferred no estate or interest either at law or in equity. At the most it amounted to an incomplete instrument which was not binding for want of consideration. Had it been in terms a declaration of trust, a Court of equity might have compelled the trustee to carry out the trust, which would have been binding on him, even if voluntary. But it does not purport to be a declaration of trust, or anything else than in inchoate transfer. As such, and as it is voluntary, it is no more than an imperfect gift of which a Court of equity will not compel perfection."
1 Cites

1 Citers


 
Cruise v Terrell [1922] 1 KB 664
1922
CA
Lord Sterndale MR
Land
The plaintiffs stayed at weekends at a cottage let for a fixed term of one year. The contractual term ended on 25 March 1921 and was not renewed. On 7 April, in the absence of the plaintiffs, the defendant sent the local blacksmith to the cottage, who broke into the premises and put a new lock upon the door and locked it. The plaintiffs sued in trespass. The defendant pleaded by way of defence that the tenancy had determined by effluxion of time; in the alternative he counterclaimed for possession of the cottage on one of the statutory grounds. The trial Judge awarded damages for trespass, but made an order for possession on the counterclaim. The defendant appealed. Held: the Court rejected the contention that the Act of 1920 had no application to a tenancy for a term certain. The Court then asked whether the effect of the Act was that the defendant’s forcible re-entry constituted a trespass.
Lord Sterndale, Master of the Rolls: "The next point is that assuming the Act does apply and that the plaintiffs are statutory tenants, the Act does not prevent a landlord from exercising a right of re-entry where he is entitled to an immediate order for possession under section 5 of the Act, which order it is contended when obtained relates back to the date of his entry. That point was, however, decided against the appellant in Remon v City of London Real Property Co. It is said that in the judgments in that case the point is dealt with by dicta only. In my opinion they are not dicta , but, even if they are, they are dicta from which we ought not to differ, and by which we are bound.”
Lord Justice Scrutton: “As to the second point it was said that the Act did not destroy the common law right of the landlord to enter. It will not help him to enter, but if he gets in peaceably he is in his right. It is that argument that as a member of the Court in Remon v City of London Real Property Co I listened to from Mr Romer and in my view we decided against it. It is true that in that case the landlord had not obtained an order for possession under s. 5 of the Act, as he did here, but in my view the object of the Act was to fetter landlords and to take away their common law rights, and until an order was obtained against him, a tenant stayed on, not as a trespasser, but as a statutory tenant - even against the will of the landlord. If the words of Bankes LJ and myself in Remon’s case which cover this point were obiter , they are now affirmed.”
Lord Justice Warrington: “The second point, that on the date when the defendant entered the plaintiffs were mere trespassers, has been disposed of by the decision in Remon v City of London Real Property Co. There the landlords went into possession without an order in the same way as the landlord did in this case and the action was brought for an injunction to restrain them, and it is clear that there would have been no right of action unless the tenant were a statutory tenant under section 15.” After referring to Remon: “That decision is binding upon this Court, but even without it I would have taken the same view. It is quite clear that a person holding over is not to be treated as a trespasser.”
Increase of Rent and Mortgage Interest (Restrictions) Act 1920 5
1 Cites

1 Citers


 
Geoghegan v Henry [1922] 2 IR 1
11 Jan 1922


Land

1 Cites

1 Citers


 
Chillingworth v Esche [1924] 1 Ch 97; [1923] All ER Rep 97; 93 LJ Ch 129; 129 LT 808; 40 TLR 23; 68 Sol Jo 80
1923
CA
Warrington LJ, Sir Ernest Pollock MR
Contract, Land
The purchasers agreed in writing to purchase land 'subject to a proper contract to be prepared by the vendors' solicitors' accepting £240 "as deposit and in part payment of the said purchase money". A contract was prepared by the vendor's solicitors, approved by the purchasers' solicitor, executed by the vendor and tendered to the purchasers for execution. At that point the purchasers declined to proceed with the transaction and claimed the return of the deposit. Held: The signed document was conditional, and the purchasers could have return of their deposit. (per Sterndale) "To my mind the words "subject to contract" or "subject to formal contract" have by this time acquired a definite ascertained legal meaning—not quite so definite a meaning perhaps as such expressions as fob or cif in mercantile transactions, but approaching that degree of definiteness. The phrase is a perfectly familiar one in the mouths of estate agents and other persons accustomed to deal with land; and I can quite understand a solicitor saying to a client about to negotiate for the sale of his land: "Be sure that to protect yourself you introduce into any preliminary contract you may think of making the words 'subject to contract'." I do not say that the phrase makes the contract containing it necessarily and whatever the context a conditional contract. But they are words appropriate for introducing a condition, and it would require a very strong and exceptional case for the clear prima facie meaning to be displaced."
Pollock MR said: "This case . . does not involve a decision of what a deposit may be in all cases, but simply what it is in this particular case.
In Howe v Smith where the nature of a deposit was considered and the right of a purchaser to the return of it, 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." And Cotton and Fry LJJ say substantially the same thing. Therefore we have to consider what in fact was the effect of the document of July 10, 1922, not forgetting the contemporaneous documents, and to ask ourselves whether this deposit was by those documents intended to pass irrevocably to the vendor if the purchasers did not carry out the transaction. In all the circumstances of this case, I think the deposit is recoverable by the purchasers. There was no provision made in the documents which would justify the vendor in declining to return it; though if he had, by appropriate words, made provision for that in the document, such a provision could have been upheld."
1 Cites

1 Citers


 
Long v Gowlett [1923] 2 Ch 177
1923


Land
Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply.
Law of Property Act 1925 62(1)
1 Citers


 
Craddock v Hunt (1923) Ch 136
1923


Contract, Land
When negotiating for the purchase of property the parties agreed orally that an adjoining yard was to be excluded. The written contract as exchanged included the yard. Held: Recitification was ordered.

 
Chambers v Randell [1923] 1 Ch 149
1923

Sargant J
Land, Equity
Where there is no express annexation of the benefit of a covenant the Court will usually regard the covenant as imposed simply to protect the covenantee while he or she holds the land, or to enable the covenantee to dispose of the land, together with an express assignment of the benefit of the covenant, more advantageously. Sargant J said that the principle: "is that the equitable doctrine enabling restrictive covenants to be enforced against assigns with notice ought not to be extended in derogation of the ordinary rights at common law of purchasers, and that it ought to be applied only where it is sought to enforce the covenant in connection with the enjoyment of land that the covenant was intended to protect."
Conveyancing Act 1881
1 Citers


 
Cory v Davies [1923] Ch 95
1923

Mr Justice P O Lawrence
Land
The second proposition in Wheeldon v Burrows is subject to exceptions, and reciprocal rights and reservations into leases should be implied.
1 Cites

1 Citers


 
Fuller's Theatre and Vaudeville Co Ltd v Rofe [1923] AC 435; [1923] UKPC 7
19 Feb 1923
PC

Land, Commonwealth
New South Wales - A party requested to give his consent to a proposed transaction was entitled to be given sufficient information to make his assessment in full knowledge of the circumstances.
1 Citers

[ Bailii ]
 
Brooks-Bidlake and Whittall Limited v The Attorney General of British Columbia and Another [1923] AC 450; [1923] UKPC 6
19 Feb 1923
PC

Land
Canada
[ Bailii ]

 
 Hesketh v Birmingham Corporation; 1924 - [1924] 1 KB 260

 
 National Provincial and Union Bank of England v Charnley; 1924 - [1924] 1 KB 431

 
 Slack v Leeds Industrial Co-operative Society Ltd; CA 1924 - [1924] 2 Ch 475

 
 Ilford Urban District Council v Beal and Judd; 1925 - [1925] 1 KB 671

 
 Moser v Ambleside Urban District Council; CA 1925 - (1925) 23 LGR 533 540; (1925) 89 JP 118

 
 Lockett v Norman-Wright; 1925 - [1925] Ch 56
 
Marquis Riccardo Cassar Desain v The Noble Pietro Paolo Dei Baroni Testaferrata Moroni Viani [1925] AC 416; [1925] UKPC 1
20 Jan 1925
PC

Land
(Malta)
[ Bailii ]
 
Gifford v Dent (1926) 71 SJ 83
1926

Romer J
Land, Torts - Other
It was a trespass over the plaintiff's land for the defendant to erect a sign projecting 4 ft 8 in over the plaintiff's forecourt.
1 Citers


 
Gregg v Richards [1926] Ch 521
1926


Land

1 Citers



 
 Grant (Gordon) and Co v Boos; HL 1926 - [1926] AC 781
 
Public Trustee v Duchy of Lancaster [1927] 1 KB 516
1927
CA
Bankes LJ, Scrutton LJ
Land, Ecclesiastical
The court was asked whether the conveyance of a farm out of which a tithe rentcharge issued carried with it, by reason of Section 63, the rentcharge itself. Held: The farm and the tithe rentcharge were two separate hereditaments and express words would be necessary to pass the rentcharge. The intention of the 1836 Act was to keep the tithe rentcharge hereditament separate from the land out of which it issued.
Bankes LJ referred to Chapman v Gatcombe and said: " general words such as those used in that case, "together with all the estate, right, title, interest . . of him W. Gatcombe therein or thereto or to any part or parcel thereof", are insufficient to pass tithe rentcharge. And as the object of Section 63 of the Conveyancing Act 1881 was merely to do away with a necessity of using those general words and to treat every conveyance as if it contained them, that section does not carry the matter any further. It only enacts that the conveyance shall pass every interest etc. which the conveying party may have in "the property conveyed" and for the reasons above given tithe rentcharge is not such an interest."
Scrutton LJ said that a tithe was not regarded as an interest in the land in respect of which it was payable, ans: ". . It was called in the language of lawyers of that day [1836] a "collateral hereditament" which was held by a different title from that of the land itself." He referred to Chapman v Gatcombe and said: "That being so Section 63 of the Conveyancing Act 1881 does not assist the Appellant. It merely renders it unnecessary any longer to include in a conveyance the long string of general words, "all the estate, right, title, interest," etc., that used to be known by the name of the "all estate clause", and, in the absence of a contrary intention appearing, treats the conveyance as containing them. The result is that the conveyance of the lands of Chapel House Farm to the Duchy of Lancaster did not carry with it the rectorial tithe rentcharge, as that rentcharge was not an "interest in" the land out of which it issued but something collateral to and independent of it." He noted that the relevant conveyance had there begun with a conveyance of physical land and continued:- "So far it is plain that the conveyance would not include tithe rentcharge. But it is said this tithe rentcharge is an "interest in the land", and that by virtue of Section 63 of the Conveyancing Act 1881, the conveyance is to be read as if these words were written in it. Now it is quite clear that before 1836 a conveyance of physical land with any number of general words added, such as "all the estate, right, property, interest, claim and demand" in the land conveyed would not pass tithe, for the reason that tithe was a hereditament independent of and separate from the land on which it was charged and was not an interest in it or appertaining to it."
Law of Property Act 1925 63 - Tithe Commutation Act 1836 - Conveancing Act 1881 63
1 Cites

1 Citers


 
Foster v Lyons and Co [1927] 1 Ch 219; 96 LJ Ch 79
1927

Eve J
Land
The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises. Held: The reservation was effective to prevent a right of being acquired by the tenant by prescription.
Eve J said: "The question is whether the words I have just read operate as an agreement within the section or were only meant to negative the implied right which the lessee would otherwise have had of insisting that the lessor should not derogate from his own grant by building on the adjoining land - in other words, does the case fall within the decision of Hayes v King or that in Mitchell v Cantrill? It cannot be disputed that if the words in question had not been inserted, the lessee by virtue of the lessor's implied covenant not to derogate from his grant, would have been entitled to the continued access over the lessor's land of the light actually enjoyed at the date of the demise, and that by the uninterrupted enjoyment thereof for the statutory period he could have acquired an absolute right under the Act to the access of that light. As the lease contains a covenant by the lessee not to alter the elevation or the structure of the demised premises without the written consent of the lessor, the only windows in the contemplation of the parties to which reservation was directed must have been those in existence at the date of the demise. Whether the right to which the lessor lays claim by virtue of the qualifying words can really be described as a reservation, I very much doubt, but the matter cannot be disposed of by a criticism of this nature. One must find out the substance of the contract and in my opinion the words must be construed as a grant by the lessee to the lessor of the full right to build on his adjoining land notwithstanding the result of injury to the light of the demised premises."
Prescription Act 1832
1 Citers


 
The Calgarth [1927] P 93
1927
CA
Scrutton LJ
Negligence, Land
A ship foundered while using a navigable channel other than in the ordinary way of navigation. Scrutton LJ said: "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used."
1 Citers


 
The Carlgarth [1927] P 93
1927

Scrutton LJ
Torts - Other, Land
Scrutton LJ said: "When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way in which it is used." and "Another distinction is that in a highway by land one proceeds by physical contact, but in water one proceeds by floating along in the water and it is only in special circumstances that there is any right to ground or sit on the bottom of a river just as there is no right to sit in the middle of a road and say one is exercising a right to use a public roadway."
1 Citers



 
 Toohey v Gunther; 1928 - (1928) 41 CLR 181
 
Ormond Investment Co Ltd v Betts [1928] AC 143
1928
HL
Lord Buckmaster
Land, Litigation Practice
The House considered the interpretation of a statute dealing with public rights of navigation. Held: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’
Lord Buckmaster said of the statement by Lord Sterndale in Cape Brandy: ‘That is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers meanings’.
1 Cites

1 Citers


 
Robert Addie and Sons (Collieries) Ltd v Dumbreck 1928 SC 547
1928
SCS
Lord President Clyde
Torts - Other, Scotland, Land
A boy trespassed on land and was injured on machinery there. The local working-classes resorted to the field regularly '(1) as an open space; (2) as a playground; (3) as a means of access to chapel and railway station; and (4) - as regards the less well disposed members of the local community - as a means of approach to the defenders' coal bing and wood depot for purposes of depredation. ' The defendant had taken steps to prevent the latter, but not otherwise. Held: Lord President Clyde said that if the presence of a trespasser near a dangerous machine is known to the proprietor he cannot disregard it: "I am unable to distinguish that case from the case in which the proprietor knows of the habitual resort of adults or children, or both, to the near neighbourhood of the dangerous machine - a habit of resort which makes it to his knowledge likely that one or more of such persons may be at the machine when he applies the motive power."
1 Cites

1 Citers



 
 St Anne's Well Brewery Co v Roberts; CA 2-Jan-1928 - (1928) 140 LT 1

 
 Weld v Petre; 1929 - [1929] 1 Ch 33
 
Wali Mohammad and Others v Mohammad Bakhsh Since Deceased, and Others (Lahore) [1929] UKPC 126
16 Dec 1929
PC

Commonwealth, Land

[ Bailii ]
 

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