Licences General
Cases
Wood v Leadbitter
[1845] EWHC Exch J83 (22 February 1845)
22 February 1845
____________________
Between:
WOOD
v
LEADBITTER
____________________
Trespass for assault and false imprisonment. Plea, that, at the time of the said supposed trespass, the plaintiff was in a certain close of the Earl of Eglintoun, and that the defendant, as the servant of Lord Eglintoun, and by his command, gently laid his hands upon the plaintiff, in order to remove him from the said close, using no unnecessary violence in so doing, which is the same supposed trespass in the declaration mentioned, etc. Replication, that, at the time of the said removal, the plaintiff was in the said close by the leave and license of Lord Eglintoun. Rejoinder, traversing the leave and license, and issue thereon.
At the trial, before Rolfe, B., at the Middlesex Sittings after last Trinity Term, the facts appeared to be these: The Earl of Eglintoun was steward of the Doncaster races, 1843. Tickets for admission to the Grand Stand, which were issued under the authority of the stewards, were sold in the town for a guinea each, and it was understood that they entitled the holders to come into the stand, and the inclosure surrounding it, during every day of the races, which lasted four days. The plaintiff purchased one of these tickets, and came into the inclosure on one of the race days; and while the races were going on, the defendant, who was an officer of police, by the order of Lord Eglintoun, desired him to go out of the inclosure, (in consequence of some alleged malpractices of his on a former occasion, connected with the turf), telling him that if he did not do so, force would be used to turn him out. The plaintiff refused to depart, whereupon the defendant, by the order of Lord Eglintoun, took him by the armaand forced him out, using no unnecessary violence.
The learned Judge directed the jury, that, assuming the ticket to have been sold to the plaintiff under the sanction of Lord Eglintoun, it still was lawful for Lord Eglintoun, without returning the guinea, and without assigning any reason, to order the plaintiff to quit the inclosure, which, on this record, was admitted to be his property; and that, if the jury were satisfied that notice was given to the plaintiff, requiring him to quit the ground, and that, before he was forcibly removed by the defendant, a reasonable time had elapsed during which he might have gone away voluntarily, then the plaintiff was not, at the time of the removal, on the ground by the leave and license of Lord Eglintoun. Upon this direction, the jury found a verdict for the defendant on this issue.
In Michaelmas Term, Jervis obtained a rule nisi for a new trial, on the ground of misdirection; contending, that, under the circumstances, the license to come into the inclosure during the races, given upon the purchase of the ticket, was not revocable during the races, or, at all events, not without returning the price of the ticket, and therefore that the plaintiff remained there, at the time of the trespass, by the leave and license of Lord Eglintoun. In Hilary Term, (Jan. 17th), cause was shewn against the rule by
Kelly, Wortley, Martin, and Peacock; and on subsequent days (Jan. 18th and 21st)
Jervis, Humfrey, and Petersdorff were heard in support of the rule.
The arguments and authorities are so fully stated and considered in the judgment, that it appears to be unnecessary to report them in detail. The following authorities were referred to and commented on: Termes de la Ley, title “Easement”; Gale and Whatley on Easements, 18, 33; Bro. Abr., Licences, pl. 9, 15; Co. Litt. 9 b.; 2 Bla, Comm. 20; Shep. Touchst. 231; Com. Dig., Pleader, (3 M,), 42; Duchess of Suffolk’s case, 13 H. 7, f. 13; Webb v. Paternoster (2 Roll. Rep. 143, 152; Poph. 151; Palmer, 71; Godb. 282; S. C. nom. Plumer v. Webb, Noy, 98), Hoskins v. Robbins (2 Ventr. 123, 163), Bradley v. Gill (1 Lutw. 69), Wood v. Lake (Sayer, 3), Dennett v. Grover (Willes, 195), Mayor of Northampton v. Ward (1 Wils. 107; 2 Str. 1238), Buckeridge v. Ingram (2 Ves. jun. 652), Fentiman v. Smith (4 East, 107), Winter v. Brockwell (8 East, 308), Doe d. Foley v. Wilson (11 East, 56), Clifford v. Brandon (2 Camp. 358), Ditcham v. Bond (3 Camp. 524), Tayler v. Waters (7 Taunt. 374), Rex v. Hagworthingham (1 B. & Cr. 634; 3 D. & R. 16), Hewlins v. Shippam (5 B. & C. 222; 7 D. & R. 783), Bryan v. Whistler (8 B. & C. 288; 2 Man. & R. 318), Liggins v. Inge (7 Bing. 682; 5 M. & P. 712), Cocker v. Cowper (1 C. M. & R. 418), Carrington v. Boots (2 M. & W. 248), Bridges v. Blanchard (1 Ad. & Ell. 536; 4 Ad. & Ell. 176), Bird v. Higginson (2 Ad. & Ell. 696; 6 Ad. & Ell. 824), Wallis v. Harrison (4 M. & W. 538), Thomas v. Marsh (5 C. & P. 596), Williams v. Morris (8 M. & W. 488), Wood v. Manley (11 Ad. & Ell. 34; 3 Per. & D. 5).
Cur. adv. vult.
The judgment of the Court was now delivered by
ALDERSON, B. This was an action tried before my Brother Rolfe at the sittings after last Trinity Term. It was an action for an assault and false imprisonment. The plea (on which alone any question arose) was, that at the time of the alleged trespass the plaintiff was in a certain close of Lord Eglintoun, and the defendant, as the servant of Lord Eglintoun, and by his command, laid his hands upon the plaintiff in order to remove him from the said close, using no unnecessary violence. Replication, that, at the time of such removal, the plaintiff was in the said close by the leave and license of Lord Eglintoun. The leave and license was traversed by the defendant, and issue was joined on that traverse. On the trial it appeared that the place from which the plaintiff was removed by the defendant was the inclosure attached to and surrounding the great stand on the Doncaster race-course; that Lord Eglintoun was steward of the races there in the year 1843; that tickets were sold in the town of Doncaster at one guinea each, which were understood to entitle the holders to come into the stand, and the inclosure surrounding it, and to remain there every day during the races. These tickets were not signed by Lord Eglintoun, but it must be assumed that they were issued with his privity. It further appeared, that the plaintiff, having purchased one of these tickets, came to the stand during the races of the year 1843, and was there or in the inclosure while the races were going on, and while there, and during the races, the defendant, by the order of Lord Eglintoun, desired him to depart, and gave him notice that if he did not go away, force would be used to turn him out. It must be assumed that the plaintiff had in no respect misconducted himself, and that, if he had not been required to depart, his coming upon and remaining in the inclosure would have been an act justified by his purchase of the ticket. The plaintiff refused to go, and thereupon the defendant, by order of Lord Eglintoun, forced him out, without returning the guinea, using no unnecessary violence.
My Brother Rolfe, in directing the jury, told them, that, even assuming the ticket to have been sold to the plaintiff under the sanction of Lord Eglintoun, still it was lawful for Lord Eglintoun, without returning the guinea, and without assigning any reason for what he did, to order the plaintiff to quit the inclosure, and that, if the jury were satisfied that notice was given by Lord Eglintoun to the plaintiff, requiring him to quit the ground, and that, before he was forcibly removed by the defendant, a reasonable time had elapsed, during which he might conveniently have gone away, then the plaintiff was not, at the time of the removal, on the place in question by the leave and license of Lord Eglintoun. On this direction the jury found a verdict for the defendant. In last Michaelmas term, Mr. Jervis obtained a rule nisi to set aside the verdict for misdirection, on the ground, that, under the circumstances, Lord Eglintoun must be taken to have given the plaintiff leave to come into and remain in the inclosure during the races; that such leave was not revocable, at all events without returning the guinea; and so that, as the time of the removal, the plaintiff was in the inclosure by the leave and license of Lord Eglintoun. Cause was shewn during last term, and the question was argued before my Brothers Parke and Rolfe and myself; and on account of the conflicting authorities cited in the argument, we took time to consider our judgment, which we are now prepared to deliver.
That no incorporeal inheritance affecting land can either be created or transferred otherwise than by deed, is a proposition so well established, that it would be mere pedantry to cite authorities in its support. All such inheritances are said emphatically to lie in grant, and not in livery, and to pass by mere delivering of the deed. In all the authorities and text-books on the subject, a deed is always stated or assumed to be indispensably requisite.
And although the older authorities speak of incorporeal inheritances, yet there is no doubt but that the principle does not depend on the quality of interest granted or transferred, but on the nature of the subject-matter: a right of common, for instance, which is a profit a prendre, or a right of way, which is an easement, or right in nature of an easement, can no more be granted or conveyed for life or for years without a deed, than in fee simple. Now, in the present case, the right claimed by the plaintiff is a right, during a portion of each day, for a limited number of days, to pass into and through and to remain in a certain close belonging to Lord Eglintoun; to go and remain where if he went and remained, he would, but for the ticket, be a trespasser. This is a right affecting land at least as obviously and extensively as a right of way over the land,-it is a right of way and something more: and if we had to decide this case on general principles only, and independently of authority, it would appear to us perfectly clear that no such right can be created otherwise than by deed. The plaintiff, however, in this case argues, that he is not driven to claim the right in question strictly as grantee. He contends, that, without any grant from Lord Eglintoun, he had license from him to be in the close in question at the time when he was turned out, and that such license was, under the circumstances, irrevocable. And for this he relies mainly on four cases, which he considers to be expressly in point for him, viz. Webb v. Paternoster, reported in five different books, namely, Palmer, 71; Roll. 143 and 152; Noy, 98; Popham, 151, and Godbolt, 282; Wood v. Lake (Sayer, 3), Tayler v. Waters (7 Taunt. 374), and Wood v. Manley (11 Ad. & E. 34; 3 Per. & D. 5).
As the argument of the plaintiff rested almost entirely on the authority of these four cases, it is very important to look to them minutely, in order to see the exact points which they severally decided.
Before, however, we proceed to this investigation, it may be convenient to consider the nature of a license, and what are its legal incidents. And, for this purpose, we cannot do better than refer to Lord C. J. Vaughan’s elaborate judgment in the case of Thomas v. Sorrell, as it appears in his Reports. The question there was as to the right of the Crown to dispense with certain statutes regulating the sale of wine, and to license the Vintners’ Company to do certain acts notwithstanding those statutes.
In the course of his judgment the Chief Justice says (Vaughan, 351), “A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man’s park, and carry away the deer killed to his own use; to cut down a tree in a man’s ground, and to carry it away the next day after -to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten, and in the wood burnt. So as in some cases, by consequent and not directly, and as its effect, a dispensation or license may destroy and alter property.”
Now, attending to this passage, in conjunction with the title “License” in Brooke’s Abridgment, from which, and particularly from paragraph 15, it appears that a license is in its nature revocable, we have before us the whole principle of the law on this subject. A mere license is revocable: but that which is called a license is often some-[845] thing more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident.
It may further be observed, that a license under seal (provided it be a mere license) is as revocable as a license by parol; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the license is a mere license; it is not an incident to a valid grant, and it is therefore revocable. Thus, a license by A to hunt in his park, whether given by deed or by parol, is revocable; it merely renders the act of hunting lawful, which, without the license, would have been unlawful. If the license be, as put by Chief Justice Vaughan, a license not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a license annexed to come on the land: and supposing the grant of the deer to be good, then the license would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol license to come on my lands, and there to make a watercourse, to flow on the land of the licensee. In such a case there is no valid grant of the watercourse, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the license would be irrevocable.
Having premised these remarks on the general doctrine, we will proceed to consider the four cases relied on by Mr. Jervis for the plaintiff. The first was Webb v. Paternoster. That, as appears from the report in Rolle, was an action of trespass, brought against the defendant for eating, by the mouths of his cattle, the plaintiff’s hay. The defendant justified under Sir William Plummer, the owner of the fee of the close in which the hay was, averring that Sir W. Plummer leased the close to him, and therefore, as lessee, he turned his cattle into the close, and they ate the hay. The plaintiff replied, that, before the making of the lease, Sir W. Plummer had licensed him to place the hay on the close till he could conveniently sell it, and that, before he could conveniently sell it, Sir W. Plummer leased the land to the defendant. The defendant demurred to the replication.
From the arguments, as given in Rolle, it appears that the plaintiff’s counsel, who was first heard, contended, first, that the license, being a license for profit, and not merely for pleasure, and being also for a certain time only, namely, till he could sell his hay, was not revocable: and, secondly, even if the license was revocable, still that the lease to the defendant was an implied, and not an express revocation, and therefore was inoperative against him without notice? and for this he referred to Mallory’s case (5 Rep. 111). To this latter proposition the Court appears to have assented; but Dodderidge, J., suggested, that, even if the license was in force, still the licenser did not by such a license preclude himself, nor, consequently, his tenant, from turning cattle on the land, and that the licensee ought to have taken care to protect the hay from the cattle. As to this, however, the Chief Justice expressed a doubt. The defendant’s counsel was heard some days afterwards, and he alleged that it appeared by the record, that the plaintiff had had two years to sell his hay before the defendant’s cattle had eaten it; and he argued that the Court would say, as matter of law, that this was more than reasonable time; and to this the Court assented. The plaintiff’s counsel, in reply, reverted to the distinction between the license for profit and a license for pleasure; but Dodderidge denied it, and said that a license to dig gravel, though a license for profit, is revocable; and he said that the true distinction was between a mere license, and a license coupled with an interest. Judgment was eventually given for the defendant, on the ground that the plaintiff had had more than reasonable time to sell the hay.
It will be seen, therefore, that the only two points decided were, first, that the question of reasonable time was for the Court, and not for the jury; and, secondly, that two years was more than a reasonable time. The decision, therefore, itself has no bearing on the point for which it was cited; and the only support which the case affords to the doctrine contended for by the present plaintiff is what is said, in the report of the case in Popham, to have been agreed by the Court, namely, that a license for profit for a term certain is not revocable; a proposition to which, with the qualification we have already pointed out, we entirely accede. It is, moreover, by no means certain that the license in Webb v. Paternoster was not a license under seal. The defendant’s counsel appears, from the report in Rolle, to speak of the plaintiff as grantee of the liberty to stack hay, etc.; a form of expression not very appropriate, if used in respect of a party who had a mere parol license; and the Chief Justice, according to the report in Popham and Palmer, says that the plaintiff had an interest which charged the land, into whose hands soever it should come. And Dodderidge, J., according to the report in Palmer, arguing that the lessee certainly might turn his cattle into his own field, and was not bound to stop their mouths, says it was folly of the plaintiff that he did not, together with the license, take a covenant that it should be lawful for him to fence the hay with a hedge. From these expressions, (and there are others in the various reports of the case having a similar aspect), it certainly seems possible that the license was under seal; and then the only point would be that which alone was in fact decided, namely, whether, supposing the plaintiff to have acquired by grant a right to stack his hay on the land, for a limited time, that limited time had expired. Even supposing the license to have been a mere parol license, yet the strong probability is, that Webb had purchased the hay from Sir W. Plummer as a growing crop, with liberty to stack it on the land, and then the parol license might be good as a license coupled with an interest. Be this, however, as it may, the decision, as we have already pointed out, has very little, or rather no bearing on the case before us; and the judgment of Dodderidge, J., as given both in Rolle and Palmer, is in strict accordance with what was afterwards laid down by Vaughan, C. J., and which we consider to be consonant both to principle and authority.
The next decision in order of time is that of Wood v. Lake, in Sayer, p. 3. There the defendant had, by a parol agreement, given liberty to the plaintiff to stack coals on the defendant’s land for a term of seven years. After the plaintiff had enjoyed this privilege for three years, the defendant locked up the gate of the close. No report is given in Sayer of the arguments at the bar. But from a MS. report of the same case, referred to by Gibbs, C. J., in the case of Tayler v. Waters, and which MS. we have had an opportunity of consulting, through the kindness of the representatives of the late Mr. Justice Burrough,[1] it appears that the argument turned wholly on the point whether the privilege of stacking the coals did or did not amount to a lease; for if it did, then the defendant contended it was void after three years, under the Statute of Frauds, as not being in writing. Lee, C. J., and Denison, J., held it to be no lease, nor uncertain interest in land; but Foster, J., doubted, and desired time to consider. On the last day of term, the Court gave judgment for the plaintiff, Foster non dissentiente.
Supposing the Court to have been right in deciding that this was not a lease, (which, however, is doubted by Sir E. Sugden, see 1 V. and P., last edit., p. 139), yet no grounds are stated on which it could be held good as an easement originating merely by parol. Up to this case, not a single decision is to be found giving countenance to any such proposition; and we are compelled to say, that, if the Court proceeded on the ground that the plaintiff had acquired the easement by the parol license, we do not think it can be supported. But the case may, perhaps, have been decided on another ground. The defendant himself was the party who had agreed to give the easement to the plaintiff; and although the action is stated to have been an action on the case, it may have been a mere assumpsit -an action on the case on promises; and in such an action the plaintiff would certainly be entitled to recover, if the contract was not (and probably the Court considered it was not) a contract concerning land, within the 4th section of the Statute of Frauds.
The next case on which the plaintiff relies is Tayler v. Waters, reported in 7 Taunt. 374. It was an action by the plaintiff against the door-keeper of the Opera house, for preventing him from entering the house during the performance of an opera. It appeared that one W. Taylor, being in possession of the Opera-house, as lessee for a long term of years, by a deed, dated the 24th of August, 1792, assigned his interest therein to trustees, on various trusts, for creditors and other claimants, and ultimately in trust for himself. After the execution of this deed, Taylor continued in possession by the permission of the trustees, and he carried on and managed the affairs of the theatre. In March, 1799, he, by deed, granted to one Gourgas, for a valuable consideration, six silver tickets, entitling the holders to admission to the theatre. One of these tickets was sold by Gourgas to the plaintiff, in July; 1799, but no deed of assignment to him was executed. In 1800, Taylor’s trustees took possession of the theatre. The plaintiff, however, was allowed to attend the theatre, by virtue of his ticket, until the year 1814, when the defendant Waters, as servant of the trustees, prevented him from entering the theatre; and for this obstruction the action was brought. The cause was tried before C. J. Gibbs, and a verdict found for the plaintiff, and that verdict was afterwards upheld by the Court of Common Pleas. The grounds of the judgment were, that the right under the silver ticket was not an interest in land, but a license irrevocable to permit the plaintiff to enjoy certain privileges thereon; that it was not required by the Statute of Frauds to be in writing, and, consequently, might be granted without a deed.
The Chief Justice, in support of that doctrine, relied on Webb v. Paternoster, which, he said, shewed that a beneficial license, to be exercised upon land, might be granted without deed, and could not be countermanded, at least after it had been acted on. The same case, he added, shewed that the interest was not such an interest in land as was required by the Statute of Frauds to be in writing; as to which last point all doubt, if there remained any, had (he said) been removed by the case of Wood v. Lake.
This judgment is stated by the learned reporter to have comprised the substance of the arguments on both sides, and which, therefore, he does not give in his report. We must infer from this that the attention of the Court was not called in the argument to the principles and earlier authorities, to which we have adverted. Brooke, in his Abridgment, Dodderidge, in the case of Webb v. Paternoster, and Lord Ellenborough, in the case of Rex v. Horndon-on-the-Hill (4 M. & Selw. 562), all state in the most distinct manner that every license is and must be in its nature revocable, so long as it is a mere license. Where, indeed, it is connected with a grant, there it may, by ceasing to be a naked license, become irrevocable; but then it is obvious that the grant must exist independently of the license, unless it be a grant capable of being made by parol, or by the instrument giving the license. Now in Taylor v. Waters there was no grant of any right at all, unless such right was conferred by the license itself. C. J. Gibbs gives no reason for saying that the license was a license irrevocable, and we cannot but think that he would have paused before he sanctioned a doctrine so entirely repugnant to principle and to the earlier authorities, if they had been fully brought before the Court. Again, the Chief Justice is represented as saying that the interest of the plaintiff was not an interest in land within the Statute of Frauds, and that consequently it might be granted without deed. How the circumstance, that the interest was not an interest in land within the Statute of Frauds shewed it to be grantable without deed, we cannot discover. The precise point decided in Webb v. Paternoster is not adverted to, and it is assumed, without discussion, that the license there must have been a parol license, and a naked license, unconnected with an interest, capable of being created by parol. The action was not, as it may have been in Wood v. Lake, an action founded on the contract. It was an action on the case for the obstruction, and was founded on the supposition that an actual right to enter and remain in the theatre had vested in the plaintiff, under the license conferred by the silver ticket. With all deference to the high authority from which the judgment in Tayler v. Waters proceeded, we feel warranted in saying that it is to the last degree unsatisfactory; an observation which we have the less hesitation in making, in consequence of its soundness having obviously been doubted by the Court of King’s Bench and Mr. Justice Bayley in the case of Hewlins v. Shippam.
The fourth and last case relied on by Mr. Jervis was the recent case of Wood v. Manley, in the Queen’s Bench (11 Ad. & E. 34; 3 Per. & D. 5). That was an action for trespass quare clausum fregit: plea, that defendant was possessed of a large quantity of hay being on the plaintiff’s close, and that by leave of plaintiff he entered on the close in question to remove it. Replication, de injuria. It was proved at the trial, that the hay in question was sold in January, 1838, by the plaintiffs landlord, who had seized it as a distress for rent. The conditions of the sale were, that the purchaser of the hay might leave it on the close until Lady-day, and might in the meantime come on to the close from time to time, as often as he should see fit, to remove it. These conditions were assented to by the plaintiff. The defendant became the purchaser, and afterwards, and before Lady-day, the plaintiff locked up toe close. The defendant broke open the gate in order to remove the hay. A verdict was found for the defendant, Erskine, J., telling the jury that the license to come from time to time to remove the hay was irrevocable. Mr. Crowder moved to set aside this verdict, on the ground that the license was necessarily revocable, and was in fact revoked. But the Court of Queen’s Bench refused to grant a rule, and, we think, quite rightly. This was a case not of a mere license, but of a license coupled with an interest. The hay, by the sale, became the property of the defendant, and the license to remove it became, as in the case of the tree and the deer, put by C. J. Vaughan, irrevocable by the plaintiff; and the rule was properly refused. The case was analogous to that of a man taking my goods, and putting them on his land, in which case I am justified in going on the land and removing them: Vin. Abr. Trespass (H.), a. 2, pl. 12; and Patrick v. Colerick (3 M. & W. 483).
It appears, therefore, that the only authority necessarily supporting the present plaintiff in the proposition for which he is contending, is the case of Tayler v. Waters, in which the real difficulty was not discussed, nor even stated. It was taken for granted, that, if the Statute of Frauds did not apply, a parol license was sufficient, and the necessity of an instrument under seal, by reason of the interest in question being a right in nature of an easement, was by some inadvertence kept entirely out of sight; and for these reasons, even if there had been no conflicting decisions, we should have thought that case to be a very unsafe guide in leading us to a decision, on an occasion where we were called on to lose sight of the ancient landmarks of the common law.
We are not, however, driven to say that we shall disregard that case merely on principle. Giving it the full weight of judicial decision, it is met by several others, which we must entirely disregard, before we can adopt the argument of the plaintiff. In the cases of Fentiman v. Smith (4 East, 107) and Rex v. Horndon-on-the-Hill (4 M. & Sel. 565), which were before Tayler v. Waters, Lord Ellenborough and the Court of King’s Bench expressly recognized the doctrine, that a license is no grant, and that it is in its nature necessarily revocable, and the further doctrine, that, in order to confer an incorporeal right, an instrument under seal is essential. And in the elaborate judgment of the Court of King’s Bench, given by Bayley, J., in Hewlins v. Shippam (5 B. & C. 222) the necessity of a deed, for creating any incorporeal right affecting land, was expressly recognized, and formed the ground of the decision. It is true that the interest in question in that case was a freehold interest, “and on that ground Bayley, J., suggests that it might be distinguished from Tayler v. Waters; but in an earlier part of that same judgment, he states, conformably to what is the clear law, that, in his opinion, the quantity of interest made no difference; and the distinction is evidently adverted to by him, not because he entertained the opinion that it really was of importance, but only in order to enable him to decide that case without, in terms, saying that he did not consider the case of Tayler v. Waters to be law. The doctrine of Hewlins v. Shippam has since been recognized and acted upon in Bryan v. Whistler (8 B. & C. 288), Cocker v. Cowper (1 C. M. & R. 418), and Wallis v. Harrison (4 M. & W. 538), and it would be impossible for us to adopt the plaintiff’s view of the law, without holding all those cases to have been ill decided. It was suggested that, in the present case, a distinction might exist, by reason of the plaintiff’s having paid a valuable consideration for the privilege of going on the stand. But this fact makes no difference: whether it may give the plaintiff a right of action against those from whom he purchased the ticket, or those who authorized its being issued and sold to him, is a point not necessary to be discussed; any such action would be founded on a breach of contract, and would not be the result of his having acquired by the ticket a right of going upon the stand, in spite of the owner of the soil; and it is sufficient, on this point, to say, that in several of the cases we have cited, (Hewlins v. Shippam, for instance, and Bryan v. Whistler), the alleged license had been granted for a valuable consideration, but that was not held to make any difference. We do not advert to the cases of Winter v. Brockwell (8 East, 308) and Liggins v. Inge (7 Bing. 682), or other cases ranging themselves in the same category, as they were decided on grounds inapplicable to the case now before us, and were, in fact, admitted not to bear upon it.
In conclusion, we have only to say, that, acting upon the doctrine relative to licenses, as we find it laid down by Brooke, by Mr. Justice Dodderidge, and by C. J. Vaughan, and sanctioned by Hewlins v. Shippam, and the other modern cases proceeding on the same principle, we have come to the conclusion, that the direction given to the jury at the trial was correct, and that this rule must be discharged. Rule discharged.
Note 1 The following is a copy of the report in the MS volume of Mr. Justice Burrough. Case. A parol agreement that the plaintiff should have liberty of laying and stacking of coals upon defendant’s close, for seven years. Afterwards, defendant forbids plaintiff to lay any more coals there, and shuts up his gates. Defendant says, that plaintiff was but tenant at will. Quaere, if this was an interest within the description of the Statute of Frauds. Serjeant Booth. This is but a personal license or easement: 1 Roll. Abr. 859, p. 4; Roll. Rep. 143, 152; 1 Saund. 321. A contract for sale of timber growing upon the land has been determined to be out of the statute, 1 Ld. Raym. 182. Vide -the difference of a license and a lease, 1 Lev. 194. This must be taken only as a license, for that the coal-loaders also are to have benefit, as well as plaintiff. Serjeant Poole, for defendant. Question is, if any interest in land passed by the agreement; for, if interest passed, it is within the statute, ergo void, being for longer term than three years: Bro. License, p. 19;Thome v. Seabright, Salk. 24;Webb v. Paternoster, Poph. 151. A license to enter upon and occupy land amounts to a lease. The plaintiff not confined to a particular part of the close, and might have covered the whole if he pleased, on that account it is an uncertain interest. The distinction of license to plaintiff and his coal-loader is nothing; he could not stack the coal himself, and it is merely vague. Easement may be of more value than the inheritance; ex. gr. way-leave. LEE, C. J. If this be a lease, as it is argued, it is within the statute, and void, for not being in writing. No answer as yet is given to the case in Popham, when the stacking of hay, which is similar, was determined to be a license. The word uncertain, in the statute, means uncertainty of duration, not of quantity. License was not revocable, and here is no case to shew this to be considered as a lease. DENNISON, J. This seems not to be an interest, so called in the language of the law, although easements, in general speaking, may be called interests. Had the plaintiff such an interest as to have maintained a clausum fregit. Certainly not. If a man licenses to enjoy lands for five years, there is a lease, because the whole interest passes, but this was only a license for a particular purpose. FOSTER, J. These interests, grounded upon licenses, are valuable, and deserve the protection of the law, and therefore may perhaps have been within the intention of the words of the statute. Desired further time for consideration: stood over. N.B.-Afterwards, upon motion for judgment the last day of term, and gave judgment for plaintiff, Foster non dissentiente. [Back]
Hurst v Picture Theatre Ltd
[1915] 1 K.B. 1
BUCKLEY LJ
… The proposition which [counsel for the defendants] sets out to affirm is that if a man has paid for his seat at the opera, or the theatre, and has entered and taken his seat, and is behaving himself quite properly, it is competent to the proprietors of the theatre, merely because they choose so to do, to call upon him to withdraw before he has seen the performance for the enjoyment of which he has paid; that what he has obtained for his money is a mere revocable licence to come upon the land of the proprietor of the theatre, and that the proprietor may, simply because he chooses, say “I revoke your licence; go.” If that proposition be true, it involves startling results.
… Suppose that there be sitting in the stalls a man who is a constant patron of the opera or the theatre, to whom the management pay great deference, whether from his rank or his habit of attendance: he goes to the management and says, “I do not like the person sitting in front of me or next to me; ask him to go.” It would be competent to the management to go to that person and say, “Please go; you cannot have your money back, go” The plaintiff sued to recover damages for an alleged assault and false impnsonment.
The plaintiff stated in his evidence that, being attracted by an advertisement announcing that a picture of Lake Garda was being shewn at the defendants’ cinema theatre at High Street, Kensington, he went to that theatre on March 17, 1913, for the purpose of seeing it. At the pay office he tendered a florin and asked for a sixpenny seat, and was given a metal check and the change; the check entitled him to an unreserved seat. He gave up his check at the door leading into the theatre, and was shown into a seat by a young woman with an electric torch. After the performance had proceeded for some little time, a girl came up and asked plaintiff if he had come in with a ticket, and, on his replying that he had, the girl went away. Shortly afterwards another girl came up and asked him to come out and see the manager, but he refused. Then a man in evening dress came up and asked him to come and see the manager, but he again refused. Then the manager himself came up and asked the plaintiff to come outside, and, on his refusing, said “Then we shall have to compel you.” A porter or doorkeeper, who was sent by the manager, then asked the plaintiff to go out, which he refused to do. The porter went out and returned with a policeman, whom he asked to put the plaintiff out. This the policeman refused to do, suggesting that the porter should do it himself. The porter then made his way into the row of seats and, taking hold of the plaintiff under the arms, lifted him out of his seat. The plaintiff then walked quietly out. No unnecessary violence was used in thus ejecting the plaintiff.
The defendants justified their conduct on the ground that the plaintiff had not taken a ticket for that performance. They also contended that they were entitled, without assigning any reason, to call on the plaintiff to leave the theatre and, if he declined, to forcibly remove him, relying on the authority of Wood v. Leadbitter(1845) 13 M. & W. 838.
licence, go,” and he has to go. The management may let the seat to B. for the rest of the performance, and at the end of the second act or sooner they may come to B. and say, “I revoke your licence, go.” He will have to go, and they may let the seat a third time to C. Those consequences ensue from this proposition if it be well founded… it seems to me, when the point comes to be considered, it is contrary to good sense. Next it is to my mind contrary also to good law. The proposition is based upon the well-known decision in Wood
v. Leadbitter …
Let me at the outset say what Wood v. Leadbitter seems to me to have decided. It affirmed that a mere licence, whether or not it be under seal, by which I mean a licence not coupled with an interest or a grant whether it be under seal or not, is revocable. It affirmed also that if there be a licence coupled with an interest or coupled with a grant, it is not, or at any rate in general is not, revocable. For those two propositions, I read these two sentences from the case of Wood v. Leadbitter: “A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident.
Wood v. Leadbitter rested, I think, upon one of two grounds-I will indicate them both-but I think it was the second of those which I am going to mention. The first ground is that the man who bought his ticket for the race meeting had not obtained any grant of the right to come during the currency of the meeting to see any particular spectacle from its commencement to its termination. If that were the ground, it would, I think, be erroneous. I conceive he had the right to see what was to be seen during the days covered by his ticket. But I do not think that was the ground on which the Court decided it. They decided it upon the ground … that no incorporeal inheritance affecting land can be created or transferred otherwise than by deed, a proposition which was discussed with some elaboration in the course of the judgment.
What Alderson B. was saying there was: this man has got no deed; he has got nothing under seal; he has therefore not got a grant; he cannot in this Court be heard to say he is a grantee, and because he is not a grantee he is a mere licensee, and being a mere licensee (whether it is under seal or not under seal does not make any difference) the licence is revocable.
Let me for a moment discuss this present case upon the footing that Wood
v. Leadbitter stands as good law at this date. I am going to say presently that to my mind it does not, but suppose it does stand as good law at this date. What is the grant in this case? The plaintiff in the present action paid his money to enjoy the sight of a particular spectacle. He was anxious to go into a picture theatre to see a series of views or pictures during, I suppose, an hour or a couple of hours. That which was granted to him was the right to enjoy looking at a spectacle, to attend a performance from its beginning to its end. That which was called the licence, the right to go upon the premises, was only something granted to him for the purpose of enabling him to have that which had been granted him, namely, the right to see. He could not see the performance unless he went into the building. His right to go into the building was something given to him in order to enable him to have the benefit of that which had been granted to him, namely, the right to hear the opera, or see the theatrical performance, or see the moving pictures as was the case here. So that here there was a licence·coupled with a grant. If so, Wood v. Leadbitter does not stand in the way at all. A licence coupled with a grant is not revocable; Wood v. Leadbitter affirmed as much.
So far I have been treating it as if ‘wood v. Leadbitter were law as now administered in every Court. Let us see how that matter stands. Wood v. Leadbitter was a case decided in a Court of law before the Judicature Act; it was a case to be decided, therefore, simply upon the principles which are applicable in a Court of law as distinguished fr.om a Court of Equity. What was the principle which would have been administered in a Court of Equity … The position of matters now is that the Court is bound under the Judicature Act to give effect to equitable doctrines. The question we have to consider is whether, having regard to equitable considerations, Wood v. Leadbitter is now law, meaning that Wood v. Leadbitter is a decision which can be applied in its integrity in a Court which is bound to give effect to equitable considerations. In my opinion, it is not …
The present Lord Parker, then Parker J., in the case of Jones v. Earl of Tankerville [1909] 2 Ch. 440:
“An injunction restraining the revocation of the licence, when itisrevocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which but for the absence of a seal would be a right at law, and since the Judicature Act it may well be doubted whether the absence of a seal in such a case can be relied on in any Court.”
What was relied on in Wood v. Leadbitter, and rightly relied on at that date, was that there was not an instrument under seal, and therefore there was not a grant, and therefore the licensee could not say that he was not a mere licensee, but a licensee with a grant. That is now swept away. It cannot be said as against the plaintiff that he is a licensee with no grant merely because there is not an instrument under seal which gives him a right at law.
There is another way in which the matter may be put. If there be a licence with an agreement not to revoke the licence, that, if given for value, is an enforceable right. If the facts here are, as I think they are, that the licence was a licence to enter the building and see the spectacle from its commencement until its termination, then there was included in that contract a contract not to revoke the licence until the play had run to its termination. It was then a breach of contract to revoke the obligation not to revoke the licence.
The defendants had, I think, for value contracted that the plaintiff should see a certain spectacle from its commencement to its termination. They broke that contract and it was a tort on their part to remove him. They committed an assault upon him in law. It was not of a violent kind, because, like a wise man, the plaintiff gave way to superior force and left the theatre. They sought to justify the assault by saying that they were entitled to remove him because he had not paid. He had paid, the jury have so found. Failing on that question of fact, they say that they were entitled to remove him because his licence was revocable. In my opinion, it was not. There was, I think, no justification for the assault here committed. Under the circumstances it was for the jury to give him such a sum as was right for the assault which was committed upon him, and for the serious indignity to a gentleman of being seized and treated in this way in a place of public resort. The jury have found that he was originally in the theatre as a spectator, that the assault was committed upon him, and that it was a wrongful act.
I think that the appeal which has been brought before us, and which is founded simply upon the question of law which I have discussed at the beginning of this judgment, fails and must be dismissed with costs.
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd
[1948] A.C. 173
VISCOUNT SIMON:
… My Lords, the effect of a licence by A to permit B to enter upon A:s land or to use his premises for some purpose is in effect an authority which prevents B from being regarded as a trespasser when he avails himself of the licence
… Such a licence may fall into ore of various classes. It may be a purely gratuitous licence in return for whith A gets nothing at all, e.g. a licence to B to walk across A’s field. Such a grc1tuitous licence would plainly be revocable by notice given by A to B. Even in that case, however, notice of revocation conveyed to B when he was in the act of crossing A:s field could not turn him into a trespasser until he was off the premises, but his future right of crossing would thereupon cease. There i,s another class of licences which may be called licences for value, in which B gives consideration for the permission he obtains from A, and this last class may be further sub-divided. In some cases the consideration may be given once for all, as for example by the payment of a capital sum or by conferring a single benefit at the beginning …
In other cases, the consideration may take the form of a periodic payment, as is the case in the Appeal we are now considering. There is yet a third variant of a licence for value which constantly occurs, as in the sale of a ticket to enter premises and witness a particular event, such as a ticket for a seat at a particular performance at a theatre or for entering private ground to witness a day’s sport. In this last class of case, the implication of the arrangement, however it may be classified in law, plainly is that the ticket entitles the purchaser to enter and, if he behaves himself, to remain on the premises until the end of the event which he has paid his money to witness. Such, for example, was the situation which gave rise to the decision of the Court of Appeal in Hurst v. Picture Theatres Ltd [1915] 1 K. B. 1. I regard this case as rightly decided, and repudiate the view that a licensor who is paid for granting his licence to enter premises in order to view a particular event, can nevertheless, although the licensee is behaving properly, terminate the licence before the event is over, turn the licensee out, and leave him to an action for the return of the price of his ticket. The licence in such a case is granted under contractual conditions, one of which is that a well-behaved licensee shall not be treated as a trespasser until the event which he has paid to see is over, and until he has reasonable time thereafter to depart, and in Hurst’s case, where these rights
were disregarded and the plaintiff was forced to leave prematurely, substantial damages for assault and false imprisonment rightly resulted.
This brings up for reconsideration the oft-quoted and oft-considered decision of the Court of Exchequer Chamber in 1845 in Wood v. Leadbitter 13 M. & W. 838. I think that this decision can only be rightly understood by bearing in mind the state of the pleadings upon which the decision depended. The old system of pleading was far more strict than the system now prevailing. The action was an action for the tort of assault and false imprisonment arising out of the circumstances that Wood had bought a ticket for admission to the grandstand at the Doncaster races but that while the races were going on the defendant, acting under the orders of Lord Eglintoun who was steward of the races and must be treated as having sold Wood his ticket, turned the plaintiff out …
It seems plain … that the only issue to be decided in Wood v. Leadbitter was whether the plaintiff, when he was forcibly removed from Lord Eglintoun’s land, continued to have the leave of Lord Eglintoun to be there; and he had not this leave because it had been withdrawn. On the pleadings in that case, the question was not open whether the effect of the contract was not to preserve the plaintiff from being treated as a trespasser until the races were over In Kerrison v. Smith, [1897] 2 K. B. 445, Collins J. said of Wood v. Leadbitter:
“It was conceded that the grantor has a right to revoke a licence, but the point set up by the plaintiff, that there was a contract for the breach of which the plaintiff was entitled to recover damages, was never properly dealt with.”
It does not seem necessary to discuss, now that we are more than a hundred years from the decision, whether if the Judicature Acts had then been passed, the Court of Exchequer could have protected Wood from what was an injustice; the instances given by the judges who were in a majority in Hurst’s case show how manifest the injustice is. Wood’s position really was that Lord Eglintoun had agreed with him, for reward, not to treat him as a trespasser till the races were over, and till he had a reasonable time after that to withdraw, but this was not the issue directly raised by the pleadings. It is enough to say that, at any rate since the fusion of law and equity, no Court in this country would refuse to a plaintiff in Wood’s situation the remedy for which he asked, and the case, in my opinion, should no longer be regarded as an authority.
Irish Shell and S.P. Ltd v John Costello Ltd
[1981] I.L.R.M. 66
The plaintiffs purchased a site and erected a petrol station. They hired the equipment on the site to the defendant from year to year from 1967 to 1974. A new agreement gave the defendant a licence to use the premises for the use of the equipment. The new agreement omitted some clauses that had been present in the original agreement. This new agreement was expressed to be for the hire of the equipment in the schedule for one year from 1 January 1972, the hirer agreeing to pay for the hire the sum of £1,000, by monthly instalments on the first day of each month. This agreement differed in several material respects from those earlier entered into with John Costello. By clause 3, the plaintiffs simply licensed the hirer for the duration of the agreement to use the service/filling station (called “the Site”) “for the use thereon of the said equipment”. It is to be noted that the provision licensing the hirer to enter the lands “free of any paymE;nt by the hirer to the company”, which again had been in the previous agreement, had been omitted from the new clause 3.
Clause 4 contained 24 sub-clauses or covenants almost all of which
were similar to those included in a· previous agreement. Clause 6 contained a proviso similar to that in the old ,agreement with the exception that the words “and thereupon the hirer or his personal representative shall forthwith permit the Company to resume possession of the said equipment and shall forthwith cease to enter upon or use the said premises or any part thereof” were omitted. One of the most significant changes in this agreement was the omission of clause 8 of the 1968 agreement, i.e. that nothing in the agreement should be deemed to confer upon the hirer the right to exclusive possession of the premises or to create the relationship of landlord and tenant between
the parties.
GRIFFEN J.
The question for determination on this appeal is a net one. The plaintiffs submit that what is given to the defendants under the [new] Agreement is a personal privilege and that they “occupy” the site as licencees. They say that the agreement was nothing more nor less than a contract of hire of the equipment set out in the agreement for a given term, with a licence to enter the site and use it only for the use of the equipment. They point to clause4
(g) as being central to the whole Agreement and as revealing the purpose of the agreement – namely to sell petrol distributed by the plaintiffs. The defendants on the other hand submit that whilst the documents purport to create a hiring of equipment, with an ancillary right to use the equipment on the premises, whatever may have been the situation prior to the erection of the workshop and the making of the [new] agreement … that agreement … in effect granted an interest in land, and had more of the attributes of a tenancy than a licence, and that a tenancy results.
Although a document may be described as a licence it does not necessarily follow that, merely on that account, it is to be regarded as amounting only to a licence in law. Whether the transaction is a licence or a tenancy “does not depend on the label which is put on it. It depends on the nature of the transaction itself Broadly speaking, we have to see whether it is a personal
privilege given to a person (in which case it is a licence), or whether it grants an interest in land (in which case it is a tenancy). At one time it used to be thought that exclusive possession was a decisive factor. But that is not so. It depends on broader considerations altogether. Primarily on whether it “is personal in its nature or not” (per Lord Denning, MR in Shell-Mex v. Manchester Garages (1971) 1 W.L.R. 612 at p. 615). One must look at the transaction as a whole and at any indications that one finds in the terms of the contract between the two parties to find whether in fact it is intended to create a relationship of landlord and tenant or that of licenser and licensee (ibid per Buckley L.J. at p. 618; Gatien Motor Co. v. Continental Oil [1979] I.R. 406).
It is therefore right and indeed necessary to look at the substance of the matter. Looked at in this way, what do the “licensees” get? The premises were intended by the parties for use, and were in fact used, by the defendants as a lock-up garage. They were, according to the evidence, visited approximately once per month only by a representative of the plaintiffs. The defendants carried on what might be called a full garage business there, providing their own mechanics and an apprentice in the workshop, and petrol pump attendants for the sale of petrol on the forecourt. The petrol pumps were kept locked and the plaintiffs or their representatives had no keys to them. It was thought necessary to include [a] clause in relation to permitting the plaintiffs to inspect the equipment; to do so they would of course have to enter the premises. If they had a right to do so, this clause would seem to be completely unnecessary. Further, the omission from the [new] agreement … with the defendants of (a) …
the covenant not to interfere with the possession and user of the premises by the plaintiffs and of (b) the proviso that nothing in the agreement should be
deemed to confer on the defendants the right to exclusive possession, shows that it was intended that the defendants should have the right to occupy the premises and that this was intended to be a right to exclusive occupation and possession. In my view, the defendants were in fact in exclusive occupation and possession of the premises.
Whilst the right to exclusive possession is no longer conclusive that a tenancy exists, it is nevertheless still one of the important indicators in an agreement that a tenancy and not a licence is given. There are also in the Agreement other indicators that this is tenancy. These include:
(i) provisions expressly prohibiting the defendants from doing what they would have no right to do if they were licensees …
(iii) … a re-entry clause, even though the word re-enter is not used, and is much more appropriate to a tenancy agreement than a licence – indeed it would be inconsistent with a licence;
(iv) The proviso the earlier agreement … whereby it was agreed that nothing in the agreement should be deemed to create the relationship of landlord and tenant between the parties, was omitted from the new agreement with the defendants. Its omission is in my view clearly of major significance in determining whether a licence or a tenancy was intended.
In all the circumstances of this case, although some of the provisions of the agreement appear to be personal in their nature (e.g. that in relation to the sale of the plaintiffs’ products), in my opinion, what was given to the defendants went far beyond a personal privilege given to the occupier of the site, and was in the nature of a tenancy of the site.