Harmer v Jumbil (Nigeria) Tin Areas
| Jurisdiction | England & Wales |
| Date | 1921 |
| Year | 1921 |
| Court | Court of Appeal |
Lease - Explosives Magazine - Packing Shed - Licences - Buildings within prohibited Distances - Grant - Derogation - Covenant for quiet Enjoyment - Implied Obligations -
In 1911 the tenant for life of settled freehold estate in Cornwall granted a lease to the plaintiff of a small piece of land for twenty-one years at a rent of 7 l. for the express purpose of an explosives magazine, and he entered into a covenant with the tenant for quiet enjoyment, but no other express covenant. The lessor knew that the purpose for which the grant was made would involve the imposition of some restrictions. The lessee was aware of the nature of the restrictions imposed by a licence for the magazine under the Explosives Act, 1875, and that if buildings were erected upon adjoining land of the lessor's within certain distances of the magazine the licence would be withdrawn. And both knew that there had been extensive working in the past of minerals in the immediate neighbourhood. In 1919 the defendants obtained a lease from the freeholder of the same estate of adjoining land for the purpose of working the minerals, but in such a manner as not to interfere with the explosives magazine of the plaintiff's or the rights of others, and, subject thereto, to erect buildings for the purpose of working the minerals. The defendants reopened two shafts and erected three buildings or sheds within distances prohibited by the plaintiff's licence under the Explosives Act.
In an action by the plaintiff to restrain the defendants from allowing these buildings and works to remain, on the ground that the acts of the defendants constituted a derogation of the lessor's grant:—
Held (reversing the decision of Eve J.), that under the circumstances in which the lease of 1911 was granted there must be implied on the part of the lessor an obligation not to do anything which would violate the conditions under which the licence was held by the plaintiff and thereby cause, ipso facto, a forfeiture of the licence under the Explosives Act, 1875; that the acts done by the defendants would, if done by the lessor, have been in derogation of his grant; and that inasmuch as the defendants were for this purpose in the same position of the lessor, the acts must be regarded as done by him.
Held, therefore, that the plaintiff was entitled to the injunction he claimed, but that its operation must be confined to the existing licence and would not extend to any future licence.
Held, by Eve J., on the authority of Davis v. Town Properties Investment Corporation [
WITNESS ACTION.
THE plaintiff, Robert Joseph Harmer (trading as Jas. R. Watson & Co.), was a wholesale explosives merchant, and had carried on business at 35, Queen Victoria Street, London, for thirty years. The defendant company was a tin mining company formed in 1912 with a capital of 60,000 l. The plaintiff possessed two magazines for storing explosives, and a packing shed, all licensed for those purposes by the Home Office, and built upon the site of an old disused tin mine in South Cornwall known as the Trevaskis Mine, which had not been in fact worked for some fifty years or more. The first magazine, known as the Lanyon, or New Magazine, was a substantial building with concrete walls eighteen inches thick and slated roof. The second magazine was the Trevaskis, or Old Magazine, larger, and of the same construction. The packing shed was built of wood upon a masonry foundation and roofed with corrugated iron, erected at a cost of 50 l.
At the date of the lease of December 30, 1911, next hereinafter mentioned, certain of the freehold lands in the parish of Gwinear, in the county of Cornwall, known as Lanyon Farm and Trevaskis, stood limited under the will of Sir Samuel Thomas Spry to the use of trustees in fee simple in trust for John Samuel Spry for life, with remainder to his daughter G. May Spry, in tail, with divers remainders over, but subject to a lease dated June 10, 1853, made between Sir S. T. Spry and one Richard Rosewarne, whereby part of Trevaskis (except mines and minerals) was demised by Sir S. T. Spry to R. Rosewarne from March 25, 1853, for ninety-nine years if R. H. Rosewarne, E. A. Rosewarne and C. R. Rosewarne or any or either of them should so long live. By a lease dated December 30, 1911, made between J. S. Spry (the landlord), and the plaintiff, Robert Joseph Harmer, therein described as an explosives merchant trading as Jas. R. Watson & Co. (the tenant), it was witnessed, among other things, by clause 1, the landlord, in exercise of all powers conferred upon him by the
The magazine demised by this lease (the Lanyon Magazine) was used by the plaintiff as an explosives magazine in conjunction with the Trevaskis Magazine and the packing shed. The title to the Trevaskis Magazine need not be stated, as the claim so far as related to it was abandoned at the trial. As to the packing shed, by a letter or agreement of tenancy, dated March 24, 1896, Charles Richard Rosewarne agreed to James Ronald Watson erecting a shed on a site therein mentioned at Trevaskis for packing explosives at a rent of thirty shillings a year. J. R. Watson carried on his business as an explosives merchant, using the Trevaskis Magazine and the loading shed down to his death in 1899, and the plaintiff, Robert Joseph Harmer, was his surviving executor, and had since carried on the business with an interest under the will in the profits of the business. Under the provisions of the Explosives Act, 1875, the keeping and storing of explosives in these two magazines and the packing shed was prohibited except by licence granted by a Secretary of State under the Act, and the licences now current were: (1.) as to the Lanyon Magazine a licence dated February 5, 1913; (2.) as to the Trevaskis Magazine one dated November 22, 1889; and (3.) as to the packing shed one dated September 18, 1896.
By the terms annexed to the licence of the Lanyon Magazine dated February 5, 1913, it was stated (inter alia) (1.) that the site should be that shown on a plan signed by a Government inspector at a place marked “New proposed Magazine”; (2.) that the distances to be maintained between the magazine and such buildings and works as were specified in the first schedule thereto should be those set forth in that schedule, and if at any time after the grant of the licence, by reason of the approach of any such buildings, or works, the magazine ceased to be beyond the distances therein specified, the licence should cease to authorize the use of the magazine for the keeping of explosives.
By the first schedule to the licence the distances to be maintained between the magazine and other buildings and works from every mineral or private railway, highway or public footpath, “promenade or open place of resort for the public or for persons carrying on any trade or business ….” were to be not less than 134 yards. From every room or workshop in connection with another magazine, “or any other room or workshop, or any shop,” not less than 355 yards. Numerous other buildings were mentioned and the distances from the magazine varied from 355 yards to 4¾ miles, the last distance referring to “a Palace or house of residence of His Majesty, his heirs and successors.” The defendant company claimed title through G. May Spry (now Mrs. Grant Dalton), daughter of Sir J. S. Spry, who died on May 22, 1915, when she became entitled as tenant in tail in possession of the freehold lands which included Lanyon Farm and Trevaskis. She disentailed the property on May 30, 1917.
By an indenture dated June 3, 1919, Mrs. Grant Dalton, as owner in fee simple, for the considerations therein mentioned granted and demised to the defendant company liberty and licence to enter upon the hereditaments described in the first schedule (therein referred to as “The Limits” and which included Lanyon Farm and Trevaskis), and there, in...
To continue reading
Request your trial
-
Cold Storage Singapore (1983) Pte Ltd v Management Corp of Chancery Court and Another
...that will result in a derogation from the grant. The interference must be substantial. In Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 Younger LJ said, at p 226: For the obligation laid upon the grantor is not unqualified. If it were, that which was imposed in the interest of fai......
-
Sovmots Investments Ltd v Secretary of State for the Environment; Brompton Securities Ltd v Secretary of State for the Environment
...grant, which Younger L.J. once described as "a principle which merely embodies in a legal maxim a rule of common honesty" ( Harmer v. Jumbil (Nigeria) Tin Areas Ltd. [1921] 1 Ch. 200, at 225). Surprising though it may appear, it seems necessary to stress that Wheeldon v. Burrows posed the ......
-
CENTURY PROJECTS Ltd v ALMACANTAR (CENTRE POINT) Ltd and Others
...of the implied obligation not to derogate from grant in what was proposed. He referred me to the judgment of Younger LJ in Harmer v. Jumbil (Nigeria) Tin Areas Ltd. [1921] 1 Ch. 200 at p.225 where he said: "Now if these questions are to be answered in a sense favourable to the lessee, it m......
-
British Leyland Motor Corporation Ltd v Armstrong Patents Company Ltd
...less fit for the particular purpose for which the grant or demise was made." 105These principles were followed in Harmer v. Jumbil (Nigeria) Tin Areas Ltd. [1921] 1 Ch. 200, O'Cedar, Ltd. v. Slough Trading Co. Ltd. [1927] 2 K.B. 123, Matania v. The National Provincial Bank Ltd. [1936] 2 ......