This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
On the severance of a tenement, a distinction was formerly considered to exist between a continuous easement, such as a right of drainage, and a discontinuous easement, such as a right of way, as respects the enjoyment of the right being continued to the owner of the dissevered tenement. But later cases have destroyed any such distinction, and the authorities (i) now show that easements, whether continuous or discontinuous, and even rights or modes of user which, though not strictly easements, are nearly akin to them, and which have been visibly enjoyed by the property sold over the property retained, will pass under the customary general words; nor does the fact that the right or mode of user has only come into existence during unity of possession of the two tenements prevent such a construction of the grant, and the general words employed in it.
It is to be observed that by s. 187 of the L. P. Act, 1925, where an easement, right, or privilege for a legal estate is created, it is to enure for the benefit of the land to which it is intended to be annexed.
No distinction between a continuous and a discontinuous easement.
L. J. Ch. 438, as to a right to light; Burrows v. Lang, 1901, 2 Ch. 502; 70 L. J. Ch. 607, as to right to continuance and use of watercourse.
(g) International Tea Stores v. Hobbs, 1903, 2 Ch. 165; 72 L. J. Ch. 543; Hansford v. Jago, 1921, 1 Ch. 322; Westwood v. Heywood, 1921, 2 Ch. 130.
(h) Long v. Gowlett, sup.
(i) James v. Plant, (1836) 4 A. & E. 749; Watts v. Kelson, (1871) 6 Ch. 166; 40 L. J. Ch. 126; Kay v. Oxley, (1875) L. R. 10 Q. B. 369; Barleshire v. Grubb, (1881) 18 Ch. D. 616; 50 L. J. Ch. 731; and Bayley v. G. W. B. Co., sup.; Broomfield v. Williams, 1897, 1 Ch. 602; Hansford v. Jago, 1921, 1 Ch. 322; Westwood v. Heywood, 1921, 2 Ch. 130.
In every case, where a vendor is selling part of his land, the nature and extent of the easements or quasi-easements which he intends to retain, should not be left to mere presumption. Unless the right to be reserved by implication is clearly essential to the enjoyment of the property retained, the ordinary rule, that a grantor shall not derogate from his absolute grant, will prevent its being claimed against the purchaser. It was stated by V.-c. Kindersley, as well settled law, that if a person having a house on his land, the windows of which have existed for more than twenty years, sells a portion of the land, the purchaser may erect any buildings he pleases upon the land so sold to him, however much they may interfere with the lights of the vendor's house (k).
Rights intended to be retained should be expressly mentioned.
In the case of instruments executed after 1925, it is provided by s. 65 (1) of the L. P. Act, 1925, that a reservation of a legal estate shall operate at law without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him, so as to create the legal estate reserved, and so as to vest the same in the person (whether the grantor or not) for whose benefit the reservation is made.
In the preceding remarks, the word "reservation" has been used in a general sense, as including any right and easement, or quasi-easement, which a vendor, on selling part of his property, may be desirous of retaining for his own benefit over the land conveyed; but a reservation, in the strict sense of the term, can only be in respect of something issuing out of the thing granted, just as an exception must be parcel of what would otherwise be the entirety of the thing granted. Thus, a right of sporting or the like cannot properly be made the subject of a reservation (l); but in many cases, what purports to be an exception or reservation will be held to operate as a fresh grant (m).
What may be the subject of a reservation.
(k) Curriers' Co. v. Corbett, (1865) 2 Dr. & S. 355; Ellis v. Manchester Carriage Co., (1876) 2 C. P. D. 13; and see Taws v. Knowles, 1891. 2 Q. B. 564; 60 L. J. Q. B. 641; and Long v. Gowlett, 1923, 2 Ch. 177, 263.
(l) Doe d. Douglas v. Lock, (1835) 2 A. & E. 715, 743; Ewart v. Graham, (1856) 7 H. L. C. 331; 29 L. J. Ex. 88; Wickham v. Hawker, (1840) 7 M. & W. 63; 10 L. J. N. S. Ex. 153; cf. Wilkinson v. Proud, (1843) 11 M. & W. 33; 12 L. J. Ex. 227.
Upon the sale of land, the vendor cannot create new rights, unconnected with its use or enjoyment, and annex them to it, so as to pass to assignees: e.g., aright for the owners of close A. to walk over close B. for all purposes (n): nor subject it to novel burdens (o), except, indeed, by way of negative covenant (p).
As to the creation, Ac, of new easements.
Sect. 51 of the Conv. Act, 1881, made the use of the word "heirs " unnecessary in a limitation in fee simple in a deed, and enacted that the words "in fee simple" should be sufficient. A limitation "in fee," however, without the word "simple" being added, was insufficient under the Act, and would only pass a life estate (q). It should be observed that the rule requiring the use of technical words in order to pass an estate of inheritance did not apply to equitable interests and trusts, it being sufficient in such cases that the intention should be made clear (r). If, however, in limiting equitable interests or trusts technical words are used, such words, it seems, will be construed in the same way as in a limitation of legal interests (s).
Limitation in fee simple.
By the L. P. Act, 1925, s. 51, all lands and all interests therein lie in grant, and are incapable of being conveyed by livery, or livery and seisin, or by feoffment, and the use of the word "grant" is not necessary to convey land or to create any interest therein. And by s. 60 ,(1) a conveyance of freehold land to any person without words of limitation, or any equivalent expression, is to pass the fee simple or other the whole interest the grantor had power to convey in such land, unless a contrary intention appears in the conveyance; and by sub-s. (2) a conveyance of freehold land to a corporation sole by his corporate designation, without the word "successors," is to pass to the corporation the fee simple or other the whole interest which the grantor had power to convey, unless a contrary intention appears. Sub-s. (4) enacts that the foregoing provisions of the section are to apply only to conveyances and deeds executed after the commencement of the Act. The section contains a proviso re-enacting, in respect of deeds executed after the 31st December, 1881, s. 51 of the Conv. Act, 1881.
(m) See Wickham v. Hawker, sup.; Durham B. Co. v. Walker, (1842) 2 Q. B. at p. 967; Corp. of London v. Biggs, (1880) 13 Ch. D. 798, 802; 49 L. J. Oh. 297.
(n) Ackroyd v. Smith, (1850) 10 C. B. 164; 19 L. J. C. P. 315; Egerton v. Lord Brownlow, (1853) 4 H.l.c.1; 23 L. J. Ch. 348; and cf. Stockport Waterworks Co. v. Potter, (1864) 3 H. &. C. 300; Nutiall v. Bracewell, (1866) L. R. 2 Ex. 1; 36 L. J. Ex. 1.
(o) Ackroyd v. Smith, sup.; and see Keppell v. Bailey, (1834) 2 M. & K. at p. 535.
(p) See L. & S. W. B. Co. v. Gomm, (1882) 20 Ch. D. 562; 51 L. J. Ch. 530.
(q) Be Ethel and Mitchell, 1901, 1 Ch. 945; 70 L. J. Ch. 498. See also Deanberg v. Letchford, (1895) 72 L. T. 489; Be Irwin, 1904, 2 Ch. 752.
(r) Be Tringham's Trusts, 1904, 2 Ch. 487; Be Gillies' Settlement. 1917, 2 Ch. 205; Lewin, 12th ed. p. 124.
(s) Be Bostock's Settlement, 1921, 2 Ch. 469.
After 1925, in the conveyance of an estate in fee, it would seem to be more prudent not to use the old words of limitation, "and his heirs" (t).
The clause beginning " and all the estate, right, title, and interest, etc," is now implied by s. 63 of the L. P. Act, 1925 (which takes the place of s. 63 of the Conv. Act, 1881), except where a contrary intention is expressed. It would not, even at Law, pass any interest in the property, which from a general consideration of the deed, it appears, was not intended to pass (u); but in the case of several vendors, who concur in assuring an estate, say in fee simple, there can, it is conceived, be no doubt' that under the common clause the interests of all the conveying parties will pass, even though such parties, as between themselves, may in fact be entitled somewhat differently from what they supposed to be the case.
All estate clause.
(t) See a. 131 of the L. P. Act, 1925.
(u) See Sunt v. Remnant, (1854) 9 Ex. 635; 23 L. J. Ex. 135; Hooper v. Harrison, (1855) 2 K. & J. 113; Rooke v. Lord Kensington, (1856) 2 K. & J. 753; 25 L. J. Ch. 795; Early v. Rathbone, (1887) 57 L. J. Ch. 652, where a small piece of copyhold was held to pass on a grant in fee; Williams v. Pinckney, (1897) 67 L. J. Ch. 34; Thelluson v. Liddard, 1900, 2 Ch. 635; 69 L. J. Ch. 673, where an equitable estate passed.