Tag: Land

Pomfret v Ricroft (No 1): 1685

Citations:

[1685] EngR 2602, (1685) 2 Keb 569, (1685) 84 ER 357 (D)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Pomfret v Ricroft 1669
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is . .

Cited by:

See Also – Pomfret v Ricroft (No 2) 1685
. .
See Also – Pomfret v Ricroft 1714
. .
See Also – Pomfret v Roycroft 1726
. .
See Also – Pomfret v Ricroft 1726
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.399377

Moses v Marsland: 1901

A ‘public building’ is a building which the public is invited to enter or to which it can demand admission.

Citations:

[1901] 1 QB 668

Jurisdiction:

England and Wales

Cited by:

Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.377517

St John v Bishop of Winton: 1774

One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: ‘All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;’ (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.

Citations:

[1774] EngR 31, (1774) 1 Cowp 94, (1774) 98 ER 985

Links:

Commonlii

Wills and Probate, Land

Updated: 15 May 2022; Ref: scu.373887

Jones v Randall: 7 Feb 1774

In an action upon a wager, whether a decree of the Court of Chancery would be reversed on appeal to the House of Lords, proof of the decree arid reversal is sufficient without shewing the previous proceedings below. – A copy of the judgment of reversal is admissible, and need not be stamped.

Citations:

[1774] EngR 42, (1774) 1 Cowp 17, (1774) 98 ER 944 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Jones v Randall HL 23-Apr-1774
Gaming – Declaration that there was a promissory note on a wager given to the piaintiff by defendant in case of a decree in the Court of Chancery should be reversed in the House of Lords, to which decree the person who had laid upon the reversal was . .
Lists of cited by and citing cases may be incomplete.

Land, Litigation Practice

Updated: 15 May 2022; Ref: scu.373898

Cattle v The Stockton Waterworks: 1875

The owner of land had contracted with the plaintiff for him to build a tunnel under a road, along which there was a defective water pipe. The pipe leaked, and when the contractor started to dig, the water that had accumulated under the road flowed out, obstructing the works. This either reduced the contractor’s profit or caused him to make a loss, and he claimed in Rylands v Fletcher.
Held: The contractor had no title to claim.
Blackburn J said: ‘In the present case the objection is technical and against the merits, and we should be glad to avoid giving it effect. But if we did so, we should establish an authority for saying that, in such a case as that of Fletcher v. Rylands . . the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and person employed in the mine, who in consequence of its stoppage made less wages than he would otherwise have done. And many similar cases to which this would apply might be suggested. It may be said that it is just that all such persons should have compensation for such a loss, and that, if the law does not give them redress, it is imperfect. Perhaps it may be so. But, as was pointed out by Coleridge, J., in Lumley v. Gye . . Courts of justice should not ‘allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds, which our law, in a wise consciousness as I conceive of its limited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts.’ In this we quite agree.’

Judges:

Blackburn J

Citations:

(1875) LR 10 QB 453

Jurisdiction:

England and Wales

Cited by:

Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Updated: 15 May 2022; Ref: scu.331089

Russell v Shenton: 1842

The cleansing and repairing of drains and sewers is prima facie the duty of him who occupies the premises, and does not devolve upon the owner, merely as such. Therefore a declaration in case fur omitting to cleanse and repair drains and sewers, whereby the plaintiffs adjacent premises suffered damage, is bad on general demurrer if it charge the defendant as the ‘owner and proprietor” of such drains and sewers, unless it also allege some ground of liability. The words ‘owner and proprietor’ do not necessarily import that the party is occupier.

Citations:

[1842] EngR 72, (1842) 3 QB 449, (1842) 114 ER 579

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Utilities

Updated: 15 May 2022; Ref: scu.307027

The Queen v The Inhabitants Of Sandon: 21 Apr 1854

An indictmerit preferred at the Assizes, for non-repair of a highway, by order of justices under stat. 5 and 6 W. 4, c. 60, s. 95, is removeable by certiorari at the instance of the defendants.

Citations:

[1854] EngR 408, (1854) 3 El and Bl 547, (1854) 118 ER 1247

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Local Government

Updated: 15 May 2022; Ref: scu.293265

The Board of Works for The Poplar District v Nicholas Knight And Henry Weitzell: 26 May 1858

A wall had been erected from time immemorial on land adjacent to a tidal river; and it kept out from such land the river at high water, the land being drained into the river by drains at a considerable distance from the wall.

Citations:

[1858] EngR 724, (1858) El Bl and El 408, (1858) 120 ER 561

Links:

Commonlii

Jurisdiction:

England and Wales

Local Government, Land

Updated: 15 May 2022; Ref: scu.289195

Mellor v Spateman: 1669

A corporation may prescribe to have a common of pasture.

Citations:

(1669) 1 Saund 339

Jurisdiction:

England and Wales

Cited 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.279917

Fairclough v Marshall: CA 1878

The plaintiff owned land charged by a previous owner who had rented it subject to the defendant’s predecessor subject to a covenant not to use it as an beerhouse. The defendant now used it as a beerhouse, and said that since the plaintiff had mortgaged his interest he had no right to enforce the covenant.
Held: The plaintiff could enforce the covenant under the 1873 Act and under the general principles of equity, and did not have to join in his mortgagee.

Judges:

Bramwell LJ

Citations:

(1878) 4 Ex D 37, [1878] 48 LJQB 146, [1878] 39 LT 389, [1878] 27 WR 145

Statutes:

Judicature Act 1873 25(5)

Jurisdiction:

England and Wales

Cited by:

Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.276788

Mid-Glamorgan County Council v Ogwr Borough Council and Others: HL 3 Feb 1995

Land remained common land despite the individual rights having been compulsorily purchased by the local Authority. Once abandoned, it remained registerable.

Citations:

Gazette 08-Mar-1995, Times 03-Feb-1995

Statutes:

Compulsory Purchase Act 1965

Jurisdiction:

England and Wales

Citing:

Appeal from – Mid-Glamorgan County Council v Ogwr Borough Council and Others CA 5-Nov-1993
There was no need to serve a notice to treat on each commoner for a compulsory purchase order to proceed. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.83703

Lloyds Bank Plc v Carrick and Another: CA 17 Apr 1996

Mrs Carrick was a widow who orally agreed with her brother in law, a builder, to sell her house and pay him the proceeds, for which he would provide her with a new house. She did so and moved into the new house, which remained in the brother-in-law’s name; later he mortgaged it to the bank. Mrs Carrick’s rights were postponed to the bank because they had not been registered as an estate contract.
Held: A beneficial owner under a bare trust had no defence against a mortagee in possession. ‘In this case there was a trust of the maisonette for the benefit of Mrs Carrick precisely because there had been an agreement between her and Mr Carrick which, for her part, she had substantially if not wholly performed. As between her and Mr Carrick such trust subsisted at all times after November 1982. I agree with counsel for the bank that there is no room in those circumstances for the implication or imposition of any further trust of the maisonette for the benefit of Mrs Carrick. In Lloyds Bank plc v Rosset there was no contract which conferred any interest in the house on the wife. As with all statements of principle the speech of Lord Bridge of Harwich must be read by reference to the facts of the case. So read there is nothing in it to suggest that where there is a specifically enforceable contract the court is entitled to superimpose a further constructive trust on the vendor in favour of the purchaser over that which already exists in consequence of the contractual relationship.
It is true that on this footing the ultimate position of Mrs Carrick with the benefit of a specifically enforceable contract may be worse than it would have been if there had been no contract. But that is because she failed to do that which Parliament has ordained must be done if her interest is to prevail over that of the bank, namely to register the estate contract. Her failure in that respect cannot, in my view, justify the implication or imposition of a trust after the execution of the charge when the dealings between Mr Carrick and Mrs Carrick before such execution did not.’

Judges:

Morritt LJ, Beldam LJ and Sir Ralph Gibson

Citations:

Gazette 17-Apr-1996, [1996] 4 All ER 630

Statutes:

Land Charges Act 1972 4(6)

Jurisdiction:

England and Wales

Cited by:

Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 15 May 2022; Ref: scu.83108

Barkas, Regina (on The Application of ) v North Yorkshire County Council and Another: SC 6 Mar 2014

The Court was asked as to the registration of a playing field as a ‘town or village green’. Local residents asserted that their use of the land, having been ‘as of right’ required the registration. They now appealed against rejection of that argument.
Held: The basic issues was ‘where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes ‘as of right’ within the meaning of section 15(2)(a) of the Commons Act 2006?’
Held: The residents’ appeal failed. The local residents were enjoying the rights over the land ‘by right’ and not ‘as of right’ and the land was not registrable under the 2006 Act as a town or village green.
Lord Neuberger said: ‘So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise.’ and ‘ a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors.’
. . And: ‘ if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful – at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been precario, and therefore ‘by right’.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Reed, Lord Carnwath, Lord Hughes

Citations:

[2014] 3 All ER 178, [2014] UKSC 31, [2014] HLR 36, [2014] 2 WLR 1360, [2014] WLR(D) 228, [2014] BLGR 459, UKSC 2013/0035, [2015] 1 AC 195, [2014] HLR 36

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Statutes:

Commons Act 2006 15

Jurisdiction:

England and Wales

Citing:

Cited – HE Green and Sons v Minister of Health (No 2) 1948
On an application under the 1936 Ac, provided that the field benefited council tenants (which it clearly did) it did not matter that it also benefited other people within the local community.
Denning J said: ‘The next question is whether the . .
At Admin – Barkas, Regina (on The Application of) v North Yorkshire County Council and Scarborough Council Admn 20-Dec-2011
The claimants sought to have registered as a town or village green land in Whitby which had been provided as a playing field by the Local Authority since 1934. The inspector had found that the use had not been ‘as of right’ as required by the 2006 . .
Overruled – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Appeal from – Barkas v North Yorkshire County Council CA 23-Oct-2012
The court was asked: ‘When local inhabitants indulge in lawful sports and pastimes on a recreation ground which has been provided for that purpose by a local authority in the exercise of its statutory powers, do they do so ‘by right’ or ‘as of . .
Cited – Hall v Beckenham Corporation 1949
A claim was made in nuisance against the local authority, the owner of a public park, in which members of the public flew noisy model aircraft.
Held: The local authority were not liable as the occupiers of the park for an alleged nuisance that . .
Cited – Regina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
Cited – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Cited – Gardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
Cited – Dalton v Henry Angus and Co 1877
Fry J said: ‘ . .I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others CA 2012
Jackson LJ set out the way in which planning consents would affect whether actions amounted to a nuisance: ‘I would summarise the law which is relevant to the first ground of appeal in four propositions. (i) A planning authority by the grant of . .
Cited – Lambeth Overseers v London County Council HL 1897
The House was asked whether the county council, which owned and maintained a park under a power accorded by a local Act of Parliament, were in rateable occupation of it.
Held: Lord Halsbury said that: ‘there is no possibility of beneficial . .
Cited – Mills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd SCS 1992
(Inner House) When Cumbernauld town centre was built, a walkway was provided between the shopping centre and residential areas. It was used for many years, but then closed to prevent crime. The authority sought an interdict to keep it open as a . .
Cited – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .
Approved – Regina v City of Sunderland, ex parte Beresford Admn 14-Nov-2000
A recreational area was claimed to be a common. The council considered that there was evidence, which it accepted, of an implied licence, thus enabling the inference to be drawn that the use by local inhabitants for statutory purposes had not been . .

Cited by:

Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
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 – Winterburn and Another v Bennett and Another CA 25-May-2016
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 . .
Cited – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Leading Case

Updated: 15 May 2022; Ref: scu.526192

Barclays Bank Plc v Hendricks and Another: ChD 3 Nov 1995

The wife was co-owner of the family home. Her husband owed money to the bank. He separated from his wife and left the matrimonial home moving to another house owned by the wife. The bank obtained a charging order absolute against the husband’s interest in the matrimonial home and then sought an order under section 30 of the Law of Property Act, 1925 for the sale of the house. The Deputy Master made that order and the wife appealed asking the court to exercise its discretion to defer the sale of the house until all of the children of the family had reached the age of 18 or completed full time education.
Held: The court applied Abbey National -v- Moss and dismissed the appeal and confirmed the order made under s.30. The chargee was in the same position and subject to the same reasoning as Mrs Moss. She was unable, save in exceptional circumstances, to prevent the sale of a house by a chargee.

Judges:

Laddie J

Citations:

Independent 03-Nov-1995, [1996] 1 FLR 258

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Citing:

Followed – Abbey National plc v Moss and Others CA 1994
Mrs Moss inherited the former matrimonial home. Her daughter (L) suggested that she transfer it into their joint names to ease its transfer on her mother’s death. It was agreed the house would never be sold during Mrs Moss’s lifetime. L borrowed . .

Cited by:

Cited – Bank of Baroda v Dhillon and Dhillon CA 17-Oct-1997
A property had been bought in the husband’s name. The wife made financial contributions to repayment of the charge, and thereby acquired an interest in it. The property was later charged by the paper owner to the claimant, who sought possession . .
Cited – Regina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 15 May 2022; Ref: scu.78206

Lancashire County Council v The Secretary of State for The Environment, Food and Rural Affairs and Another: Admn 27 May 2016

Ouseley J he said that he would have arrived at a different conclusion from the Inspector as to the purpose for which the Authority had acquired the land at issue; but considered that that did not entitle him to interfere with the inspector’s evaluation of the evidence: ‘I can see no real reason not to conclude, on that basis, that the acquisition was for educational purposes. No other statutory purpose for the acquisition was put forward; there was no suggestion that the parcels were acquired for public open space. I would have inferred that there were resolutions in existence authorising the acquisitions for that contemporaneously evidenced intended purpose, which simply had not been found at this considerable distance in time. It would be highly improbable for the lands to have been purchased without resolutions approving it. The presumption of regularity would warrant the assumption that there had been resolutions to that effect, and that the purpose resolved upon would have been the one endorsed on the conveyances. This is reinforced by the evidence in DL para 116, which shows the property, after acquisition, to be managed by or on behalf of the Education Committee. The actual use made of some of the land is of limited value in relation to the basis of its acquisition or continued holding.’

Judges:

Ouseley J

Citations:

[2016] EWHC 1238 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lancashire County Council, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs and Another CA 12-Apr-2018
The court was asked: ‘Did the concept of ‘statutory incompatibility’ defeat an application for the registration of land as a town or village green under section 15 of the Commons Act 2006? ‘ At first instance, the judge had held that he could not . .
Cited – Adamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
At Admn – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 15 May 2022; Ref: scu.565341

New Windsor Corporation v Mellor: CA 1975

The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval times and had later been leased for grazing subject to the recreational rights of the inhabitants. The plaintiff sought to deny the rights. The Commons Commissioner and Queens Bench upheld the registration.
Held: Tthe inhabitants indeed had a customary class b right to use the two-acre piece of land for sport and recreation. The land had been used since 1651 by the burgesses under various leases, allowing all to have access and for shooting and to maintain water butts. Improvements had been mde by the inhabitants in 1809. There was clearly a customary right to use the land for recreational purposes. That was a reasonable use and the registration as a village green was good. It may not be clear how the land could be used, but it could clearly not be used in a way inconsistent with the customary uses as wanted by the plaintiff. The period of 20 years in the Act referred to the 20 years before its passing.
Lord Denning considered the ‘one locality’ rule, and criticised the case of Edwards v Jenkins. Lord Denning MR said: ‘To be good, too, a custom must be certain. So, when all sorts of people came and played cricket on a field, it was held that the custom was good if it applied only to the inhabitants of the village and their guests, but not if it applied to all the world at large: see Fitch v. Rawling (1795) 2 Hy.B1. 394. In Edwards v. Jenkins [1896] 1 Ch. 308 Kekewich J. held that a custom for the inhabitants of three parishes to play on a field in one of these parishes was bad: but I do not think this is correct. So long as the locality is certain, that is enough. It is obvious that the custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the villagers in their pastimes. But, nevertheless, the custom is good. It was so held where villagers proved a custom to erect a maypole and dance around it ‘and otherwise enjoy any lawful and innocent recreation at any times in the year’: see Hall v. Nottingham (1875) 1 Ex D. 1, 2′
Brightman LJ said this about the locality point: ‘I should prefer to reserve my opinion as to whether Edwards v. Jenkins [1896] 1 Ch. 308 is good law. There is some authority for supposing that a customary right cannot normally exist over land in one locality for the benefit of the inhabitants of a different locality. Nevertheless, were it relevant to this appeal, I would feel it difficult to understand why such a right cannot exist over land in one locality for the benefit of the inhabitants of that and one or more other localities, which was in effect the right unsuccessfully claimed in Edwards v. Jenkins. For myself, I express no concluded view’.

Judges:

Denning MR L, Browne LJ, Brightman J

Citations:

[1975] 3 All ER 44, [1975] 3 WLR 25, [1975] Ch 380

Statutes:

Commons Registration Act 1965 3

Jurisdiction:

England and Wales

Citing:

Criticised – 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 by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
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 – Regina v Norfolk County Council ex parte Perry Admn 19-Dec-1996
The period of twenty years required to establish a common under the Act was the period up to the date of the application. . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
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 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 . .
Cited – Newhaven Port and Properties Ltd, Regina (on The Application of) v East Sussex County Council and Another SC 25-Feb-2015
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 – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Land

Leading Case

Updated: 15 May 2022; Ref: scu.183166

NHS Property Services Ltd, Regina (on The Application of) v Surrey County Council and Another: Admn 13 Jul 2016

Judges:

Gilbart J

Citations:

[2016] EWHC 1715 (Admin), [2016] 4 WLR 130, [2016] WLR(D) 397, [2016] 4 WLR 128

Links:

Bailii, WLRD

Statutes:

Commons Act 2006, Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007

Jurisdiction:

England and Wales

Land, Human Rights

Updated: 15 May 2022; Ref: scu.567207

McLaren v City of Glasgow Union Railway Co: 1878

The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.

Judges:

Lord Justice Clerk Moncreiff

Citations:

(1878) 5 R 1042

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land, Scotland

Updated: 14 May 2022; Ref: scu.260025

The Carlgarth: 1927

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

Judges:

Scrutton LJ

Citations:

[1927] P 93

Jurisdiction:

England and Wales

Cited by:

Cited – Thames Heliport Plc v London Borough of Tower Hamlets CA 28-Nov-1996
The use of a tethered barge as a heliport constituted a change of use of the land under the river. . .
Cited – Keown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Land

Updated: 14 May 2022; Ref: scu.238291

Robert Addie and Sons (Collieries) Ltd v Dumbreck: SCS 1928

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

Judges:

Lord President Clyde

Citations:

1928 SC 547

Citing:

Cited – Lowery v Walker HL 9-Nov-1910
A trespasser was injured by the land owner’s savage horse.
Held: If a land-owner knows of but does nothing to stop acts of trespass by the public on his land, there may be an implied license. Decision reversed. In Scottish courts the . .

Cited by:

Appeal from – Addie (Robert) and Sons (Collieries) Ltd v Dumbreck HL 25-Feb-1929
No occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they will come and run into danger and however lethal the danger may be. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Scotland, Land

Updated: 13 May 2022; Ref: scu.211428

Penn v Lord Baltimore: 1750

The court compelled Lord Baltimore to comply with the obligations he had assumed to the Penn family, by setting the Mason-Dixon line, demarcating boundaries between the privately-owned territories of Maryland, Pennsylvania and Delaware, and afterwards came to symbolise the difference between slavery and freedom. The Court did not claim to interfere with the land laws of colonial North America: those were the exclusive province of the local judges. It did have a right in personam against Lord Baltimore.

Citations:

(1750) 1 Ves Sen 447

Jurisdiction:

England and Wales

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Cited – Norris v Chambres 1862
A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.199517

Attorney-General v Thames Conservators: 1862

Citations:

(1862) 1 H and M 1

Jurisdiction:

England and Wales

Cited by:

Applied – Tate and Lyle Industries Ltd v Greater London Council HL 24-Mar-1983
The plaintiff had constructed and used two jetties, and dredged a channel down to the Thames for their use. The Council constructed two terminals nearby, the result of which was to cause a build up of silt blocking the channel.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 13 May 2022; Ref: scu.192595

Ghana Commercial Bank v Chandiram: PC 1960

The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was invalidated by a previous attachment of the property by a creditor.
Held: The Ghana Bank was entitled to be subrogated to the equitable mortgage which had been paid off. ‘It is not open to doubt that where a third party pays off a mortgage he is presumed, unless the contrary appears, to intend that the mortgage shall be kept alive for his own benefit.’

Judges:

Lord Jenkins

Citations:

[1960] AC 732

Jurisdiction:

Commonwealth

Citing:

Cited – Butler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .

Cited by:

Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 13 May 2022; Ref: scu.190508

Burrows v Lang: 1901

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

Judges:

Farwell J

Citations:

[1901] 2 Ch 502

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Cited – Odey and Others v Barber ChD 29-Nov-2006
The claimants sought a declaration that they had two rights of way over a neighbour’s land. One was claimed by continuous use for twenty years, and the second was said to have been implied under the 1925 Act. No express grant was suggested. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 May 2022; Ref: scu.187791

Meftah v Lloyd’s TSB Bank Plc: 2001

A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property.

Citations:

[2001] 2 All ER (Comm) 741

Jurisdiction:

England and Wales

Cited by:

Cited – Den Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 May 2022; Ref: scu.187672

Napier’s Trustees v Morrison: 1851

Dealing with a public right of way, and holding that the defenders had possessed a road ‘by no trespass or tolerance, but as a public road’the court deprecated the citation in the Court of Session of authorities from England. He really wished, he said – taking a swipe at a future Lord President among others – that Scottish counsel and judges: ‘could imitate the example set us by the counsel and the judges of that kingdom, who decide their causes by their own rules and customs, without exposing themselves by referring to foreign systems, the very language of which they do not comprehend.’

Judges:

Lord Cockburn

Citations:

(1851) 13 D 1404

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
Lists of cited by and citing cases may be incomplete.

Scotland, Land

Updated: 12 May 2022; Ref: scu.187792

Westminster City Council v Quereshi: 1961

Citations:

[1991] CLY 461

Cited by:

Not followed – Co-operative Insurance Society Ltd v Hastings Borough Council ChD 23-Jun-1993
The local authority made a CPO in 1981 in respect of a sports ground. The applicants later acquired the land. In 1989 the order was confirmed and in March 1989 a vesting order was made. The authority was unable to afford to complete the purchase. In . .
Lists of cited by and citing cases may be incomplete.

Land, Local Government

Updated: 12 May 2022; Ref: scu.186342

Kenneth Starling v Lloyds TSB Bank plc: CA 10 Nov 1999

The setting aside of the statutory power of a mortgagor in possession to grant a lease, by the mortgage itself did not create in the lender a duty of good faith properly to consider a request from the mortgagor for permission to let the property. It was wrong to attempt to import such a duty from a very different area of law.

Judges:

29 October 1999

Citations:

Times 12-Nov-1999, Gazette 10-Nov-1999

Statutes:

Law of Property Act 1925 99

Jurisdiction:

England and Wales

Citing:

Followed – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .

Cited by:

Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Lists of cited by and citing cases may be incomplete.

Banking, Land

Updated: 11 May 2022; Ref: scu.89505

Redstone v Welch and Jackson: 2009

Judges:

Worster J

Citations:

[2009] EG 98

Jurisdiction:

England and Wales

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 May 2022; Ref: scu.450471

Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another: Admn 19 Jul 2012

The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no connection to any route back to the highway save over a privately owned parade of shops.
Held: ‘Where, as here, the only people who can lawfully pass or repass along the relevant route are those with a licence to enter and cross other land, the public do not have a right to pass over that route ‘freely and at their will’. They can only do so at the will of the owners of the land over which they have to exercise a license to get to the way. As a matter of law, those owners may, if they wish, withdraw the licence at any time; or, in more practical terms, physically block access to the way by walls, fences or other hindrances, with the result that the way is unusable by all or possibly any members of the public. A highway, once in existence, has the additional characteristic of permanence, in the sense that it cannot cease to exist at common law, short of physical destruction. Where access to the way might lawfully be blocked at any time by adjacent landowners, the public’s ability to pass along the way is not as of right and is of such fragility that it simply does not and cannot have the necessary characteristics of a highway.’

Judges:

Hickinbottom J

Citations:

[2012] EWHC 1976 (Admin)

Links:

Bailii

Statutes:

Wildlife and Countryside Act 1981, Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007

Jurisdiction:

England and Wales

Citing:

Cited – Poole v Huskisson 1843
At common law a public right of way cannot be limited iin its use for a particular group of people (here the members of a parish). . .
Cited – Ex parte Lewis (The Trafalgar Square Case) QBD 2-Jul-1888
L sought to assert a right to hold public meetings in Trafalgar Square.
Held: (obiter) There was no public right to occupy Trafalgar Square for the purpose of holding public meetings. The Commissioners of Works and Public Buildings (in whom . .
Cited – Eyre v New Forest Highway Board 1892
Wills J said: ‘All highways, all rights of passage over the property of individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say he either says . .
Cited – Moser v Ambleside Urban District Council CA 1925
Atkin LJ said: ‘It has been suggested that you cannot have a highway except insofar as it connects two other highways. That seems to me that too wide a proposition. I think you can have a highway leading to a place of popular resort even though when . .
Cited – Bailey v Jamieson CCP 1875
There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any . .
Not applied – Great Central Railway Company v Balby-with-Hexthorpe Urban District Council 1912
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the . .
Cited – Attorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
Cited – Newhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .

Cited by:

Cited – Carter-Brown and Others v Crown Prosecution Service QBD 31-Jul-2017
Obstruction of Highway – Highway not clear
The apellant protesters had been convicted of obstructing the highway by affixing themselves to a fence by a roadway by the Atomic Weapons Establishment. They argued that the road was not a highway and that any obstruction was de minimis. In . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 May 2022; Ref: scu.462978

Nagy v Weston: QBD 1965

The defendant was prosecuted after selling hot dogs from a van parked on a busy street in Oxford. The court was asked when such would become an illegal obstruction.
Held: Such a use ‘could not . . be said to be incidental to the right to pass and repass along the street.’
Lord Parker CJ said: ‘It is undoubtedly true – counsel for the appellant is quite right – that there must be proof that the user in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.’

Judges:

Lord Parker CJ

Citations:

[1965] 1 All ER 78, [1965] 1 WLR 280

Jurisdiction:

England and Wales

Cited by:

Applied – Hirst and Agu v Chief Constable of West Yorkshire QBD 1987
The defendants were arrested after distributing leaflets outside a furriers, and appealed against convictions for obstructing the highway.
Held: The appeals succeeded. In deciding whether there was a lawful excuse for a technical obstruction . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Jones and Lloyd v Director of Public Prosecutions Admn 23-Jan-1997
The appellants had been peacefully protesting at Stonehenge. They were among others who refused to leave when ordered to do so under an order made by the police officer in charge declaring it to be a trespassory assembly under the 1986 Act. They . .
Cited – Scott v Mid-South Essex Justices and Keskin Admn 25-Mar-2004
The private prosecutor appealed against the dismissal by the magistrates of his allegation that the defendant had unlawfully obstructed the highway. In essence the question was whether Mr Keskin should have been found to have a lawful excuse. He . .
Lists of cited by and citing cases may be incomplete.

Crime, Land

Updated: 11 May 2022; Ref: scu.192191

Nutt and Another v Read and Another: CA 3 Nov 1999

The parties had contracted for the letting of land and transfer as in personam of a chalet erected upon it. The parties having completed the deals could not then agree what was to have been paid.
Held: The first agreement was void for common mistake and that the second should be set aside or rescinded in equity. They had both acted in ignorance of the chalet having become part of the land, and that though a statutory tenancy had come into being, it was right to unravel the arrangement even after some considerable time and after improvements.

Judges:

Chadwick LJ, Thorpe and Morritt LJJ

Citations:

Gazette 03-Nov-1999, Gazette 03-Dec-1999, (1999) 32 HLR 716

Statutes:

Housieng Act 1988

Jurisdiction:

England and Wales

Cited by:

Cited – Islington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
Lists of cited by and citing cases may be incomplete.

Land, Landlord and Tenant

Updated: 11 May 2022; Ref: scu.84392

Palmer and Another v Bowman and Another: CA 27 Oct 1999

There is no easement of right for an owner of higher land for water naturally to drain off over neighbouring lower land, and nor was an easement required. The doctrine of lost modern grant need not be applied. Although the higher land owner had no right, the owner of the lower land had no right to complain of such run off. The owner of the higher land had no right to come on to the other land to improve drainage, nor to require the owner of the lower land to maintain drains. The natural flow of water is an incident of the ownership of the land and is inherent in it, and as such is not capable of being the subject-matter of an easement.

Citations:

Gazette 27-Oct-1999, Times 10-Nov-1999, [2000] 1 WLR 842, [2000] 1 All ER 22

Jurisdiction:

England and Wales

Cited by:

Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 May 2022; Ref: scu.84539

Shuttleworth v Le Fleming: 1865

The provisions of the Prescription Act 1832 do not apply to profits a prendre in gross.

Citations:

(1865) 19 CBNS 687

Statutes:

Prescription Act 1832

Jurisdiction:

England and Wales

Cited 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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 10 May 2022; Ref: scu.279915

Poole v Huskisson: 1843

At common law a public right of way cannot be limited iin its use for a particular group of people (here the members of a parish).

Citations:

(1843) 11 M and W 827

Jurisdiction:

England and Wales

Cited by:

Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591420

Bailey v Jamieson: CCP 1875

There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any access to the footpath from a highway, or any other land to which the public had access. That the earlier stopping up orders had left this isolated footpath appears to have been an error: if a stopping up order had been sought in respect of this footpath also, it seems inevitable that it would have been granted. However, it was not sought. The evidence was that the defendants had no permission from any adjacent landowners to be on their land; so that they could only access the footpath by trespassing on the adjacent land to get to it. The defendants, accused of trespass, relied upon the common law maxim, ‘Once a highway, always a highway’. They submitted that the public footpath could only be extinguished by a stopping up order or other device provided by statute.
Held: The court discharged the rule: ‘A way ceases to be a ‘public highway’ where the access to it at either end has become impossible by reason of ways leading to it having been legally stopped up.’
Lord Coleridge CJ said: ‘It is necessary, therefore, to determine whether or not [the footpath] remains a highway. I am of opinion that it does not. Its character of a public highway is altogether gone.’
Denman J said that despite the dictum, ‘Once a highway, always a highway’: ‘I think we are compelled to hold that this is a case where that which formerly was a highway, but which, though it has been not been stopped by statutory process, has, by reason of legal acts at either end of it, ceased to be a place which the Queen’s subjects can have access, loses its character of a highway.’
Lindley J agreed, adding: ‘[The plaintiff’s] argument amounts in substance to this, that there cannot be a public highway public access to which has lawfully been stopped at either end. I agree to that.’

Judges:

Lord Coleridge CJ, Denman and Lindley JJ

Citations:

(1875-76) LR 1 CPD 329

Jurisdiction:

England and Wales

Cited by:

Cited – Great Central Railway Company v Balby-with-Hexthorpe Urban District Council 1912
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the . .
Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591421

Great Central Railway Company v Balby-with-Hexthorpe Urban District Council: 1912

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

Judges:

Joyce J

Citations:

[1912] 2 ChD 110

Jurisdiction:

England and Wales

Citing:

Cited – Bailey v Jamieson CCP 1875
There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any . .

Cited by:

Not applied – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.591422

Carr v Lambert: 1866

Levancy and couchancy is a ‘measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits’.

Citations:

(1866) 1 Ex 168

Jurisdiction:

England and Wales

Cited by:

Cited – Bettison and others v Langton and others HL 17-May-2001
A right to pasture animals on a common had been levant and couchant, and as such was inalienable as a separate asset from the land where the animals were kept. The right was registered under the Act, and was thereby transformed into a right to graze . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 May 2022; Ref: scu.191140

Williams Brothers Direct Supply Ltd v Raftery: CA 1957

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.

Citations:

[1958] 1 QB 159, [1957] 3 All ER 593

Jurisdiction:

England and Wales

Cited by:

Applied – Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 08 May 2022; Ref: scu.182990

Chetwynd v Fleetwood and Others: PC 17 May 1742

In what case an heir is bound toperform his father’s covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.

Citations:

[1742] EngR 59, (1742) 1 Bro PC 300, (1742) 1 ER 580

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Wills and Probate

Updated: 07 May 2022; Ref: scu.384232

Pomfret v Roycroft: 1726

Citations:

[1726] EngR 653, (1726) 1 Vent 44, (1726) 86 ER 32 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Pomfret v Ricroft 1669
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump.
Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is . .
See Also – Pomfret v Ricroft (No 1) 1685
. .
See Also – Pomfret v Ricroft (No 2) 1685
. .
See Also – Pomfret v Ricroft 1714
. .

Cited by:

Cited – Pomfret v Ricroft 1726
. .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.379233

Hurt v Bowmer: 1937

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.

Judges:

Bennett J

Citations:

[1937] 1 All ER 797

Jurisdiction:

England and Wales

Cited by:

Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.381287

In re Leighton’s Conveyance: CA 1937

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.”

Judges:

Lord Wright MR, Romer LJ

Citations:

[1937] 1 Ch 149

Jurisdiction:

England and Wales

Cited by:

Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Costs, Land

Updated: 07 May 2022; Ref: scu.266401

Merstham Manor Ltd v Coulsdon and Purley UDC: 1937

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.

Citations:

[1937] 2 KB 77

Jurisdiction:

England and Wales

Cited by:

Cited – Lewis v Thomas CA 1950
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. . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.253533

Nickerson v Barraclough (2): ChD 2 Jan 1980

The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the creation of such a way from, being negatived by an express term in the grant?’ and after discussing case law he said: ‘If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access.
Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result.
Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: ‘The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made’ ‘
And ‘This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed. Nothing, however, was done to negative any way of necessity. I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes’.
The Vice-Chancellor explained exactly what he meant by a ‘way of necessity’ in that passage: ‘a way implied from the common intention of the parties, based on a necessity apparent from the deeds’.

Judges:

Vice Chancellor

Citations:

[1980] ChD 325

Jurisdiction:

England and Wales

Citing:

First judgment – Nickerson v Barraclough (1) ChD 1980
The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building . .
Cited – North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd 1971
(Supreme Court of New South Wales in Equity) A company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a . .

Cited by:

Appeal from – Nickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Cited – Payne v Inwood CA 1996
A claim for an easement based upon section 62 of the 1925 Act failed. There had not been regular use of the path in question with the putative dominant tenement to gain access to it. Roch LJ said: ‘Section 62 of the 1925 Act cannot create new rights . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Appeal from – Nickerson v Barraclough CA 2-Jan-1981
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 07 May 2022; Ref: scu.253407

Cedars Rapids Manufacturing and Power Co v Lacoste: PC 1914

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

Judges:

Lord Dunedin

Citations:

[1914] AC 569

Jurisdiction:

England and Wales

Citing:

Adopted – In re Lucas and Chesterfield Gas and Water Board CA 1909
Land suitable for construction of a reservoir was the subject of a compulsory purchase for that purpose. The circumstances made it very unlikely that anyone other than the Water Board would have wanted, or been able, to construct the reservoir and . .

Cited by:

Cited – Waters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
Cited – Fraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 06 May 2022; Ref: scu.196512

Church of Scotland Endowment Committee v Provident Association of London Ltd: 1914

Citations:

[1914] SC 165, 1913 2 SLT 412

Jurisdiction:

Scotland

Cited by:

Cited – Clydesdale Bank plc v Davidson and Others (Scotland) Clydesdale Bank plc v Davidson and Others HL 16-Oct-1997
(Scotland) Joint pro indiviso proprietors of land were not able at law to create a binding lease in favour of one of their number, so as to defeat the proper claims of a third party. A person cannot enter into a contract with himself.
Held: . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 May 2022; Ref: scu.182828

Spittle v Davis: 1650

In a replevin, the case was; One Turk seised of lands in fee, devised parcell thereof to his eldest son in taile, arid the other parcell to his youngest son in fee. Provided, and his intent was, that if any of his sons or any of their issues, do alien or demise any of the said Iands, before any of them comes to the age of thirty years, that then the other shall have the estate, and does not limit what estate, and then one of the sons makes a Iease for years before such age, whereupon the other enters,
and before he comes to the age of thirty years, he aiiens that part into which he made entry, and the other brother beirig the eldest enters and makes a lease to Spittle the plainiff for three years, and Davies by commandment of the younger brother enters, and takes a horse damage-feasant, and Spittle brought a replevini : and upon demur, it seemed to the Court, that this was a limitation, and by vertue of the will the estate devised to them untill they aliened, and upon the alienation to go to the other; and upon such alienation the land is clischarged of all limiitations, for otherwise the land upon one alienation shall go to one, and upon another alienation should go back again, arid so to and fro ad infinitum, vide Dyer 14. and 29. And afterwards all the Judges agreed, that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the will ; and judgment was given accordingly.

Citations:

[1650] EngR 15, (1650) Owen 55, (1650) 74 ER 895

Links:

Commonlii

Jurisdiction:

England and Wales

Torts – Other, Land

Updated: 06 May 2022; Ref: scu.416835

Dickens v Shaw: 1822

A right to ‘wreck’ will not of itself confer a title by presumption of law to the ownershipof the soil above the shore as against the Crown.
Holroyd J discussed whether a grant of a right of wreck include also any right in the land: ‘I think it may be evidence of ownership, particularly if coupled with other acts of ownership of the right of soil. Where the crown grants the right of wreck it is probable the crown grants the right of soil also; but if the crown grant the right of wreck alone, by that grant the party would have the right to come and take the wreck, as incidental to the grant, otherwise the grant of the right could not be the grant of anything whatever.’

Judges:

Holroyd J

Citations:

Hall on the Seashore from 1822

Jurisdiction:

England and Wales

Cited by:

Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 May 2022; Ref: scu.269752

Reeve v Digby: 1638

A claim was made that the defendant had disturbed the common by digging and removing turf and by digging a fish pond.
Held: A finding that the digging of turfs was a disturbance but not the construction of the pond was not repugnant because the allegation was for disturbance in different respects.

Citations:

(1638) Cro Car 495, (1638) 79 ER 1027

Jurisdiction:

England and Wales

Land

Updated: 05 May 2022; Ref: scu.269749

Duke of Somerset v Fogwell: 1826

Where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must be presumed) before Magna Charta, by the description of ‘separalem piscariam,’ that is an incorporeal and not a territorial hereditament, and a term for years in it cannot be created without deed. Semble, that the owner of a several fishery, in ordinary cases, and where the terms of the grant are unknown, may be presumed to be owner of the soil.

Citations:

(1826) 5 B and C 875, [1826] EngR 601, (1826) 108 ER 325

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Applied – The Case of the Royal Fishery of the Banne 1610
A royal fishery did not pass by a general grant of all fisheries, because general words in a grant did not pass ‘special royalty which belongeth to the Crown by prerogative’. . .

Cited by:

Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Land

Updated: 05 May 2022; Ref: scu.269750

Anon: 1704

If a man has a right of any wreck thrown upon another’s land he has a right of way over the same land to take it: ‘Originally all wrecks were in the Crown and the King has a right of way over any man’s ground for his wreck; and the same privilege goes to the grantee thereof.’

Citations:

(1704) 6 Mod 149

Jurisdiction:

England and Wales

Cited by:

Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 May 2022; Ref: scu.269753

Regina v Duchess of Buccleuch: 1704

Citations:

(1704) 1 Salk 358

Jurisdiction:

England and Wales

Cited by:

Cited – Corpus Christi College Oxford v Gloucestershire County Council CA 1983
The court considered the result where the freehold of what had formerly been waste of the manor became severed from the lordship.
Held: It ceased to be part of the manor. Lord Denning MR described the historical basis of the ownership of land . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 May 2022; Ref: scu.269740

Swayne’s case: 1609

No lord of the manor could, by alienation, deprive those entitled of their rights over it or in respect of it.

Citations:

(1609) 8 Co.Rep. 63a

Jurisdiction:

England and Wales

Cited by:

Cited – Corpus Christi College Oxford v Gloucestershire County Council CA 1983
The court considered the result where the freehold of what had formerly been waste of the manor became severed from the lordship.
Held: It ceased to be part of the manor. Lord Denning MR described the historical basis of the ownership of land . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 May 2022; Ref: scu.269739

Attorney General v Biphosphated Guano Company: CA 1879

Land might be dedicated for a term of years only and not in perpetuity, although that had not happened in this case.

Citations:

(1879) 11 Ch D 327

Jurisdiction:

England and Wales

Cited by:

Cited – Portsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
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 . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.186482

Newcomen v Coulson: CA 1887

The grantee of an easement may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him.

Judges:

Jessel MR

Citations:

(1887) 5 Ch D 133

Jurisdiction:

England and Wales

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.581424

Bond v Norman: ChD 1939

If an Act is to have the effect of taking away a property right, ‘it must be by plain enactment or necessary intendment’

Judges:

Simonds J

Citations:

[1939] 1 Ch 847

Jurisdiction:

England and Wales

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.581423

Prior of Southwards: 1498

The prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it.
Held: If the glover had dug the lime pit in the prior’s soil, the action ought to be in trespass: but if it was made in the glover’s soil it should be in case.

Citations:

[1498] YB Henry 7 26

Jurisdiction:

England and Wales

Cited by:

Cited – Routledge v McKay and others CA 10-Mar-1954
In considering whether a statement amounts to a warranty in a contract, the court may have regard to the time which has elapsed between the time of making the statement and the final implementation of the agreement; if the interval is a long one, . .
Cited – Southport Corporation v Esso Petroleum Co Ltd CA 3-Jun-1954
The defendant’s tanker came aground, spilling fuel, for which the corporation claimed damages. The corporation appealed against rejection of that claim.
Held: In order to support an action for private nuisance the defendant must have used his . .
Lists of cited by and citing cases may be incomplete.

Land, Nuisance

Updated: 04 May 2022; Ref: scu.581031

Cooke v Ingram: 1893

Wright J said: ‘There is nothing in the original grant of the way which expressly limits the grantee to one line of access or to access only at the points, if any where his land actually adjoined the new way. And the parties certainly acted from the first upon the construction that the grantee was not limited to the shorter line of access, for the track always in fact used was not the shortest. In the absence of any such express limitation and of anything to shew that the right as claimed is unreasonable or destructive of the object of the grant I am unable to see any ground on which any obligation to elect one particular line of access can be implied’.

Judges:

Wright J

Citations:

(1893) 68 LT 671

Jurisdiction:

England and Wales

Cited by:

Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.561492

Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18: 1220

Citations:

[1220] EngR 368, (1220-1623) Jenk 204, (1220) 145 ER 138 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Richard Liford’s Case 1572
. .
See Also – Liford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 04 May 2022; Ref: scu.461280

The Case of A Fine Levied By The King Tenant In Tail, and co: 1572

The King being tenant in tail by a gift made to some of his ancestors being subjects, may by fine levied on a grant aud reader bar the estate tail : but after the render made it seems necessary to have letters patent to grant to the conusee by express words, that he may enter into the land.
Where the King claims in respect of his natural capacity as heir of the body of a subject per furmam doni, he shall be bound by an Act of Parliament.
But where he claims in his Royal and politic capacity, a General Act shall not, bind him, unless he be expressly named, except in special cases.

Citations:

[1572] EngR 390, (1572-1616) 7 Co Rep 32, (1572) 77 ER 459

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.432356

Richard Liford’s Case: 1572

Citations:

[1572] EngR 311, (1572-1616) 11 Co Rep 46, (1572) 77 ER 1206

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18 1220
. .

Cited by:

See Also – Liford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.432277

Saunders v Hord: 1660

Demur to a Bill for Redemption of a Mortgage, because of the Antiquity, and plead the Stat. 21 Jac. good.

Citations:

[1660] EngR 225, (1660-61) 1 Rep Ch 184, (1660) 21 ER 544 (D)

Links:

Commonlii

Jurisdiction:

England and Wales

Land

Updated: 02 May 2022; Ref: scu.410215

Stockholm Finance Ltd v Garden Holdings Inc: 26 Oct 1995

Robert Walker J considered how a court should decide on whether a person was in actual occupation of a house: ‘Whether a person’s intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as continuous occupation marked (but not interrupted) by occasional absences, or whether it should be seen as a pattern of alternating periods of presence and absence, is a matter of perception which defies deep analysis. Not only the length of any absence, but also the reason for it, may be material (a holiday or a business trip may be easier to reconcile with continuing and unbroken occupation than a move to a second home, even though the duration is the same in each case). But there must come a point at which a person’s absence from his house is so prolonged that the notion of his continuing to be in actual occupation of it becomes insupportable; and in my judgment that point must have been reached in this case, long before Mr Dawkins visited the house on 4 January 1990 (and still more so, long before 20 February 1990). By then Princess Madawi had not set foot in the property for over a year: she had for over a year been living with her mother in the Islamic household at Riyadh.’

Citations:

[1995] LTL

Jurisdiction:

England and Wales

Cited by:

Cited – Link Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 02 May 2022; Ref: scu.408605

Kennedy v MacDonald: 14 Nov 1988

Activities which are reasonably incidental to the enjoyment of a right of access over land may be incorporated in the right.

Judges:

Sheriff Principal Caplan

Citations:

1988 GWD 40-1653

Jurisdiction:

Scotland

Cited by:

Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.260026

Rose v Watson: HL 7 Mar 1864

The buyer had paid deposits under an unconditional contract for the purchase of land induced by the misrepresentations of the seller. On discovering the falsity of the representations the buyer rescinded the contract and successfully resisted a claim for specific performance made against him. He now claimed against the vendor’s successors in title to the land contracted to be sold the purchasers asserting a lien over that land to secure the repayment to them of the deposits paid under the contract.
Held: The purchasers’ claim succeeded. He was entitled, so far as the payments extended, to claim a lien on the estate for their amount, and to enforce that claim against the assignees of the vendor.
Lord Westbury said: ‘I think that your Lordships will agree with me that the case is determinable by principles which are very simple and very clear, and which have long been established in the Courts.
When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate.
My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money.
Then, my Lords, if that contract fails, and the failure is not to be attributed to any misconduct or default on the part of the purchaser, the obvious question arises, is the purchaser to be deprived of the interest in the estate which he has acquired by that bona fide payment? And yet, my Lords that he ought to be so deprived is the whole controversy of the Appellants at your Bar. ‘
Lord Cranworth said: ‘There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase-money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent.
It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships’ House, we are able to lay down a rule that may conclusively guide such questions for the future.’

Judges:

Lord Westbury, Lord Cranworth

Citations:

(1864) 10 HLC 671, (1864) 33 LJCh 385, [1864] EngR 300, (1864) 10 HLC 672, (1864) 11 ER 1187

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 01 May 2022; Ref: scu.259714

Liford’s Case: 1614

The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to repair or maintain the land but only to do necessary work in a reasonable manner.

Citations:

(1614) 11 Co Rep 46b

Jurisdiction:

England and Wales

Citing:

See Also – Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford’s Case 1 El Dyer, 173 5 H 7, 18 1220
. .
See Also – Richard Liford’s Case 1572
. .

Cited by:

Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.259153

Re Bromor Properties Limited: LT 1995

On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify.

Judges:

Mr Clarke

Citations:

[1995] 70 P and CR 569

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Citing:

Applied – Re Tarhale Limited LT 1990
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy . .

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238678

Re Tarhale Limited: LT 1990

Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy vehicles, apart from those required for a particular development. The objectors said that the numbers of vehicles used in the driveway during the construction period would be as many as ten vehicles per day, and that they would suffer ‘substantial and intolerable nuisance’ from noise, fumes and dust from builder’s traffic using the driveway.
Held: The tribunal accepted the objection. The restrictions secured practical benefits: ‘. . . in preventing the intolerable nuisances, which on the evidence will occur during the construction period’.

Judges:

Victor Wellings QC, President

Citations:

(1990) 60 PandCR 368

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Applied – Re Bromor Properties Limited LT 1995
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify. . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238675

Re Snaith and Dolding’s Application: LT 1995

The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the facts and merits of the particular case, and the Tribunal is unable to bind itself to a particular course of action in the future in a case which is not before it . . It is however legitimate in considering a particular application to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme. The Tribunal has frequently adopted this approach.
Insofar as this application would have the effect if granted of opening a breach in a carefully maintained and outstandingly successful scheme of development, to grant the application would in my view deprive the objectors of a substantial practical benefit, namely the assurance of the integrity of the building scheme. Furthermore I see the force of the argument that erection of this house could materially alter the context in which possible future applications would be considered.’

Judges:

Judge Bernard Marder QC

Citations:

[1995] 71 PandCR 104

Statutes:

Law of Property Act 1925 84

Jurisdiction:

England and Wales

Cited by:

Adopted – McMorris v Claude Brown and others PC 30-Jul-1998
(Jamaica) It could be a proper argument that the first relaxation of a restrictive covenant was merely the thin end of the wedge and it may be sufficient to reject the application though there was no immediate detriment to dominant land. . .
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Cited – Re Hunt’s Application LT 1997
Application was made to relax a restrictive covenant to allow a further house to be built within a garden plot.
Held: The scheme had the primary intention of securing a relatively low density residential development of houses and bungalows. . .
Cited – Lawntown Ltd v Camenzuli and Another CA 10-Oct-2007
Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 01 May 2022; Ref: scu.238673

In re River Steamer Company: 1871

A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title.
Held: The letter was written in the context of a dispute which had advanced to the point of an arbitrator having been appointed, and ‘a letter which is stated to be without prejudice cannot be relied on to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract.’ (Mellish LJ)

Judges:

Mellish LJ

Citations:

(1871) LR 6 Ch App 822

Jurisdiction:

England and Wales

Cited by:

Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 30 April 2022; Ref: scu.228934

Price v Bouch: 1986

The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld.
Held: A term that consent would not unreasonably be withheld should be implied when necessary to uphold the purpose (or efficacy) of the contract under which a requirement for consent arose according to the circumstances. The court court not review the reasonableness of the committee’s decision. However: ‘It was conceded that the committee had a duty to inspect and consider any application submitted to them, to reach a decision themselves and not to delegate it to others, and to act honestly and in good faith and not for some improper or ulterior purpose. It was also accepted that, if the committee took into account irrelevant considerations or failed to take into account relevant considerations, or reached a perverse decision such that no reasonable committee could possibly reach, then their decision could be impugned, for it would be ultra vires. This, however, was not enough for the plaintiffs. They insisted that the committee must act reasonably and that they must give reasons for their decision, so that it could, if necessary, be challenged, when the court would adjudicate and decide, in the light of the evidence, whether those reasons were justified.
. . . In my judgment, the mutual covenantors are equally bound by the decision of the committee, whether it be a decision to grant or refuse approval, and they are so bound, provided only that it is given honestly and in good faith and not for some improper purposes. Where the required consent is that of an individual who is free to consult his own interests exclusively, a provision that such consent must not be unreasonably refused is often included in order to prevent consent being withheld arbitrarily, or capriciously, or from improper motives. If that is the only effect of including such a provision, its implication in the present case is unnecessary . . .’

Judges:

Millett J

Citations:

(1986) 53 P and CR 257, [1986] 2 EGLR 179

Jurisdiction:

England and Wales

Cited by:

Cited – Mahon and Another v Sims QBD 8-Jun-2005
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Lists of cited by and citing cases may be incomplete.

Land, Contract

Updated: 30 April 2022; Ref: scu.228506

Dale v Hamilton: 1846

An oral partnership agreement mat be valid despite the partnership owning land.

Citations:

(1846) 5 Hare 369

Jurisdiction:

England and Wales

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Lists of cited by and citing cases may be incomplete.

Company, Land

Updated: 30 April 2022; Ref: scu.219437

Marshall v Ulleswater Steam Navigation Co: 1871

A public right of navigation may, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake

Citations:

(1871) LR 7 QB 166

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 30 April 2022; Ref: scu.214607