Land - 1849- 1899

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This page lists 360 cases, and was prepared on 28 October 2012.

Cope -v- Thames Haven Dock and Railway Co (1849) 3 Ex 841
1849	Land	Casemap 1 Citers
	"The subsection [on the execution of deeds by corporations] removes the necessity for enquiry as to the formalities required under the memorandum, articles, charter, etc., of the corporation; independently of this section the deed would be void unless such formalities were observed."

Morrell -v- Fisher (1849) Exch 591; [1849] EngR 1242; (1849) 4 Exch 591; (1849) 154 ER 1350
22 Dec 1849 Alderson B	Land	Casemap 1 Citers
	A devise of "all my leasehold farm-house, homestead, lands, and tenements at Headington, containing about 170 acres, held under Magdalen College, Oxford, and now in the occupation of Thomas Burrows" was construed as excluding two parcels of land not occupied by Thomas Burrows at Headington, the words relating to the acreage being rejected as a false description. The court considered the maxim "that if there be an adequate and sufficient description, with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it. The characteristic of cases within the rule is that the description, so far as it is false, applies to no subject at all; and so far as it is true, applies to one only."
	Link[s] omitted

Adams -v- London & Blackwall Railway Co (1850) 2 Mac & G 118
1850	Land	1 Citers

Hellawell -v- Eastwood (1851) 6 Exch. 295
1851 Parke B	Land	Casemap 1 Citers
	In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: "The only question, therefore, is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integrè, salvè, et commodè, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causâ, or in that of the Year Book, pour un profit del inheritance (a), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel".

Doe d. Baddeley -v- Massey (1851) 17 QB 374
1851 Lord Campbell CJ	Land	1 Citers
	A paper owner, as a stranger to the landlord and tenant relationship, cannot invoke an acknowledgment by the squatter's landlord. The doctrine is based on estoppel. "the landlord is thereby entitled against the tenant who took, but not against a third person."

Napier's Trustees -v- Morrison (1851) 13 D 1404
1851 Lord Cockburn	Scotland, Land	Casemap 1 Citers
	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."

Marker -v- Marker [1851] EngR 344; (1851) 9 Hare 1; (1851) 68 ER 389
17 Apr 1851	Land
	Link[s] omitted

Wilkinson -v- Fowkes [1851] EngR 1012; (1851) 9 Hare 592; (1851) 68 ER 649
22 Dec 1851	Land
	Where a conveyance of an estate, obtained upon a pretended purchase from an aged and illiterate man by a person who stood towards him in a confidential position, was set aside, the Court, being of opinion that there was in fact no purchase, refused to give the Defendant a decree for an amount of monies paid by or owing to him, which he alleged (but failed to prove) was the consideration agreed upon for such purchase and conveyance: The rule that a party coming for equity must do equity does not extend so far as to affect matters unconnected with the transaction in respect of which the relief is sought. Case in which a party in a cause, heard upon bill and answer without replication, producing letters of administration to a deceased person the Court may admit them to ascertain the representative character of such party, and may act upon the evidence which they furnish of that character. Case in which, after parties have gone into evidence in an original suit, evidence is material or admissible in a supplemental suit.
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Dyce -v- Lady James Hay (1852) 1 Macq 305
1852 HL Lord St Leonards LC	Land, Scotland	Casemap 1 Citers
	A claim was made for a prescriptive right for all the Queen's subjects "to go at all times upon the . . appellant's property . . for the purpose of recreation". Held: Leonards LC said that the right claimed was one that "cannot be maintained" and "ought not to be maintained". There could not be a prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. He agreed with the Court of Session: "that there is no rule in the law of Scotland which prevents modern inventions and new operations being governed by old and settled legal principles. Thus, when the art of bleaching came into use, there was nothing in its novelty which should exclude it from the benefit of a servitude or easement, if such servitude or easement on other legal grounds was maintainable. The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind. The law of this country, as well as the law of Scotland, frequently moulds its practical operation without doing any violence to its original principles."

Rochdale Canal Proprietors -v- Radcliffe (1852) 18 QB 287
1852 Coleridge J	Land	Casemap 1 Citers
	Riparian owners who operated steam engines had a statutory power, under the Act which created the canal company to extract from the canal "such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the sole purpose of condensing the steam used for working any such engines". Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. Held: His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest: "The foundation of the fourth plea is a supposed grant, the existence of which is to be shewn by acts of user. But, if the acts of user would not be legal, the grant cannot be inferred from them. The company here are not the owners of the water, but trustees for the public, under a very limited trust. They are bound to apply all the water that may be required to the purposes of the navigation; they are also bound to allow so much as is wanted for the particular use (specified in [the statute]), of the mill owners within a certain distance of the banks".

Walker -v- Bentley [1852] EngR 346; (1852) 9 Hare 629; (1852) 68 ER 665
9 Mar 1852	Land
	The enactment of the Tithe Commutation Amendment Act (9 & 10 Vict. e. 73, s. 19), that every instrument purporting to merge any tithes, and made with the consent of the Tithe Commissioners, shall be absolutely confirmed and made valid, both at law and in equity, in all respects, is not limited to cases in which the person executing the instrument as a title to the tithe, but operates as well where such person has no estate in the tithe, as where his estate is insufficient to effect the merger. The intention of the Tithe Commutation Acts is that the lands on which the apportionment of the tithe in each parish is cast, and these lands only, shall be liable in respect of the tithe payable for any lands in the parish; and that lands on which no apportionment is cast shall not be liable to tithe.
	Link[s] omitted

Dimes -v- The Proprietors Of The Grand Junction Canal and Others [1852] EngR 793; (1852) 3 HLC 794; (1852) 10 ER 315
29 Jun 1852 Lord Brougham, Lord Campbell	Land	Casemap 1 Cites
	The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his decision could not stand. The court now considered again the plaintiff's appeal from the order of the Vice-Chancellor. Held: The appeal failed and the order was confirmed. There was indeed a difficulty in the Act under which the land had been conveyed, but the Vice-Chancellor had found the correct interpretation of it.
	Link[s] omitted

Pyrke -v- Waddington (1853) 10 Hare 1
1853 Turner V-C	Land	Casemap 1 Citers
	The court was asked what extent of title defect would allow a purchaser to reject it: "The rule rests upon this, that every purchaser is entitled to require a marketable title, by which I understand to be meant a title which, so far as its antecedents are concerned, may at all times and in all circumstances be forced on an unwilling purchaser . . and that this is the true rule to be applied in such cases is I think the more apparent from the repeated decisions that the Court will not compel a purchaser to take a title which will expose him to litigation or hazard."

Rochdale Canal Company -v- King (1853) 16 Beav 630
1853 Sir John Romilly MR	Land, Trusts	Casemap 1 Cites 1 Citers
	Sir John Romilly MR said: "The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear."

Trent -v- Hunt (1853) 9 Exch 14
1853 Alderson B	Land, Landlord and Tenant	1 Citers
	A mortgagor in possession continues to have a legal right to receive the rents in his own name. However since he had no legal interest in the reversion, he could not forfeit for breach of covenants in the lease.

Richards -v- Rose [1853] 9 Exch Rep 218
1853 Pollock CB	Land	Casemap 1 Citers
	A dispute had arisen as to the ownership of a wall between two houses: "... it seems very clear that, where a number of houses are built upon a spot of ground, all belonging to the same person, being all built together, and obviously requiring the mutual support of each of the others for the purpose of their common protection and security whether the owner first parts with one and then another or parts with two together, which he afterwards subdivides, either by mortgage or sale or divise or any other way, still the mutual support would seem necessary - it is a matter of common sense; and the circumstances whether the houses were separated by one act at one time or at different times, never could make any difference as to what ought to be the result in as much the houses were originally built depending on each other and each require the assistance of the others. As I said before, it seems a matter of plain common sense that that support must continue and that no man who should become possessed of any one of the houses should be in a situation to say, ´You are not entitled to protection of my house and I will pull the house down and let the houses on each side collapse and fall into ruin.' It seems impossible not to come to the conclusion that the law must be in strictness in accordance with what is so plain and sensible."

Patching -v- Dubbins (1853) Kay 1
1853	Land	Casemap 1 Cites

Harvey -v- Lindsay (1853) 15 D 768
1853 Lord Ivory	Scotland, Land	Casemap 1 Citers
	A new servitudes over land may arise as alterations take place in the progress of society.

Pinnington -v- Gallard (1853) 9 Ex 1
1853 Baron Martin	Land	Casemap 1 Citers
	Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to Mr Dearle, and another to Mr Moss. An existing track through Mr Dearle's lot gave access to Mr Moss' lot and was used for that purpose for several years after the sale, but there had been no express grant or reservation of a right of way. The use was later disputed by the defendant, Mr Dearle's successor, but was confirmed by the court. Held: It could not be ascertained which grant came first. If the grant to Mr Moss had come first, the right over the retained land of Mr Dickinson was covered by well-established principles of implied grant. However: "Secondly, assume that the conveyance to Mr. Dearle was executed the first. In this case the Rye Holme closes were for a short period of time the property of Mr. Dickinson after the property in the land conveyed to Mr. Dearle had passed out of him. There is no doubt apparently a greater difficulty in holding the right of way to exist in this case than in the other; but according to the same very great authority the law is the same, for (Sergeant Williams') note proceeds thus: ' So it is when he grants the land and reserves the close to himself;' and he cites several authorities which fully bear him out. It no doubt seems extraordinary that a man should have a right which certainly derogates from his own grant; but the law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor 2 Lutw.1487, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation." A grantee of land might claim a right of way of necessity over the grantor's land even though there were prospects of an alternative access over land of a third party.

Cannock -v- Jauncey [1853] EngR 601; (1853) 1 Drew 497; (1853) 61 ER 542
26 May 1853	Land
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Sir Henry Edward Bunbury, Bart -v- Philip Fuller [1853] EngR 768; (1853) 9 Exch 111; (1853) 156 ER 47
25 Jun 1853	Ecclesiastical, Land	Casemap 1 Citers
	In a question of jurisdictional or precedent fact the ultimate arbiters are the courts rather than any public authorities involved. A tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe.
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Randall -v- Stevens And Others [1853] EngR 767; (1853) 2 El & Bl 641; (1853) 118 ER 907
25 Jun 1853 Lord Campbell LC	Land, Limitation	Casemap
	A landlord evicted a tenant who had failed to pay any rent for twenty years. Statute provided that a house could not be repossessed simply by exercising a right of entry. Held: Lord Campbell LC, giving the judgment of the Court of Queen's Bench on appeal from a judgment given at assizes, held that entry could be made "by stepping on any corner of the land in the night time and pronouncing a few words, without any intention or wish to take possession." However, where possession was taken with an intention to possess, then "whether possession was retained by the landlord an hour or a week must for this purpose [i.e. taking possession other than by mere entry] be immaterial."
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Wiltshear -v- Cottrell [1854] 1 E&B 674; [1854] 22LJ (QB) 177)
1854	Land	Casemap 1 Citers
	A wooden granary was not a fixture. When an article is no further attached to the land, then by its own weight it is generally to be considered a mere chattel.

Child -v- Douglas (1854) Kay 560; 23 LJ Ch 45; 22 LTOS 116; 17 Jur 1113; 2 WR 2; 69 ER 1
1854	Land	Casemap 1 Cites

Doe d. Croft -v- Tidbury (1854) 14 CB 304
1854	Land	Casemap 1 Cites 1 Citers

Coles -v- Sims [1854] EngR 103; (1854) 5 De G M & G 1; (1854) 43 ER 768
16 Jan 1854	Land	Casemap 1 Cites
	Link[s] omitted

Taylor -v- Gilbertson [1854] EngR 705; (1854) 2 Drew 391; (1854) 61 ER 770
3 Jul 1854	Land	Casemap 1 Cites
	Link[s] omitted

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

Johnson -v- Webster [1854] EngR 952; (1854) 4 De G M & G 474; (1854) 43 ER 592
25 Nov 1854	Land
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James Edward Jackson Riccard, Thomas Roe, Clerk, And Mary His Wife, Against William Blanuri, George Derby And Henry Charles Miles [1854] EngR 951; (1854) 4 El & Bl 329; (1854) 119 ER 127
25 Nov 1854	Land
	Link[s] omitted

Kingsmill -v- Millard (1855) 11 Exch 313; (1855) 19 JP 661; (1855) 3 CLR 1022; 156 ER 849
1855 Parke B	Land, Limitation, Landlord and Tenant	Casemap 1 Citers
	Parke B set out the doctrine that a tenant acquiring adjoining land by adverse possession acquires it on behalf of his landlord: "It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord's title. …The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit."

Regina -v- Pratt (1855) 4 E & B 860
1855 Crompton J, Erle J	Land, Torts - Other	Casemap 1 Citers
	"I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser."

Ex parte Barclay (1855) 5 De G M & G 403
1855	Land	Casemap 1 Citers
	The court asked what was meant by a fixture: "By 'fixtures' we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things."

Cawkwell -v- Russell (1856) 26 LJ Ex 34
1856 CexC	Land
	The dominant user used a right of drainage to drain foul water when the right was to drain clean water. Held: The Court of Exchequer observed that where a party has a limited right in the nature of drainage and exercises the right excessively so as to produce a nuisance, the only remedy is by stopping the whole use.

The Earl Of Lonsdale -v- Rigg [1856] EngR 93; (1856) 11 Exch 654; (1856) 156 ER 992
15 Jan 1856	Land
	The court considered claims of customary rights in the form of cattlegates.
	Link[s] omitted

In re An Act For Enabling The Newcastle And Darlington Junction Railway Company To Purchase The Brandling Junction Railway And In The Matter Of The York, Newcastle And Berwick Railway Act, 1847 And In The Matter Of The Lands Clauses Consolidati [1856] EngR 326; (1856) 3 Sm & G 307; (1856) 65 ER 671
7 Mar 1856	Contract, Land
	One of the conditions at an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that, if from any cause whatever the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the Court. The purchase-money was a fund in Court, and after a long delay the conveyancing counsel approved of the title for the purchasers. Held. Neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest.
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Johnstone -v- Hall [1856] EngR 336; (1856) 2 K & J 414; (1856) 69 ER 844
11 Mar 1856	Land	Casemap 1 Cites
	Link[s] omitted

Daniel Rowbotham -v- William Wilson [1856] EngR 575; (1856) 6 El & Bl 593; (1856) 119 ER 985
30 May 1856	Land	Casemap 1 Citers
	Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years before the action, the locus in quo was inclosed by an award made under an Inclosure Act: that the surface was allotted to P., whose estate plaintiff had; and the minerals to H., whose estate defendant had: that on the face of the award it was stipulated that the allottees of the mines should have liberty to work the mines, and the allottees of the surface should have no claim to compensatiori for any consequent sinking of the surface. P. executed the award as a deed. The houses were afterwards built. By defendant’s mining, without negligence, the surface unavoidably sunk. Held, that it sufficiently appeared that, upon the severance of the minerals and surface, the owner of the surface took it as a separate tenement with only a qualified right of support : that no further right of support was gained by the erection of the houses, though they had stood for more than twenty years; and that the subsequelit owners of the surface took it with only the qualified right of support origirially created : and that therefore the plaintiff was not entitled to maintain the action.
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Gibson -v- Doeg (1857) 2 H&N 615; [1857] EngR 925; (1857) 157 ER 253
1857 Pollock CB	Land	1 Citers
	A tenant had openly used the premises for many years in breach of a covenant in the lease. Held: Pollock CB said: "It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of time, and to presume that what has been done was done of right, and not in wrong."
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Robertson -v- Norris (1857) 4 Jur NS 155
1857 Stuart V-C	Land	Casemap 1 Citers
	A mortgage sale for purposes other than merely to recover payment of the debt was a "fraud on a power".

Rigg -v- The Earl of Lonsdale [1857] EngR 248; (1857) 1 H & N 923; (1857) 156 ER 1475
7 Feb 1857	Land
	Customary rights in the nature of cattlegates.
	Link[s] omitted

Pyer -v- Carter (1857) 1 H&N 916; [1857] EngR 291; (1857) 1 H & N 916; (1857) 156 ER 1472
21 Feb 1857	Land	Casemap
	Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entititled to the benefit and is subject to the burthen of all existing drains communicating with the other house, without any express reservation or grant for that purpose. The plaintiff’s and defendant's houses adjoined each other. They had formerly been one house and were converted into two by the owner of the whole property. Subsequently the defendant’s house was conveyed to him, and after that the plaintiff took a conveyance of his house. At the times of these conveyances, a drain ran under the plaintiff’s house and thence under the defendant’s, and discharged itself into the common sewer. Water from the eaves of the defendant’s house fell on the plaintiff’s house, and then ran into a drain on the plaintiff’s premises and thence through the drain into the common sewer. The plaintiff’s house was drained through this drain. Held: The plaintiff was, by implied grant, entitled to have the use of the drain as it was used at the time of the defendant’s purchase of the house. A drainage easement is deemed to be continuous and apparent.
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David Rowbotham -v- William Wilson [1857] EngR 717; (1857) 8 El & Bl 123; (1857) 120 ER 45
1 Jul 1857	Land	Casemap 1 Cites 1 Citers
	Link[s] omitted

Attorney-General -v- Hanmer (1858) 27 LJCh 837
1858	Land	Casemap 1 Citers
	Letters patent granted mineral rights in the waste lands. Held: the term included the lands between the high and low water marks.

Berkeley Peerage case (1858-61) 8 HLC 21
1858 Lord St Leonards	Land	Casemap 1 Citers
	Lord St Leonards explained section 1 of the 1660 Act which removed all the "fruits and consequents" of tenure in capite of the Crown: "Not only were all tenures in capite . . taken away, but the lands were for ever turned into free and common socage. How can the Castle and Estate of Berkeley, holden as it now is by free and common socage, and not in capite or in chief, carry with it a right in its possessor to sit in this House? It confers upon him just the same right, but no higher than the humblest cottage confers on its owner. The feudal tenure being abolished, of course the privileges annexed or flowing from it have ceased."
	Abolition of Tenures Act 1660 1

Forrest -v- Overseers of Greenwich [1858] XXI Victoria 890
1858	Land	Casemap 1 Citers
	The court asked whether a landing stage by a river was part of the land.

Regina -v- Broke (1859) 1 F & F 514
1859 Pollock CB	Land, Crime	Casemap 1 Citers
	The defendant faced an accusation of having blocked a public right of way. The defendant landowner claimed to have instructed his servants to allow only seafaring men and pilots to use the path and to turn back anyone else, and that this proved that there was no intention to create a public right of way. Held: Pollock CB said: "Even supposing these instructions to have been given and acted on, yet, unless it can be proved that they were communicated to the persons who used the path, and that they did so by virtue thereof, and not of right, their user was a user by the public, and the right of way has been gained, if the user has been continued long enough."

Chasemore -v- Richards [1859] 7 HLC 349
1859 HL Lord Wensleydale	Land
	The house was asked whether an owner of land had a right to sink a well upon his own premises, and thereby abstract the subterranean water percolating through his own soil, which would otherwise, by the natural force of gravity, have found its way into springs which fed the River Wandle, the flow of which the plaintiff in that action had enjoyed for upwards of sixty years. Held. Lord Wensleydale said that: "it has been now settled that the rights to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity, and quality, and to go from him without obstruction; . . the riparian owner on a navigable river, in addition to the right connected with navigation to which he is entitled as one of the public, retains his rights, as an ordinary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation."

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

Prannath Roy Chowdry -v- Rookea Begum, Syed Aman Ally, And Ram Rutton Rae [1859] EngR 824; (1859) 7 Moo Ind App 323; (1859) 19 ER 331
8 Jul 1859	Land, Commonwealth
	A Bye-bil-wuffa, or Kut-kubala (mortgage or conditional sale), is redeemable like an ordinary mortgage, and is subject to foreclosure.
	Link[s] omitted

Pell -v- Addison (1860) 2 F&F 29
1860	Land	Casemap 1 Citers
	Extent of lay rector's duty of repair of the parish church.

Henry Rowbotham, And Others -v- William Wilson [1860] EngR 892; (1860) 8 HLC 348; (1860) 11 ER 463
19 Jun 1860 HL Lord Wensleydale	Land	Casemap 1 Cites 1 Citers
	Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the term of the deed by which they are conveyed. Under a grant of minerals, a power to get them is a necessary incident.
	Link[s] omitted

Dawes -v- Hawkins (1860) 8 CB (NS) 848; [1860] EngR 968; (1860) 8 CB NS 848; (1860) 144 ER 1399
6 Jul 1860 Byles J	Land	Casemap 1 Citers
	A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years later, the defendant tried to pull down trees which the plaintiff owner grew on the substituted road. Held: The plaintiff was entitled to damages to trespass as there was no evidence that the substituted road had been dedicated to the public. A dedication of land as a public highway must be in perpetuity, and cannot be for a term of years. Byles J said: "once a highway always a highway, for the public cannot release their right and there is no extinctive presumption or prescription. The only methods of stopping up a highway are either by the old writ of adquam damnum or by proceedings before Magistrates under the statute."
	Link[s] omitted

The Directors, Etc of The Stockton and Darlington Railway Company -v- John Brown, A Lunatic, By His Committees [1860] EngR 1043; (1860) 9 HLC 246; (1860) 11 ER 724
24 Jul 1860	Health, Land
	[ Commonlii ]

Hodson -v- Coppard [1860] EngR 1088; (1860) 29 Beav 4; (1860) 54 ER 525
6 Nov 1860	Land	Casemap 1 Cites
	Link[s] omitted

Bowser -v- Maclean [1860] EngR 1170; (1860) 2 De G F & J 415; (1860) 45 ER 682
21 Nov 1860 Lord Campbell LC	Land	Casemap 1 Citers
	The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain the lord from using the tramway for the latter purpose ; nor is it an objection to such a bill that the copyholder is not in possession of the surface, but has let it to a tenant.
	Link[s] omitted

Ewart -v- Cochrane (1861) 4 Macq 117
1861 Lord Campbell LC	Land, Scotland	1 Citers
	The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership. Held: Lord Campbell LC said: "My Lords, I consider the law of Scotland as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance. When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant."

Tupper -v- Foulkes (1861) 9 CB (NS) 797; [1860] EngR 271 (A); (1860) 2 F & F 167
1861 Williams J	Land	Casemap 1 Citers
	Anything which shows that a party treats an instrument as his deed will suffice to make it his deed.
	Link[s] omitted

Norris -v- Chambres (1861) 29 Beav 246
1861 Sir John Romilly MR	Land	Casemap
	A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to buy the Prussian mine, as planned, but the director's suicide intervened before completion. The result was that his estate was temporarily short of funds, further instalments he was supposed to pay according to the contract were not paid, and the property was in danger of being lost. Accordingly, the other directors caused the contract to be cancelled and they set up a new company instead, which acquired the mine under a replacement contract. The shortfall was made up by crediting the vendor with the monies already advanced by the deceased director. The deceased director's estate had no shares in the new company, and nothing to show for the large sum advanced. The plaintiff brought two suits, one in Prussia and the other in England. The English claim was for a declaration that the plaintiff had a lien on the coal mine, an account, and a declaration that the defendants had purchased the mine subject to the lien and as his trustees, and that unless the money was repaid the mine should be sold in order to generate the sum required for that purpose. It will be obvious to the modern reader of the reports that England was a forum non conveniens. Indeed by the date of the first-instance hearing the Prussian suit had already succeeded. Held: "I am told that according to late decisions, and according to the law of England, if a man sell an estate to B and receive part of the purchase-money, and then repudiate the contract, and sell the estate to C, who has notice of the first contract and of the payment of part of the purchase-money by B, B shall, in that case, have a lien on the estate in the hands of C, for the money paid to the original owner. But assume this to be so, this is purely a lex loci which attaches to persons resident here and dealing with land in England. If this be not the law of Prussia, I cannot make it so, because two out of the three parties dealing with the estate are Englishmen, and I have no evidence before me that this is the Prussian law on this subject, and it if it be so, the Prussian Courts of Justice are the proper tribunals to enforce these rights. If the owner of an estate in Prussia mortgage that estate to an Englishman, it is new to me that the Courts of Equity in this country will administer, as between those persons, the law obtaining in England with relation to mortgages, and foreclose or direct a sale of the Prussian estate, if payment be not made of the amount due . . . there is no equity between the parties; here the Plaintiff is entitled to no decree against the Defendants for payment of any sum of money, nor is any such claimed, but the equity and relief sought begin and end with a prayer to make a certain transaction between other persons, one of whom is a stranger to the Plaintiff, an interest to an estate in Prussia, belonging to that stranger, and this independently of all personal equities attaching upon him. I never heard of any such case, and I will not be the first Judge to create such a precedent, which if adopted, for ought I see, would go to assert a right in the Courts here to determine questions between foreigners, relating exclusively to immoveable property in their own country."

Webb -v- Bird (1861) 10 CB (NS) 268; [1861] EngR 518; (1861) 10 CB NS 268; (1861) 142 ER 455
1861 Willes J	Land	Casemap 1 Citers
	The use of prescription for the acquisition of an an easement of light is anomalous. The owner of the land over which the easement is claimed can do nothing to prevent the installation of windows in a neighbour's house.
	Link[s] omitted

Berridge -v- Ward (1861) 30 LJCP 218; (1861) 25 JP 695; (1861) 7 Jur NS 876; (1861) 142 ER 507; [1861] EngR 272; (1861) 10 CB NS 400
1861	Land	Casemap 1 Citers
	The court set out the presumption ad medium filum as follows: "Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law, is that the soil of the highway usque ad medium filum passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it."
	Link[s] omitted

Frewen -v- Philipps [1861] EngR 30; (1861-1862) 11 CB NS 449; (1861) 142 ER 871
1861 CEC	Land	Casemap 1 Citers
	The plaintiff arid defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz the 18th of December, 1788, and both expiring at the same time. The defendant by building on his own premises obstructed a window in the house of the plaintiff though the latter had had an uninterrupted enjoyment of light and air for more than twenty years :--Held, that the circumstance of the two houses being held under the same landlord, and for the same term, did not prevent the one tenant from acquiring an indefeasible right to light as against the other.
	Link[s] omitted

Regina -v- Mathias; The Attorney-General v. Mathias (1861) 2 F&F 570; 27 Law J Ch 761
1861 Byles J	Land
	A profit a prendre in another man's soil cannot be claimed by custom, however ancient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. "The easement in this case is a public right of 'footway' and 'A prescription, to be good, must be both reasonable and certain. . and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad.'

Howard -v- Harris [1681] EngR 89; [1681] 23 ER 288 (A); (1681) 1 Vern 33
1861	Land	Casemap
	Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem.
	Link[s] omitted

Tupper And Others -v- Foulkes [1861] EngR 240; (1861) 9 CB NS 797; (1861) 142 ER 314
26 Jan 1861	Land	Casemap 1 Cites
	Link[s] omitted

Westhead And Others -v- Sproson And Piper [1861] EngR 544; (1861) 6 H & N 728; (1861) 158 ER 301
1 May 1861	Land, Contract	Casemap 1 Citers
	Link[s] omitted

Attorney-General -v- Thames Conservators (1862) 1 H & M 1
1862	Land	Casemap 1 Citers

Allen -v- England [1862] EngR 1; (1862) 3 F & F 49; (1862) 176 ER 22
1862 Erle CJ	Land, Limitation	Casemap 1 Citers
	The court considered a claim for land by adverse possession against the owner on paper. Erle CJ said: "It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it."
	Link[s] omitted

Chamberlain -v- West End of London Railway Co (1862) 2 B&S 617 (Ex Ch)
1862 CExC Erle CJ	Land, Damages	Casemap 1 Citers
	The court had found that, after railway works cut off highway access, and, notwithstanding the provision of a deviation road, the value of the claimant's properties as shops had been "greatly diminished" by the reduction in the number of people passing them. Held: The court accepted, on the basis of the umpire's finding, that the claimants' houses had been depreciated in value "because the highway was stopped up, and the easy access which before existed was taken away".

Curling -v- Austin [1862] EngR 299; (1862) 2 Dr & Sm 129; (1862) 62 ER 570
18 Jan 1862	Contract, Land
	Link[s] omitted

Cordingley -v- Cheesebrough [1862] EngR 426; (1862) 3 Giff 496; (1862) 66 ER 504
11 Feb 1862	Land, Contract
	A lot sold by auction, described in the particulars of sale as a mansion-house and pleasure-grounds containing an area of 7683 square feet or thereabouts, contained in fact but 4350 square feet ; but one of the conditions being "that the admeasurements are presumed to be correct, but if any error be discovered therein no allowance shall be made or required either way." On a bill by the purchaser seeking specific performance with compensation the Court decreed specific performance without compensation, and ordered the Plaintiff to pay the costs of the suit.
	Link[s] omitted

Cordingley -v- Cheeseborough [1862] EngR 605; (1862) 4 De G F & J 379; (1862) 45 ER 1230
28 Apr 1862	Land, Contract
	Link[s] omitted

Dillwyn -v- Llewelyn [1862] EWHC Ch J67; [1862] 45 ER 1284; (1862) 4 De GF & J 517
12 Jul 1862 ChD The Lord Chancellor Lord Westbury	Land, Trusts	Casemap 1 Citers
	The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him "for the purpose of furnishing himself with a dwelling-house". The memorandum was not by deed. The son built his home on the land. When the father died, the elder son disputed his brother's title. Held. The Master of the Rolls said younger son was entitled to a life interest. Lord Westbury LC allowed the younger son's appeal, saying: "About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift . . so if A puts B in possession of a piece of land, and tells him, 'I give it to you that you may build a house on it,' and B on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance." The Lord Chancellor awarded the younger son the fee simple since "no one builds a house for his own life only."
	Link[s] omitted

Lechmere -v- Clamp [1862] EngR 1177; (1862) 31 Beav 578; (1862) A)
17 Dec 1862	Land
	Link[s] omitted

Smith -v- Howden (1863) 14 CB (NS) 398; 2 New Rep 30; 143 ER 500
1863	Land
	The path to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, and the plot served by the path owned only an easement.

Malcomson -v- O'Dea (1863) 10 HLC 592
1863	Land	Casemap 1 Citers
	In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right.

Isenberg -v- East India House Estate Co Ltd (1863) 3 De G J & S 263
1863 Lord Westbury LC	Land, Damages	Casemap 1 Citers
	The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff's light and exercised instead the Court of Chancery's recently-acquired jurisdiction under the 1858 Act to order payment of damages: ". . . I hold it . . . to be the duty of the court in such a case as the present not, by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained."
	Lord Cairns's Act 1858

Mounsey -v- Ismay (1863) 1 H & C 729
1863 Martin B	Land	Casemap
	The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner's counsel protested that the fields were arable land. Held: Martin B: "It must be assumed that the custom has existed since the time of Richard the First; and why may it not have been reasonable in the then state of the land?"

Ingram -v- Morecroft (1863) 33 Beav 49
1863 Sir John Romilly MR	Land	1 Citers
	"... if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; ..."

Eastwood -v- Lever [1863] EngR 23; (1863) 4 De G J & S 114; (1863) 46 ER 859
1863 Knight Bruce LJ	Land
	Link[s] omitted

Webb -v- Bird And Others [1863] EngR 93; (1863) 13 CB NS 841; (1863) 143 ER 332
1863	Land	Casemap 1 Cites
	Link[s] omitted

Sowerby -v- Wadsworth [1863] EngR 87; (1863) 3 F & F 734; (1863) 176 ER 336
1863	Land
	A right of highway does not include a right to race ; and a person who had been party to a ''hurdle race," was held jointly liable for the putting the hurdles on the ground, although he did not take part in that particular act.
	Link[s] omitted

Jane Robbins, Administratrix Of Edwin James Robbins, Deceased -v- Jones [1863] EngR 956; (1863) 15 CB NS 221; (1863) 143 ER 768
16 Nov 1863	Land	Casemap 1 Citers
	It is for the grantee of an easement, and not the grantor, to maintain and repair the subject matter of the easement, with a duty to do so if by his neglect the servient tenement suffers damage.
	Link[s] omitted

Sowerby -v- Wadsworth [1863] EngR 1008; (1863) 2 H & C 701; (1863) 159 ER 290
24 Nov 1863	Land
	Link[s] omitted

St Leonard's Shoreditch Vestry -v- Hughes (1864) 17 CB (NS) 137
1864	Land	Casemap 1 Citers
	The vendor is only allowed a reasonable time within which to make his decision whether to rescind or not in reliance on a contractual term providing for this right where requisitions have been raised which he cannot fulfil.

Middleton -v- Magnay (1864) 2 H&M 233
1864 Page-Wood V-C	Contract, Land	Casemap 1 Citers
	The vendor had agreed to grant a 21 year lease over certain land. In fact he only had an eight year lease in half the land. When the contract went off on account of the inability of the vendor to grant the lease contracted for the purchaser claimed a lien to secure repayment to him of expenditure on improvements undertaken by him pursuant to a term in the contract. Held: The claim succeeded to the extent of the vendor's interest. In law the contract took effect as one to assign such interest as the vendor did have.

Delacherois -v- Delacherois (1864) 11 HL Cas 62
1864 HL	Land	Casemap 1 Citers

Rose -v- Watson (1864) 10 HLC 671; (1864) 33 LJCh 385; [1864] EngR 300; (1864) 10 HLC 672; (1864) 11 ER 1187
7 Mar 1864 HL Lord Westbury, Lord Cranworth	Contract, Land	Casemap 1 Citers
	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."
	Link[s] omitted

Purdey And Others -v- Field And Another And Hatch (Intervening) [1864] EngR 327; (1864) 3 Sw & Tr 576; (1864) A)
18 Mar 1864	Land
	Link[s] omitted

Galloway -v- The Mayor, Aldermen And Commons Of The City Of London [1864] EngR 397; (1864) 2 De G J & S 213; (1864) 46 ER 356
26 Apr 1864	Land	Casemap 1 Citers
	In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing of this Act, the corporation agreed with a railway company, which had no power to take the Plaintiff's land, that if the Act passed the company would purchase certain lands under the Act and sell for a certain price a specified part of them to the company, such part including the bulk of the Plaintiff’s land, only a small portion of which was required to be thrown into the new street. The Corporation, after the passing of the Act, gave the Plaintiff notice to take the whole of his land. Held. by the Lord Justice Knight Bruce, the Lord Justice Turner inclining to the same opinion, that the Corporation had, by entering into the above agreement, incapacitated themselves from forming a just judgment, as between them and the plaintiff concerning the quantity of his land which they should require, arid that an injunction ought to be granted to restrain them from proceeding on their notice. Per the Lord Justice Turner. Whether an injunction ought not to be granted on the ground that the corporation were buying in order to sell to a body which had no capacity to take, quaere?
	Link[s] omitted

Beeston -v- Marriott [1864] EngR 631; (1864) 4 Giff 436; (1864) 66 ER 778
2 Jul 1864	Land
	Rails and other chattels which by the terms of the contract when placed on the land became the absolute property of the company, the contractor to have no property therein, except the right of using them on the land for the purpose of the works, except on completion of the line, as a condition precedent, the plant was to be given to the contractor as part consideration, or, if used by the company, to be paid for : Held, not liable to be taken in execution for the company's debts.
	Link[s] omitted

Eddison And Others, The Commissioners Of The Nottingham Inclosure, -v- The Rev Joshua William Brookes, Vicar Of St Mary, Notthingham [1864] EngR 720; (1864) 17 CB NS 606; (1864) 141 ER 243
9 Nov 1864	Land
	Link[s] omitted

Arthur Heelis -v- Thomas Goad Blain [1864] EngR 794; (1864) 18 CB NS 90; (1864) 141 ER 374
23 Nov 1864	Land
	Link[s] omitted

Rede -v- Oakes [1864] EngR 880; (1864) 4 De G J & S 505; (1864) 46 ER 1015
21 Dec 1864	Land, Trusts
	Link[s] omitted

Regina -v- Heath (1865) 6 B & S 578
1865 QB Crompton J, Cockburn CJ	Land	Casemap 1 Citers
	The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the defendant, who objected that these costs did not arise from an attempt to repair the highway. The Board argued that the sum represented only the cost of a repair, and were recoverable as 'other expenses in relation to such highways'. The parish replied that the Acts made distinctions between repair of highways and removal of obstructions. Held: Disussing the sections of the 1835 Act at issue, Crompton J said that the sections are cumulative. When counsel attempted to distinguish between the costs of removing an obstruction and the costs of litigation, he was answered by Cockburn CJ: 'If the surveyor is entitled to charge the expense of removing a nuisance by manual or mechanical labour, why is he not entitled to charge the expense of doing it by legal proceediings adding, 'Litigation leads to the same end' and 'If this had been the case of a prosecution by the surveyor under the former Act for removing an obstruction on a highway I should have been disposed to hold that he had power to include the expenses of it in a highway rate; for by sect. 27 he was directed to make a rate in order to raise money for carrying the several purposes of that Act into execution. The main purpose of the Act was to repair the highways and keep them in a proper condition; but the existence of an obstruction on a highway amounting to a nuisance is inconsistent with that condition. And therefore, according to a wise and liberal construction of the Act the expenses of such a prosecution might have been fairly and legitimately included in the highway rate.' The expenses claim fell within the wider provisions of s20.
	Highways Act 1835 6 27 - Highways Act 1862 20

Shuttleworth -v- Le Fleming (1865) 19 CBNS 687
1865	Land	1 Citers
	The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross.
	Prescription Act 1832

Tapling –v- Jones [1865] 11 HLC 290
1865	Land	Casemap 1 Citers
	The land owner had a building with three stories. Each had a window with established rights of light. He extended the windows in the ground and first floor, and added two new stories. The neighbour built on his own land to an extent sufficient to block the new windows. Held: The right to an ancient light is a matter of positivi juris, and is not derived from a presumption of lost grant. It arises automatically after enjoyment for 20 years, and is not lost by subsequent temporary interruption. The owner of a building does not exceed the limits of his right by opening new windows overlooking his neighbour's land, whose remedy is solely to build so as to interrupt any new right without obstructing an existing right.

Herring -v- Metropolitan Board of Works (1865) 19 CBNS 509
1865 CCP Willes J	Land, Damages	Casemap 1 Citers
	All the main sewers in the metropolis were vested in the Metropolitan Board of Works by the Act, gaving it wide powers to maintain and improve them, and for that purpose to carry out works in streets and other land, "making compensation for any damage done thereby…" The Board erected a hoarding in Northumberland Street for the purpose of enabling it to reconstruct a sewer running under the street. The hoarding was very close to the access to the claimant's premises, where he carried on business as a livery stable keeper, and as a result the access to the premises was rendered less convenient. The decision of a magistrate, holding that the claimant was not entitled to compensation, was upheld by the Court of Common Pleas. Willes J: "…I am clearly of opinion that, where the metropolitan board are engaged in the performance of a public work which renders it necessary to erect a hoarding or to deposit materials or rubbish in a public street, the mere fact that thereby the passage along the street becomes more difficult and inconvenient to A than to B and C, gives A no claim to compensation under the act…In other words, it appears to me that, the construction of the hoarding being necessary for the due performance of the works by the board, and the obstruction not having been more than was necessary, or kept for an unreasonable time, would give the appellant no cause of action, and consequently no claim for compensation under the act." and Byles J "My judgment rests upon this ground, that the injury here complained of, viz the temporary obstruction of the public way, rendering the access to the appellant's premises more inconvenient for a short time, gave him no cause of action and no right to compensation. As a general rule, all the Queen's subjects have a right to the free and uninterrupted use of a public way: but, nevertheless, all persons have an equally undoubted right for a proper purpose to impede and obstruct the convenient access of the public through and along the same. Instances of this interruption arise at every moment of the day. Carts and waggons stop at the doors of shops and warehouses for the purpose of loading and unloading goods. Coal-shoots are opened on the public footways for the purpose of letting in necessary supplies of fuel. So, for the purpose of building, rebuilding, or repairing houses abutting on the public way in populous places, hoardings are frequently erected inclosing a part of the way. Houses must be built and repaired and hoarding is necessary in such cases to shield persons passing from the danger from falling substances. If this be the right of private persons, a fortiori must it be the right of a public body to which extensive power is intrusted for the general good of all. On the ground, therefore, that the obstruction here was of a temporary character, and was done for a proper purpose, and not continued for an unreasonable time, I am of opinion that this is not a case for compensation under the Metropolis Local Management Act."
	Metropolis Management Act 1855 135

Asher -v- Whitlock (1865) LR 1 QB 1
1865	Land	Casemap 1 Citers
	Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A claimant's previous possession is evidence of his title (or of his prior seisin), but it is rebuttable evidence, and if rebutted by other evidence, the right to claim possession dissolves

Galloway -v- The Corporation Of London [1865] EngR 241 (B); (1865) 34 Beav 203
13 Feb 1865	Land, Constitutional	Casemap 1 Citers
	In July 1862 the Corporation of London obtained Parliamentary powers for taking the Plaintiffs land for public purposes. But, prior thereto (June 1862) the Corporation had contracted to sell these lands to another company, not then empowered to purchase them, The Court held that the Corporation had so fettered their judgment and discretion, by contracting to sell that which they had no power to purchase, and that, to a company not then authorized to buy them that the Plaintiff was entitled to an injunction to restrain the Corporation from taking more of his land than they bona fide required. After this, another Act passed in 1864, which, after referring to the contract of 1862, provided that that Act should not prejudice the right of the conipany under that agreement, but that the covenants thereof shou!d be as applicable to the said land, if purchased under the powers of this Act, as they would have been, if they had been purchased under the Act of 1863. Held, by the Master of the Rolls, that the last Act removed the objection to the agreement, and amounted to a declaratory enactment as to its validity, and that, consequently, the Plaintiff was not entitled to an injunction. The decision was affirmed, Lord Justice Turner dissentiente.
	Link[s] omitted

Galloway -v- The Mayor, Commonalty And Citizens Of The City Of London [1865] EngR 415; (1865) 2 De G J & S 639; (1865) 46 ER 523
2 May 1865	Land, Constitutional	Casemap 1 Cites 1 Citers
	The Corporation of London in 1862 obtained an Act authorising them to make a new street and buy land for that purpose, with certain powers of reselling land not required for the street. About the same time a railway company obtained an Act authorizing the company and the Corporation to enter into agreements for the sale of land by the corporation to the company. Shortly before either Act had passed the corporation entered into an agreement with the company to take under the powers of their Act and sell to the company certain lands, including land of the plaintiff. The Plaintiff filed his bill to restrain the corporation from taking his land on the ground of this agreement and obtained an injunction. After this another Act was passed authorising the corporation to take lands for another undertarking ; and by this Act, after reciting that certain lands might be taken under it which were liable to be taken by the corporation under their fomer Act, and with respect to which an agreement was "under the authority" of that Act and the Railway Act entered into between the Corporation and the company, and that it was expedient "that the rights of the company under such agreement, should be preserved," it was enacted that nothing in the present Act should prejudice "the rights of that company under the said agreement," but that all the provisions of the agreement should be as applicable to the lands if purchased under the powers of the present Act as they would have been if they had been purchased under the former Act. The Plaintiff land was liable to be taken under this latter Act. Held. by the Lord Justice Knight Bruce, affirming the decision of the Master of the Rolls, the Lord Justice Turner dissenting, that the Legislature had by the latter Act recognized the validity of the agreement, and that the agreement was therefore no obstacle to the corporation taking the land of the Plaintiff under the latter Act.
	Link[s] omitted

Gaved -v- Martyn [1865] EngR 533; (1865) 19 CB NS 732; (1865) 141 ER 974
3 Jun 1865 CCP Byles J, Erle CJ, Willes J	Land	Casemap 1 Citers
	The parties disputed whether a right had been acquired to use a watercourse. The plaintiff's predecessor (Hooper) had been given permission from the defendant's predecessor (Geach) to cut a "leat" or stream to carry water from a natural brook on Geach's land to his land. In 1835, the plaintiff acquired a tenancy to the land and enjoyed the water from this stream until 1855, when the defendant sought to block the flow of water. At trial the judge (Channell B) left for the jury the question whether the plaintiff enjoyed the stream as of right, and their verdict was that he did not. The plaintiff sought to set aside that verdict. Held: When there has been a personal licence granted to the dominant owner, it may be possible to infer the grant of a similar licence to his successor. This was a question of fact for the jury. Erle CJ stated: "The question is whether that enjoyment in fact for more than twenty years established an indefeasible right in the plaintiff, or left it as a question for the jury whether the plaintiff was not limited to the same right as Hooper had, viz. by virtue of his agreement with Geach." and "I think there was evidence from which the jury were warranted in finding that there had not been any enjoyment for twenty years previously to the commencement of the action, by the plaintiff or those through whom he claimed, as of right; but that the enjoyment was precarious, and procured by the permission of the owner of the soil. I do not lay it down as a matter of law that the plaintiff is affected by the licence which Hooper had; but only that the learned judge was bound to leave the question to the jury, and that they were warranted in acting upon it as they have done." Willes J said: "If the learned Baron had told the jury that the effect of the agreement between Hooper and Geach was to stamp the character of precariousness on the enjoyment by Gaved, Hooper's successor, his direction might have been objectionable." However, the judge had left the matter open as a question for the jury on the evidence. The question was therefore: "whether there was any evidence from which the jury might properly find that the enjoyment of the leat in question was precarious. A plaintiff who is seeking to establish an enjoyment for the statutable period of twenty years, must, - with this exception, that he need not satisfy the jury of the fact of there having been a lost grant, or that the enjoyment commenced before the time of legal memory, - make out that his enjoyment has been under a claim of right. And I apprehend it would clearly be competent, in answer to such a claim, to shew that the enjoyment originated under an agreement with the tenant or owner of the servient tenement, and therefore was precarious and not as of right: and, upon proof of that fact, it would be for the jury to say whether the tenant of the dominant tenement had not continued the enjoyment in pursuance of a similar agreement, and whether it was not precarious." Byles J said:"The question left, as far as the foul leat is concerned, was, 'Has the plaintiff or those through whom he claims had an uninterrupted enjoyment of the leat as of right for more than twenty years?' The answer is in the negative. It seems to me that the question was rightly put to the jury, and that there was abundant evidence to warrant their answer. The rule was also moved on the ground that the verdict was against the evidence. I think that, if the plaintiff had notice of the circumstance under which Hooper's enjoyment of the leat began, his subsequent enjoyment was not under a claim of right."
	Prescription Act 1832
	Link[s] omitted

Galloway -v- The Mayor, Commonalty And Citizens of London [1865] EngR 639; (1865) 3 De G J & S 59; (1865) 46 ER 560
29 Jun 1865 HL	Land, Constitutional	Casemap 1 Cites 1 Citers
	A bill filed by the Plaintiff to restrain the Defendant from taking certain property of his under their statutory powers had been dismissed and the order of dismissal enrolled. The Plaintiff presented a petition of appeal to the House of Lords, and now applied to the Court for an interim order to protec the property till the appeal could be heard. Held, that as the bill had been simply dismissed without any reservation, the Court had no jurisdiction to make the order asked.
	Link[s] omitted

Dent -v- Dent [1865] EngR 773; (1865) 35 Beav 126; (1865) A)
12 Dec 1865	Land
	Link[s] omitted

Thomas Walker -v- Auber George Jones [1865] EngR 790; (1865) 3 Moo PC NS 397; (1865) 16 ER 151
19 Dec 1865 PC	Land
	Link[s] omitted

Le Strange -v- Rowe [1866] EngR 10; (1866) 4 F & F 1048; (1866) B)
1866	Land
	Link[s] omitted

Xenos -v-Wickham (1866) LR 2 HL 296
1866 HL Blackburn J, Lord Cranworth	Land	1 Citers
	Blackburn J said that a deed is delivered "as soon as there are acts or words sufficient to [show] that it is intended by the party to be executed as his deed presently binding on him." Lord Cranworth said: "The maker (of a deed) may so deliver it as to suspend or qualify its binding effect. He may declare that it shall have no effect until a certain time has arrived or until some condition has been performed, but when the time has arrived, or the condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it, whether he has parted with possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed; it is a mere escrow."

Galloway -v- Mayor and Commonalty of London (1866) LR 1 HL 34
1866 HL Lord Cranworth LC	Land, Constitutional	Casemap 1 Cites 1 Citers
	Lord Cranworth LC said: "The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers."

D'Eyncourt -v- Gregory (No 1) (1866) LR 3 Eq 382
1866 Lord Romilly MR	Wills and Probate, Land	Casemap
	If the intention is apparent to make the articles part of the land, they become part of the land. Sculptures which simply rested by their own weight were held to form part of the architectural design for the hall in which they were placed and so fell to be treated as part of the freehold.

Bickett -v- Morris (1866) LR 1 SC & Div 47
1866	Land	1 Citers

Carr -v- Lambert (1866) 1 Ex 168
1866	Land	Casemap 1 Citers
	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".

Toombs' Case [1866] EngR 46; (1866) 35 Beav 524; (1866) A)
1866	Land
	Link[s] omitted

Indermaur -v- Dames (1866) LR 1 CP 27
1866 Willes J	Land	Casemap 1 Citers
	The court described as an occupier's duty towards his invitees: "And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact." and "We consider it sound law that such visitor, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows, or ought to know, and which the other party does not know."

Craggs -v- Gray [1866] EngR 52; (1866) 35 Beav 166; (1866) A)
12 Jan 1866	Land
	Link[s] omitted

Western -v- MacDermot [1866] EngR 55; (1865-1866) 35 Beav 243; (1866) 55 ER 889
12 Jan 1866	Land
	Link[s] omitted

Re Lathropp's Charity [1866] EngR 63; (1866) 35 Beav 297; (1866) 55 ER 910
20 Jan 1866	Land
	Link[s] omitted

Harman -v- Gurner [1866] EngR 71; (1866) 35 Beav 478; (1866) B)
30 Jan 1866	Wills and Probate, Land
	Link[s] omitted

The Queen -v- The Local Board Of Health Of The Borough Of Godmanchester [1866] EngR 78; (1866) 5 B & S 936; (1866) 122 ER 1078
3 Feb 1866	Land
	Link[s] omitted

The Crenver, &C, Mining Company (Limited) -v- Willyams [1866] EngR 88; (1866) 35 Beav 353; (1866) 55 ER 932
9 Feb 1866	Land
	Link[s] omitted

Calcraft -v- Thompson [1866] EngR 85; (1865-1866) 35 Beav 559; (1866) 55 ER 1013
9 Feb 1866	Land
	Link[s] omitted

The Attorney-General, on Behalf of Her Majesty -v- The Sitting-Bourne, &C, Railway Company [1866] EngR 91; (1866) 35 Beav 268; (1866) 55 ER 899
10 Feb 1866	Land, Contract
	Link[s] omitted

Mullins -v- Hussey [1866] EngR 92; (1866) 35 Beav 301; (1866) B)
12 Feb 1866	Land
	Link[s] omitted

Burmester -v- Moxon [1866] EngR 98; (1866) 35 Beav 310; (1866) 55 ER 915
14 Feb 1866	Land
	Link[s] omitted

Micholls -v- Corbett [1866] EngR 109; (1865-1866) 34 Beav 376; (1866) 55 ER 680
24 Feb 1866	Land, Contract
	Link[s] omitted

In Re St Cuthbert Lead Smelting Company [1866] EngR 111; (1866) 35 Beav 384; (1866) B)
27 Feb 1866	Land
	[ Commonlii ]

Earl Cowley -v- Wellesley [1866] EngR 112; (1866) 35 Beav 635; (1866) 55 ER 1043
28 Feb 1866	Land, Wills and Probate
	Link[s] omitted

In Re Drew Ex Parte Mason [1866] EngR 136; (1865-1866) 35 Beav 443; (1866) 55 ER 968
18 Apr 1866	Land
	Link[s] omitted

Paterson -v- Paterson [1866] EngR 141 (B); (1866) 35 Beav 506
24 Apr 1866	Land
	Link[s] omitted

Clark -v- Wallis [1866] EngR 143; (1866) 35 Beav 460; (1866) B)
26 Apr 1866	Land, Contract
	Link[s] omitted

Belaney -v- Belaney [1866] EngR 155; (1866) 35 Beav 469; (1866) 55 ER 978
25 May 1866	Land, Wlls and Probate
	Link[s] omitted

Benyon -v- Fitch [1866] EngR 158; (1866) 35 Beav 570; (1866) 55 ER 1018
1 Jun 1866	Land
	Link[s] omitted

Redmayne -v- Forster [1866] EngR 163; (1866) 35 Beav 529; (1866) 55 ER 1002
5 Jun 1866	Land
	Link[s] omitted

Morton -v- Woods (1867) LR 4 QB 292
1867 QBD Kelly CB	Land	Casemap 1 Citers
	The owner of a factory, having already conveyed his legal estate by virtue of a first charge, purported to grant a second mortgage to a bank. As additional security, he "attorned tenant" to the bank. He acknowledged a relationship of landlord and tenant between them. This was intended to give the mortgagee the rights of a landlord. When the borrower failed to pay, the bank levied a distress. The owner of the goods sued for damages, claiming that the bank had no right to levy distress because that ancient common law remedy was available only to the holder of a legal estate. A recital to the mortgage made it plain that the bank was a second mortgagee and therefore had no legal estate. Held: The mortgagor was estopped from denying the bank's legal title. Kelly CB: "it is the creation of the tenancy, or the estoppel, which arises from the creation of the relation of landlord and tenant by agreement between the parties, that makes the actual legal estate unnecessary to support the distress."

Boyd -v- Shorrock (1867) LR 5 Eq 72
1867 Sir W. Page Wood V.-C	Land	Casemap 1 Cites 1 Citers

Ricket -v- Metropolitan Railway Co (1867) LR 2 HL 175
1867 Lord Cranworth	Land	Casemap 1 Citers
	Lord Cranworth considered the adverse effect of building railways on nearby businesses, and in particular the Pickled Egg public house: "The very existence of a railway must cause loss to many persons in its neighbourhood. Every inn or posting-house at which post horses were kept suffered, as is well known, grievous loss by the first establishment of a railroad in its neighbourhood; in fact, the business of such a house was often utterly destroyed. But it was never contended that this was an injury for which compensation should be demanded." and "there is nothing in authority or logic to say that the letting value of the premises cannot be affected by an interference which makes it less convenient to conduct the kind of business for which they would otherwise have been suitable. A plaintiff who can prove such a reduction in value, for whatever period, is entitled to compensation."

Bryant -v- Foot (1867) LR 2 QB 161
1867 Cockburn CJ	Land, Limitation	Casemap 1 Citers
	It is to be presumed from a period of 20 years' user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in grant, it should be capable of being created by an express grant made by deed. Cockburn CJ said that the fiction of lost modern grant, animus dedicandi and the like are "a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people."

Williams -v- James [1867] LR 2 CP 577
1867 Bovill CJ, Willes J	Land	Casemap 1 Citers
	A right of way obtained by prescription for the purpose of carting hay to field "cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen".

Baxendale -v- McMurray [1867] 2 Ch App 790; [1867] 31 JP 821
1867	Land, Environment
	The plaintiff's land was next to the river Chess. The defendant had for more than twenty years discharged refuse from his paper factory into the Chess upstream of the plaintiff. Latterly a change in the manufacture had led to a different and greater discharge of refuse. The plaintiff sought an order restraining the discharge. Held: The defendant had acquired an easement. That right was to discharge such refuse as was generally produced by the reasonable and proper course of paper manufacturing using whatever materials were proper for the purpose. The claim was dismissed.

Carington -v- Wycombe Railway Co (1868) 3 Ch App 377
1868	Land	Casemap 1 Citers
	Land Clauses (Consolidation) Act 1845

Morland -v- Cook (1868) LR 6 Eq 252
1868 CA Lord Romilly MR	Land	Casemap 1 Citers
	Land below sea level was partitioned by a deed with a covenant that the expense of maintaining the sea wall should be borne by the owners of the lands and payable out of the lands by an acre-scot. Held: The covenant was enforced against a purchaser of the lands on the grounds that he had purchased with notice of the covenant.

Rangeley -v- Midland Railway Company [1868] 3 Ch App 306
1868 CA Cairns LJ	Land	Casemap 1 Citers
	Where there is a highway, the surface of the land or other property is dedicated to public use.

Ferrar -v- City Sewers Commissioners (1868-69) LR4 Ex 227
1868	Land	Casemap 1 Citers
	(Year?) A special Act incorporated the provisions of the 1845 Act other than those related to "the taking of land otherwise than by agreement". Held: Section 68 was not incorporated, because it was one of a series of clauses headed "with respect to the taking of land otherwise than by agreement".
	Land Clauses Consolidation Act 1845 68

Gayford –v- Moffatt [1868] 4 Ch App 133
1868	Landlord and Tenant, Land	Casemap 1 Citers
	The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords.

Rylands -v- Fletcher (1868) LR 3 HL 330; [1868] UKHL 1
1868 HL Lord Cairns LC	Land, Nuisance	Casemap 1 Citers
	The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff's mine. The defendant appealed a finding that he was liable in damages. Held: The defendant was bound 'sic uit suo ut non laedat alienum'. "The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained . . On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, - and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable."
	Link[s] omitted

Blackmore -v- London and South Western Railway Company (1868) 38 LJ Ch 19
1868	Land, Contract	Casemap 1 Citers

Nash -v- Coombs (1868) LR 6 Eq 5
1868 Sir William Page Wood VC	Land	1 Citers
	The parties disputed interests in a sum of £3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in 1797 made under an Inclosure Act of 1795. The resident freemen sought division of the fund between them under section 104 of the 1845 Act and sections 15 to 17 of the 1854 Act. Held: Freeman had no fee simple right (that is, they did not own the land) and therefore the money should be held in trust for the freemen resident from time to time. After referring to the award in 1797, the court said: "What I should suppose would be the right of the parties under that would be, that whoever these trustees might be, whether a corporation or not, they became trustees for the resident freemen for all time, and not for those only who at the time when the Act passed (1795) had become and were resident freemen. It would be just as reasonable to say that at that moment all those resident freemen would have had a right to file a bill to have the land divided amongst them, as to say that the present resident freemen have the right contended for. Their rights are simply shifting rights. A body is attempted to be constituted – either a corporation or a body of persons – who were named trustees, and as trustees their trust was for the resident freemen of the borough for all time....It is a trust given to them to hold in lieu of the rights of common, so that all they had to do was to regulate the mode in which it should be enjoyed. The Legislature has simply indicated that this land is available for any purpose to which the trustees and freemen like to put it. Suppose it turned out very valuable for building purposes, possibly they might have had to have recourse to this Court before applying it to those purposes, regard being had to the particular nature of the trust, but I apprehend that they could use the land in any way most agreeable to the resident freemen. These existing resident freemen say they are the only persons interested in the land, and that the money which has been paid for the fee simple, ought to be divided between them....A person who has only got an interest every year that he resides has not got a free simple interest. Take the case of the owner of an enclosed farm who has a commonable right attached to the occupation of the property. If he is only tenant for life the committee who are "to pay the amount to the persons interested according to their respective interests", ought not to pay him the whole value of the land. It must be invested, so that tenant for life and tenant in remainder shall get their proper shares.....[T]he Legislature thought, rightly or wrongly, that as to commonable interests, when they were found to be trifling, they might be apportioned to the holders of them, whoever they might be, and however small or however precarious the existing interest might be. But there might be a case where the land would be valuable for building purposes when this right of feeding cattle was disposed of. In such a case the interest might be considerable in the different persons who had rights, and I cannot hold that it was intended to hand over the whole fee simple interest in the property to persons having only this temporary and fluctuating interest....What I propose, therefore, to do is to declare that the money paid into Court ought to be re-invested in land, to be held on the same trusts as those upon which the lands taken by the railway company were held, viz., in trust for the freemen of the borough of Bedford from time to time residing within the limits of the ancient borough, and in the meantime the same ought to be invested, and the dividends paid (subject to payment of costs) to the trustees, and divided by them amongst such resident freemen at the same time or times as such freemen have been accustomed in each year to enter upon the enjoyment of their rights of common."

Fatima Khatoon Chowdrain And Nuseeba Bebee Chowdrain -v- Mahomed Jan Chowdry, Alias Kufeeluddeen Mahomed Ahsan Chowdry And Others [1868] EngR 15; (1868) 12 Moo Ind App 65; (1868) 20 ER 265
29 Jun 1868	Commonwealth, Land
	On appeal from the High Court of Judicature at Bengal. In order to save a family estate about to be sold, under a decree of Court made in a suit against one member of the family; other members interested in the property, being entitled to dower charged on the estate, paid the amount decreed into Court to be handed over to the decree-holder under protest of their respective rights in the estate, and subject to a suit to be brought by them to set aside a summary Order rejecting a claim to their charge on the estate. The money so deposited was taken out of Court by the decree-holder. In an action to recover back the amount it appeared, that the decree-holder had no right to proceed against such part of the estate as belonged to the parties paying the money into Court. Held, that an action would lie against the decree-holder, to recover the amount so paid into Court, and handed over to him, as it was a deposit under protest to prevent an injurious sale.
	Link[s] omitted

Lord St Leonards -v- Ashburner (1869) 21 LT 595
1869 Bramwell B	Land	Casemap 1 Citers
	(Sussex Spring Assizes) Lord St Leonards had bought some land and planted trees on what he thought was his side of the boundary. Some 20 years later Mr Ashburner bought the adjoining land and claimed that the trees were on his side of the boundary. The plan was too small to provide a clear answer. Bramwell B directed the jury "Title deeds come to little without evidence of actual enjoyment, for otherwise anyone might pretend to give away the lands of anybody else. Parchment, of itself, comes to little; the real question is as to actual enjoyment."

Engell -v- Fitch (1869) LR 4 QB 659; 10 B&S 738; 38 LJQB 304; 17 WR 894 ex Ch
1869 ChD	Land, Damages, Contract	1 Citers
	The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession. Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.

London and South Western Railway Company -v- Blackmore (1870) 4 AC 610; (1870) LR 4 HL 610; (1870) LJ Ch 713; (1870) 23 LT 504; (1870) JP 324; (1870) 19 WR 305; (1870) LR 4 HL 610; 39 LJCh 713
1870 HL Lord Westbury, Lord Hatherley LC	Land, Contract	Casemap 1 Cites 1 Citers
	In 1861 the railway company used its statutory powers to buy some of Mr Blackmore's land for railway purposes. In 1864 they had a dispute over their boundary. This was settled by an agreement that he should build a wall to be maintained at their joint expense. The agreement included a release of claims in general terms. In 1866 the railway company decided that it did not need the land it had taken and proposed to sell it as surplus land. Mr Blackmore claimed that, as the person from whom it had been taken, he had a statutory right of pre-emption under the Land Clauses Consolidation Act 1845. The railway company argued (rather faintly, it would seem, by their second counsel) that it fell within the description of claims which he surrendered when settling the boundary dispute. Held: Where a release of a contractual obligation is given, its language will be interpreted having regard to the surrounding circumstances against which it came into existence and with special reference to the ambit of the dispute that was the occasion of its creation. Lord Westbury said: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not at all arisen, cannot be considered as bound and concluded by the anticipatory words of a general release."
	Land Clauses (Consolidation) Act 1845 127 128

Turner -v- Ringwood Highway Board [1870] LR 9 Eq 418
1870	Land	1 Citers
	Once a highway exists the public has a right to use the whole of the width of the highway and not just that part of it currently used to pass or re-pass.

Watts -v- Kelson (1870) 6 Ch App 166
1870 CA	Land	Casemap 1 Citers
	Property containing cattle sheds was sold, together with an implied right to the supply of water along pipes leading from a tank on the vendor's land. The purchaser demolished the cattle sheds and erected cottages in their place. Held: A drainage easement is "continous and apparent". "[W]hat passed to [the purchaser] was a right to have the water flow in the accustomed manner through the [servient] premises to his premises, and … when it arrived at his premises he could do what he liked with it, and . . he would not lose his right to the water by any alteration he might make in his premises."

Stebbing -v- Metropolitan Board of Works (1870) LR 6 QB 37
1870 Cockburn CJ	Land, Damages	Casemap 1 Citers
	In compensation for compulsory purchase (in this case, of graveyards), 'value' means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector. Cockburn CJ said: 'When Parliament gives compulsory powers, and provides that compensation shall be made to the person from whom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it.'

Heasman -v- Pearce (1871) 7 Ch App 275
1870	Land
	The rule against perpetuties will not invalidate a limitation after an entailed interest.

Walters -v- Webb (1870) LR 5 Ch App 531
1870	Land	Casemap 1 Citers

Corbett -v- Hill (1870) LR 9 Eq 671; (1870) 39 CJCh 547; (1870) 2 LT 263; (1870) 7 Digest (Repl) 267
1870 Sir William James VC	Land	Casemap 1 Citers
	The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns 'everything up to the sky'.

Pattabhiramier -v- Vencatarow Naicken And Narasimha Naicken [1870] EngR 56; (1870) 13 Moo Ind App 560; (1870) 20 ER 660
10 Dec 1870	Commonwealth, Land
	The doctrine of the English law with respect to the equity of redemption, after default of payment of the mortgage money, is unknown to the ancient law of India prevailing in Madras, which, in the absence of any Regulation, or Act of the Legislature, altering such law, determines the interest of a Mortgagor, in favour of the Mortgagee under a conditional sale made absolute by failure of the Mortgagee to redeem at the time specified in the Deed.
	Link[s] omitted

Ranee Surut Soondree Debea -v- Baboo Prosonno Coomar Tagore, And After His Death, Romanath Tagore And Others [1870] EngR 59; (1870) 13 Moo Ind App 607; (1870) 20 ER 677
14 Dec 1870 PC	Commonwealth, Land
	Link[s] omitted

In re River Steamer Company (1871) LR 6 Ch App 822
1871 Mellish LJ	Land, Limitation	Casemap 1 Citers
	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)

Marshall -v- Ulleswater Steam Navigation Co (1871) LR 7 QB 166
1871	Land	Casemap 1 Citers
	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

Jegon -v- Vivian (1871) LR 6 Ch App 742
1871	Damages, Land	Casemap 1 Citers
	Unauthorised mining of land - measure of damages. Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. The financial position of the plaintiff should not be different, according to the accident of whether it intercepted the minerals, or discovered their loss only after they had been sold by the defendant.

Richardson -v- Younger (1871) 6 Ch App 478
1871	Land, Limitation	Casemap 1 Citers
	When there are two joint claimants to possessory title, and it is said that they had acknowledged the paper owner's title, the acknowledgment must be given by or on behalf of both of them.

Radanath Doss And Others -v- Gisborne And Co [1871] EngR 1; (1871) 14 Moo Ind App 1; (1871) 20 ER 687
19 Jan 1871 PC	Land
	ER A usufructuary mortgage, to run over a certain number of years, was executed in 1828 by a member of a joint Hindoo family, with the consent of the other members, to R., who afterwards sold the mortgaged estate to H. and H, whose Agent R. was. H. and If. subsequently, in 1811 and 2851, conveyed the estate tn, G. and Co., as an absolute purchaser in fee. In a suit for redemption of the mortgage brought in 1864 G and Co. set up as a defence their title as bona fide Purchasers without notice, and, having been in possession more than twelve years, pleaded the Limitation of suits Act, NO. XIV of 1859, sect. 6, as a bar to the suit. Held : First, that the onus was on G and Co. to establish by clear and satiefactory evidence the termination of the mortgage and the absolute sale by the mortgagees to R . the root of their title; and, in the absence of such proof, that the transaction in 1841 and 1851 was merely an assignment of the mortgage and, Secondly in the circumstances that G and Co were not Purchasers within the true construction of section 5 of Act No XIV of 1859, to entitle them to the benefit of the twelve years' limitation as a bar to the suit for redemption.
	Link[s] omitted

William Farquharson,-Appellant; Dwarkanath Singh And The Government Of India,-Respondents [1871] EngR 26; (1871) 14 Moo Ind App 259; (1871) 20 ER 784
1 Jul 1871 PC	Land, Commonwealth
	ER Suit by an Auction Purchaser of a Putnee, sold under Ben. Reg. VIII. of 1819, for possession of 3000 beegahs of land within his Putnee, and to enhance the rent against a Ghatwal, and the Government, charging encroachment against the Ghatwal beyond the quantity of 100 beegahs held ghatwally, according to a return made by a former Ghatwal. The only evidence of encroachment consisted of the Isumnovisee returns made by the Thanadars to the Magistrates in the years 1811, 1813, 1813, from which it appeared, that the quantity of land the then Ghatwal held ghatwally was 100 beegahs. Held, that the evidence of the Defendants of long-interrupted possession of the 3000 beegahs, presumably before the Decennial Settlement, outweighed the effect of the Isumnovisee returns, which were, though prima facie, not conclusire evidence of the quantity of the land held ghatwally; and further that, though such return was not objected to by the then Ghatwal, it did not affect the right of the Ghatwal in possession.
	Link[s] omitted

Brojonath Koondoo Chowdry and Others -v- Khelut Chunder Ghose [1871] EngR 28; (1871) 14 Moo Ind App 144; (1871) 20 ER 740
4 Jul 1871 PC	Land
	A mortgage made in 1845 in the English form, contained a proviso for redemption, and for the Mortgagor continuing in possession until default in payment, in which event the mortgage Deed gave a right of entry to the Mortgagee. Default was made in payment of the mortgage money by the Mortgagor, but no steps were taken by the Mortgagee to obtain possession. In 1849 the Mortgagor sold part of the mortgaged estate, and the Purchaser entered into possession and registered his title. The Assignee of the Mortgagee afterwards brought a suit for foreclosure to which the Purchaser was not made a party, and in the year 1862 obtained a decree for foreclosure. In a suit brought by the Assignee of the Mortgagee against the Purchaser for possession of that part of the estate so purchased by him from the Mortgagor, held, by the Judicial Committee, affirming the judgment of the High Court at Calcutta, that as the Mortgagor after default, and the Purchaser under him, had been in possession for more than twelve years before the suit for possession was instituted, the Limitation of suits Act, No. XIV. of 1859, sect. I, cl. 12, was a bar to the suit.
	Link[s] omitted

Hurryhur Mookhopadhya -v- Madub Chunder Baboo And Another; Nobokishto Mookerjee -v- Koylaschundro Buttacharjee And Others [1871] EngR 30; (1871) 14 Moo Ind App 152; (1871) 20 ER 743
5 Jul 1871	Land
	ER Review of the Ben. Regs. relating to Latkhiraj tenures, within the Provinces included by the Perpetual Settlement. Construction of Act, No. X, of 1859, sect. 28, in respect to the operation of the law of limitation in suits brought under Ben. Regs. XIS. of 1793, sect. 10, and 11. of 1519, sect. 30, for resumption and assessment of lands as mal, or rent-paying lands, held as Lakhiraj.
	Link[s] omitted

Kooldeep Narain Singh,-Appellant; The Government And Others,-Respondents [1871] EngR 40; (1871) 14 Moo Ind App 247; (1871) 20 ER 779
18 Jul 1871	Land
	An auction Purchaser of a Zemindary at a sale for arrears of Government revenue, cannot resume lands, held under a ghatwally tenure, at a fixed rent, created before the Permanent Settlement, on the ground, that the services have ceased do be perf formed by the Ghatwal and that there was no necessity for such services; if the government refuse to renounce its claim to the performance of such ghatwally services.
	Link[s] omitted

Rhodes -v- Ainsworth [1871] EngR 43; (1817) 1 B & A 87; (1871) B)
7 Nov 1871	Land
	On an issue to try whether the inhabitants of A, were immemorially bound to repair a chapel; the owner of the inheritance having leased his property for years at a rent certain, without any deduction, and residing himself in a different county; is not a competent witness to negative the liability, although he was not upon the rate, and the rate was in fact paid by his tenant; for such owner has an interest in discharging the inheritance from a permanent burden.
	Link[s] omitted

Juggut Mohini Dossee, And Others,-Appellants; Mussumat Sokheemoney Dossee, And Others,-Respondents [1871] EngR 49; (1871) 14 Moo Ind App 289; (1871) 20 ER 795
23 Nov 1871	Trusts, Land
	Suit for possessiun of lands dedicated to the religious service of a family Idol, and for the appointment as Sabaet, or Manager of the religious endowment, under a Deed of dedication; against a party in cessession, claiming title as a bona fide Purchaser for value, without notice of the alleged trust, whose title, however, was derivable through the Deed of dedication; held wrongly dismissed by the Court below, the Purchaser proceeded against having had sufficient notice to throw upon him the onus of proving exemption from the religious trusts in the lands, which he had failed to do.
	Link[s] omitted

Holland -v- Hodgson (1872) LR 7 CP 328
1872 Blackburn J	Land	Casemap 1 Cites 1 Citers
	(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: “There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel; see Wiltshire -v- Cottrell (1 E&B 674; 22LJ (QB) 177) and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D'Eyncourt -v- Gregory. (Law Rep 3 Eq 382) Thus blocks of stone placed on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. This last proposition seems to be in effect the basis of the judgment of the Court of Common Pleas delivered by Maule J., in Wilde -v- Waters. (16 CB 637; 24 LJ (CP) 193) This, however, only removes the difficulty one step, for it still remains a question in each case whether the circumstances are sufficient to satisfy the onus. In some cases, such as the anchor of the ship or the ordinary instance given of a carpet nailed to the floor of a room, the nature of the thing sufficiently shews it is only fastened as a chattel temporarily, and not affixed permanently as part of the land.”

Shaw -v- Foster (1872) LR 5 HL 321
1872 HL Lord Cairns	Land	Casemap 1 Citers
	As regards the trusteeship which arises for a vendor of land after exchange of contracts: "there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the property for the purchaser; the purchaser was the real beneficial owner in the eye of a Court of Equity of the property, subject only to this observation, that the vendor, whom I have called the trustee, was not a mere dormant trustee, he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it".

Forbes -v- Ecclesiastical Commissioners for England (1872) LR 15 Eq 51
1872	Land	Casemap 1 Citers
	The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights.
	Inclosure Act 1845

Hyder Hossain -v-Mahomed Hossain And Ali Hossain [1872] EngR 4; (1871, 1872) 14 Moo Ind App 401; (1872) 20 ER 836
14 Jan 1872	Land
	Link[s] omitted

Mussumat Buhuns Kowur -v- Lalla Buhooree Lall, And Jokhee Lall [1872] EngR 9; (1872) 14 Moo Ind App 496; (1872) 20 ER 871
24 Jan 1872	Land, Commonwealth
	Link[s] omitted

Anund Loll Doss -v- Jullodhur Shaw And Another [1872] EngR 12; (1872) 14 Moo Ind App 543; (1872) 20 ER 888
31 Jan 1872 PC	Land
	Link[s] omitted

The Government Of Bombay -v- Desai Kullianrai Hakoomutrai [1872] EngR 19; (1872) 14 Moo Ind App 551; (1872) 20 ER 892
14 Mar 1872 PC	Commonwealth, Land
	Link[s] omitted

Sham Chand Bysack -v- Kishen Prosaud Surma Alias Rajah Baboo [1872] EngR 23; (1872) 14 Moo Ind App 595; (1872) 20 ER 908
26 Mar 1872 PC	Land, Limitation, Commonwealth
	Two riparian proprietors of land on opposite sides of a river, respectively claimed churs which had been diluviated for a great many years, and afterwards re-formed by a change of the course of the River, as belonging to their respective estates. After a police inquiry, the Magistrate, in 1836, put A in possession. B, the other riparian proprietor took no steps till the year 1847 to obtain posession of the churs. Held. (1), that the long delay in bringing a suit raised a presuption against B’s title, and (2), that he had failed to identify the churs as having been formerly part of his lands or an accretion thereto.
	Link[s] omitted

Des Barres & Another -v- Shey (1873) 29 LT (NS) 592
1873	Land, Limitation	Casemap 1 Citers
	The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors. Held: The defendants were taken to have acquired legal possession by way of possession; the licensee's or lessee's occupation was properly counted by the squatter as acts of possession as against the paper owner.

Rudge -v- Richens (1873) LR 8 CP 358
1873	Land	Casemap 1 Citers
	The mortgagee of land had entered into possession, and sold the property. He sought a declaration that he remained entitled to the balance due on the loan over and above the proceeds of sale. The defendant replied that he was not liable since the mortgagee had deprived him of his chance to repay the loan and recover possession of the property. Held: The defendant's plea was bad and dishonest, and the court would not intervene on his behalf. The sale of land by a mortgagee who has taken possession does not discharge the borrower from the covenant to pay any balance remaining due.

Harvey -v- Walton (1873) LR 8 CP 162
1873 Grove J	Land	1 Citers
	(Court of Common Pleas) A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. "We are of opinion that the question here … is whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement … [T]here must be an additional or different servitude and the change must be material either in the nature or in the quantum of the servitude imposed."

Johnson -v- Barnes (1873) LR 8 CP 527
1873	Land	Casemap 1 Citers
	A corporation may prescribe to have an exclusive right of pasture.

Pearce -v- Watts (1873) LR 20 Eq 492
1873 Sir G Jessel MR	Land, Contract	Casemap 1 Citers
	An agreement for the sale included the reservation: "[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town." Specific performance was sought by the purchaser, and the vendor objected that it was void for uncertainty. In argument the purchaser disputed this, saying that the court could determine what land was necessary for the railway. Held: The claim was refused. Sir G Jessel MR said: "The present contract is one which cannot be carried out by conveyance; and that being so, I do not see how the Court can alter it and make a new contract which can be carried out by conveyance. … If the contract were executed in this form, it is obvious, according to the present law, the whole land would pass to the purchaser, the reservation being void for uncertainty. But this is not the intention of the parties, for the vendor intended to reserve a substantial part of the estate. The contract does not show what it is. I neither know what is the amount of land necessary for a railway, nor what line the railway is to take, nor anything about it, and, therefore, I cannot enforce specific performance of the contract."

Harvey -v- Walters (1873) LR 8CP 162
1873 CCP Grove J	Land	Casemap
	The court was asked whether an easement survived a change in usage: "We are of the opinion that the question here….. is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement…. there must be an additional or different servitude, and the change must be material either in the nature or in the quantum of the servitude imposed."

G W H Riddell, Petitioner (1874) 1 R 462
1874 IHCS Lord President Inglis	Scotland, Land	Casemap 1 Citers
	The date of the deed must be taken to be the date when the trust deed was made and executed, which is the literal meaning of the words used
	Entail Amendment (Scotland) Act 1848 47

Metropolitan Board of Works -v- McCarthy [1874] LR 7 HL 243
1874 HL Lord Cairns L.C	Land, Damages	Casemap 1 Citers
	Compensation was awarded to the owner of a warehouse near Blackfriars because the construction of the Victoria Embankment cut off his access across the public highway to a dock on the river. Lord Cairns LC quoted Thesiger QC as saying: "Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which right gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation, if, by reason of such interference, the property, as a property, is lessened in value." and "The word 'physical' is here used in order to distinguish the case from cases of that class where the interference is not of a physical, but rather of a mental, nature, or of an inferential kind, such as those of a road rendered less agreeable or convenient, or a view interfered with, or the profits of a trade, by the creation of a new highway or street, diminished in the old one. And in like manner the words 'a right, public or private, which the owner of property is entitled to make use of,' apply to this case and distinguish it from such cases as Hammersmith Railway Co. v. Brand. There no right, public or private, was interfered with, and the claim for compensation was made in respect of the injury to the enjoyment of the property."
	Land Clauses Consolidation Act 1845 68

Bain -v- Fothergill (1874) LR 7 HL 158; 43 LJ Ex 243; 31 LT 387; 39 JP 228; 23 WR 261
1874 HL Hatherley L	Land, Contract, Damages	Casemap
	The defendants intended to sell to the plaintiffs their leasehold interests in mining royalties, but were under a covenant not to sell without the consent of the lessors. A condition of the sale provided for ' the usual covenant for our protection as standing between you and our lessors'. A deposit was paid, but the lessors refused consent. The plaintiffs sought return of their deposit, their costs and expenses of investigating title, and for loss of bargain. Held: The case fell within Flureau -v- Thornhill, and damages were limited to the recovery of the deposit and expenses of investigating title. 'It is recognised on all hands that the purchaser is not to be held entitled to recover any loss on the bargain he may have made, if in effect it should turn out that the vendor is incapable of completing his contract in consequence of his defective title.

National Society -v- School Board of London (1874) 18 Eq 608
1874	Land, Charity	Casemap
	The National Society raised large sums by subscription and made grants in favour of schools in which children were to be instructed (in addition to reading, writing and arithmetic) in holy scripture and in the liturgy and catechism of the established church. Former owners of land conveyed under the 1841 Act had only the remedy of complaint to the Educational Board.
	School Sites Act 1841

Clifford -v- Hoare (1874) LR 9 CP 362
1874	Land	Casemap 1 Citers

Hall -v- Nottingham (1875) 1 Ex D 1; [1875] 45 LJQB 50; [1875] 33 LT 697; [1875] 24 WR 58
1875 Kelly CB, Cleasby B	Land	Casemap 1 Citers
	The parties sought to establish a customary right to enter on land, erect a maypole and to dance around it, and otherwise to enjoy the land for innocent recreation at any time. Held: The claim was good. A custom might be understood as a local law arising from the assent of the neighbourhood before time immemorial. A customary right over land must be compatible with appropriate seasonable use of the land by the owner.

Wimbledon and Putney Commons Conservators -v- Dixon (1875) 1 Ch D 362
1875 CA James LJ, Baggallay JA, Mellish LJ	Land	Casemap 1 Cites
	A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting materials for the purpose of effecting a residential development on his land. (James LJ) "We have then to consider whether the character of the [dominant] property can be so changed as substantially to increase or alter the burden upon the servient tenement. I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement." and "[I]f a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built." (Baggallay JA) [Y]ou must neither increase the burden on the servient tenement nor substantially change the nature of the user." (Mellish LJ), "Assuming that it is made out that [the dominant owner] and his tenants have used this way, not exclusively for agricultural purposes, but for all purposes for which they wanted it, in the state in which the land was at the time of the supposed grant - at the time when the way first began - and assuming that there has been no material alteration in the premises since that time, does that entitle [the dominant owner] to alter substantially and increase the burden on the servient tenement by building any number of houses he pleases on this property and giving to the persons who inhabit those houses the right to use the way for all purposes connected with the houses?"

Bagshaw -v- Buxton Local Board of Health (1875-76) LR 1 Ch D 220
1875 CA Jessel LJ MR	Land	Casemap 1 Citers
	House owners requested an injunction to stop the surveyors of highways removing a low wall and railing enclosing a piece of ground in front of it. The surveyors alleged that the ground was part of a highway and that the wall and railing were an obstruction to the safe and convenient passage along it. The road opposite the house, exclusive of the piece of ground, was about 36 feet wide. The owners said that given that, the wall did not obstruct "the safe and convenient passage along [the] street" referring to the type of obstruction against which the surveyors of highways could act under the 1847 Act. Held: Jessel MR said that "along the street" meant along the whole of the street: "[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held"
	Towns Improvement Clauses Act 1847

Cattle -v- The Stockton Waterworks (1875) LR 10 QB 453
1875 Blackburn J	Land, Torts - Other	1 Citers
	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."

Wood -v- Saunders (1875) 10 Ch App 582
1875 Sir Charles Hall V-C	Land	Casemap 1 Cites 1 Citers
	The dominant land at the time of sale contained a house "adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat" on land retained by the vendor. The purchaser subsequently extended the house, "and turned it into a lunatic asylum in which 150 persons were resident" and also "altered the drains and made them all discharge into the ditch or moat". An easement had been expressly granted, in a lease, and enlarged on acquisition of the freehold. The easement was to drain sewage through a drain into an existing open cesspool ditch on the servient property. The change in the dominant tenement caused a large increase in the volume of sewage that went into the open cesspool. Held: "There had been a stipulation in the lease that the buildings were not to be altered without the lessor's consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor, and it must be held that the grant was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings. The Plaintiff, therefore, had not made out a right to the passage of soil and water from the building in its enlarged state. It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition." "It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of a user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle . . . in Williams v James ... as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is, in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase. It had also been argued that the easement must be measured by the quantity which the ditch would contain, but there was no authority for such a doctrine, which would give rise to very difficult questions. Some similar questions might no doubt arise in this case, as the owner of the easement might send down so large a quantity as not to leave room for the quantity sent by the owner of the land, but this would probably be of much less importance.'"

Cooke -v- Chilcott (1876) 3 ChD 694
1876 Malins VC	Land	Casemap 1 Citers
	The purchaser of land with a well covenanted to erect a pump and reservoir and to supply water from the well to all houses built on the vendor's land. Enforcement was sought against a purchaser. Held: He had purchased with notice of the covenant, it rand with the land and he was bound by it. Malins VC said: "I think that when a contract is entered into for the benefit of contiguous landowners, and one is bound by it and the other entitled to the benefit of it, the covenant binds him for ever, and also runs with the land. But it is equally clear that he is bound by taking the land with notice of the covenant."

Bain -v- Brand (1876) 1 App Cas 762
1876 HL Lord Cairns LC	Land, Scotland	Casemap 1 Citers
	The law as to fixtures is the same in Scotland as in England. There were two general rules under the comprehensive term of fixtures: "One of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of the freehold or inheritance. The other is quite a different and separate rule;--whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or for years, without the commission of that which, in the law of England, is called waste, and which, according to the law of both England and Scotland, is undoubtedly an offence which can be restrained. Those, my Lords, are two rules, not one by way of exception to the other, but two rules standing consistently together. My Lords, an exception indeed, and a very important exception, has been made, not to the first of these rules, but to the second. To the first rule which I have stated to your Lordships there is, so far as I am aware, no exception whatever. That which is fixed to the inheritance becomes a part of the inheritance at the present day as much as it did in the earliest times. But to the second rule, namely, the irremovability of things fixed to the inheritance, there is undoubtedly ground for a very important exception. That exception has been established in favour of fixtures which have been attached to the inheritance for the purposes of trade, and perhaps in a minor degree for the purpose of agriculture. Under that exception a tenant who has fixed to the inheritance things for the purpose of trade has a certain power of severance and removal during the tenancy. . . "

Sutherland -v- Thomson (1876) 3 R 485
1876 Lord Gifford	Land, Scotland	Casemap 1 Citers
	Once a servitude right and its scope are established, it "must be rendered as little burdensome to the servient tenement as is consistent with its fair exercise."

Hammerton -v- Honey (1876) 24 WR 603
1876 CA Sir George Jessel MR	Land	Casemap 1 Citers
	A claim was made for common rights over Stockwell Green. Held: The claim failed. The evidence did not show that use of the green was confined to inhabitants of Stockwell. Sir George Jessel MR said: "If you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom." and "Again what must be the usage proved? It must not only be consistent with the custom alleged, but if I may use the expression, not too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom. I know that there have been some observations made in cases which come to this – that the general legal usage is not destroyed because an occasional illegal usage is shown: but that does not apply where you have evidence of a totally different state of things which does not support a local custom at all. That, I think, is the general law of this case".

Smith -v- Webster [1876] 3 Ch D 49
1876 CA James LJ, Bagallay LJ and Lush LJ	Contract, Land	Casemap 1 Citers
	P verbally agreed to buy an inn from D. On the next day D told his solicitors that he had entered into a verbal arrangement for the sale and instructed them to prepare an agreement. On the same day they forwarded a draft formal contract to P's solicitors under cover of a letter which said: "[D] has been with us today, and stated that he had arranged with your client [P] for sale to the latter of the Golden Lion for £950. We therefore send herewith draft contract for your perusal and approval." Held: This was insufficient as a note or memorandum. James LJ held that the only authority given to the solicitor was to prepare a formal document. Even if the letter had said that D had "told us that he has sold the property to you for £950" this would merely have been the communication of a fact. The signature would not make it a binding memorandum, not being affixed eo intuitu. The draft sent was not the same contract as had been agreed and a statement of the reason why it was being sent was not a memorandum signed by someone authorised by the person interested to sign it as binding. Bagallay LJ regarded the agreement reached as conditional upon a formal contract and said that the authority conferred on the solicitor by D was not authority to convert it into an absolute agreement. Lush LJ held that in order to satisfy the statute a note or memorandum must be one which the principal had authorised the agent to sign as a record of the transaction and that the authority actually given to the solicitors was merely to prepare a formal draft contract to be sent to the other side for perusal and approval.

Jepson -v- Gribble (1876) 1 TC 78
1876 Kelly CB	Land	Casemap 1 Citers
	A house occupied by the medical superintendent of an asylum fronted on to a public road and had access from the back to the asylum itself, although it was very much closer than to the asylum than are the lecturers' cottages to any other college buildings. The issue was whether the house was part of the asylum: 'it is within the walls; it is part of the curtilage, in the language of the old law, and it is for the residence of a person whose attendance may be required at any moment, and who ought therefore to be at hand, and for that purpose it is put within the grounds; it is a part of the premises themselves, and with a ready, rapid, and almost instantaneous communication with the building which contains the lunatics.'"

Lysaght -v- Edwards (1876) 2 Ch D 449
1876 Sir George Jessel MR	Land, Contract	Casemap 1 Citers
	The testator had agreed to sell a farm, but died before completion. It was held that the farm passed under a devise of "all the real estate which at my death might be vested in me as trustee." On the making of contract for the purchase of land, the purchaser acquired an immediate equitable interest in the land. The court discussed the equitable doctrine of conversion: "It appears to me that the effect of a contract for sale has been settled for more than two centuries; certainly it was completely settled before the time of Lord Hardwicke, who speaks of the settled doctrine of the Court as to it. What is that doctrine? It is that the moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid, in the absence of express contract as to the time of delivering possession". But the trusteeship is not an ordinary trusteeship. "It must, therefore, be considered to be established that the vendor is a constructive trustee for the purchaser of the estate from the moment the contract is entered into."

Lyon -v- Fishmongers' Co (1876) 1 App Cas 662
1876	Land	1 Citers

Egmont -v- Smith (1877) 6 Ch D 469
1877 CA Sir George Jessel MR	Land	Casemap 1 Citers
	The court discussed the position of a vendor of land between exchange and completion: "He is certainly a trustee for the purchaser, a trustee, no doubt, with peculiar duties and liabilities, for it is a fallacy to suppose that every trustee has the same duties and liabilities; but he is a trustee. For that I have the decision of the House of Lords in Shaw v Foster, which only re-stated what had been the well-known law of the Court of Chancery for centuries."

Attorney-General -v- Tomline (No 3) (1877) 5 Ch D 750
1877 ChD Fry J	Land, Limitation, Constitutional	Casemap 1 Citers
	For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The Crown had entered the land upon the expiry of a licence granted to the Lieutenant-Governor of a nearby fort, Alexander Mair, for life if he so long continued governor, which he ceased to be in 1811. The Crown was in possession of the land for more than forty years and claimed possessory title, and te right to control extraction of coprolites. . Held: The claim succeeded. Colonel Tomline, as lord of the manor, had an absolute power of veto over the digging up of the coprolites, and "The value of that veto appears to me to be the value of the coprolites less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the coprolites less such a sum of money by way of profit as would induce a third person to undertake the enterprise. That I consider to be the proper measure of damage in this case."

Dalton -v- Henry Angus & Co (1877) 3 QBD 85
1877	Land	Casemap 1 Citers

Orr Ewing -v- Colquhoun (1877) 2 App Cas 839
1877 HL Lord Blackburn, Lord Hatherley	Land	Casemap 1 Citers
	The House relied upon analogies to compare public rights of navigation over watercourses and rights of way over land, but recognised the differences in language which would be used and the incidents of the rights.

Baylis -v- Tyssen-Amhurst [1877] 6 Ch 500
1877 Sir George Jessel MR	Land	Casemap
	In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was claimed was not, however, a fixed and certain number nor a number limited by levancy and couchancy. It was said to be a number dependent on the value of the dominant land relative to the value of the other tenements in respect of which pasturage rights were being claimed "according to a scale fixed by the homage of the manor".

Seddon -v- Smith [1877] 36 LTR 168
1877 Cockburn CJ, Baggallay, Brett JJA	Land	Casemap 1 Citers
	Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from under the strip of land (as well as from under his own adjacent land). The evidence showed that the right of way had been granted over the land to the plaintiff's predecessors in title and others. The strip of land led from a public road to other land of the plaintiff. It appeared that the plaintiff had not simply used the right of way over the strip; he had also used the remainder of the strip to raise cabbages, potatoes and other produce, ploughing it up and doing all other acts necessary for that purpose, leaving only a narrow lane which could be used as a way. This way was used by the plaintiff, and others, who were said to derive title from the defendant's predecessor in title. At trial, the plaintiff obtained damages for coal abstracted from under all parts of the strip. Held: His damages were reduced by one-quarter. Cockburn CJ said: "Originally the soil of this piece of land known as Molyneux Lane remained in the lord of manor subject only to the easement created over it. And with the property in the soil that in the underlying minerals also of course remained in him."

Chambers -v- Kingham (1878) 10 Ch D 743
1878 Fry J	Land	Casemap 1 Citers
	The court was asked whether a lease vested in an administrator in his own right merged in the reversion held by him as administrator. Held: "mergers are odious in equity and never allowed unless for special reason". There was no merger because the interests were held in different rights.

Bowman -v- Hyland (1878) 8 Ch D 588
1878	land, Contract	Casemap 1 Citers
	A vendor's right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract.

Dalton -v- Henry Angus & Co (1878) 4 QBD 162
1878 CA	Land	Casemap 1 Cites 1 Citers

McLaren -v- City of Glasgow Union Railway Co (1878) 5 R 1042
1878 Lord Justice Clerk Moncreiff	Land, Scotland	Casemap 1 Citers
	The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.

Fairclough -v- Marshall (1878) 4 Ex D 37; [1878] 48 LJQB 146; [1878] 39 LT 389; [1878] 27 WR 145
1878 CA Bramwell LJ	Land	Casemap 1 Citers
	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.
	Judicature Act 1873 25(5)

Cox -v- Schoolbred Times, 15 November 1878
15 Nov 1878 CA Jessel MR	Land	Casemap 1 Citers
	Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that "people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using Shooters'-hill".

Wheeldon -v- Burrows [1879] 12 ChD 31; [1879] 28 WR 196; [1879] 48 LJ Ch 853; [1879] 41 LT 327
1879 CA Thesiger James and Baggallay LJJ	Land	Casemap 1 Citers
	S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the workshop. The plaintiff who had purchased the land claimed the right to build on the land so as to obstruct the windows. The defendant workshop owner claimed an easement of access of light through continuous enjoyment. Held: No right of light was reserved by implication. Only rights of necessity would be implied. On the grant of part of land there will pass to the grantee all continuous and apparent easements, meaning quasi-easements which are necessary to the enjoyment of the property conveyed, and which have been and are at the time of the grant used by the owners of the whole for the benefit of the part conveyed. If the grantor requires any right over the tenement conveyed he must expressly reserve it. Lord Justice Thesiger said: "two propositions may be stated as that I call general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements) or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant."

Renals -v- Cowlishaw (1878) 9 Ch D 125
1879	Land	Casemap 1 Citers
	The word "assigns" was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.

Finch -v- Great Western Railway Company (1879) 5 Exch D 254
1879 Stephen J	Land	Casemap 1 Citers

Hill -v- Maclaren (1879) 6 R 1363
1879 Lord Justice Clerk Moncreiff	Land, Scotland	Casemap
	A servitude right must be exercised "so as to impose the least possible burden on the servient tenement, consistently with the fair enjoyment of this right by the dominant proprietor."

Moody -v- Steggles (1879) 12 Ch D 261; 48 LJ Ch 639; 41 LT 25
1879	Land
	The owners of a public house claimed the right to affix a sign to the defendant's house, having been so affixed for more than forty years. The houses had been in common ownership, but it was not clear whether the sign had first gone up whilst the properties remained in common ownership. Held: No assumption could be made that it had been erected whilst in common ownership. The interest claimed was in the nature of a legal easement, and a grant was to be presumed. An injunction was granted to support the right.

M'Adam -v- M'Adam (1879) 6 R 1256
1879 IHCS Lord President Inglis	Scotland, Land	Casemap 1 Citers
	The house referred to "the owner of a personal right to land" to describe the position of an uninfeft proprietor.

Britan -v- Rossiter (1879) 11 QBD 123
1879	Contract, Land	Casemap 1 Citers
	A contract which fails to meet the standards required under the act is not not void, but is merely unenforceable.
	Statute of Frauds 1677 3

In Re Banister; Broad -v- Munton (1879) 12 ChD 131
1879 CA Fry J, Je ssel MR , LJ Cotton	Land, Contract	Casemap 1 Citers
	Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective. Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure. Fry J said: "It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser." Jessel MR said: "in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division." Cotton LJ said: "but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting."

Knight -v- Pursel [1879] 11 ChD 412
1879	Land	Casemap 1 Citers
	A wall could be a party wall in part and belong in another part to one of the joint owners separately.

Attorney General -v- Biphosphated Guano Company (1879) 11 Ch D 327
1879 CA	Land	1 Citers
	Land might be dedicated for a term of years only and not in perpetuity, although that had not happened in this case.

Sturges -v- Bridgman [1879] 11 Ch D 852
1879 Thesiger J	Nuisance, Land	Casemap 1 Citers
	The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: "whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong." If a man "temporarily licenses" his neighbour's enjoyment, that enjoyment is precario in terms of the civil law phrase "nec vi nec clam nec precario". It is not a defence that the plaintiff came to the nuisance.

Lord Advocate -v- Lord Blantyre (1879) 4 App Cas 770
1879 HL Lord Blackburn	Land, Scotland	Casemap 1 Cites 1 Citers
	The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres. Held: Lord Blackburn said: "Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately."

Leigh -v- Jack (1879) 5 Ex D 264 CA
1879 CA Bramwell LJ	Land, Limitation	Casemap 1 Citers
	The plaintiff's predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being 'bounded by' Grundy Street and Napier Place, therefore the intention to use the adjoining land for streets was known to all parties. Within the 20-year limitation period, both Mr Leigh and the defendant had carried out work on a fence separating Grundy Street from other land of Mr Leigh, Regent Road. From 1854 onwards the defendant had placed on Grundy Street and Napier Place old graving dock materials, screw propellers, boilers and refuse from his foundry. In 1872 (four years before action brought) the defendant completely enclosed Grundy Street and Napier Place. Held: The defendant had not acquired title to the enclosed land under the Limitation Act 1833. Bramwell LJ said: "I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it."
	Limitation Act 1833

Bryant -v- Lefever (1879) 4 CPD 172
1879	Land	Casemap 1 Citers
	A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription.

Bolton -v- Bolton (1879) 11 ChD 968
1879	Land	Casemap 1 Citers

Renals -v- Cowlishaw (1879) 11 Ch D 866
2 Jan 1879 CA	Land	1 Cites 1 Citers
	The term "assigns" was used to denote successors in title to the land both of the original restrictive covenantor and of the original covenantee.

Lord Advocate -v- Lord Lovett [1880] 5 App Cas 273
1880	Land	Casemap 1 Citers

Nash -v- Eads (1880) 25 Sol J 95
1880 CA Sir George Jessel MR	Land	Casemap 1 Citers
	Sir George Jessel MR: "The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then said, 'The mortgagor is a member of an old county family, and I don't wish to turn him out of his property, and will not sell it at present,' and then on July 1 he said, 'I have had a quarrel with the mortgagor, and he has insulted me; I will show him no more mercy, but will sell him up at once' - if all this was proved, the Court could not restrain the mortgagee from exercising his power of sale, except on the terms of payment of the mortgage debt. The Court could not look at the mortgagee's motives for exercising his power. Lord Eldon had never said anything of the kind which Vice-Chancellor Stuart supposed him to have said. The Vice-Chancellor was entirely mistaken, and must have been citing the judgments to which he referred from his recollection, without looking at the reports. Of course there were some limits to the powers of the mortgagee. He, like a pledgee, must conduct the sale properly, and must sell at a fair value, and he could not sell to himself. But he was not bound to abstain from selling because he was not in urgent want of his money, or because he had a spite against the mortgagor.".

Gledhill v Hunter (1880) 14 Ch D 492
1880 CA Sir George Jessel MR	Land	Casemap 1 Citers
	An action for ejectment from land was normally issued "to recover possession from a tenant" or former tenant. An action against a trespasser, who did not actually dispossess the person entitled to possession, was based on trespass quare clausum fregit, physical intrusion onto the land. Nonetheless, where a trespasser exclusively occupies land, so as to oust the person entitled to possession, the cause of action must be for recovery of possession.

Corporation of London -v- Riggs (1880) 13 Ch D 798
1880 CA Jessel MR	Land	Casemap 1 Citers
	The court considered whether a right of way of necessity had been granted: "the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the grantor to enable him to get to the reserved, or excepted, or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then that state. There is no distinct authority on the question. It seems to me to have been laid down in very early times that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserve close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, all where the close is reserved, as it is here, as a re-grant." He went on to consider what the necessity of the case required, saying "the object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use not occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is. I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided."

Lord Advocate -v- Lord Lovat (1880) 5 App Cas 273
1880 Lord O'Hagan	Land	Casemap 1 Cites
	Lord O'Hagan considered the nature of possession as regards land: "As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession." Lord Blackburn said: "I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value."

Rains -v- Buxton [1880] 14 ChD 537
1880 Fry J	Land, Limitation	Casemap 1 Citers
	Fry J said: "The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed in by others." A defendant to a claim for adverse possession does not escape it by proving that he had not known of the acts relied upon against him nor by proving that that omission was not attributable to some negligence or default on his part.

Attorney-General -v- Tomline (No 3) (1880) 15 ChD 150
1880 CA James LJ, Cotton LJ, Thesiger LJ	Land	Casemap 1 Cites 1 Citers
	The Crown claimed land by adverse possession. It had continued in possession for many years after a licence had expired. Held: The Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. James LJ: "From the time of the determination of Mair's tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before 1833 Act it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute." Cotton LJ said: "the title of the Plaintiffs simply rests on possession, and prima facie a title by possession is a freehold and not a copyhold title."
	Real Property Limitation Act 1833

Burgess -v- Northwich Local Board (1880) 6 QBD 264; [1880] LJQB 219; [1880] 44 LT 154; [1880] JP 256; [1880] 26 Digest (Repl) 352
1880 Lindley J	Land, Torts - Other, Local Government	Casemap 1 Cites 1 Citers
	In the context of the duty of a local parish to maintain a highway: "An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair." Counsel accepted that: "There is no authority whatever for indicting a parish in respect of a road being impassable by reason of water, unless of course the water was a consequence of neglect to cleanse ditches or some such omission of duty."

Rolls -v- Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785; (1880) 49 LJ Ch 691; (1880) 43 LT 140; (1880) 44 JP 680; (1880) 28 WR 867
1880 CA James LJ	Land	Casemap 1 Citers
	The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had been vested under the 1855 Act served notices to prevent this. Held: The vesting of the land with the defendants applied only for so long as the land was used as a roadway, and the plaintiff could go ahead. James LJ explaining the difficulties arising out of a provision in the Act: "It appears to me that the legitimate construction of the enactment that streets being highways shall vest is that streets if and so long as they are highways shall be vested. There are no words of inheritance, there are no words of perpetuity in the Act, there is nothing to say whether the streets are to vest in fee simple or for any limited estate, and it appears to me that they are given to and vested in the public body for the purposes of the Act and during the time for which those purposes require them to be held, and no longer. Words of divesting or defeasance are not required, because to my mind the interest of the vestry is exactly like a limited estate. If an estate is given to a woman during her widowhood words of defeasance are not required to divest it on her marriage, because the estate has ceased when the original limit is arrived at. So in this case it appears to me that when the thing has ceased to be a highway, when it has ceased to be a street, then it ceases to be vested, because the period for which it was to be vested in the board has come to an end. "
	Metropolis Management Act 1855 96

Stevenson -v- McLean (1880) 5 QBD 346
1880	Land	Casemap 1 Citers

Heath -v- Pugh (1881) 6 QBD 345; [1881] 50 LJQB 473; [1881] 44 LT 327; [1881] 29 WR 904
1881 CA Lord Selbourne LC	Land, Limitation	Casemap 1 Citers
	The freeholder charged the land in 1856. He remained in possession, and did not make any payments or give any acknowledgment of the mortgagee's title. In 1870 the mortgagee presented a bill for foreclosure, and in 1874 a bill of redemption or foreclosure was granted, with foreclosure being made absolute in 1877, and possession sought in 1878. Held: The action was not barred under the 1833 Act though brought more than 20 years after any acknowledgment. It is in the nature of the mortgage transaction that the mortgagor remains in possession, and is entitled to receive the rents from it. His possession is as of right and is not a wrong. A mortgagee taking possession is not entitled to recover rents paid to the mortgagor before he has taken possession. A mortgagor in possession of the mortgaged land is to be treated as being in possession with the consent of the mortgagee, unless the mortgagee has terminated the consent and there is then evidence to show that the mortgagor was a trespasser on the mortgaged land.
	Real Property Limitation Act 1833

Banner -v- Berridge (1881) ChD 254
1881	Land	Casemap 1 Citers

Rosenberg -v- Cook (1881) 8 QBD 162
1881 Sir George Jessel MR	Land, Limitation	Casemap 1 Citers
	A squatter's title is a freehold from day one of his possession.

Scottish Property Investment Company Building Society -v- Horne (1881) 8 R 737
1881 Lord President Inglis	Scotland, Land	Casemap 1 Citers
	To warrant the remedy of summary ejection, the defender's possession of premises has to be vicious, that is obtained by fraud or force, or precarious possession: "A precarious possession is a possession by tolerance merely."

Haywood -v- The Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
1881 CA Cotton LJ, Brett LJ	Land, Equity	Casemap 1 Citers
	The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings. Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it. Brett LJ said that Tulk -v- Moxhay: "decided that an assignee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that covenants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced ... It is said that if we decide for the defendants we shall have to overrule Cooke v. Chilcott, 3 Ch. D. 694. If that case was decided on the equitable doctrine of notice, I think we ought to overrule it." Cotton LJ said: "Let us consider the examples in which a court of equity has enforced covenants affecting land. We find that they have been invariably enforced if they have been restrictive, and that with the exception of the covenants in Cooke v. Chilcott 3 Ch. D. 694, only restrictive covenants have been enforced." and that Tulk v. Moxhay: "lays down the real principle that an equity attaches to the owner of the land The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length."

Rayner -v- Preston (1881) 18 Ch D 1
1881 Cotton LJ, Brett LJ, James LJ	Land, Contract	Casemap 1 Citers
	The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance. Held: (Majority) The purchaser was not entitled to the insurance proceeds. The court discusses the trusteeship arising on a contract for the sale of land: "An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a Court of Equity will give effect to by transferring the property sold to the purchaser . . .", but the trusteeship arose in respect of the property only and not any associated insurance policy. Brett LJ: it was a misnomer to describe the vendors as trustees of the house, but even if they were trustees the contract of insurance did not run with the land. James LJ (dissenting) The vendors were trustees and held the insurance money for the purchaser because any benefit which accrued to a trustee by reason of his legal ownership was taken as trustee for the beneficial owner.

Turner -v- Walsh (1881) 6 App Cas 636
1881 HL	Land	Casemap 1 Citers
	A public right of way arises by reason of a dedication deemed to have been made at the commencement of the 20 year user.

Dalton -v- Henry Angus & Co (1881) 6 App Cas 740; [1881] UKHL 1
14 Jun 1881 HL Lord Selborne LC, Lord Blackburn, Fry J (advising)	Land	Casemap 1 Cites 1 Citers
	The court explained the doctrine of lost modern grant. Where there has been more than 20 years' uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some reason the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. ". . the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest."
	Link[s] omitted

Neill -v- Duke of Devonshire (1882) LR 8 HL 135; (1882) 8 App Cas 135
1882 HL Lord Selborne LC	Land	Casemap 1 Citers
	The House considered the right to a several fishery in the river Blackwater. There were letters patent granted by James I and Charles I. Held; Lord Selborne LC said: "These written titles (if the possession and enjoyment has been consistent with them) afford irresistible ground for a presumption that the fishery, either in all the tidal waters of the river Blackwater, or at all events in that part of them which is now immediately in question, was "put in defence" before Magna Charta; and having become vested in the Crown by forfeiture of the private rights from time to time acquired in it, was well and effectually granted to the predecessor in title of the Duke of Devonshire . . Under the circumstances which I have stated, the real controversy in this case is as to the sufficiency of the evidence of possession and enjoyment, without which, even the clearest apparent title to a several fishery, on paper only, would not exclude the public right."

Fearnside -v- Flint (1882) 22 Ch D 57
1882 Fry J	Land, Limitation	Casemap 1 Citers
	The court rejected the contention that the limitation period was 20 years for a case of an action on a collateral bond. The sum secured by a mortgage on land and also secured by a covenant in the deed is one and the same sum "so that when the right of suit or action in respect of the land is gone, the right on the covenant ceases also".

Sutton -v- Sutton (1882) 22 Ch D 511
1882 Sir George Jessel MR and Bowen LJ	Limitation, Land	Casemap 1 Citers
	A mortgage deed contained an express covenant to repay on demand the amount advanced. The principal sum and interest were secured by a mortgage of real property. A demand for payment was made, but not satisfied. An action was brought on the covenant (not on a simple contract debt) for the sum due under the covenant. No attempt had been made to enforce the lender's security rights against the land charged. The defendant successfully pleaded limitation. More than 12 years had passed since any payment had been made under the deed. The court rejected the contention that the period for recovery under an action at law on the personal covenant was 20 years, that being the period still allowed by the 1833 Act for actions on a specialty. Subject to questions of payment and acknowledgement of the debt, the reduced 12 year period in s8 of the 1874 Act embraced both the personal remedy on the covenant against the mortgagor and the proprietary remedy against the land, on which the debt is secured, so that, if the remedy in respect of the land itself was barred, so also was the right of action on the covenant. The specific limitation provisions relating to mortgages take precedence over the general provisions relating to specialties.
	Real Property Limitation Act 1874 8 - Civil Procedure Act 1833

London and South Western Railway Co -v- Gomm (1882) 20 ChD 563
1882 CA Jessel MR, Lindley LJ	Land	Casemap 1 Cites 1 Citers
	A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event. Held: The 'right' to 'take away' the claimants' estate or interest in the farm was immediately vested in the grantee of the right to repurchase. Jessel MR set out the basis on which an equitable interest arises in the case of an option: "The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land." He went on to consider the possibility of it being enforced in equity: "With regard to the argument founded on Tulk v. Moxhay, 2 Ph. 774 that case was very much considered by the Court of Appeal in Haywood v. The Brunswick Permanent Benefit Building Society, 8 Q.B.D. 403, and the court there decided that they would not extend the doctrine of Tulk v. Moxhay to affirmative covenants, compelling a man to lay out money or do any other act of what I may call an active character, but that it was to be confined to restrictive covenants. Of course that authority would be binding upon us if we did not agree to it, but I most cordially accede to it. I think that we ought not to extend the doctrine of Tulk v. Moxhay in the way suggested here. The doctrine of that case appears to me to be either an extension in equity of the doctrine of Spencer's case to another line of cases, or else an extension in equity of the doctrine of negative easements. The covenant in Tulk v. Moxhay was affirmative in its terms, but was held by the court to imply a negative. Where there is a negative covenant expressed or implied, the court interferes on one or other of the above grounds. This is an equitable doctrine, establishing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land or on analogy to an easement. The purchaser took the estate subject to the equitable burden, with the qualification that if he acquired the legal estate for value without notice he was freed from the burden." Lindley LJ said that because in Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403 it was sought to extend the doctrine of Tulk v. Moxhay: "to a degree which was thought dangerous, considerable pains were taken by the court to point out the limits of that doctrine. The conclusion arrived at was that Tulk v. Moxhay, when properly understood, did not apply to any but restrictive covenants."

Goodman -v- Mayor of Saltash (1882) 7 App Cas 633
1882 HL	Charity, Land	1 Citers
	A gift was made of a right to fish to the freemen of the Borough of Saltash. Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. The law may infer a lawful origin from long possession. A profit à prendre by prescription cannot be claimed by an undefined and fluctuating body of persons, not incorporated for the purpose of taking the grant.

Caledonian Railway Co -v- Walker's Trustees (1882) App Cas 259
1882 Lord Selborne LC	Land, Nuisance	Casemap 1 Citers
	The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: "The obstruction by the execution of the work, of a man's direct access to his house or land, whether such access be by a public road or by private way, is a proper subject for compensation."

Austerberry -v- Oldham Corporation (1885) 29 ChD 750; [1882] 55 LJ Ch 633; [1882] 53 LT 543; [1882] 49 JP 532; [1882] 33 WR 807; [1882] 1 TLR 473
1882 CA Cotton LJ	Land	Casemap 1 Citers
	Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns. Held: Neither the benefit nor the burden of this covenant ran with the land. A purchaser from the trustees was not bound even with notice of the covenant and of the disrepair. A covenant to perform positive acts is not one the burden of which runs with the land so as to bind the covenantor's successors in title. Cotton LJ said: "Undoubtedly, where there is a restrictive covenant, the burden and benefit of which do not run at law, courts of equity restrain anyone who takes the property with notice of that covenant from using it in a way inconsistent with the covenant. But here the covenant which is attempted to be insisted upon on this appeal is a covenant to lay out money in doing certain work upon this land; and, that being so … that is not a covenant which a court of equity will enforce: it will not enforce a covenant not running at law when it is sought to enforce that covenant in such a way as to require the successors in title of the covenantor, to spend money, and in that way to undertake a burden upon themselves. The covenantor must not use the property for a purpose inconsistent with the use for which it was originally granted; but in my opinion a court of equity does not and ought not to enforce a covenant binding only in equity in such a way as to require the successors of the covenantor himself, they having entered into no covenant, to expend sums of money in accordance with what the original covenantor bound himself to do."

Cato -v- Thompson (1882) 9 QBD 616
1882	Land	Casemap 1 Citers
	The phrase “a good marketable title” must mean “to the property contracted to be sold”. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or leasehold and without stating that it is subject to incumbrances, it means “to the fee simple free from incumbrances.”

Earl of Zetland -v- Hislop [1882] UKHL 1; (1882) 9 R (HL) 40; (1881-82) LR 7 App Cas 427
12 Jun 1882 HL	Scotland, Land	Casemap 1 Cites
	Link[s] omitted

Hollins -v- Verney (1883) 11 QBD 715
1883	Land	Casemap 1 Citers
	A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close.
	Prescription Act 1832

Dunford -v- McAnulty (1883) 8 AC 456
1883 HL Lord Blackburn	Land, Litigation Practice	Casemap 1 Citers
	Lord Blackburn: “in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must shew a superior legal title to his .”

Heywood -v- Mallalieu (1883) 25 ChD 357
1883 Vice-Chancellor Bacon	Land	Casemap
	A house was sold at auction by a mortgagee "subject to any easements." It turned out to be subject to an easement in favour of a neighbour entitling her to come and wash her clothes in the kitchen. The vendor's solicitor had been told that the neighbour claimed such a right but made no inquiries because he "was not going to put other people on their guard about mere claims". Held: The solicitor's response was not good enough. The vendor's solicitor had been put on inquiry and had a duty to investigate the claim further. The court dismissed the vendor's action for specific performance, and ordered the return of the deposit.

In re Sneyd; Ex parte Fewings (1883) 25 Ch D 338
1883 CA Cotton, Fry LJJ	Land	Casemap 1 Citers
	The mortgagee's costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the equity of redemption, they are added to the amount due under the mortgage and must be paid as a condition of redeeming. Fry LJ said: "When there is a covenant for the payment of a principal sum, and that judgment has been obtained upon the covenant for that sum, it is plain that the covenant is merged in the judgment, and, if there is a covenant to pay interest which is merely incidental to the covenant to pay a principal debt, that covenant also is merged in a judgment on the covenant to the principal debt. Of course a covenant to pay interest may be so expressed as not to merge a judgment for the principal; for instance, if there was a covenant to pay interest so long as any part of the principal should remain due either on the covenant or on a judgment."

Pountney -v- Clayton (1883) 11 QBD 820
1883 CA Bowen LJ	Land	Casemap 1 Citers
	Bowen LJ was asked as to rights of support to land. He said: 'Prima facie the owner of the land has everything under the sky down to the centre of the earth.'

Moore -v- Shelley [1883] 8 App Cas 285
1883 PC	Land	1 Citers
	Under a mortgage deed, the mortgagor was to remain in possession, and manage it until a default was made. Demand was made during the plaintiff's absence and upon non-payment the person purporting to be the defendant's agent took possession. The plaintiff claimed in trespass. Held: A non-payment where the mortgagor was given no opportunity to verify the identity of the person making the claim was not a default, and the defendant was liable in damages for trespass.

Mayor, Constables and Company of the Merchants of the Staple -v- Bank of England (1887) 21 QBD 160
1883 Wills J	Land, Company	Casemap 1 Citers
	The sealing of a deed prima facie imported not only due execution but also delivery. "The affixing the seal is not enough; there must be delivery of the deed also …. Prima facie, putting the seal imports delivery; yet, if it be intended otherwise, it is not so …."

Countess of Ossalinsky -v- Manchester Corporation (1883) Browne & Allen 659
1883	Land, Damages	Casemap 1 Citers
	Land bounding Thirlmere in the Lake District was acquired for use as a reservoir to supply water to Manchester. The prospect that the land, because of its particular characteristics, would be likely to be developed as a reservoir was a matter which might give the land an enhanced value. That should be taken into account. The particular purpose to which the Manchester Corporation was going to put the land should not be taken into account. But the fact of the acquisition of the land for this particular purpose might have evidential value showing that suggested alternative reservoir development schemes 'are not visionary, but are schemes with a certain probability in them.'

Re Maddever (1884) 27 Ch D 523
1884	Equity, Land	Casemap
	A specialty creditor who applied to set aside a conveyance as fraudulent under the statute 13 Eliz. c.5 was not barred by laches and could be brought at any time before his own claim as a creditor became statute-barred.

Great Eastern Railway -v- Goldsmid (1884) 9 App Cas 927
1884 Lord Selborne	Land, Limitation	Casemap 1 Citers
	The City of London Corporation had implicitly given up a franchise consisting of an exclusive right to markets within London that had apparently been conferred on it by an Act or charter of Edward III in circumstances in which it had acquiesced for centuries in the holding of other markets. Lord Selborne discussed the reasoning behind te law of prescription: "In the first place, if there be a valuable principle in our law, the observation of which within its proper limits is of cardinal importance, it is this, that all reasonable presumptions shall be made in support and not in destruction of long enjoyment and usage….It is, as I have said, a principle of vital importance to the maintenance of public and private rights in this country, where no law can be repealed by mere desuetude, that reasonable presumptions shall be made of all things which are reasonably possible in support of such long enjoyment."

Kettlewell -v- Watson (1884) 26 Ch D 501
1884	Land, Contract	Casemap 1 Citers
	A vendor's lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings.

Howe -v- Smith (1884) LR 27 Ch D 89
1884 CA Bowen, Cotton, Fry LJJ	Contract, Land	Casemap 1 Citers
	A contract for the sale of land required the purchaser to pay £500 "as a deposit and in part payment of the purchase money", and that if the purchaser failed to complete on time the vendor should be free to resell and recover any deficiency in price as liquidated damages. The purchaser failed to complete and the vendor resold the property for the same price. The question for the Court of Appeal was whether the vendor was entitled to retain the £500, having suffered no loss. Held: The court considered the contract and, in particular, what was meant by the words "as a deposit and in part payment of the purchase money". The contract meant that the payment was not to be merely a part payment but also a guarantee of performance, entitling the vendor to forfeit the payment if the purchaser failed to complete. Bowen LJ said: "The question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract. In principle it ought to be so, because of course persons may make exactly what bargain they please as to what is to be done with the money deposited. We have to look to the documents to see what bargain was made."

Leigh -v- Dickeson (1884) 15 QBD 60; [1881–5] All ER Rep 1099
1884	Equity, Land	Casemap 1 Citers
	The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an allowance for what had been expended by the other in order to obtain it.

Rolls -v- London School Board (1884) LR 27 ChD 639 (Ch D)
1884 ChD	Land	Casemap 1 Citers

Rolls -v- Miller (1884) 27 ChD 71
1884 CA Lindley LJ	Land	Casemap 1 Citers
	The court was asked as to the effect of a restrictive covenant requiring a house not to be used for trade or business. Lindley LJ said that the dictionary meanings of the term 'business' embrace 'almost anything which is an occupation, as distinguished from a pleasure - anything which is an occupation or duty which requires attention is a business.'

Wandsworth Board of Works -v- United Telephone Co (1884) 13 QBD 904
1884 CA	Land, Torts - Other	Casemap 1 Citers
	A land-owner had the right to cut a wire wrongfully placed over his property.

Hollins -v- Verney (1884) 13 QBD 304; [1884] LJQB 430; [1884] 51 LT 753; [1884] 48 JP 580; [1884] WR 5
1884 CA Lindley LJ	Land	Casemap 1 Citers
	A claim for a presumption of a lost modern grant must include an assertion that the enjoyment of the carriageway was continuous or uninterrupted. Lindley LJ said: "It is difficult, if not impossible, to enunciate a principle which will reconcile all the decisions, and still more all the dicta to be found in them; the only safe course is to fall back on the language of the statute, to give effect to it, and to introduce into it nothing which is not to be found there. It is sufficient for the present case to observe that the statute expressly requires actual enjoyment as of right for the full period of twenty years before action. No use can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended. Can an user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute. Without therefore professing to be able to draw the line sharply between long and short periods of non-user, without holding that non-user for a year or even more is necessarily fatal in all cases, without attempting to define that which the statute has left indefinite, we are of opinion that no jury can properly find that the right claimed by the defendant in this case has been established by evidence of such limited user as was mainly relied upon, and as was contended by the defendant to be sufficient in the present case"
	Prescription Act 1832

Tiverton & North Devon Company -v- Loosemore (1884) 9 HLC 480
1884	Land	Casemap 1 Citers
	After entry onto land under a compulsory purchase order, the Council had a right to possession even though it had been forced out of possession immediately after entry.

Mann -v- Brodie (1885) 10 App Cas 378
1885 Lord Blackburn, Lord Watson, Lord Kinnear, Lord Atkinson	Land, Scotland	Casemap 1 Citers
	The court analysed the differences between Scottish and English land law with regard to rights acquired by prescription. Although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary to rely on prescription to establish a public way. It was enough that there was evidence on which those who had to find the fact may find that there was a dedication by the owner whoever he was. (Lord Watson) The constitution of such a right according to the law of Scotland does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. The inference of intention to dedicate drawn from long and uninterrupted user as of right was an inference of fact and that the justices were not bound to draw the affirmative inference. Lord Blackburn said that: "where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was." Lord Kinnear said: "The points to be noted are, first, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee." and after emphasising that "the question is whether the facts are sufficient to raise the presumption", he said: "I think it fallacious to assume dedication on a partial view of the evidence, and only after that has been done to inquire whether conflicting facts are strong enough to dislodge a conclusion already reached". And "the presumption cannot be held to be established in law at any intermediate stage of the proof, or until the whole facts and circumstances have been fully considered" and "The question is one of fact, turning upon probabilities of conduct". Lord Atkinson rejected the respondent counsel's argument that there had been a deciation which he summed up as: "Proof of open, uninterrupted, and continuous user raises a praesumptio juris in favour of dedication. If evidence be not produced to rebut this presumption, it must prevail. In the present case there was such evidence of user, no rebutting evidence was produced, the justices were therefore bound in law to find that this way was dedicated to the public, and their decision to the contrary was a decision made without any evidence to support it, and consequently invalid in point of law".

In Re Beetham, Ex parte Broderick (1886) 18 QBD 380
1886 QBD Cave, Wallis JJ	Land, Equity	Casemap 1 Citers
	The Court considered whether certain facts were sufficient to establish an equitable mortgage by deposit of title deeds. Cave J said: "The law on the subject . . forms a branch of the equitable doctrine of the specific performance of oral contracts relating to land based on part performance. It has been held that there is an inference from the mere deposit of title deeds that it was intended to give an interest in the land, and in that way there is something more than a mere oral contract, something in the nature of part performance, so as to take the case out of the Statute of Frauds."

Serff -v- Acton Local Board (1886) 31 Ch D 679
1886 ChD Pearson J	Land	Casemap 1 Citers
	A right of way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented.

Scott -v- Pape (1886) 31 ChD 554
1886 CA Cotton LJ, Bowen LJ	Land	Casemap 1 Citers
	Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired. Cotton LJ said: "In my opinion the question to be considered is this, whether the alteration is of such a nature as to preclude the Plaintiff from alleging that he is using through the new apertures in the new wall the same cone of light, or a substantial part of that cone of light, which went to the old building. If that is established, although the right must be claimed in respect of a building, it may be claimed in respect of any building which is substantially enjoying a part, or the whole, of the light which went through the old aperture. " Bowen LJ said: "Mr Barber endeavoured to persuade us that no right could be enjoyed after the lapse of twenty years if there had been any fluctuation in the measure of the access and use of the light during the twenty years. I cannot myself see that the statute warrants any such view. I should have thought that if there has been a use, for ten years out of the twenty, of a small window, which is enlarged during the remaining ten years of the twenty to double its size, the only right acquired in the twenty years was the right to have arrive for the use of your house the minimum portion of the pencils of light which had passed through this smaller structure; because you could not be said to have enjoyed the larger amount of light for twenty years when you had enjoyed it for ten years only - and I should pause for some time before coming to the conclusion that a man after using the smaller access of light for twenty years through the windows had lost his right to all access whatsoever merely because at some time during that period he had fruitlessly attempted to acquire an enjoyment of more. ... What the person who has acquired the right is entitled to is not the window but the free access of such an amount of light as has passed through that window."

Homer v Cadman (1886) 50 JP 455
1886 Mathew and Smith JJ	Land	1 Citers
	The appellant had come with a band to the bull ring in Sedgley. A crowd formed for about an hour to listen to him. The magistrate found there was an obstruction of the highway. The appellant contended that there was still space outside the crowd and between it and the footpaths for vehicles and passengers to pass. Held. There was evidence on which the magistrate could convict the appellant of obstructing the highway under section 72.
	Highway Act 1835 72

Elwes -v- Brigg Gas Co (1886) 33 Ch D 562
1886 Chitty J	Land	Casemap

Re Williams (1886) 34 ChD 558
1886	Wills and Probate, Limitation, Land	Casemap 1 Citers
	The purpose of the section is to allow time to run against an administrator as from the intestate's death, irrespective of whether a grant of administration has been obtained or not.
	Real Property Limitation Acts of 1833 6

Re Bright-Smith (1886) 31 Ch D 314
1886 Chitty J	Land	Casemap 1 Citers
	The court construed the devise of "my freehold farm and land situate at Edgware and now in the occupation of James Bray" as including copy holds which were part of his farm and land situate at Edgware and in the occupation of James Bray, even though there were also freeholds which undoubtedly were included in the description given.

Charles -v- Jones [1887] Ch 544
1887	Land	Casemap 1 Citers

Orr Ewing -v- Colqhoun (1887) 2 App Cas 839
1887 Lord Blackburn	Land, Transport	Casemap 1 Citers
	In the case of tidal rivers the public right of way extends over the whole watercourse but in the case of non-tidal rivers the public rights (at least ordinarily) are confined to the channel of the river.

Lord Advocate -v- Young (1887) 12 App Cas 544
1887 Lord Watson, Lord Halsbury, Lord MacNaghten, Lord Fitzgerald (dubitante)	Land, Limitation	Casemap 1 Citers
	Lord Watson said: "It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend on its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity….. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strictest sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject."

Brown -v- Allabastor (1887) 37 ChD 490
1887 Kay J	Land	Casemap 1 Citers

Regina -v- Cunningham Graham and Burns (1888) 16 Cox 420
1888 Charles J	Crime, Land	Casemap 1 Citers
	The court rejected a suggestion that there was a right of public meeting in Trafalgar Square or any other thoroughfare. "So far as I know the law of England, the use of public thoroughfares is for people to pass and repass along them. That is the purpose for which they are, as we say, dedicated by the owner of them for the use of the public, and they are not dedicated to the public use for any other purpose that I know of other than for the purpose of passing and repassing; and, if you come to regard Trafalgar Square as a place of public resort simply, it seems to me it would be very analogous to the case of public thoroughfares."

Birmingham, Dudley and District Banking Co -v- Ross (1888) 38 Ch D 295
1888 CA Cotton, Lindley, Bowen LJJ	Land, Contract	Casemap 1 Citers
	Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants' buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action. Held: The court dismissed the appeal. (Cotton LJ) Referring to the Act said that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. When the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. The light then enjoyed could not be considered as enjoyed within the meaning of the section because both parties had no expectation of the continuance of that light. A light enjoyed by a person under the statute must be "that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious" . referred to the implied obligation of a grantor not to interfere with his grant and said "But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties." On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants' rights. (Lindley L.J) Considered it as at the time of the grant "I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important." He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation's land to Daniell's house after the corporation had built what it liked on the other side of the street. (Bowen L.J) Daniell's knew that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road.
	Conveyancing Act 1881 6

Re Christchurch Inclosure Act (1888) 38 Ch D 520
1888	Land	Casemap 1 Citers

Ex parte Lewis (The Trafalgar Square Case) (1888) 21 QBD 191
1888 QBD Wills J	Land, Torts - Other, Magistrates	Casemap 1 Citers
	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 the care, control, management and regulations of the Square was vested) had power to prohibit the holding of such meetings there. The Commissioners of Works and Public Buildings (in whom the care, control, management and regulations of Trafalgar Square is vested) have power to prohibit the holding of meetings on it, and there was no general right on the part of the public to occupy Trafalgar Square for the purpose of holding public meetings. Wills J said that an assembly "to the detriment of others having equal rights [is] in its nature irreconcilable with the right of free passage." and "The only 'dedication' in the legal sense that we are aware of is that of a public right of passage, of which the legal description is a 'right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.' A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it . . Things are done every day, in every part of the kingdom, without let or hindrance, which there is not and cannot be a legal right to do, and not unfrequently are submitted to with a good grace because they are in their nature incapable, by whatever amount of user, of growing into a right". As to the issue of a summons by the magistrates: "‘Nothing can be clearer or more settled than that if the justices have really and bona fide exercised their discretion, and brought their minds to bear upon the question whether they ought to grant the summons or not, this court is no court of appeal from the justices, and has no jurisdiction to compel them to exercise their judgment in a particular way."

Farrar -v- Farrars Ltd (1888) 40 Ch D 395
1888 CA	Land, Company	1 Citers
	The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale. Held: A mortgagee in possession exercises a personal right primarily in his own interests as a mortgagee, The self-dealing rule applies in that a mortgagee cannot exercise the power to sell to himself or to a nominee or to a company of which he is the sole director and shareholder, but he can sell to a company in which he has a significant interest but the onus lies on him to justify the terms of sale. The mortgagees had shown that the sale was made in good faith, and at a proper price; with the consequence that the sale stood.

Spicer -v- Martin (1888) 14 App Cas 12
1888 HL	Land	Casemap 1 Citers

Blount -v- Layard [1891] 2 Ch 681
1888 CA Bowen LJ	Land	Casemap 1 Citers
	The court said how unfortunate it would be if the owner of an exclusive fishery were forced to insist on his rights by reason of a fear that tolerated fishing by members of the public might crystallise into a public right of fishing, which it would not do.

Brown -v- Alabaster (1888) 37 Ch D 490
1888	Land	Casemap 1 Citers

Agency Co Ltd -v- Short (1888) 13 AC 793
1888	Land	Casemap 1 Citers
	Where there has been insufficient adverse possession, it "does not leave behind it any cloud on the title of the rightful owner."

Nicholls -v- Nicholls (1889) 81 LT 811
1889	Land	Casemap 1 Citers

Re Fawcett & Holmes' contract (1889) 42 ChD 150
1889 CA Lord Esher MR	Land, Contract
	It was not a sufficient misdescription of land under a contract to allow rescission, that the vendor had no title to 339 square yards out of the 1372 square yards at which it had been estimated. A clause in the contract allowed for a possibility of compensation for any error pointed out before completion. The buyer was restricted to that compensation, and had to proceed to complete. Only covenants relating to benefitted land, and not covenants personal to a vendor, will run with the burdened land.

Booth -v- Ratte (1890) 15 App Case 188
1890	Land	Casemap 1 Citers

Tilbury -v- Silva (1890) 45 Ch D 98
1890 Bowen LJ	Land	Casemap 1 Citers
	The evidence of user necessary to induce the court to presume a lost modern grant should be stronger than that upon which the court will presume a grant based on immemorial user.

MacKenzie -v- Childers (1890) 43 ChD 265
1890 ChD Kay J	Land	Casemap 1 Citers
	A deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each purchaser covenanted with the vendors and with the other purchasers to conform to certain stipulations restrictive of the mode of building on the plots, but there was no express covenant to the like effect by the vendors. Some of the plots were sold, and the several purchasers executed the deed, as did also the vendors. For twenty years subsequently the stipulations were observed, and as plots were from time to time sold the respective purchasers executed the deed. Held: Kay J discussed the appropriate interpretative techniques to be applied to a recital, saying: "I am clearly of opinion that the recitals in this deed do not mean that the intention was one which the trustees were at liberty to change, but that the meaning is that the land coloured green, whether sold or unsold, should not be used in a manner contrary to the building scheme, or, to take the very point now in controversy, that none of the lots marked on the building plan should have more than one house built on it. Then, if that is the meaning of this deed, what is its effect? It is a deed inter partes, the several parties being the vendors and the purchasers who execute. No formal words are necessary to make a covenant in such a deed. A statement of a binding intention on the part of the vendors who execute the deed, made, on the face of it, for the purpose of inducing the several purchasers to buy, is as good a covenant as could be made by the most formal words."

Bourke -v- Davis (1890) 44 Ch D 110
1890 Kay J	Land	Casemap 1 Citers
	Kay J considered that a customary right over land might be confined to the inhabitants of a district.

Reilly -v- Booth (1890) 44 Ch D 12
1890 Lopes LJ	Land	Casemap 1 Citers
	The express grant of a right over land which would place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land may not constitute the grant of an easement but may be construed as a grant of the fee simple.

Clarke -v- Ramuz [1891] 2 QB 456
1891 CA Lord Coleridge CJ	Land	Casemap 1 Citers
	The vendor was accused of failing to prevent a trespasser removing soil from land between exchange and completion. Lord Coleridge CJ said: " in the case of a contract for the sale and purchase of land, although the legal property does not pass until the execution of the conveyance, during the interval prior to completion the vendor in possession is a trustee for the purchaser, and as such has duties to perform towards him, not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and, so far as may be, as it was when the contract was made."

Mander -v- Falcke [1891] 2 Ch 554
1891	Land	Casemap 1 Citers
	A restrictive covenant is enforceable against an occupier of the land. It could be a breach to use an access for land beyond that originally envisaged.

Smith -v- Andrews [1891] 2 Ch 678
1891	Land	Casemap 1 Cites 1 Citers

Philipps -v- Halliday [1891] AC
1891 HL Lord Herschell	Land	Casemap 1 Citers
	Doctrine of lost modern grant

Attorney General -v- Emerson [1891] AC 649
1891	Land, Agriculture	Casemap 1 Citers
	Forms of fishing which involve fixtures into the soil of the foreshore are more likely to be regarded as acts of possession of the soil itself than would be more ephemeral forms of fishing.

Hawksley -v- Outram [1892] 3 Ch 359
1892 CA Lindley LJ, Lopes LJ	Land	Casemap 1 Citers
	The parties had concluded a contract for the sale of land and a business. The court considered a purported waiver of a non-compete clause, saying: "if there is any doubt whether [the provisions of the contract in issue] are binding upon the vendors, and the purchaser waives them, what have the vendors to complain of?" and "the purchaser . . is at liberty to relinquish [those provisions]". However, a clause may be so inextricably mixed up with other parts of the transaction that it cannot be severed. Lopes LJ said that “it is perfectly clear that they are provisions intended solely for the benefit of the purchaser; the purchaser, therefore, is at liberty to relinquish them and, if he does so, it is immaterial whether he could have successfully insisted on them”.

Salt -v- The Marquess of Northampton [1892] AC 1
1892	Land	Casemap 1 Cites 1 Citers

Metropolitan Railway Co -v- Fowler [1892] 1 QB 165
1892 CA Lord Esher MR	Land	Casemap 1 Citers
	Lord Esher MR said: "An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land.."

Laybourn -v- Gridley [1892] 2 Ch 53; [1892] 61 LJCh 352; [1892] 7 Digest (Repl) 267
1892 North J	Land	Casemap
	Part of a room protruding into the property conveyed avbove ground level was included in the conveyance.

Eyre -v- New Forest Highway Board [1892] 56 JP 517
1892 Wills J	Land	Casemap 1 Citers
	"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 in so many words, or he so conducts himself as to lead the public to infer that he meant to say: "I am willing that the public should have this right of passage." If a man has actually conceded that right of passage to the public it is irrevocable, and that is expressed by the maxim with which we are all familiar, I suppose, "once a highway always a highway." Up till the year 1835 when the Highway Act which is the foundation of our present system, was passed, if there was a dedication of a road to the public by the owner either expressed by deed, as occasionally happens, or inferred from public user for such a time as to any tribunal who judges the case will appear sufficient to found that inference, if the proper inference was that he had said or so conducted himself as to imply that he had granted that right of passage to the public; and the public had on their part accepted it and used the road, from that moment there was not only a right of passage on the part of the public but there was the liability to repair on the part of the parish…."

Tichborne -v- Weir (1892) 67 LT 735
1892 CA	Land
	The 1833 Act provided that after 20 years of adverse possession 'the Right and Title' to the land 'shall be extinguished'. Held: By barring the remedy and extinguishing the title of the person out of possession, the Act did not create a new title in the disseisor or convey the dispossessed person's title to him.
	Real Property Limitation Act 1833

Salt -v- Marquis of Northampton [1892] AC 1
1892	Land	Casemap 1 Citers
	The court was asked whether a life policy, the premiums on which were charged against the mortgagor, was comprised in the mortgage security. That question having been decided in the affirmative, it was declared to be redeemable, notwithstanding an express provision to the contrary contained in the deed.

Phillips v Low [1892] 1 Ch 47
1892 ChD Chitty J	Land, Wills and Probate	1 Cites 1 Citers
	There had been a conveyance of land with a house on it whose window looked onto other land of the vendor. Held. There was an implied ancillary right that the window would not be obscured by act of the vendor. There is applicable to devises of a testator's property to different grantees the same salutary principle that governs the implication and acquisition of easements on the contemporaneous grants to different grantees of properties previously in the ownership of the grantor.

Virgo -v- Harford Unreported, 11 August 1892
11 Aug 1892	Land	Casemap 1 Citers
	A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset.

Ellis -v- Goulton [1893] 1 QB 350
1893	Land, Contract
	Under an open contract for the sale of land, the deposit paid by the purchaser to the vendor's solicitor is received as agent for the vendor.

Powell -v- London and Provincial Bank [1893] 2 Ch 555
1893	Land	Casemap 1 Citers
	The requirement that it was necessary for an agent of a company delivering a deed to have been appointed under seal was surmountable by corporations giving officers authority by deed.

Harrison -v- Duke of Rutland [1893] 1 QB 142; (1893) The Times LR 115
1893 CA Lord Esher MR, Lopes LJ, Kay LJ	Land	Casemap 1 Cites 1 Citers
	H used a public highway crossing the defendant's land, to disrupt grouse-shooting upon the defendant's land. He complained after he had been forcibly restrained by the defendant's servants from doing so. The defendant justified his actions saying that the plaintiff was a trespasser upon the highway. Held: Insofar as the plaintiff was upon a highway for purposes other than its use as a highway, he was a trespasser. Lord Esher MR said: "on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser." and "Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser." Lopes LJ said: "if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil." Kay LJ said: "the right of the public upon a highway is that of passing and repassing over land the soil of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful is a trespass."

Orr -v- Mitchell (1893) 20 R (HL) 27
1893	Scotland, Land	Casemap 1 Citers
	Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the disposition is delivered the general rule is that it becomes the sole measure of the contracting parties' rights if there is a dispute about the subject to which right has been acquired by the purchaser.

British South Africa Company -v- Companhia de Mocambique [1893] AC 602
1893 HL Lord Halsbury	Land, Jurisdiction	Casemap
	Two companies, one Portuguese, the other British and controlled by Cecil Rhodes, were in dispute about a large territory called Manica. The Portuguese company complained that they owned lands and mineral rights in Manica yet the British company had invaded the territory with a military force and seized the lands and minerals, doing injury to their business. Held: The Portuguese company was not entitled to maintain its claims in the English courts, for that would be to try a question of title to foreign land. An English court does not have a general power to order the transfer of land abroad. Lord Halsbury said that: "Rules of procedure and practice in England would not, I think, in the contemplation of any one, touch questions of territorial or international jurisdiction."

Driver -v- Broad [1893] 1 QB 744
1893 Kay LJ	Land, Contract	Casemap 1 Citers
	An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property "in the ordinary course of its business" and one that does not. The concept was inherent in the term "floating security" or "floating charge."

Haigh -v- West [1893] 2 QB 19
1893 CA Lindley LJ	Land, Animals	Casemap 1 Citers
	The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil of the road vested. Held: It was to be presumed that the road vested in the church wardens as trustees or alternatively, and to the extent that was not correct, that they had acquired a title by adverse possession. The highway had originally all been grass but for the 20 years prior to the start of the claim, it had been metalled in the middle with grass at the sides. It was the grass at the sides which was used by the tenants of the church wardens for pasturing sheep. Lindley LJ said: "apart from all presumptions the parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century and this occupation and enjoyment is that of the church wardens and overseers acting through the vestry. We see no legal difficulty in the acquisition by the church wardens and overseers of a title by the Statute of Limitations, although, of course, the title so acquired must be subject to the public right of way."

Harvey and Another -v- Facey and others [1893] UKPC 1; [1893] UKPC 46
29 Jul 1893 PC	Commonwealth, Contract, Land
	(Jamaica)
	Link[s] omitted

In re McHenry (1894) 3 Ch 290
1894 CA Lord Herschell LC, Lindley LJ	Land, Limitation	Casemap 1 Citers
	The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the security on personal property (a scrip certificate of bonds) between the proceeds of the realisation and the amount of the advance. The issue was whether the limitation period ran from the date of realisation of the security, which was within the limitation period, or from the earlier date when the principal sum became repayable. Held: The court rejected the contention that the time only began to run when the security was sold and the actual amount payable was ascertained and that there was a separate claim on the express promise to pay the difference. The cause of action arose when the original mortgage debt became due and that the promise to pay the difference did not create a new debt. Lord Herschell LC: "I cannot say that the right of realisation gave a new, separate and independent cause of action, so that the statute did not begin to run until from that date. The truth is that the debt is one debt only. The second clause of the document did not create a new debt, but only prescribed what should be done in the event of realisation and what should be made of the money realised. The words gave the creditor no right which would not equally have existed without them." Lindley LJ: " The promise to pay the deficiency does not create a new obligation to pay: it only applies the old obligation to a reduced sum. The realisation of the security does not add to the cause of action; the cause of action accrued long before." .

In re Clergy Orphan Corporation [1894] 3 Ch 145
1894 CA	Charity, Land	Casemap 1 Citers
	The court considerd the extent of the prohibition on restrictions on the sale of land by a charity to land forming part of the endowment of the charity.

Lemmon -v- Webb [1894] 3 Ch 1
1894 CA Lindley, Lopes and Kay LJJ	Land, Torts - Other	Casemap 1 Citers
	A neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner's land. A similar right of abatement by cutting applied to encroaching roots. Lindley LJ said: "But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case." Kay LJ: "The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so."

Henderson -v- Astwood [1894] AC 150
1894 PC Lord Macnaghten	Land	Casemap 1 Citers
	A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently sold and conveyed the land to a bona fide purchaser for value without notice of the defect in the title. This last-mentioned sale was held to be valid, but the transaction between the mortgagee and his nominee was held to be ineffective to extinguish the equity of redemption. The result was that on the taking of the mortgage account the mortgagor was entitled to the benefit of the sale to the ultimate purchaser. “The so-called sale was of course inoperative. A man cannot contract with himself. A man cannot sell to himself, either in his own person or in the person of another.”

Lancashire -v- Hunt (1894) 10 TLR 310
1894 Wright J	Land	Casemap 1 Citers
	A right of common was accepted over land to play cricket and other games on 160 acres of Stockbridge Common Down. The owner applied to prevent a local trainer from exercising his horses over the land. The trainer claimed that he had a customary right to train his horses over the common. Held: The customary right asserted had not been established. However, the inhabitants of the borough did have the right to ride their horses for recreation over any part of the 160 acres. A second claim against villagers who asserted a right to meet on the land and to run fetes and cricket matches failed, since customary rights were established.

Henderson -v- Dawson (1895) 22 R 895
1895 Lord McLaren	Scotland, Land	Casemap 1 Citers
	An inhibition which is laid on after the missives have been concluded but before the date of the disposition, apparently striking at the sale, may cause difficulty in a question with a subsequent purchaser

Manchester Trust -v- Furness [1895] 2 QB 539
1895 CA Lindley LJ	Land, Commercial	Casemap 1 Citers
	"In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralyzing the trade of the country."

Re Scott and Alvarez's Contract No 2 [1895] 2 Ch 603
1895 CA Lindley LJ	Land, Contract	Casemap 1 Citers
	Lindley LJ discussed the circumstances under which a deposit paid under a contract for the sale of land could be returned. Even where specific performance was refused to the vendor because the title was wholly defective, the purchaser might be left unable to rescind by the terms of the contract, and therefore unable in law to claim return of the deposit: "There is no question of discretion in such a case as that . . The legal answer is this: 'There is no breach of contract at all; you have taken your chance with respect to your deposit; and unless you shew a breach by the vendor of his bargain, you are not entitled to have that deposit back.'"

The Benwell Tower (1895) 72 LT 664
1895	Land	Casemap 1 Citers
	Conveyancing Act 1881

Chastey -v- Ackland [1895] 2 Ch 389; [1895] 64 L J QB 523; [1895] 72 LT 845; [1895] 43 WR 627; [1895] 11 TLR 460; [1895] 39 Sol Jo 582
1895 CA Lopes LJ, Lindley LJ	Nuisance, Land	Casemap 1 Cites 1 Citers
	The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance granted an injunction against the new building. Held: on appeal, that since the defendant was not the originator of the nuisance, the stagnation air caused by the new building was not actionable either as interference with an easement or as a nuisance. The injunction was discharged. A right to air from particular direction can be established by immemorial user, though not by prescription. Lindley LJ said: "speaking generally, apart from long enjoyment, or some grant or agreement, no one has a right to prevent his neighbour from building on his own land, although the consequence may be to diminish or alter the flow of air over it on to land adjoining. So to diminish a flow of air is not actionable as a nuisance."

Smith -v- Wallace [1895] 1 Ch 385
1895 Romer J	Land, Contract	Casemap 1 Citers
	Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so "fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage of his position, and to leave the purchaser in ignorance whether the contract [is] to be treated as rescinded or not."

Midland Railway Company -v- Gribble [1895] 2 Ch 827
1895 CA	Land
	The Act required the railway company to make gates and passages over the railway for the accommodation of the owners and occupiers of land adjoining the railway. The conveyance to the railway company reserved to the landowner and his successors in title a right of way over the level crossing that was made. Held: The right granted by the Act to a landowner owning land on both sides of the railway as an easement. The landowner on subsequently conveying away land on one side, without granting a right of way over the retained land and without reserving a right of way over the land conveyed away, was held to have abandoned his easement over the level crossing.
	Railway Clauses Consolidation Act 1845 68

Paterson -v- Gas Light and Coke Co. [1896] 2 Ch 476
1896	Land	Casemap 1 Citers

Beckenham Urban District Council -v- Wood [1896] 60 JP 490
1896 Cave J, Wills J	Land	Casemap
	The court considered at what point a drain became a sewer: "The general rule, as I understand, is, that where a drain receives the sewage of two or more houses it is a sewer; where it receives the sewage of one house only it may still remain a drain, though not necessarily, because it may be a sewer whether it takes the sewage of one house only or no house at all. A main sewer may be laid down by the local authority in a new street where no houses are built, but where it is intended houses shall be built. Subsequently, the buildings may be commenced at the lower end of the street, and when the drains of one house are connected with the main sewer the connecting pipes will be drains and not sewers, but the sewer itself will no less continue to be a sewer, although it receives only the drainage of that one house. And, consequently, a sewer without a drain at all will be a sewer."

Kirby -v- Harrogate School Board [1896] 1 CH 437
1896 CA Lindley LJ, Kay LJ, A L Smith LJ	Land, Damages	Casemap 1 Citers
	The Board had power under the 1870 Act to acquire land to build school accommodation. The 1845 Act was to apply "with respect to the purchase of land" for the purposes of the 1870 Act. The Board began to erect a school building on a site which they had acquired by agreement. The plaintiff alleged that it infringed a restrictive covenant attached to his land, and sought an injunction. Held: The claim failed. The work was authorised by the statute, and the only remedy for the infringement of the private right was a claim for compensation under section 68 of the 1845 Act. Lindley LJ thought the language of the 1845 statute to be unhappy, but: "when regard is had to the object of the section, it would be misreading the Lands Clauses Act if we were to hold that a person injuriously affected by the construction of the works could not have the benefit of section 68 if the company had managed to acquire the land by agreement rather than by the exercise of their compulsory powers. I have not the slightest doubt myself that s. 68 properly applies to all cases of purchase by railway companies under their powers, and to all cases of purchase by school boards under the powers conferred upon them by this Act of 1870." Kay LJ would not confine the words of section 68 to works on land which had been acquired compulsorily.
	Elementary Education Act 1870 - Land Clauses Consolidation Act 1845

Gaskell -v- Gosling [1896] 1 QB 669
1896 CA Rigby LJ	Land	Casemap 1 Citers
	The court considered the position of a mortgagee as agent of the mortgagor. The agency is one where the principal, the mortgagor, has no say in the appointment or identity of the receiver and is not entitled to give any instructions to the receiver or to dismiss the receiver: "For valuable consideration he has committed the management of his property to an attorney whose appointment he cannot interfere with."
	Law of Property Act 1925 109

Edwards -v- Jenkins [1896] 1 Ch 308
1896 Kekewich J	Land	Casemap 1 Cites 1 Citers
	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 in Beddington: 'One parish, one custom.' Kekewich J said: "The only question, therefore, is whether it is properly laid in "all the inhabitants for the time being of the said parish, and of the adjoining or contiguous parishes of Carshalton and Mitcham." It seems to me that though there is no authority exactly deciding that such an allegation is bad, all the cases so directly point that way that I ought to consider the point concluded by authority". rejected the attempt by the defendants to re-amend to delete the allegation that there had been usage by the inhabitants of the neighbouring parishes, saying: "But I cannot see how a number of parishes can, without specific evidence, be said to be situated in a particular district so that land in one of the parishes is land in a particular district. I take it that the judges have used the word "district" as meaning some division of the county defined by and known to the law, as a parish is; and that I should be extending their meaning if I were to say that a custom of this kind could be claimed as regards several parishes. Mr. Edwards is right, I think, in his criticism of the other cases cited by Mr. Warmington. I think they do go to this, that where a custom is asserted as regards the inhabitants of a particular parish, then, if the evidence goes to shew that the privilege has been exercised by the inhabitants of other parishes, the proof is inconsistent with the allegation, and the case fails on that ground. But it is to be observed that in all such cases, if the larger custom could have been set up, a custom, that is, for inhabitants of adjoining parishes, then leave to amend ought to have been applied for, and if applied for, would, I should say, have been granted, so as to admit of the larger custom being proved. It seems to follow that the reason why those cases failed was because the evidence was inconsistent with the allegation, and no allegation could be introduced by amendment so as to be sustainable in law. That brings me to the last point. Mr. Edwards has asked for leave to amend. I am extremely unwilling to refuse leave to amend in any case . . He now asks for an amendment by striking out the words referring to Carshalton and Mitcham, so as to claim a custom for Beddington only. It is clear to my mind that if the amendment were made the evidence adduced would shew that the custom affects not only the parish of Beddington, but the other parishes, and I should be in precisely the same position as the Master of the Rolls was in the case of Cox v. Schoolbred. . and should have to decide against the defendants, because they had proved a custom larger than they claimed".

Dryburgh -v- Gordon (1896) 24 R 1
1896	Scotland, Land	Casemap 1 Citers
	A search against land which produces an adverse entry ex facie of the record, even if it relates to an inhibition which was laid on after the missives were entered into, is not a clear search.

Chastey -v- Ackland [1897] AC 155
1897 HL	Land	Casemap 1 Cites
	Immemorial user

Gaskell -v- Gosling [1897] AC 575
1897 HL	Land	Casemap 1 Citers

Rymer -v- McIlroy [1897] 1 Ch 528
1897 Byrne J	Land	Casemap 1 Citers
	B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of Three-acre to C who sought to exercise the right of way over Blackacre. B contended that C had no such right because it was attached only to A's leasehold estate, which had been extinguished. Held: The argument was rejected. The right of way continued for the benefit of the freehold estate. Having regard to "the whole tone and tenour of the deed, and the fact that John Drummond shortly afterwards acquired the fee", he concluded: "The true construction is that, so long as the Drummonds, or either of them, or the heirs or assigns of either of them were interested, this right of way was to subsist. The probability is, and it is not an unnatural inference to draw, that it was within the contemplation of the parties that the Drummonds might obtain the fee simple in one or more of the plots in which they had then only a limited interest, and that in that case the right of way should continue. I can see nothing illegal in such an agreement, and if that is the contract no such doctrine as that the covenant was with the reversioner, who has destroyed the reversion, arises."

Conservators of the River Thames -v- Smeed Dean & Co [1897] 2 QB 334
1897 CA Chitty LJ, Smith LJ	Land, Utilities	Casemap 1 Citers
	The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by a Navigation Authority and in all likelihood a nuisance. "The Conservators are a statutory body brought into existence for the purpose of preserving, improving and maintaining the navigation of the River Thames ... but the powers granted to them by the 1894 Act are all subservient thereto and except for these purposes no powers are granted to them at all." The court discussed the meaning of the word 'bed' as to the bed of the river. "bed" in the context of a tidal and non-tidal river meant: "... the soil or ground which is covered by water in the ordinary course of nature - the ground over which the water flows or on which it lies." (Chitty LJ)
	Thames Conservancy Act 1894

Hobson -v- Gorringe [1897] 1 Ch. 182
1897 CA Blackburn J	Land	Casemap 1 Citers
	The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: "the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil."

Plant v Bourne [1897] 2 Ch 281
1897 CA Lindley LJ	Land, Contract	Casemap 1 Cites 1 Citers
	Parol evidence was admitted to identify the 24 acres of land that had been agreed to be sold. It was clear that there was a contract. Its object were the 24 freehold acres of land which the parties had discussed. All evidence to identify the land was receivable. Once that is admitted there is no room for dispute. The general rule applicable was "Id certum est quod certum reddi potest" - "That is certain which can be rendered certain"

Forbes's Trustees -v- Macleod (1898) 25 R 1012
1898	Scotland, Land	Casemap 1 Citers
	The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick's title to the subjects appeared from the record to be unqualified, as the assignation to him was ex facie absolute. But he acknowledged in a back letter that the assignation had been made to him in security of the advance, and he undertook to reconvey the bond when the debt had been repaid. The rule that the creditors of the ex facie absolute proprietor could take no higher right than he himself possessed was applied. As soon as the debt was paid, Mr Carrick ceased to have any pecuniary interest in the subjects. So there was nothing left for his creditors to attach. His title was, as Lord McLaren put it at p 1015, merely nominal.

Biggs -v- Hoddinott [1898] 2 Ch 307
1898	Contract, Land	Casemap
	The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money.

Levy -v- Stogdon (1898) 1 Ch.478
1898 Stirling J	Land, Contract	Casemap 1 Citers
	Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld.

Bethnal Green Vestry -v- London School Board [1898] AC 190
1898 HL Lord Herschell	Land, Utilities
	The owner of a block of houses laid a pipe in the yards at the rear of the houses to carry off their drainage and connected the pipe with a sewer belonging to the Vestry in a neighbouring street. No notice was been given to the Vestry or of any order having been made by them as required by section 74, nor was there evidence of approval having been obtained of the Metropolitan Board of Works under section 69. The block was acquired by the school and when the pipe was found to be defective the school called upon the Vestry to repair it. The Vestry declined to do so on the ground that the pipe was not a sewer vested in or repairable by them. The issue was whether the pipe came within the definition of "sewer" in section 250. Held: No appropriate order had been made. The work was done with the sanction and authority both of the Vestry and of the Metropolitan Board of Works. If vested in the Vestry this was repairable by the Vestry. Therefore the only question was whether it was so vested in the Vestry. The words absolutely wide and unlimited, "all sewers" thereafter to be made, and it is only sought to cut down those words by suggesting it must mean all sewers lawfully made. There was in this case good ground for presuming that the connection of this sewer for draining the houses with the sewer received the sanction of the Vestry, and, in the absence of any distinct proof to the contrary, received the sanction of the Metropolitan Board of Works. However, even if this could not be made out, it would not follow, if the sanction of the Vestry was given, that the sewer could be held not to be a sewer within the meaning of s.68 merely because the Vestry had failed to perform their statutory duty of first submitting the plans to the Metropolitan Board of Works and obtaining their sanction. It does not follow that because the requisite sanctions have not been obtained the thing constructed is not a sewer. In the language of this legislation I think it is nonetheless a sewer within the meaning of the Act even though that sewer may have come into existence without an assent or approval which, as between public bodies, the statute requires.
	Metropolis Local Management Act 1855 69 74

Asbury -v- Asbury [1898] 2 Ch 111
1898	Land	Casemap 1 Citers
	A defendant to a claim for adverse possession made by two joint claimants, and who asserts an acknowledgement of his title must show that the acknowledgement was by both claimants.

Santley -v- Wilde [1899] 2 Ch 474
1899 Lord Lindley MR	Equity, Land	Casemap 1 Citers
	Lord Lindley considered the nature of a mortgage and said: "The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption, and is therefore void. It follows from this that 'once a mortgage always a mortgage,' but I do not understand that this principle involves the further proposition that the amount or nature of the further debt or obligation, the payment or performance of which is to be secured, is a clog or fetter within the rule." Lord Lindley MR said: "a clog or fetter is something which is inconsistent with the idea of security; a clog or fetter is in the nature of a repugnant condition."

In re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540
1899	Land	Casemap 1 Citers
	The practice of conveyancers of repute was strong evidence of real property law.

Titchmarsh -v- Royston Water Company Limited (1899) 81 LT 673
1899 Kekewich J	Land	Casemap 1 Cites 1 Citers
	The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult. Held: Kekewich J said: "the peculiar circumstances here are that the land in question is not blocked on all sides, though it is blocked on three sides by land of the vendor. The question arises, is the doctrine which calls into existence a way of necessity applicable to such a case? In the notes in Pomfret v Ricroft it is thus stated: 'where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant; for without it he cannot derive any benefit from the grant.' 'A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.' This statement, by the use of the words 'surrounded with his own land' excludes such a case as this where the granted premises are not surrounded by land of the vendor, but abut on one side on land of a stranger. There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: 'So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere'. For this reference is made to Rolle's Abridgement and Viner's Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has foundered. No such excrescence is justified by the old and often-quoted case all Clarke v Cogge ….where the extension of the doctrine to a reservation in favour of the vendor or as against the purchaser is established. Some argument was addressed to the peculiar feature of this case –viz that the boundary on the fourth side is a highway, and the fact that such highway runs in a cutting, which would make connection with the granted land difficult. There is no occasion to discuss the right of a man whose land adjoins a highway to make, if he has not already got, access thereto, and the difficulty is met by the observation that the very road over which the purchasers claimed a right of way was constructed so as to overcome it, and making a connection between the vendors land – including the part sold – and the same highway and the same cutting."

Bourke -v- Davis (1899) 44 Ch D 110
1899 Kay J	Utilities, Land	Casemap
	A public right of navigation over a river is "similar to a right of highway on land not covered by water." Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user.

Cronin -v- Sutherland (1899) 2 F 217
1899 Lord Justice Clerk Macdonald	Scotland, Land	Casemap 1 Citers
	The parties disputed whether a servitude right of passage which had been limited to the use of the road by carts drawn by horses and laden with fuel or manure could be used by the owners of the dominant tenement as a means of egress from their property for vehicles containing the contents of an ashpit. Held: There must be a strict interpretation of the document produced, so as not to make the burden upon the servient tenement more heavy than is the necessary consequence of the grant.

In re Summerson (Note) [1898] S 1192; [1899] 1 Ch 112
23 Feb 1899 Romer J	Land	Casemap 1 Cites 1 Citers
	The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property had in fact been used for many years in breach of that covenant with the knowledge of the lessor. Held: For more than thirty years the property had been used openly in breach of the covenant, and assignments had been registered with and accepted by the landlord identifying its use as a public-house. Romer J said: "there can be no question as to the purchaser getting a good title. This property was carried on as an inn even before the date of the lease." and "What is the conclusion? Inevitably that there has been a licence, and a binding licence, from the corporation to the lessee to use these premises as a public-house, or a release of this covenant, so far as it affects these particular premises, one way or another."

Hepworth -v- Pickles [1900] 1 Ch 108; [1900] 69 LJ Ch 55; [1900] 81 LT 818; [1900] 48 WR 184; [1900] 44 Sol Jo 44
2 Nov 1899 ChD Farwell J	Land	Casemap 1 Cites 1 Citers
	The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract. Held: His action failed. The covenant had been waived or released. Farwell J said: "if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful."