Leigh v Jack
| Jurisdiction | England & Wales |
| Year | 1875 |
| Court | Court of Appeal |
Vendor and Purchaser - Conveyance of Land adjoining intended Highway - Presumption as to Ownership of Soil of intended Highway -
The presumption that the soil of a highway belongs to the owner of the adjoining land, usque ad medium filum viæ, does not apply to ground, which was intended to be used as a highway, but has never been dedicated to the public; and if the owner of the soil of the intended highway disposes of the adjoining land by conveyances in which it is described as bounded by the intended highway, the grantees do not acquire by presumption of law the ownership of the soil of the intended highway.
Acts of user committed upon land, which do not interfere and are consistent with the purpose to which the owner intends to devote it, do not amount to a “dispossession” of him, and are not evidence of “discontinuance of possession” by him within the meaning of 3 & 4 Wm. 4, c. 27, s. 3.
In 1854 L. conveyed to the defendant a plot of land upon the south side of an intended street, upon which the defendant built a factory. In 1857 L. conveyed to certain trustees the plot of land upon the north side of the intended street, which in 1872 vested in the defendant. Neither of the conveyances granted in express terms the soil of the intended street, but they described the plots of land as bounded by it. It was never dedicated to the public as a highway. From 1854 the defendant had placed upon the intended street materials used at his factory, so as to block it up except as against foot passengers, and in 1865 he enclosed an oblong portion of it. In 1872 he fenced in the ends of the intended street. The plaintiff was tenant for life of all the land of which L. had died seised, and in 1876 commenced an action to recover the site of the intended street. Within twenty years before action L. had repaired a gate at one end of the intended street:—
Held, first, that the conveyances executed by L. in 1854 and 1857 did not by presumption of law grant the soil of the intended street; secondly, that the title of the plaintiff was not defeated by the Statute of Limitations (3 & 4 Wm. 4, c. 27), ss. 2, 3.
SPECIAL CASE stated by an arbitrator in an action of ejectment pursuant to a judge's order.
The land sought to be recovered was situate in the township of Kirkdale, and within the borough of Liverpool. One part of it was the soil of an intended street, called Grundy Street, running from east to west, and leading on the east into Victoria Road, and on the west into Regent Road. It was bounded upon the north by land conveyed to the Mersey Dock Trustees in 1857, as hereinafter mentioned: it was bounded upon the south at the eastern end by Napier Place, and along the rest of the line of the street by land conveyed to the defendant in 1854, as hereinafter mentioned. The other part was Napier Place, a triangular piece of land having its apex towards the south, and at its base immediately adjoining the east end of the south side of Grundy Street. Napier Place was bounded upon the east by Victoria Road, and upon the west by the piece of land conveyed to the defendant in 1854. The plaintiff was tenant for life of all the lands of which J. S. Leigh had died seised.
In 1854, J. S. Leigh being seised in fee of a piece of land lying to the south of Grundy Street and to the west of Napier Place, conveyed it to the defendant in fee, subject to a ground rent. The piece of land conveyed was thus described in the deed: “All that piece of land situate, lying, and being in the township of Kirkdale, within the borough of Liverpool, in the county of Lancaster, and on the east side of Regent Road, south side of Grundy Street, and west side of Napier Place in Victoria Road in Liverpool aforesaid, bounded on the north by Grundy Street, on the east by Napier Place, on the south in part by land formerly of the said J. S. Leigh, but now belonging to the Lancashire and Yorkshire Railway Company, and in the remaining part by land lately conveyed by the said J. S. Leigh to the said J. Jack on which the said J. Jack hath erected an iron foundry and other buildings, and on the west by Regent Road aforesaid, and which said piece of land intended to be hereby granted measures in front to Regent Road aforesaid 145 ft., to Grundy Street 252 ft. 6 in., to Napier Place 137 ft. 5 in., and on the south side thereof 297 ft. 10 in., and containing in the whole 4259 square yards of land or thereabouts, being the said several dimensions and quantity a little more and less.” The 4259 square yards were the total contents of the land south of Grundy Street, and did not include any portion of the site of that street. On the 19th of March, 1857, the said J. S. Leigh, by deed of that date, conveyed to the Mersey Dock Trustees the piece of land lying to the north of Grundy Street. The material parts of the deed were as follows: “The said J. S. Leigh doth by these presents grant and confirm unto the said trustees of the Liverpool Docks, their successors and assigns, ‘inter alia,’ all that piece or parcel of land situate in the township of Kirkdale aforesaid, bounded on or towards the south by a public road or street called Grundy Street, …. together with the free use and enjoyment of all the said streets, roads, and passages, for all purposes in common with all other persons lawfully entitled to use the same.” The total contents did not include any portion of the site of Grundy Street. On the 30th of March, 1872, the last-mentioned piece of land was by deed conveyed by the Mersey Dock Trustees to the defendant.
Grundy Street and Napier Place were names used to describe certain portions of waste land belonging to J. S. Leigh, and which he had at one time contemplated dedicating to the public as streets, and they were marked as streets...
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