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.”

Willard v. First Church of Christ, Scientist (1972)

US Property Law

Willard v First Church of Christ, Scientist
Image: ‘Berkeley’ by Richard Diebenkorn

Reservation of interest for a third party to a conveyance when honouring the intentions of the vendor was at one point impossible, however in this matter the court broke with tradition for the sake of modernity and allowed the claim to stand.

In 1972, litigation commenced when a somewhat unconventional conveyance was initiated by parties not entirely privy to its completion. This began when the part owners of conjoined plots decided to sell their property along with the adjoining vacant plot, despite having title only to their home, while the second plot was itself used by a local church adjacent to the site for parking purposes under express permission by the landowner.

At the point of sale, the vendor approached the landowner and explained that a joint sale was under offer, and that with her permission, the two parties would stand to profit at the price suggested. Having considered the opportunity, the owner requested that an easement be inserted into the deeds for the second plot, after which the sale went through as hoped.

Unfortunately for one reason or another, the purchaser and now respondent was unaware that the easement existed, and so now sought quiet title to the plot, whereupon the district court upheld the claim on grounds that under common law, a grantor cannot reserve interest to a stranger to a title, and therefore the easement was unlawful and void, as was also expressed in ‘The Law of Real Property’ (1939) and ‘Reservations in Favor of Strangers’ (1953) both of which stated how while a reservation allowed a grantor’s whole interest to pass to a grantee, it reverted a newly created interest in the grantor, but not to a theoretical third party to the disposition.

Presented in the Supreme Court of California, the appellant church argued that under art.5 s.1085(a) of the California Civil Code, interest to a disposition of property was assignable to persons not named in the deed, however the Court held that as the appellants were a corporation and not individual entities, the statute could not reasonably apply.

Instead, the Court referred to both Townsend v. Cable and Garza v. Grayson, within which the supreme courts of Kentucky and Oregon had abandoned the existing common law rule in favour of following the wishes of the grantor, a position subsequently adopted by the Court as a show of indifference to the now outdated and restrictive approach to property conveyance.

It was then argued by the respondents that the easement was invalid as the property insurers had not relied upon it when drafting their policies, however there was no evidence to support such a claim and so the Court held that a balance must be struck between the want of policy and the equitable nature of the claim, which on this occasion fell in favour of the needs of the grantor, despite the limitations of the statute presented. It was thus for this reason that the Court upheld the appeal and reversed the previous judgment.