A unity of possession of the land in and of the land in qua an easement exists, does not extinguish but only suspends the easement, where the party is seised in fee of the one parcel , and possessed for the residue of a term of the other. – Where a party has a right to have the droppings of rain fall from his wall upon the premises of another, right is not destroyed by his raising the height of the wall.
Re-entry will not be construed as tortious if it can be construed rightful. Alderson B said: ‘If I am seised of freehold premises, and possessed of leasehold premises adjoining, and there has formerly been an easement enjoyed by the occupiers of one as against the occupiers of the other, while the premises are in my hands, the easement is necessarily suspended, it is not extinguished, because there is no unity of seisin; and if I part with the premises, the right, not being extinguished, will revive.’
Judges:
Alderson, Gurney BB, Lord Abinger CB
Citations:
[1835] 2 Cr M and R 34, (1855) 69 ER 701, [1835] EngR 323, (1835) 2 CrM and R 34, (1835) 150 ER 15
Links:
Jurisdiction:
England and Wales
Cited by:
Approved – Corea v Appuhamy PC 14-Dec-1911
(Ceylon) The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title.
Tenants in common cannot assert a . .
Mentioned – Rother District Investments Limited v Corke, Orr, Richards ChD 20-Jan-2004
The court was asked as to the legal effect of a purported peaceable re-entry and forfeiture of a lease by a purchaser of the reversion prior to registration of the purchaser as proprietor at HM Land Registry.
Held: The appeal was denied. What . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 May 2022; Ref: scu.199774