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The Finder of an Article on the Private Land of another has no
right to the Article as against the Owner of the Land.

SOUTH STAFFOEDSHIEE WATEEWOEKS v. SHAEMAN.

[1896]

(65 L. J. Q. B. 460 ; (1896) 2 Q. B. 44 ; 74 L. T. 761 ;
44 W. E. 653.)

The plaintiffs were the owners of some land on which there
was a piece of water. Tiny employed some labourers, amongst
whom was I he defendant, to clean the pool and clear out the



PARTICULAR TORTS. 185

mud. Several articles were discovered in the mud, and among
others were two gold rings found by the defendant. In an
action by the plaintiffs against the finder to recover the rings —

Held, the plaintiffs were entitled to the rings, for where
an owner of land has the right to exercise a control over it,
and to prevent unauthorised interference, and some article
[abandoned by its true oivner) is found by a stranger, either
upon or beneath the surface of the land, the presumption is
that the right to possession of the article found is in the
owner of the land, and not in the finder.



CUNDY v. LINDSAY. {Supra, p. 68.)

A person who innocently obtains the possession of goods the
original owner of which has been fraudulently deprived of their
possession, and then disposes of them, is guilty of conversion.



186 REAL PROPERTY AM) CONVEYANCING.



HEAL PROPERTY AND CONVEYANCING.



GA VELK1ND TENURE.



Land under Gavelkind Tenure descends to all Males in the same
degree equally, however remote they may be.

In re CHENOWETH. [1902]
(71 L. J. Ch. 739; (1902) 2 Ch. 488 ; 86 L. T. 890; 50 W. E. 663.)

On March 23, 1900, Francis Chenoweth died intestate as to
four houses at Milton near Gravesend, in the county of Kent.

The deceased left no lineal descendants, and his nearest col-
lateral male relatives, ex parte i><iimu(, living at his death, were
two first cousins and the three sons of a deceased first cousin.
The custom of gavelkind was assumed, according to the usual
rule in Kent, in the absence of any evidence to prove the con-
trary, to prevail in the manor of Milton.

The question now proposed for the decision of (he Court was
whether the rule of partibility in the case of lands subject to
gavelkind was limited among collaterals to brothers and the
issue of brothers, or whether it extended to collaterals in the
remotest degree.

Held, the rule of partibility with rcx/icct to gavelkind
lands in Kent) i.e., that it descend* to nil male heirs in the
same degree equally^ extends to 'til collaterals, however
remote.

Kncli of the two surviving cousins was therefore entitled
to one-third of the property^ and (lie three sons of the
deceased cousin were entitled to the remaining third between
I he m.



TENANT IN FEE SIMPLE. 187



TENANT IN FEE SIMPLE.



To convey land in Fee Simple by Deed it is necessary, in the
absence of the words "and his Heirs," that the words "in
Fee Simple " be used. The words " in Fee "in a Convey-
ance merely give the Grantee a Life Estate.

Re ETHEL & MITCHELL'S CONTRACT. [1901]
(70 L. J. Ch. 498 ; (1901) 1 Oh. 945 ; 84 L. T. 459.)

Upon payment oft' by the mortgagor of a mortgage debt
created in 1895, the property which had constituted the
security for the debt was conveyed by the mortgagees unto the
mortgagor " to hold the same unto and to the use of " the mort-
gagor " in fee freed and discharged " from the mortgage debt
secured by, and all claims and demands under, the mortgage
deed.

Held, under the Conveyancing and Law of Property Act,
1881, s. 51 j in order to jiass the legal estate in fee simple
by deed in the absence of the words u and his heirs" it is
necessary to use the words u in fee simple." If these words
are not used, however plain the intention may be to pass the
legal estate in fee simple, only an estate for life passes
under the deed.

hi the absence of either of these ivords as words of limi-
tation in the habendum, the deed could, not operate to pass
the legal estate in fee simple ; and that, therefore, only a
legal estate for life passed under the deed to the mortgagor,
leaving the legal estate in remainder outstanding in the
mortgagees.



188 REAL PROPERTY AND CONVEYANCING.



Words of limitation are not essential to confer a Fee Simple in
Equitable Estates where such an intention is sufficiently clear.

Re TRINGHAM'S TRUSTS. [190 1]
(73 L. J. Ch. 693 ; (1904) 2 Ch. 487 ; 91L.T.370; 20 T. L. R. 657.)

T»\ an indenture of settlement dated 1831 certain copyholds
were assured to trusters in trust for Alary Ann Tringham for
Life, and after her decease in trust Tor her husband for his Life,
and on the decease of the survivor in trust for all the children
of the marriage equally, to be divide I between them as tenants
in common.

There were three children of the marriage, one of whom
died, leaving her share to the other two.

This summons was taken out to determine the question
whether the children of the marriage took absolutely or only
life interests.

Held, the children became entitled to equitable estate* in
customary fee simple.

A limitation of a trust without the word u heirs" will
confer an equitable fee if the intention is sufficiently indicated.



TENANT IN TAIL.



A Writ of Elegit issued against lands of a Tenant in Tail is
Enforceable against his Successors in Title, although they do
not claim through him, but under a prior settlement.

ANTHONY v. ANTHONY. [1893]

(62 L. J. Ch. 1004 ; (1893) 3 Ch. 498 ; 3 R. 671 ; 69 L. T. 300 ;

41 W. R. 667.)

Lands of which a testa! or was actual tenant in tail in pos-
session were in his Lifetime delivered in execution under a writ



TENANT IN TAIL. 189

of elegit to his judgment creditors. After the death of the
testator without is me the lands descended to H. W. Anthony
under the original entail. The question aro&3 whether the tes-
tator's residuary personal estate or the entailed lands in the
handy of H. W. Anthony were primarily liable to satisfy the
judgment debt.

Held, that although the Judgment Act, 1888 (1 cV 2 Vict,
c. 110), s. 13, expressly extends to land of which the judg-
ment debtor is tenant in tail, and the charge is enforceable
against successors in titie not claiming through, him, but
under a prior settlement, yet in tins case, as between the
testator's estate and II. W. Anthony, the testator's estate
was primarily liable.



LIFE ESTATE.



A Tenant for Life unimpeachable for waste is entitled to
Proceeds of Ornamental Timber where properly cut, but
must not commit wanton waste.

BAKER v. SEBRIGHT. [1879]
(49 L. J. Ch. 65; 13 Ch. D. 179; 41 L. T. 614; 28 W. R. 177.)

The defendant was equitable tenant for life unimpeachable
for waste of property known as the Beach wood Estate. The
defendant cut some ornamental timber which was necessary
for the preservation of the ornamental timber left standing.
The trustees of the estate claimed to be entitled to the proceeds
of the timber on the ground that cutting ornamental timber
was waste even when done by a tenant for life unimpeachable
for waste.

Held, the defendant tvas entitled to the proceeds of the
timber, for a tenant for life unimpeachable for ujaste is



190 REAL PROPERTY AND CONVEYANCING.

absolutely entitled to the proceeds of sale of ornamental
timber which has been cut by him, if the cutting teas
properly 'tone and essential for the preservation of the
rest of the timber.

A tenant for life unimpeachable for waste has the abso-
lute power and dominion over the timber upon the estate,
but the Court controls him in the exercise of that power
upon the ground that it will not permit an unconscientious
use to be made of a legal power.

By the Judicature Act, 1873, s. 25 (3), a tenant for life unim-
peachable for waste may not commit equitable waste unless special
power to do so is given by instrument creating such estate.



Sanction of Court to the sale of a Settled Heirloom will only be
granted where it is for the benefit of the Estate as a whole.

Re HOPE. [1899]

(68 L. J. Ch. 625 ; (1899) 2 Oh. 679 ; 81 L. T. 141; 47 W. K. 641—

C. A.)

Lord Francis Hope, avIio was a tenant for life in possession
of the estates settled by the will of his grandmother, applied
I'm' the sanction of the Courl to the sale of a settled heirloom.
Certain chattels were by the will settled as heirlooms, and
a mongsj them was a blue Indian diamond I I ' carats in weighl .
known a- the " Hope diamond.

Held, the application must be refusal. When a tenant
for life applies to the Court under sect. 37 of the Settled
Lund Ail. 1882, for leave to hell heirloom*, he must show
some reason why the Court should sanction the sale. The
fa<d that he has involved himself in pecuniary difficulties is
//of a cir' umsiance which ought to have weighl in deciding
in favour if a sole.



EQUITABLE ESTATES FUTURE ESTATES. 191

In considering whether its sanction should be given to a
sale of heirlooms, the Court ought to look at all the circum-
stances — the settlement., the intention of the settlor — and
consider -whether it would he for the benefit of the estate as
a whole that the heirlooms should be sold.



EQUITABLE ESTATES.



There cannot be a Use upon a Use.

TYEEEL'S CASE. [1557]
(Dyer, 155 ; 1 And. 37 (pi. 96), 313; 2 And. 136.)

Jane Tyrrel, for the sum of 400/. paid by G. Tyrrel, her
son and heir apparent, by indenture enrolled in Chancery, bar-
gained and sold to G. Tyrrel to the use of the bargainor
(Jane Tyrrel) for life, remainder to the use of G. Tyrrel in
tail, remainder to the use of the right heirs of the bargainor.
The question arose whether the limitation of these uses was
had.

Held, the habendum was void, for there cannot be a use
upon a use, and G. Tyrrel therefore held the land in fee.



FUTURE ESTATES.



According to the Rule in Shelley's Case a Gift to A. for life, and
after his Death to his heirs, creates a fee simple in A., and
gives nothing to the heirs of A.

VAN GEUTTEN v. FOX WELL. [1897]
(66 L J. Q. B. 745; (1897) A. C. 658; 77 L. T. 170— H. L. (E.).)

William Harris devised an estate to trustees in trust in case
he should leave only one child (an event which happened) to



192 REAL PROPERTY AND CONVEYANCING.

permit such child to receive the rents and profits for her
natural life, and after tier death to stand possessed of the estate
unto the use of the heirs of the body of such child.

The testator died leaving one daughter, Mary, who,
treating the property as an estate tail, duly barred the entail.

On the death of Mary, her heir claimed to be entitled to the
property on the ground that it was a fee simple at her death.

The heir of William Harris (a) claimed to be entitled on
the ground that Mary had only held a life estate.

Held, that the rule in Shelley's Case applied, and that the
will created an estate tail which, having been duly disen-
tailed by Mary, tvent to her heirs.

Note. — The rule in Shellei/s Case is as follows: — "It is a rule
in law, when the ancestor by any gift or conveyance takes an estate
of freehold, and in the same gift or conve} r ance an estate is limited
either mediately or immediately to his heirs in fee or in tail, that
always, in such cases, 'the heiis ' are words of limitation of the
estate and not words of purchase." In other words, the estate
which the ancestor takes is described and nothing is given to the
heirs.



A Devise to a person and his children, or issues, who has no issue
at the time of the Devise, is an estate tail ; if that person
has issue at the time of the Devise, he and his issue take
joint estates.

WILD'S CASE. [1599]
(6 Coke, 16.)

Land was devised to A. for life, the remainder to B. and the
heiis of his body, the remainder to " Rowland Wild and his
wife," and after their decease to their " children," Rowland

(a) William Earris having died before 1S33, his heir would be traced
according to tin- old law,



FUTURE ESTATES. 193

Wild and his wife then having issue a son and daughter ; and
afterwards the devisor died, and after his decease A. died, B.
died without issue, Rowland Wild and his wife died, and the son
had issue a daughter, and died. The question was whether
this daughter should have the land or not, and it depended only
upon the consideration what estate Rowland Wild and his wife
had, viz., if they had an estate tail, or an estate for life with
remainder to their children for life.

Held, that Roivland Wild and his wife had but an estate
for life with remainder to their children for life, and no
estate tail.

A devise to a person and his children or issue, zvho has
no issue at the time of the devise, is an estate tail ; if he
has issue at the time of the devise, he and his issue take
joint estates.



A Contingent Remainder must not offend the Rule against
Perpetuities.

Re ASHFORTH, SIBLEY v. ASHFORTH. [1905]

(74 L. J. Ch. 361 ; (1905) 1 Ch. 535 ; 92 L. T. 534 ; 53 W. R. 328.)

The testatrix, who died in 1864, devised her real estate to her
three children for their lives, and then to their children for their
lives, with remainder to the last survivor of her children's
children in fee simple.

Two of the children of the testatrix died without leaving
issue, and the remaining child, Greorge M. Ashforth, died in
1870, leaving three children, the present plaintiffs, surviving
him.

Held, the ride against perpetuities is applicable to legal
contingent remainders, and as the remainder to the last
survivor of George M. Ashfortli's children might not take

j. o



194 REAL PROPERTY AND CONVEYANCING.

effect zvithin twenty-one years of his death, the gift to his
last surviving child in fee simple was void.



RIGHT OVER LAND IN THE POSSESSION
OF OTHERS.



The lateral Support of Buildings by the land of another is
obtained by Twenty years' Enjoyment of the Support or
by Grant.

DALTON v. ANGUS. [1879]
(50 L. J. Q. B. 689 ; 6 App. Cas. 740 ; 46 J. P. 132 ; 44 L. T. 844 ;

30 W. E. 191.)

The house of the plaintiffs, Messrs. Angus, had stood for con-
siderably more than twenty years. The Commissioners of Her
Majesty's Works and Public Buildings owned a house which
directly adjoined the plaintiffs' house. The Commissioners
employed Messrs. Dalton to pull down and rebuild their house,
and Messrs. Dalton employed a sub-contractor, who by remov-
ing the soil from the foundations let down the plaintiffs' house.

Held, the plaintiffs tvere entitled to damages for the letting
down of their house. Where the oivner of land builds a house
on the extremity of his land, the house acquires at the end
of tiventy years a light to the lateral support it derives from
the adjacent soil belonging to another proprietor, by reason
of sect. 2 of the Prescription Act (2 Sf 3 Will. IV. c. 71).



RIGHT OVER LAND IN POSSESSION OF OTHERS. 19o

An indefeasible Right to the access and use of Light by Prescrip-
tion can only be obtained where the enjoyment has been
without leave in writing for the Twenty years next preced-
ing the Action or Claim brought to determine the same.

HYMAN v. VAN DEN BEKGH. [1907]
(76 L. J. Ch. 554 ; (1907) 2 Ch. 516 ; 97 L. T. 297.)

In 1877 the plaintiff erected a cowshed the windows of which
overlooked the defendants' field. In 1898 the defendants
instructed their surveyor to obstruct the windows.

The cowshed was then in the tenancy of Cox, who, not know-
ing that an easement had been acquired, wrote the following
letter to the surveyor : "Memorandum. Dear Sir, — I will give
you one shilling per annum for the use of those eight lights you
have boarded up in my cowshed. — Yours truly, John Cox."
The surveyor did not acknowledge the letter, but had it stamped
as an agreement, and the judge found as a fact that in reliance
on it he refrained from erecting the obstruction. He did not
demand payment of the shilling a year till June 5, 1903, when
he wrote a letter to Cox asking for the arrears to date. Cox
took no notice of the letter, and the shilling a year was never in
fact paid.

Held, the plaintiff had not acquired an indefeasible right
to the easement claimed.

Hoivever long the period of actual enjoyment of the access
and use of light may be, no absolute or indefeasible right to
it can be acquired under the Prescription Act, 1832, till
the right is brought in question in some action or suit ; and
until it is so brought in question the enjoyment relied on
must be enjoyment for the twenty years next preceding some
such action or suit ; in the computation of this period of
twenty years, there must not be excluded a period during
which the enjoyment of the light has been by some consent or

o2



196 REAL PROPERTY AND CONVEYANCING.

agreement expressly given or made for that purpose by deed
or writing.

An agreement entered into bona fide for the piurpose of
securing the access arid use of light to windows, and to which
such access and use is actually due, is a sufficient agreement
in writing within sect. 3 of the Prescription Act, 1832, if
signed by the tenant in possession of the dominant tenement.



Where the Owner of two Tenements conveys one to another
Person, he does not, in the absence of Express Words,
reserve to himself by implication an Easement for the
benefit of his own Tenement.

EAY v. HAZELDINE. [1904]

(73 L. J. Ch. 537 ; (1904) 2 Ch. 17 ; 90 L. T. 703.)

The owner of two houses conveyed one to a purchaser with-
out reserving any right of light in respect of two windows in
the house which he retained. The conveyance contained a
covenant by the purchaser to permit the vendor to euter on the
premises sold for the purpose of pointing or repairing the
vendor's own buildings. Certain windows overlooked the
premises of the purchaser ; one lighted a pantry on the ground
floor, and the other a landing on the first floor ; the access of
light to the windows was absolutely necessary for the enjoy-
ment of the pantry and landing. The plaintiff, who claimed
through the purchaser, blocked up the windows by a wall. The
plaintiff asked for a declaration that he was entitled so to do.

Held, if a vendor of land desires to reserve any rights in
the nature of an easement for the benefit of his adjoining
land which he has not parted with, he must, except in one
or two cases, do it by express ivords in the deed of convey-
ance. One of the exceptions to this rule is that of an
easement of necessity, that is to say, where the enjoyment of



RIGHT OVER LAND IN POSSESSION OF OTHERS. 197

the alleged right is necessary to the property which is not
conveyed with the adjacent land ; and in that case, the
Court ivill consider if the reservation is to be implied
although it is not reserved by express words.

In this case there was no express reservation of the right
to light, and although the light to these windows might be
necessary to the reasonable enjoyment of the vendor's
property, that was not enough to create an u easement of
necessity" and the plaintiff was therefore entitled to build
so as to obstruct the light to these two windoivs, but not so
as to prevent the enjoyment by the vendor of the benefit of
the covenant as to pointing and repairing.



No man shall derogate from his own Grant.

SWANSBOKOUGH v. COVENTEY. [1832]
(2 L. J. C. P. 11 ; 9 Bing. 305 ; 2 M. & Scott, 362.)

The Postmaster- General being possessed of a certain piece of
land, put it up for auction in two lots.

The plaintiff purchased one lot with a house on it, and the
defendant at the same time purchased the adjoining land, upon
which an erection of one storey high had formerly stood. In
the conveyance to the plaintiff, his house was described as
bounded by building ground belonging to the defendant.

The defendant erected upon his land a dwelling-house, which
was now complained of as obstructing the light coming to
the plaintiff's house.

Held, that the defendant was not entitled to build to a
greater height than one storey, if by so doing he obstructed
the plaintiffs lights.

It is well established by the decided cases that where the
same person possesses a house having the actual use and



198 REAL PROPERTY AND CONVEYANCING.

enjoyment of certain lights, and also possesses the adjoining
land and sells the house to another person, although the
lights be new, he cannot, nor can anyone who claims under
Mm, build, upon the adjoining land so as to obstruct or
interrupt the enjoyment of those lights, for no man shall
derogate from his own grant.



The owner of a dominant Tenement is only entitled to such an
amount of Light as is reasonable for ordinary occupation,
irrespective of the particular purpose for which he has used
the Light. A mandatory injunction will not generally be
granted where Damages would be an adequate remedy.

COLLS v. HOME AND COLONIAL STORES. [1904]

(73 L. J. Ch. 484 ; (1904) A. C. 179 ; 90 L. T. 087 ; 53 W. E. 30 ;
20 T. L. R. 475— H. L. (E.).)

This action was brought to restrain the defendants from
erecting on the site of 41, Worship Street any building so as to
darken, injure or obstruct any of the ancient lights of the
plaintiff.

The plaintiff's premises were used as offices, and it was found
at the trial that even after the erection of the defendants'
building they would be well and sufficiently lighted for all
ordinary purposes of occupancy as a place of business, but that
if the defendants' building remained the plaintiff would have to
consume and pay for more electric light than before.

Held, the buildings of the defendants not having so
materially interfered with the light previously enjoyed by
the plaintiff as to amount to a nuisance, the p>laintiff had
no right of action. The owner or occupier of a dominant
tenement is entitled to the uninterrupted access through his
ancient windoios of such an amount of light as is required
for the ordinary purposes of inhabitancy or business accord-



RIGHT OVER LAND IN POSSESSION OF OTHERS. 199

ing to the ordinary notions of mankind, without regard to
the particular purpose for which he has used the light.

An obstruction which will justify the interference of the
Court must be of such a character as will constitute a
nuisance.

By Lord Macnaghten and Lord Lindley : — A mandatory
injunction for the removal of a building obstructing ancient
lights should not be granted in an ordinary case where
damages would be an adequate remedy.



The right to Light may be lost by Abandonment, but not merely

by Non-user.

MOORE v. RAWSON. [1824]
(3 L. J. (0. S.) K. B. 32 ; 3 B. & C. 332 ; 5 D. & R. 234 ;
27 R. R. 375.)

The plaintiff brought this action against the defendant for
obstructing certain lights. The plaintiff's messuage was an
ancient house, and adjoining it there had formerly been a
building in which there was an ancient window overlooking the
land of the defendant. The former owner of the plaintiff's land
had seventeen years previously pulled down this building and
erected another on the same site with a blank wall overlooking
the defendant's premises. The plaintiff just before this action
was brought opened a window in the same place as the window
had been in the old building. The defendant thereupon erected
a building just opposite the plaintiff's building.

Held, the plaintiff was not entitled to maintain this
action, because by erecting the blank wall he not only ceased
to enjoy the light but had evinced an intention never to
resume it.



200 KEAL PROPERTY AND CONVEYANCING.

The right to the free access of Air through a defined channel may
be the subject of an implied Covenant, but cannot be the
subject of a Grant or Prescription.

HALL v. THE LICHFIELD BREWERY CO. [1880]
(49 L. J. Ch. 655 ; 43 L. T. 380.)

The plaintiff was a butcher at Lichfield and the owner in fee
of the house and premises where he carried on his business. He
claimed damages from the defendants in respect of injury caused
by the obstruction of light to certain windows of his house, and
the obstruction of air to his slaughter-house in consequence of
the erection of new buildings by the defendants. The slaughter-
house had been used in the same form for upwards of thirty
years.

Held, that the plaintiff iv as entitled to damages for the
breach of an implied covenant not to interrupt the free access
of air suitable for the purpose of a slaughter-house.
Such a right is not one that can be claimed by grant,
because it is not a thing which is to be used by the grantee
on the soil of the grantor ', nor can it be the subject of pre-
scription, for prescription is the implication of a grant.



If a Person enters upon the Land of another and holds possession
for a time, and then, without having acquired a Title under
the Statute of Limitations, abandons possession, the true



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 16 of 29)