Duncan v Louch
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 1845 |
| Date | 04 February 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 341
QUEEN'S BENCH
S. C. 14 L. J. QW. B. 185; 9 Jur. 346.
[904] DUNCAN against louch. Tuesday, February 4th, 1845. Case for obstructing a right of way between two specified termini over a close called the Terrace Walk. The way was claimed as appurtenant to a messuage, in general terms, withont reference to any obligation to repair. On the trial of an issue joined on a traverse of the right of way, the easement proved was a right to pass forwards and backwards over every part of the close, and not merely between the termini specified in the declaration; and it was shewn that the easement was enjoyed under a grant thereof to D., his heirs, tenants and assigns, and to certain other persons, "he, they and every of them, from time to time, contributing and paying a rateable share and proportion towards repairing and amending the Terrace Walk." Held no variance, the easement proved being only larger than the easement alleged, and not different in kind. Held, also, that the obligation to repair was not in the nature of a condition precedent, and need not be alleged in the declaration. The easement was granted in 1675 ; there was evidence that, for ten years next before the commencement of the action, part of the way claimed had become public. Held not necessary to state in the declaration that such part had become public. [S. C. 14 L. J. Q. B. 185 ; 9 Jur. 346.] Case. The first count stated that plaintiff, before, &c., was, and still is, lawfully possessed of a certain messuage, &c., and by reason thereof, during all the time aforesaid, ought to have had, and still of right ought to have, a certain way from and out of the said messuage, &c., unto, into through and over a certain street, &c., called Buckingham Street, and from and out of the said street, through a certain iron gate there, unto, into, through, over and along a certain close, situate, &c., called Terrace Walk, and from and out of the said last mentioned close unto and into a certain-erection or building called the Water Gate, and ao back again, from and out of the last mentioned erection, &c., unto and into the said close called the Terrace Walk as aforesaid; and from and out of the said last mentioned close, through the said iron gate, unto, into, through and over the said street called Buckingham Street as aforesaid, unto and into the said messuage, so in the possession of plaintiff, to go, return, pass and repass on foot, at all reasonable times of the day, at his free will and pleasure, as to the said messuage, &c., appertaining: yet defendant, well knowing, &c., but wrongfully contriving, &c., whilst plaintiff was so possessed, &c., to [905] wit on, &c., and divers other days, &c., and at all reasonable times of the day, wrongfully, &c., caused and procured the said iron gate to be locked, chained and fastened, and kept and continued, &c., to wit from thence hitherto, and put up rails, &c., and kept and continued, &c.; and thereby during all the time aforesaid the said way was and still is greatly obstructed; and plaintiff by means thereof could not, during the time aforesaid, &c., nor can he now, have or enjoy his said way as he of right ought to have done, &c. The second count claimed the same right of way as in the first count, with the addition of a right of going through the Water Gate into and upon a certain public and navigable river there, to wit the river Thames, and back again. The third count claimed a similar right of way as in the first count, unto and into-the western portion of the Water Gate. Fourth count. That plaintiff, before and at the time, &c., was, &c., and still is, possessed of another messuage, &c.; and by reason thereof plaintiff, during, &c., ought to have had and still of right ought to have the free liberty, &c., for him, his heirs, tenants or assigns, with others the inhabitants of certain premises called the York House and the grounds thereof, of passing and repassing on foot, at all reasonable timea of the day, from and out of the last mentioned messuage, &c., unto and into* Buckingham Street, and from and out of the last mentioned street unto and into a certain close called the Tarris Walke, and of walking there, and of passing and 342 DUNCAN V. LOUCH 6 Q. B. 906 repassiug into and upon a certain erection, &c., called the Water Gate, next the river of Thames, at bis and their free will and pleasure, as to the said last [906] mentioned messuage, &c. appertaining; yet defendant, &c., on, &c., wrongfully placed, &c., posts, &c., before and at the entrance of the Water Gate, and thereby prevented plaintiff from entering the same, and kept and continued, &c. Fifth, sixth and...
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Re Ellenborough Park; Re Davies, deceased; Powell v Maddison
...incorporeal rights in the development of English real property law. It may be fairly assumed that in the case of ( Duncan v. Louch 6 Queen's Bench, page 904) the Court of Queen's Bench in the year 1845, and particularly Lord Denman, Chief Justice, who delivered the first Judgment in the Co......
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...45 Prior to Ellenborough Park, there were inconclusive dicta for and against the recognition of recreational rights as easements. Duncan v Louch (1845) 6 QB 904 was about the alleged obstruction of a right of way granted in 1675 over a close called the Terrace Walk. Lord Denman CJ said thi......
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...& C.R. 183, considered. (10) De Le Cuona v. Big Apple Marketing Ltd., [2017] EWHC 3783 (Ch), referred to. (11) Duncan v. Louch (1845), 6 Q.B. 904; 115 E.R. 341, referred to. (12) Duval v. 11–13 Randolph Crescent, [2020] UKSC 18; [2020] A.C. 845; [2020] 2 W.L.R. 1167; [2020] 4 Al......
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...7 and the LRR 2003, rule 73A have the same effect. This 13 Ramsden v Dyson (1866) LR 1 HL 129. 14 [1965] 2 QB 29. 15 Duncan v Louch (1845) 6 QB 904, 115 ER 341. 16 (1879) LR 12 Ch D 31. 17 See para 7.2. does not matter because under the LRA 2002, s 11(3) on first registration of an estate, ......