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These cases are from the lawindexpro database. They are now being published to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  



Land - From: 1849 To: 1899

This page lists 382 cases, and was prepared on 29 October 2014.

 
Cope -v- Thames Haven Dock and Railway Co (1849) 3 Ex 841
1849


Land
"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."
1 Citers



 
 Morrell -v- Fisher; 22-Dec-1849 - (1849) Exch 591; [1849] EngR 1242; (1849) 4 Exch 591; (1849) 154 ER 1350
 
Adams -v- London & Blackwall Railway Co (1850) 2 Mac & G 118
1850


Land

1 Citers



 
 Doe d. Baddeley -v- Massey; 1851 - (1851) 17 QB 374
 
Hellawell -v- Eastwood (1851) 6 Exch. 295
1851

Parke B
Land
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".
1 Citers


 
Napier's Trustees -v- Morrison (1851) 13 D 1404
1851

Lord Cockburn
Scotland, Land
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."
1 Citers


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


Land

[ Commonlii ]

 
 Parkin -v- Thorold; 2-Jun-1851 - [1851] EngR 542; (1851) 2 Sim NS 1; (1851) 61 ER 239
 
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.
[ Commonlii ]

 
 Pyrke -v- Waddingham; ChD 1852 - (1853) 10 Hare 1; [1852] EngR 792; (1852) 10 Hare 1; (1852) 68 ER 813

 
 Rochdale Canal Proprietors -v- Radcliffe; 1852 - (1852) 18 QB 287
 
Dyce -v- Lady James Hay (1852) 1 Macq 305
1852
HL
Lord St Leonards LC
Land, Scotland
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."
1 Citers


 
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.
[ Commonlii ]

 
 Parkin -v- Thorold; CA 1-May-1852 - (1852) 22 LJ Ch 170; [1852] EngR 535; (1852) 16 Beav 59; (1852) 51 ER 698

 
 Dimes -v- The Proprietors Of The Grand Junction Canal and Others; 29-Jun-1852 - [1852] EngR 793; (1852) 3 HLC 794; (1852) 10 ER 315
 
Richards -v- Rose [1853] 9 Exch Rep 218
1853

Pollock CB
Land
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."
1 Citers


 
Trent -v- Hunt (1853) 9 Exch 14
1853

Alderson B
Land, Landlord and Tenant
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.
1 Citers


 
Harvey -v- Lindsay (1853) 15 D 768
1853

Lord Ivory
Scotland, Land
A new servitudes over land may arise as alterations take place in the progress of society.
1 Citers


 
Patching -v- Dubbins (1853) Kay 1
1853


Land

1 Cites


 
Rochdale Canal Company -v- King (1853) 16 Beav 630
1853

Sir John Romilly MR
Land, Trusts
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."
1 Cites

1 Citers



 
 Pinnington -v- Gallard; 1853 - (1853) 9 Ex 1
 
Cannock -v- Jauncey [1853] EngR 601; (1853) 1 Drew 497; (1853) 61 ER 542
26 May 1853


Land

[ Commonlii ]
 
Sir Henry Edward Bunbury, Bart -v- Philip Fuller [1853] EngR 768; (1853) 9 Exch 111; (1853) 156 ER 47
25 Jun 1853


Ecclesiastical, Land
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.
1 Citers

[ Commonlii ]

 
 Randall -v- Stevens And Others; 25-Jun-1853 - [1853] EngR 767; (1853) 2 El & Bl 641; (1853) 118 ER 907
 
Wiltshear -v- Cottrell [1854] 1 E&B 674; [1854] 22LJ (QB) 177)
1854


Land
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.
1 Citers


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


Land

1 Cites


 
Doe d. Croft -v- Tidbury (1854) 14 CB 304
1854


Land

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

1 Cites

[ Commonlii ]

 
 Wood -v- Midgley; HL 28-Feb-1854 - [1854] EngR 313 (B); (1854) 5 De G M & G 41
 
Taylor -v- Gilbertson [1854] EngR 705; (1854) 2 Drew 391; (1854) 61 ER 770
3 Jul 1854


Land

1 Cites

[ Commonlii ]
 
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.
[ Commonlii ]
 
Johnson -v- Webster [1854] EngR 952; (1854) 4 De G M & G 474; (1854) 43 ER 592
25 Nov 1854


Land

[ Commonlii ]
 
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

[ Commonlii ]
 
Ex parte Barclay (1855) 5 De G M & G 403
1855


Land
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."
1 Citers


 
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
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."
1 Citers


 
Regina -v- Pratt (1855) 4 E & B 860
1855

Crompton J, Erle J
Land, Torts - Other
"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."
1 Citers



 
 Scott -v- Jackman; 10-Nov-1855 - [1855] EngR 774; (1855) 21 Beav 110; (1855) 52 ER 800
 
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.
[ Commonlii ]

 
 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 etc; 7-Mar-1856 - [1856] EngR 326; (1856) 3 Sm & G 307; (1856) 65 ER 671
 
Johnstone -v- Hall [1856] EngR 336; (1856) 2 K & J 414; (1856) 69 ER 844
11 Mar 1856


Land

1 Cites

[ Commonlii ]
 
Daniel Rowbotham -v- William Wilson [1856] EngR 575; (1856) 6 El & Bl 593; (1856) 119 ER 985
30 May 1856


Land
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.
1 Citers

[ Commonlii ]
 
Gibson -v- Doeg (1857) 2 H&N 615; [1857] EngR 925; (1857) 157 ER 253
1857

Pollock CB
Land
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."
1 Citers

[ Commonlii ]
 
Robertson -v- Norris (1857) 4 Jur NS 155
1857

Stuart V-C
Land
A mortgage sale for purposes other than merely to recover payment of the debt was a "fraud on a power".
1 Citers


 
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.
[ Commonlii ]

 
 Pyer -v- Carter; 21-Feb-1857 - (1857) 1 H&N 916; [1857] EngR 291; (1857) 1 H & N 916; (1857) 156 ER 1472

 
 The Governor and Company of the New River, Brought from Chadwell and Amwell to London -v- The Commissioners of Land Tax For The Division of Hertford in the County of Hertford; 8-May-1857 - [1857] EngR 517 (B); (1857) 2 H & N 129
 
David Rowbotham -v- William Wilson [1857] EngR 717; (1857) 8 El & Bl 123; (1857) 120 ER 45
1 Jul 1857


Land

1 Cites

1 Citers

[ Commonlii ]

 
 Forrest -v- Overseers of Greenwich; 1858 - [1858] XXI Victoria 890; [1858] EngR 249; (1858) 8 El & Bl 890; (1858) 120 ER 332

 
 Berkeley Peerage case; 1858 - (1858-61) 8 HLC 21
 
Attorney-General -v- Hanmer (1858) 27 LJCh 837
1858


Land
Letters patent granted mineral rights in the waste lands. Held: the term included the lands between the high and low water marks.
1 Citers



 
 Ockenden -v- Henly; 31-May-1858 - [1858] EngR 757; (1858) El Bl & El 485; (1858) 120 ER 590

 
 Dowson -v Solomon; 1859 - (1859) 1 Drew & Sm 1
 
Regina -v- Broke (1859) 1 F & F 514
1859

Pollock CB
Land, Crime
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."
1 Citers


 
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."


 
 Holmes -v- Bellingham; 24-Jun-1859 - [1859] EngR 769; (1859) 7 CBNS 329; (1859) 144 ER 843
 
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.
[ Commonlii ]
 
Pell -v- Addison (1860) 2 F&F 29
1860


Land
Extent of lay rector's duty of repair of the parish church.
1 Citers



 
 Henry Rowbotham, And Others -v- William Wilson; HL 19-Jun-1860 - [1860] EngR 892; (1860) 8 HLC 348; (1860) 11 ER 463

 
 Dawes -v- Hawkins; 6-Jul-1860 - (1860) 8 CB (NS) 848; [1860] EngR 968; (1860) 8 CB NS 848; (1860) 144 ER 1399
 
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

1 Cites

[ Commonlii ]
 
Bowser -v- Maclean [1860] EngR 1170; (1860) 2 De G F & J 415; (1860) 45 ER 682
21 Nov 1860

Lord Campbell LC
Land
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.
1 Citers

[ Commonlii ]
 
Howard -v- Harris [1681] EngR 89; [1681] 23 ER 288 (A); (1681) 1 Vern 33
1861


Land
Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem.
1 Citers

[ Commonlii ]

 
 Frewen -v- Philipps; CEC 1861 - [1861] EngR 30; (1861-1862) 11 CB NS 449; (1861) 142 ER 871
 
Haynes -v- Barton In The Matter Of The Metropolitan Railway Act, 1854 And In The Matter Of The Lands Clauses Consolidation Act, 1845, 1861 [1861] EngR 40; (1861) 1 Dr & Sm 483; (1861) 62 ER 463
1861


Land

Lands Clauses Consolidation Act 1845 - Lands Clauses Consolidation Act 1861 - Metropolitan Railway Act 1854
[ Commonlii ]
 
Norris -v- Chambres (1861) 29 Beav 246
1861

Sir John Romilly MR
Land
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."
1 Cites

1 Citers


 
Webb -v- Bird (1861) 10 CB (NS) 268; [1861] EngR 518; (1861) 10 CB NS 268; (1861) 142 ER 455
1861

Willes J
Land
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.
1 Citers

[ Commonlii ]
 
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.'


 
 Berridge -v- Ward; 1861 - (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
 
Ewart -v- Cochrane (1861) 4 Macq 117
1861

Lord Campbell LC
Land, Scotland
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."
1 Citers


 
Tupper -v- Foulkes (1861) 9 CB (NS) 797; [1860] EngR 271 (A); (1860) 2 F & F 167
1861

Williams J
Land
Anything which shows that a party treats an instrument as his deed will suffice to make it his deed.
1 Citers

[ Commonlii ]
 
Tupper And Others -v- Foulkes [1861] EngR 240; (1861) 9 CB NS 797; (1861) 142 ER 314
26 Jan 1861


Land

1 Cites

[ Commonlii ]
 
Westhead And Others -v- Sproson And Piper [1861] EngR 544; (1861) 6 H & N 728; (1861) 158 ER 301
1 May 1861


Land, Contract

1 Citers

[ Commonlii ]
 
Attorney-General -v- Thames Conservators (1862) 1 H & M 1
1862


Land

1 Citers


 
Allen -v- England [1862] EngR 1; (1862) 3 F & F 49; (1862) 176 ER 22
1862

Erle CJ
Land, Limitation
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."
1 Citers

[ Commonlii ]
 
Chamberlain -v- West End of London Railway Co (1862) 2 B&S 617 (Ex Ch)
1862
CExC
Erle CJ
Land, Damages
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".
1 Citers


 
Curling -v- Austin [1862] EngR 299; (1862) 2 Dr & Sm 129; (1862) 62 ER 570
18 Jan 1862


Contract, Land

[ Commonlii ]
 
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.
[ Commonlii ]
 
Cordingley -v- Cheeseborough [1862] EngR 605; (1862) 4 De G F & J 379; (1862) 45 ER 1230
28 Apr 1862


Land, Contract

[ Commonlii ]

 
 Dillwyn -v- Llewelyn; ChD 12-Jul-1862 - [1862] EWHC Ch J67; [1862] 45 ER 1284; (1862) 4 De GF & J 517; [1862] EngR 908; (1862) 4 De G F & J 517; (1862) 45 ER 1285
 
Lechmere -v- Clamp [1862] EngR 1177; (1862) 31 Beav 578; (1862) A)
17 Dec 1862


Land

[ Commonlii ]
 
Webb -v- Bird And Others [1863] EngR 93; (1863) 13 CB NS 841; (1863) 143 ER 332
1863


Land

1 Cites

[ Commonlii ]
 
Ingram -v- Morecroft (1863) 33 Beav 49
1863

Sir John Romilly MR
Land
"... if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; ..."
1 Citers


 
Mounsey -v- Ismay (1863) 1 H & C 729
1863

Martin B
Land
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?"
1 Citers


 
Malcomson -v- O'Dea (1863) 10 HLC 592
1863


Land
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.
1 Citers



 
 Malcolmson -v- O'Dea; HL 1863 - (1863) 10 HL Cas 618
 
Eastwood -v- Lever [1863] EngR 23; (1863) 4 De G J & S 114; (1863) 46 ER 859
1863

Knight Bruce LJ
Land

[ Commonlii ]
 
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.

 
Isenberg -v- East India House Estate Co Ltd (1863) 3 De G J & S 263
1863

Lord Westbury LC
Land, Damages
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
1 Citers


 
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.
[ Commonlii ]

 
 Ellis -v- The Mayor, Aldermen, And Burgesses of The Borough of Bridgnorth; 6-Jul-1863 - [1863] EngR 786; (1863) 15 CB NS 52; (1863) 143 ER 702

 
 Regina -v- The Board of Works For The Strand District; 7-Nov-1863 - [1863] EngR 911; (1863) 4 B & S 526; (1863) 122 ER 556

 
 Jane Robbins, Administratrix of Edwin James Robbins, Deceased -v- Jones; 16-Nov-1863 - [1863] EngR 956; (1863) 15 CB NS 221; (1863) 143 ER 768

 
 Freeman -v- Butler; 16-Nov-1863 - [1863] EngR 954 (A); (1863) 33 Beav 289
 
Sowerby -v- Wadsworth [1863] EngR 1008; (1863) 2 H & C 701; (1863) 159 ER 290
24 Nov 1863


Land

[ Commonlii ]

 
 Skull And Another -v- Glenister And Others; 1864 - [1864] EngR 82; (1864) 16 CB NS 81; (1864) 143 ER 1055

 
 Middleton -v- Magnay; 1864 - (1864) 2 H&M 233

 
 St Leonard's Shoreditch Vestry -v- Hughes; 1864 - (1864) 17 CB (NS) 137
 
Delacherois -v- Delacherois (1864) 11 HL Cas 62
1864
HL

Land

1 Citers



 
 Suffield -v- Brown; 15-Jan-1864 - [1864] EngR 129; (1864) 4 De G J & S 185; (1864) 46 ER 888

 
 Rose -v- Watson; HL 7-Mar-1864 - (1864) 10 HLC 671; (1864) 33 LJCh 385; [1864] EngR 300; (1864) 10 HLC 672; (1864) 11 ER 1187
 
Purdey And Others -v- Field And Another And Hatch (Intervening) [1864] EngR 327; (1864) 3 Sw & Tr 576; (1864) A)
18 Mar 1864


Land

[ Commonlii ]
 
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
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?
1 Citers

[ Commonlii ]
 
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.
[ Commonlii ]
 
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

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


Land

[ Commonlii ]
 
Rede -v- Oakes [1864] EngR 880; (1864) 4 De G J & S 505; (1864) 46 ER 1015
21 Dec 1864


Land, Trusts

[ Commonlii ]
 
Asher -v- Whitlock (1865) LR 1 QB 1
1865


Land
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
1 Citers


 
Herring -v- Metropolitan Board of Works (1865) 19 CBNS 509
1865
CCP
Willes J
Land, Damages
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
1 Citers



 
 Tapling -v- Jones; 1865 - [1865] 11 HLC 290
 
Regina -v- Heath (1865) 6 B & S 578
1865
QB
Crompton J, Cockburn CJ
Land
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
1 Citers


 
Shuttleworth -v- Le Fleming (1865) 19 CBNS 687
1865


Land
The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross.
Prescription Act 1832
1 Citers


 
Galloway -v- The Corporation Of London [1865] EngR 241 (B); (1865) 34 Beav 203
13 Feb 1865


Land, Constitutional
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.
1 Cites

1 Citers

[ Commonlii ]
 
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
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.
1 Cites

1 Citers

[ Commonlii ]
 
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
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
1 Citers

[ Commonlii ]

 
 Galloway -v- The Mayor, Commonalty And Citizens of London; HL 29-Jun-1865 - [1865] EngR 639; (1865) 3 De G J & S 59; (1865) 46 ER 560
 
Dent -v- Dent [1865] EngR 773; (1865) 35 Beav 126; (1865) A)
12 Dec 1865


Land

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

Land

[ Commonlii ]
 
Le Strange -v- Rowe [1866] EngR 10; (1866) 4 F & F 1048; (1866) B)
1866


Land

[ Commonlii ]
 
Xenos -v-Wickham (1866) LR 2 HL 296
1866
HL
Blackburn J, Lord Cranworth
Land
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."
1 Citers


 
D'Eyncourt -v- Gregory (No 1) (1866) LR 3 Eq 382
1866

Lord Romilly MR
Wills and Probate, Land
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.
1 Citers


 
Carr -v- Lambert (1866) 1 Ex 168
1866


Land
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".
1 Citers



 
 Indermaur -v- Dames; 1866 - (1866) LR 1 CP 27

 
 Galloway -v- Mayor and Commonalty of London; HL 1866 - (1866) LR 1 HL 34
 
Bickett -v- Morris (1866) LR 1 SC & Div 47
1866


Land

1 Citers


 
Toombs' Case [1866] EngR 46; (1866) 35 Beav 524; (1866) A)
1866


Land

[ Commonlii ]
 
Craggs -v- Gray [1866] EngR 52; (1866) 35 Beav 166; (1866) A)
12 Jan 1866


Land

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


Land

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


Land

[ Commonlii ]
 
Harman -v- Gurner [1866] EngR 71; (1866) 35 Beav 478; (1866) B)
30 Jan 1866


Wills and Probate, Land

[ Commonlii ]
 
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

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


Land

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


Land

[ Commonlii ]
 
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

[ Commonlii ]
 
Mullins -v- Hussey [1866] EngR 92; (1866) 35 Beav 301; (1866) B)
12 Feb 1866


Land

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


Land

[ Commonlii ]
 
Micholls -v- Corbett [1866] EngR 109; (1865-1866) 34 Beav 376; (1866) 55 ER 680
24 Feb 1866


Land, Contract

[ Commonlii ]
 
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

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


Land

[ Commonlii ]
 
Paterson -v- Paterson [1866] EngR 141 (B); (1866) 35 Beav 506
24 Apr 1866


Land

[ Commonlii ]
 
Clark -v- Wallis [1866] EngR 143; (1866) 35 Beav 460; (1866) B)
26 Apr 1866


Land, Contract

[ Commonlii ]
 
Belaney -v- Belaney [1866] EngR 155; (1866) 35 Beav 469; (1866) 55 ER 978
25 May 1866


Land, Wlls and Probate

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


Land

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


Land

[ Commonlii ]

 
 Ricket -v- Metropolitan Railway Co; HL 1867 - (1867) LR 2 HL 175
 
Bryant -v- Foot (1867) LR 2 QB 161
1867

Cockburn CJ
Land, Limitation
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."
1 Citers


 
Morton -v- Woods (1867) LR 4 QB 292
1867
QBD
Kelly CB
Land
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."
1 Citers



 
 Baxendale -v- McMurray; 1867 - [1867] 2 Ch App 790; [1867] 31 JP 821

 
 Williams -v- James; 1867 - [1867] LR 2 CP 577
 
Boyd -v- Shorrock (1867) LR 5 Eq 72
1867

Sir W. Page Wood V.-C
Land

1 Cites

1 Citers


 
Carington -v- Wycombe Railway Co (1868) 3 Ch App 377
1868


Land

Land Clauses (Consolidation) Act 1845
1 Citers


 
Ferrar -v- City Sewers Commissioners (1868-69) LR4 Ex 227
1868


Land
(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
1 Citers



 
 Rylands -v- Fletcher; HL 1868 - (1868) LR 3 HL 330; [1868] UKHL 1
 
Blackmore -v- London and South Western Railway Company (1868) 38 LJ Ch 19
1868


Land, Contract

1 Citers


 
Nash -v- Coombs (1868) LR 6 Eq 5
1868

Sir William Page Wood VC
Land
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."
1 Citers



 
 Gayford -v- Moffatt; 1868 - [1868] 4 Ch App 133

 
 Rangeley -v- Midland Railway Company; CA 1868 - [1868] 3 Ch App 306
 
Morland -v- Cook (1868) LR 6 Eq 252
1868
CA
Lord Romilly MR
Land
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.
1 Citers


 
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.
[ Commonlii ]

 
 Engell -v- Fitch; ChD 1869 - (1869) LR 4 QB 659; 10 B&S 738; 38 LJQB 304; 17 WR 894 ex Ch
 
Lord St Leonards -v- Ashburner (1869) 21 LT 595
1869

Bramwell B
Land
(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."
1 Citers


 
Walters -v- Webb (1870) LR 5 Ch App 531
1870


Land

1 Citers



 
 Corbett -v- Hill; 1870 - (1870) LR 9 Eq 671; (1870) 39 CJCh 547; (1870) 2 LT 263; (1870) 7 Digest (Repl) 267

 
 London and South Western Railway Company -v- Blackmore; HL 1870 - (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
 
Heasman -v- Pearce (1871) 7 Ch App 275
1870


Land
The rule against perpetuties will not invalidate a limitation after an entailed interest.


 
 Stebbing -v- Metropolitan Board of Works; 1870 - (1870) LR 6 QB 37

 
 Watts -v- Kelson; CA 1870 - (1870) 6 Ch App 166
 
Turner -v- Ringwood Highway Board [1870] LR 9 Eq 418
1870


Land
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.
1 Citers


 
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.
[ Commonlii ]
 
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

[ Commonlii ]
 
Richardson -v- Younger (1871) 6 Ch App 478
1871


Land, Limitation
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.
1 Citers


 
Jegon -v- Vivian (1871) LR 6 Ch App 742
1871


Damages, Land
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.
1 Citers


 
Marshall -v- Ulleswater Steam Navigation Co (1871) LR 7 QB 166
1871


Land
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
1 Citers


 
In re River Steamer Company (1871) LR 6 Ch App 822
1871

Mellish LJ
Land, Limitation
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)
1 Citers



 
 Radanath Doss And Others -v- Gisborne And Co; PC 19-Jan-1871 - [1871] EngR 1; (1871) 14 Moo Ind App 1; (1871) 20 ER 687; [1871] UKPC 2

 
 William Farquharson -v- Dwarkanath Singh And The Government Of India; PC 1-Jul-1871 - [1871] EngR 26; (1871) 14 Moo Ind App 259; (1871) 20 ER 784
 
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.
[ Commonlii ]
 
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.
[ Commonlii ]
 
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.
[ Commonlii ]
 
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.
[ Commonlii ]
 
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.
[ Commonlii ]

 
 Shaw -v- Foster; HL 1872 - (1872) LR 5 HL 321
 
Forbes -v- Ecclesiastical Commissioners for England (1872) LR 15 Eq 51
1872


Land
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
1 Citers


 
Holland -v- Hodgson (1872) LR 7 CP 328
1872

Blackburn J
Land
(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.”
1 Cites

1 Citers


 
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

[ Commonlii ]
 
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

[ Commonlii ]
 
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

[ Commonlii ]
 
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

[ Commonlii ]
 
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.
[ Commonlii ]
 
Rudge -v- Richens (1873) LR 8 CP 358
1873


Land
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.
1 Citers


 
Harvey -v- Walton (1873) LR 8 CP 162
1873

Grove J
Land
(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."
1 Citers


 
Pearce -v- Watts (1873) LR 20 Eq 492
1873

Sir G Jessel MR
Land, Contract
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."
1 Citers


 
Harvey -v- Walters (1873) LR 8CP 162
1873
CCP
Grove J
Land
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."
1 Citers



 
 Johnson -v- Barnes; 1873 - (1873) LR 8 CP 527
 
Des Barres & Another -v- Shey (1873) 29 LT (NS) 592
1873


Land, Limitation
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.
1 Citers



 
 Bain -v- Fothergill; HL 1874 - (1874) LR 7 HL 158; 43 LJ Ex 243; 31 LT 387; 39 JP 228; 23 WR 261

 
 National Society -v- School Board of London; 1874 - (1874) 18 Eq 608

 
 Metropolitan Board of Works -v- McCarthy; HL 1874 - [1874] LR 7 HL 243
 
Clifford -v- Hoare (1874) LR 9 CP 362
1874


Land

1 Citers



 
 Ellis -v- Loftus Iron Co; 1874 - (1874) LR 10 CP 10
 
G W H Riddell, Petitioner (1874) 1 R 462
1874
IHCS
Lord President Inglis
Scotland, Land
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
1 Citers


 
Bagshaw -v- Buxton Local Board of Health (1875-76) LR 1 Ch D 220
1875
CA
Jessel LJ MR
Land
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
1 Citers


 
Wood -v- Saunders (1875) 10 Ch App 582
1875

Sir Charles Hall V-C
Land
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.'"
1 Cites

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
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.
1 Citers


 
Wimbledon and Putney Commons Conservators -v- Dixon (1875) 1 Ch D 362
1875
CA
James LJ, Baggallay JA, Mellish LJ
Land
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?"
1 Cites

1 Citers


 
Cattle -v- The Stockton Waterworks (1875) LR 10 QB 453
1875

Blackburn J
Land, Torts - Other
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."
1 Citers



 
 Hammerton -v- Honey; CA 1876 - (1876) 24 WR 603

 
 Jepson -v- Gribble; 1876 - (1876) 1 TC 78

 
 Bain -v- Brand; HL 1876 - (1876) 1 App Cas 762

 
 Cooke -v- Chilcott; 1876 - (1876) 3 ChD 694

 
 Wilson -v- Waddell; HL 1876 - (1876) 2 App Cas 95

 
 Sutherland -v- Thomson; 1876 - (1876) 3 R 485

 
 Smith -v- Webster; CA 1876 - [1876] 3 Ch D 49

 
 Lysaght -v- Edwards; 1876 - (1876) 2 Ch D 449
 
Lyon -v- Fishmongers' Co (1876) 1 App Cas 662
1876


Land

1 Citers



 
 Orr Ewing -v- Colquhoun; HL 1877 - (1877) 2 App Cas 839

 
 Seddon -v- Smith; 1877 - [1877] 36 LTR 168

 
 Attorney-General -v- Tomline (No 3); ChD 1877 - (1877) 5 Ch D 750

 
 Dalton -v- Henry Angus & Co; 1877 - (1877) 3 QBD 85

 
 Egmont -v- Smith; CA 1877 - (1877) 6 Ch D 469

 
 Baylis -v- Tyssen-Amhurst; 1877 - [1877] 6 Ch 500

 
 The Divisional Council of The Cape Division -v- De Villiers; PC 28-Apr-1877 - [1877] UKPC 14; (1876-77) LR 2 App Cas 567

 
 Dioru -v- Lachambre Gautreau and Co; PC 7-Jul-1877 - [1877] UKPC 33

 
 Dalton -v- Henry Angus & Co; CA 1878 - (1878) 4 QBD 162
 
McLaren -v- City of Glasgow Union Railway Co (1878) 5 R 1042
1878

Lord Justice Clerk Moncreiff
Land, Scotland
The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.
1 Citers


 
Chambers -v- Kingham (1878) 10 Ch D 743
1878

Fry J
Land
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.
1 Citers


 
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
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)
1 Citers



 
 Bowman -v- Hyland; 1878 - (1878) 8 Ch D 588
 
Cox -v- Schoolbred Times, 15 November 1878
15 Nov 1878
CA
Jessel MR
Land
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".
1 Citers


 
Knight -v- Pursel [1879] 11 ChD 412
1879


Land
A wall could be a party wall in part and belong in another part to one of the joint owners separately.
1 Citers


 
Britan -v- Rossiter (1879) 11 QBD 123
1879


Contract, Land
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
1 Citers


 
Renals -v- Cowlishaw (1878) 9 Ch D 125
1879


Land
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.
1 Citers


 
Finch -v- Great Western Railway Company (1879) 5 Exch D 254
1879

Stephen J
Land

1 Citers


 
Hill -v- Maclaren (1879) 6 R 1363
1879

Lord Justice Clerk Moncreiff
Land, Scotland
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."
1 Citers


 
In Re Banister; Broad -v- Munton (1879) 12 ChD 131
1879
CA
Fry J, Je ssel MR , LJ Cotton
Land, Contract
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."
1 Citers



 
 Lord Advocate -v- Lord Blantyre; HL 1879 - (1879) 4 App Cas 770

 
 Leigh -v- Jack; CA 1879 - (1879) 5 Ex D 264 CA

 
 Wheeldon -v- Burrows; CA 1879 - [1879] 12 ChD 31; [1879] 28 WR 196; [1879] 48 LJ Ch 853; [1879] 41 LT 327
 
Attorney General -v- Biphosphated Guano Company (1879) 11 Ch D 327
1879
CA

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


 
Bolton -v- Bolton (1879) 11 ChD 968
1879


Land

1 Citers


 
Bryant -v- Lefever (1879) 4 CPD 172
1879


Land
A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription.
1 Citers



 
 Sturges -v- Bridgman; CA 1879 - [1879] 11 Ch D 852
 
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.


 
 Watson -v- Gray; 1879 - [1879] Ch D 192
 
M'Adam -v- M'Adam (1879) 6 R 1256
1879
IHCS
Lord President Inglis
Scotland, Land
The house referred to "the owner of a personal right to land" to describe the position of an uninfeft proprietor.
1 Citers


 
Renals -v- Cowlishaw (1879) 11 Ch D 866
2 Jan 1879
CA

Land
The term "assigns" was used to denote successors in title to the land both of the original restrictive covenantor and of the original covenantee.
1 Cites

1 Citers


 
Rains -v- Buxton [1880] 14 ChD 537
1880

Fry J
Land, Limitation
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.
1 Citers



 
 Burgess -v- Northwich Local Board; 1880 - (1880) 6 QBD 264; [1880] LJQB 219; [1880] 44 LT 154; [1880] JP 256; [1880] 26 Digest (Repl) 352

 
 Wilmott -v- Barber; ChD 1880 - (1880) 15 Ch D 96
 
Lord Advocate -v- Lord Lovat (1880) 5 App Cas 273
1880

Lord O'Hagan
Land
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."
1 Cites

1 Citers


 
Corporation of London -v- Riggs (1880) 13 Ch D 798
1880
CA
Jessel MR
Land
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."
1 Citers


 
Nash -v- Eads (1880) 25 Sol J 95
1880
CA
Sir George Jessel MR
Land
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.".
1 Cites

1 Citers


 
Stevenson -v- McLean (1880) 5 QBD 346
1880


Land

1 Citers


 
Attorney-General -v- Tomline (No 3) (1880) 15 ChD 150
1880
CA
James LJ, Cotton LJ, Thesiger LJ
Land
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
1 Cites

1 Citers



 
 Gledhill -v- Hunter; CA 1880 - (1880) 14 Ch D 492
 
Lord Advocate -v- Lord Lovett [1880] 5 App Cas 273
1880


Land

1 Citers



 
 Rolls -v- Vestry of St George the Martyr, Southwark; CA 1880 - (1880) 14 Ch D 785; (1880) 49 LJ Ch 691; (1880) 43 LT 140; (1880) 44 JP 680; (1880) 28 WR 867

 
 Baboo Het Narain Singh -v- Baboo Ram Pershad Singh and Another; PC 12-May-1880 - [1880] UKPC 29

 
 Turner -v- Walsh; PC 1881 - (1881) 6 App Cas 636; [1881] UKPC 20
 
Rosenberg -v- Cook (1881) 8 QBD 162
1881

Sir George Jessel MR
Land, Limitation
A squatter's title is a freehold from day one of his possession.
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
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
1 Citers


 
Haywood -v- The Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
1881
CA
Cotton LJ, Brett LJ
Land, Equity
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."
1 Citers


 
Scottish Property Investment Company Building Society -v- Horne (1881) 8 R 737
1881

Lord President Inglis
Scotland, Land
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."
1 Citers


 
Rayner -v- Preston (1881) 18 Ch D 1
1881

Cotton LJ, Brett LJ, James LJ
Land, Contract
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.
1 Citers


 
Banner -v- Berridge (1881) ChD 254
1881


Land

1 Citers



 
 Dalton -v- Henry Angus & Co; HL 14-Jun-1881 - (1881) 6 App Cas 740; [1881] UKHL 1

 
 Caledonian Railway Co -v- Walker's Trustees; 1882 - (1882) App Cas 259
 
Fearnside -v- Flint (1882) 22 Ch D 57
1882

Fry J
Land, Limitation
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".
1 Citers



 
 Sutton -v- Sutton; 1882 - (1882) 22 Ch D 511

 
 Austerberry -v- Oldham Corporation; CA 1882 - (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
 
Cato -v- Thompson (1882) 9 QBD 616
1882


Land
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.”
1 Citers



 
 Neill -v- Duke of Devonshire; HL 1882 - (1882) LR 8 HL 135; (1882) 8 App Cas 135

 
 Goodman -v- Mayor of Saltash; HL 1882 - (1882) 7 App Cas 633
 
London and South Western Railway Co -v- Gomm (1882) 20 ChD 563
1882
CA
Jessel MR, Lindley LJ
Land
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."
1 Cites

1 Citers


 
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

1 Cites

[ Bailii ]
 
Hollins -v- Verney (1883) 11 QBD 715
1883


Land
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
1 Citers



 
 Heywood -v- Mallalieu; 1883 - (1883) 25 ChD 357

 
 Countess of Ossalinsky -v- Manchester Corporation; 1883 - (1883) Browne & Allen 659
 
Mayor, Constables and Company of the Merchants of the Staple -v- Bank of England (1887) 21 QBD 160
1883

Wills J
Land, Company
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 …."
1 Citers



 
 Dunford -v- McAnulty; HL 1883 - (1883) 8 AC 456
 
Pountney -v- Clayton (1883) 11 QBD 820
1883
CA
Bowen LJ
Land
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.'
1 Citers



 
 In re Sneyd; Ex parte Fewings; CA 1883 - (1883) 25 Ch D 338
 
Moore -v- Shelley [1883] 8 App Cas 285
1883
PC

Land
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.
1 Citers



 
 Tiverton & North Devon Company -v- Loosemore; 1884 - (1884) 9 HLC 480

 
 Kettlewell -v- Watson; 1884 - (1884) 26 Ch D 501

 
 Great Eastern Railway -v- Goldsmid; 1884 - (1884) 9 App Cas 927
 
Rolls -v- Miller (1884) 27 ChD 71
1884
CA
Lindley LJ
Land
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.'
1 Citers


 
Re Maddever (1884) 27 Ch D 523
1884


Equity, Land
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.
1 Citers



 
 Leigh -v- Dickeson; 1884 - (1884) 15 QBD 60; [1881–5] All ER Rep 1099
 
Rolls -v- London School Board (1884) LR 27 ChD 639 (Ch D)
1884
ChD

Land

1 Citers


 
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
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
1 Cites

1 Citers



 
 Howe -v- Smith; CA 1884 - (1884) LR 27 Ch D 89
 
Wandsworth Board of Works -v- United Telephone Co (1884) 13 QBD 904
1884
CA

Land, Torts - Other
A land-owner had the right to cut a wire wrongfully placed over his property.
1 Citers


 
Mann -v- Brodie (1885) 10 App Cas 378
1885

Lord Blackburn, Lord Watson, Lord Kinnear, Lord Atkinson
Land, Scotland
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".
1 Citers


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


 
Elwes -v- Brigg Gas Co (1886) 33 Ch D 562
1886

Chitty J
Land

1 Citers



 
 Darley Main Colliery Co -v-Mitchell; HL 1886 - (1886) 11 App Cas 127

 
 Homer -v- Cadman; 1886 - (1886) 50 JP 455

 
 In Re Williams; 1886 - (1886) 34 ChD 558

 
 Scott -v- Pape; CA 1886 - (1886) 31 ChD 554
 
In Re Beetham, Ex parte Broderick (1886) 18 QBD 380
1886
QBD
Cave, Wallis JJ
Land, Equity
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."
1 Citers



 
 In Re Bright-Smith; 1886 - (1886) 31 Ch D 314

 
 Lord Advocate -v- Young; 1887 - (1887) 12 App Cas 544
 
Brown -v- Allabastor (1887) 37 ChD 490
1887

Kay J
Land

1 Citers


 
Charles -v- Jones [1887] Ch 544
1887


Land

1 Citers



 
 Orr Ewing -v- Colqhoun; 1887 - (1887) 2 App Cas 839

 
 Regina -v- Cunningham Graham and Burns; 1888 - (1888) 16 Cox 420
 
Agency Co Ltd -v- Short (1888) 13 AC 793
1888


Land
Where there has been insufficient adverse possession, it "does not leave behind it any cloud on the title of the rightful owner."
1 Citers


 
Brown -v- Alabaster (1888) 37 Ch D 490
1888


Land

1 Citers



 
 Blount -v- Layard; CA 1888 - [1891] 2 Ch 681

 
 Ex parte Lewis (The Trafalgar Square Case); QBD 1888 - (1888) 21 QBD 191

 
 Birmingham, Dudley and District Banking Co -v- Ross; CA 1888 - (1888) 38 Ch D 295
 
Farrar -v- Farrars Ltd (1888) 40 Ch D 395
1888
CA

Land, Company
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.
1 Citers


 
Spicer -v- Martin (1888) 14 App Cas 12
1888
HL

Land

1 Citers


 
Re Christchurch Inclosure Act (1888) 38 Ch D 520
1888


Land

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.

 
Nicholls -v- Nicholls (1889) 81 LT 811
1889


Land

1 Citers


 
Booth -v- Ratte (1890) 15 App Case 188
1890


Land

1 Citers



 
 Tilbury -v- Silva; 1890 - (1890) 45 Ch D 98
 
Reilly -v- Booth (1890) 44 Ch D 12
1890

Lopes LJ
Land
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.
1 Citers



 
 Bourke -v- Davis; 1890 - (1890) 44 Ch D 110

 
 MacKenzie -v- Childers; ChD 1890 - (1890) 43 ChD 265

 
 Philipps -v- Halliday; HL 1891 - [1891] AC 228

 
 Smith -v- Andrews; 1891 - [1891] 2 Ch 678

 
 Mander -v- Falcke; 1891 - [1891] 2 Ch 554

 
 Clarke -v- Ramuz; CA 1891 - [1891] 2 QB 456

 
 Attorney General -v- Emerson; 1891 - [1891] AC 649

 
 Phillips -v- Low; ChD 1892 - [1892] 1 Ch 47

 
 Hawksley -v- Outram; CA 1892 - [1892] 3 Ch 359
 
Metropolitan Railway Co -v- Fowler [1892] 1 QB 165
1892
CA
Lord Esher MR
Land
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.."
1 Citers


 
Laybourn -v- Gridley [1892] 2 Ch 53; [1892] 61 LJCh 352; [1892] 7 Digest (Repl) 267
1892

North J
Land
Part of a room protruding into the property conveyed avbove ground level was included in the conveyance.
1 Citers


 
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 - [1892] AC 1
 
Salt -v- The Marquess of Northampton [1892] AC 1
1892


Land

1 Cites

1 Citers



 
 Eyre -v- New Forest Highway Board; 1892 - [1892] 56 JP 517
 
Virgo -v- Harford Unreported, 11 August 1892
11 Aug 1892


Land
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.
1 Citers



 
 Driver -v- Broad; 1893 - [1893] 1 QB 744

 
 Harrison -v- Duke of Rutland; CA 1893 - [1893] 1 QB 142; (1893) The Times LR 115

 
 Haigh -v- West; CA 1893 - [1893] 2 QB 19

 
 British South Africa Company -v- Companhia de Mocambique; HL 1893 - [1893] AC 602

 
 Powell -v- London and Provincial Bank; 1893 - [1893] 2 Ch 555
 
Orr -v- Mitchell (1893) 20 R (HL) 27
1893


Scotland, Land
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.
1 Citers



 
 Ellis -v- Goulton; 1893 - [1893] 1 QB 350
 
Harvey and Another -v- Facey and others [1893] UKPC 1; [1893] UKPC 46
29 Jul 1893
PC

Commonwealth, Contract, Land
(Jamaica)
[ Bailii ] - [ Bailii ]

 
 In re Clergy Orphan Corporation; CA 1894 - [1894] 3 Ch 145
 
Lancashire -v- Hunt (1894) 10 TLR 310
1894

Wright J
Land
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.
1 Citers


 
In re McHenry (1894) 3 Ch 290
1894
CA
Lord Herschell LC, Lindley LJ
Land, Limitation
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." .
1 Citers


 
Henderson -v- Astwood [1894] AC 150
1894
PC
Lord Macnaghten
Land
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.”
1 Citers



 
 Lemmon -v- Webb; CA 1894 - [1894] 3 Ch 1
 
The Benwell Tower (1895) 72 LT 664
1895


Land

Conveyancing Act 1881
1 Citers



 
 Midland Railway Company -v- Gribble; CA 1895 - [1895] 2 Ch 827

 
 Re Scott and Alvarez's Contract No 2; CA 1895 - [1895] 2 Ch 603
 
Smith -v- Wallace [1895] 1 Ch 385
1895

Romer J
Land, Contract
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."
1 Citers


 
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
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."
1 Cites

1 Citers



 
 Manchester Trust -v- Furness; CA 1895 - [1895] 2 QB 539
 
Henderson -v- Dawson (1895) 22 R 895
1895

Lord McLaren
Scotland, Land
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
1 Citers



 
 Beckenham Urban District Council -v- Wood; 1896 - [1896] 60 JP 490

 
 Dryburgh -v- Gordon; 1896 - (1896) 24 R 1

 
 Gaskell -v- Gosling; CA 1896 - [1896] 1 QB 669

 
 Edwards -v- Jenkins; 1896 - [1896] 1 Ch 308

 
 Kirby -v- Harrogate School Board; CA 1896 - [1896] 1 CH 437
 
Paterson -v- Gas Light and Coke Co. [1896] 2 Ch 476
1896


Land

1 Citers


 
Rymer -v- McIlroy [1897] 1 Ch 528
1897

Byrne J
Land
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."
1 Citers



 
 Chastey -v- Ackland; HL 1897 - [1897] AC 155

 
 Plant -v- Bourne; CA 1897 - [1897] 2 Ch 281
 
Hobson -v- Gorringe [1897] 1 Ch. 182
1897
CA
Blackburn J
Land
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."
1 Citers


 
Gaskell -v- Gosling [1897] AC 575
1897
HL

Land

1 Cites

1 Citers



 
 Conservators of the River Thames -v- Smeed Dean & Co; CA 1897 - [1897] 2 QB 334

 
 Levy -v- Stogdon; 1898 - (1898) 1 Ch.478

 
 Forbes's Trustees -v- Macleod; 1898 - (1898) 25 R 1012

 
 Asbury -v- Asbury; 1898 - [1898] 2 Ch 111

 
 Biggs -v- Hoddinott; 1898 - [1898] 2 Ch 307

 
 Bethnal Green Vestry -v- London School Board; HL 1898 - [1898] AC 190
 
Santley -v- Wilde [1899] 2 Ch 474
1899

Lord Lindley MR
Equity, Land
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."
1 Citers



 
 Cronin -v- Sutherland; 1899 - (1899) 2 F 217
 
In re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540
1899


Land
The practice of conveyancers of repute was strong evidence of real property law.
1 Citers


 
Titchmarsh -v- Royston Water Company Limited (1899) 81 LT 673
1899

Kekewich J
Land
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."
1 Cites

1 Citers



 
 Bourke -v- Davis; 1899 - (1899) 44 Ch D 110
 
In re Summerson (Note) [1898] S 1192; [1899] 1 Ch 112
23 Feb 1899

Romer J
Land
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."
1 Cites

1 Citers


 
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
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."
1 Cites

1 Citers


 
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