B e f o r e :
THE MASTER OF THE ROLLS
(Lord Denning) LORD JUSTICE DANCKWERTS
and LORD JUSTICE WINN
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Between:
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E.R. IVES INVESTMENTS LIMITED
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Applicants
Appellants
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J.W. HIGH
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Respondent
Respondent
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(Transcript from the Shorthand Notes of The Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C..2.)
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MR E.I. GOULDING, Q.O. and MR JAMBS SUNNUCKS (instructed by Messrs Jaques & Co., Agents for Messrs Hill & Perks, Norwich) appeared as Counsel for the Appellants,
MR P. MILLETT (instructed by Messrs Maxwell Batley & Co., Agents
for Messrs Emmett & Tacon, Norwich) appeared as Counsel for the Respondent.
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Crown Copyright ©
THE MASTER OF THE ROLLS: (read by LORD JUSTICE WINN): During the War the City of Norwich was bombed by the enemy. Three houses in Earlham Road were demolished and their sites left vacant. In May 1949 Mr High bought the site of 77, Earlham Road and started to build a house on it. He was a builder and he intended to live in it himself. About the same time Mr Westgate bought the adjoining sites of 73 and 75 Earlham Road and started to build a block of flats on the double site. In the course of the work Mr Westgate encroached on to Mr High's site. Mr Westgate dug down nine feet to lay the foundations of the block of flats and he put the footings and foundations twelve inches over the boundary into Mr High's land. Above ground level, the wall of the block of flats was to be on the boundary line, but below ground level, the foundations trespassed a good twelve inches over the boundary.
Mr High at once objected to the trespass. On the 2nd November, 1949, there was a meeting on the site between Mr High and Mr Westgate, a surveyor, an architect and others. Mr Westgate admitted the trespass. Mr High could have compelled Mr Westgate to remove the foundations. But instead of doing so, Mr High came to this agreement with Mr Westgate:
On the one hand, Mr Westgate was to be at liberty to keep the foundations of the block of flats as they ware in Mr High's land; and Mr Westgate was to build up the wall of the flats on that side with no windows or openings on to Mr High's land.
On the other hand, Mr High was to have a right of way from the back of his own house (then being built) across the yard of Mr Westgate's block of flats so as to give access to a side road, Belvoir Street. (At that time, in November 1949, Mr High had not got a oar, but he hoped to get one some day and desired access for it).
After the agreement was made, letters passed evidencing it. There was a suggestion that the solicitors should be instructed to draw up a written agreement, but it was never done. On this account it was suggested before us that there was no concluded agreement. But the Judge was satisfied there was.
So am I. The agreement was complete. All that was suggested was to put it into form.
Both sides acted on the agreement. Mr Westgate went on building his block of flats with the foundations encroaching into Mr High's land, and no windows or openings on that side. Mr High built his house in such a way that the only practicable access by car was across the yard at the back of Mr Westgate's block of flats.
In March 1950 Mr Westgate sold his site to Mr and Mrs Wright. The conveyance made no mention of the foundations or of the right of way for Mr High. But the Judge inferred that the Wrights were told about the agreement. Soon afterwards Mr High finished his house. The block of flats ware finished. Mr High used the way across the yard.
In 1959 Mr High built a garage at the back of his house, No.77. In doing so he relied on the right of way given him in 1949. He so constructed his garage that it could only be entered from the yard of the Wrights' block of flats and the ear could only be driven in and out over that yard. The Wrights 'watched the garage being built and complimented Mr High on it. Next year Mr High bought a car and thereafter continually garaged it in his garage and went in and out across the Wrights' yard - which was the only means of access.
In the next year, 1960, the Wrights got Mr High to resurface the yard. The cost was £14.10a.0d. The Wrights had four garages for their flats. Mr High had his one. Mr High paid one-fifth of the coat. Thus the Wrights recognised that he used the yard to get to and from his garage.
On the 27th November, 1962, the Wrights put up the block of flats for sale by auction. The particulars of sale stated distinctly that there was a right of way for Mr High, saying:
"The property is also sold subject to the right of the owners and occupiers of No.77 Earlham Road as now enjoyed to pass and repass with or without vehicles over the open yard to and from Belvoir Street".
At the auction the property was sold to E.R.Ives Investments Ltd. During the investigation of title the purchasers' solicitors asked: "How did the right of way over the yard in favour of No.77 Earlham Road arise?". The vendors' solicitors replied: "We imagine that this arose as a result of the destruction of No.73 and No.75 during the War. Presumably No.77 was given a right of way over the yard in lieu of over the 4 ft. wide passageway, but we cannot trace any document in connection therewith".
On the 1st January, 1963, the conveyance was made by the Wrights to E.R.Ives Investments Ltd. It expressly stated that the property was conveyed subject "to the right (if any) of the owners and occupiers of No.77 Earlham Road as now enjoyed to pass and repass with or without vehicles over the open yard at the rear of the block of flats to and from Belvoir Street".
Now here is the point. The right of way was never registered as a land charge. The purchasers, E.R.Ives Investments Ltd., say that it should have been registered under Class C (iv) as an Estate Contract, or under Class D (iii) as an Equitable Easement: and that, as it was not registered, it is void against them, the purchasers. Even though they had the most explicit notice of it, nevertheless they say it is void against them. They claim to be entitled to prevent Mr High having any access to his garage across their yard: and thus render it useless to him. They have brought an action for an injunction to stop him crossing the yard at all.
One thing is quite clear. Apart from this point about the Land Charges Act, 1925, Mr High would have in equity a good right of way across the yard. This right arises in two ways:-
1. Mutual benefit and burden.
The right arises out of the agreement of the 2nd November, 1949, and the subsequent action taken on it: on the principle that "he who takes the benefit must accept the burden". When adjoining owners of land make an agreement to secure continuing rights and benefits for each of them in or over the land of the other, neither of them can take the benefit of the agreement and throw over the burden of it. This applies not only to the original parties, but also to their successors. The successor who takes the continuing benefit must take it subject to the continuing burden. This principle has been applied to neighbours who send their water into a common drainage system, see Hopgood v. Brown, 1955, 1 Weekly Law Reports, page 213: and to purchasers of houses on a building estate who had the benefit of using the roads and were subject to the burden of contributing to the upkeep, see Halsall v. Brizell 1957 Chancery, page 169. The principle clearly applies in the present case. The owners of the block of flats have the benefit of having their foundations in Mr High's land. So long as they take that benefit, they must shoulder the burden. They must observe the condition on which the benefit was granted, namely, they must allow Mr High and his successors to have access over their yard, of. May v. Belleville. 1905, 2 Chancery, page 605. Conversely, so long as Mr High takes the benefit of the access, he must permit the block of flats to keep their foundations in his land.
2. Equity arising out of acquiescence:
The right arises out of the expense incurred by Mr High in building his garage, as it is now, with access only over the yard: and the Wrights standing by and acquiescing in it, knowing that he believed he had a right of way over the yard. By so doing the Wrights created in Mr High's mind a reasonable expectation that his access over the yard would not be disturbed. That gives rise to an "equity arising out acquiescence". It is available not only against the Wrights but also their successors in title. The Court will not allow that expectation to be defeated when it would be inequitable so to do. It is for the Court in each case to decide in what way the equity can be satisfied, see Inwards v. Baker, 1965, 2 Queen's Bench, page 29: Ward v. Kirkland, 1966, 1 Weekly Law Reports, page 621, and the cases cited therein. In this case it could only be satisfied by allowing Mr High and his successors to have access over the yard so long as the block of flats has its foundations in his land.
The next question is this: Was that right a land charge such as to need registration under the Land Charges Act, 1925? For if it was a land charge, it was never registered and would be void as against any purchaser, see Section 13 of the Act. It would, therefore, be void against ER Ives Investments Ltd v JW High, even though they took with the most express knowledge and notice of the right.
It was suggested that the agreement of the 2nd November, 1949, was "an estate contract" within Class C(iv). I do not think so. There was no contract by Mr Westgate to convey a legal estate of any kind.
It was next suggested that the right was an "equitable easement" within Class D (iii). This class is defined as "any easement right or privilege over or affecting land created or arising after the commencement of this Act, and being merely an. equitable interest". Those words are almost identical with Section 2(3)(iii)of the Law of Property Act, 1925, and should be given the same meaning. They must be read in conjunction with Sections 1(2)(a), 1(3) and 4(1) of the Law of Property Act, 1925. It then appears that an "equitable easement" is a proprietary interest in land such as would before 1926 have been recognised as capable of being conveyed or created at law, but which since 1926 only takes effect as an equitable interest. An instance of such a proprietary interest is a profit a'prendre for life. It does not include a right to possession by a requisitioning authority, see Lewisham Borough Council v. Maloney. 1948, 1 King's Bench, page 50. Nor does it include a right, liberty or privilege arising in equity by reason of "mutual benefit and burden", or arising out of "acquiescence", or by reason of a contractual licence: because none of those before 1926 were proprietary interests such as were capable of being conveyed or created at law. They only subsisted in equity. They do not need to be registered as land charges, so as to bind successors, but take effect in equity without registration, see an article by Mr C.V.Davidge on "Equitable Easements" in (1937) 59 Law Quarterly Review, page 259, and by Professor H.W.R. Wade in 1956 Cambridge Law Journal, pages 225-6.
The right of Mr High to cross this yard was not a right such as could ever have been created or conveyed at law. It subsisted only in equity. It therefore still subsists in equity without being registered. Any other view would enable the owners of the flats to perpetrate the grossest injustice. They could block up Mr High's access to the garage, whilst keeping their foundations in his land. That cannot be right.
I am confirmed in this construction of the statute when I remember that there are many houses adjoining one another which have drainage systems in common, with mutual benefits and burdens. The statute cannot have required all these to be registered as land charges.
I know that this greatly restricts the scope of Class D(iii) but this is not disturbing. A Special Committee has already suggested that Class D(iii) should be abolished altogether, see the Report of the Committee on Land Charges (1956) Command Paper 9825, paragraph 16.
In these circumstances it is not necessary to consider the counterclaim. I would only say that I do not think the owners of the block of flats have acquired a "squatter's title" to the space occupied by the foundations. They ware only licensees and cannot acquire a title by limitation. If they were entitled to block up Mr High's access over their yard, he would I think be entitled to require them to remove the foundations from his land. But, fortunately for them, no such consequence will befall them. They can keep their foundations there, but they must not block up or impede his access across their yard, with or without vehicles.
I would therefore dismiss the appeal.
LORD JUSTICE DANCKWERTS: This appeal from the decision of His Honour Judge Carey Evans is concerned with property built on a site made vacant by war damage fronting on Earlham Road and Belvoir Street, Norwich. The respondent, Mr High, owned the site of No.77, Earlham Road and Mr Westgate owned the sites of Nos. 73 and 75, Earlham Road. They were both builders. Mr Westgate built a block of flats on his site Nos.1 to 6, Frances Court. Unfortunately, as Mr High discovered, the foundations of this block of flats encroached some feet below ground on to the land forming part of No.77, Earlham Road, belonging to Mr High, on which Mr High was proposing to build a house for himself.
Both Mr Westgate and Mr High were sensible and reasonable neighbours. They entered into negotiations and it is clear, as found by the learned County Court Judge, that they reached an oral agreement that Mr Westgate should keep his foundations where they were, but in return Mr High should have a right of way across the yard adjoining the flats to a garage which Mr High intended to build close to the boundary of his land at the back of his house.
There was a meeting on the 2nd November, 1949, on the site between the parties and there were some letters. There were letters of the 6th and 12th December, 1949, referring to the oral agreement, and finally one on the 13th December, 1949, from Mr High in which he said (after referring to fences):
"I shall be very glad to have the right you offer across the back of your site so that 1 can have access with a ear to the rear of my site. Can you allow 8 ft. wide? Perhaps you will kindly instruct your solicitor to write to my solicitors, Daynes Keefe & Co., Castle Meadow, Norwich, with the necessary agreement".
It has been argued that this was not a binding agreement on the principle of such cases as Chillingworth v. Esche. 1914, 1 Chancery at pages 113-114 (either a contract to make a contract or a conditional contract). But I am satisfied that the agreement was a binding contract, and the parties merely contemplated that it would be put into proper form by a solicitor in the manner recognised in such eases as Rossiter v. Miller (1878) Law Reports, 3 Appeal Cases, page 124, and Bonnewell v. Jenkins, (1876) 8 Chancery Division, page 70.
Unfortunately, apparently no-one told Mr High that Ma prudent course, by reason of the Land Charges Act, 1925, and Section 199 of the Law of Property Act, 1925, was to register a land charge either as a Class C(iv) Estate Contract, or a Class D(iii) Equitable Easement.
Relying on his agreement with his neighbour, Mr High built his house with only a narrow passageway between his house and the neighbouring flats, so that he could not have had access with a car past his house that way. His house was completed nearly a year after the agreement of the 2nd November, 1949. Mr Westgate sold his property (Nos. 73 and 75) to some people called Wright and conveyed it to them by a conveyance dated 14th March, 1950, which referred to Mr High's right of way.
Mr High was on good terms with the Wrights. He used the right of way without question or demur both for pedestrians and for taking rubble off his site. About the same time an 8 ft. wide opening was made in the wire fence separating No.75 from No.77 so as to allow access to No.77 from the yard of No.75.
During the Wrights' time the wire fence was replaced with a new wall, but the 8 ft. gap was preserved. Mrs Wright was consulted about this, as the wall of Mr High's garage, which he built in 1959 immediately opposite the 8 ft. gap, was included in this new boundary wall. The garage was constructed in such a way that it could only be entered from the yard of No.75 and Mr High could only drive out over that yard. Further, the learned County Court Judge accepted Mr High's evidence that the Wrights watched the garage being built and complimented him on it. They knew that the only access to it was through the yard of No.75. In 1960 Mr High bought a car, as ha had anticipated, and thereafter used the garage and the access over the yard in connection with it.
In 1962 Mr High tendered for and was given the job of resurfacing the yard and in his bill he deducted one-fifth of the cost, obviously because he was a user of the yard, and the bill was duly paid.
Towards the end of 1962 the Wrights offered Frances Court for sale by auction and by Special Condition No.9 provided for the continuance of Mr High's right of way. The property was bought by the plaintiff company and was conveyed to them by a conveyance dated the 1st January, 1963, in which (at the suggestion of the plaintiff company's solicitors) the conveyance was subject to Mr High's right of way "if any".
A few months later the plaintiffs challenged Mr High's right of way. The plaintiff company's solicitors changed their ground several times, but finally these proceedings were started by the plaintiff company in 1965. His Honour Judge Carey 'Evans decided in Mr High's favour on the 28th April, 1966, and dismissed the action. From that decision the plaintiff company appeals.
One point argued on behalf of the plaintiff company was that they had acquired title to the land occupied by the foundations under the Limitation Act, 1939. They and their predecessors in title have, of course, continued to enjoy the foundations which encroached on Mr High's land. They are still there. But it is quite clear that this occupation of the soil was permissive by reason of the oral agreement of the 2nd November, 1949, and not as of right. It is said, however, that the owners of Nos. 73 and 75 enjoyed the foundations under a tenancy at will and the plaintiff company claim that the statutory provisions accordingly started the time running at the end of the first year of such a tenancy and more than 13 years have run from the beginning of such a tenancy.
This in my opinion will not do. No tenancy was contemplated or created, and the statutory provisions relating to a tenancy at will have no application.
It is necessary, in connection with Mr High's case, to consider the effect of the Land Charges Act, 1925, and Section 199 of the Law of Property Act, 1925. The effect of the pro-visions of the Land Charges Act, 1955, Sections 10 and 13, is to make Mr High's right of way, so far as it ought to have been registered as an Estate Contract or an Equitable Easement, either void or unenforceable, and Section 199 of the Law of Property Act, 1925, prevents express notice of Mr High's rights being effective in any way, though the plaintiff company bought subject to the right of way and had the moat positive notice of it.
But that is not the end of the matter. There is another equitable ground on which Mr High's rights may be protected, which has nothing whatever to do with the Land Charges Act. It is discussed in Snell's Equity (26th Edition) at pages 629-633 under the name "Proprietary estoppel", and the comment is made (page 633) that "the doctrine thus displays equity at its moat flexible". There are two aspects in which this equitable principle applies in the present case. Firstly, in the present case Mr High, in reliance on the arrangement made with Mr Westgate, allowed the encroaching foundations to remain on his land and built his house without proper access except ever the yard, and finally built his garage in such a way that it was useless unless access to it and from it could be had over the yard. Mr Westgate acquiesced in the use of the yard for access and the Wrights stood by and, indeed, encouraged Mr High to build his garage in these conditions and for these purposes. Could anything be more monstrous and inequitable afterwards to deprive Mr High of the benefit of what he has done?
Secondly, the Wrights had continued to enjoy the benefit of the encroaching foundations on Mr High's land. It would no doubt be quite an expensive job to remove the encroaching foundations and provide other support for the building. Equity does not allow a person who takes advantage of such a situation to deny to the other party the corresponding benefits which ware the consideration for allowing the foundations to remain.
The plaintiff company bought the property subject to Mr High's equitable rights and the property was so conveyed to them. They had full knowledge of the situation, yet they continue to enjoy the benefits of the situation and wish to deny to Mr High the benefit of what he was induced to do in reliance on the mutual arrangement. As long as the plaintiff company continue to enjoy the foundations, they must accept the terms of that enjoyment.
This is not a registrable charge, and Section 199 of the Law of Property Act, 1925, has no application.
I will now refer to the authorities in which support for these principles can be found.
Inwards v. Baker, 1965, 2 Queen's Bench, page 29 (a decision of this Court) is a modern example of the protection of equity which is given to a parson who is induced to expend money on land on reliance on representations by another. I would like to refer to my observations in that ease at p.38:
"In my view the ease comes plainly within the proposition stated in the eases. It is not necessary, I think, to imply a promise. It seems to me that this is one of the cases of an equity created by estoppel, or equitable estoppel, as it is sometimes called, by which the person who has made the expenditure is induced by the expectation of obtaining protection, and equity protects him so that an injustice may not be perpetrated".
Those words apply to the present case.
The principle there stated is not new. It goes back at least as far as the observations of Lord Kingsdown in Ramadan v. Dyson (1866) Law Reports, 1 House of Lords, page 129 at page 170, which were approved by the Privy Council in Dimmer v. Wellington Corporation. (1884) Law Reports, 9 Appeal Cases, page 699.
In the same case (Inwards v. Baker) at page 37 Lord Denning pointed out that any purchaser who took with notice would clearly be bound by the equity.
The same principles were applied by Mr Justice Ungoed-Thomas in Ward v. Kirkland, 1966, 1 Weekly Law Reports, page 601.
Examples of the principle that a party cannot enjoy the benefits of an arrangement without giving effect to the burdens imposed on such benefits are to be found in Hopgood v. Brown. 1955, 1 Weekly Law Reports, page 213 (a decision of this Court relating to the use of drainage); and Halsall v. Brizell. 1957, 1 Chancery, page 169 (a decision of Mr Justice Upjohn, as he then was, holding that a successor in title could not use roads without bearing the burden of the contributions to upkeep imposed under the original terms).
In my opinion the learned County Court Judge reached the right conclusion, and I would dismiss the appeal.
LORD JUSTICE WINN: This dispute between neighbours reveals the typical characteristic of such disputes that they are imbued with a degree of acrimony unrelated to their magnitude. However, it should be said emphatically that in the instant case Mr High, the defendant in the County Court, has behaved with complete propriety, albeit imprudently, inasmuch as he failed to secure his position by seeking legal advice and taking the appropriate steps to make it impregnable.
The history of the events which have called for the consideration of the Court begins with a trespass upon the land of Mr High in the year 1949, committed by his then neighbour, a Mr Westgate, a predecessor in title of the plaintiffs in this action. Mr Westgate, having begun building operations for the erection of a block of flats, caused or permitted the footings forming part of the foundation of the west wall of his building to intrude to an extent of some 14 inches over his boundary with the land of Mr High, at and below a depth of some 8 feet beneath the surface. This Mr Westgate and Mr High had acquired adjoining plots of land on a bomb site, on which plots respectively they, being builders, were minded, after clearing the ground of the rubble from the buildings destroyed by enemy action, to build, in Mr Westgate's case the flats referred to, and in Mr High's ease a house for his own occupation: Mr Westgate's plot lay to the eastward of Mr High's, being bounded on the east by Belvoir Street: both plots were bounded on the south by Earlham Road, In October 1949 Mr High became aware of the intrusion of the footings and summoned Mr Westgate to a meeting on the site which was attended by others, including a representative of the limited company controlled by Mr Westgate which was to erect the flats. At this meeting it was established and fully accepted that the footings did so intrude into the land of Mr High and, at least tacitly, that Mr High was entitled to have them removed; this would, of course, have been an expensive and labour-consuming task, though at the early stage of construction then reached not so grave a matter as such removal progressively would have become as and when a wall and other parts of the intended building were placed in position,
A friendly and mutually sympathetic discussion took place at which, as the learned County Court Judge found - and I have no doubt whatsoever rightly found - a concluded agreement was orally made between Mr High and Mr Westgate. It is true that a week or two after this meeting Mr High, having become somewhat impatient, wrote a letter consistent either with an inclination to withdraw from an agreement already made or an assertion that the matter remained open for further negotiation: I take the view that the former of these two interpretations should be put upon that letter, and that neither its terms nor a reference to be found in Mr High's next letter, written in reply to an intervening letter from Mr Westgate, to his expectation that solicitors would prepare "the necessary agreement", puts this ease into the category of cases exemplified by Von Hatzenfeldt Wildenberg v. Alexander; Chillingworth v. Esche and many other eases. It was undoubtedly a term of the agreement so made that Mr Westgate, whose plan for the flats to be erected would leave an open area or yard behind, that is to say, to the north of the building with an access to the eastward to Belvoir Street, would permit Mr High to exercise a right of way to and from that street across that area or yard to and from the eastern boundary of Mr High's land for use on foot or with vehicles. It is equally clear that Mr High agreed with Mr West-gate that he would not complain of or take any steps to secure the removal of the footings projecting under his land.
In the County Court proceedings and before this Court the dispute has centred upon the effect in law of that agreement and the extent to which, if at all, it can operate to secure for Mr High the continued user of the right of way for which he so bargained, due regard being had to the provisions of the Land Charges Act, 1925, and of Section 199 of the Law of Property Act, 1925, in the light of the changes in ownership of the land formerly owned by Mr Westgate which have occurred since 1949, the conduct of the parties who have held and now hold the title to that land, and the fact that the footings are still in the same position, where the plaintiffs in the present action assert that they are entitled to have them left undisturbed. The argument has involved many niceties of a somewhat technical and esoteric character.
The substance of the dispute is whether Mr High's claim to be entitled to cross the yard behind the plaintiffs' block of flats, called Francis Court, on foot and in a ear, which the plaintiffs sought by their claim in this action to deny and destroy and the claim of the plaintiffs to be free in law to maintain the footings of the west wall of their flats in Mr High's land, are interdependent or, by contrast, so mutually separate and independent, in fact or in law, that the plaintiffs can both maintain their claim and bar that of Mr High. There is a subsidiary but important question whether Mr High's claim, if valid, is only a personal right; this does not fall to be now decided.
I have found it simple to decide in my own mind that Mr High and Mr Westgate intended and mutually communicated by words or conduct the intention that NT High's plot of land should for an indefinite time (a) enjoy the adjunct of a right of way to and from Belvoir Street and the eastern boundary of the plot 8 feet wide, for use on foot or in a ear, (b) be subject to the detriment of the presence in the plot of such footings as existed there in November 1949: further, such intention, by necessary inference, fixed as the event upon which this arrangement would terminate any future removal of the protruding footings. It would have been wholly inconsistent with their intention, on the traditional "officious bystander" test, that it should have been left to the choice or whim of Mr High or any successor in title to his plot to require at any time the removal of the footings, even upon simultaneously abandoning any claim to the right of way.
It is, however, far from a simple matter to have to envisage, as I think one must, in terms of legal concepts what effect was produced by that arrangement made with that intention. On the one hand, I accept Mr Goulding's submission that it comprised a contract by Mr Westgate to grant a legal easement, which was equivalent in equity to an equitable easement, and his further submission that such contract or easement was by force of Section 13(2) of the Land Charges Act, 1925 void against any subsequent purchaser for value of Mr Westgate's property, if unregistered, despite any notice of it which such purchaser might have had before purchasing. On the other hand, I am unable to accept his submission that a tenancy at will arose in favour of Mr Westgate in respect of the subterranean space occupied by the footings. Some legal fictions are valuable and may conveniently be used, but properly only constructively to make good lacunae in imperfectly comprehended arrangements: to impose an effect in law inconsistent with that mutually intended by the parties is, in my opinion, a function of such a device which cannot, or at least should not, it avoidable, be tolerated. In determining whether any, and if so what, tenancy has come into existence, the intention of the suggested parties is of paramount importance of per Lord Justice Denning in Errington v. Errington 1952, 1 King's Bench, page 290 at page 296:
"In my opinion it is of the essence of a tenancy at will that it should be determinable by either party on demand and it is quite clear that the relationship of these parties was not so determinable ....It is, therefore, not a tenancy at will".
And at page 297, quoting Lord Greene, Master of the Rolls, in Booker v. Palmer. 1942, 2 All England Reports, page 674 at page 677:
"To suggest there is an intention there to create a relationship of landlord and tenant appears to me to be quite impossible. There is one golden rule which is of very general application, namely, that the law does net impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind."
Mr Westgate would certainly not have bean willing to rely on a tenancy at will. For my part I do not envisage any tenancy of the subterranean space, but supposing, arguendo, that one is to be deemed, I would think that a tenancy at sufferance would more nearly fit the reality of the arrangement. For this reason I reject the submission that a limitation period of twelve years, running from the expiry of the first year of a tenancy at will, now bars a claim for trespass by the protruding footings if there was a tenancy by sufferance, it was not terminated before Mr High's alleged trespass or in anticipation of the present action.
Licence to maintain the footings is, to my mind, the concept which is far preferable: whilst recognising that a licence could not run with the land of either licensor or licensee, I have no difficulty in supposing that both intended that the licence should be, or that it was, periodically renewable and renewed between the persons from time to time concerned that it should apply.
In my judgment the protrusion of the footings was permitted by licence until but not after the counterclaim in this action was filed.
During the twelve years from 1950 to 1962 purchasers from Mr Westgate of his plot of land, a Flt. Lt. Wright and his wife managed and from time to time resided in Francis Court. They not only licensed Mr High, as had Mr Westgate, to pass over the yard, probably motivated by their knowledge that their footings protruded, but allowed and even encouraged his when he proposed to build himself a garage on his eastern boundary so that, after he first bought a car in about 1960, he could drive it in and out across their yard: they also accepted a contribution from him to the coat of resurfacing that yard. Thus they represented to him that he had a right so to do. A very clear equity and also an estoppel thus arose against them preventing them from denying Mr High user of the right of way. cf. per Mr Justice Upjohn in Halsall & ors v. Brizell & anr., 1957, 1 Chancery, page 169 at page 182. It is, however, to be observed that that case related acre specifically to benefits and burdens arising under a deed and held that such benefits could not be taken without assuming also the burdens. cf. also Inwards v. Baker, 1965, 2 Queen's Bench, page 29, a ease of standing by with knowledge that expenditure was being incurred in reliance upon conduct of the party against whom an equity was therefore held to arise. Notice of this equity, which amounted to an equitable easement, was given in paragraph 9 of the particulars of the auction at which the plaintiffs bought Francis Court, and the land on which it stood, and by the draft of the conveyance of the property.
In my opinion the plaintiffs as successors in title are bound by that estoppel: I do not regard myself as thereby saying anything contradictory of the proposition submitted to the Court that the said equity or equitable easement) as distinct from the estoppel, was rendered void as against the plaintiffs by the statutes to which I have referred. Estoppels arising from representations made by owners of land that rights exist affecting their land will, unless in form they are limited to the duration of the interest of the representor, bind successors to his title. It is no anomaly that a person should have a legally valid answer to a claim and yet be estopped from asserting that answer against the claimant; citation of examples would be otiose and one should suffice; a tenant under a lease, in occupation, is estopped from setting up against his lessor, or an assignee, when sued by him for e.g. rent, any denial that the lessor had an estate in the demised premises entitling him to grant that lease. Where estoppel applies, the person entitled to wield it as a shield has, ex hypothesi, suffered a past detriment or other change of position; he is not asserting any positive right but is invoking law or equity to afford him procedural protection to avert injustice.
Such equities as arise from merely standing by whilst expenditure is incurred under a mistake of fact or law, or from attempts both to approbate and reprobate a deed, always supposing them to be capable of registration, which is I think on the whole an open question, may not survive the lethal effect of the Land Charges Act unless they have been registered. On the other hand, I cannot see that the statute has any impact upon an estoppel, nor do I think that an estoppel could be registrable under its provisions.
It follows in my judgment that the County Court Judge, in an admirably thorough and well reasoned judgment, case to a conclusion on the plaintiffs' claim which I would affirm. As the counterclaim is before us and counsel agree that we should deal with it, I would determine it by declaring that the footings would constitute an actionable trespass unless Mr High and his successors in title were allowed to use the right of way stipulated for in 1949.
I would dismiss this appeal.
Order: Appeal dismissed with costs, such costs to include the costs of the respondent's notice. Leave to appeal to the House of Lords refused.
