A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a finding of liability.
Held: Appeal and cross-appeals dismissed. For the purposes of the Act, the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
Megaw, Lawton, Ormrod LJJ
[1976] 1 All ER 341, [1975] EWCA Civ 10, [1975] 1 WLR 379
Bailii
Housing Act 1957
England and Wales
Citing:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Wheat v E Lacon and Co Ltd HL 1966
The Appellant’s husband, fell while going down the back stairs of a public house called ‘The Golfer’s Arm’ at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and died later. She appealed against rejection . .

Cited by:
Distinguished – Bushell and Others, Regina (on the Application Of) v Newcastle Licensing Justices and others CA 25-Jun-2004
The applicant sought special removal of a justices on-licence from former premises to its new premises.
Held: The special removal procedure was limited to circumstances of urgency. The applicant had to show that the circumstances fell within . .
Cited – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189963

(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four characteristics – definition of easement – definition of recreation – no reason in law why easement cannot be granted for recreational purposes – intention of grantor to create large recreational area – encumbrance subject and conditional to registered easements – affects each section of land which receive benefit of the easement – test for an easement – recreational purpose is to be construed sensibly and reasonably in context of rural lakeside recreation – right conferred in respect of the grants of easements are in law easements
There was no reason in law why an easement could not be granted for recreational purposes.
Thomas J
(2000) 135 NTR 1, (2000) 156 FLR 1, [2000] NTSC 33
Austlii
Australia
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581419

(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in In re Ellenborough Park .
Gillard J
(1974) 30 LGRA 79, [1974] VR 547, [1974] VicRp 67
Austlii
Australia
Cited by:
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.581350

Kay J considered that a customary right over land might be confined to the inhabitants of a district.
Kay J
(1890) 44 Ch D 110
England and Wales
Cited by:
Cited – Edwards v Jenkins 1896
Application was made to register a customary right over land.
Held: The ‘locality rule’ applied. The inhabitants of the contiguous Surrey parishes of Beddington, Carshalton and Mitcham could not have a customary right of recreation over land . .
Cited – Paddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.441214

There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay.
Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant.
Buckley LJ said: ‘The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.’ As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right – as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant – acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.’
Buckley LJ, Goff LJ
[1977] 1 WLR 970
England and Wales
Citing:
Cited – Willmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
Exlained – Wilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Cited by:
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Applied – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Cited – Mills v Partridge, The Estate of and Another ChD 5-Aug-2020
Rights and obligations relating to three parcels of land . .
Cited – Argus Media Ltd v Halim QBD 7-Feb-2019
Challenge to validity of post employment restraint clause. . .
Cited – Singh v Rainbow Court Townhouses Ltd PC 19-Jul-2018
(Trinidad and Tobago) . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.250686

Applicaion to extend a Writ of Possession used to restrain a pattern of disruptive and occupational protests of University buildings across the whole of the University campus, which was having a deleterious effect upon University life generally, both of students and staff, as well as of other lawful visitors.
Purle QC HHJ
[2015] EWHC 544 (Ch)
Bailii
England and Wales

Updated: 07 August 2021; Ref: scu.543952

The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract.
Held: His action failed. The covenant had been waived or released. Farwell J said: ‘if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful.’
Farwell J
[1900] 1 Ch 108, [1900] 69 LJ Ch 55, [1900] 81 LT 818, [1900] 48 WR 184, [1900] 44 Sol Jo 44
England and Wales
Citing:
Cited – Flight v Barton 1832
The silence of the vendor’s agent is equivalent to a representation that there is no covenant prohibiting the current use of a property being sold. . .
Followed – Gibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .
Followed – In re Summerson (Note) 23-Feb-1899
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property . .

Cited by:
Cited – Attorney General of Hong Kong v Fairfax Limited PC 17-Dec-1996
(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Greenhalgh v Brindley 1901
. .
Cited – Tew v South Northamptonshire Council UTLC 20-Sep-2010
UTLC COMPULSORY PURCHASE – disused public house in poor condition – value as public house/restaurant – comparables – value for residential development – residual valuation – whether developer demand still buoyant . .
Mentioned – Jacey Property Company Ltd v De Sousa and others CA 28-Feb-2003
. .
Cited – City and Westminster Properties v Mudd ChD 1958
. .
Cited – Re Lower Onibury Farm, Onibury, Shropshire, Lloyds Bank Ltd v Jones 1955
Long acquiescence by a landlord, or a failure to insist on his rights, does not amount to a release from a covenant, unless his conduct is wholly inconsistent with the continued existence of the covenant or shows that he intended to waive . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.252340

Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.’
Lord Blackburn said: ‘I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value.’
Lord O’Hagan
(1880) 5 App Cas 273
Scotland
Citing:
Cited – Lord Advocate v Lord Blantyre HL 1879
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres.
Held: Lord Blackburn said: ‘Every act . .
Appeal from – Lord Advocate v Lord Lovat SCS 7-Mar-1879
. .

Cited by:
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Barton v The Church Commissioners for England ChD 15-Dec-2008
The commissioners claimed a right by prescription to all fish to be taken in a stretch of the River Wye. The claimant was to moor a barge on the river.
Held: The court explained the nature and legal status of fisheries in the law going back to . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Treloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
Cited – R and B Customs Brokers Co Ltd v United Dominions Trust Ltd CA 1988
There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.267350

A right to stint, a grazing right, defeated an assertion of an interest in the freehold, and the stint holders were awarded a proprietary interest in the moor as tenants in common.
Ind Summary 28-Jun-1993, Times 04-Jun-1993
England and Wales
Cited by:
Appeal from – Brackenbank Lodge Ltd v Peart and Others HL 26-Jul-1996
The court overturned the decision of the Court of Appeal following the discovery of a very ancient report of a court hearing on the same issues. The Peart defendant had failed to disclose to his lawyers the existence of the judgment, and he should . .

These lists may be incomplete.
Updated: 07 July 2021; Ref: scu.78539

The claimant said that the council’s proposal to construct a cycleway across land it had sold to the council was in breach of a covenant given on the sale.
[2009] EWHC 642 (Ch)
Bailii
England and Wales

Updated: 24 June 2021; Ref: scu.329580

A land-owner having land adjacent to a public highway has, at common law, free access to and from the highway at any point where they abut.
Lord Atkin said: ‘The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. Apart from any statutory provision there is no obligation upon an adjoining owner to fence his property from the highway . . Moreover the ordinary traffic on any highway is always liable to be increased by the exercise by an adjoining owner of this right of access. A building estate may be developed, or a theatre, concert hall, cinema, or hotel erected on premises which will necessarily involve incalculable increase of traffic. Subject to special statutory provisions protecting footpaths, the right of access is not affected by the fact that part of the highway is only dedicated as a footway, or is otherwise lawfully appropriated to foot passengers. The passage of the public along a footway is always liable to be temporarily interrupted by adjoining owners’ right of access, whether to the footway or the roadway: and the dangers, if dangers there be, of a pedestrian having his path crossed by vehicles exercising right of access may be increased, and lawfully increased, by the adjoining owner or owners increasing their means of access.’
Lord Atkin
[1935] AC 16, [1934] All ER 437
England and Wales
Cited by:
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Cited – Cusack v London Borough of Harrow CA 7-Dec-2011
The claimant sought compensation after the Borough ordered fencing to be erected along the roadside so as to obstruct vehicular access to and from his premises. If the action was taken under section 66(2) and not section 80, then Lewison LJ said . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.535124

(Jersey) The land owner sought payment of his costs after a dispute as to the valuation of land acquired under compulsion by the States
Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Clyde, Lord Hutton
[1998] UKPC 4, [1998] 1 EGLR 137
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.159286

The house referred to ‘the owner of a personal right to land’ to describe the position of an uninfeft proprietor.
References: (1879) 6 R 1256
Judges: Lord President Inglis
Jurisdiction: Scotland
This case is cited by:

• Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
  A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
  Held: The Act defined the . .
  (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194218

References: [2018] UKUT 109 (LC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 November 2020; Ref: scu.614988

Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not overrule the description in the parcels, but the indications it provided were properly used to establish what land had been intended to be conveyed. In this case the land and parcels description was sufficient to say that the land had not been intended to be included in the relevant conveyance: ‘providing a plan did not conflict with explicit descriptions in the parcels, the fact that it was said to be ‘for identification only’ did not exclude it from consideration in order to solve problems left undecided by the explicit descriptions in the parcels.’
In fixing a boundary line, the first recourse is to the description of the property in the relevant conveyance. If the relevant conveyance, in normal circumstances the parcels clause, contains a verbal description of the property in question, sufficient to enable the disputed line to be ascertained; there is no need to refer to the conveyance plan. If, however, no definite conclusion can be reached from the parts or the whole of the description, the recitals and other parts of the deed can be considered for expressions of the intention of the parties. If these cannot be found, extrinsic evidence can, in some few cases, be used, for example to show to what property the description applies.
Buckley LJ explained Neilson v Poole: ‘There, Brooklands South is a specific description of a piece of land, the boundaries of which could be established by extrinsic evidence. If the plan was not to control the parcels, the plan could not have any relation to the boundaries of what was known as Brooklands South, those being matters which were implicit in the explicit description of the parcel concerned as ‘what was known as Brooklands South’; and the observation by Megarry J that words such as ‘for the purposes of identification only seemed to him to confine the use of the plan to ascertaining where the land is situated, was I think an obiter observation on his part and not part of his decision at all, for he was not concerned merely with that phrase but with its use in conjunction with ‘more particularly delineated’.’
Bridge LJ said: ‘I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan ‘for the purposes of identification only’ is the sole means by which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words ‘for the purpose of identification only’ should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.’
‘in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being ‘for identification purposes only’ it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of the parcel’.
References: [1978] 1 WLR 1462
Links: lip
Judges: Buckley and Bridge LJJ and Sir David Cairns, Megarry J
Jurisdiction: England and Wales
This case cites:

• Explained – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
  The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .

This case is cited by:

• Cited – Yui Tong Man v Mahmood and Another CA 13-Dec-1996 ([1996] EWCA Civ 1218)
  Application for leave to appeal. The parties occupied adjoining premises under leases. The defendant sought to appeal an oder that he remove a refrigeration plant erected behind his premises, but on the roof of the other premises.
  Held: There . .
• Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
  The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
  Held: In the circumstances the plan would . .
• Cited – Sefton v Halliwell CA 2-May-2007 (, [2007] EWCA Civ 473)
  Boundary dispute. . .
• Cited – Stafford and Another v Lee and Another CA 10-Nov-1992 (Gazette 09-Dec-92, (1993) 65 P and CR 172, Times 16-Nov-92, , [1992] EWCA Civ 17, [1992] EG 136 (CS), [1992] NPC 142)
  The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties . .
• Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
  In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
  Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
• Cited – Taylor v Lambert and Another CA 18-Jan-2012 (, [2012] EWCA Civ 3)
  The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .
• Cited – Paton and Another v Todd ChD 11-May-2012 (, [2012] EWHC 1248 (Ch))
  The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
  Held: The claimant’s . .
• Cited – Paton and Another v Todd ChD 11-May-2012 (, [2012] EWHC 1248 (Ch))
  The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to land which was registered to the respondent neighbour.
  Held: The claimant’s . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.177494

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

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

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

• Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD (Bailii, [2015] EWHC 3564 (Ch), [2016] 1 P andCR DG19, [2015] WLR(D) 506, [2016] 4 WLR 61, WLRD)
  Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
  Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .

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

Last Update: 06-Apr-17
Ref: 281077

References: Times 06-May-1997
Ratio: Court may allow for pressing social need when ordering sale of property subject to negative equity against mortgagee’s wishes.
Jurisdiction: England and Wales

Last Update: 30-Nov-16
Ref: 84792

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

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

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

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

(This list may be incomplete)
Jurisdiction: Ireland

Last Update: 29-Oct-16
Ref: 570358

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

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

(This list may be incomplete)
Jurisdiction: EW

Last Update: 08-Oct-16
Ref: 296875

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

• Cited – Englewood Properties Limited v Shailesh Patel, Cornberry Limited ChD (Bailii, [2005] EWHC 188 (Ch), Times 09-Mar-05, [2005] 3 All ER 307, [2005] 1 WLR 1961)
  The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .

(This list may be incomplete)

Last Update: 09-Aug-16
Ref: 223737

References: [1997] EWHC Admin 25
Links: Bailii
Ratio:

Last Update: 18-Jul-16
Ref: 136970

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

• Cited – Portsmouth City Football Club -v- Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD ([2003] EWHC 2148 Ch, Bailii)
  Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
• Cited – Smith, Regina (on the Application of) -v- The Land Registry (Peterborough Office) Admn (Bailii, [2009] EWHC 328 (Admin))
  The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
• Cited – Smith, Regina (on The Application of) -v- Land Registry (Peterborough Office) and Another CA (Bailii, [2010] EWCA Civ 200, [2010] NPC 31, [2010] 11 EG 121, [2010] 3 All ER 113, [2010] 21 EG 92, [2010] 3 WLR 1223, [2011] 1 QB 413)
  The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 186481

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

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

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

• Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) -v- East Sussex County Council and Another SC (Bailii, [2015] UKSC 7, [2015] BLGR 232, [2015] AC 1547, [2015] 2 All ER 991, [2015] 2 WLR 601, [2015] WLR(D) 109, Bailii Summary, WLRD, UKSC 2013/0102, SC, SC Summary, SC Video)
  The court was asked: ‘whether East Sussex County Council . . was wrong in law to decide to register an area . . known as West Beach at Newhaven . . as a village green pursuant to the provisions of the Commons Act 2006. The points of principle raised . .

(This list may be incomplete)

Last Update: 20-Apr-16
Ref: 281884

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

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

(This list may be incomplete)

Last Update: 20-Apr-16
Ref: 200679

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

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

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

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

References: [1861] EngR 317 (A), (1861) 2 Sw & Tr 133
Links: Commonlii
Mortgage of an interest under a will – Administration to mortgagee
Last Update: 20-Nov-15 Ref: 284078

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

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

References: [2015] UKUT 294 (TCC)
Links: Bailii
Refusal of permission to rely on witness statement.
Last Update: 17-Oct-15 Ref: 549094

References: [1861] EngR 240, (1861) 9 CB NS 797, (1861) 142 ER 314
Links: Commonlii
This case cites:

• See Also – Tupper -v- Foulkes ((1861) 9 CB (NS) 797, [1860] EngR 271 (A), Commonlii, (1860) 2 F & F 167)
  Anything which shows that a party treats an instrument as his deed will suffice to make it his deed. . .

References: [1845] EngR 955, (1845) 7 QB 661, (1845) 115 ER 638
Links: Commonlii

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

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

References: (1857) 1 H&N 916, [1857] EngR 291, (1857) 1 H & N 916, (1857) 156 ER 1472
Links: Commonlii
Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entititled to the benefit and is subject to the burthen of all existing drains communicating with the other house, without any express reservation or grant for that purpose. The plaintiff’s and defendant’s houses adjoined each other. They had formerly been one house and were converted into two by the owner of the whole property. Subsequently the defendant’s house was conveyed to him, and after that the plaintiff took a conveyance of his house. At the times of these conveyances, a drain ran under the plaintiff’s house and thence under the defendant’s, and discharged itself into the common sewer. Water from the eaves of the defendant’s house fell on the plaintiff’s house, and then ran into a drain on the plaintiff’s premises and thence through the drain into the common sewer. The plaintiff’s house was drained through this drain.
Held: The plaintiff was, by implied grant, entitled to have the use of the drain as it was used at the time of the defendant’s purchase of the house. A drainage easement is deemed to be continuous and apparent.
This case is cited by:

• Cited – McAdams Homes Ltd -v- Robinson and Another CA (Bailii, [2004] EWCA Civ 214, Gazette 11-Mar-04, [2005] 1 P&CR 520, [2004] 3 EGLR 93)
  The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .

References: (1849) Exch 591, [1849] EngR 1242, (1849) 4 Exch 591, (1849) 154 ER 1350
Links: Commonlii
Coram: Alderson B
A devise of ‘all my leasehold farm-house, homestead, lands, and tenements at Headington, containing about 170 acres, held under Magdalen College, Oxford, and now in the occupation of Thomas Burrows’ was construed as excluding two parcels of land not occupied by Thomas Burrows at Headington, the words relating to the acreage being rejected as a false description. The court considered the maxim ‘that if there be an adequate and sufficient description, with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it. The characteristic of cases within the rule is that the description, so far as it is false, applies to no subject at all; and so far as it is true, applies to one only.’
This case is cited by:

• Cited – Rogers and Rogers -v- Freeguard and Freeguard CA (Times 22-Oct-98, Gazette 25-Nov-98, Bailii, [1998] EWCA Civ 1572, [1999] 1 WLR 375)
  The parties had drawn up ands executed an option agreement. When a court considered an option to purchase ‘land known as . .’, it was able to consider extrinsic evidence to establish just what was included where the identification in the deed was . .

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

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

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

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

This case is cited by:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References: (1995) 71 P & CR 231
Coram: Stuart-Smith LJ
The issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. The court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed.
Held: The user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and for that reason the user could not lead to a presumed dedication. ‘Public rights cannot be based on long use where the user is prohibited by statute.’
Statutes: Road Traffic Act 1988 34(1)
This case cites:

• Cited – Hanning and Others -v- Top Deck Travel Group Ltd CA (Gazette 09-Jun-93, Times 06-May-93, [1993] NPC 73 CA, [1993] CLY 1821, [1994] P & C R 14)
  The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
  Held: An easement . .
• Cited – Robinson -v- Adair QBD (Times 02-Mar-95)
  The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway. The prosecutor appealed.
  Held: It had to be decided whether a particular road had become by presumed dedication a public highway. The use . .

This case is cited by:

• Doubted in part – Bakewell Management Limited -v- Brandwood and others HL (House of Lords, [2004] UKHL 14, Bailii, Times 02-Apr-04, [2004] 2 WLR 955, [2004] 2 P & CR DG6, [2004] 15 EGCS 104, [2004] 2 All ER 305, [2004] RTR 26, [2004] 20 EG 168, [2004] 2 AC 519, [2004] NPC 53)
  Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .

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

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

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

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

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

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

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

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

References: [2014] UKUT 507 (TCC)
Links: Bailii
Appeal against finding that the defendant had established title over land by 12 years adverse psossession.

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

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

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

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

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

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

This case is cited by:

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

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

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

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

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

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

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