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Licences, A Jonah's Gourd*
Published online by Cambridge University Press: 16 January 2009
Extract
Nature of the problem
Until a little while ago the subject of licences was commonly treated, from the standpoint of their revocability by the licensor, as one of the principal illustrations of the relations between equity and law. Denning L.J. has repeatedly ex cathedra insisted that fusion has now been effected, not only between the courts wherein the systems of law and equity were administered but between those systems themselves. In this particular subject, while it may be doubtful whether law and equity are fused, there is, unhappily, a certainty that they have been confused.
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- Research Article
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- Copyright
- Copyright © Cambridge Law Journal and Contributors 1954
References
1 Per Lord Greene in Booker v. Palmer [1942] 2 All E.R. 674, 677; Errington v. Errington [1952] 1 K.B. 290.
2 Hall v. Seabright (1609) 2 Keb. 561.
3 16 M.L.B. 1.
4 (1866) L.E. 1 H.L. 129; Hanbury, , Modem Equity, 6th ed., 51.Google Scholar
5 [1951] 1 K.B. 705; Hanbury, , op. cit., 55.Google Scholar
6 see Liggins v. Inge (1831) 7 Bing. 682.
7 (1952) Can.Bar Eev. 1004, 1009.
8 Equitable Jurisdiction, Vol. I.
9 Lectures on Legal History, 233.
10 Collected Legal Papers, 1.
11 Collected Papers, 403.
12 See, e.g., Strachan-Davidson, , Problems of the Roman Criminal Law.Google Scholar
13 See Holdsworth, 7 H.E.L. 323.
14 (1868) L.R. 3 Ch. 306.
15 L. C. C. v. Allen [1914] 3 K.B. 642; Formby v. Barker [1903] 2 Ch. 539; Millbourn v. Lyons [1914] 2 Ch. 231.
16 (1672) Vaughan 330, 351; see also L. C. C. v. Warr [1904] 1 K.B. 713, 721; Clore v. Theatrical Properties [1936] 3 All E.R. 483.
17 (1863) 2 H. and C. 121. See Salmond, on Torts, 11th ed., 282.Google Scholar
18 Hanbury, , op. cit., 76, 610Google Scholar; Salmond, , op. cit., 282Google Scholar, note (r).
19 (1863) 2 H. and C. 121. See Salmond, on Torts, 11th ed., 282.Google Scholar
20 [1909] 2 Ch. 440; post.
21 See Gale, on Easements, 12th ed., 43–70.Google Scholar
22 (1620) Palmer 71.
23 Wallis v. Harrison (1838) 4 M. and W. 538.
24 (1751) Sayer 3.
25 [1946] 1 All E.R. 678; [1948] A.C. 173.
26 (1807) 8 East 308.
27 (1817) 7 Taunt. 374. At p. 38.4 Gibbs C.J. said: “a beneficial privilege in land may be granted without deed, and, notwithstanding the Statute of Frauds, without writing … and cannot be countermanded, at least after it has been acted upon.”
28 (1805) 6 East 602.
29 See per Denning L.J. in Bendall v. McWhirter [1952] 2 Q.B. 466, 480.
30 64 L.Q.R. 57.
31 (1817) 7 Taunt. 374.
32 (1945) 13 M. and W. 838.
33 (1807) 8 East 308.
34 (1831) 7 Bing. 682.
35 (1866) L.R. 1 H.L. 129.
36 (1884) 9 App.Cas. 699, 714; the facts are given by Cheshire in 16 M.L.R. 1–6. In G. P. R. v. R. [1931] A.C. 414, however, the Crown was held entitled to revoke a licence given to the appellants with no intimation of permanence.
37 (1845) 13 M. and W. 838.
38 (1826) 5 B. and C. 221. Bayley J. cited Lord Ellenborough in Fentiman v. Smith (1803) 4 East 107, 109, “The title to have the water flowing in the tunnel over the defendant's land could not pass by parol licence without deed.” Webb v. Paternoster (1620) Palmer 71; Wood v. Lake (1751) Sayer 3; Tayler v. Waters (1817) 7 Taunt. 374, were not cases of freehold, “and in none of them was the objection taken that the right lay in grant, and must be by deed.” But in Wallis v. Harrison (1838) 4 M. and W. 538, 543, Lord Abinger explained Webb v. Paternoster as “a grant of the occupation by the haystack—and the party might be considered in possession of that part of the land which the haystack occupied, and that might be granted by parol.”
39 (1807) 8 East 308.
40 (1866) L.R. 1 H.L.
41 (1828) 8 B. and C. 288. It is submitted that Cocker v. Cowper (1834) 1 CM. and R. 418, is not a case on a licence at all, but on an unsuccessful attempt to claim an easement. In 1815, X cut a drain in the land of Y, the water from which he appropriated as it ran through his own land. In 1833 Y stopped the drain. It was held that he was entitled to do so.
42 (1838) 4 M. and W. 538.
43 (1845) 13 M. and W. 838.
44 [1952] 2 Q.B. 466, 479.
45 (1670) Palmer 71; see (1845) 13 M. and W. 838, 845.
46 (1845) 13 M. and W. 838, 847.
47 (1751) Sayer 3.
48 (1807) 8 East 308.
49 (1817) 7 Taunt. 374. But Patteson J. professed to follow it in Wood v. Manley (1839) 11 A. and E. 34. X sold goods on his land to Y; the contract of sale contained a permission to Y to enter and take them. Alderson B. pointed out in Wood v. Leadbitter (1845) 13 M. and W. 838, that it was unnecessary to rest the case on the validity of the licence; even without such a licence Y could enter, being entitled to exercise recaption just as if the goods had been placed there by the wrongful act of X; see Salmond, on Torts, 11th ed., 217.Google Scholar
50 (1826) 5 B. and C. 221.
51 See R. v. Horndon-on-the-Hill (Inhabitants) (1816) 4 M. and S. 562, 565. The awareness of common law judges as to the possibility of interference is well illustrated by the remarks of Lord Abinger in Doe d. Tomes v. Chamberlaine (1839) 5 M. and W. 14, 15: “If this were a court of equity, it is clear the court would not allow the vendor to take back the estate, unless he were in a condition to fulfil the contract on his part. But in a court of law, we can only look at the legal title.”
52 The most famous statements of this aspect of equitable estoppel are those of Lord Eldon in Dann v. Spurrier (1802) 7 Ves. 230, 235; and Romilly, M.R. in Rochdale Canal Co. v. R. (1853) 16 Beav. 630, 633. See also Cheshire in 16 M.L.R. 1, 5.Google Scholar
53 (1853) 16 Beav. 630.
54 Romilly M.R. does, however, more than once talk of the use of the water for “unauthorised purposes.”
55 (1853) 17 Beav. 60.
56 (1862) 4 de G.P. and J. 517.
57 [1948] 2 All E.R. 133; cf. per Lindley L.J. in Rochefoucauld v. Bousiead [1897] 1 Ch. 196, 206.
58 [1909] 2 Ch. 440. For other points in the case, see Hanbury, , op. cit. 614–6.Google Scholar
59 [1915] 1 K.B. 1.
60 See Duke of Devonshire v. Eglin (1851) 14 Beav. 530; Frogley v. Earl of Lovelace (1859) Johns. 333.
61 (1845) 13 M. and W. 838.
62 (1937) 56 C.L.R. 605; see Hanbury, , op. cit., 104.Google Scholar
63 (1845) 13 M. and W. 838.
64 See Kerrison v. Smith [1897] 2 Q.B. 415.
65 [1944] K.B. 408.
66 See H. W. B. Wade in 64 L.Q.B. 57.
67 (1870) L.R. 5 C.P. 334; followed in Mellor v. Watkins (1874) L.R. 9 Q.B. 400.
68 Cf. Errington v. Errington [1952] 1 K.B. 290.
69 Willes J. called it an enlargement of the term.
70 The evidence showed that the stacking licence had been renewed by Z after X's death.
71 s. 69; (1870) L.R. 5 C.P. 334, 337. The assignees of a tenant can remove his goods, including removable fixtures, within a reasonable time after the termination of a tenancy by forfeiture: Stansfield v. Mayor of Portsmouth (1858) 4 C.B.(N.S.) 120, 133, 135.
72 (1888) 21 Q.B.D. 207; Wade in 64 L.Q.R. 57, 65.
73 [1897] 2 Q.B. 445.
74 [1901] 1 Ch. 578.
75 [1938] 2 All E.R. 507.
76 Gale on Easements, 12th ed., 103; Cheshire, , Modern Real Property, 7th ed., 473.Google Scholar
77 This is contrary to the opinion of Pollock C.B. in Coleman v. Foster (1856) 1 H. and N. 37, 40—“a licence is a thing so evanescent that it cannot be transferred.”
78 [1944] K.B. 298. Cf. C. P. R. v. R. [1931] A.C. 414, 432.
79 [1901] 1 Ch. 578.
80 [1948] A.C. 173.
81 [1944] K.B. 298.
82 [1915] K.B. 1.