Property Right Limits
Cases
Attorney-General of the Duchy of Lancaster v GE Overton (Farms) Ltd
[1982] Ch 277 Court of Appeal
Treasure Trove
Lord Denning MR:
‘Treasure trove is defined in Coke’s Institutes:
“Treasure trove is when any gold or silver, in coin, plate, or bullion hath been of ancient time hidden … whereof no person can prove any property, it doth belong to the King … and … nothing is said to be treasure trove but gold and silver.”
In order to be treasure trove the objects must be of gold or silver … How much gold or silver must there be in the objects? Was there sufficient gold or silver in them for the coins to be properly described as gold or silver? There must be a very considerable quantity but it was to be left to the jury and no
percentage was to be cited … in this case I would go back to the old authorities that say treasure trove had to be gold or silver. The law is as stated in Coke.’
DunnU:
‘It isa question for the jury whether the coins when found could properly be described as a gold or silver object. The jury would have had the advantage of expert evidence and on all the evidence the jury would have to decide whether the coin was substantially a gold or silver object. It is undesirable to lay down
percentages. The coin must contain a substantial proportion of gold or silver before it will be described as a gold or silver object.’ ·
Berkley v Poulett
(1976) The Times 3 November Court of Appeal
Fixtures
(Stamp, Scarman and Goff LJJ)
Annexation of chattels to become fixtures on the land
Scarman LJ:
‘The question whether objects originally chattels had become fixtures depended upon the application of
two tests: (1) the method and degree of annexation; and (2) the object and purpose of the annexation. The early law attached great importance to the first test. It proved harsh and unjust both to limited owners who had affixed valuable chattels of their own to settled land and to tenants for years. The second test was evolved to take care primarily of the limited owner, eg a tenant for life.
… The object of affixing the pictures to the wall was for their better enjoyment as pictures.
. . . Neither the sundial nor the statue was at the time of the sale physically attached to the realty. The sundial had been detached many years earlier from its pedestal and ceased to be part of the realty. The statue was heavy and stood on a plinth … which undoubtedly was a fixture. But, what was placed upon the plinth was very much a matter for the taste of the occupier of the house for the time being … the statue was not attached to the plinth and prima facie, it was not a fixture: but, even if it were attached, the application of the second test would lead to the same conclusion.’
Bernstein of Leigh (Baron) v Skyviews & General Ltd
Upper Limit
[1978] QB 479; [1977] 3 WLR 136
Griffiths J:
‘I read the subsection as extending its protection to all flights, provided they were at a reasonable height and complied with the statutory requirements.’
Hamp v Bygrave
(1982) 266 EG 722
Boreham J:
‘ … the test of whether they are fixtures is twofold. First the degree of annexation: here … none of the disputed items was fixed or attached to the land or any structure attached to the land. Second, the purpose of the annexation: was it to enjoy the chattel in its own right, or was it to improve the freehold generally?
In the present case each item could be enjoyed equally as a chattel in its own right. So the prima facie inference that they were chattels would prevail.
… However, it is material first, that the particulars of sale had expressly referred to the items as part of the property sold. Second that the defendants had suggested their exclusion as one way to reduce the purchase price, and therefore they must have regarded them as having been included in the first place.
Third, that the defendants had authorised their solicitors to say that the sale included all the ornaments on the property.
Accordingly, in the absence of any evidence to the contrary, the defendants must have regarded all the disputed items as part of the freehold, and I would, therefore, conclude that they were fixtures, and had passed on conveyance to the plaintiffs.’
Holland v Hodgson
(1872) LR 7 CP 328 Blackburn J:
‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land: but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz the degree of annexation and the object of annexation. When the article in question is no further attached to the land than by its own weight it is generally considered a mere chattel … But even in such a case if the intention is apparent to make the articles part of the land, they do become part of the land …Thus blocks of stone placed one on top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land though the same stones, if deposited in a builder’s yard and for convenience’s sake stacked on the tope of each other in the form of a wall would remain chattels.
Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.’
Kelsen v Imperial Tobacco Co (of Great Britain & Ireland) Ltd
[1957] 2 QB 334 Queen’s Bench Division (McNair J)
McNair J:
‘ … I can find nothing in the lease which displaces the prima facie conclusion which one would otherwise reach that the air space above the demised premises is part of the premises conveyed …
Accordingly, I reach the conclusion that a trespass, and not a mere nuisance, was created by the invasion of the plaintiff’s air space by this sign.’
Leigh v Taylor
[1902] AC 157
Lord Halsbury:
‘The broad principle is that unless it has become part of the house in an intelligible sense, it is not a thing which passes to the heir. I am of opinion that this tapestry has not become part of the house and was never intended in any way to become part of the house.’
Lord Macnaghten:
‘You must have regard to all the circumstances of the particular case, to the taste and fashion of the day, as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case and not always the most important – and its relative importance is probably not what it was in ruder or simpler times.’