Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

(2)bankruptcy; and

(3)fundamental rights to property and a fair trial.

2.For land law

[2.17] A rather longer and more impressive list can be compiled of areas in which land law has so many distinctive characteristics that they compel separate treatment, such as:

formality;

recoverability;

rights of beneficiaries under trusts; registration;

estate ownership theory; adverse possession; land use controls;

relations between neighbours; and mortgages.

In short, the proper study for mankind is land.

E. THE LAND-NOT-LAND BORDERLINE

1.Extended definition of land

[2.17] Land has a wide legislative definition44 to include interests in land.45 This avoids much repetition. Since a deed is needed to pass legal title to land,46 a deed is also required for legal creation of interests in land such as a lease, a mortgage or an easement. Electricity cables can be placed in tunnels as well through buildings.47 It is not necessary to legislate for each case separately.

2.Cases where it uncertain whether a chattel has become land

[2.18] Land is immoveable whereas not-land is moveable or abstract, so that the question of allocating a particular asset to the appropriate category is almost always simplicity itself. Blurring is possible in marginal cases where, for example, a slate is fixed to a roof or a ring is dropped into a pond. The first is handled by the law of fixtures and the second by the land of finding and it is to these two matters that we now turn.

44LPA 1925 s 205(1)(ix); LRA 1925 s 3(viii);UCB Group v. Hedworth [2002] EWCA Civ 708, [2002] 46 EG 200; but LRA 2002 s 132 does not align properly since “land” is limited to physical things and “registered land” is limited to estates substantively registered. A lease granted by a registered proprietor for 4 years is land under LPA 1925 but not under LRA 2002.

45Goo’s Sourcebook (3rd ed) 29–40; Gravells LL – Text (1999), 1–3; Grays’ Elements (3rd ed), 1–62; K Gray [1991] CLJ 252, 305.

46LPA 1925 s 52.

47Electricity Act 1989 sch 4 para 6; British Waterways Board v. London Power Networks [2002] EWHC 2417, [2003] 1 All ER 187.

F. FIXTURES

1.Introduction

[2.19] A person expects the house he buys to include the garage, and shrubs in the garden, and the flagstones on the terrace,48 but he does not want the seller’s cat nor expect his car. Items that are freely movable are obviously distinct from things (called fixtures) that are attached to the land. Lay expectations may not match legal categories,49 since, for example bayonet cap lamp bulbs are readily movable and can be taken by a seller, though most buyers expect them to be left.50

2.Physical parts of the land

[2.20] Things which form part of the land itself are owned with it.51 Elitestone v. Morris52 concerned one of the plots on Holtsfield, a 14 acre site on the Gower Peninsula containing 27 chalets and a community of almost 80 people. Morris paid an annual licence fee and was undoubtedly a tenant of the land comprised in his plot. Rent Act 1977 security of tenure attached if his lease also included the chalet.53 This had been built in 1945 without any physical connection to the land, since it rested under its own weight on a separate base.54 Old cases permitting the removal of wooden buildings resting on their own weight were doubted.55 Morris’ chalet was unlike a Portakabin or mobile home, because it was so constructed that it could only be enjoyed in situ and removal would involve its total destruction. So, it had become a part of the land, was included in the lease, and Morris did enjoy security of tenure.

A building starts off as a pile of breeze blocks, bricks, and tiles, which are brought on to the building site as chattels. Incorporation into the building causes them to lose their character as individual bricks, and become incorporated in the wall as a part of the land. So do the component parts of a dry stone wall on a moor land farm.56 A conservatory physically incorporated into a house is a part of the structure and cannot be removed when the house is sold.57 So too are doors, central heating boilers and radiators.58

48Taylor v. Hamer [2002] EWCA Civ 1130, [2002] 33 EG 96 (CS).

49Cheshire & Burn (16th ed), 151–157; Grays’ Elements (3rd ed), 41–55;

Maudsley & Burn LL – Cases (7th ed), 90–95; Megarry & Wade (6th ed), [14.311–14.326]; Smith’s Property Law (4th ed), 83–90.

50British Economical Lamp Co v. Empire, Mile End, (1913) 29 TLR 386.

51[1997] 1 WLR 687, 691G, Lord Lloyd.

52[1997] 1 WLR 687, HL; HW Wilkinson [1997] NLJ 1031; S Bridge [1997] CLJ 498; H Conway [1998]

Conv 418.

53This implied that the rent would be regulated; the site owner had increased the annual licence fee from £85 to £1000.

54At 694E–F, Lord Clyde.

55At 692B–C, Lord Lloyd, 697G–698G, Lord Clyde; Reid v. Smith (1905) 3 CLR 656.

56Holland v. Hodgson (1872) LR 7 CP 328, 335, Blackburn J.

57Buckland v. Butterfield (1820) 2 Brod & Bing 54, 129 ER 878; Montague v. Long (1972) 24 P & CR 240 (bridge).

58Boswell v. Crucible Steel Co [1925] 1 KB 119, 123, Atkin LJ (plate glass windows not fixture); Holiday Fellowship v. Hereford [1959] 1 WLR 211; Elitestone [1997] 1 WLR 687, 690G, Lord Lloyd.

The principle of Elitestone does not make a houseboat into “land”, as shown in Chelsea Yacht and Boat Club v. Pope.59 A landing craft, used on D day, was converted and moored at Chelsea in such a way that it was afloat for six hours and aground for the next six. Occupation was held under a document which described the parties as landlord and tenant and which was in a form appropriate to a letting, but the degree of physical annexation to the land was slight. Hoses brought in water, gas, electricity, telephone and vacuum drainage, and the “boat” was also attached to pontoons, to rings in embankment and to an anchor in the river bed anchor, but all could be undone and were not apt to make the boat part of the land.60 Without annexation, the purpose of fixing the thing was irrelevant. A boat used as a home is not of the same genus as “real property” – that is land, and the boat remained a mere chattel.

3.Heirlooms

[2.21] Some moveable chattels are so much a part of the land that they pass with it. On death they pass with the land, which is why they are called heirlooms.61 In the past these chattels were often settled on trusts so as to pass to the successive life tenants of the land, and the Settled Land Act 1925 contained special powers to deal with them.62 Examples are house keys,63 title deeds, patents creating a peerage, an ancient tenure horn, and the Crown jewels.64

4.Fixtures

[2.22] Fixtures are objects which are physically removable without overwhelming damage to the fabric of the land, but they become part of the land by being affixed to it.65 Identification becomes an issue when ownership of the land is divided between competing claimants, for example on sale, death of a landowner, a lender’s sale, or under a lease. Whether an item remains a chattel is determined objectively from two factors:66

(1)the degree of annexation; and

(2)the object of annexation.

(1)Degree of annexation

[2.23] Objects firmly annexed to land are more likely to be fixtures than those lying on top of the land. The amount of damage required to remove an item tends to show the

59[2000] 1 WLR 1941, CA; D Gibbs [2001] CLJ 200; MP Thompson [2001] Conv 417; HW Wilkinson [2001] NLJ 419; R(JR) Prankerd v. Carrick DC [1999] QB 1119, Lightman J.

60Cory v. Bristow [1877] 2 AC 262, HL; Forrest v. Greenwich Overseers (1858) 8 E & B 890, 120 ER 332; Westminster CC v. Woodbury [1991] 2 EGLR 173, CA; Stubbs v. Hartnell (1977) 74 P & CR D36 (poll tax).

61Loom tool or utensil; NM Dawson (2000) 51 NILQ 1.

62SLA 1925 s 67; Re Beresford-Hope [1917] 1 Ch 287, Eve J.

63Moody v. Steggles (1879) 12, Ch D 261.

64Hill v. Hill [1897] 1 QB 483, 494–496, Chitty LJ. Before 1926 some items (such as the best bed) could pass by special custom. Hence Shakespeare’s gift of the second best bed to his wife.

65Bradshaw v. Davey [1952] 1 All ER 350 (rateable value includes fixtures).

66Leigh v. Taylor [1902] AC 157, 161, Halsbury LC (fact); Berkley v. Poulett [1977] 1 EGLR 86, 88K, Scarman LJ (fact); Reynolds v. Ashby [1904] AC 466 (law).

degree to which annexation has occurred.67 If total destruction is involved, this must signal that the item forms an integral part of the land. But even looms nailed to the floor and easily removable are still fixtures.68

“Mere juxtaposition” does not usually make an object a fixture. Something lying on land under its own weight is not a fixture,69 even if it is a printing machine weighing several tons,70 a greenhouse71 or free standing statue.72 Elitestone v. Morris73 shows that a chalet resting on land may form a part of it. So physical annexation is not decisive either way, but merely raises a presumption for or against the thing being a fixture, rebuttable either way. A simple act like nailing machines to wooden plugs in the floor to keep them steady during use74 has shifted the presumption towards them being fixtures.

(2) Object of annexation

[2.24] Modern law treats this as the primary rule. A chattel is not a fixture if the object of attaching it was to improve its convenience of use as a chattel.75 Leigh v. Taylor76 involved a valuable tapestry displayed by its owner in the drawing room of Luton Hoo, which she occupied as tenant for life. Strips of wood were nailed to the walls, canvas stretched between them, and the tapestry was fastened to the canvas with tacks. The tapestry had not become a fixture. The court found it unnecessary to investigate the length of the screws!77 Other examples are oak panelling and a chimney piece,78 picture frames screwed into recesses in the dining room panelling and a half-ton statue of a Greek athlete,79 and cinema seats.80 On the other hand, objects forming part of the overall architectural composition of the house are fixtures.81

No one can make a thing real or personal merely by wishing it so.82 Sufficient fixing makes it a part of the land irrespective of intention. Contracts to retain ownership of fixtures are invalid. Melluish v. BMS (No 3)83 concerned central heating equipment

67Spyer v. Phillipson [1931] 2 Ch 183, 209, 210, Romer LJ.

68Holland v. Hodgson (1872) LR 7 CP 328; Boyd v. Sharrock (1867) LR 5 Eq 72.

69Bain v. Brand (1876) 1 App Cas 762, HL; Deen v. Andrews [1986] 1 EGLR 262, 264G, Hirst J.

70Hulme v. Brigham [1943] KB 152. Movable parts follow the character of the machine: Mather v. Fraser (1856) 2 K & J 536, 69 ER 895.

71HE Dibble v. Moore [1970] 2 QB 181.

72Berkley v. Poulett [1977] 1 EGLR 86, CA.

73[1997] 1 WLR 687, HL; Hamp v. Bygrave [1983] 1 EGLR 174, 177A; R(JR) Westminster CC v. SS for Environment T&R [2001] EWHC 270, [2002] 1 P & CR 8, Jackson J.

74Holland v. Hodgson (1872) LR 7 CP 328. Blackburn J gives (at 335) the example of a ship’s anchor which is obviously not a part of the sea bed.

75[1997] 1 WLR 687, 692C–693H, Lord Lloyd.

76[1902] AC 157, HL. In any event a tenant for life could remove objects of ornament; see below [2.26].

77Re De Falbe (the same case in the CA), [1901] 1 Ch 523, 531, Rigby LJ.

78Spyer v. Phillipson [1931] 2 Ch 183.

79Berkely v. Poulett [1977] 1 EGLR 86, CA.

80Vaudeville Electric Cinema v. Muriset [1923] 2 Ch 74; Lyon & Co v. London City & Midland Bank

[1903] 2 KB 135.

81D’Eyncourt v. Gregory (1866) LR 3 Eq 382 (Baroque fittings at Harlaxton, Lincolnshire); but see Re De Falbe [1901] 1 Ch 523, 531, 532.

82Dixon v. Fisher (1843) 5 D 775, 793, Lord Cockburn; Elitestone [1997] 1 WLR 687, 698H, Lord Clyde.

83[1996] AC 454, HL; Aircool Installations v. British Telecommunications [1995] CLYB 821; Stokes v.

Costain Property Investments [1983] 1 WLR 907, Harman J. Tax rules have been tightened.

supplied to a local authority for installation in 180 of its houses, on terms which provided for ownership to be retained by the hiring company. Also in issue were plant for swimming pools, alarm systems for sheltered housing, lifts for car parks and cremators. The equipment belonged to the local authority for the duration of the time that it was annexed to the authority’s land, that the only relevant intention was that deduced from the degree and purpose of annexation.84

5.Importance of deciding whether item is a fixture

[2.25] Disputes most often arise on sale. Fixtures pass on a conveyance or transfer,85 and in equity under a contract, so the buyer is entitled to all fixtures attached to the land at the time of the contract for sale.86 Conversely he is entitled to receive the land clear of rubbish.87 Borderline questions often arise. Light fittings are fixtures, but not the bulbs.88 A carpet may not be a fixture even if nailed down,89 though the old reasoning that they are removed so often for cleaning may have been superseded in some households.90 Doors and windows are clearly fixtures.91 Greenhouses may count as fixtures if they are attached to a mortared foundation and walls,92 but most are now free-standing.93 Wooden or iron fences are fixtures, but not movable hurdles.94 Problem cases are best avoided by agreement between buyer and seller about what is to be included. Particulars prepared by the seller’s estate agent raise an estoppel95 and a specific list is provided on a property information sheet compiled by the seller96 It is permissible to exclude from the price on which stamp duty is paid fittings such as curtains and carpets which do not form part of the land.

A mortgage of land involves a division of ownership between the borrower and the lender who has rights in the property mortgaged until repayment of the loan. Fixtures form part of the mortgage security, and the borrower is not entitled to remove them.97 The defendant in Botham v. TSB Bank98 bought a flat in London as a shell for £130,000 and proceeded to furnish it lavishly at a total cost of £60,000. After repossession, the Court of Appeal allowed the lenders to keep the bathroom and kitchen

84At 473B, Lord Browne-Wilkinson; Elitestone [1997] 1 WLR 687, 690E, Lord Lloyd.

85LPA 1925 s 62.

86Phillips v. Lamdin [1949] 2 KB 33, 41 (Adam front door).

87Hynes v. Vaughan (1985) 50 P & CR 444; HW Wilkinson [1986] Conv 73.

88Sewell v. Angerstein (1868) 18 LT 300 (gasoliers); British Economical Lamp Co v. Empire, Mile End

(1913) 29 TLR 386.

89Hellawell v. Eastwood (1851) 6 Exch 295, 155 ER 554.

90Boyd v. Shorrock (1867) LR 5 Eq 72.

91Cooke’s case (1582) Moore KB 177, 72 ER 515; Climie v. Wood (1869) LR 4 Exch 328.

92Jenkins v. Gething (1862) 2 John & H 520, 70 ER 1165.

93Deen v. Andrews [1986] 1 EGLR 262; HE Dibble v. Moore [1970] 2 QB 181; PV Baker (1970) 86 LQR

94Re Maberley ex p Belcher (1835) 4 Deac & Ch 703.

95Hamp v. Bygrave [1983] 1 EGLR 174, 177, Boreham J.

96JE Adams (1986) 136 NLJ 652.

97Vaudeville Electric Cinema v. Muriset [1923] 2 Ch 74; Longbottom v. Berry (1869) LR 5 QB 137. A secured lender prevails over a finance company with a hire purchase agreement: Hobson v. Gorringe [1897]

1Ch 182; Holland v. Hodgson (1872) LR 7 CP 328; HN Bennett & CJ Davies (1994) 110 LQR 448.

98(1997) 73 P & CR D1, CA; Smith v. Bridgend BC [2001] UKHL 58, [2002] 1 AC 336 (floating charge included equitable title to coal washing plant).

units and recessed ceiling lights. Botham retained ownership of light fittings, carpets, curtains and blinds, gas fires and kitchen white goods.

Fixtures must be differentiated from moveable chattels on the death of a landowner who makes a will containing separate gifts of his land99 and chattels.100

Between landlord and tenant, the tenant is entitled to fixtures during the term, but at the end of the lease they pass to the landlord.101 Similar issues arise between a life tenant under a settlement and those entitled in remainder.102 However, the law is heavily modified because limited owners may remove many fixtures at the end of the lease.

6.Removable fixtures

[2.26] Three classes of fixture can be removed by tenants or beneficiaries, that is ornamental and domestic fixtures, trade fixtures, and agricultural fixtures. However, ownership of the chattel only passes to the tenant at the time of removal and until then it is part of the landlord’s holding.103

Ornamental and domestic fixtures obviously belong to the tenant, whose short term interest in the land means that he does not decorate for the benefit of the landlord. Panelling was once an essential attribute of a fashionable house, but few tenants now install or remove panelling,104 or move with chimney glasses, stoves, grates, and ranges. Items of decoration may not be fixtures at all, but if they are ones which the tenant for life could remove.105

Trade fixtures are those which the tenant himself has fixed to the premises for the purposes of his trade.106 This ancient exception to encourage trade107 was formalised by Poole’s case,108 which allowed a soap boiler to remove his vats and coppers. Examples from Her Majesty’s Theatre, Haymarket, included seats bolted to the ground, brackets for wall lights, and electric transformers.109 The same applies to fittings of a pub110 and petrol pumps,111 but not plant for the manufacture of sulphuric acid.112

99Bain v. Brand (1876) 1 App Cas 762, 767, Cairns LC.

100Elwes v. Maw (1802) 3 East 38, 102 ER 510 (first head); Re Whaley [1908] 1 Ch 615; Re Lord Chesterfield’s SEs [1911] 1 Ch 237 (Grinling Gibbons carvings); Leigh v. Taylor [1902] AC 157, HL.

101Never-Stop Rly (Wembley) v. British Empire Exhibition (1924) [1926] Ch 857; Webb v. Frank Bevis

[1940] 1 All ER 247, CA; Elitestone v. Morris [1997] 1 WLR 687, 694H–696C, Lord Clyde; P Sparkes NLT, 696–700.

102Elwes v. Maw (second and third heads); Berkley v. Poulett [1977] 1 EGLR 86, 88, Scarman LJ.

103Melluish v. BMS (No 3) [1996] AC 454, HL. Removal is not permitted after the tenant’s lease has been terminated by a forfeiture by peaceable re-entry in a pizza bar: Re Palmeiro [1999] 3 EGLR 27, Ch D.

104Spyer v. Phillipson [1931] 2 Ch 183.

105Re de Falbe [1901] 1 Ch 523, CA; Spyer v. Phillipson [1931] 2 Ch 183, 205, Lord Hanworth MR (very substantial fixing).

106New Zealand Government Property Corp v. HM & S [1982] QB 1145, 1157A–B, Lord Denning MR.

107Penton v. Robart (1801) 2 East 88, 90, 102 ER 302, Kenyon CJ (glass houses).

108(1703) 1 Salk 368, 91 ER 320; Mansfield v. Blackburne (1840) 6 Bing NC 426, 133 ER 165.

109[1982] QB 1145, 1157A–B.

110Elliott v. Bishop (1845) 10 Exch 496, 156 ER 534.

111Smith v. City Petroleum Co [1940] 1 All ER 260.

112Pole-Carew v. Western Counties & General Manure Co [1920] 2 Ch 97.

Agricultural fixtures were not regarded as trade fixtures.113 Statutory regimes have achieved justice for agricultural tenants114 who attach fixtures to the holding or erect buildings.115 Items which are not removable are replacements of landlord’s fixtures and those the tenant has contracted to provide. A notice procedure applies when a tenancy ends, giving the landlord a right to require the tenant to leave a fixture, by offering its fair value in compensation.116

7.Exercise of right to remove

[2.27] A contractual right to remove chattels gives an equitable right of entry which binds a buyer,117 except one without notice. Removal is bound to cause some damage, but there must be no material damage to freehold.118 Any damage caused either by installation or by removal must be remedied.119 Removal rights continue throughout the lease, during renewals,120 and perhaps for a short period afterwards.121 However, on a surrender it is wise to preserve the right of removal expressly.

G. THINGS FOUND

1.Treasure

[2.28] From Edward the Confessor’s time, treasure from the earth has belonged automatically to the Crown.122 Today, most finds are made by metal detectors. Finds of treasure must be reported123 and handed over, though compensation is paid to the finder.124 The old law of treasure trove was inadequate to safeguard antiquities125 but the more expansive protection has been provided by the Treasure Act 1996126 has led

113Elwes v. Maw (1802) 3 East 38, 102 ER 510 (animal house, carpenter’s sheds, fuel shed, wagon-house, fold yard).

114Not tenants for life.

115Agricultural Tenancies Act 1995 s 8 (post-1995 tenancies); Agricultural Holdings Act 1986 s 10 (earlier tenancies). It extends to fixtures by predecessor tenants. The old Acts were subject to contracting out: Premier Dairies v. Garlick [1920] 2 Ch 17. Under the 1995 Act, this requires advance agreement and compensation will be payable.

116Agricultural Holdings Act 1986 s 10(4).

117Re Morrison Jones & Taylor [1914] 1 Ch 50, 58; Poster v. Slough Estates [1968] 1 WLR 1515, 1520G, 1521C; AG Guest & J Lever (1963) 27 Conv (NS) 30; Bland v. Ingram’s Estates Ltd (No 2) [2001] EWCA Civ 1088, [2002] 1 All ER 264, [75–78] (Uddin knew of claim to relief from forfeiture by previous tenant and right to remove chattels).

118Buckland v. Butterfield (1820) 2 Brod & B 54, 129 ER 878 (conservatory); Gibson v. Hammersmith & City Ry Co (1863) 2 Drew & Sm 603, 62 ER 748, Kindersley V-C.

119Mancetter Developments v. Garmenson [1986] QB 1212, CA.

120New Zealand Government Property Corp v. HM & S [1981] 1 WLR 870, CA; (1982) 98 LQR 342; HW Wilkinson (1982) 132 NLJ 786; G Kodilinye [1987] Conv 253.

121Penton v. Robart (1801) 2 East 88, 102 ER 302; Weeton v. Woodcock (1840) 7 M & W 14, 151 ER 659 (rights lost on forfeiture).

122Or the Duchies of Cornwall or Lancaster; rights can now be franchised out: Treasure Act 1996 s 4.

123Within 14 days; coroners continue to resolve the status of finds: Treasure Act 1996 ss 7–9; Coroners Act 1988 s 30.

124Treasure Act 1996 ss 10–11; J Marston & L Ross [1998] Conv 252 (Code of Practice); Megarry & Wade (6th ed), [3.052].

125NE Palmer (1981) 44 MLR 178.

126Treasure Act 1996 ss 1–2; PH Kenny [1996] Conv 321; in force September 24th 1997, SI 1997/1977.

to a ten-fold increase in the reports of findings of archaeological artefacts. So successful has it been that the acquisition funds of museums are exhausted. Finds needing to be reported fall into five classes: (1) Objects 300 years old with at least 10% content of the precious metals gold and silver.127 (2) Coins 300 years old found in a group of 10 or more irrespective of the metallic composition.128 Under the old law, a hoard of Roman coins found with a metal detector at Coleby in Lincolnshire did not qualify as treasure trove because they were made of an alloy with a tiny percentage of silver.129 These would now be treasure. (3) Prehistoric metal objects other than coins if they are of base metal but found in a group of more than one or if they are partly of gold or silver;130 (4) Other objects 200 years old within classes designated as being of outstanding historical, archaeological or cultural importance.131 (5) Treasure trove as anciently defined and so restricted to objects made from the two precious metals, gold and silver: treasure was “trove” if it was hidden (as an individual object or as a hoard) in a house or the earth or any private place, with an unknown owner,132 and with the intention of recovery. This definition excludes things lost or abandoned.133

2.Finders

[2.29] “Finders Keepers” is a good starting point.134 Discovery of an item and taking possession of it gives title against subsequent recipients. In Amory v. Delamirie135 a chimney sweep had sufficient property in a jewel found in a chimney to sue a goldsmith with whom it had been lodged for valuation and who had decided to keep it. However, the finder’s title is subordinate to the true owners,136 unless he has abandoned ownership of the thing,137 for example by throwing coins into a river. A finder must behave honestly by taking reasonable steps to trace the owner.138 Employees usually have an obligation to hand over the things they find while working to their employers.139

The finder’s title may be subordinate to that of the owner of the land on which the object is found. Here the critical issue is whether the thing is found “on” or “in” the land.140

127S 3(3).

128Att-Gen for the Duchy of Lancaster v. GE Overton (Farms) [1982] Ch 277; AA Preece [1981] Conv

385.

129CS Emsden (1926) 42 LQR 368; N Cookson [1991] NLJ 1255.

130SI 2002/2666.

131Treasure Act 1996 s 2(1); classes can also be excluded: s 1(2), 2(2).

132Att-Gen v. Moore [1893] 1 Ch 676, 683.

133Eg the Sutton Hoo treasure.

134Grays’ Elements (3rd ed), 22–30; Smith’s Property Law (4th ed), 56–63.

135(1722) 1 Str 505, 93 ER 664.

136Amory v. Delamirie (1772) 1 Str 505, 93 ER 664; Waverley BC v. Fletcher [1996] QB 334, 339G, Auld

LJ.

137Moorhouse v. Angus & Robertson [1981] 1 NSWLR 700 (manuscript); R Hudson (1984) 100 LQR

110.

138Parker v. British Airways Board [1982] QB 1004, 1017, Donaldson LJ.

139South Staffordshire Water Co v. Sharman [1896] 2 QB 44, CA; London Corp v. Appleyard [1963] 2 All ER 834, McNair J; Parker [1982] QB 1004, 1013, 1017.

140Parker v. British Airways Board [1982] QB 1004, Donaldson LJ; Waverley BC v. Fletcher [1996] QB 334, 346B–C, Auld LJ.

(1) Things found on land

[2.30] An item which is lost usually rests on the surface of the land where it is dropped.141 In Bridges v. Hawkesworth,142 a bundle of banknotes was found by a customer in the public part of a shop, presumably having been dropped by a previous customer. Ownership belonged to the finder rather than the owner of the shop in which they were found, since they were not within the protection of the shop. Parker v. British Airways Board143 concerned a gold bracelet found in an international departure lounge at Heathrow, operated by the Board as tenants. Parker, who found it, was entitled rather than the operators of the terminal building.

A landowner who asserts control of things found on land prevails over the finder. In Parker v. British Airways Board the Board did not assert control of the public areas of the terminal buildings at Heathrow Airport.144 In Bridges v. Hawkesworth the shop owner did not control the part of the shop open to public access. Opinions differ about whether control would have existed if an item had been dropped behind the counter in the part of the shop to which only the shopkeeper had access.145 Something more than occupation of the land is needed to manifest the necessary intention.146 An object found by a person while trespassing belongs to the owner of the land on which he is trespassing, at least if an attempt is made to control trespass.147

(2) Things in (or attached to) land

[2.31] Waverley BC v. Fletcher148 concerned a medieval gold brooch (perhaps the hat pin of Henry VIII himself) worth £35,000 found buried nine inches beneath a municipal park at Farnham. Mr Fletcher found it with his metal detector, but he was compelled to hand it over to the council, which owned the park where it was found.149 Once a thing that had been lost was lodged in the land, removal necessarily involved interference with the land. Similarly in Elwes v. Brigg Gas Co a prehistoric boat discovered during work on the construction of a gasholder was held to belong to the freeholder as part of the soil.150 Two rings found by workmen cleaning a pond on the orders of the landowner in South Staffordshire Water Co v. Shearman151 were just on the “in” side of the line, and so belonged to the owner of the pond.152 A landowner necessarily intends to exercise control over embedded items.153

141AL Goodhart (1927) 3 CLJ 195.

142(1851) 21 LJQB 75; Parker [1982] QB 1004, 1011–1012, Donaldson LJ; South Staffs [1896] 2 QB 44, 46–47, Lord Russell CJ; Waverley BC v. Fletcher [1996] QB 334, 341–342, Auld LJ.

143[1982] QB 1004, CA; A Tettenborn [1982] CLJ 242; D Hoath [1990] Conv 348.

144[1982] QB 1004, 1018–1019, Donaldson LJ.

145Parker [1982] QB 1004, 1014A, 1020F–H, 1021E.

146South Staffs [1896] 2 QB 44, 46–47, Lord Russell CJ; Parker [1982] 1 QB 1004, 1014B.

147Hibbert v. McKiernan [1948] 1 All ER 860 (picking up golf balls was theft); OR Marshall (1949) 2 CLP 68, 80–85.

148[1995] QB 334, CA; J Stevens [1996] Conv 216; C MacMillan (1995) 58 MLR 101.

149Permitted recreations did not include interference with the soil.

150(1886) 33 Ch D 562, Chitty J; Fletcher [1996] QB 334, 340C–341B, Auld LJ.

151[1896] 2 QB 44; [1996] QB 334, 341C, Auld LJ.

152Att-Gen for the Duchy of Lancaster v. GE Overton (Farms) [1982] Ch 277 (coins belonged to the owner of the farm in preference to the metal detector who found them).

153Waverley BC v. Fletcher [1996] QB 334, 341C–346A, Auld LJ; AL Goodhart (1929) 3 CLJ 195,

It is true that in Hannah v. Peel154 a soldier who found a brooch in a crevice in the bedroom of a requisitioned house was entitled to keep it against the owner of the house who had never occupied it. The Crown was the occupier of land under requisition.155

(3) Which landowner?

[2.32] In reported disputes between tenant and freeholder, the freeholder has generally won, on the terms of the specific leases, taking for example a prehistoric boat156 and a wall safe containing £5,728 in notes.157

(4) Things hidden

[2.33] The general principle arose for decision in unusual circumstances in Moffatt v. Kazana.158 Three years after Kazana had bought a bungalow, some bricks were dislodged from the kitchen chimney, and the biscuit tin discovered was found to contain pound notes. The seller had died, but the evidence was that the seller had placed the biscuit tin there, for when his son-in-law had wanted to borrow, the seller had disappeared through a trap door into the loft and reappeared with money. It was held that the money belonged to the seller’s estate. The true owner was able to assert title to chattels against the owner of the land on which they were lodged.

H. FLORA AND FAUNA

1.Plants

[2.34] Land includes trees, shrubs, hedges, plants and flowers, whether cultivated or wild.159 Uprooting an entire plant will be protected by the law of theft,160 though not wild mushrooms, flowers, fruit or foliage cut for non-commercial purposes.161

2.Animals

[2.35] Tame animals can be owned in the same way as any other item of personal property. For a car read a cat.162 When a pet animal strays onto neighbouring land163

206–207; City of London Corp v. Appleyard [1963] 1 WLR 982, 987, McNair J; Parker v. British Airways Board [1982] QB 1004, 1010, Donaldson LJ.

154[1945] KB 509; DEW (1945) 9 CLJ 247.

155[1982] QB 1004, 1011B, Donaldson LJ.

156Elwes v. Brigg Gas Co (1886) 33, Ch D 562.

157City of London Corp v. Appleyard [1963] 1 WLR 982, McNair J; (1964) 80 LQR 151.

158[1969] 2 QB 152; Re Cohen [1953] Ch 88, Vaisey J (£6,000 found hidden in radio; passed to estate of deceased person who had hidden it); Parker [1982] QB 1004, 1011A, 1016H, Donaldson LJ.

159Stukely v. Butler (1615) Hob 168, 170, 80 ER 316; Lilford’s case (1614) 11 Co Rep 46b, 77 ER 1206; Monsanto v. Tilly [2000] Env LR 313, 322, Stuart-Smith LJ.

160Wildlife and Countryside Act 1981 s 13(1), s 2(3); Criminal Damage Act 1971 s 10(1)(b).

161Theft Act 1968 s 4(3). Many wild species are now protected.

162McQuaker v. Goddard [1940] 1 KB 687, 696 (camel domestic); Behrens v. Betram Mills Circus [1957] 2 QB 1 (elephant wild); see Megarry & Wade (6th ed), [3.054].

163Kearry v. Pattinson [1939] 1 KB 471, CA (bees swarming).