Ackroyd v Samuel Smith and Thomas Smith
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 68
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 315; 14 Jur. 1047. Referred to, Edgar v. English Fisheries Commissioners, 1870, 23 L. T. 738; Royal v. Yaxley, 1872, 20 W. R. 905; Limmer Asphalte Paving Company v. Inland Revenue Commissioners, 1872, L. R. 7 Ex. 216. Explained, Thorpe v. Brumfitt, 1873, L. R. 8 Ch. 655. Distinguished, Simpson v. Godmanchester, [1897] A. C. 707. Principle applied, Great Northern Railway v. Inland Revenue Commissioners, [1901] 1 K. B. 429.
[164] AGKEOYD V. SAMUEL SMITH AND THOMAS SMITH. 1850. ,[S. C. 19 L. J. C. P. 315; 14 Jur. 1047. Eeferred to, Edgar v, English Fisheries Commissioners, 1870, 23 L. T. 738; Royal v. Taxley, 1872, 20 W. E. 905; Limmer Asphalte Paving Company v. Inland Revenue Commissioners, 1872, L. E. 7 Ex. 216. Explained, Thorpe v. Brumfitt, 1873, L. E. 8 Ch. 655. Distinguished, Simpson v. Godmanchester, [1897] A. C. 707. Principle applied, Great Northern Railway v. Inland Revenue Commissioners, [1901] 1 K. B. 429.] It is not competent to a vendor to create rights unconnected with the use or enjoyment of the land, and to annex them to it: neither can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee. -In trespass quare clausum fregit, the defendants justified under a supposed right of way conveyed to them by A. The plea, after stating the conveyance to A. of "a certain close, and certain plots, pieces, or parcels of land, &c., together with all ways, &c., particularly the right and privilege to and for the owners and occupiers of the premises conveyed, and all persons having occasion to resort thereto, of passing and repassing, for all purposes, in, over, along, and through a certain road, &c." alleged an assignment by A. to the defendants of "the said lands, tenements, hereditaments, premises, and appurtenances," granted by the former deed; and then averred that the trespasses complained of were committed by the defendants, being owners of the said lands, &c., and in the possession and occupation thereof, in using the right of way for their own purposes. The plaintiffs, after setting out the deed upon oyer, demurred specially to the plea, on the grounds that the defendants claimed a more extensive right than that granted by the deed, and that, if the right as claimed was granted by the deed, it was not assignable:-Held, that the grant to A. was not restricted to the use of the way for purposes connected with the occupation of the land conveyed: but that the right in question was not one which inhered in the land, or which concerned the premises conveyed, or the mode of occupying and enjoying them, and therefore did not pass to the defendants by the assignment. Trespass, for breaking and entering a close of the plaintiff, situate in the parish of Bradford, in the county of York, abutting on the west on a certain close of the defendants, on the east on a certain road running between the Bradford and Thornton turnpike-road and Legram's Lane, on the south on a certain other close of the plaintiffs called the Meadow, otherwise called Langsides, otherwise called Far Langsides, on the north partly on a certain close of the plaintiff used as a garden, and partly on certain other land of the plaintiff used as a yard or passage; and with feet in walking, treading down, &c. the grass, &c., and with the feet of divers horses, &c., and with the wheels of divers carts, waggons, and other carriages, crushing, &c. other the grass &c. of the plaintiff, &c. &c. [165] Fifth plea,-that, long before and at the several times of committing the several trespasses in the declaration mentioned, and before and at the time of making the indenture of release and grant hereinafter next mentioned, there was, and from thenceforth hitherto hath always been, and still is, and at the several times of committing the several trespasses in the declaration mentioned, was, in and upon the said 10C.B.166. AOKROYD V. SMITH 69 close in which, &c., a certain road running between a certain other road called the Bradford and Thornton turnpike-road and a certain lane called Legram's Lane : that, long before any of the said several times of committing any of the supposed trespasses in the declaration mentioned, and before and at the time of making the indenture of release and grant hereinafter next mentioned, to wit, on the 27th of September, 1837, one Ellis Cunliffe Lister was seised in his demesne as of fee, as well of and in the soil of the road in this plea first .mentioned, as of and in the close in which, &c. : that, before any of the several times of committing the trespasses in the declaration mentioned, to wit, on the 26th of September, 1837, the said Ellis Cunliffe Lister .was also seised in his demesne as of fee of and in the lands, tenements, hereditaments and premises in the hereinafter next mentioned indenture of release and grant mentioned, and therein and thereby released and conveyed to John Smith : that thereupon afterwards, and before any of the several times of committing the several trespasses in the declaration mentioned, he the said Ellis Cunliffe Lister, being so seised as aforesaid, to wit, on the day and year last aforesaid, by a certain indenture of bargain and sale then made between the plaintiff, one Richard Tolson, and the said Ellis Cunliffe Lister, of the one part, and the said John Smith of the other part, he the said Ellis Cunliffe Lister, for and in consideration of a certain sum of money, to wit, the [166] sum of 5s., then therefore paid by the said John Smith to the said Ellis Cunliffe Lister, did bargain and sell the last-mentioned lands, tenements, and premises, with the appurtenances, to the said John Smith ; habendum to John Smith, his executors, administrators, and assigns, from the day next before the day of the date of the said indenture of bargain and sale, for the term of one whole year from thence next ensuing, fully to be complete and ended : that, by virtue of the said indenture of bargain and sale, and by force of the statute made for transferring uses into possession, the said John Smith became and was possessed of the last-mentioned lands, tenements, hereditaments, and premises, with the appurtenances, for the said term so to him thereof granted as aforesaid, the reversion thereof, with the appurtenances, belonging to the said Ellis Cunliffe Lister, his heirs and assigns : that, the said John Smith being so interested as aforesaid, afterwards, and before any of the several times of committing the supposed trespasses in the declaration mentioned, to wit, on the 27th of September, 1837, by a certain indenture of release and grant then made between the plaintiff of the first part, the said Richard Tolson of the second part, the said Ellis Cunliffe Lister of the third part, the defendants of the fourth part, and the said John Smith of the fifth part,-profert,-for the consideration in the said indenture mentioned,, he the said Ellis Cunliffe Lister did release unto the said John Smith and his heirs, a certain close and certain plots, pieces, or parcels of land or ground in the said indenture particularly mentioned and described, and which then were and are the lands, tenements, and premises in and by the said indenture of bargain and sale so bargained and sold as aforesaid; and also he the said Ellis Cunliffe Lister did in and by the indenture in this plea secondly mentioned, grant to the said John Smith, his heirs and [167] assigns, that he and they, respectively being owners and occupiers, for the time being, of the said close, pieces, or parcels of land in and by the said secondly mentioned indenture so, released as aforesaid, or any of them, and all persons having occasion to resort thereto, should have the right and privilege of passing and repass-ing, with or without horses, cattle, carts, and carriages, for all purposes, in, over, along, and through the said road in this plea first mentioned, or in, over, and through some other road in the same direction, to be formed by and at the expense of the plaintiff, his heirs or assigns, such other road, nevertheless, passing the south east corner of a certain warehouse of the plaintiff, he the said John Smith, his heirs and assigns, paying to the plaintiff, his heirs and assigns, a proportionate part of the expense of repairing the said road, according to the use thereof by him or them, the said John Smith, his heirs and assigns, not exceeding the actual damage done to the road by the wear and tear thereof by the said John Smith, his heirs and assigns,- such proportionate expense to be determined as in the last-mentioned indenture mentioned; to hold the said lands, tenements, hereditaments, premises, and appurtenances, unto and to the use of the said John Smith, his heirs and assigns; by means and virtue whereof the said John Smith then became and was seised in his demesne as of fee of and in the last-mentioned lands, tenements, hereditaments, and premises, with the appurtenances, and had then and thenceforward continually until and at the time of the making of the indenture of bar ain and sale thereinafter next mentioned, 70 ACKROYD V. SMITH 10 C. B. 168. to himself, his heirs and assigns, respectively being owners and occupiers of the said close, pieces, or parcels of ground in and by the said secondly mentioned indenture so released as aforesaid, or any of them, the right and privilege so granted as aforesaid: that, afterwards, and [168] long before any of the several times of the committing of any of the trespasses in the declaration mentioned, to wit, on the 9th of October, 1837, the said John Smith, being so seised, and so having such right and privileges as last aforesaid, by a certain indenture of bargain and sale then made between the said John Smith of the one part, and one William Kay of the other part,-he the said John Smith, for and in consideration of the...
To continue reading
Request your trial
-
Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another
...the leading judgment Pollock CB said: “I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v Smith (1850) 10 CB 164 expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them t......
-
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
...answer lies in the reluctance of the law to recognise new forms of burden on property conferring more than contractual rights. Thus in Ackroyd v Smith (1850) 10 C.B. 164 at p.188 Cresswell J., giving the judgment of the Judges of the Court of Common Pleas, after referring to the impossibili......
-
Re Ellenborough Park; Re Davies, deceased; Powell v Maddison
...authority, expounded, in somewhat varying language, in many judicial utterances, of which the Judgments in ( Ackroyd v. Smith 10 Common Bench, page 164) are, perhaps, most commonly cited. We think it unnecessary to review the authorities in which the principle has been applied; for the eff......
- Toohey v Gunther
-
Preliminary Sections
...Abinabina v. Chief Enyimadu (1953) A.C. 207 at 215-216. 701 Abodundu & Ors v. The Queen (1959) 4 F.S.C. 70, 73-74. 260 Ackroyd v. Smith (1850) 10 C.B. 164. 188 549 Ackroyd v. Smith (1850) 10 C.B. 164. 188. 435 Adamu Kano v. The State (1968) N.M.L.R. 227. 31 Adeagbo & Ors. v. Alli Ogunsiji &......
-
The theory of implied annexation of restrictive covenants revisited
...In those circumstances, it seems to us perfectly plain that in this case the dominant tenement was the land and quarry." 56 50 (1850) 10 C.B. 164. 51 Supra, n.50 at 657-658. 52 Megarry and Wade, op. cil. n.3 at 835. See also Gray, op. cit. n.5 at 667, who does not cite Thorpe v. Brumfit. t ......