Law Forum
  Law Books

Adverts from Google:
 
 
Google
 
Web www.swarb.co.uk

Land - 1849- 1899

Land Law. Now includes Easements, Restrictive Covenants, occupier's liability. See also Land Charges, Registered Land, Landlord & Tenant, Housing

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 369 cases, and was prepared on 21 October 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
Cope -v- Thames Haven Dock and Railway Co (1849) 3 Ex 841
1849

Land Casemap

"The subsection [on the execution of deeds by corporations] removes the necessity for enquiry as to the formalities required under the memorandum, articles, charter, etc., of the corporation; independently of this section the deed would be void unless such formalities were observed."
Morrell -v- Fisher; 22-Dec-1849
Adams -v- London & Blackwall Railway Co (1850) 2 Mac & G 118
1850

Land

Hellawell -v- Eastwood (1851) 6 Exch. 295
1851

Parke B
Land
1 Citers
In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: "The only question, therefore, is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integrè, salvè, et commodè, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causâ, or in that of the Year Book, pour un profit del inheritance (a), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel".
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."
Doe d. Baddeley -v- Massey; 1851
Marker -v- Marker [1851] EngR 344; (1851) 9 Hare 1; (1851) 68 ER 389
17 Apr 1851

Land
[ Commonlii ]
Parkin -v- Thorold; 02-Jun-1851
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
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."
Rochdale Canal Proprietors -v- Radcliffe; 1852
Walker -v- Bentley [1852] EngR 346; (1852) 9 Hare 629; (1852) 68 ER 665
9 Mar 1852

Land
The enactment of the Tithe Commutation Amendment Act (9 & 10 Vict. e. 73, s. 19), that every instrument purporting to merge any tithes, and made with the consent of the Tithe Commissioners, shall be absolutely confirmed and made valid, both at law and in equity, in all respects, is not limited to cases in which the person executing the instrument as a title to the tithe, but operates as well where such person has no estate in the tithe, as where his estate is insufficient to effect the merger. The intention of the Tithe Commutation Acts is that the lands on which the apportionment of the tithe in each parish is cast, and these lands only, shall be liable in respect of the tithe payable for any lands in the parish; and that lands on which no apportionment is cast shall not be liable to tithe.
Link[s] omitted
Parkin -v- Thorold; CA 01-May-1852
Dimes -v- The Proprietors Of The Grand Junction Canal and Others; 29-Jun-1852
Patching -v- Dubbins (1853) Kay 1
1853

Land Casemap
1 Cites
Trent -v- Hunt (1853) 9 Exch 14
1853

Alderson B
Land, Landlord and Tenant
1 Citers
A mortgagor in possession continues to have a legal right to receive the rents in his own name. However since he had no legal interest in the reversion, he could not forfeit for breach of covenants in the lease.
Harvey -v- Lindsay (1853) 15 D 768
1853

Lord Ivory
Scotland, Land Casemap
1 Citers
A new servitudes over land may arise as alterations take place in the progress of society.
Richards -v- Rose [1853] 9 Exch Rep 218
1853

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

Baron Martin
Land Casemap
1 Citers
Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to Mr Dearle, and another to Mr Moss. An existing track through Mr Dearle's lot gave access to Mr Moss' lot and was used for that purpose for several years after the sale, but there had been no express grant or reservation of a right of way. The use was later disputed by the defendant, Mr Dearle's successor, but was confirmed by the court. Held: It could not be ascertained which grant came first. If the grant to Mr Moss had come first, the right over the retained land of Mr Dickinson was covered by well-established principles of implied grant. However: "Secondly, assume that the conveyance to Mr. Dearle was executed the first. In this case the Rye Holme closes were for a short period of time the property of Mr. Dickinson after the property in the land conveyed to Mr. Dearle had passed out of him. There is no doubt apparently a greater difficulty in holding the right of way to exist in this case than in the other; but according to the same very great authority the law is the same, for (Sergeant Williams') note proceeds thus: ' So it is when he grants the land and reserves the close to himself;' and he cites several authorities which fully bear him out.
It no doubt seems extraordinary that a man should have a right which certainly derogates from his own grant; but the law is distinctly laid down to be so, and probably for the reason given in Dutton v. Taylor 2 Lutw.1487, that it was for the public good, as otherwise the close surrounded would not be capable of cultivation." A grantee of land might claim a right of way of necessity over the grantor's land even though there were prospects of an alternative access over land of a third party.
Rochdale Canal Company -v- King (1853) 16 Beav 630
1853

Sir John Romilly MR
Land, Trusts
1 Cites
1 Citers
Sir John Romilly MR said: "The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear."
Cannock -v- Jauncey [1853] EngR 601; (1853) 1 Drew 497; (1853) 61 ER 542
26 May 1853

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

Ecclesiastical, Land
1 Citers
In a question of jurisdictional or precedent fact the ultimate arbiters are the courts rather than any public authorities involved. A tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe.
Link[s] omitted
Randall -v- Stevens And Others; 25-Jun-1853
Child -v- Douglas (1854) Kay 560; 23 LJ Ch 45; 22 LTOS 116; 17 Jur 1113; 2 WR 2; 69 ER 1
1854

Land Casemap
1 Cites
Wiltshear -v- Cottrell [1854] 1 E&B 674; [1854] 22LJ (QB) 177)
1854

Land Casemap

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.
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
Link[s] omitted
Wood -v- Midgley; HL 28-Feb-1854
Taylor -v- Gilbertson [1854] EngR 705; (1854) 2 Drew 391; (1854) 61 ER 770
3 Jul 1854

Land Casemap

[ 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.
Link[s] omitted
James Edward Jackson Riccard, Thomas Roe, Clerk, And Mary His Wife, Against William Blanuri, George Derby And Henry Charles Miles [1854] EngR 951; (1854) 4 El & Bl 329; (1854) 119 ER 127
25 Nov 1854

Land
Link[s] omitted
Johnson -v- Webster [1854] EngR 952; (1854) 4 De G M & G 474; (1854) 43 ER 592
25 Nov 1854

Land
[ Commonlii ]
Kingsmill -v- Millard (1855) 11 Exch 313; (1855) 19 JP 661; (1855) 3 CLR 1022; 156 ER 849
1855

Parke B
Land, Limitation, Landlord and Tenant Casemap

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."
Ex parte Barclay (1855) 5 De G M & G 403
1855

Land
1 Citers
The court asked what was meant by a fixture: "By 'fixtures' we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things."
Regina -v- Pratt (1855) 4 E & B 860
1855

Crompton J, Erle J
Land, Torts - Other Casemap
1 Citers
"I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser."
Scott -v- Jackman; 10-Nov-1855
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; 07-Mar-1856
Johnstone -v- Hall [1856] EngR 336; (1856) 2 K & J 414; (1856) 69 ER 844
11 Mar 1856

Land
1 Cites
Link[s] omitted
Daniel Rowbotham -v- William Wilson [1856] EngR 575; (1856) 6 El & Bl 593; (1856) 119 ER 985
30 May 1856

Land Casemap
1 Citers
Action for injuririg the plainitiff’s reversion, by removing the minerals without leaving support to the surface, on which were houses more than twenty years old; whereby the houses were injured. On a special case it appeared that, ninety years before the action, the locus in quo was inclosed by an award made under an Inclosure Act: that the surface was allotted to P., whose estate plaintiff had; and the minerals to H., whose estate defendant had: that on the face of the award it was stipulated that the allottees of the mines should have liberty to work the mines, and the allottees of the surface should have no claim to compensatiori for any consequent sinking of the surface. P. executed the award as a deed. The houses were afterwards built. By defendant’s mining, without negligence, the surface unavoidably sunk. Held, that it sufficiently appeared that, upon the severance of the minerals and surface, the owner of the surface took it as a separate tenement with only a qualified right of support : that no further right of support was gained by the erection of the houses, though they had stood for more than twenty years; and that the subsequelit owners of the surface took it with only the qualified right of support origirially created : and that therefore the plaintiff was not entitled to maintain the action.
[ 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".
Gibson -v- Doeg (1857) 2 H&N 615; [1857] EngR 925; (1857) 157 ER 253
1857

Pollock CB
Land Casemap
1 Citers
A tenant had openly used the premises for many years in breach of a covenant in the lease. Held: Pollock CB said: "It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of time, and to presume that what has been done was done of right, and not in wrong."
Link[s] omitted
Rigg -v- The Earl of Lonsdale [1857] EngR 248; (1857) 1 H & N 923; (1857) 156 ER 1475
7 Feb 1857

Land
Customary rights in the nature of cattlegates.
Link[s] omitted
Pyer -v- Carter; 21-Feb-1857
David Rowbotham -v- William Wilson [1857] EngR 717; (1857) 8 El & Bl 123; (1857) 120 ER 45
1 Jul 1857

Land
1 Cites

Link[s] omitted
Forrest -v- Overseers of Greenwich; 1858
Berkeley Peerage case (1858-61) 8 HLC 21
1858

Lord St Leonards
Land Casemap

Lord St Leonards explained section 1 of the 1660 Act which removed all the "fruits and consequents" of tenure in capite of the Crown: "Not only were all tenures in capite . . taken away, but the lands were for ever turned into free and common socage. How can the Castle and Estate of Berkeley, holden as it now is by free and common socage, and not in capite or in chief, carry with it a right in its possessor to sit in this House? It confers upon him just the same right, but no higher than the humblest cottage confers on its owner. The feudal tenure being abolished, of course the privileges annexed or flowing from it have ceased."
Abolition of Tenures Act 1660 1
Attorney-General -v- Hanmer (1858) 27 LJCh 837
1858

Land Casemap
1 Citers
Letters patent granted mineral rights in the waste lands. Held: the term included the lands between the high and low water marks.
Chasemore -v- Richards [1859] 7 HLC 349
1859
HL
Lord Wensleydale
Land
The house was asked whether an owner of land had a right to sink a well upon his own premises, and thereby abstract the subterranean water percolating through his own soil, which would otherwise, by the natural force of gravity, have found its way into springs which fed the River Wandle, the flow of which the plaintiff in that action had enjoyed for upwards of sixty years. Held. Lord Wensleydale said that: "it has been now settled that the rights to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity, and quality, and to go from him without obstruction; . . the riparian owner on a navigable river, in addition to the right connected with navigation to which he is entitled as one of the public, retains his rights, as an ordinary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation."
Dowson -v Solomon (1859) 1 Drew & Sm 1
1859

Land Casemap
1 Citers
The defendant had agreed at auction to buy a leasehold house from the trustees for sale under a will. The lease contained a covenant on the lessee to keep the premises insured against fire, with a clause for forfeiture in the event of non-performance of any of the covenants. The auction was in June 1858, and completion was fixed for July 20, 1858, but was delayed until August 26, 1858. The trustee who was acting for all the trustees, anticipating completion in July, renewed the insurance policy for one month only, and the policy expired on July 24, 1858. On the completion date the purchaser refused to complete on the ground that the lease was forfeited by reason of the breach of covenant. The vendors refused to obtain a waiver of the forfeiture from the lessors (Dulwich College) as a condition of completion. The purchaser then gave notice that the contract of purchase was at an end, and demanded the return of his deposit. The defendant argued that the failure to insure resulted in the title becoming defective. Held: The question posed was "how long did it continue to be the duty of the vendors … to keep up the insurance, and to perform the other covenants in the lease so as to prevent a forfeiture?" There was an express covenant to clear all outgoings (including the insurance) until the date fixed for completion, which carried with it the implication that the vendors were not responsible thereafter. The question was whether the failure to inform the purchaser that the insurance lapsed, and the dropping of the insurance, entitled the purchaser to rescind the contract, and that "question must be tried upon the same grounds as if upon the dropping of the insurance the lessors had actually entered for the forfeiture and avoided the lease". In the "special and peculiar circumstances" specific performance was not decreed: the conduct of the trustee operated as a trap and caused great risk to the purchaser, and a court of equity would not lend the vendors its assistance. In the case of a sale of leasehold interests the vendor is under a duty to give good title, and therefore (subject to the express terms of the contract) to take care not to take steps which may result in forfeiture.
Regina -v- Broke (1859) 1 F & F 514
1859

Pollock CB
Land, Crime
1 Citers
The defendant faced an accusation of having blocked a public right of way. The defendant landowner claimed to have instructed his servants to allow only seafaring men and pilots to use the path and to turn back anyone else, and that this proved that there was no intention to create a public right of way. Held: Pollock CB said: "Even supposing these instructions to have been given and acted on, yet, unless it can be proved that they were communicated to the persons who used the path, and that they did so by virtue thereof, and not of right, their user was a user by the public, and the right of way has been gained, if the user has been continued long enough."
Prannath Roy Chowdry -v- Rookea Begum, Syed Aman Ally, And Ram Rutton Rae [1859] EngR 824; (1859) 7 Moo Ind App 323; (1859) 19 ER 331
8 Jul 1859

Land, Commonwealth
A Bye-bil-wuffa, or Kut-kubala (mortgage or conditional sale), is redeemable like an ordinary mortgage, and is subject to foreclosure.
Link[s] omitted
Pell -v- Addison (1860) 2 F&F 29
1860

Land Casemap
1 Citers
Extent of lay rector's duty of repair of the parish church.
Henry Rowbotham, And Others -v- William Wilson; HL 19-Jun-1860
Dawes -v- Hawkins; 06-Jul-1860
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
Link[s] omitted
Bowser -v- Maclean [1860] EngR 1170; (1860) 2 De G F & J 415; (1860) 45 ER 682
21 Nov 1860

Lord Campbell LC
Land

The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain the lord from using the tramway for the latter purpose ; nor is it an objection to such a bill that the copyholder is not in possession of the surface, but has let it to a tenant.
Link[s] omitted
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
Link[s] omitted
Regina -v- Mathias; The Attorney-General v. Mathias (1861) 2 F&F 570; 27 Law J Ch 761
1861

Byles J
Land
A profit a prendre in another man's soil cannot be claimed by custom, however ancient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. "The easement in this case is a public right of 'footway' and 'A prescription, to be good, must be both reasonable and certain. . and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad.'
Berridge -v- Ward; 1861
Norris -v- Chambres (1861) 29 Beav 246
1861

Sir John Romilly MR
Land
1 Cites
1 Citers
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."
Howard -v- Harris [1681] EngR 89; [1681] 23 ER 288 (A); (1681) 1 Vern 33
1861

Land Casemap

Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem.
[ Commonlii ]
Frewen -v- Philipps; CEC 1861
Tupper -v- Foulkes (1861) 9 CB (NS) 797; [1860] EngR 271 (A); (1860) 2 F & F 167
1861

Williams J
Land Casemap
1 Citers
Anything which shows that a party treats an instrument as his deed will suffice to make it his deed.
[ Commonlii ]
Ewart -v- Cochrane (1861) 4 Macq 117
1861

Lord Campbell LC
Land, Scotland Casemap
1 Citers
The parties disputed whether a servitude right to drain water by means of a drain from a tanyard into a garden could be implied when the tanyard and the garden came into separate ownership. Held: Lord Campbell LC said: "My Lords, I consider the law of Scotland as well as the law of England to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance.
When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant."
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.
[ Commonlii ]
Tupper And Others -v- Foulkes [1861] EngR 240; (1861) 9 CB NS 797; (1861) 142 ER 314
26 Jan 1861

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

Land, Contract Casemap

[ 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 Casemap
1 Citers
The court considered a claim for land by adverse possession against the owner on paper. Erle CJ said: "It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it."
Link[s] omitted
Chamberlain -v- West End of London Railway Co (1862) 2 B&S 617 (Ex Ch)
1862
CExC
Erle CJ
Land, Damages
1 Citers
The court had found that, after railway works cut off highway access, and, notwithstanding the provision of a deviation road, the value of the claimant's properties as shops had been "greatly diminished" by the reduction in the number of people passing them. Held: The court accepted, on the basis of the umpire's finding, that the claimants' houses had been depreciated in value "because the highway was stopped up, and the easy access which before existed was taken away".
Curling -v- Austin [1862] EngR 299; (1862) 2 Dr & Sm 129; (1862) 62 ER 570
18 Jan 1862

Contract, Land
Link[s] omitted
Cordingley -v- Cheesebrough [1862] EngR 426; (1862) 3 Giff 496; (1862) 66 ER 504
11 Feb 1862

Land, Contract
A lot sold by auction, described in the particulars of sale as a mansion-house and pleasure-grounds containing an area of 7683 square feet or thereabouts, contained in fact but 4350 square feet ; but one of the conditions being "that the admeasurements are presumed to be correct, but if any error be discovered therein no allowance shall be made or required either way." On a bill by the purchaser seeking specific performance with compensation the Court decreed specific performance without compensation, and ordered the Plaintiff to pay the costs of the suit.
[ 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
Lechmere -v- Clamp [1862] EngR 1177; (1862) 31 Beav 578; (1862) A)
17 Dec 1862

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

Sir John Romilly MR
Land
1 Citers
"... if a man enter into a covenant to do a particular thing, however absurd, the covenantee is entitled to have the covenant performed; ..."
Isenberg -v- East India House Estate Co Ltd (1863) 3 De G J & S 263
1863

Lord Westbury LC
Land, Damages Casemap
1 Citers
The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff's light and exercised instead the Court of Chancery's recently-acquired jurisdiction under the 1858 Act to order payment of damages: ". . . I hold it . . . to be the duty of the court in such a case as the present not, by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained."
Lord Cairns's Act 1858
Mounsey -v- Ismay (1863) 1 H & C 729
1863

Martin B
Land
1 Citers
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?"
Eastwood -v- Lever [1863] EngR 23; (1863) 4 De G J & S 114; (1863) 46 ER 859
1863

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

Land Casemap

Link[s] omitted
Malcomson -v- O'Dea (1863) 10 HLC 592
1863

Land
1 Citers
In considering a claim to have acquired a right by prescription it is relevant to investigate acts of ownership asserted in relation to the right which is claimed as well as acts of enjoyment or user of the right.
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.
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; 06-Jul-1863
Jane Robbins, Administratrix of Edwin James Robbins, Deceased -v- Jones; 16-Nov-1863
Sowerby -v- Wadsworth [1863] EngR 1008; (1863) 2 H & C 701; (1863) 159 ER 290
24 Nov 1863

Land
Link[s] omitted
Delacherois -v- Delacherois (1864) 11 HL Cas 62
1864
HL
Land Casemap

St Leonard's Shoreditch Vestry -v- Hughes; 1864
Middleton -v- Magnay; 1864
Rose -v- Watson; HL 07-Mar-1864
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?
Link[s] omitted
Beeston -v- Marriott [1864] EngR 631; (1864) 4 Giff 436; (1864) 66 ER 778
2 Jul 1864

Land
Rails and other chattels which by the terms of the contract when placed on the land became the absolute property of the company, the contractor to have no property therein, except the right of using them on the land for the purpose of the works, except on completion of the line, as a condition precedent, the plant was to be given to the contractor as part consideration, or, if used by the company, to be paid for : Held, not liable to be taken in execution for the company's debts.
Link[s] omitted
Eddison And Others, The Commissioners Of The Nottingham Inclosure, -v- The Rev Joshua William Brookes, Vicar Of St Mary, Notthingham [1864] EngR 720; (1864) 17 CB NS 606; (1864) 141 ER 243
9 Nov 1864

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

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

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

Land

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
Tapling -v- Jones; 1865
Regina -v- Heath (1865) 6 B & S 578
1865
QB
Crompton J, Cockburn CJ
Land Casemap

The highways board had sought and obtained an order against a householder who had built an extension part way over the highway. He had been orderd to pay costs but the taxed costs left a shortfall. The board now sought the difference from the defendant, who objected that these costs did not arise from an attempt to repair the highway. The Board argued that the sum represented only the cost of a repair, and were recoverable as 'other expenses in relation to such highways'. The parish replied that the Acts made distinctions between repair of highways and removal of obstructions. Held: Disussing the sections of the 1835 Act at issue, Crompton J said that the sections are cumulative. When counsel attempted to distinguish between the costs of removing an obstruction and the costs of litigation, he was answered by Cockburn CJ: 'If the surveyor is entitled to charge the expense of removing a nuisance by manual or mechanical labour, why is he not entitled to charge the expense of doing it by legal proceediings adding, 'Litigation leads to the same end' and 'If this had been the case of a prosecution by the surveyor under the former Act for removing an obstruction on a highway I should have been disposed to hold that he had power to include the expenses of it in a highway rate; for by sect. 27 he was directed to make a rate in order to raise money for carrying the several purposes of that Act into execution. The main purpose of the Act was to repair the highways and keep them in a proper condition; but the existence of an obstruction on a highway amounting to a nuisance is inconsistent with that condition. And therefore, according to a wise and liberal construction of the Act the expenses of such a prosecution might have been fairly and legitimately included in the highway rate.' The expenses claim fell within the wider provisions of s20.
Highways Act 1835 6 27 - Highways Act 1862 20
Shuttleworth -v- Le Fleming (1865) 19 CBNS 687
1865

Land Casemap
1 Citers
The provisions of the Prescription Act 1832 do not apply to profits à prendre in gross.
Prescription Act 1832
Galloway -v- The Corporation Of London [1865] EngR 241 (B); (1865) 34 Beav 203
13 Feb 1865

Land, Constitutional Casemap

1 Citers
In July 1862 the Corporation of London obtained Parliamentary powers for taking the Plaintiffs land for public purposes. But, prior thereto (June 1862) the Corporation had contracted to sell these lands to another company, not then empowered to purchase them, The Court held that the Corporation had so fettered their judgment and discretion, by contracting to sell that which they had no power to purchase, and that, to a company not then authorized to buy them that the Plaintiff was entitled to an injunction to restrain the Corporation from taking more of his land than they bona fide required. After this, another Act passed in 1864, which, after referring to the contract of 1862, provided that that Act should not prejudice the right of the conipany under that agreement, but that the covenants thereof shou!d be as applicable to the said land, if purchased under the powers of this Act, as they would have been, if they had been purchased under the Act of 1863. Held, by the Master of the Rolls, that the last Act removed the objection to the agreement, and amounted to a declaratory enactment as to its validity, and that, consequently, the Plaintiff was not entitled to an injunction. The decision was affirmed, Lord Justice Turner dissentiente.
Link[s] omitted
Galloway -v- The Mayor, Commonalty And Citizens Of The City Of London [1865] EngR 415; (1865) 2 De G J & S 639; (1865) 46 ER 523
2 May 1865

Land, Constitutional Casemap

1 Citers
The Corporation of London in 1862 obtained an Act authorising them to make a new street and buy land for that purpose, with certain powers of reselling land not required for the street. About the same time a railway company obtained an Act authorizing the company and the Corporation to enter into agreements for the sale of land by the corporation to the company. Shortly before either Act had passed the corporation entered into an agreement with the company to take under the powers of their Act and sell to the company certain lands, including land of the plaintiff. The Plaintiff filed his bill to restrain the corporation from taking his land on the ground of this agreement and obtained an injunction. After this another Act was passed authorising the corporation to take lands for another undertarking ; and by this Act, after reciting that certain lands might be taken under it which were liable to be taken by the corporation under their fomer Act, and with respect to which an agreement was "under the authority" of that Act and the Railway Act entered into between the Corporation and the company, and that it was expedient "that the rights of the company under such agreement, should be preserved," it was enacted that nothing in the present Act should prejudice "the rights of that company under the said agreement," but that all the provisions of the agreement should be as applicable to the lands if purchased under the powers of the present Act as they would have been if they had been purchased under the former Act. The Plaintiff land was liable to be taken under this latter Act. Held. by the Lord Justice Knight Bruce, affirming the decision of the Master of the Rolls, the Lord Justice Turner dissenting, that the Legislature had by the latter Act recognized the validity of the agreement, and that the agreement was therefore no obstacle to the corporation taking the land of the Plaintiff under the latter Act.
Link[s] omitted
Gaved -v- Martyn [1865] EngR 533; (1865) 19 CB NS 732; (1865) 141 ER 974
3 Jun 1865
CCP
Byles J, Erle CJ, Willes J
Land Casemap
1 Citers
The parties disputed whether a right had been acquired to use a watercourse. The plaintiff's predecessor (Hooper) had been given permission from the defendant's predecessor (Geach) to cut a "leat" or stream to carry water from a natural brook on Geach's land to his land. In 1835, the plaintiff acquired a tenancy to the land and enjoyed the water from this stream until 1855, when the defendant sought to block the flow of water. At trial the judge (Channell B) left for the jury the question whether the plaintiff enjoyed the stream as of right, and their verdict was that he did not. The plaintiff sought to set aside that verdict. Held: When there has been a personal licence granted to the dominant owner, it may be possible to infer the grant of a similar licence to his successor. This was a question of fact for the jury.
Erle CJ stated: "The question is whether that enjoyment in fact for more than twenty years established an indefeasible right in the plaintiff, or left it as a question for the jury whether the plaintiff was not limited to the same right as Hooper had, viz. by virtue of his agreement with Geach." and "I think there was evidence from which the jury were warranted in finding that there had not been any enjoyment for twenty years previously to the commencement of the action, by the plaintiff or those through whom he claimed, as of right; but that the enjoyment was precarious, and procured by the permission of the owner of the soil. I do not lay it down as a matter of law that the plaintiff is affected by the licence which Hooper had; but only that the learned judge was bound to leave the question to the jury, and that they were warranted in acting upon it as they have done."
Willes J said: "If the learned Baron had told the jury that the effect of the agreement between Hooper and Geach was to stamp the character of precariousness on the enjoyment by Gaved, Hooper's successor, his direction might have been objectionable." However, the judge had left the matter open as a question for the jury on the evidence. The question was therefore: "whether there was any evidence from which the jury might properly find that the enjoyment of the leat in question was precarious. A plaintiff who is seeking to establish an enjoyment for the statutable period of twenty years, must, - with this exception, that he need not satisfy the jury of the fact of there having been a lost grant, or that the enjoyment commenced before the time of legal memory, - make out that his enjoyment has been under a claim of right. And I apprehend it would clearly be competent, in answer to such a claim, to shew that the enjoyment originated under an agreement with the tenant or owner of the servient tenement, and therefore was precarious and not as of right: and, upon proof of that fact, it would be for the jury to say whether the tenant of the dominant tenement had not continued the enjoyment in pursuance of a similar agreement, and whether it was not precarious."
Byles J said:"The question left, as far as the foul leat is concerned, was, 'Has the plaintiff or those through whom he claims had an uninterrupted enjoyment of the leat as of right for more than twenty years?' The answer is in the negative. It seems to me that the question was rightly put to the jury, and that there was abundant evidence to warrant their answer. The rule was also moved on the ground that the verdict was against the evidence. I think that, if the plaintiff had notice of the circumstance under which Hooper's enjoyment of the leat began, his subsequent enjoyment was not under a claim of right."
Prescription Act 1832
[ Commonlii ]
Galloway -v- The Mayor, Commonalty And Citizens of London [1865] EngR 639; (1865) 3 De G J & S 59; (1865) 46 ER 560
29 Jun 1865
HL
Land, Constitutional
1 Cites
1 Citers
A bill filed by the Plaintiff to restrain the Defendant from taking certain property of his under their statutory powers had been dismissed and the order of dismissal enrolled. The Plaintiff presented a petition of appeal to the House of Lords, and now applied to the Court for an interim order to protec the property till the appeal could be heard. Held, that as the bill had been simply dismissed without any reservation, the Court had no jurisdiction to make the order asked.
[ Commonlii ]
Dent -v- Dent [1865] EngR 773; (1865) 35 Beav 126; (1865) A)
12 Dec 1865

Land
Link[s] omitted
Thomas Walker -v- Auber George Jones [1865] EngR 790; (1865) 3 Moo PC NS 397; (1865) 16 ER 151
19 Dec 1865
PC
Land
Link[s] omitted
Galloway -v- Mayor and Commonalty of London (1866) LR 1 HL 34
1866
HL
Lord Cranworth LC
Land, Constitutional
1 Cites
1 Citers
Lord Cranworth LC said: "The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers."
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."
D'Eyncourt -v- Gregory (No 1) (1866) LR 3 Eq 382
1866

Lord Romilly MR
Wills and Probate, Land
1 Citers
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.
Carr -v- Lambert (1866) 1 Ex 168
1866

Land Casemap
1 Citers
Levancy and couchancy is a "measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits".
Indermaur -v- Dames (1866) LR 1 CP 27
1866

Willes J
Land Casemap
1 Citers
The court described as an occupier's duty towards his invitees: "And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact." and "We consider it sound law that such visitor, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows, or ought to know, and which the other party does not know."
Bickett -v- Morris (1866) LR 1 SC & Div 47
1866

Land

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Land
[ Commonlii ]
Ricket -v- Metropolitan Railway Co; HL 1867
Morton -v- Woods (1867) LR 4 QB 292
1867
QBD
Kelly CB
Land
1 Citers
The owner of a factory, having already conveyed his legal estate by virtue of a first charge, purported to grant a second mortgage to a bank. As additional security, he "attorned tenant" to the bank. He acknowledged a relationship of landlord and tenant between them. This was intended to give the mortgagee the rights of a landlord. When the borrower failed to pay, the bank levied a distress. The owner of the goods sued for damages, claiming that the bank had no right to levy distress because that ancient common law remedy was available only to the holder of a legal estate. A recital to the mortgage made it plain that the bank was a second mortgagee and therefore had no legal estate. Held: The mortgagor was estopped from denying the bank's legal title. Kelly CB: "it is the creation of the tenancy, or the estoppel, which arises from the creation of the relation of landlord and tenant by agreement between the parties, that makes the actual legal estate unnecessary to support the distress."
Williams -v- James [1867] LR 2 CP 577
1867

Bovill CJ, Willes J
Land Casemap
1 Citers
A right of way obtained by prescription for the purpose of carting hay to field "cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen".
Baxendale -v- McMurray [1867] 2 Ch App 790; [1867] 31 JP 821
1867

Land, Environment
The plaintiff's land was next to the river Chess. The defendant had for more than twenty years discharged refuse from his paper factory into the Chess upstream of the plaintiff. Latterly a change in the manufacture had led to a different and greater discharge of refuse. The plaintiff sought an order restraining the discharge. Held: The defendant had acquired an easement. That right was to discharge such refuse as was generally produced by the reasonable and proper course of paper manufacturing using whatever materials were proper for the purpose. The claim was dismissed.
Boyd -v- Shorrock (1867) LR 5 Eq 72
1867

Sir W. Page Wood V.-C
Land Casemap
1 Cites
1 Citers
Bryant -v- Foot (1867) LR 2 QB 161
1867

Cockburn CJ
Land, Limitation
1 Citers
It is to be presumed from a period of 20 years' user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in grant, it should be capable of being created by an express grant made by deed. Cockburn CJ said that the fiction of lost modern grant, animus dedicandi and the like are "a bad and mischievous law, and one which is discreditable to us as a civilized and enlightened people."
Morland -v- Cook (1868) LR 6 Eq 252
1868
CA
Lord Romilly MR
Land Casemap

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

Land Casemap
1 Citers
Land Clauses (Consolidation) Act 1845
Rangeley -v- Midland Railway Company; CA 1868
Gayford -v- Moffatt; 1868
Blackmore -v- London and South Western Railway Company (1868) 38 LJ Ch 19
1868

Land, Contract Casemap
1 Citers
Nash -v- Coombs (1868) LR 6 Eq 5
1868

Sir William Page Wood VC
Land Casemap
1 Citers
The parties disputed interests in a sum of £3053 paid by the Midland Railway Company for the acquisition in 1866 of common land. The right of common was vested in resident freemen as a result of an award of the Inclosure Commissioners in 1797 made under an Inclosure Act of 1795. The resident freemen sought division of the fund between them under section 104 of the 1845 Act and sections 15 to 17 of the 1854 Act. Held: Freeman had no fee simple right (that is, they did not own the land) and therefore the money should be held in trust for the freemen resident from time to time. After referring to the award in 1797, the court said: "What I should suppose would be the right of the parties under that would be, that whoever these trustees might be, whether a corporation or not, they became trustees for the resident freemen for all time, and not for those only who at the time when the Act passed (1795) had become and were resident freemen. It would be just as reasonable to say that at that moment all those resident freemen would have had a right to file a bill to have the land divided amongst them, as to say that the present resident freemen have the right contended for. Their rights are simply shifting rights. A body is attempted to be constituted – either a corporation or a body of persons – who were named trustees, and as trustees their trust was for the resident freemen of the borough for all time....It is a trust given to them to hold in lieu of the rights of common, so that all they had to do was to regulate the mode in which it should be enjoyed. The Legislature has simply indicated that this land is available for any purpose to which the trustees and freemen like to put it. Suppose it turned out very valuable for building purposes, possibly they might have had to have recourse to this Court before applying it to those purposes, regard being had to the particular nature of the trust, but I apprehend that they could use the land in any way most agreeable to the resident freemen.
These existing resident freemen say they are the only persons interested in the land, and that the money which has been paid for the fee simple, ought to be divided between them....A person who has only got an interest every year that he resides has not got a free simple interest. Take the case of the owner of an enclosed farm who has a commonable right attached to the occupation of the property. If he is only tenant for life the committee who are "to pay the amount to the persons interested according to their respective interests", ought not to pay him the whole value of the land. It must be invested, so that tenant for life and tenant in remainder shall get their proper shares.....[T]he Legislature thought, rightly or wrongly, that as to commonable interests, when they were found to be trifling, they might be apportioned to the holders of them, whoever they might be, and however small or however precarious the existing interest might be. But there might be a case where the land would be valuable for building purposes when this right of feeding cattle was disposed of. In such a case the interest might be considerable in the different persons who had rights, and I cannot hold that it was intended to hand over the whole fee simple interest in the property to persons having only this temporary and fluctuating interest....What I propose, therefore, to do is to declare that the money paid into Court ought to be re-invested in land, to be held on the same trusts as those upon which the lands taken by the railway company were held, viz., in trust for the freemen of the borough of Bedford from time to time residing within the limits of the ancient borough, and in the meantime the same ought to be invested, and the dividends paid (subject to payment of costs) to the trustees, and divided by them amongst such resident freemen at the same time or times as such freemen have been accustomed in each year to enter upon the enjoyment of their rights of common."
Rylands -v- Fletcher; HL 1868
Ferrar -v- City Sewers Commissioners (1868-69) LR4 Ex 227
1868

Land
1 Citers
(Year?) A special Act incorporated the provisions of the 1845 Act other than those related to "the taking of land otherwise than by agreement". Held: Section 68 was not incorporated, because it was one of a series of clauses headed "with respect to the taking of land otherwise than by agreement".
Land Clauses Consolidation Act 1845 68
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 ]
Lord St Leonards -v- Ashburner (1869) 21 LT 595
1869

Bramwell B
Land Casemap
1 Citers
(Sussex Spring Assizes) Lord St Leonards had bought some land and planted trees on what he thought was his side of the boundary. Some 20 years later Mr Ashburner bought the adjoining land and claimed that the trees were on his side of the boundary. The plan was too small to provide a clear answer. Bramwell B directed the jury "Title deeds come to little without evidence of actual enjoyment, for otherwise anyone might pretend to give away the lands of anybody else. Parchment, of itself, comes to little; the real question is as to actual enjoyment."
Engell -v- Fitch (1869) LR 4 QB 659; 10 B&S 738; 38 LJQB 304; 17 WR 894 ex Ch
1869
ChD
Land, Damages, Contract Casemap

The lease of land was sold at auction. The conditions of sale provided for possessionto be given on completion. The vendors, mortgagees with the right of sale, were unwilling to incur the expense of recovering possession. Held: The vendor was under a duty to do everything possible to make good title. The ordinary rule which would limit the damages on the purchase of real property did not apply. The purchaser could recover, the deposit expenses of investigating title, the loss of profit on a resale and cost of conveyance to a sub-vendee. The measure was the difference between the price in the contract and the value of land at the time of the breach.
Corbett -v- Hill (1870) LR 9 Eq 671; (1870) 39 CJCh 547; (1870) 2 LT 263; (1870) 7 Digest (Repl) 267
1870

Sir William James VC
Land Casemap

The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns 'everything up to the sky'.
Watts -v- Kelson; CA 1870
London and South Western Railway Company -v- Blackmore; HL 1870
Stebbing -v- Metropolitan Board of Works (1870) LR 6 QB 37
1870

Cockburn CJ
Land, Damages
1 Citers
In compensation for compulsory purchase (in this case, of graveyards), 'value' means value to the owner, not value to the purchaser. The graveyards were therefore of little or no value to the rector. Cockburn CJ said: 'When Parliament gives compulsory powers, and provides that compensation shall be made to the person from whom property is taken, for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it.'
Heasman -v- Pearce (1871) 7 Ch App 275
1870

Land
The rule against perpetuties will not invalidate a limitation after an entailed interest.
Walters -v- Webb (1870) LR 5 Ch App 531
1870

Land
1 Citers
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.
Pattabhiramier -v- Vencatarow Naicken And Narasimha Naicken [1870] EngR 56; (1870) 13 Moo Ind App 560; (1870) 20 ER 660
10 Dec 1870

Commonwealth, Land
The doctrine of the English law with respect to the equity of redemption, after default of payment of the mortgage money, is unknown to the ancient law of India prevailing in Madras, which, in the absence of any Regulation, or Act of the Legislature, altering such law, determines the interest of a Mortgagor, in favour of the Mortgagee under a conditional sale made absolute by failure of the Mortgagee to redeem at the time specified in the Deed.
Link[s] omitted
Ranee Surut Soondree Debea -v- Baboo Prosonno Coomar Tagore, And After His Death, Romanath Tagore And Others [1870] EngR 59; (1870) 13 Moo Ind App 607; (1870) 20 ER 677
14 Dec 1870
PC
Commonwealth, Land
Link[s] omitted
Marshall -v- Ulleswater Steam Navigation Co (1871) LR 7 QB 166
1871

Land
1 Citers
A public right of navigation may, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake
Jegon -v- Vivian (1871) LR 6 Ch App 742
1871

Damages, Land Casemap
1 Citers
Unauthorised mining of land - measure of damages. Held: Although the value of his land may not have been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a wayleave. The financial position of the plaintiff should not be different, according to the accident of whether it intercepted the minerals, or discovered their loss only after they had been sold by the defendant.
Richardson -v- Younger (1871) 6 Ch App 478
1871

Land, Limitation Casemap
1 Citers
When there are two joint claimants to possessory title, and it is said that they had acknowledged the paper owner's title, the acknowledgment must be given by or on behalf of both of them.
In re River Steamer Company (1871) LR 6 Ch App 822
1871

Mellish LJ
Land, Limitation
1 Citers
A without prejudice letter was written by a person claiming adverse possession of land to the paper owner offering to purchase the land. The paper owner said this was an acknowledgment of his title. Held: The letter was written in the context of a dispute which had advanced to the point of an arbitrator having been appointed, and "a letter which is stated to be without prejudice cannot be relied on to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract." (Mellish LJ)
Radanath Doss And Others -v- Gisborne And Co; PC 19-Jan-1871
William Farquharson,-Appellant; Dwarkanath Singh And The Government Of India,-Respondents [1871] EngR 26; (1871) 14 Moo Ind App 259; (1871) 20 ER 784
1 Jul 1871
PC
Land, Commonwealth
ER Suit by an Auction Purchaser of a Putnee, sold under Ben. Reg. VIII. of 1819, for possession of 3000 beegahs of land within his Putnee, and to enhance the rent against a Ghatwal, and the Government, charging encroachment against the Ghatwal beyond the quantity of 100 beegahs held ghatwally, according to a return made by a former Ghatwal. The only evidence of encroachment consisted of the Isumnovisee returns made by the Thanadars to the Magistrates in the years 1811, 1813, 1813, from which it appeared, that the quantity of land the then Ghatwal held ghatwally was 100 beegahs. Held, that the evidence of the Defendants of long-interrupted possession of the 3000 beegahs, presumably before the Decennial Settlement, outweighed the effect of the Isumnovisee returns, which were, though prima facie, not conclusire evidence of the quantity of the land held ghatwally; and further that, though such return was not objected to by the then Ghatwal, it did not affect the right of the Ghatwal in possession.
Link[s] omitted
Brojonath Koondoo Chowdry and Others -v- Khelut Chunder Ghose [1871] EngR 28; (1871) 14 Moo Ind App 144; (1871) 20 ER 740
4 Jul 1871
PC
Land
A mortgage made in 1845 in the English form, contained a proviso for redemption, and for the Mortgagor continuing in possession until default in payment, in which event the mortgage Deed gave a right of entry to the Mortgagee. Default was made in payment of the mortgage money by the Mortgagor, but no steps were taken by the Mortgagee to obtain possession. In 1849 the Mortgagor sold part of the mortgaged estate, and the Purchaser entered into possession and registered his title. The Assignee of the Mortgagee afterwards brought a suit for foreclosure to which the Purchaser was not made a party, and in the year 1862 obtained a decree for foreclosure. In a suit brought by the Assignee of the Mortgagee against the Purchaser for possession of that part of the estate so purchased by him from the Mortgagor, held, by the Judicial Committee, affirming the judgment of the High Court at Calcutta, that as the Mortgagor after default, and the Purchaser under him, had been in possession for more than twelve years before the suit for possession was instituted, the Limitation of suits Act, No. XIV. of 1859, sect. I, cl. 12, was a bar to the suit.
Link[s] omitted
Hurryhur Mookhopadhya -v- Madub Chunder Baboo And Another; Nobokishto Mookerjee -v- Koylaschundro Buttacharjee And Others [1871] EngR 30; (1871) 14 Moo Ind App 152; (1871) 20 ER 743
5 Jul 1871

Land
ER Review of the Ben. Regs. relating to Latkhiraj tenures, within the Provinces included by the Perpetual Settlement. Construction of Act, No. X, of 1859, sect. 28, in respect to the operation of the law of limitation in suits brought under Ben. Regs. XIS. of 1793, sect. 10, and 11. of 1519, sect. 30, for resumption and assessment of lands as mal, or rent-paying lands, held as Lakhiraj.
[ 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.
Link[s] omitted
Rhodes -v- Ainsworth [1871] EngR 43; (1817) 1 B & A 87; (1871) B)
7 Nov 1871

Land
On an issue to try whether the inhabitants of A, were immemorially bound to repair a chapel; the owner of the inheritance having leased his property for years at a rent certain, without any deduction, and residing himself in a different county; is not a competent witness to negative the liability, although he was not upon the rate, and the rate was in fact paid by his tenant; for such owner has an interest in discharging the inheritance from a permanent burden.
Link[s] omitted
Juggut Mohini Dossee, And Others,-Appellants; Mussumat Sokheemoney Dossee, And Others,-Respondents [1871] EngR 49; (1871) 14 Moo Ind App 289; (1871) 20 ER 795
23 Nov 1871

Trusts, Land
Suit for possessiun of lands dedicated to the religious service of a family Idol, and for the appointment as Sabaet, or Manager of the religious endowment, under a Deed of dedication; against a party in cessession, claiming title as a bona fide Purchaser for value, without notice of the alleged trust, whose title, however, was derivable through the Deed of dedication; held wrongly dismissed by the Court below, the Purchaser proceeded against having had sufficient notice to throw upon him the onus of proving exemption from the religious trusts in the lands, which he had failed to do.
Link[s] omitted
Holland -v- Hodgson (1872) LR 7 CP 328
1872

Blackburn J
Land Casemap
1 Cites
1 Citers
(Court of Exchequer Chamber) Blackburn J set out what constituted a fixture: “There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel; see Wiltshire -v- Cottrell (1 E&B 674; 22LJ (QB) 177) and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D'Eyncourt -v- Gregory. (Law Rep 3 Eq 382) Thus blocks of stone placed on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. This last proposition seems to be in effect the basis of the judgment of the Court of Common Pleas delivered by Maule J., in Wilde -v- Waters. (16 CB 637; 24 LJ (CP) 193) This, however, only removes the difficulty one step, for it still remains a question in each case whether the circumstances are sufficient to satisfy the onus. In some cases, such as the anchor of the ship or the ordinary instance given of a carpet nailed to the floor of a room, the nature of the thing sufficiently shews it is only fastened as a chattel temporarily, and not affixed permanently as part of the land.”
Shaw -v- Foster; HL 1872
Forbes -v- Ecclesiastical Commissioners for England (1872) LR 15 Eq 51
1872

Land Casemap
1 Citers
The purpose of inclosure under the Act was after all to extinguish manorial rights of common over the land inclosed, so that it could be at the free disposal of the owner, but the Act did not extinguish customary rights.
Inclosure Act 1845
Hyder Hossain -v-Mahomed Hossain And Ali Hossain [1872] EngR 4; (1871, 1872) 14 Moo Ind App 401; (1872) 20 ER 836
14 Jan 1872

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

Land, Commonwealth
Link[s] omitted
Anund Loll Doss -v- Jullodhur Shaw And Another [1872] EngR 12; (1872) 14 Moo Ind App 543; (1872) 20 ER 888
31 Jan 1872
PC
Land
[ 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
Link[s] omitted
Sham Chand Bysack -v- Kishen Prosaud Surma Alias Rajah Baboo [1872] EngR 23; (1872) 14 Moo Ind App 595; (1872) 20 ER 908
26 Mar 1872
PC
Land, Limitation, Commonwealth
Two riparian proprietors of land on opposite sides of a river, respectively claimed churs which had been diluviated for a great many years, and afterwards re-formed by a change of the course of the River, as belonging to their respective estates. After a police inquiry, the Magistrate, in 1836, put A in possession. B, the other riparian proprietor took no steps till the year 1847 to obtain posession of the churs. Held. (1), that the long delay in bringing a suit raised a presuption against B’s title, and (2), that he had failed to identify the churs as having been formerly part of his lands or an accretion thereto.
Link[s] omitted
Des Barres & Another -v- Shey (1873) 29 LT (NS) 592
1873

Land, Limitation Casemap
1 Citers
The defendants resisted a claim for possession asserting adverse possession from 1815 or 1832. This included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors. Held: The defendants were taken to have acquired legal possession by way of possession; the licensee's or lessee's occupation was properly counted by the squatter as acts of possession as against the paper owner.
Harvey -v- Walters (1873) LR 8CP 162
1873
CCP
Grove J
Land Casemap

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

Grove J
Land
1 Citers
(Court of Common Pleas) A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. "We are of opinion that the question here … is whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement … [T]here must be an additional or different servitude and the change must be material either in the nature or in the quantum of the servitude imposed."
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.
Pearce -v- Watts (1873) LR 20 Eq 492
1873

Sir G Jessel MR
Land, Contract
1 Citers
An agreement for the sale included the reservation: "[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town." Specific performance was sought by the purchaser, and the vendor objected that it was void for uncertainty. In argument the purchaser disputed this, saying that the court could determine what land was necessary for the railway. Held: The claim was refused. Sir G Jessel MR said: "The present contract is one which cannot be carried out by conveyance; and that being so, I do not see how the Court can alter it and make a new contract which can be carried out by conveyance. … If the contract were executed in this form, it is obvious, according to the present law, the whole land would pass to the purchaser, the reservation being void for uncertainty. But this is not the intention of the parties, for the vendor intended to reserve a substantial part of the estate. The contract does not show what it is. I neither know what is the amount of land necessary for a railway, nor what line the railway is to take, nor anything about it, and, therefore, I cannot enforce specific performance of the contract."
Johnson -v- Barnes (1873) LR 8 CP 527
1873

Land Casemap

A corporation may prescribe to have an exclusive right of pasture.
Bain -v- Fothergill; HL 1874
Metropolitan Board of Works -v- McCarthy [1874] LR 7 HL 243
1874
HL
Lord Cairns L.C
Land, Damages Casemap
1 Citers
Compensation was awarded to the owner of a warehouse near Blackfriars because the construction of the Victoria Embankment cut off his access across the public highway to a dock on the river. Lord Cairns LC quoted Thesiger QC as saying: "Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which right gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation, if, by reason of such interference, the property, as a property, is lessened in value." and "The word 'physical' is here used in order to distinguish the case from cases of that class where the interference is not of a physical, but rather of a mental, nature, or of an inferential kind, such as those of a road rendered less agreeable or convenient, or a view interfered with, or the profits of a trade, by the creation of a new highway or street, diminished in the old one. And in like manner the words 'a right, public or private, which the owner of property is entitled to make use of,' apply to this case and distinguish it from such cases as Hammersmith Railway Co. v. Brand. There no right, public or private, was interfered with, and the claim for compensation was made in respect of the injury to the enjoyment of the property."
Land Clauses Consolidation Act 1845 68
Clifford -v- Hoare (1874) LR 9 CP 362
1874

Land
1 Citers
National Society -v- School Board of London; 1874
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
Ellis -v- Loftus Iron Co; 1874
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."
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.
Bagshaw -v- Buxton Local Board of Health (1875-76) LR 1 Ch D 220
1875
CA
Jessel LJ MR
Land Casemap
1 Citers
House owners requested an injunction to stop the surveyors of highways removing a low wall and railing enclosing a piece of ground in front of it. The surveyors alleged that the ground was part of a highway and that the wall and railing were an obstruction to the safe and convenient passage along it. The road opposite the house, exclusive of the piece of ground, was about 36 feet wide. The owners said that given that, the wall did not obstruct "the safe and convenient passage along [the] street" referring to the type of obstruction against which the surveyors of highways could act under the 1847 Act. Held: Jessel MR said that "along the street" meant along the whole of the street: "[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held"
Towns Improvement Clauses Act 1847
Wood -v- Saunders (1875) 10 Ch App 582
1875

Sir Charles Hall V-C
Land Casemap


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

A prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. The dominant owner could not use the way for carting materials for the purpose of effecting a residential development on his land. (James LJ) "We have then to consider whether the character of the [dominant] property can be so changed as substantially to increase or alter the burden upon the servient tenement. I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement." and "[I]f a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built." (Baggallay JA) [Y]ou must neither increase the burden on the servient tenement nor substantially change the nature of the user." (Mellish LJ), "Assuming that it is made out that [the dominant owner] and his tenants have used this way, not exclusively for agricultural purposes, but for all purposes for which they wanted it, in the state in which the land was at the time of the supposed grant - at the time when the way first began - and assuming that there has been no material alteration in the premises since that time, does that entitle [the dominant owner] to alter substantially and increase the burden on the servient tenement by building any number of houses he pleases on this property and giving to the persons who inhabit those houses the right to use the way for all purposes connected with the houses?"
Cooke -v- Chilcott (1876) 3 ChD 694
1876

Malins VC
Land Casemap

The purchaser of land with a well covenanted to erect a pump and reservoir and to supply water from the well to all houses built on the vendor's land. Enforcement was sought against a purchaser. Held: He had purchased with notice of the covenant, it rand with the land and he was bound by it. Malins VC said: "I think that when a contract is entered into for the benefit of contiguous landowners, and one is bound by it and the other entitled to the benefit of it, the covenant binds him for ever, and also runs with the land. But it is equally clear that he is bound by taking the land with notice of the covenant."
Jepson -v- Gribble (1876) 1 TC 78
1876

Kelly CB
Land Casemap
1 Citers
A house occupied by the medical superintendent of an asylum fronted on to a public road and had access from the back to the asylum itself, although it was very much closer than to the asylum than are the lecturers' cottages to any other college buildings. The issue was whether the house was part of the asylum: 'it is within the walls; it is part of the curtilage, in the language of the old law, and it is for the residence of a person whose attendance may be required at any moment, and who ought therefore to be at hand, and for that purpose it is put within the grounds; it is a part of the premises themselves, and with a ready, rapid, and almost instantaneous communication with the building which contains the lunatics.'"
Hammerton -v- Honey (1876) 24 WR 603
1876
CA
Sir George Jessel MR
Land

A claim was made for common rights over Stockwell Green. Held: The claim failed. The evidence did not show that use of the green was confined to inhabitants of Stockwell. Sir George Jessel MR said: "If you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom." and "Again what must be the usage proved? It must not only be consistent with the custom alleged, but if I may use the expression, not too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom. I know that there have been some observations made in cases which come to this – that the general legal usage is not destroyed because an occasional illegal usage is shown: but that does not apply where you have evidence of a totally different state of things which does not support a local custom at all. That, I think, is the general law of this case".
Sutherland -v- Thomson (1876) 3 R 485
1876

Lord Gifford
Land, Scotland

Once a servitude right and its scope are established, it "must be rendered as little burdensome to the servient tenement as is consistent with its fair exercise."
Bain -v- Brand (1876) 1 App Cas 762
1876
HL
Lord Cairns LC
Land, Scotland
1 Citers
The law as to fixtures is the same in Scotland as in England. There were two general rules under the comprehensive term of fixtures: "One of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of the freehold or inheritance. The other is quite a different and separate rule;--whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or for years, without the commission of that which, in the law of England, is called waste, and which, according to the law of both England and Scotland, is undoubtedly an offence which can be restrained. Those, my Lords, are two rules, not one by way of exception to the other, but two rules standing consistently together. My Lords, an exception indeed, and a very important exception, has been made, not to the first of these rules, but to the second. To the first rule which I have stated to your Lordships there is, so far as I am aware, no exception whatever. That which is fixed to the inheritance becomes a part of the inheritance at the present day as much as it did in the earliest times. But to the second rule, namely, the irremovability of things fixed to the inheritance, there is undoubtedly ground for a very important exception. That exception has been established in favour of fixtures which have been attached to the inheritance for the purposes of trade, and perhaps in a minor degree for the purpose of agriculture. Under that exception a tenant who has fixed to the inheritance things for the purpose of trade has a certain power of severance and removal during the tenancy. . . "
Lyon -v- Fishmongers' Co (1876) 1 App Cas 662
1876

Land Casemap
1 Citers
Smith -v- Webster; CA 1876
Wilson -v- Waddell; HL 1876
Lysaght -v- Edwards; 1876
Egmont -v- Smith; CA 1877
Seddon -v- Smith; 1877
Attorney-General -v- Tomline (No 3) (1877) 5 Ch D 750
1877
ChD
Fry J
Land, Limitation, Constitutional Casemap
1 Citers
For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who then entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The Crown had entered the land upon the expiry of a licence granted to the Lieutenant-Governor of a nearby fort, Alexander Mair, for life if he so long continued governor, which he ceased to be in 1811. The Crown was in possession of the land for more than forty years and claimed possessory title, and te right to control extraction of coprolites. . Held: The claim succeeded. Colonel Tomline, as lord of the manor, had an absolute power of veto over the digging up of the coprolites, and "The value of that veto appears to me to be the value of the coprolites less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the coprolites less such a sum of money by way of profit as would induce a third person to undertake the enterprise. That I consider to be the proper measure of damage in this case."
Dalton -v- Henry Angus & Co (1877) 3 QBD 85
1877

Land

Orr Ewing -v- Colquhoun; HL 1877
Baylis -v- Tyssen-Amhurst [1877] 6 Ch 500
1877

Sir George Jessel MR
Land
1 Citers
In order to acquire by prescription a right of pasture appurtenant to land, there had to be some relation between the enjoyment of the right and the enjoyment of the land in question. The number of animals for the pasturing of which the right was claimed was not, however, a fixed and certain number nor a number limited by levancy and couchancy. It was said to be a number dependent on the value of the dominant land relative to the value of the other tenements in respect of which pasturage rights were being claimed "according to a scale fixed by the homage of the manor".
Dalton -v- Henry Angus & Co (1878) 4 QBD 162
1878
CA
Land Casemap

1 Citers
McLaren -v- City of Glasgow Union Railway Co (1878) 5 R 1042
1878

Lord Justice Clerk Moncreiff
Land, Scotland
1 Citers
The court considered the implication by necessity of an implied right of access for land on severance which would otherwise be landlocked.
Fairclough -v- Marshall (1878) 4 Ex D 37; [1878] 48 LJQB 146; [1878] 39 LT 389; [1878] 27 WR 145
1878
CA
Bramwell LJ
Land
1 Citers
The plaintiff owned land charged by a previous owner who had rented it subject to the defendant's predecessor subject to a covenant not to use it as an beerhouse. The defendant now used it as a beerhouse, and said that since the plaintiff had mortgaged his interest he had no right to enforce the covenant. Held. The plaintiff could enforce the covenant under the 1873 Act and under the general principles of equity, and did not have to join in his mortgagee.
Judicature Act 1873 25(5)
Bowman -v- Hyland (1878) 8 Ch D 588
1878

land, Contract Casemap
1 Citers
A vendor's right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract.
Chambers -v- Kingham (1878) 10 Ch D 743
1878

Fry J
Land
1 Citers
The court was asked whether a lease vested in an administrator in his own right merged in the reversion held by him as administrator. Held: "mergers are odious in equity and never allowed unless for special reason". There was no merger because the interests were held in different rights.
Cox -v- Schoolbred Times, 15 November 1878
15 Nov 1878
CA
Jessel MR
Land
1 Citers
Jessel MR rejected a claim to establish a local custom saying that the only two witnesses called for the plaintiff admitted that "people from the neighbouring places [apart from Pangbourne] had also been in the habit of playing upon and using Shooters'-hill".
Finch -v- Great Western Railway Company (1879) 5 Exch D 254
1879

Stephen J
Land
1 Citers
Wheeldon -v- Burrows; CA 1879
Lord Advocate -v- Lord Blantyre (1879) 4 App Cas 770
1879
HL
Lord Blackburn
Land, Scotland
1 Cites
1 Citers
The defender claimed ownership of land based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres. Held: Lord Blackburn said: "Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately."
In Re Banister; Broad -v- Munton (1879) 12 ChD 131
1879
CA
Fry J, Je ssel MR , LJ Cotton
Land, Contract
1 Citers
Property was sold from a deceased estate under an order of the Court.The purchaser found the title was defective. Held: A condition in a contract for the sale of land which purports to oust any right to object to the title or to raise requisitions cannot be relied on if it is misleading, or there has been less than full disclosure.
Fry J said: "It is also perfectly plain that, where the sale is under the direction of the Court, the Court will lean, if possible, to a more exact requirement of good faith and honesty on the part of the vendor; it will endeavour to insist upon that fair, straightforward, honest, open dealing which ought to characterise transactions between vendor and purchaser."
Jessel MR said: "in sales by the Court there should be at least as much good faith shewn towards the purchaser as, and perhaps a little more than, is required by ordinary vendors out of Court. The old Court of Chancery – and this Court is its successor – has always felt bound to see that purchasers are fairly and honestly dealt with in every respect; and if there is any difference – I do not say there is – the difference must surely be in favour of a purchaser who buys under the decree and order of the Chancery Division."
Cotton LJ said: "but I think in a case of this sort, where the sale is by the Court, the Court is bound to take more especial care, if possible, that there shall be nothing in the conditions, or in the representations therein contained, which by possibility can mislead a vendor, because the purchaser has a right to assume that the Court will take very good care that there shall be nothing that can in any way mislead him as to the title he is getting."
Renals -v- Cowlishaw (1878) 9 Ch D 125
1879

Land Casemap
1 Citers
The word "assigns" was used to denote the successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Attorney General -v- Biphosphated Guano Company (1879) 11 Ch D 327
1879
CA
Land
1 Citers
Land might be dedicated for a term of years only and not in perpetuity, although that had not happened in this case.
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.
Knight -v- Pursel [1879] 11 ChD 412
1879

Land Casemap

A wall could be a party wall in part and belong in another part to one of the joint owners separately.
M'Adam -v- M'Adam (1879) 6 R 1256
1879
IHCS
Lord President Inglis
Scotland, Land Casemap
1 Citers
The house referred to "the owner of a personal right to land" to describe the position of an uninfeft proprietor.
Britan -v- Rossiter (1879) 11 QBD 123
1879

Contract, Land Casemap
1 Citers
A contract which fails to meet the standards required under the act is not not void, but is merely unenforceable.
Statute of Frauds 1677 3
Leigh -v- Jack; CA 1879
Bryant -v- Lefever (1879) 4 CPD 172
1879

Land Casemap

A right of uninterrupted but undefined flow of air to a chimney is not capable of becoming an easement acquired by prescription.
Bolton -v- Bolton (1879) 11 ChD 968
1879

Land
1 Citers
Sturges -v- Bridgman; 1879
Hill -v- Maclaren (1879) 6 R 1363
1879

Lord Justice Clerk Moncreiff
Land, Scotland
1 Citers
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."
Renals -v- Cowlishaw (1879) 11 Ch D 866
2 Jan 1879
CA
Land Casemap
1 Cites

The term "assigns" was used to denote successors in title to the land both of the original restrictive covenantor and of the original covenantee.
Rolls -v- Vestry of St George the Martyr, Southwark; CA 1880
Corporation of London -v- Riggs (1880) 13 Ch D 798
1880
CA
Jessel MR
Land
1 Citers
The court considered whether a right of way of necessity had been granted: "the real question I have to decide is this – whether, on a grant of land wholly surrounding a close, the implied grant, or re grant, of a right of way by the grantee to the grantor to enable him to get to the reserved, or excepted, or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then that state. There is no distinct authority on the question. It seems to me to have been laid down in very early times that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserve close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, all where the close is reserved, as it is here, as a re-grant."
He went on to consider what the necessity of the case required, saying "the object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use not occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is.
I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided."
Nash -v- Eads (1880) 25 Sol J 95
1880
CA
Sir George Jessel MR
Land

1 Citers
Sir George Jessel MR: "The mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the Court could not look into his motives for so doing. If he had a right to sell on June 1, and he then said, 'The mortgagor is a member of an old county family, and I don't wish to turn him out of his property, and will not sell it at present,' and then on July 1 he said, 'I have had a quarrel with the mortgagor, and he has insulted me; I will show him no more mercy, but will sell him up at once' - if all this was proved, the Court could not restrain the mortgagee from exercising his power of sale, except on the terms of payment of the mortgage debt. The Court could not look at the mortgagee's motives for exercising his power. Lord Eldon had never said anything of the kind which Vice-Chancellor Stuart supposed him to have said. The Vice-Chancellor was entirely mistaken, and must have been citing the judgments to which he referred from his recollection, without looking at the reports. Of course there were some limits to the powers of the mortgagee. He, like a pledgee, must conduct the sale properly, and must sell at a fair value, and he could not sell to himself. But he was not bound to abstain from selling because he was not in urgent want of his money, or because he had a spite against the mortgagor.".
Gledhill -v- Hunter; CA 1880
Stevenson -v- McLean (1880) 5 QBD 346
1880

Land Casemap
1 Citers
Wilmott -v- Barber; ChD 1880
Burgess -v- Northwich Local Board; 1880
Attorney-General -v- Tomline (No 3) (1880) 15 ChD 150
1880
CA
James LJ, Cotton LJ, Thesiger LJ
Land
1 Cites

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
Lord Advocate -v- Lord Lovett [1880] 5 App Cas 273
1880

Land
1 Citers
Lord Advocate -v- Lord Lovat (1880) 5 App Cas 273
1880

Lord O'Hagan
Land
1 Cites
1 Citers
Lord O'Hagan considered the nature of possession as regards land: "As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession."
Lord Blackburn said: "I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value."
Rains -v- Buxton [1880] 14 ChD 537
1880

Fry J
Land, Limitation Casemap

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.
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
1 Citers
The freeholder charged the land in 1856. He remained in possession, and did not make any payments or give any acknowledgment of the mortgagee's title. In 1870 the mortgagee presented a bill for foreclosure, and in 1874 a bill of redemption or foreclosure was granted, with foreclosure being made absolute in 1877, and possession sought in 1878. Held: The action was not barred under the 1833 Act though brought more than 20 years after any acknowledgment. It is in the nature of the mortgage transaction that the mortgagor remains in possession, and is entitled to receive the rents from it. His possession is as of right and is not a wrong. A mortgagee taking possession is not entitled to recover rents paid to the mortgagor before he has taken possession. A mortgagor in possession of the mortgaged land is to be treated as being in possession with the consent of the mortgagee, unless the mortgagee has terminated the consent and there is then evidence to show that the mortgagor was a trespasser on the mortgaged land.
Real Property Limitation Act 1833
Rosenberg -v- Cook (1881) 8 QBD 162
1881

Sir George Jessel MR
Land, Limitation Casemap
1 Citers
A squatter's title is a freehold from day one of his possession.
Rayner -v- Preston (1881) 18 Ch D 1
1881

Cotton LJ, Brett LJ, James LJ
Land, Contract
1 Citers
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance. Held: (Majority) The purchaser was not entitled to the insurance proceeds. The court discusses the trusteeship arising on a contract for the sale of land: "An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a Court of Equity will give effect to by transferring the property sold to the purchaser . . .", but the trusteeship arose in respect of the property only and not any associated insurance policy. Brett LJ: it was a misnomer to describe the vendors as trustees of the house, but even if they were trustees the contract of insurance did not run with the land. James LJ (dissenting) The vendors were trustees and held the insurance money for the purchaser because any benefit which accrued to a trustee by reason of his legal ownership was taken as trustee for the beneficial owner.
Banner -v- Berridge (1881) ChD 254
1881

Land Casemap

Turner -v- Walsh; PC 1881
Scottish Property Investment Company Building Society -v- Horne (1881) 8 R 737
1881

Lord President Inglis
Scotland, Land Casemap
1 Citers
To warrant the remedy of summary ejection, the defender's possession of premises has to be vicious, that is obtained by fraud or force, or precarious possession: "A precarious possession is a possession by tolerance merely."
Haywood -v- The Brunswick Permanent Benefit Building Society (1881) 8 QBD 403
1881
CA
Cotton LJ, Brett LJ
Land, Equity Casemap

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."
Dalton -v- Henry Angus & Co; HL 14-Jun-1881
Sutton -v- Sutton; 1882
Austerberry -v- Oldham Corporation; CA 1882
Goodman -v- Mayor of Saltash (1882) 7 App Cas 633
1882
HL
Charity, Land Casemap

A gift was made of a right to fish to the freemen of the Borough of Saltash. Held: The gift was as valid as a charitable gift as would be a gift to the inhabitants of the locality in general. The law may infer a lawful origin from long possession. A profit à prendre by prescription cannot be claimed by an undefined and fluctuating body of persons, not incorporated for the purpose of taking the grant.
Fearnside -v- Flint (1882) 22 Ch D 57
1882

Fry J
Land, Limitation Casemap
1 Citers
The court rejected the contention that the limitation period was 20 years for a case of an action on a collateral bond. The sum secured by a mortgage on land and also secured by a covenant in the deed is one and the same sum "so that when the right of suit or action in respect of the land is gone, the right on the covenant ceases also".
Cato -v- Thompson (1882) 9 QBD 616
1882

Land
1 Citers
The phrase “a good marketable title” must mean “to the property contracted to be sold”. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or leasehold and without stating that it is subject to incumbrances, it means “to the fee simple free from incumbrances.”
Neill -v- Duke of Devonshire (1882) LR 8 HL 135; (1882) 8 App Cas 135
1882
HL
Lord Selborne LC
Land Casemap

The House considered the right to a several fishery in the river Blackwater. There were letters patent granted by James I and Charles I. Held; Lord Selborne LC said: "These written titles (if the possession and enjoyment has been consistent with them) afford irresistible ground for a presumption that the fishery, either in all the tidal waters of the river Blackwater, or at all events in that part of them which is now immediately in question, was "put in defence" before Magna Charta; and having become vested in the Crown by forfeiture of the private rights from time to time acquired in it, was well and effectually granted to the predecessor in title of the Duke of Devonshire . . Under the circumstances which I have stated, the real controversy in this case is as to the sufficiency of the evidence of possession and enjoyment, without which, even the clearest apparent title to a several fishery, on paper only, would not exclude the public right."
London and South Western Railway Co -v- Gomm (1882) 20 ChD 563
1882
CA
Jessel MR, Lindley LJ
Land Casemap
1 Cites
1 Citers
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event. Held: The 'right' to 'take away' the claimants' estate or interest in the farm was immediately vested in the grantee of the right to repurchase.
Jessel MR set out the basis on which an equitable interest arises in the case of an option: "The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the purchase money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land."
He went on to consider the possibility of it being enforced in equity: "With regard to the argument founded on Tulk v. Moxhay, 2 Ph. 774 that case was very much considered by the Court of Appeal in Haywood v. The Brunswick Permanent Benefit Building Society, 8 Q.B.D. 403, and the court there decided that they would not extend the doctrine of Tulk v. Moxhay to affirmative covenants, compelling a man to lay out money or do any other act of what I may call an active character, but that it was to be confined to restrictive covenants. Of course that authority would be binding upon us if we did not agree to it, but I most cordially accede to it. I think that we ought not to extend the doctrine of Tulk v. Moxhay in the way suggested here. The doctrine of that case appears to me to be either an extension in equity of the doctrine of Spencer's case to another line of cases, or else an extension in equity of the doctrine of negative easements.
The covenant in Tulk v. Moxhay was affirmative in its terms, but was held by the court to imply a negative. Where there is a negative covenant expressed or implied, the court interferes on one or other of the above grounds. This is an equitable doctrine, establishing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land or on analogy to an easement. The purchaser took the estate subject to the equitable burden, with the qualification that if he acquired the legal estate for value without notice he was freed from the burden."
Lindley LJ said that because in Haywood v. Brunswick Permanent Benefit Building Society (1881) 8 Q.B.D. 403 it was sought to extend the doctrine of Tulk v. Moxhay: "to a degree which was thought dangerous, considerable pains were taken by the court to point out the limits of that doctrine.
The conclusion arrived at was that Tulk v. Moxhay, when properly understood, did not apply to any but restrictive covenants."
Caledonian Railway Co -v- Walker's Trustees; 1882
Earl of Zetland -v- Hislop [1882] UKHL 1; (1882) 9 R (HL) 40; (1881-82) LR 7 App Cas 427
12 Jun 1882
HL
Scotland, Land Casemap
1 Cites
Link[s] omitted
Heywood -v- Mallalieu; 1883
Moore -v- Shelley [1883] 8 App Cas 285
1883
PC
Land Casemap
1 Citers
Under a mortgage deed, the mortgagor was to remain in possession, and manage it until a default was made. Demand was made during the plaintiff's absence and upon non-payment the person purporting to be the defendant's agent took possession. The plaintiff claimed in trespass. Held: A non-payment where the mortgagor was given no opportunity to verify the identity of the person making the claim was not a default, and the defendant was liable in damages for trespass.
Mayor, Constables and Company of the Merchants of the Staple -v- Bank of England (1887) 21 QBD 160
1883

Wills J
Land, Company Casemap

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 …."
Hollins -v- Verney (1883) 11 QBD 715
1883

Land Casemap
1 Citers
A private right of way was claimed under the 1832 Act by virtue of use to remove wood from an adjoining close.
Prescription Act 1832
Countess of Ossalinsky -v- Manchester Corporation; 1883
In re Sneyd; Ex parte Fewings; CA 1883
Dunford -v- McAnulty (1883) 8 AC 456
1883
HL
Lord Blackburn
Land, Litigation Practice Casemap

Lord Blackburn: “in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must shew a superior legal title to his .”
Pountney -v- Clayton (1883) 11 QBD 820
1883
CA
Bowen LJ
Land
1 Citers
Bowen LJ was asked as to rights of support to land. He said: 'Prima facie the owner of the land has everything under the sky down to the centre of the earth.'
Tiverton & North Devon Company -v- Loosemore; 1884
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.
Howe -v- Smith; CA 1884
Rolls -v- Miller (1884) 27 ChD 71
1884
CA
Lindley LJ
Land
1 Citers
The court was asked as to the effect of a restrictive covenant requiring a house not to be used for trade or business. Lindley LJ said that the dictionary meanings of the term 'business' embrace 'almost anything which is an occupation, as distinguished from a pleasure - anything which is an occupation or duty which requires attention is a business.'
Rolls -v- London School Board (1884) LR 27 ChD 639 (Ch D)
1884
ChD
Land Casemap

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

Land, Contract Casemap
1 Citers
A vendor's lien was postponed to the equitable interest of a third party with whom the purchaser from the vendor had had dealings.
Leigh -v- Dickeson; 1884
Wandsworth Board of Works -v- United Telephone Co (1884) 13 QBD 904
1884
CA
Land, Torts - Other
1 Citers
A land-owner had the right to cut a wire wrongfully placed over his property.
Great Eastern Railway -v- Goldsmid; 1884
Hollins -v- Verney (1884) 13 QBD 304; [1884] LJQB 430; [1884] 51 LT 753; [1884] 48 JP 580; [1884] WR 5
1884
CA
Lindley LJ
Land Casemap


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

Lord Blackburn, Lord Watson, Lord Kinnear, Lord Atkinson
Land, Scotland Casemap

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".
Serff -v- Acton Local Board (1886) 31 Ch D 679
1886
ChD
Pearson J
Land Casemap

A right of way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented.
Scott -v- Pape; CA 1886
In Re Williams; 1886
Re Bright-Smith (1886) 31 Ch D 314
1886

Chitty J
Land Casemap
1 Citers
The court construed the devise of "my freehold farm and land situate at Edgware and now in the occupation of James Bray" as including copy holds which were part of his farm and land situate at Edgware and in the occupation of James Bray, even though there were also freeholds which undoubtedly were included in the description given.
In Re Beetham, Ex parte Broderick (1886) 18 QBD 380
1886
QBD
Cave, Wallis JJ
Land, Equity Casemap

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

Chitty J
Land

Homer -v- Cadman; 1886
Lord Advocate -v- Young; 1887
Charles -v- Jones [1887] Ch 544
1887

Land
1 Citers
Orr Ewing -v- Colqhoun; 1887
Brown -v- Allabastor (1887) 37 ChD 490
1887

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

Land Casemap
1 Citers
Regina -v- Cunningham Graham and Burns (1888) 16 Cox 420
1888

Charles J
Crime, Land

The court rejected a suggestion that there was a right of public meeting in Trafalgar Square or any other thoroughfare. "So far as I know the law of England, the use of public thoroughfares is for people to pass and repass along them. That is the purpose for which they are, as we say, dedicated by the owner of them for the use of the public, and they are not dedicated to the public use for any other purpose that I know of other than for the purpose of passing and repassing; and, if you come to regard Trafalgar Square as a place of public resort simply, it seems to me it would be very analogous to the case of public thoroughfares."
Farrar -v- Farrars Ltd (1888) 40 Ch D 395
1888
CA
Land, Company Casemap
1 Citers
The mortgagor of a quarry defaulted, and the mortgagees took possession. They were unable to sell the quarry, but formed a company which bought the quarry at a proper value. The mortgagor sought to set aside the sale. Held: A mortgagee in possession exercises a personal right primarily in his own interests as a mortgagee, The self-dealing rule applies in that a mortgagee cannot exercise the power to sell to himself or to a nominee or to a company of which he is the sole director and shareholder, but he can sell to a company in which he has a significant interest but the onus lies on him to justify the terms of sale. The mortgagees had shown that the sale was made in good faith, and at a proper price; with the consequence that the sale stood.
Birmingham, Dudley and District Banking Co -v- Ross (1888) 38 Ch D 295
1888
CA
Cotton, Lindley, Bowen LJJ
Land, Contract Casemap
1 Citers
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants' buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action. Held: The court dismissed the appeal. (Cotton LJ) Referring to the Act said that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. When the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. The light then enjoyed could not be considered as enjoyed within the meaning of the section because both parties had no expectation of the continuance of that light. A light enjoyed by a person under the statute must be "that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious" . referred to the implied obligation of a grantor not to interfere with his grant and said "But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties." On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants' rights. (Lindley L.J) Considered it as at the time of the grant "I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important." He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation's land to Daniell's house after the corporation had built what it liked on the other side of the street. (Bowen L.J) Daniell's knew that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road.
Conveyancing Act 1881 6
Ex parte Lewis (The Trafalgar Square Case); QBD 1888
Brown -v- Alabaster (1888) 37 Ch D 490
1888

Land Casemap
1 Citers
Blount -v- Layard [1891] 2 Ch 681
1888
CA
Bowen LJ
Land
1 Citers
The court said how unfortunate it would be if the owner of an exclusive fishery were forced to insist on his rights by reason of a fear that tolerated fishing by members of the public might crystallise into a public right of fishing, which it would not do.
Agency Co Ltd -v- Short (1888) 13 AC 793
1888

Land
1 Citers
Where there has been insufficient adverse possession, it "does not leave behind it any cloud on the title of the rightful owner."
Spicer -v- Martin (1888) 14 App Cas 12
1888
HL
Land Casemap
1 Citers
Re Fawcett & Holmes' contract (1889) 42 ChD 150
1889
CA
Lord Esher MR
Land, Contract
It was not a sufficient misdescription of land under a contract to allow rescission, that the vendor had no title to 339 square yards out of the 1372 square yards at which it had been estimated. A clause in the contract allowed for a possibility of compensation for any error pointed out before completion. The buyer was restricted to that compensation, and had to proceed to complete.
Only covenants relating to benefitted land, and not covenants personal to a vendor, will run with the burdened land.
Nicholls -v- Nicholls (1889) 81 LT 811
1889

Land Casemap

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

Kay J
Land Casemap

Kay J considered that a customary right over land might be confined to the inhabitants of a district.
Reilly -v- Booth (1890) 44 Ch D 12
1890

Lopes LJ
Land Casemap
1 Citers
The express grant of a right over land which would place the dominant owner in such occupation of the servient land as to bar the servient owner from possession or control of the land may not constitute the grant of an easement but may be construed as a grant of the fee simple.
Booth -v- Ratte (1890) 15 App Case 188
1890

Land Casemap
1 Citers
Tilbury -v- Silva (1890) 45 Ch D 98
1890

Bowen LJ
Land Casemap

The evidence of user necessary to induce the court to presume a lost modern grant should be stronger than that upon which the court will presume a grant based on immemorial user.
MacKenzie -v- Childers; ChD 1890
Mander -v- Falcke; 1891
Philipps -v- Halliday; HL 1891
Smith -v- Andrews; 1891
Attorney General -v- Emerson; 1891
Clarke -v- Ramuz; CA 1891
Hawksley -v- Outram [1892] 3 Ch 359
1892
CA
Lindley LJ, Lopes LJ
Land Casemap

The parties had concluded a contract for the sale of land and a business. The court considered a purported waiver of a non-compete clause, saying: "if there is any doubt whether [the provisions of the contract in issue] are binding upon the vendors, and the purchaser waives them, what have the vendors to complain of?" and "the purchaser . . is at liberty to relinquish [those provisions]". However, a clause may be so inextricably mixed up with other parts of the transaction that it cannot be severed.
Lopes LJ said that “it is perfectly clear that they are provisions intended solely for the benefit of the purchaser; the purchaser, therefore, is at liberty to relinquish them and, if he does so, it is immaterial whether he could have successfully insisted on them”.
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
Laybourn -v- Gridley [1892] 2 Ch 53; [1892] 61 LJCh 352; [1892] 7 Digest (Repl) 267
1892

North J
Land Casemap

Part of a room protruding into the property conveyed avbove ground level was included in the conveyance.
Metropolitan Railway Co -v- Fowler [1892] 1 QB 165
1892
CA
Lord Esher MR
Land Casemap
1 Citers
Lord Esher MR said: "An easement is some right which a person has over land which is not his own; but, if the land is his own, if he has an interest in it, then his right is not an easement. You cannot have an easement over your own land.."
Phillips -v- Low; ChD 1892
Salt -v- Marquis of Northampton [1892] AC 1
1892

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

Land

1 Citers
Eyre -v- New Forest Highway Board; 1892
Virgo -v- Harford Unreported, 11 August 1892
11 Aug 1892

Land Casemap
1 Citers
A right of common was successfully claimed to the right to play football, rounders and cricket on 65 acres of open land on a hill outside Walton-in-Gordano in Somerset.
Harrison -v- Duke of Rutland; CA 1893
British South Africa Company -v- Companhia de Mocambique; HL 1893
Haigh -v- West [1893] 2 QB 19
1893
CA
Lindley LJ
Land, Animals
1 Citers
The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil of the road vested. Held: It was to be presumed that the road vested in the church wardens as trustees or alternatively, and to the extent that was not correct, that they had acquired a title by adverse possession. The highway had originally all been grass but for the 20 years prior to the start of the claim, it had been metalled in the middle with grass at the sides. It was the grass at the sides which was used by the tenants of the church wardens for pasturing sheep.
Lindley LJ said: "apart from all presumptions the parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century and this occupation and enjoyment is that of the church wardens and overseers acting through the vestry. We see no legal difficulty in the acquisition by the church wardens and overseers of a title by the Statute of Limitations, although, of course, the title so acquired must be subject to the public right of way."
Ellis -v- Goulton; 1893
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.
Driver -v- Broad [1893] 1 QB 744
1893

Kay LJ
Land, Contract

An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property "in the ordinary course of its business" and one that does not. The concept was inherent in the term "floating security" or "floating charge."
Powell -v- London and Provincial Bank; 1893
Harvey and Another -v- Facey and others [1893] UKPC 1; [1893] UKPC 46
29 Jul 1893
PC
Commonwealth, Contract, Land
(Jamaica)
Link[s] omitted
Henderson -v- Astwood [1894] AC 150
1894
PC
Lord Macnaghten
Land Casemap
1 Citers
A sale was undertaken by a mortgagee, ostensibly to a third party but in reality to his nominee. The land was conveyed by the mortgagee to his nominee, who executed a declaration that he held the land in trust for the mortgagee, and who subsequently sold and conveyed the land to a bona fide purchaser for value without notice of the defect in the title. This last-mentioned sale was held to be valid, but the transaction between the mortgagee and his nominee was held to be ineffective to extinguish the equity of redemption. The result was that on the taking of the mortgage account the mortgagor was entitled to the benefit of the sale to the ultimate purchaser. “The so-called sale was of course inoperative. A man cannot contract with himself. A man cannot sell to himself, either in his own person or in the person of another.”
In re McHenry (1894) 3 Ch 290
1894
CA
Lord Herschell LC, Lindley LJ
Land, Limitation Casemap
1 Citers
The court considered the effect of the Limitation Acts on the rights of a secured creditor where there was an express shortfall provision in a mortgage deed. There was an express promise by a mortgagor to pay the difference on realisation of the security on personal property (a scrip certificate of bonds) between the proceeds of the realisation and the amount of the advance. The issue was whether the limitation period ran from the date of realisation of the security, which was within the limitation period, or from the earlier date when the principal sum became repayable. Held: The court rejected the contention that the time only began to run when the security was sold and the actual amount payable was ascertained and that there was a separate claim on the express promise to pay the difference. The cause of action arose when the original mortgage debt became due and that the promise to pay the difference did not create a new debt. Lord Herschell LC: "I cannot say that the right of realisation gave a new, separate and independent cause of action, so that the statute did not begin to run until from that date. The truth is that the debt is one debt only. The second clause of the document did not create a new debt, but only prescribed what should be done in the event of realisation and what should be made of the money realised. The words gave the creditor no right which would not equally have existed without them." Lindley LJ: " The promise to pay the deficiency does not create a new obligation to pay: it only applies the old obligation to a reduced sum. The realisation of the security does not add to the cause of action; the cause of action accrued long before." .
Lancashire -v- Hunt (1894) 10 TLR 310
1894

Wright J
Land Casemap
1 Citers
A right of common was accepted over land to play cricket and other games on 160 acres of Stockbridge Common Down. The owner applied to prevent a local trainer from exercising his horses over the land. The trainer claimed that he had a customary right to train his horses over the common. Held: The customary right asserted had not been established. However, the inhabitants of the borough did have the right to ride their horses for recreation over any part of the 160 acres. A second claim against villagers who asserted a right to meet on the land and to run fetes and cricket matches failed, since customary rights were established.
Lemmon -v- Webb; CA 1894
In re Clergy Orphan Corporation; CA 1894
Manchester Trust -v- Furness; CA 1895
Midland Railway Company -v- Gribble; CA 1895
Smith -v- Wallace [1895] 1 Ch 385
1895

Romer J
Land, Contract
1 Citers
Romer J said that a vendor of land wanting to exercise the right of rescission given him by the relevant contract term must do so "fairly, and to determine promptly whether he [will] exercise the power or not. He [is] not entitled to take advantage of his position, and to leave the purchaser in ignorance whether the contract [is] to be treated as rescinded or not."
The Benwell Tower (1895) 72 LT 664
1895

Land Casemap
1 Citers
Conveyancing Act 1881
Re Scott and Alvarez's Contract No 2 [1895] 2 Ch 603
1895
CA
Lindley LJ
Land, Contract
1 Citers
Lindley LJ discussed the circumstances under which a deposit paid under a contract for the sale of land could be returned. Even where specific performance was refused to the vendor because the title was wholly defective, the purchaser might be left unable to rescind by the terms of the contract, and therefore unable in law to claim return of the deposit: "There is no question of discretion in such a case as that . . The legal answer is this: 'There is no breach of contract at all; you have taken your chance with respect to your deposit; and unless you shew a breach by the vendor of his bargain, you are not entitled to have that deposit back.'"
Henderson -v- Dawson (1895) 22 R 895
1895

Lord McLaren
Scotland, Land
1 Citers
An inhibition which is laid on after the missives have been concluded but before the date of the disposition, apparently striking at the sale, may cause difficulty in a question with a subsequent purchaser
Chastey -v- Ackland [1895] 2 Ch 389; [1895] 64 L J QB 523; [1895] 72 LT 845; [1895] 43 WR 627; [1895] 11 TLR 460; [1895] 39 Sol Jo 582
1895
CA
Lopes LJ, Lindley LJ
Nuisance, Land Casemap


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."
Beckenham Urban District Council -v- Wood; 1896
Kirby -v- Harrogate School Board; CA 1896
Dryburgh -v- Gordon; 1896
Gaskell -v- Gosling; CA 1896
Paterson -v- Gas Light and Coke Co. [1896] 2 Ch 476
1896

Land Casemap
1 Citers
Edwards -v- Jenkins; 1896
Hobson -v- Gorringe [1897] 1 Ch. 182
1897
CA
Blackburn J
Land Casemap
1 Citers
The intention of the parties in affixing an object to land is only relevant to the extent that it can be derived from the degree and object of the annexation: "the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil."
Gaskell -v- Gosling [1897] AC 575
1897
HL
Land Casemap
1 Cites
1 Citers
Rymer -v- McIlroy [1897] 1 Ch 528
1897

Byrne J
Land
1 Citers
B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of Three-acre to C who sought to exercise the right of way over Blackacre. B contended that C had no such right because it was attached only to A's leasehold estate, which had been extinguished. Held: The argument was rejected. The right of way continued for the benefit of the freehold estate. Having regard to "the whole tone and tenour of the deed, and the fact that John Drummond shortly afterwards acquired the fee", he concluded: "The true construction is that, so long as the Drummonds, or either of them, or the heirs or assigns of either of them were interested, this right of way was to subsist. The probability is, and it is not an unnatural inference to draw, that it was within the contemplation of the parties that the Drummonds might obtain the fee simple in one or more of the plots in which they had then only a limited interest, and that in that case the right of way should continue. I can see nothing illegal in such an agreement, and if that is the contract no such doctrine as that the covenant was with the reversioner, who has destroyed the reversion, arises."
Chastey -v- Ackland [1897] AC 155
1897
HL
Land Casemap

1 Citers
Immemorial user
Conservators of the River Thames -v- Smeed Dean & Co [1897] 2 QB 334
1897
CA
Chitty LJ, Smith LJ
Land, Utilities Casemap
1 Citers
The erection of a lock or pound lock otherwise than for the maintenance or improvement of navigation would be ultra vires by a Navigation Authority and in all likelihood a nuisance. "The Conservators are a statutory body brought into existence for the purpose of preserving, improving and maintaining the navigation of the River Thames ... but the powers granted to them by the 1894 Act are all subservient thereto and except for these purposes no powers are granted to them at all." The court discussed the meaning of the word 'bed' as to the bed of the river. "bed" in the context of a tidal and non-tidal river meant: "... the soil or ground which is covered by water in the ordinary course of nature - the ground over which the water flows or on which it lies." (Chitty LJ)
Thames Conservancy Act 1894
Plant -v- Bourne; CA 1897
Levy -v- Stogdon (1898) 1 Ch.478
1898

Stirling J
Land, Contract Casemap

Specific performance of a contract by an assignees of the purchaser was dismissed on the grounds of delay, but his claim for a lien was upheld.
Bethnal Green Vestry -v- London School Board [1898] AC 190
1898
HL
Lord Herschell
Land, Utilities
The owner of a block of houses laid a pipe in the yards at the rear of the houses to carry off their drainage and connected the pipe with a sewer belonging to the Vestry in a neighbouring street. No notice was been given to the Vestry or of any order having been made by them as required by section 74, nor was there evidence of approval having been obtained of the Metropolitan Board of Works under section 69. The block was acquired by the school and when the pipe was found to be defective the school called upon the Vestry to repair it. The Vestry declined to do so on the ground that the pipe was not a sewer vested in or repairable by them. The issue was whether the pipe came within the definition of "sewer" in section 250. Held: No appropriate order had been made. The work was done with the sanction and authority both of the Vestry and of the Metropolitan Board of Works. If vested in the Vestry this was repairable by the Vestry. Therefore the only question was whether it was so vested in the Vestry. The words absolutely wide and unlimited, "all sewers" thereafter to be made, and it is only sought to cut down those words by suggesting it must mean all sewers lawfully made. There was in this case good ground for presuming that the connection of this sewer for draining the houses with the sewer received the sanction of the Vestry, and, in the absence of any distinct proof to the contrary, received the sanction of the Metropolitan Board of Works. However, even if this could not be made out, it would not follow, if the sanction of the Vestry was given, that the sewer could be held not to be a sewer within the meaning of s.68 merely because the Vestry had failed to perform their statutory duty of first submitting the plans to the Metropolitan Board of Works and obtaining their sanction. It does not follow that because the requisite sanctions have not been obtained the thing constructed is not a sewer. In the language of this legislation I think it is nonetheless a sewer within the meaning of the Act even though that sewer may have come into existence without an assent or approval which, as between public bodies, the statute requires.
Metropolis Local Management Act 1855 69 74
Asbury -v- Asbury [1898] 2 Ch 111
1898

Land Casemap
1 Citers
A defendant to a claim for adverse possession made by two joint claimants, and who asserts an acknowledgement of his title must show that the acknowledgement was by both claimants.
Biggs -v- Hoddinott [1898] 2 Ch 307
1898

Contract, Land Casemap
1 Citers
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money.
Forbes's Trustees -v- Macleod; 1898
Bourke -v- Davis; 1899
Santley -v- Wilde [1899] 2 Ch 474
1899

Lord Lindley MR
Equity, Land
1 Citers
Lord Lindley considered the nature of a mortgage and said: "The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption, and is therefore void. It follows from this that 'once a mortgage always a mortgage,' but I do not understand that this principle involves the further proposition that the amount or nature of the further debt or obligation, the payment or performance of which is to be secured, is a clog or fetter within the rule."
Lord Lindley MR said: "a clog or fetter is something which is inconsistent with the idea of security; a clog or fetter is in the nature of a repugnant condition."
In re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540
1899

Land
1 Citers
The practice of conveyancers of repute was strong evidence of real property law.
Titchmarsh -v- Royston Water Company Limited (1899) 81 LT 673
1899

Kekewich J
Land Casemap

1 Citers
The land owner sought a grant of right of way of necessity. His land was blocked on three sides by land of the vendors and on the fourth side by a route which ran in a cutting, which would make connection with the granted land difficult. Held: Kekewich J said: "the peculiar circumstances here are that the land in question is not blocked on all sides, though it is blocked on three sides by land of the vendor. The question arises, is the doctrine which calls into existence a way of necessity applicable to such a case?
In the notes in Pomfret v Ricroft it is thus stated: 'where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant; for without it he cannot derive any benefit from the grant.' 'A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.' This statement, by the use of the words 'surrounded with his own land' excludes such a case as this where the granted premises are not surrounded by land of the vendor, but abut on one side on land of a stranger. There is no authority for extending the doctrine to such a case as that. In Gale on Easements, 5th edition, the doctrine is stated in almost precisely the same language with this addition: 'So, too, if the close be not entirely enclosed by my land, but partly by the land of strangers, for he cannot go over the land of strangers, quaere'. For this reference is made to Rolle's Abridgement and Viner's Abridgment. I have referred to these volumes, and have ascertained that the quotation is accurate including the quaere, which is to be found in both works, but I have not come across any comment on either the statement or the quaere. It seems to me that the statement is inconsistent with the doctrine as above explained and with the principle on which it has foundered. No such excrescence is justified by the old and often-quoted case all Clarke v Cogge ….where the extension of the doctrine to a reservation in favour of the vendor or as against the purchaser is established. Some argument was addressed to the peculiar feature of this case –viz that the boundary on the fourth side is a highway, and the fact that such highway runs in a cutting, which would make connection with the granted land difficult. There is no occasion to discuss the right of a man whose land adjoins a highway to make, if he has not already got, access thereto, and the difficulty is met by the observation that the very road over which the purchasers claimed a right of way was constructed so as to overcome it, and making a connection between the vendors land – including the part sold – and the same highway and the same cutting."
Cronin -v- Sutherland; 1899
In re Summerson (Note) [1898] S 1192; [1899] 1 Ch 112
23 Feb 1899

Romer J
Land Casemap
1 Cites
1 Citers
The buyer of leasehold promises sought to be discharged from her obligation to complete, when it was revealed after exchange of contracts, that the lease contained a clause for forfeiture if the premises should be used as an alehouse. The property had in fact been used for many years in breach of that covenant with the knowledge of the lessor. Held: For more than thirty years the property had been used openly in breach of the covenant, and assignments had been registered with and accepted by the landlord identifying its use as a public-house. Romer J said: "there can be no question as to the purchaser getting a good title. This property was carried on as an inn even before the date of the lease." and "What is the conclusion? Inevitably that there has been a licence, and a binding licence, from the corporation to the lessee to use these premises as a public-house, or a release of this covenant, so far as it affects these particular premises, one way or another."
Hepworth -v- Pickles [1900] 1 Ch 108; [1900] 69 LJ Ch 55; [1900] 81 LT 818; [1900] 48 WR 184; [1900] 44 Sol Jo 44
2 Nov 1899
ChD
Farwell J
Land Casemap
1 Cites
1 Citers
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as an inn, tavern or beerhouse. The covenant had been imposed in 1874, and the open use in breach had begun shortly afterwards. The buyer sought to rescind the contract. Held: His action failed. The covenant had been waived or released. Farwell J said: "if you find a long course of usage, such as in the present case for twenty-four years, which is wholly inconsistent with the continuance of the covenant relied upon, the Court infers some legal proceeding which has put an end to that covenant, in order to show that the usage has been and is now lawful, and not wrongful."

All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
Home |  lawindexpro |  Forum | 
| Two Doves Counselling | Faulty Flipper
Copyright and Database Rights: David Swarbrick 2012