Hill v Tupper - Detailed case brief, including paragraph/page references Property law: PDF

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Detailed case brief, including paragraph/page references
Property law:...

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Hill v Tupper Area of law concerned:

Property

Court: Date:

1863

Judge: Counsel: Summary of Facts:

Hill had a deed from a canal company which granted him the sole and exclusive right or liberty of putting or using pleasure boats for hire on their canal. The defendant owned an inn in the same area, and his premises abutted on the canal bank. He also put down pleasure boats.

Relief sought: Issues:

Relevant Statute(s): Procedural History: Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result: Judge’s reasoning:

The action is not without analogy. The grantee of lessee of a several fishery, or of a right of turbary, or other profit a prendre, may sue for a disturbance of his right. Here too, the claim is one of profit. Profit a prendre rights- grantee can sue At 52

Keppell v Bailey: There are certain known incidents to property and its enjoyment; among others certain burthens wherewith it may be affected, or rights which may be created and enjoyed over it by parties other than the owner; all which incidents are recognised by the law… But it must not, therefore, be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner;… great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character…’ Lord Brougham- cannot create new property rights At 52

It is sufficient if he has such an interest as will enable him, as against a wrong-doer, to maintain an action… Definition of property right (?) At 52

In Whaley v Laing the question was discussed, wehther a mere licensee of water was not entitled to maintain an action against any person by whom the water was polluted. Whaley- can a licensee maintain an action against water pollution? Still on 52

Here the plaintiff was in the exercise and enjoyment of an exclusive right, given to him by the express terms of the demise. If the right conferred on the plaintiff had been the exclusive use of the grandstand at a race, or of seats at a window during a procession, he might, it is submitted, maintain an action against a mere intruder. Suppose that, in the demise to the plaintiff power ahad been reserved to confer similar rights on nine other persons, and such rights had subsequently been conferred, could each of the ten maintain an action for an infringement to his right? There, by hypothesis, the right would not be exclusive. Some limitation may be necessary to prevent the creation of innumerable rights… But the use of water is a right well known and recognised. The claim of the plaintiff is to the exclusive use of water, or of land covered with water, for a particular purpose: the nature of the purpose can be no criterion of the existence of the right… If the plaintiff’s contention were correct, the number and variety of rights which might thus be created over land for a particular purpose would be infinite. In Bostock v The North Staffordshire Railway Company the opinion of the majority proceeded on the ground that the Company was created for a specific purpose, and was authorised to take and use lands for that purpose only. Pollock CB: This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right. A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property;… A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as now claimed. … He must obtain the permission of the canal Company to sue in their name… (bottom 53)

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