Wheeldon v Burrows (1879)

English Property Law

Wheeldon v Burrows (1879)
‘Night Windows’ by Edward Hopper

‘Derogation from grant’ and the conclusive nature of conveyances were judicially clarified when a landowner divided his estate into two distinct plots before individually auctioning them to separate purchasers under identical contracts, whereupon litigation commenced over their right to enjoy both privacy and right to light.

With a brick wall dividing the two plots, the second sale left the respondent with a brick building situated fairly close to the wall with three windows facing the first plot but with  space enough to allow natural light to pass through them, and while both contracts mirrored one another, neither included any express reservations aside from a vague stipulation that the first lot was subject to a favourable right for the purchasers and occupiers of the second plot for a indeterminable period.

Roughly five years later the appellant erected a fence obscuring the respondent’s view when using his workshop, which prompted his demolition of the obstruction on principle that when taking ownership of the property it was under an implied easement inherited from the vendor and therefore lawfully enforceable, however this resulted in litigation in which the court noted how the vendor had failed to include any express reservation to the two parties and so awarded in favour of the appellant and ordered an injunction to prevent further trespasses.

Challenged in the Court of Appeal, the Court merely upheld the previous judgment on grounds that should English law adopt a view that implied rights and reservations were automatic to a conveyance, the rights of ownership and peaceful use and enjoyment of land would be violated beyond all reason, while reminding the parties that:

“[N]o implication can be made of a reservation of an easement to the grantor, although there may be an implication of a grant to the grantee.”

Author: Neil Egan-Ronayne

Author, legal scholar and foodie...

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