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Land - From: 1930 To: 1959

This page lists 166 cases, and was prepared on 02 April 2018.

 
Manchester Corporation v Farnworth [1930] AC 171
1930
HL
Viscount Dunedin, Viscount Sumner
Land, Torts - Other
The House was asked as to the result in law when a nuisance is the inevitable result of carrying out the functions authorised by Parliament. Held: Viscount Dunedin said: "When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense."
Viscount Sumner said: "the first question is "What did the Legislature authorize?" The sections can be read as directing the use of such a plant as was originally erected or even as relieving the Corporation from liability for nuisance on proof that all due care has been used. The case becomes one of quite a simple proof. I think the condition of freedom from liability is proof of due care but not that any particular plant or user can be implied from the general terms employed. The appellants are right in saying that the Manchester Corporation Act, 1914, is not a "special Act" within s. 1 of the Electric Lighting Clauses Act of 1899, but in effect varies or excepts the operation of the scheduled clauses of that Act. What is required of them is to use all due and reasonable means and precautions to avoid a nuisance. The burden of proving that they have done so is on them."
Manchester Corporation Act, 1914
1 Citers


 
Hill v Booth [1930] 1 KB 381
1930
CA
Scrutton LJ, Greer LJ
Land
Despite its entanglement with a right of entry intended to procure its payment, a separate personal obligation to pay instalments of the sum agreed as the premium for a lease remained merely a personal obligation and that a call for the payment by instalments was not a claim or demand in, to, or on the property conveyed within Section 63.
Law of Property Act 1925 63
1 Citers


 
Borman v Griffith [1930] 1 Ch 493
1930

Maugham J
Land
Maugham J said: "Where . . two properties belong to a single owner and are about to be granted and are separated by a common road, or where a plainly visible road exists over one for the apparent use of the other, and that road is necessary for the reasonable enjoyment of the property, the right to use the road will pass with the quasi-dominant tenement, unless that right is excluded by the terms of the contract that right is excluded."
1 Citers


 
Excelsior Wire Rope Co Ltd v Callan [1930] AC 404 HL(E)
1930
HL

Land, Torts - Other
The House dismissed an appeal by an occupier of land against a finding that he was liable for an injury occasioned to a child trespassing on his land.
1 Citers


 
Mehrban Khan v Makhna (1930) 57 Ind App 168
1930

Lord Tomlin
Commonwealth, Land
It is open to a later encumbrancer of land who has a right to redeem a prior charge, to come to court and establish that a term in that prior charge relating to the right to redeem is an unconscionable term and if that is established the term will be of no effect for all purposes.
1 Citers


 
Price v Hilditch [1930] 1 Ch 500
1930

Maugham J
Land, Nuisance
The erection of a high boundary wall was established to be a nuisance. Maugham J: "A ground plan put in by one of the expert witnesses for the plaintiff shows the amount of floor space to which the light of the sky has access, calculated from the point of view of a table 2 feet 8 inches high, and the fact now is that there is hardly any part of the floor in the scullery from which the sky can be seen, whereas, before the erection of the wall, the sky could be seen from practically the whole of that small room."
1 Citers


 
News of the World Limited v Allen Fairhead and Sons Limited [1931] 2 Ch 402
1931
ChD
Farwell J
Land
The court was asked as to the effect of changes in the fenestration on acquired rights of light. Held: Whether there is a sufficient coincidence to justify the retention of an enjoyment of the same light will depend on whether the new facade has "windows to some extent in the same position as the old windows".
1 Citers


 
Grant v Edmondson [1931] 1 Ch 1
1931
CA
Romer LJ
Land
The distinctions required by the established rules as to whether a covenant 'touches and concerns' the land rules are quite illogical.
1 Citers


 
Chatsworth Estates Company v Fewell [1931] 1 Ch 224
1931

Farwell J
Land
The plaintiff sought to enforce a restrictive covenant against using a property "otherwise than as a private dwelling-house". 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had suggested that the covenants may be modified by the Lands Tribunal, but he made no application. Held: The area was "mainly" residential, although many flats had been erected and a few boarding houses and schools had come into existence in "technical breach of the covenants". The covenants remained enforceable although a court may rule that a restrictive covenant has ceased to be enforceable through obsolescence.
Farwell J discussed the defence put forward that the character of the area had changed: "But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose.
Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief. "
Law of Property Act 1925
1 Citers


 
Peech v Best [1931] KB 1
1931
CA
Scrutton LJ
Landlord and Tenant, Land
The defendant owned a 700 acre farm. He granted to the plaintiff "the exclusive right of shooting and sporting in over and upon it" for a term of fourteen years. With still some four years of the term to run, he conveyed 12 acres of the farm for the erection of racing stables. The plaintiff objected. Held: The building substantially interfered with or limited the shooting rights, and was therefore a derogation from the defendant's grant of which the plaintiff could complain. Scrutton LJ said: "It appears to me that fundamentally changing the character of the land over which sporting rights are granted . . if it has the necessary effect of substantially injuring the rights of others is a derogation from grant, and is a substantial interference with the profit a prendre granted." The case of Farrar shows that both landlord and sporting tenant must use their land reasonably having regard to the interest of the other, and will be liable for damage caused to the other by extraordinary, non-natural, or unreasonable action.
1 Cites

1 Citers


 
Sheffield Masonic Hall Co Ltd v Sheffield Corporation [1932] 2 Ch 17
1932

Maugham J
Land
In considering whether a right to light was infringed, and where a room had light from another source, which also could be potentially interfered with (but not by the Defendant), the amount and interference permitted by the Defendant is only that available after an assumption that the light passing into the other window has similarly been interfered with.
1 Citers


 
Re Union of London and Smith's Bank Ltd's Conveyance, Miles v Easter [1933] Ch 611
1933


Land
The court considered whether a covenant which was annexed to retained land was annexed to the entire plot only, and not to any part of it.
1 Citers



 
 In re Sir Thomas Spencer Wells; Swinburne-Hanham v Howard; CA 1933 - [1933] Ch 29

 
 Todrick v Western National Omnibus Co Ltd; ChD 1934 - [1934] 1 Ch 190

 
 Liddle v Yorkshire (North Riding) County Council; 1934 - [1934] 2 KB 101

 
 Dennis v Malcolm; 1934 - [1934] Ch 244

 
 Marshall v Blackpool Corporation; HL 1934 - [1935] AC 16; [1934] All ER 437
 
G A P Brickenden v London Loan Savings Company of Canada and Others [1934] UKPC 25
10 May 1934
PC

Commonwealth, Land
Canada
[ Bailii ]
 
Abigail v Lapin [1934] UKPC 33; [1934] AC 491; 151 LT 429; [1934] All ER 720
19 Jun 1934
PC

Commonwealth, Land
(Australia) Mr and Mrs Lapin, the registered proprietors of land, had given transfers by way of security to creditors who fraudulently mortgaged it. The majority in the High Court had held that the unregistered security of the subsequent lender did not take priority over the Lapins’ equitable right to redeem. Knox CJ and Dixon J, in the majority, and Gavan Duffy and Starke JJ, in the minority, agreed that prima facie the equitable interest of the prior equity holder took priority of the later. That position could be disturbed by disentitling conduct on the part of the holder of the prior equity which warranted its postponement to the subsequently acquired equity. Held: The appeal succeeded. The Lapins’ conduct in arming their creditors with the capacity to become the registered proprietors was disentitling conduct. The Board rejected Kindersley V-C’s position that priority in time was the test only where the equities were otherwise equal. It was clearly established that prima facie priority in time would decide the matter unless there was something “tangible and distinct having grave and strong effect” to warrant taking away the pre-existing equitable title.
"For the general protection of equitable interest or estates, the act provides that a caveat may be lodged with the registrar by any person claiming as cestui que trust, or under any unregistered instrument or any other estate or interest; the effect of the caveat is that no instrument will be registered while the caveat is in force affecting the land, estate or interest until after a certain notice to the person lodging the caveat. Thus, though the legal interest is in general determined by the registered transfer, mortgages or other changes, the register may bear on its face and notice of the equitable claims, so as to warn persons dealing in respect of the land and to enable the equitable claimant to protect his claim by enabling him to bring an action if his claim is disputed."
1 Citers

[ Bailii ]
 
Singh v Peters and others [1934] UKPC 1
30 Oct 1934
PC

Commonwealth, Land

[ Bailii ]
 
Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417
1935
CA
Lord Hanworth MR
Land, Ecclesiastical
The statutory powers given by the Act are not exercisable against the public generally or any class or group of persons which forms part of it. The purpose of the Act was to abolish proceedings in ecclesiastical courts for enforcing the liability to repair. The only person against whom the liability may be enforced is the person who, in that obscure phrase, "would, but for the provisions of this Act, have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court in a cause of office promoted against him in that court on the date when the notice was served."
Chancel Repairs Act 1932
1 Citers



 
 Fishenden v Higgs and Hill Ltd; CA 1935 - [1935] 153 LT 128
 
Williams-Ellis v Cobb [1935] 1 KB 310
1935


Land
Dedication of public right of way
1 Citers


 
Re Ecclesiastical Commissioner's Conveyance [1936] Ch 430
1936

Luxmoore J
Land

Conveyancing Act 1881
1 Citers


 
Re Spollon and Long's Contract [1936] Ch 713
1936
ChD
Luxmoore J
Land
The court considered the nature of title which could be imposed on a reluctant purchaser of land. One of the title deeds was not properly stamped. This defect was considered a matter of importance to the purchaser because if the title were subsequently challenged, he would not be able to produce in evidence the improperly stamped deed as part of the chain of title. For this reason he might have difficulty in selling the property without making special conditions. Held: Luxmoore J said: "The purchaser having bought under an open contract was entitled to have a good marketable title which, as I understand it, is a title which will enable him to sell the property without the necessity of imposing special conditions of sale restrictive of the purchaser's rights."
1 Citers



 
 Willoughby v Eckstein; ChD 1936 - [1937] 1 Ch 167; [1936] 1 All ER 650

 
 Drake v Gray; CA 1936 - [1936] Ch 451
 
Hurt v Bowmer [1937] 1 All ER 797
1937

Bennett J
Land
The expression "as at present enjoyed" with reference to a right of way was not a reference to, or a limitation of, the purposes for which the way was used, such as agricultural purposes, but was to the quality of user in the sense of the manner in which it was exercised i.e. on foot or with vehicles.
1 Citers


 
In re Leighton's Conveyance [1937] 1 Ch 149
1937
CA
Lord Wright MR, Romer LJ
Costs, Land
Rules of court provided that a person suing as a poor person should not be ordered to pay costs. Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord Wright MR said: " Now what the learned judge has done is to deny the ordinary right of a mortgagee to add to his security all costs, charges and expenses reasonably and properly incurred in ascertaining or defending his rights, or in recovering the mortgage debt. It is not really a matter which arises in connection with the awarding of costs. If it had been a question of the awarding of costs as between parties to the action the learned judge could not have ordered Mrs. Priestman to pay any costs, because she was proceeding as a poor person, and under the terms of Order XVI r. 28 'no poor person shall be liable to pay costs to any other party'; but that is not the question at all. What the learned judge has done here has been to do something entirely different from ordering ordinary costs in the action : he has made an order which has the effect, if it stands, of depriving the mortgagee in this case . . . of the ordinary rights of a mortgagee. The mortgagee here was compelled to defend her rights, or at least cannot be said to have acted unreasonably in seeking to defend her rights."
Romer LJ said: "Where a mortgagee's title is attacked by somebody who is a stranger to the mortgagee, the circumstances in which the mortgagee is entitled to add his proper costs in defending his title to the mortgagee's security are stated by Sir W. Page-Wood, V.C., in Parker v. Watkins (John 133, 137) where he said this: ' I quite agree that, where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties, he is entitled to charge those expenses against the estate; but if some litigious person chooses to contest his (the mortgagee's) title to the mortgage, that should not affect the parties interested in the equity of redemption, unless they can be shown to have concurred in or assisted the litigation.''
1 Citers


 
White v Bijou Mansions [1937] Ch 610
1937
ChD
Simonds J
Contract, Land
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party. Held: Simonds J rejected an argument that section 56 enabled anyone to take advantage of a covenant if he could shew that if the covenant were enforced it would redound to his advantage: "Just as under section 5 of the Act of 1845 only that person could call it in aid who, although not a party, was yet a grantee or covenantee, so under section 56 of this Act only that person can call it in aid who although not named as a party to the conveyance or other instrument is yet a person to whom that conveyance or other instrument purports to grant something or with which some agreement or covenant is purported to be made."
Law of Propety Act 1925 56
1 Citers


 
Marquis of Bute v M'Kirdy and M'Millan Ltd 1937 SC 93
1937

Lord President Normand
Land
For 70 years the public on the Isle of Bute had used a track to pass from a public road to part of the foreshore for purposes of bathing and recreation. The Marquis of Bute, who owned the relevant land, contended that the use of the track by the public should be attributed to the tolerance of himself and his predecessors in title. He therefore sought interdict against a bus company who had been bringing large numbers of trippers to the point on the public road from which they could use the track to get to the beach. Held: Rejecting the pursuer's contention, the proper question was whether: "having regard to the sparseness or density of the population, the user over the prescriptive period was in degree and quality such as might have been expected if the road had been an undisputed right of way. If the public user is of that degree and quality, the proprietor, who fails for the prescriptive period to assert or to put on record his right to exclude the public, must be taken to have remained inactive, not from tolerance, but because the public right could not have been successfully disputed or because he acquiesced in it." The First Division of the Court of Session, having concluded that the bus company had proved the existence of a public right of way for pedestrians, pronounced decree of absolvitor in their favour.

 
Merstham Manor Ltd v Coulsdon and Purley UDC [1937] 2 KB 77
1937


Land
Where a public right of way is claimed, an interruption of the user at some point during the relevant twenty year period, such as the landowner locking a gate and preventing access, will defeat an argument based on user "as of right" under section 31(1) during that period. In this case the landowner had closed off the pathway for one day in each year.
1 Citers


 
Beauchamp v Frome Rural District Council [1938] 1 All ER 595
1938
CA
Sir Wilfred Greene MR
Land
The court considered a grant of rights to take water. Sir Wilfred Greene MR said: "It was a grant of the residue of what should reach them after the water had been taken by the persons entitled to takle water from those branches"
1 Citers


 
George Legge and Son Ltd v Wenlock Corporation [1938] AC 204
1938
HL
Lord Maugham, Lord Macmillan, Lord Atkin, Lord Roche
Land, Limitation
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the fact that that act involved continued polluting of a river. Held: There is no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention would be quite untenable. "it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships' House in effect held in the Airdrie case to be a legal impossibility."
Lord MacMillan said that a water channel may be a sewer though it may carry no sewage and its contents consist solely of innocuous surface drainage. Since any natural stream or watercourse which is still open will almost always contain some surface water, at any rate in or after wet weather, the fact that a flow of water does contain such surface water cannot show that it is a sewer, and cannot transform what was once a watercourse into a sewer.
River Pollution Prevention Act 1876
1 Cites

1 Citers


 
White v Bijou Mansions [1938] Ch 351
1938
CA
Sir W Greene MR
Contract, Land
The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: "before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to the true construction of the document in question." (Sir W Greene MR)
Law of Property Act 1925 56
1 Cites

1 Citers


 
Attorney-General v Poole [1938] 1 Ch 23
1938


Charity, Local Government, Land
Open space land had been conveyed to Poole Corporation "in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use." Held: There was no express reference in the Conveyance to the 1906 Act but the Court of Appeal thought it applied in any event.
Open Spaces Act 1906
1 Citers


 
Mussen v Van Diemen's Land Company [1938] Ch 253
1938
ChD
Farwell J
Land, Contract
Land was to be sold in stages to the purchaser. Held: Specific performance, with or without compensation, would be ordered at the suit of a purchaser wherever possible, so long as he was able and willing to complete. Farwell J said : "There are no doubt cases where there has been a failure to pay the instalments and to complete the contract, and the purchaser has then come forward and said: 'I am here and now ready and willing to complete the contract and to pay the price originally stipulated by the contract and to carry out its terms,' and then the Court has said that it is inequitable and against conscience that the vendor should refuse specific performance and claim to retain the money already paid. That is because the Court has said that if the plaintiff is willing to carry out his contract, notwithstanding the fact that temporarily at any rate he was unable to do so, if he is willing and able to carry out his contract, it being the primary intention of the parties that the sale should take place, it would be against conscience for the defendant to say: 'I will not give effect to the primary intention of the parties, but I will refuse to complete, and I will retain the money which has been paid to me.'"
1 Citers


 
Jones v Bates [1938] 2 All ER 237
1938
CA
Scott LJ
Land
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was "often a pure legal fiction [which] put on the affirmant of the public right an artificial onus which was often fatal to his success." The subjective belief of the person claiming a prescriptive right was relevant, indeed often determinative, on the question whether he had been acting "as of right"
1 Citers


 
Knightsbridge Estates Trust Ltd v Byrne [1939] 1 Ch 441
1939
CA

Land
The company mortgaged properties in London to secure an advance from a Friendly Society. A clause of the mortgage provided for repayment by eighty half-yearly instalments. The mortgage further provided that if the mortgagor paid the instalments on the due dates and otherwise complied with the mortgage terms, the mortgagee would not require repayment at a date earlier than the scheduled forty year redemption date. Six years after entering the mortgage, the mortgagor wanted to redeem, and claimed that Clause 1 which postponed their equitable right to redeem for forty years was void as a clog on the equitable right to redeem. Held: The clause was valid. Equity would grant relief against contractual terms that were oppressive or unconscionable, but this mortgage could not be so regarded. In assessing whether relief should be granted, all circumstances of the case should be considered, including the degree of mutuality. Although the contractual right to redeem had been postponed for forty years, the mortgagee also covenanted not to require payment of the sum for that time. It was an arm's length commercial transaction upon which each party had received legal advice.
1 Cites

1 Citers



 
 Marquess of Zetland v Driver; CA 1939 - [1939] Ch 1
 
Lawrence [1939] Ch 656
1939
ChD
Simonds J
Land
Simonds J held that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, as the point had been fully argued, he expressed his views on it. I do not think that such views can simply be stigmatised as being obiter and so of little weight. A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter . . "
1 Citers



 
 Cockwell v Romford Sanitary Steam Laundry Ltd; CA 1939 - [1939] 4 All ER 370, CA
 
Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case) [1939] AC 302
1939
PC
Lord Collins, Lord Romer
Commonwealth, Land, Damages
Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a "special purchaser" by imagining an auction, as being "an entire waste of the arbitrator's imagination". Potentiality should be valued even if the only likely purchaser is the acquiring authority itself.
1 Citers


 
Lock v Abercester Ltd [1939] 1 Ch 861
1939


Land
A vehicular right of way had been acquired by long use with horse-drawn carts. It was held to be legitimately enjoyed, much later, by mechanically propelled vehicles.

 
Bond v Norman [1939] 1 Ch 847
1939
ChD
Simonds J
Land
If an Act is to have the effect of taking away a property right, "it must be by plain enactment or necessary intendment"
1 Citers



 
 Fisher v Winch; CA 1939 - [1939] 1 KB 666; [1939] 2 All ER 144; 108 LJ KB 473; 160 LT 347; 55 TLR 553; 83 Sol Jo 192
 
Wallington v Townsend [1939] 1 Ch 588
1939

Morton J
Damages, Land, Contract
Where a vendor of land failed to complete for reasons other than a defect in title and the purchaser was unable to prove a loss of profits he was entitled by way of damages, in addition to the return of the deposit, to interest in respect of the loss of use of the deposit and to the costs of approving and executing the contract, investigating title, preparing the conveyance and of searches.
1 Citers


 
Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302; [1939] UKPC 15; [1939] 2 All ER 317
23 Feb 1939
PC
Lord Romer, Lord MacMillan, Sir George Rankin
Land, Damages
Land adjoining a harbour at Vizagapatam which at that time was malarial was to be valued for compulsory purchase. The land contained a spring of clean water. The only potential purchaser of the special adaptability of the land as a water supply was the harbour authority. The High Court valued the land as partly waste and partly cultivated. Held: The appeal was allowed. The market value of land subject to compulsory purchase should include such extra value as might be paid for the facility to collect fresh water which was generated by a spring on the land but which was presently going to waste. The value to be ascertained is not the price a 'driven' buyer would pay to an unwilling seller. Nor should the price be enhanced by the fact that compulsory powers have been obtained for carrying into effect a particular scheme for the profitable use of the subject land's potentiality. The valuation must always be made as though no such powers had been obtained. But the possibility that the acquiring authority, as a willing buyer in a friendly negotiation, might be willing to pay more for land with its potentiality than without was not to be disregarded. That would not be to allow the existence of the scheme to enhance the value of the land: "even where the only possible purchaser of the land's potentiality is the authority that has obtained the compulsory powers, the arbitrator in awarding compensation must ascertain to the best of his ability the price that would be paid by a willing purchaser to a willing vendor of the land with its potentiality in the same way that he would ascertain it in a case where there are several possible purchasers.' The seller should not be regarded as disinclined to sell, nor should the buyer be regarded as under any urgent necessity to buy. 'It must, of course, be conceded that the existence of the scheme must not be allowed to enhance the price, if by "scheme" is meant the fact that compulsory powers of acquisition have been obtained for the purpose of carrying into effect a particular scheme for the profitable use of the potentiality. The valuation must always be made as though no such power had been acquired, and the only use that can be made of the scheme is as evidence that the acquiring authority can properly be regarded as possible purchasers.'
1 Cites

1 Citers

[ Bailii ]
 
Kemp v Burgh of Largs [1939] UKHL 1
30 Mar 1939
HL
Lord Russell of Killowen
Scotland, Land

[ Bailii ]
 
In Re Cawston's Conveyance and the School Sites Act 1841 [1940] Ch 27
1940
CA
Sir Wilfrid Greene MR
Land
The 1841 Act was intended to encourage land owners to make land available for educational purposes: "One can see that the provision with regard to reverter would have been and no doubt was considered by the Legislature to be a very useful encouragement to charitably minded persons, particularly if they were the owners of an estate or life tenants of a settled estate, to make grants for purposes such as these, because such persons might very well be satisfied to have the village school built upon the family estate, but would strongly object to the site on which such a school had been built being diverted later on to other purposes; therefore, as I have said, that proviso as to reverter must have been a very valuable encouragement, because landowners by reason of it were thus enabled to ensure that the site should be used in perpetuity for school purposes, or, if it ceased to be used for school purposes, that they would get it back. The common sense of that is obvious."
School Sites Act 1841
1 Citers


 
Bond v Nottingham Corporation [1940] 1 Ch 429
1940
CA
Sir Wilfred Greene MR
Nuisance, Land
Sir Wilfred Greene MR said: "The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into decay. If it does so and support is removed, the owner of the dominant tenement has no cause for complaint. On the other hand, the owner of the dominant tenement is not bound to sit by and watch the gradual deterioration of the support constituted by his neighbour's building. He is entitled to enter and take the necessary steps to ensure that the support continues by effecting repairs, and so forth, to the part of the building which gives the support. But what the owner of the servient tenement is not entitled to do is, by an act of his own, to remove the support without providing an equivalent."
1 Citers


 
Rex v Stafford Justices, ex parte Stafford Corp [1940] 2 KB 33; (1940) 109 LJKB 584
1940
CA
Lord Greene MR
Land, Administrative
Houses had been built across the site of a footpath which had not been properly diverted. An order to demolish the houses was refused because of the delay and prejudice. Held: Lord Green MR said of the exercise of discretion involved: "Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain circumstances - I will not say in all of them, but in a great many of them- the Court, although nominally it has a discretion, it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a Judge at a trial refuses to do so, then the Court of Appeal will set the mater right. But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion."
Before such a discretion can be exercised "there must be something in the circumstances of the case which make it right to refuse the relief sought"

 
Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613; [1940] 2 All ER 401
1940
HL
Viscount Maugham
Land, Company
A mortgage of freehold land contained a covenant to repay the secured loan by half-yearly instalments over a period of 40 years. The mortgagors sought early redemption arguing that the contractual postponement of repayment over a 40 year period was void in equity. The respondents relied upon the mortgage constituting a debenture as defined by s.380 of the Companies Act 1929 so that s.74 applied to prevent the condition for postponement becoming invalid in equity on grounds of the length of the period. Held: It was a debenture.
Viscount Maugham said: "If we begin by asking what the word "debenture" means, apart from any definition, the reply must be that it has no precise meaning. Chitty J. observed in the case of Levy v. Abercorris Slate and Slab Co., that the word "means a document which either creates a debt or acknowledges it, and any document which fulfills either of these conditions is a debenture." An interesting extract from Skeat's Etymological Dictionary (1882) will be found in a footnote to the case (p. 264). Sir Nathaniel Lindley had previously stated simply, "What the correct meaning of 'debenture' is I do not know": British India Steam Navigation Co. v. Inland Revenue Commissioners. In Lemon v. Austin Friars Investment Trust, Ld., the same ignorance was professed in the Court of Appeal. Warrington L.J. in particular, after observing that it had been said "by a wiser man than himself" that it was impossible to give an exhaustive definition of the word "debenture," went on to remark that he did not propose to incur the reproach of venturing where wise men fear to tread. The text books are agreed at least in this that no accurate definition of the word can be found. I think it sufficient to cite Buckley on the point (11th ed., p. 174). It is clear, therefore, that it was desirable to insert in any consolidation of the Companies Acts a definition of the word.
I do not think there is any strong argument for suggesting that s. 74 of the Act of 1929, or any of its predecessors, ought by reason of its nature to be confined to what may be called ordinary debentures. As we have seen, some definition was certainly desirable, and the very wide terms used by the Legislature in the Act of 1928 and reproduced in the consolidating Act of the following year seem to me to show that it was intended to give freedom of contract as regards the particular matter involved in s. 74 in relation to any securities granted on loan by a company registered under the Companies Acts. It is contended that the context otherwise requires. I am unable to find any such context."
Companies Act 1929 380
1 Citers



 
 Sedleigh-Denfield v O'Callaghan; HL 24-Jun-1940 - [1940] AC 880; [1940] 3 All ER 349; [1940] 56 TLR 887; [1940] UKHL 2
 
Horn v Sunderland Corporation [1941] 2 KB 26
1941

Scott LJ
Land, Damages
Rule (6) was designed to preserve the effect of the 19th Century case-law under the 1845 Act, by which personal loss caused by the compulsory acquisition was treated as part of the value to the owner of the land: "the owner in a proper case – that is, in a case where he really does incur a loss of money by disturbance due to the taking over and beyond the loss for which he is to be reimbursed in respect of the land taken – is entitled, because it has to do with the land, to have that element of the loss taken into the reckoning of the fair price of the land, as has been held by the Courts from a very early stage." Lord Justice Scott explained the effect of section 68: "There is a third kind [of compensation] given by the [1845] Act, namely by section 68, but that has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act to the lands of an owner who has had none of the lands taken in that locality. The remedy is given because Parliament, by authorising the works, has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law." Scott LJ referred to the: “the old sympathetic hypothesis of the unwilling seller and the willing buyer which underlay judicial interpretation of the Act of 1845.”
Land Clauses Consolidation Act 1845 68
1 Citers


 
Madhorao Naraayanrao Ghatate v Ramkuwarsha and Others [1942] UKPC 28
13 Oct 1942
PC

Commonwealth, Land
Nagpur
[ Bailii ]
 
Turley v Mackay [1943] 2 All ER 1
1943


Land

1 Citers



 
 In re Mayo; ChD 1943 - [1943] Ch 302
 
Warren v Gurney [1944] 2 All ER 472
1944
CA
Morton LJ
Land
A father purchased a property for his daughter but kept the title deeds until his death. Held: In deciding whether or not the executors of the father had rebutted the presumption of advancement, the Court took he view that there was ample evidence to justify that conclusion of the judge. The the father's retention of the title deeds from the time of purchase to the time of his death was a very significant fact because the title deeds were "sinews of the land". The Court did not state, however, that possession of title deeds was conclusive in the determination of a person's property rights, but relied not only on the possession of title deeds to decide its case but also the fact that the father had paid for the full price and that there was contemporaneous declarations by the alleged donor as to his interest.

 
Representative Body of the Church in Wales v Tithe Redemption Commission [1944] AC 228
1944
HL
Viscount Simon LC, Lord Wright, Lord Porter
Ecclesiastical, Land
The issue, arising from the disestablishment of the Welsh Church, was whether tithe rent charges temporally vested in the Welsh Commissioners pending their transfer to the University of Wales while temporarily vested, subjected the Welsh Commissioners to chancel repair liability. If so, Government stock needed to be issued to the appropriate Welsh authority pursuant to the Tithe Act 1936. Held The Welsh Commissioners, so long as they held the tithe rent-charges, were lay impropriators and accordingly under a chancel repair liability. Tithe rent charges representing rectorial property of the parish, were held by the Dean and Chapter of Gloucester. Other tithe rent-charges were held by a limited company. Plymouth Estates Ltd plainly and admittedly remain liable for chancel repair. The obligation of a rector to repair the chancel was "an obligation imposed by common law". If the tithe rent charge gets into the hands of a lay impropriator at anytime it is held subject to the liability to repair" and "impropriation exists where the property is in lay hands."
1 Citers



 
 James Macara v Barclay; CA 1944 - [1944] 2 All ER 31

 
 Young v The Bristol Aeroplane Co Ltd; CA 28-Jul-1944 - [1944] KB 718; 60 TLR 536; [1944] 2 All ER 293; (1945) 78 Ll L Rep 6; [1944] EWCA Civ 1

 
 Baker v Bethnal Green Corporation; CA 1945 - 109 JP 72 CA; [1945] 1 All ER 135; [1945] 43 LGR 75

 
 Poole Corporation v Moody; CA 1945 - [1945] KB 350
 
Johnson v Humphrey [1946] 1 All ER 460
1946


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

 
Cumberland Consolidated Holdings Limited v Ireland [1946] KB 264; [1946] 1 All ER 284
1946
CA
Lord Greene MR
Contract, Land
A vendor of a warehouse left in the cellars of a warehouse rubbish including bags of hardened cement which would be difficult to remove, and which affected the value of the property and precluded the proper use of the cellar. The buyer complained that he had not been given vacant possession as agreed under the contract. Held: He had not been given vacant possession. Lord Greene MR said: "But it appears to us that what he bargains for is not merely the right in law, but the power in fact to exercise the right. When we speak of a physical impediment we do not mean that any physical impediment will do. It must be an impediment which substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property."
1 Citers


 
Thompson v McCullough [1947] 1 KB 447
1947
CA
Morton, Bucknill and Asquith LJJ
Land, Contract
Thompson had agreed to buy a tenanted property, had paid part of the purchase price, and had received a conveyance in escrow pending payment of the balance. He at that point gave McCullough notice to quit. Two months later Thompson paid the balance of the purchase money. Held: The court considered what would constitute delivery of an agreement in escrow. Morton LJ said: "The question of whether a document is delivered as an escrow or as a deed is in general one of fact, and I think that the following passage from Norton on Deeds . . accurately states the law: "Whether the document was delivered as an escrow or as a deed is a question of what the parties intended, and that intention may appear either from their statements or the circumstances." The learned author then quotes the following observation of Parke B. in Bowker v Burdekin (1843) 11 M&W 128 at 147: "you are to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction; and therefore, though it is in form an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow." The author goes on: "thus the delivery of a transfer of mortgage was held to be in escrow until the mortgage money had been paid . . and of a conveyance until the purchase money has been paid . . The circumstances relied upon to show delivery as an escrow must be prior to or contemporaneous with, not subsequent to, the delivery.
Evidence is, of course, admissible as to what were the circumstances attending the delivery . . and the question is in general one of fact for the jury."
The notice to quit was invalid because the fee simple was not effectively vested in the giver of the notice: and satisfaction of the condition of the escrow could not retrospectively validate that notice.
1 Cites

1 Citers


 
Brown v Harrison [1947] 177 LT 281
1947
CA
Somervell LJ
Nuisance, Negligence, Land
Somervell LJ reiterated the relevant test (formulated by the judge at first instance) in these terms: "If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act."
1 Citers



 
 Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands; PC 1947 - [1947] AC 565; (1947) 63 TLR 486
 
HE Green and Sons v Minister of Health (No 2) [1948] 1 KB 34; [1947] 2 All ER 469
1947

Denning J
Land, Local Government
The plaintiff challenged a compulsory purchase order, saying that the purpose of the order went beyond the statutory purpose. Held: The provision of "houses" must be taken to include the provision of ancillary facilities. Denning J said that he was satisfied that the local authority did not mean to restrict itself in its letting of the houses, it was to build on the land it was attempting to acquire, to those who were of any particular class. That did not however, invalidate the exercise of the powers: "The next question is whether the order is invalid because, in addition to houses being put up on this land, the co-operation proposed to put up nurseries, a health centre, a youth centre, shops, a public house, and so forth. It is said, and truly said, that in providing or contemplating the provision of those amenities, the co-operation intend that they should be available, not only to the persons living in the houses that are going to be put up in this estate, but also for persons from the neighbouring areas. It is said that makes the proposal invalid. This contention depends on the true interpretation of s 80. That section, contemplates that, providing the Minister consents, the land may be used, not only for houses, but also for shops, recreation grounds, and other buildings, which 'will serve a beneficial purpose in connecxion with the requirements of the persons for whom the housing accommodation is provided.' It is said if this proposed health centre, shops, etc, are in connexion with the requirements of other persons, in addition to those of this estate, that makes it outside the powers of s 80. I do not think that is a correct interpretation. The fact that it will also serve a beneficial purpose for other persons does not make it any the less a beneficial purpose for the persons in this housing estate. I see no reason for introducing the limitation which is suggested, and I do not think the proposed development is invalid."
1 Citers


 
Riches v Westminster Bank Ltd [1947] AC 390
1947


Land, Damages
The amount of interest payable on compulsory purchase of land depends upon the value given to the land and the length of the period from the time of entry until reinstatement, the period during which the claimant is dispossessed. During that time, and possibly thereafter the owner has neither the land nor its value, and he is compensated for non-payment of its value by the award of interest. That is the classic function of such an award.
1 Citers


 
Buckland v Guildford Gas Light and Coke Co [1948] 2 All ER 1086; [1949] 1 KB 410
1948


Negligence, Land
Whether someone is a trespasser vis-a-vis the occupier is relevant only to the foreseeability of his presence.
1 Citers



 
 HE Green and Sons v Minister of Health (No 2); 1948 - [1948] 1 KB 34
 
Gilchester Properties v Gomm [1948] All ER 493; [1948] 64 TLR 235; [1948] 92 Sol Jo 220
1948


Land
In a conveyance of leasehold properties, the vendor's solicitors replies to a purchaser's enquiries were qualified 'as far as the vendor knows'. Held: This was not a representation beyond the knowledge of the vendor. The relief claimed was inappropriate since it would amount to an award of damages for an innocent misrepresentation.

 
Elliott v H. Elliott (Builders) Ltd v Pierson [1948] 1 Ch 452
1948


Land

1 Citers


 
Robinson v Bailey [1948] 2 All E R 791
1948
CA
Lord Greene MR
Land
The court considered the extent of use of a right of way. After citing Farwell J in Todrick, Lord Greene said: "While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a principle which must not be allowed to carry the court blindly. Obviously the question of the scope of the right of way expressed in a grant or reservation is prima facie a question of construction of the words used. If those words are susceptible of being cut down by some implication from surrounding circumstances, it being, to construe them properly, necessary to look at the surrounding circumstances, of course they would be cut down. Todrick's case is a very good example of the sort of application of the rule which Farwell J was enunciating. Finding, as he did, a right of way reserved over a hereditament which was in such a physical condition that it was not capable of carrying such heavy traffic as omnibuses, he was unable to construe the grant in such a way that the grantee would be entitled to take over the road vehicles which were wider or heavier than the road could be asked to bear. There were two factors. The breadth of the omnibus, which would only allow 1 1/2" margin at either side as it went through a certain arch, and the strength of the retaining wall and the effect on it of the passage of motor omnibuses and heavy vehicles over the part of the road held up by it made it clear that that kind of thing never could have been contemplated. The learned judge, I think, really came to his conclusion on this ground. He looked at the subject matter of the reservation, namely the piece of ground over which the easement was to exist, and, finding it in the condition which I have mentioned, he construed the right of way as limited in its user."
1 Cites

1 Citers


 
The Palestine Kupat Am Bank Co-Operative Society Limited v The Government of Palestine and Others; The Government of Palestine v The Palestine Kupat Am Bank Co-Operative Society Limited Others [1948] UKPC 26
16 Mar 1948
PC

Commonwealth, Land

[ Bailii ]
 
Bracha Ben Ya'Acov and Others v Joseph Forer [1948] UKPC 50; [1948] UKPC 57
11 May 1948
PC

Commonwealth, Land, Contract
Palestine - The Board was asked whether certain contracts for the sale of some flats were valid in law.
[ Bailii ] - [ Bailii ]

 
 Wright v Macadam; KBD 1949 - [1949] 2 KB 727

 
 Dudley and District Benefit Building Society v Emerson; 1949 - [1949] 2 All ER 252

 
 Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board; CA 1949 - [1949] 2 KB 500

 
 Hall v Beckenham Corporation; 1949 - [1949 ] 1 KB 716

 
 Lewisham Borough Council v Roberts; CA 1949 - [1949] 2 KB 608
 
Sha Shivaraj Gopalji v Edappakath Ayissa Bi and Others [1949] UKPC 42
28 Jul 1949
PC

Commonwealth, Land
(Madras)
[ Bailii ]
 
Lala Manmohan Das v The United Provinces and Others; The United Provinces v Lala Manmohan Das and Others (Consolidated Appeals) [1949] UKPC 83
19 Dec 1949
PC

Commonwealth, Land
Allahabad - the board was asked whether certain charges on land were effective.
[ Bailii ]

 
 Malcolm's Trustees v Malcolm; HL 1950 - 1950 SC (HL) 17

 
 Rodger (Builders) Ltd v Fawdry; 1950 - 1950 SC 483
 
Lewis v Thomas [1950] KB 438
1950
CA

Land
The landowner had resisted the inference of a grant of a public right of way over his land by closing it off on one day each year. Held: Whether this was sufficient would depend upon the facts of each case.
1 Cites

1 Citers



 
 Goldberg v Edwards; 1950 - [1950] Ch 247
 
Lambourn v London Brick Co Ltd [1950] EG 28 July 1950
28 Jul 1950


Land, Negligence, Nuisance
Finnemore J stated that an unreasonable burden must not be placed on the reasonable owner: "the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees."
1 Citers


 
In re Webb's Lease, Sandom v Webb [1951] 1 Ch. 808
1951
CA
Lord Evershed MR, Jenkins LJ
Land
The court considered the acquisition of right of way of necessity. Evershed MR said: "If by this language Salter J intended to lay it down that in a case such as this (where it is or may be reasonable for the court to assume that, if the parties had applied to their minds to the problem of the advertisements, they would or should have made provision for securing to the landlord such right as he now claims) it is sufficient for the landlord to establish the absence of any evidence of a contrary intention, it seems to me that the proposition is in direct conflict with the principle, which is not only well established but which also, in my judgment, ought not to be lightly qualified, the principle that it is the duty of a grantor to reserve expressly any right he wishes to maintain against his grantee or at least to prove affirmatively that such a reservation was clearly intended by him and his grantee at the time of the grant."
Jenkins LJ referred to the Pwllbach Colliery case and said: "I find myself unable to agree with the judge's conclusion. The question is whether the circumstances of the case as proved in evidence are such as to raise a necessary inference that the common intention of the parties was to reserve to the landlord…some, and if so what, rights in regard to the display of advertisements, or such as to preclude the tenant from denying the implied reservation to the landlord of some such rights consistently with good faith. That question must be approached with the following principles in mind: (i) if the landlord intended to reserve any such rights over the demised premises it was his duty to reserve them expressly
(ii) the landlord having failed in this duty, the onus was upon him to establish the facts to prove, and prove clearly, that his case was an exception to the rule
(iii) the mere fact that the tenant knew at the date of the lease that the landlord was using the outer walls of the demised premises for the display of the advertisements in question did not suffice to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended to claim, or to take the case out of the general rule."
1 Cites

1 Citers


 
Leeman v Stocks [1951] 1 Ch 941
1951

Roxburgh J
Contract, Land
The plaintiff's was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The auctioneer put in the vendor's initials and surname ("W.E.Stocks"). After the bidding, the auctioneer inserted his details, a description of the premises and the auction price and, when he had obtained it, the purchaser's solicitors name. The document ended with the words "As witness the hand of the parties hereto the day and year before written. Purchaser's solicitor, R.A.C. Symes & Co, Southampton". The purchaser signed the document over a stamp. The auctioneer told the vendor of the sale but did not show him the document. Neither he nor the vendor signed the document in the ordinary sense of the word. The vendor refused to complete alleging that there was no note or memorandum. Held: The auctioneer was agent for both parties; and had authority to put before the purchaser, as he did, a document containing the name of the vendor as the party with whom the contract had been made, and the terms of the contract which had been made, for him to agree in writing. The placing of the name "W.E. Stocks" as the name of the vendor with whom the contract was made by the auctioneer was sufficient to count as a signature of a memorandum by an authorised agent.
Although the vendor's name was not inserted in the first instance with reference to a contract with the purchaser, nevertheless when it was put before the purchaser for signature, the vendor's name was in the document in relation to a contract which had become binding, albeit not actionable without a memorandum satisfying the statute.
The court was troubled that the document by its own terms contemplated that it should be signed by both parties, from which it could be said that until then it had not been signed at all. As to that he held that when the auctioneer obtained the purchaser's signature neither he, on behalf of the vendor, nor the purchaser intended any other signature ever to be added; but that both intended the document with the purchaser's signature to be the final written record of the contract. The court could examine the evidence to see if the document relied on came into being as a "perfect instrument" i.e. as the intended final embodiment of the agreement and, if it found that it did, the court was not prevented from holding it to be a sufficient memorandum. The "authenticated signature fiction" will only have application where it is intended by each party to the contract that the memorandum or note relied upon "should be the final written record of the contract".
1 Cites

1 Citers



 
 Universal Permanent Building Society v Cooke; CA 1951 - [1952] Ch 95; [1951] 2 All ER 893; [1951] 2 TLR 962
 
Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901
1951
ChD
Harman J
Land
The contracting purchaser of a property agreed, prior to completion, to let the ground floor of the property to two tenants. She subsequently borrowed a sum of money from the plaintiffs to enable her to complete the purchase. On completion, she granted the plaintiffs a mortgage which contained a prohibition on the creation of tenancies. On a claim for possession by the plaintiffs, the tenants argued that a tenancy by estoppel had been created prior to completion Held: The grant of the tenancies conferred on the prospective tenants an equitable interest.
Harman J said: "The question is whether I must assume the scintilla temporis and assume that because of the obligations of the landlord she must be held to have defrauded her mortgagee by creating a tenancy which is good against the society although it was not willing to lend the money except on the footing that she had no such right. I do not see why I need postulate this. The whole transaction was one transaction. The vendor would not sell without receiving his purchase money, and the mortgagee would not provide the purchase money without receiving the term of years. The money, in fact, went straight - as is the universal practice - from the mortgagee to the vendor, and not until it was in the vendor's hands would a legal state be created wither in favour of the landlord or of the mortgagee. It seems to me that the whole thing is one transaction in substance, and I am not constrained to introduce an artificiality so as to affect the rights of the building society. Consequently, I reject the argument that the doctrine of estoppel must have created in the tenants an estate in priority to that of the building society. The grantor of the so-called tenancy would never have acquired the estate which she did acquire but for that mortgage money, and it would not be right, therefore, to introduce a fiction in the manner suggested."
1 Citers


 
Price v Watson 1951 SC 359
1951

Lord Keith
Scotland, Land
One pro indiviso proprietor of heritable property sought summarily to eject other pro indiviso proprietors from part of the property. Held: Lord Keith doubted the need to sist the action of ejection: "That it can be used against a co-owner who has a right to possess, flowing from his property title, is, in my opinion, a plain impossibility. A co-owner, it is true, has not an exclusive right of possession, unless by agreement with his co-owners, but he may possess in a variety of ways. He may allow a co-owner to have sole natural possession in return for a compensating money payment; . . . Nowhere will a trace be found in textbook or decision that a dispute about possession between co-owners can be solved by an action of ejection, though down the centuries countless such cases must have occurred."
1 Citers



 
 Copeland v Greenhalf; ChD 1952 - [1952] Ch 488; [1952] 1 All ER 809
 
Newton Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd [1952] Ch 286
1952
ChD
Upjohn J
Land
A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word "assign" was apposite to an assignment of the land and not the benefit of the covenant.
A vendor, who carried on the business of an ironmonger on premises known as Devonia, of which she was the owner, conveyed property opposite those premises to a purchaser. The conveyance contained a covenant by the purchaser not to carry on the business of an ironmonger on the property conveyed. The successor in title of the original covenantee sought to enforce the covenant against a successor in title of the original covenantor. Held: The 1923 conveyance did not annex the benefit of the covenant to Devonia. Upjohn J: "In this difficult branch of the law one thing in my judgment is clear, namely, that in order to annex the benefit of a restrictive covenant to land, so that it runs with the land without express assignment on a subsequent assignment of the land, the land for the benefit of which it is taken must be clearly identified in the conveyance creating the covenant." A restrictive covenant taken for the protection of a business carried on on land owned by the covenantee was a covenant taken for the benefit of land; in other words a property interest. In this context the word "assign" was apposite to an assignment of the land and not the benefit of the covenant.
1 Citers


 
Barclays Bank v Beck [1952] 2 QB 47
1952
CA
Denning LJ
Land, Contract
The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured.
1 Citers


 
Bendall v McWhirter [1952] 2 QB 466
1952
CA
Denning LJ, Somervell and Romer LLJ
Family, Land
The trustee in the husband's bankrupty, by virtue of his statutory position, was subject to the same special restriction as would prevent the husband himself from evicting his wife.
The deserted wife had a personal licence to occupy the former matrimonial home that was valid as against the trustee in bankruptcy of her husband. Every subordinate interest perishes with the superior interest upon which it is dependent.
Denning LJ (dissenting) said that the wife had an equity which was binding on the trustee.
1 Citers


 
Edwards v Railway Executive [1952] 2 All ER 430; [1952] AC 737
1952
HL
Lord Porter, Lord Goddard, Lord Oaksey
Negligence, Personal Injury, Land
A boy aged 9 was injured on a railway line. He had been warned not to go onto the land and had found his way through a defective fence. He claimed in negligence. The fence had been breached by children with some frequency for many years before the accident. When defects were observed by the Defendant's employees, repairs were duly effected. These were required with frequency. The evidence was that the fence was intact on the accident date. Held: He was a trespassr and not a licensee.
Lord Goddard said: "repeated trespass of itself confers no licence . . how is it to be said that (an occupier) has licensed what he cannot prevent . . Now, to find a licence there must be evidence either of express permission or that the landowner has so conducted himself that he cannot be heard to say that he did not give it . . What then have they done in this case to lead anyone to suppose that they may go on to their property to play ?"
Lord Oaksey said: "In my opinion, in considering the question whether a licence can be inferred, the state of mind of the suggested licensee must be considered. The circumstances must be such that the suggested licensee could have thought and did think that he was not trespassing but was on the property in question by the leave and licence of its owner."
Lord Porter said that the first question to be decided was: "whether there was any evidence from which it could be inferred that children from the recreation ground had become licensees to enter the respondent's premises and toboggan down the embankment . . There must, I think, be such assent to the user relied upon as amounts to a licence to use the premises. Whether that result can be inferred or not must, of course, be a question of degree, but in my view a court is not justified in likely inferring it . . The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondents to fence, children again and again broke their way through. What more, the appellants asked, could the respondents do? Report to the Corporation? But their caretaker knew already. Prosecute? First you have to catch your children and even then would that be more effective? In any case I cannot see that the respondents were under any obligation to do more than keep their premises shut off by a fence which was duly repaired when broken and obviously intended to keep intruders out."
1 Citers


 
Barry v Hasseldine [1952] Ch 835
1952

Danckwerts J
Land
The grantee's land was surrounded partly by land of the vendor, and partly by that of other parties, including a disused airfield owned by a third party. For some time following the grant they had been able to obtain access over the airfield by permission of the owner. There was an argument, rejected by the judge, that he had agreed to abandon any claim to access over the vendor's land. The issue therefore arose as to his legal rights in the event of the permissive right being unavailable. Held: Where a freehold site is land-locked, there is normally implied a right of way irrespective of any common intention of the parties as to its creation or otherwise. There was a finding of a “conditional abandonment” of a way of necessity, the need for which might or might not arise if the permissive way were lost. If the land is partly bounded by the vendor’s land and partly by the land of a third party, a merely permissive way over the third party’s land (as the only means of access) will not prevent the purchaser acquiring a right over the vendor’s land. The acid test of whether a person needs a way is whether he can compel an adjoining owner to grant him a legal right.
Danckwerts J said: "the law would clearly have implied in favour of the grantee of the triangular piece of land a way of necessity – that is to say, a right of way to enable the grantee to obtain access over the grantor's land in some line to be chosen by the grantor; so that the triangular piece of land would be of some use to the grantee instead of being useless, as it would be if no right of way existed. I am satisfied that the law would have implied such a right notwithstanding that the piece of land granted by the conveyance of 1947 was not completely surrounded by the grantor's land, but on three sides abutted on to land which belonged to other persons." and
"There is therefore no express authority on the point. In my opinion, however, if the grantee has no access to the property which is sold and conveyed to him except over the grantor's land or over the land of some other person or persons whom he cannot compel to give him any legal right of way, commonsense demands that a way of necessity should be implied, so as to confer on the grantee a right of way, for the purposes for which the land is conveyed, over the land of the grantor; and it is no answer to say that a permissive method of approach was in fact enjoyed, at the time of the grant, over the land of some person other than the grantor because that permissive method of approach may be determined on the following day, thereby leaving the grantee with no lawful method of approaching the land which he has purchased."
1 Citers


 
Woolwich Equitable Building Society v Marshall [1952] Ch 1
1952
ChD
Danckwerts J
Land

1 Citers


 
Rodgers v Ministry of Transport [1952] 1 All ER 634; (1952) 116 JP 200; [1952] 1 TLR 625; (1952) 96 Sol Jo 197; (1952) 50 LGR 520
20 Feb 1952
QBD
Lord Goddard CJ
Land
A cafe operated by the trunk road. Lorry drivers when pulling off to stop, damaged the verge, along which ran a public footpath. The defendant constructed a lay-by for the lorries, re-routing the footpath around it, purporting tu use powers under the 1936 Act. The plaintiff objected. Held: The action for an injunction failed. The verge was part of the highway, and it was a proper use of the highway to pull over on to it for a temporary stop for a legitimate purpose, provided that he caused no obstruction to either the highway, or in this case the footpath. The works had not amounted to the construction of a car park, but were merely levelling and widening the highway. The defendant had not exceeded his powers.
Trunk Roads Act 1936 - Highway Act 1864 47 48
1 Cites


 
Arumugam Nagalingam of Polikandy v Arumugam Thanabalasingham and Others [1952] UKPC 27; [1953] AC 1
6 Oct 1952
PC

Commonwealth, Land
Ceylon
[ Bailii ]

 
 Sarum Trust Ltd v Duke of Westminster; 1953 - [1953] CPL 86

 
 Davies v Du Paver; 1953 - [1953] 1 QB 184

 
 RPC Holdings Limited v Rogers; 1953 - [1953] 1 All ER 1029

 
 Thompson v Bankstown Municipal Corporation; 1953 - (1953) 87 CLR 619

 
 Dunster v Abbott; CA 1953 - [1953] 2 All ER 1572 CA; [1954] 1 WLR 58

 
 In re Downshire Settled Estates; CA 1953 - [1953] Ch 218

 
 Bulstrode v Lambert; ChD 1953 - [1953] 1 WLR 1064; [1953] 2 All ER 728
 
Smeaton v Ilford Corporation [1954] Ch 450
1954
ChD
Upjohn J
Utilities, Land
Overloading caused the corporation's foul sewer to erupt through a manhole and discharge "deleterious and malodorous matter" into Mr Smeaton's garden. Held: The authority were not liable. e connections with the sewer and to discharge their sewage into it.
The court denied the possibility of pursuing a claim for damages in nuisance where there was a statutory remedy available: "No doubt the defendant corporation are bound to provide and maintain the sewers (see section 14 of the Public Health Act 1936), but they are not thereby causing or adopting the nuisance. It is not the sewers that constitute the nuisance; it is the fact that they are overloaded. That overloading, however, arises not from any act of the defendant corporation but because, under section 34 of the Public Health Act 1936 . . they are bound to permit occupiers of premises to make connexions to the sewer and to discharge their sewage therein . . Nor, in my judgment, can the defendant corporation be said to continue the nuisance, for they have no power to prevent the ingress of sewage into the sewer."
Public Health Act 1936 14 34
1 Cites

1 Citers


 
Barclays Bank Ltd v Bird [1954] 1 Ch 274
1954

Harman J
Land, Equity
An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: "An equitable mortgagee . . has no right to possession until the court gives it to him."
1 Citers


 
Church of England Buidling Society v Piskor [1954] Ch 553
1954
CA

Land, Landlord and Tenant
Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were binding on the building society whose money the purchaser had used to complete and in whose favour a charge (containing provisions against leasing by the chargor) was executed at the same time as completion of the purchase. Default having been made in payments due under the society's charge, the society were not entitled to possession against the tenants in possession. Held: The tenants succeeded. The various conveyancing steps must be treated as separate steps in the eye of the law. The court accepted the argument of the tenants that they had acquired their tenancies by estoppel which was "fed" by the acquisition of the legal estate, thereby converting their tenancies into legal tenancies binding on the society. The court rejected the argument of the society that the conveyance and the charge were in reality one single transaction with the result that the purchaser's legal estate was, from the outset, subject to the society's charge and so could not be available to feed the estoppel free from it.
1 Cites

1 Citers


 
Billing v Pill [1954] 1 QB 70
1954

Lord Goddard CJ, Aldous L.J
Land
A shed was erected on land. It was 135 feet long and 150ft wide. It was on a concrete floor and attached by straps. Was it a fixture? Held: Lord Goddard CJ said: "What is a fixture? The commonest fixture is a house which is built into the land, so that in law it is regarded as part of the land. The house and the land are one thing."
Aldous LJ: "In the present case we are concerned with a chalet which rests on concrete pillars and I believe falls to be considered as a unit which is not annexed to the land. It was no more annexed to the land than the greenhouse in Deen v. Andrews or the large shed in Webb v. Frank Bevis Ltd. Prima facie, the chalet is a chattel and not a fixture."
1 Cites

1 Citers



 
 Hartley v Mayoh and Co; 1954 - [1954] 1 QB 383
 
Greene v Chelsea Borough Council [1954] 2 QBD 127
1954
CA
Lord Denning MR
Personal Injury, Land, Negligence
Lord Denning MR said: "Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger".
1 Citers


 
Tithe Redemption Commission v Runcorn Urban District Council [1954] 2 WLR 51; [1954] Ch 383
1954
CA
Denning LJ
Land, Local Government
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: "The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate in fee simple determinable in the event of it ceasing to be a public highway."
Local Government Act 1929 29
1 Cites

1 Citers


 
Anderson v Lambie [1954] UKHL 3; [1954] 1 WLR 303; [1954] 3 All ER 157 (Note); 1954 SLT (Notes) 22; 1954 SLT 73; 1954 SC (HL) 43
25 Jan 1954
HL
Lord Reid, Lord Keith of Avonholm
Scotland, Land, Litigation Practice, Contract
As the result of a mistake, a disposition of property conveyed the entirety of an estate which consisted mainly of a farm, but also included other property. The preceding missives of sale were capable of more than one meaning as to the extent of the subjects to be conveyed. The evidence established that the missives had themselves been preceded by an oral agreement for the sale of the farm alone. Held: The appeal succeeded and the decision of the First Division reversed. Such problems with this type of mistake in expression could not be resolved by construing the document as it stood, unlike a mistake in expression which was obvious on the face of the document. Neither was this a situation where an agreement was vitiated by error: "in the present case the error only arose after the parties had reached agreement". There must nevertheless be a remedy.
However, it was incompetent under Scots law for a defectively expressed document to be corrected by the court so as to give effect to the true agreement between the parties.
Lord Keith of Avonholm said that reduction was available in the event of a conveyance or contract "being expressed as regards essentials in different terms from what the parties really intended and had agreed between them".
As to the remedy of reduction, Lord Reid said: "But, when it is sought to reduce a deed, it is necessary to go behind the deed and discover the real facts. The fact that the parties agreed to the missives is important evidence but it is not the only competent evidence. The question is not what the missives mean: if that were the question, the ordinary rule would apply that the meaning of a document must be found from its terms. The question is whether the real facts are such that the disposition must be reduced, and the existence of the missives does not alter the nature of the inquiry."
1 Cites

[ Bailii ]
 
Kesarmal S/O Letchman Das and Another v N.K.V. Valliappa Chettiar S/O Nagappa Chettiar [1954] UKPC 6; [1954] 1 WLR 380
2 Feb 1954
PC

Land
Appeal against order settig aside transfer of land as obtained under duress.
[ Bailii ]
 
Chief Kwame Asante, Tredehene, for and Behalf of His Stool v Chief Kwame Tawia, for similar [1954] UKPC 7
15 Feb 1954
PC

Land
(West Africa)
[ Bailii ]
 
T.R.M. Thevaraya Pillay v Mooka Pillay S/O Muthiah Pillay [1954] UKPC 12
16 Mar 1954
PC

Land
(Malaya)
[ Bailii ]
 
Arthur Villeneuve Nicolle v Henry Frederick James Wigram and Another [1954] UKPC 17; [1954] AC 301; [1954] 2 WLR 962
27 Apr 1954
PC

Land
Jersey
[ Bailii ]

 
 Perry v Thomas Wrigley Ltd; 1955 - [1955] 3 All ER 243; [1955] 1 WLR 1164
 
Chivers and Sons Ltd v Air Ministry [1955] 1 Ch 585
1955

Wynn-Parry J
Ecclesiastical, Land
The liability of the lay impropriator to pay the cost of repairing the chancel has been part of ecclesiastical law for many centuries. It rests on the maxim, which has long been recognised, that he who has the profits of the benefice should bear the burden. The burden is imposed for the benefit of the parishioners. The liability to repair the chancel is not a charge on the rectorial property, but a personal liability imposed on the owner or owners for the time being of the rectorial property. If there is more than one owner, each is severally liable.
1 Citers


 
Bull v Bull [1955] 1 QB 234
1955
CA
Devlin J, Denning LJ
Land, Trusts
The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those arrangements fell through, the son sought possession of the house. Held: Neither of joint tenants is entitled to exclude the other from occupation of the property held as joint tenants at law. However, the joint tenancy was created for a particular purpose, and an order for sale was refused where the effect would be to defeat that purpose. The parties had intended at the time the house was bought that the property would be tenants in common.
Denning LJ: "The son is, of course, the legal owner of the house, but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in prportion to his or her respective contribution. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but, if one of them should take more than his proper share, the injured party can bring an action for an account. If one of them should go so far as to oust the other, he is guilty of trespass.
Since 1925 there has been no such thing as a legal tenancy in common. All tenancies in common now are equitable only and they take effect behind a trust for sale (s36(4) of the Settled Land Act 1925). Nevertheless, until a sale takes place, these equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
My conclusion, therefore, is that when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner and that neither of them is entitled to turn out the other."
Settled Land Act 1925 36(4)
1 Citers


 
Perezic v Bristol Corporation [1955] 5 P & CR 237
1955


Land
In calculating compensation on a compulsory purchase, there should be no deduction from notional profit to reflect the "wages" of the proprietor of a business operated by a sole trader.
1 Citers


 
Prescott v Birmingham Corporation [1955] 1 Ch 910
1955


Land


 
Guinness Trust (London Fund) v Green [1955] 1 WLR 872
1955


Land
Terms used in older documents could be re-interpreted to accord with current usage.
1 Citers


 
Lambe v Secretary of State for War [1955] 2 QB 612
1955
CA

Land, Damages
The acquiring authority was a sitting tenant and the compulsory purchase order related to the freehold reversion. Held: Rule 3 was inapplicable. The marriage value which a reversion has for a sitting tenant does not clothe the land with a special suitability within that rule. The court decided that the correct measure of value was the price the acquiring authority, in the course of Lord Romer's friendly negotiation, would have been willing to pay for the reversion if it had no compulsory powers. This included the marriage value.
1 Cites

1 Citers



 
 Randall v Tarrant; CA 1955 - [1955] 1 WLR 255
 
Phipps v Rochester Corporation [1955] 1 All ER 129
1955

Devlin J
Personal Injury, Land, Torts - Other
A 12 year old child claimed damages having been injured trespassing on the defendant's premises. Held: An occupier who resigns himself to the occasional and perhaps inevitable presence of trespassers on his premises is not to be regarded as having assumed the obligations of a licensor. The court, looking at occupier's liability to trespassing children, noted the difference between big children and little children, that is "children who know what they are about and children who do not".


 
 Hopgood v Brown; CA 3-Feb-1955 - [1955] 1 WLR 213; [1955] 1 All ER 550; (1055) 99 Sol Jo 168; [1955] EWCA Civ 7

 
 In re Ellenborough Park; CA 15-Nov-1955 - [1956] 1 Ch 131; [1956] 3 All ER 667; [1955] EWCA Civ 4
 
Barr's Contract, Moorwell Holdings Ltd v Barr [1956] 2 All ER 853; [1956] 1 Ch 551; [1956] 100 Sol Jo 550
1956


Land
The parties contracted for the sale and purchase of lands with a date fixed for completion. The National Conditions of sale were used. The vendors served a notice to complete on the day after the purchasers should have completed, requiring completion within 28 days. When the purchasers again failed, they sought to forfeit the deposit. Held: The conditions required a reasonable period betwee the notice to complete and the new date made of the essence. The period of 28 days was unreasonably short because the vendors knew the purchasers would not be able to complete within that time period. In the result the notice to complete was ineffective to allow the vendor to rescind and to forfeit the deposit.


 
 Fairey v Southampton City Council; CA 1956 - [1956] 2 QB 439

 
 Goody v Baring; CA 1956 - [1956] 1 WLR 448; [1956] 2 All ER 11; [1956] Sol Jo 320
 
In re Ingleton Charity [1956 ] Ch 585
1956


Land, Limitation
The effect of section 2 of the 1841 Act is that if a reverter occurred but the trustees of the school remain in possession for 12 years, the title by reverter will usually become statute-barred.
School Sites Act 1841 2
1 Citers


 
Milner v Staffordshire Congregational Union (Inc) [1956] Ch 275; [1956] 2 WLR 556; [1956] 1 All ER 494
1956
ChD
Dankwerts J
Land, Charity
The plaintiff had contracted to buy land from a charity. The consent of the Charity Commissioners had not been obtained, but the contract was not conditional on such consent. When the charity trustess realised that consent was required they told the plaintiff that the contract was conditional on such consent and applied for consent. Before that consent was received, the plaintiff purported to rescind the contract, and sue for the return of his deposit. Held: Dankwerts J said: "I have to decide what that Act means when it says: 'make a sale'. It does not say 'make a conveyance' or 'complete a sale' or anything of that sort; it simply says 'make any sale', and I think for the purposes of the section, though I am bound to say that the matter is not free from doubt, that a sale is made when a contract is entered into by the owners of the property in question for the sale of the property to some purchaser. It is therefore a breach of the terms of the section if a body of charitable trustees enters into a contract to sell the trust property without the authority of the Charity Commissioners. I would observe that there is some support for this view to be found in the documents in the present *59 case. In the alleged contract the phrase is: 'The property is sold subject to any reservations', and so on, and in the solicitors' letter of 24 September 1954, the expression is: 'The sale of this property must be subject to the consent of the Charity Commissioners.' It is perhaps then not unreasonable to think that the word 'sale' in the section must be used in a similar manner. I am not saying, of course, that a conveyance in pursuance of the purported contract would be any more lawful than the original contract; but it seems to me that the word 'sale' must include the making of a contract of sale at least as well as a conveyance on sale." The contract was unlawful; the plaintiff was not bound by it; and he was entitled to repayment. The court considered that the expression "make any sale" in section 29 of the 1855 Act, included a contract for sale.
Charitable Trusts Amendment Act 1855 29
1 Citers



 
 Nyali Ltd v Attorney-General; CA 1956 - [1956] 1 QB 1

 
 Smith (Kathleen Rose) v East Elloe Rural District Council; HL 26-Mar-1956 - [1956] AC 736; [1956] 1 All ER 855; [1956] UKHL 2
 
Nana Kwei Gyarku III, Odikro of Ayinasu v Joseph Sam Brew and Another [1956] UKPC 39
20 Nov 1956
PC
Oaksey, Cohen, Keith of Avonhome LL, de Silva
Commonwealth, Land
West Africa
[ Bailii ]
 
Billings (AC) and Sons Ltd v Riden [1958] AC 240; [1957] 3 WLR 496; [1957] 3 All ER 1; [1957] UKHL 1; [1957] 1 QB 46
1957
HL
Lord Somervell of Harrow, Lord Cohen, Lord Reid
Negligence, Land
A building contractor may assume a duty of care to a visitor, though the contractor was not viewed as the occupier, the occupier being separately liable to the injured plaintiff. However, "if the Plaintiff knew the danger, either because he was warned or from his own knowledge or observation, the question is whether the danger was such that in the circumstances no sensible man would have incurred it or, in other words, whether the Plaintiff's exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not, then the fact that he voluntarily or knowingly incurred the danger does not entitle the defendant to escape from liability."
Lord Reid said: "There may be many cases in which warning is an adequate discharge of the duty . . but there are other cases when that is not so" and illustrated this view by reference to case law. He continued: "The conclusion to be drawn from these cases appears to me to be that there is no magic in giving a warning. If the plaintiff knew the danger, either because he was warned or from his own knowledge and observation, the question is whether the danger was such that in the circumstances no sensible man would have incurred it or, in other words, whether the plaintiff's exposing himself to the danger was a want of common or ordinary prudence on his part. If it was not, the fact that he voluntarily or knowingly incurred the danger does not entitle the defendant to escape from liability." The laintiff need not be a "paragon of circumspection".
1 Citers

[ Bailii ]

 
 London County Council v Wilkins (Valuation Officer); HL 1957 - [1957] AC 362

 
 Manning v Turner; 1957 - [1957] 1 WLR 91
 
Re Birmingham, deceased; Savage v Stannard [1959] Ch 523; [1958] 2 All ER 397
1957


Land
An unpaid vendor's lien arises the moment the contract is entered into. It is discharged on completion to the extent that the purchase money is paid.
1 Citers


 
Halsall v Brizell [1957] Ch 169; [1957] 1 All ER 371; [1957] 2 WLR 123
1957
ChD
Upjohn J
Land, Equity
The Court was asked whether the covenant to pay an appropriate proportion of the costs of keeping in good repair the roadways, sea wall, drains and sewers in respect of a common development was enforceable. Held: The defendants could not be under any liability to pay their obligations if they did not desire to take the benefit of the deed. On the other hand if they wanted the benefit they must pay. the defendants could not have a right, apart from the deed, to use the roads of the park which led to their particular house. Upjohn J. went on to find that the defendants could not rely on any way of necessity because he held that, when the house was originally sold to the predecessors in title of the then current occupants, same was conveyed subject to a covenant to bear a proper proportion of the expenses in respect of the maintenance of the roads as a condition for being entitled to make use of those roads and other services.
1 Cites

1 Citers


 
Bell v Norman C Ashton Ltd (1957) 7 P & CR 358
1957

Harman J
Land
The property was on land part of a building scheme, with a covenant not to erect more than two houses on any one plot on the estate. Other restrictive covenants had been breached by the use of some properties as shops and by the erection of dwelling houses which did not meet the minimum value criterion laid down, and in particular there had been fifty "temporary or . . semi-temporary residences" of low value. However eventually the scheme ended up broadly as intended. It was argued that a planning permission which would permit greater densities made the covenants obsolete. Held: Where the only persons who could consent were the original vendors and they had ceased to be available, there was no dispensing power and, hence, the covenant was absolute. Harman J rejected the argument saying that the defendant's surveyor had said: "that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation." and
"It is said that, quite apart from what happens on the estate, what happened round it affects it. That is a somewhat doubtful doctrine. But supposing that to be so, what has happened? There are three estates round about this one now where people live and jostle each other cheek by jowl, being closer together than are the persons on this estate. The character of the neighbourhood, I agree, has entirely changed in that it is no longer a rural area with an outlying estate upon it, but an urban or suburban area of the City of Leeds. But the change of itself is not such a change as will disentitle the plaintiff to succeed. The area remains a residential area. It is not a commercial area. It is a place for people to live in. The plaintiff and those who share the benefits of these covenants are lucky to live in a place where a little more room is given to breathe the crowded air of this country than have their neighbours. They are lucky, but it is a right which in my judgment the law will support unless by their own negligence they have disentitled themselves to protection."
1 Citers


 
Truckell v Stock [1957] 1 All ER 74; [1957] 1 WLR 161
1957
CA

Land
The court considered the effect of a conveyance where an inspection of the ground revealed a mistake in the description of the land.
1 Citers


 
Fourmaids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317
1957

Harman J
Land
A necessary consequence of the legal foundation of a mortgage is that the court may not to refuse, or to suspend, an order for possession sought by a mortgagee who was otherwise entitled to enter by virtue of his estate.
1 Citers


 
Davey v Harrow Corporation [1957] 2 WLR 941; [1957] 2 All ER 305; [1958] 1 QB 60
1957
CA
Lord Goddard CJ
Land, Nuisance
The Plaintiff's house was damaged by roots penetrating from trees on adjoining land. At first instance, Sellers J found that the damage was caused by the trees, but they were not proven to be the property of the defendants. On appeal and after further evidence it was found that the trees had been growing for some time on the defendants land. Held: The defendants were liable in nuisance for damage caused by encroaching roots whether self sown or planted. Where a boundary hedge is delineated on an Ordnance Survey map by a line, the line indicates the centre of the existing hedge. This accords with the practice of the OS and courts can take notice of that practice as prima facie evidence of what a line on a map indicates. "After that Fisher -v- Winch and this, courts in future can take notice of this practice of the Ordnance Survey (that the boundary line on the map indicated the centre of the existing hedge) as at least prima facie evidence of what a line on the map indicates." As to damage by roots: "once it is established that encroachment by roots is a nuisance, it must follow that if damage is thereby caused, an action on the case will lie."
1 Cites

1 Citers


 
Watson v Burton [1957] 1 WLR 19
1957


Land
The seller had overstated the size of the property by 40%. The buyer sought rescission. Held: A misdescription of a property must be so substantial as to deprive a purchaser of his bargain before he can claim rescission. Whether a misdescription is substantial or not is one of fact for the court to decide in the circumstances of each particular case


 
 Four-Maids Ltd v Dudley Marshall (Properties) Ltd; 1957 - [1957] 1 Ch 317

 
 Pinewood Estate, Farnborough, Re; New Ideal Homesteads Ltd v Levack; ChD 1957 - [1957] 2 All ER 517; 101 Sol Jo 554

 
 Halsall v Brizell; ChD 1957 - [1957] 1 All ER 371; [1957] Ch 169

 
 Kelson v Imperial Tobacco Company; 1957 - [1957] 2 QB 344
 
Williams Brothers Direct Supply Ltd v Raftery [1958] 1 QB 159; [1957] 3 All ER 593
1957
CA

Land, Limitation
In a claim for the adverse possession of land, the court is to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done on it and the intention of the squatter must be considered.
1 Citers


 
Webb v Nightingale March 8 1957 CA Bar Library Transcript No 84
8 Mar 1957
CA
Denning LJ
Land
A boundary line which the parties had agreed and marked out could supersede a plan on a conveyance expressly said to be for identification only. Lord Denning: “It seems to me that the line of white stakes with the white peg in the south-east corner and the post and wire fence at the north-east corner, were physical features on the land showing what was being sold. The plan on the conveyance was for the purpose of identification only. If it were an exact delineation there would be some difficulty in regard to the northerly northern boundary. It would run along the hedge and trees and would make the northern boundary four to six feet further north of the post and wire fence. But as the plan is only for the purpose of identification, I think we can ignore that discrepancy. On the land itself the metes and bounds of this property were sufficiently shown so that anyone looking at the land at the date of the conveyance could have seen perfectly well what was being sold.”
1 Citers


 
In Re Hamilton-Snowball's Conveyance [1958] Ch 308
1958

Upjohn J
Land, Contract
The vendor had received, between contract and completion, compensation for the requisition of the premises. Held: The vendor under a contract for sale is only a qualified trustee for the purchaser of the premises with vacant possession, together with any physical accretions thereto, and not of any right to compensation moneys payable to him under an Act of Parliament which did not, in the absence of express provision in the contract, form part of the subject matter of the sale.
1 Citers


 
Timmins v Moreland Street Property Co Ltd [1958] Ch 110; [1957] 3 All ER 265
1958
CA
Jenkins LJ
Land, Contract
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as "6,8 and 41, Boundary Street, Shoreditch (freehold)." It was sought to connect the signature on a purchaser's deposit cheque with an unsigned memorandum that stated the terms of the contract. Held: Jenkins LJ said: "A description of this kind is to be taken as extending to the whole of the vendor’s interest in the property, so that the memorandum on the face of it records an agreement for the sale and purchase of the while of such interest. Moreover, unless the contrary appears, such interest is to be taken as comprising the fee simple in possession free from incumbrances, and the purchaser will be entitled to reject any less interest than that."
When asked as to whether a cheque and a receipt could be read together he said: "it is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together so as to constitute a sufficient memorandum."
Law of Property Act 1925 40
1 Citers


 
District Bank v Webb [1958] 1 All ER 126; [1958] 1 WLR 148
1958

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


 
Brown v Raphael [1958] Ch 636
1958

Lord Evershed MR, Romer LJ, Ormerod LJ
Land, Contract
This was a sale of an absolute reversion in a trust fund. The particulars stated that: "Estate duty will be payable on the death of the annuitant who is believed to have no aggregable estate" and the name of the solicitors who prepared the particulars was given. The solicitors made the statement of belief honestly but they had no reasonable grounds for so believing. The solicitors were better equipped with information or the means of information than the purchaser. Held: A statement that a vendor is not aware of a defect in title carries with it an implied representation that he has taken reasonable steps to ascertain whether any exists. The statement of belief not merely implied that the solicitors held that belief, but also by implication that the solicitors knew facts which justified their opinion; that they had reasonable grounds for their belief.
1 Cites

1 Citers


 
City and Westminster Properties v Mudd [1958] 2 All ER 733
1958
ChD
Harman J
Land

1 Cites


 
Grice and another v Dudley Corporation [1958] Ch 329
1958
ChD
Upjohn J
Land
An authority serving a notice to treat no longer has a statutory power to acquire land in circumstances where the order under which the notice had been served was for the acquisition of land for specific purposes which the authority had abandoned. Accordingly, the notice to treat was no longer effective. As to the effect of section 123: "out of the picture and no further period is laid down by statute within which the next step to acquire the property must be taken. In my judgment, however, the authorities . . established the following propositions: first, the authority exercising statutory powers to acquire land must enforce its notice within a reasonable period. If the authority sleeps on its rights, it will be barred absent explanation. If it is explained, the acquiring authority may enforce the notice if it is equitable to do so. However, the oppression on the owner of land in respect of which a notice to treat has been given cannot be wholly disregarded, however sound the reason for not proceeding to enforce it. The acquiring authority may also evince an intention to abandon the rights given to it by the notice to treat, in which case the owner is entitled to treat those rights as abandoned. Thirdly, the court has an inherent jurisdiction to control the exercise of statutory powers if, but only if, the court can see that the powers are being exercised not in accordance with the purpose for which the powers were conferred. The court may to restrain the further exercise of those powers not in accord with the special act. These three propositions are, in point of law, distinct, but, in practice, they tend to merge one into the other, more particularly the first two, for unequivocal acts of abandonment seldom arise."
Land's Clauses Consolidation Act 1845 123
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Armstrong v Sheppard and Short Ltd [1959] 2 QB 384; [1959] 2 All ER 651; [1959] 3 WLR 84; (1959) 123 JP 401; (1959) Sol Jo 508
1959
CA
Lord Evershed MR
Estoppel, Equity, Nuisance, Torts - Other, Land
The plaintiff had a path at the rear of his property. The defendant constructed a sewer under the path, and asked the plaintiff for permission. He gave it informally, not knowing at the time that he owned the land. The sewer was constructed. Though suffering no inconvenience, on discovering his ownership, the plaintiff requested the removal of the sewer and its manhole, and an associated injunction. The judge at trial found a trespass, but gave only nominal damages and refused an injunction. Held: The plaintiff was not debarred from objecting when his acquiescence arose through ignorance. However the trespass was trivial, and no injunction was granted.
As to the cross appeal, though the trespass was forgiven by the consent, that could not answer the claim as to the continuing discharge since that would amount to an easement which would require a formal grant.
Lord Evershed MR said: "it is true to say that if a man, having a proprietary right, proves an infringement of that right, prima facie he is entitled to an injunction: but that needs some qualification. It is not a matter of unqualified right; and one ground for denying an injunction would be that the wrong done is, in the circumstances, trivial. That proposition is founded on the well-known case of Imperial Gas Light and Coke Co. (Directors) v. Broadbent . . The judge was here dealing with the claim as I have formulated it: and he came to the conclusion that the circumstances of this case were special, and, as his judgment shows, that the damage was trivial . . But there were other good grounds, and formidable grounds (as I think) for refusing the plaintiff an injunction. That he misled the defendants is beyond a peradventure. It is no less clear that he attempted to mislead the court. He asserted - contrary to the fact - that he had never had any conversation with the defendants about the matter at all; and in his evidence in chief he so swore, untruly. It is not, therefore, surprising that the judge came to the conclusion that he should grant no equitable relief; and in my judgment, on the facts of this case, he was well entitled to take that view."
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Abdulla v Shah [1959] AC 124
1959
PC
Lord Somervell of Harrow
Contract, Land, Commonwealth
(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as that of a trustee under the Indian Trusts Act 1882, which in turn was substantially that of a trustee under English law. Held: A vendor of rent-restricted property which had become vacant between the dates of the contract and of completion was under a duty to consult the purchaser before reletting (at controlled rents) prior to completion of the contract The vendors had no right without consultation with the purchasers to diminish the value of the property as it was after the surrender by reletting.
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