Possession - Key Cases and Legislation Flashcards
Dublin Distillery
Kearry v Pattinson [1938] (KB)
Slesser LJ:
- Blackstone’s Commentaries upon the Laws of England - Hived and sight rule
- Applied in Hannam v Mockett
- Own the bees based on the bees being on your land – Tibbs v Smith
Goddard LJ:
- Defendant could have possessed bees but did not choose to do so; No cause of action for plaintiff
Re Moormac Developments Ltd [2013] (HC)
Laffoy J:
- Whatever is affixed to the ground, becomes part of it – Keane J in HC in Re Galway Concrete Ltd
- Blackburn J in Holland v Hodgson – Same general principle; Determining whether permanency was the intention – “The degree of the annexation and the object of the annexation”; No more than own weight – Generally chattel but permanency intention – D’Eyncourt v Gregory; True rule = Presumptions based on affixed to land by more than own weight but other party can prove the contrary
- The “true rule” test – Applied by the High Court (O’Hanlon J.) in Maye v The Revenue Commissioners – TV aerials permanent – “Very substantial means” and permanency intention
- HoL in Elitestone v Morris – Degree and object of annexation to the land – House could only have been removed by destruction so permanent intention; Lord Lloyd – H v H; if house removable = chattel, if not = part of the land”; Lord Clyde = Objective intention idea as identified by Blackburn J
- McCormack on Reservation of Title (2nd Ed., 1995) on “Fixtures versus Chattels”, where the author stated (at p. 192) – “Nowadays, the test appears to be whether the chattels are affixed for the more convenient use and enjoyment of the chattel as a chattel, or to enhance the enjoyment of the realty as realty.”
- Blackburn’s true rule – 1. Attached by own weight 2. Objective permanency intention –
- Limestone to be used for road construction (limestone placed at location where roads were planned to be and limestone quantities measured on the basis of the road construction)
Bernstein v Skyviews & General Ltd [1977] (QB)
Griffiths J:
- Winfield on Tort, 6th ed. (1954) – Trespass if aircraft comes within the area of ordinary user.”
- Lord Ellenborough in Pickering v. Rudd including Saunders v. Smith (1838) - Balloon
- Commissioner for Railways v. Valuer-General [1974] A.C. 328, _ 351, Lord Wilberforce - Subsoil and airspace not limited
- Wandsworth Board of Works v. United Telephone Co. Ltd., Bowen L.J – Ordinary use and enjoyment of land
Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35
Lord Hope:
- “Trespass = unjustified intrusion by one party upon land which is in the possession of another: Blackstone, Commentaries on the Laws of England”
- Comr for Railways v Valuer General [1974] AC 328 – Lord Wilberforce –
- Able to be accessed by human activity
- Impracticality of literal interpretation of the rule – Earth not flat, centre too hot, heat mining and carbon technologies impossible with literal interpretation of the rule
- Same with above as aircraft – Beirstein case – Griffiths J – Ordinary use and enjoyment of land and the structures upon it
- Star say apply to subsoil – No English authority but US – Boehinger v Montalto – Rule and US v Causby – Aircraft PP considerations; Chance v BP Chemicals Inc – Ohio SC = Same rule based on Willoughby Hills v Corrigan (extension of sky principle) – Trespass required physical damage or interference with the use of the land; refining by products technology under the land surface not trespass
- Need absurdity limit but where human activity not absurd
Elwes v Briggs Gas Co. [1886] (Chancery Division)
Chitty J:
- Latin maxim – Whatever is affixed to the soil becomes part of it, whether affixed by a person or natural causes
- Boat belonged to plaintiff when lease was granted based on maxim whether land or chattel
- Reg v Rowe – Whether the property in some iron lying at the bottom of a canal was well laid in the indictment in the canal company – Canal company in possession of land so in possession of iron
- True owner cannot be found
- Irrelevant that plaintiff was unaware of existence of boat
- Lease –What was reasonably contemplated to be there; boat not contemplated to be there
Parker v British Airways [1981] (CoA)
Donaldson LJ:
- No title ownership claims
- General principle – Have to actually do more than become aware of the thing and trespasser exception and shouldn’t benefit from wrongdoing; Extracted this as the GP in Elwes v Briggs Gas Co and Hibbert v McKenna
- Chattels attached to land or buildings - Occupier (South Staffordshire Water Co; Bridges v Hawkesworth)
- McNair J. in City of London Corporation v Appleyard [1963] 1 W.L.R. 982 – Followed South Staffordshire Water Co. v. Sharman
- Grafstein v Holme and Freeman (Ontario CoA)
- Kowel v Ellis (Manitoba CoA)
- Rights and obligations of the finder
- Rights and liabilities of an occupier
- Current case application
AG of Lancashire v Overton Farms Ltd [1981] (English CoA)
Lord Denning:
- Bracton – Treasure belongs to finder
- Stanford – TT but endorsed Bracton as GP
- Sir Edward Coke – TT when “any gold or silver, in coin, plate, or bullyon hath been of ancient time hidden”, TT not applicable if not gold or silver
- Endorsed by John Comyn
- Blackstone – In the earth
- Chitty – In the earth but also concealed in a house or other private place, unknown owner
- Reg v Thomas and Willett – Guilty of concealing TT as knew rings gold
- Reg v O’Toole – Silver same thing
- CS Emden in LQR – TT = Gold and silver, partly – Substance of matter
- Charles Sparrow – Only GS not bronze
- Case of Mines – Copper mine with little silver still TT
- Test – Substantial amount of gold or silver
- Palser v Grinling – Lord Simon – Question for judge, percentage limit would be legislating
- Considerable amount – At least 50% CC = 18%
AG v Trustees of the British Museum [1903] (Chancery Division)
- Chitty – TT where G/S found concealed in the earth a house or other private place where owner unknown; Not applicable where owner lost or intended to abandon property – Finder
- Current case – Articles buried together and carefully concealed – Person unlikely to abandon them – Intentionally concealed for security
- Insufficient evidence to infer belief in an Irish sea god offerings
- Chitty on prerogatives – Must be attached to the crown to be a prerogative
Webb v Ireland [1988] (SC)
Finlay CJ (Henchy J and Griffin J agreeing):
Rights of the Landowner against the Finder:
- Chitty J in Elwes v Brigg Gas Company = Owner of a FS interest entitled to any chattel which may be in the land as against the finder of that chattel, even where the finder is excavating the land with the licence of the owner
- South Staffordshire Water Company v Sharman – Approval of Pollick and Wright
- Control – Distinguish things on land with things attached to or under land – Consistent with Bridges and Parker
- Distinguish Hanna v Peel as owner had never entered into possession of house even though had title to it
- Parker – 1. Land occupier supersedes finder 2. Finder acquires very limited rights if finds while trespassing
- Owners superior to finders and as per agreement between landowners and State, rights have become vested in the State
Trespassing Issue:
- Trespassers once started digging
- PP – No rights of ownership once trespassing – CG to protect rights of possession and ownership of land protected from unlawful invasion; Injustice if small but valuable trespass not penalised but a bigger less valuable trespass not penalised
- Even if finder/owner rights different, trespass disentitles the plaintiffs
Treasure Trove Question:
- Gold or silver or substantial part thereof
- Byrne v Ireland – Walsh J = 1922 Constitution – Article 2 – Sovreign State and Article 51 – Functions for king both inconsistent with TT so not in 1937 Constitution;
- Article 5 - Ireland is a sovereign, independent, democratic State; Article 10.1 – All natural resources, royalties and franchises belong to the State; Article 10.3 – Can make provision for management, control and alienation of State property
- Royalty definition in Oxford dictionary include the sovereignty or sovereign rule of a state
- Importance of heritage assets for the people of Ireland – Constitution emphasis on history and common good – Part of sovereignty
Walsh J:
- Article 11 1922 Constitution – “All the lands and waters, mines and minerals, within the territory of the Irish Free state (Saorstat Eireann) hitherto vested in the State … and also all the natural resources of the same territory (including the air and all forms of potential energy, and also all royalties and franchises within that territory shall… belong to the Irish Free State (Saorstat Eireann), subject to any trusts, grants leases or concessions then existing in respect thereof, or any valid private interest therein and shall be controlled and administered by the Oireachtas …”
- Kingsmill Moore J in Re Irish Employers Mutual Insurance Association Limited – Philosophy of Article 11 linked with declaration of independence
- Rejection of all royal rights or privileges
- Article 10 – “All natural resources” – Encompasses lands or waters – State owner of all mentioned stuff
- Artefacts distinct – Attorney General of Ontario V. Mercer – Royalties means royal rights; Primary meaning GP but not in current case – Royalties means sums of money paid or payable for the exploitation of natural resources, otherwise would be getting sovereignty from Article 10 instead of Article 5
- People as sovereign authority by Constitution creating State and deeming it a sovereign state under Article 5 – Right and duty for State to act as legal person holding national heritage property subject to rights of true owner where can be ascertained
- McCarthy J:
- Facts of case
- Armory v Delamarie – Finder of a jewel title good against all but true owner
- Endorsed in Parker and trespasser qualification – Defendants established no rights
- Article 5 sovereignty rather than Article 10 – TT does not fall within natural resources
