THE MASTER OF THE ROLLS: The question raised in this Appeal is that stated in the Originating Summons dated 27th March, 1950, issued by the Appellant against the Respondent "whether upon the true construction of the Lease dated the 11th August, 1949, and made between the Respondent of the one part and the Appellant of the other part, and in the events which have happened the Respondent is entitled, until the determination of the Lease, to use for the purpose of advertising the outer walls and if so what portions or portion of the outer walls of the property demised by the Lease without consent of the Appellant".
The emphasis in the language I have quoted is on the phrase "and in the events which have happened"; for there is no question of the construction of the Lease itself. The point is whether "in events which have happened" there is an implied reservation in favour of the Respondent of a right (stating it loosely at this stage) to maintain advertisements on the walls of the premises the subject of the demise in favour of the Appellant.
Mr. Justice Danckwerts came to a conclusion in favour of such a reservation. "It seems to me", he said, "common sense to imply an intention on the part of the two parties to the document that those advertisements should be allowed to remain." In the circumstances of the case, the strength of the appeal to common sense is not negligible; but in the light of the authorities binding on this Court I have found myself unable to agree with the learned Judge and I think that this Appeal must succeed.
The Respondent by his Counsel in the course of the argument complained of the form of the proceedings as being inappropriate to the problem which we are called upon to determine - particularly he complained that in the proceedings there was no opportunity for him as an alternative weapon of defence, to counter-claim for rectification. It is true that the evidence before us is of a very meagre character. But of that it does not seem to me the Respondent can fairly complain. He was the Lessor under the relevant Lease which he must be taken to have proffered and admittedly the onus must be on him to establish any implied reservation in his favour. The application was supported by a brief Affidavit on the Appellant's part in which (inter alia) he swore that he had never granted to the Respondent any right, or otherwise any easement or licence over or for, or in respect of the user of the outer walls of the demised premises.
No application to cross-examine the Appellant was made by the Respondent who contented himself by filing a still briefer Affidavit containing no evidence whatever relating to the circumstances in which the Lease was granted and stating in the last paragraph that he "contends and will contend" that when the Appellant took possession of the premises he "was well aware of the presence of both advertisements complained of and in taking no exception to them then it is contended that he acquiesced and entered into a Tenancy Agreement with the Respondent, accepting the Respondent's rights to continue to have the benefit of both the advertisements".
We have, therefore, to decide the case on the material before us. Our decision must necessarily be related to those facts and cannot be regarded as extending beyond them to cover other cases in which much fuller material might be before the Court, Our decision moreover must be without prejudice to any claim the Respondent may have to rectify the Lease or to any point he may be able or entitled to raise on any application by the Appellant for an account or an Injunction or otherwise by way of enforcement of his rights.
The facts as proved by the limited evidence to which I have referred, are as follows:-
The Respondent appears to be, and to have been, at all material times, himself the Lessee of the premises known as 405, Footscray Road, New Eltham. The Lease or Leases have not been before the Court nor is there any evidence of their terms. The premises in fact consist of a site and building on the corner of Footscray Road and Avery Hill Road, and the Respondent has at all Material times carried on upon the ground floor of the premises, his business as a shopkeeper selling meat, grocery and provisions under his own name. The premises are in the shape, as it were, of half a hexagon, of which the centre and smallest side faces diagonally across the corner of the two roads. The entrance to the Respondent's shop occupies the ground floor of this side.
In the year 1939 the Appellant became tenant of the Respondent of the upper part of these premises. The terms of the tenancy (which was for a period of 5 years) are contained in a short Agreement. I find it unnecessary to refer to this document except to say that it contained no provision for the repair of upkeep of the exterior of the premises demised, no reference to the Head Lease and no reference to any means of access to the premises demised, such access apparently being obtained in fact through a door in the west side of the ground floor in Avery Hill Road.
The Appellant continued in occupation, presumably according to the terms of this contract, until the grant of the Lease now in question, on the 11th August, 1949.
In fact during the whole of this ten year period, and indeed ever since, the Respondent has maintained two advertisements on the outside of the premises demised without (as is conceded) any complaint or claim on the part of the Appellant. The first advertisement consists of an advertisement of the Respondent's own business painted on the bricks of the middle and shortest side of the premises and occupying the whole of that side. The second is an advertisement of Brymay Safety Matches, apparently contained in a wooden frame, attached to part of the western wall of the premises. From the photograph with which we have been supplied, it appears that on the top side of the frame is printed the word "Boro". It is not in evidence and does not appear whether the area covered by the frame, which is considerable, is limited to the wall above the ground floor (or, as seems probable) starts below the level of the first floor. It extends nearly to the top or cornice of the first floor.
On the 11th August 1949, as already indicated, the relevant Lease was entered into between the Respondent and the Appellant. The subject matter was the same as that comprised in the earlier tenancy agreement, that is, "the first and second floors of the building situate in and being No.405 Foots Cray Road, New Eltham". The term was 21 years from the 25th March 1949 and the amount of the rent was substantially increased by comparison with that previously payable. The Lease is a somewhat elaborate document. Covenants as regards upkeep; delivery up; against making alterations etc; and (on the Lessor's part) for quiet enjoyment; all these in common form were inserted without perhaps too close a regard to the precise nature of the transaction. But there was inserted a covenant on the part of the Lessee not to use or permit the demised premises to be used for any purpose other than as a Hairdressing Saloon without the consent in writing of the Lessor first had and obtained.
This last covenant constituted a new obligation on the Lessee. But the Lease followed the unhappy example of the preceding Contract in omitting any reference to means of access and (more important for present purposes) any reference whatever to the exterior of the premises. Thus there was no covenant by either Lessor or Lessee to maintain the outer walls, but in this case (and this was again a new departure) there was a covenant by the Lessor to perform and observe all the covenants, etc. affecting the demised premises "which are contained in the superior Lease of the premises of which the premises hereby demised form a part dated the 25th March 1949 and made between Cyril Frederick Keen of the one part and the Lessor of the other part, and on the part of the Lessor to be performed and observed." This reference is the only information available as regards the superior Lease, and it is to be noted that its term also ran from the 25th March 1949. It may, therefore, was connected with the grant to the Respondent of a new Head Lease. It seems also likely enough that the covenants in the Head Lease (which the Respondent undertook to observe) included a covenant as regards maintenance of the exterior But apart from these surmises there is no evidence whatsoever of the circumstances in which the present Lease was granted, or of any negotiations leading up to it.
It has been conceded by the Respondent that notwithstanding the silence of the Lease in this respect the demise covered the outer walls of the upper floors of the premises so that they passed to the Appellant for the term of the Lease, There is no other question of construction of the document. Neither by its expressed terms nor by necessary implication can there possibly be extracted from the document itself any kind of reservation in the Lessor's favour as regards the use of the walls.
As I have said above, the Appellant in his Affidavit states that he never agreed to any grant of a right for the Respondent to Maintain advertisements: On the other hand, the Respondent by his Answer relies upon his user in fact for the preceding 10 years, though he has made no suggestion of any agreement or discussion in regard to the advertisements or of any mutual intention that he should be entitled to retain them.
Matters continued as before until the beginning of 1950 when the Appellant (whose Hairdressing business does not seem to have been entirely successful) appears to have woken up to the possibilities which the advertisements presented to him. On the 23rd January 1950 his solicitors wrote to Messrs Bryant & May Limited, calling attention to the fact that ever since March 1939 they had had an advertisement on the west wall of the premises, but that the Appellant had received no payment therefor. They asked accordingly for particulars of any payments made and requested that all future payments should be made to the Appellant. As a result the Appellant learnt from Bryant & May Limited that according to their understanding the advertising site had been "leased" to the Borough Billposting Company, Holborn House, High Holborn, to whom Bryant & May Limited had always paid their rental. The Appellant's solicitors accordingly communicated with the Borough Billposting Company and they in turn stated that they had been in occupation of the site for many years, having obtained a "licence" for such purpose from the Respondent. No further Information is before the Court of the nature of the arrangement subsisting between the Respondent and the Borough Billposting Company.
The question then is: Having regard to the apparent and continuous user by the Respondent (or those under contract with him) with the full knowledge of the Appellant, ought there to be implied the reservation which the Respondent seeks? Beyond the facts of user and of the Appellant's acquiescence, there is no other relevant consideration. As I have already indicated, the authorities in my judgment compel me to hold that the Respondent has failed to establish any sufficient ground for an implied reservation in his favour.
The first question is: What is the reservation sought to be implied? It is at this point that the Respondent's difficulties appear to me to begin. As regards the use of the corner wall by the Respondent for advertising his own business the only claim made by him through his Counsel is a right personal to himself to Maintain on that wall the existing advertisement, or some other advertisement, substantially identical. As regards the Brymay advertisement, the Respondent has put his claim in more than one way. First he says that he is entitled to a personal right to maintain that advertisement and no other: Second, and alternatively, he claims a personal right to continue to license or let to the Borough Billposting Company the site of the present advertisement for any advertisements which the Billposting Company may in turn authorise. Thirdly, he suggested (but this claim has not been persisted in before us) that there was reserved a right to him and his assigns, persons entitled to the reversion expectant on the Appellant's Lease, to maintain on the site of the Brymay advertisement any advertisement or advertisements whatever.
This then is the Respondent's first difficulty. For if he is entitled to an implied reservation in his favour, it is essential that he should be able precisely to define its terms and character.
Put alternatively; if the implication of a reservation is justified in order to give effect to what the parties must be presumed between them to have intended, the terms and nature of the reservation should be capable of certain statement. But the Respondent's case presents a disconcerting ambiguity. There is, in the first place, a difference in quality between the right claimed by him in respect of the corner wall and that claimed in respect of the west wall. As regards the former, he claims a right personal to himself and limited by application to the business which he himself is now carrying on. As regards the latter, the right asserted is to let the space in question to others for advertisements unrelated to the Respondent's own trade; and it is uncertain whether and to what extent such right is further qualified.
If the Court were satisfied that in order to make the transaction between Respondent and Appellant sensible and effective according to its terms, they must have intended some particular right to be reserved to the Respondent, it might be possible to imply an appropriate reservation. Such a result might be said to be implicit in the language of Lord Parker in Pwllbach Colliery Co. Ltd. v. Woodman 1915 Appeal Cases at page 647:
"The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to grant a real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v. Pritchard and Lyttelton Times Co. v. Warners. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use".
Whatever be the proper significance of the language I have quoted, the Respondent's difficulty in the way of its application in the present case seems to me to be that the facts as proved in evidence, if they are consistent with such an implied reservation as the Respondent claims, are equally consistent with a merely permissive privilege allowed by the Appellant to the Respondent and revocable by the former at any time. Such a reservation as the Respondent claims is requisite, so far as I can see, for the effective enjoyment neither of the premises demised nor of the premises retained.
Ever since the case of Suffield v. Brown, reported in 4 De G. J & S. 185, it has in my judgment been established that prima facie a grantor or lessor cannot assert against his grantee or lessee any right or privilege unless it has been expressly reserved to him by the grant. To this general rule there are no doubt exceptions, no less well established. Thus a right of way to the grantor's premises will be impliedly reserved over the premises granted if it is necessary to enable access to the former to be had, Similarly rights will be impliedly reserved which are in their nature reciprocal to rights which the grant must be taken to have conferred upon the grantee. In the case of Aldridge v. Wright, 1929 2 King's Bench at page 117, Lord Justice Greer attempted an exhaustive classification of the rights which the Courts will imply in favour of a Grantor, none of which (as Mr. Richmount concedes) can be said to cover the Respondent's case. But Mr. Richmount has argued that there are further exceptions to the general rule. He says that a right in favour of a grantor will be implied either (a) whenever in all the circumstances it is equitable so to do or (b) (and this may be a particular manifestation or example of his general exception) where there has been any failure on the part of the other party to perform such duty of disclosure as the circumstances of the case may have imposed upon him. As regards the former alternative, the answer seems to me to be that such an alleged general equity would be inconsistent with the duty of express reservation which prima facie is imposed upon the grantor, and further would render otiose and inappropriate the particular exceptions to the general rule which the Court has made and precisely defined. For his second alternative Mr. Richmount has particularly relied upon the language of Lord Blackburn in his dissenting opinion in Russell v. Watts L.R. 10 Appeal Cases at page 613:
"Lord Justice Lindley refers to Dann v. Spurrier and Cotching v. Bassett, and he might have referred to Freeman v. Cooke at law, as exemplifying the principle that where one man induces another to alter his position by active misleading, or by silence, where there is by contract, usage of trade, or otherwise, a duty to speak, or, in an equitable case, one may say, where the circumstances are such as to make it against conscience to be silent, his rights must be regulated by what he has himself brought about".
In the present case Mr. Richmount has pointed to the somewhat remarkable facts to which I have already alluded - the 10 years of user by the Respondent from 1959 to 1949 with the full knowledge of the Appellant and without any complaint or claim on his part? the fact that the advertisement on the west wall was obviously (for the name "Boro" appeared on the frame) the subject of some letting or licence for reward and the fact that such advertisement extended in part over the wall of the ground floor premises or at least was part of a larger advertisement which manifestly so extended; and the terms of the 1949 Lease itself, including the obligation imposed on the Appellant to use the premises demised solely for the purposes of a Hairdressing Saloon. From these facts Mr. Richmount has submitted that, unless the Appellant was intending to concede to the Respondent the right which he claims, his failure to inform his lessor to the contrary when the Lease was being negotiated and prepared was in effect an act of bad faith on his part.
Whether silence on the part of a grantee at the time of or immediately prior to the grant to him would in the particular circumstances of any given case amount to bad faith and whether, in such event, the grantee would be treated as disabled in a Court of Equity from disputing the grantor's claim to an implied reservation, are matters upon which it is unnecessary for me to express any opinion: For in my judgment those are not the circumstances relevant to the present case. And in the absence at any rate of bad faith it seems to me that such a duty as Mr. Richmdunt says was imposed upon the present Appellant is inconsistent with the general principles established by authority. For the existence of any such general duty, as Mr. Richmount alleges, on the part of the grantee is to my mind inconsistent with the duty which according to the cases is imposed by the law upon the grantor expressly to reserve any right which he desires to secure or maintain against the grantee. What indeed would be the character of the latter's obligation? To draw the grantor's attention to his own duty? To warn him that in the absence of express reservation he will go without? Where (as seems likely enough in the present case) neither party ever had the matter in mind at all, is the grantee under a greater duty than the grantor to ascertain (and disclose) what might be the true legal position?
I do not attempt for my part any exhaustive definition of the exceptions to the general rule. In my judgment the general rule itself as formulated in the cases leaves no room for either of Mr. Richmount's exceptions. I content myself by referring to the judgment of Lord Justice Thesiger in this Court in the case of Wheeldon v. Burrows, Law Reports, 12 Chancery Division at page 51: At page 49 it says:
"We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant.".
And again after referring to Suffield v. Brown he quoted Lord Chelmsford's observation in Crossley & Sons v. Lightowler Law Reports, 2 Chancery Division 478 at page 56:
"It appears to me to be an immaterial circumstance that the easement should be apparent and continuous for non constat that the grant or does not intend to relinquish it unless he shows the contrary by expressly reserving it".
Finally and in reference to what he had said in the course of the first passage from his judgment which I have quoted, Lord Justice Thesiger reconciled certain other cases with the general propositions he had stated by adding as a second exception to his second proposition reciprocal easements of the kind already mentioned. "It seems to me" he said at page 59 "to be consistent with reason and common sense that these reciprocal easements should be implied".
It remains only for me to say a word or two about the case of Simpson v. Weber which Mr. Justice Danckwerts regarded as being "nearest to the present case" and which he followed accordingly.
The case (which was before the Divisional Court on appeal from a County Court) is reported both in 41 T.L.R. at page 302 and 133 L.T. at page 46. Both reports are brief and although the latter contains no report of the argument, it has seemed to me on the whole the better of the two. Nevertheless, the facts are, to my mind in some degree obscure.
The dispute was plainly of a most trivial character. The Plaintiff and Defendant were respectively successors in title of the grantee of a common owner and the common owner. There had been growing at all material times on the border of the Defendant's tenement a Virginia creeper which had according to its nature attached itself to the Plaintiff's easterly wall. At some time before action brought the growth of the creeper had obstructed a gutter of the Plaintiff which the Plaintiff had cleared - a matter to which the Divisional Court attributed the County Court Judges award of 40 - damages. It is to be noted that the gutter in fact overhung the Defendant's property though no point appears to have been made of this not unimportant fact. The other casus belli related to a gate post of the Defendant which was attached to the Plaintiff's wall by nails or plugs, part of the length of which was inserted in the Plaintiff's wall.
I will not criticise the conclusion of the Divisional Court which reversed the judgment of the County Court Judge in the Plaintiff's favour. But there seems to me all the difference in the world between a long-lived tree and a gate post permanently attached to a wall on the one hand and temporary advertisements on the other: And to the case of the tree the analogy of reciprocal easements might perhaps have been applied. But in the course of his leading judgment Mr. Justice Salter used the following language:
"I have to ask" he said "what was the intention of the parties in the present case as to whether the creeper was to remain and grow against the Plaintiff's wall, and as to whether the gatepost was to remain fastened to it . . . I have come to the conclusion that there was no evidence that it was not the intention of the parties that the creeper and gatepost should stay".
If by this language that learned judge intended to lay it down that in a case such as this, while it is or may be reasonable for the Court to assume that if the parties had applied their minds to the problem of the advertisements they would or should have made provision for securing to the Respondent such right as he now claims, it is sufficient for the Respondent to establish the absence of any evidence of a contrary intention, it seems to me that the proposition is in direct conflict with the principle which is not only well established but which also in my judgment ought not to be lightly qualified, the principle that it is the duty of a grantor to reserve expressly any right he wishes to maintain against his grantee or at least to prove affirmatively that such a reservation was clearly intended by him and his grantee at the time of the grant.
Failing, as I think the Respondent does, to establish the necessary condition, the question raised in the Summons must necessarily in my judgment be answered in the negative. But as I have earlier stated', my conclusion on the particular question raised for our consideration leaves unjudged the results which properly flow if the Appellant seeks by asking for an account or otherwise to enforce the fights which, by reason of this judgment, he has. In the hope that in some measure further litigation and dispute may be saved, I add this: The proper conclusion from the facts now before the Court appears to me to be that the Respondent's activities, until challenged, ought to be regarded as having been by the tacit permission or license of the Appellant. That permission or license was terminated when the Appellant called in question the Respondent's rights in January 1950. So far as concerns the Respondent's own advertisement upon the middle or diagonal wall, it is painted on the bricks which (as the Respondent concedes) are included in the demise. Prima facie that is all that has to be said - save that the Respondent cannot henceforth renew the advertisement. The position of the Brymay advertisement is less easy. We know nothing of the terms of the contract between the Respondent and the Borough Company. Mr. Mulligan concedes that his client cannot - or cannot without exposing himself to liability - terminate or interfere with that contract. Where part of premises granted or demised is subject to an existing and valid tenancy or other agreement prima facie no doubt the grantee or lesee would take subject to and with the benefit of that contract. But in the present case the Appellant's rights, on the facts, may not be so simple. If the Appellant should be taken to have granted to the Respondent a permission or licence to use the relevant space for advertising purposes by means (inter alia) of letting it for reasonably short terms to advertising contractors, it may well be that he could not recall his permission or licence so as to attract to himself the profits of any pending contract entered into within the scope of the permission granted; though he could, presumably, require any such existing contract to be determined as soon as legitimately possible. In working out the rights much my depend on the usual practice in regard to such lettings and on the actual terms of any contract with the Billposting Company. It would, however, appear that in any case the Appellant would not possibly require the Respondent to account in respect of the period prior to the date of the Lease (11th August 1949) and (as I think , at present) prior to the date of his challenge of the Respondent's rights in January 1950.
The fortunes of war have favoured the Appellant: And I venture to express the hope that he will prefer the claims of neighbourliness and reasonableness to the costs and hazards of further litigation, as he must also remember his covenant against user of the premises otherwise than as a Hairdressing Saloon. The hope is perhaps the less futile since in any further litigation he will, I gather, claim the privilege of suing at public expense.
LORD JUSTICE JENKINS: I agree. The facts have been fully stated by the Master of the Rolls, and I will therefore confine myself to a brief recapitulation of their essential features.
The Defendant (now Respondent) is Lessee of the whole of the premises No.405 Footscray Road, New Eltham. He occupies the ground floor, where he carries on business as a Butcher and Provision Merchant.
The Plaintiff (now Appellant) holds the two upper floors of the premises under a Lease from the Defendant dated the 11th August 1949 for the period of 21 years from 35th March 1949 (determinable by the Lessee at the 7th or 14th year) at the weekly rent of £2. Prior to the grant of this Lease the two upper floors had since the year 1939 been occupied by the Plaintiff at a yearly rent of £65 under a Tenancy Agreement with the Defendant dated the 10th February 1939 originally for three years from the 6th March 1939 renewable at the Plaintiff's option for a further period of three years, but in fact continued on a yearly basis down to the granting of the Lease of the 11th August 1949.
The Plaintiff is a Hairdresser by trade and uses the two upper floors for the purposes of a Ladles Hairdressing establishment. The Lessee's covenants in the Lease of the 11th August 1949 include covenants to paint and repair the interior of the demised premises, not to make any alteration or addition in or to such premises without licence, and not (save with consent not to be unreasonably withheld) to use the demised premises for any purpose other than as a hair dressing saloon.
It is not disputed that the Lease of the 11th August 1949 and the Tenancy Agreement which preceded it both included the exterior surfaces of the outside walls of the two upper floors, and that neither document contained any provision reserving to the Defendant any rights over such exterior surfaces, except in so far as there must be implied under the Lease such rights of access and so forth as may be necessary to enable the Defendant to comply with a covenant on his part in the Lease to perform the Lessee's covenants contained in the Head Lease, which presumably include full repairing covenants.
There are and have at all times since a date prior to the commencement of the Plaintiff's original tenancy been the following advertisements painted on or affixed to the exterior surfaces of the outside walls of the two upper floors demised to the Plaintiff viz: (i) Painted directly on the brickwork of the wall over the door into the Defendant's shop in black letters on a white ground an advertisement of the Defendant's own business in these terms "Webb's for Meat Grocery & Provisions. Phone ELT. 2047." (ii) Displayed on a billboard affixed to the upper part of one of the flank walls of the premises a poster advertising "Brymay Safety Matches". This poster surmounts another similarly affixed to. the lower part of the same wall advertising "Oxydol", the upper poster apparently extending downwards to approximately the level of the first floor, though from the photograph before us it is impossible to say exactly where its lower edge is placed in relation to the interior division between the ground and first floors.
The Plaintiff never raised any objection to the presence on the exterior of the outer walls comprised in his tenancy or lease of the advertisement and poster I have mentioned until January 1950, when through his Solicitors he opened a correspondence on the subject of the Brymay Poster. Bryant & May Ltd. who were first approached referred the Plaintiff's Solicitors to the Borough Billposting Company, too whom they paid rent for the display of the poster, and reference to the Borough Company (with a demand for payment to the Plaintiff of all further rent in respect of the Brymay Poster) elicited information to the effect that they held a licence from the Defendant under which they used the part of the wall occupied by the poster as an advertising site. The Plaintiff's solicitors next wrote to the Defendant's solicitors claiming that the Defendant should account to the Plaintiff for all sums received by him since 6th March 1939 from the Borough Company in respect of the Brymay Poster, and also asking what payment the Defendant was prepared to offer for his own advertisement.
After further correspondence (including a letter dated the 15th March 1950 whereby the Plaintiff's solicitors gave notice terminating "all licences if any" from the Plaintiff to the Defendant in respect of the display of advertisements on the outer walls of the two floors demised to the Plaintiff) the present proceedings ensued.
As my Lord has already stated, the proceedings took the form of an application by the Plaintiff by Originating Summons for the determination of the question whether upon the true construction of the Lease of the 11th August 1949 and in the events which had happened the Defendant was entitled until the determination of the Lease to use for the purposes of advertising the outer walls and if so what portion or portions of the outer walls of the property demised by the Lease without the Plaintiff's consent.
I would say nothing to discourage the use of the relatively cheap and expeditious procedure by Originating Summons for the construction of a written instrument where the real issue between the parties is one of construction. But in the present case there is in truth no question of construction at all.
The Lease of 11th August 1949 contains no vestige of a provision reserving to the Defendant any right to use any part of the outer walls of the demised premises for advertising purposes, and the real issue between the parties was whether the circumstances in which the lease was granted were such that some reservation of this character ought to be implied in favour of the Defendant notwithstanding the total absence of any such provision from the expressed terms of the Lease. An Originating Summons heard without oral evidence is not in my view a satisfactory form of procedure for the trial of an issue such as this. The result in the present case has been that the only evidence before the Court consists of affidavits by the Plaintiff and the Defendant on which there was no cross-examination and which leave the matter to be determined simply by applying the relevant law to the bare facts above summarised.
The matter therefore stands thus. The Defendant did not include in the provisions of the Lease as executed any reservation of advertising rights over any part of the outer walls. But at the date of the Lease the advertisements now in dispute were in their present positions on the walls and plainly to be seen. Moreover, they had existed in their present positions continuously since before the commencement of the Plaintiff's original tenancy in 1959; and the Plaintiff never objected to their presence at any time during his original tenancy, or at the time of the granting of the Lease of the 11th August 1949, or thereafter until January 1950, There is no evidence that either party ever even mentioned the subject of the advertisements to the other during the whole of this period of more than 10 years.
This being in substance the whole of the available facts, the question is whether on those bare facts without more, the Court can and ought as a matter of law to imply in favour of the Defendant a reservation during the term of 21 years granted by the Lease of the 11th August 1949 of advertising rights over the outer walls demised at all events to the extent required to enable him to maintain the existing advertisements and to retain for his own benefit any periodical payments receivable from the Borough Company in respect of the site of the "Brymay" poster.
As to the law applicable to the case, it is not disputed that as a general rule a grantor, whether by way of conveyance or lease, or part of a hereditament in his ownership, cannot claim any easement over the part granted for the benefit of the part retained unless it is expressly reserved out of the grant. See (for instance) Suffield v. Brown, reported in 4 De G. J & S. at page 185; Crossley & Sons Limited v. Lightowler, Law Reports, 2, Chancery Division at page 478; Wheeldon v. Burrows, 12 Chancery Division at page 31, There are, however, certain exceptions to the general rule.
Two well-established exceptions relate to easements of necessity and mutual easements such as rights of support between adjacent buildings. But it is recognised in the authorities that these two specific exceptions do not exhaust the list, which is indeed incapable of exhaustive statement, as the circumstances of any particular case may be such as to raise a necessary inference that the common intention of the parties must have been to reserve some easement to the Grantor, or such as to preclude the Grantee from denying the right consistently with good faith, and there appears to he no doubt that where circumstances such as these are clearly established the Court will imply the appropriate reservation.
For statements of the general rule, and observations on the types of case which should be treated as exceptions to it, reference may usefully be made to the following authorities.
In Wheeldon v. Burrows (supra) at page 49, Lord Justice Thesiger states two propositions as "the general rules governing cases of this kind". The first concerns easements passing to the grantee and is not relevant here. The second he states as being "that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant". The learned Lord Justice continues:
"Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant."
He deals further with the question of exceptions at page 59 but, apart from the case of easements of necessity, he does not appear to have been disposed to admit any further exceptions other than cases of mutual easements and cases in which the same vendor sells by auction different lots to different persons at the same time, where the purchaser of one lot may be entitled to an easement over another lot even though the latter was in fact actually conveyed before the former. (See Swansborough v. Coventry 9 Bing., page 505.) In Russell v. Watts, 10 A.C., 590, at page 596 Lord Selborne L.C., after referring to the general rule that a man cannot be prevented from darkening his neighbour's windows by a lawful act done on his own land unless light has been enjoyed through those windows for twenty years, and also to the second of the two propositions in Wheeldon v. Burrows quoted above, said:
"It is manifest, however, that neither of those rules can be invoked in defence of any act contrary to the good faith of a particular contract."
In Aldridge v. Wright, 1929 2 K.B., 117, Lord Justice Scrutton at page 124 said: 'There are exceptions to the doctrine of of Wheeldon v. Burrows. I do not see my way to attempt an exhaustive statement of those exceptions, as facts would immediately present themselves to prove my absence of foresight, and I find some of the suggested exceptions difficult to understand - but I do not find any suggested exception which covers the facts of this case", and after citing (at page 125) the well-known statement of Lord Parker in Pwllbach Colliery Co. v. Woodman, 1915 A.C. 654, 646 (to which I will return) stated his conclusions thus at page 127:
"I think the grantee of No.30, when his grantor claims to have impliedly reserved such a right from his grant, though it is not mentioned in his grant, is entitled to require the clearest evidence of an 'intention of the parties' that there should be reserved for the benefit of No.28 an easement or quasi-easement to be used and enjoyed as of right. In my opinion the Defendant has failed to show such a common intention or implied reservation in this case; the doctrine of Wheeldon v. Burrows applies; the decision of the Divisional Court must be affirmed, and the appeal dismissed."
Lord Justice Greer, at page 129, quoted the general rule as enunciated by Lord Justice Thesiger in Wheeldon v.Burrows and stated five classes of exceptions which he thought to be the only ones warranted by the authorities, and of which it is only necessary to mention the third, thus stated by Lord Justice Greer:
"3. If the owner of two adjoining properties, A and B, grants to the tenant of A a tenancy from year to year with a right of way during his tenancy over B, and subsequently leases B, the lease of B is subject to a reservation of the right of way which has ex hypothesi been granted to the tenant of A if it is shown that the lessee of B was aware of a long-continued exercise of the right by the tenant of A. - Thomas v. Owen."
Lord Justice Sankey (as he then was) at page 134 said:
"I do not think it is possible, at any rate I propose to resist the dangerous ambition of trying, to lay down a rule which will cover all exceptions. It is impossible to foresee facts; all that can be said is that the onus is upon the grantor to establish the facts to prove that his case is an exception to the rule. In Wheeldon v. Burrows he failed to do so."
In Liddiard v. Waldron, 1954 1 K.B. 435 the case of Thomas v. Owen was distinguished and Lord Justice Greer, at page 447, after referring to Aldridge v. Wright and the rule in Wheeldon v. Burrows, said:
"The Courts have been faced with the question whether or not in some cases there are exceptional circumstances which justify departure from that rule. One of those exceptional cases was established in Thomas v. Owen, the effect of which I ventured to summarize in these words."
Lord Justice Greer then set out and reaffirmed his statement of the effect of that case in Aldridge v. Wright, and added:
"Thomas v. Owen is only an illustration of the proposition that a man cannot grant to A what he has already given to B, and, therefore, in order to give effect to what he has already given to B, if the grantee knows the facts, there must be an implied reservation of that which would enable him to perform his obligation to his tenant under his existing lease."
The most comprehensive statement of the area of potential exceptions is probably that contained in the speech of Lord Parker in Pwllbach Colliery Co. v. Woodman (supra) at page 646, where his Lordship, after referring to the exception with respect to easements of necessity, said this:
"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v._Pritchard, and Lyttleton Times Co. v. Warners. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use."
The illustrations given by Lord Parker in support of this general proposition seem however to show that it is of less comprehensive import than would at first sight appear. He refers to Jones v. Pritchard, 1908 1 Ch., 630, which was in effect a case of mutual easements, to Lyttleton Times Co. v. Warners, 1907 A.C., 476, where both parties contemplated at the time of the grant that the grantor should carry on his printing works on the part of the premises retained, and it was held that the grantee could not in those circumstances complain of a nuisance to the premises granted due to noise and vibration unavoidably occasioned by the carrying on as contemplated of printing operations on the grantor's part of the premises, and to two other cases which appear to have proceeded on similar principles.
The case which in point of actual decision goes furthest in the direction of implying reservations of easements in favour of a grantor is undoubtedly that of Simpson v. Weber, 41 T.L.R. 302, 135 L.T., 46. The question there was whether the grantor of one of two adjoining houses owned by him had by implication reserved the right to have a creeper growing in the garden of the house retained supported by a wall of the house granted over which its foliage had spread, and the right to continue the attachment of a gate forming part of the premises retained to a wall forming part of the premises granted; and the Divisional Court, reversing a County Court Judge, decided in favour of the grantor's successor in title on both points. Of this case I need only say that while the physical circumstances at the date of the severance may perhaps have sufficed to support an implication of an intention common to grantor and grantee that the easements in question should be reserved, I cannot agree that the decision is good law so far as it proceeds on the ground, given in both the two not very satisfactory reports, "that there was no evidence that it was not the intention of the parties that the creeper and the gatepost should stay."
In his Judgment in the present case Mr. Justice Danckwerts, after citing at length from Simpson v. Weber, and also referring to Liddiard v. Waldron, Wheeldon v. Burrows and Thomas v. Owen, expressed his conclusion thus:
"It does seem to me that there may be exceptional circumstances in which it is only common sense to imply some reservation, for example, the circumstances of the present case. When I see that, when the parties entered into their transaction, there was an enormous advertisement painted on the wall advertising 'Webb's for Meat, Grocery and Provisions', and a very large advertisement advertising 'Brymay' safety matches, which had been there since 1939 and before, and nothing was said between the parties about the removal of those advertisements, it seems to me common sense to imply an intention on the part of the two parties to the document that those advertisements should be allowed to remain. Therefore, I am prepared to hold that there was implied in favour of the landlord in this lease an easement until the termination of the lease to keep those two advertisements in the position in which they are, and, of course, by necessary implication, a right to repair them, paint them, or do whatever may be necessary from time to time to preserve them as effective advertisements."
I find myself unable to agree with the learned Judge's conclusion. The question is whether the circumstances of the case as proved in evidence are such as to raise a necessary inference that the common intention of the parties was to reserve to the Defendant during the 21 years term some and if so what rights in regard to the display of advertisements over the outer walls of the demised premises, or such as to preclude the Plaintiff from denying the implied reservation to the Defendant of some such rights consistently with good faith.
That question must be approached with the following principles in mind: (i) If the Defendant intended to reserve any such rights over the demised premises it was his duty to reserve them expressly in the lease of the 11th August 1949 (Wheeldon v._Burrows)(ii) The Defendant having failed in this duty the onus was upon him to establish the facts to prove, and prove clearly, that his case was an exception to the rule (Aldridge v. Wright). (iii) The mere fact that the Plaintiff knew at the date of the lease of 11th August 1949 that the Defendant was using the outer walls of the demised premises for the display of the advertisements in question did not suffice to absolve the Defendant from his duty of expressly reserving any rights in respect of them he intended to claim, or to take the case out of the general rule (See Suffield v. Brown at page 199, Crossley & Sons Ltd. v. Lightowler at page 486).
Applying these principles to the present case, I ask myself whether the Defendant has on the meagre facts proved discharged the onus which lies upon him of proving it an exception to the general rule. He can, so far as I can see, derive no assistance from the passage quoted above from Lord Parker's speech in the Pwllbach Colliery case. It might, I suppose, be said to have been in the contemplation of the parties that the Defendant would continue to use the ground floor of the premises for the purposes of his business as a butcher and provision merchant, but it cannot in my view be contended that the maintainence during the term of the lease of his advertisement over the door was a necessary incident of the user so contemplated. This applies a fortiori to the "Brymay'' advertisement, the display of which on the outer wall of the demised premises by the Boro' Company as licensees of the Defendant was so far as I can see not related in any way to the use or occupation of the ground floor for the existing or any other purpose. The transaction with the Boro' Company was simply a hiring out for reward of part of an outer wall of the demised premises for use as an advertising or billposting site or station.
The mere fact that the Plaintiff knew of the presence of the advertisements at the date when the lease of 11th August 1949 was granted being, as stated above, beside the point, nothing is left beyond the bare circumstance that the advertisements were not only present at the date of the grant but had been continuously present without objection by the Plaintiff since the commencement of his original tenancy in 1959. Does this circumstance suffice to raise a necessary inference of an intention common to both parties at the date of the lease that the Defendant should have reserved to him the right to maintain these advertisements throughout the twenty-one years term thereby granted? I cannot see that it does. The most that can be said is that the facts are consistent with such a common intention. But that will not do. The Defendant must surely show at least that the facts are not reasonably consistent with any other explanation. Here he manifestly fails. It may be that neither party ever applied his mind at all to the question whether the outer walls were included in or excluded from the original tenancy or the lease ultimately granted, or what their respective rights as to the use of such walls for any purpose might be. It may be that the Plaintiff, so far as he applied his mind to the matter at all, merely refrained from objecting to the presence of the advertisements because, whether the Defendant was within his rights in maintaining them or not, he, the Plaintiff, did not for the time being think it worth his while to object. As to the Defendant, he may have been under the erroneous impression that notwithstanding the tenancy and subsequently notwithstanding the lease, he was entitled to use the outer walls for advertising purposes. If so, his own mistake will not avail him, at all events in the absence of evidence that the Plaintiff was aware of it. On the other hand, the Defendant may have thought, when he came to grant the lease, that as the Plaintiff had never objected to the advertisements during all the ten years of his previous tenancy it could be assumed that the Plaintiff would not object in the future, and have preferred accordingly to let the matter rest at that rather than raise the question by claiming a reservation.
In short, I can hold nothing more established by the facts proved than permissive user of the outer walls by the Defendant for the display of the advertisements during the original tenancy and thereafter from the granting of the lease until the Plaintiff's objection in January 1950; with nothing approaching grounds for inferring, as a matter of necessary inference, an intention common to both parties that such permissive user should be converted by the lease into a reservation to the Defendant of equivalent rights throughout the twenty-one years term thereby granted.
If the hypothetical officious stranger sometimes used as a. test of implied terms had intervened in the course of the negotiation of the lease and said: "What about Mr. Webb's advertisements?" would both parties have exclaimed with one voice: "Of course they are to stay?". I see no justification at all for this assumption. The Defendant might well have said: "Of course I want them to stay", but as likely as not the Plaintiff would have said:
"At present I have no objection to your advertisements, but I cannot bind myself to allow them for twenty-one years. For all I know, I may at any time during that period for one reason or another want them removed. If you insist on reserving rights in the matter you must reduce the rent or find some other tenant."
So far as the "Brymay" advertisement is concerned, the case resembles Thomas v. Owen in that the right in question was granted by the Defendant to the Boro' Company before the date of the lease. But this only means that prima facie the demise to the Plaintiff took effect subject to the Boro' Company's right, and cannot, so far as I can see, afford any ground for implying a reservation by the Defendant to himself of the proceeds accruing subsequently to the date of the lease from thus hiring out a part of the demised premises, or any right to grant any further license for a similar purpose.
For these reasons I am of opinion that the appeal should be allowed and that a negative answer should be returned to the question raised by the Summons. The consequences of a decision to that effect are not strictly before us, but I should perhaps add (with a view so far as possible to curtailing the grounds for future controversy): (i) That so far as the painted advertisement is concerned, the surface on which it appears, including the painted lettering and background themselves, in my view passed under the demise, so that the mere continued presence of the painted background and lettering in their existing state cannot constitute a trespass. But repainting would be a different matter, and there is nothing to prevent the Plaintiff using the same surface for any purpose not involving a breach of any of the covenants on his part contained in the lease notwithstanding that the effect of so doing may be to obscure the Defendant's advertisement. (ii)Although there is no reservation to the Defendant of any rights over the relevant area of wall in respect of the "Brymay" advertisement, the lease must, as I have said, prima facie have taken effect subject to the rights (whatever they may be) of the Boro' Company under the license granted to them by the Defendant and, as between the Plaintiff and the Defendant, have passed to the benefit of the Boro' Company's obligations under that license so far as it affects the outer wall of the demised premises. It is obvious that if the parties choose to litigate further there may be ample room for controversy as to the apportionment of any rent paid by the Boro' Company in respect of the two posters (the "Brymay" one being substantially but perhaps not wholly on the demised part of the outer wall and the "Oxydol" one being substantially but perhaps not wholly on the retained part of the outer wall), and as to the date from which the Plaintiff can claim the benefit of any contract with the Boro' Company or call upon the Defendant to account for his receipts under it, having regard to the fact that the Plaintiff as between himself and the Defendant must, I think, clearly be taken to have given his tacit consent to the presence of the "Brymay" poster down to January 1950.
It is to be hoped that common sense (to which Mr. Justice Danckwerts appealed in his judgment) will lead to a reasonable settlement of these outstanding matters.
LORD JUSTICE MORRIS: I agree. The lessor and the lessee expressed the terms of their agreement in a lease which appears to be both full and formal. The lessor becomes confronted therefore with one of the general rules referred to by Lord Justice Thesiger in Wheeldon v. Burrows, L.R. 12 Ch.D. 31., i.e. that if a grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant. That rule is but one application of the maxim that a grantor shall not derogate from his grant, a maxim which Lord Justice Thesiger refers to as being as well established by authority as it is consonant to reason and common sense. The general rule is, however, subject to certain exceptions, and these are discussed by Lord Justice Thesiger in the judgment to which I have referred. One of the most familiar examples of an exception is that which attaches to cases of what are called ways of necessity. Instances of other exceptions were recited by Lord Justice Greer in his judgment in Aldridge v. Wright, 1929 2 K.B. 117,130.
In my judgment the issue in the present case may be stated in the form of the question which Lord Justice Sankey posed in Aldridge v. Wright, 1929 2 K.B. 117, 137, i.e. "Has the Defendant proved that the case is an exception to the general rule."
In my judgment the lessor has not shown that he comes within any exception which is embraced by the principles laid down in the authorities. In his speech in Pwllbach Colliery Co. Ltd. v. Woodman, 1915 A.C. 634, 646, Lord Parker said that apart from implied grants by way of necessity or of what are called continuous and apparent easements, the cases in which casements can be granted by implication could be classified under two heads. Lord Parker stated the first of these as being where the implication arises because the right in question is necessary for the enjoyment of some other right expressly granted. He stated the second in the following words:
"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v. Pritchard 1908 1 Ch 630, and Lyttleton Times Co. v. Warners, 1907 AC 476. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use."
If the lessor referred to these words by which to apply a test to the situation, he would in my judgment fail to show on the facts of the present case that some reservation of a right ought to be implied. The implication of a reservation would have to be conclusively indicated and it would not suffice if the matter remained in the sphere of conjecture or ambiguity. The facts in the present case are not inconsistent with and do not effectively negative the view that the leasee may not have given thought to the question of having advertisements on the wall demised to him continuously during the period of the lease. Further, it may be that the lessee lacked advice on legal matters. Neither is it shown in my judgment that any reflection upon his good faith can validly be alleged, nor that he remained silent at a time when he should have been assertive. Further, it cannot be demonstrated that he has done anything to jeopardise his right to withdraw any permission previously tacitly given.
On the particular and somewhat meagre facts which are before the Court it is not in my judgment shown that it must have been the common intention that the lessor was to reserve a right to retain advertisements upon the wall demised. As that is not shown, the question propounded in the Summons should in my judgment be answered in the negative.
I would also add that I am in agreement with the observations made by my Lord The Master of the Rolls in regard to any further assessment or adjustment of the position as between the Appellant and the Respondent.
