Hill v Tupper

Hill v Tupper (1863) is an English land law case which did not find an easement in a commercial agreement, in this case, related to boat hire. Here, the agreed "exclusive" right was held not to be benefitting the land itself, but just for the business. It could not therefore be enforced directly against third parties competing.

Hill v Tupper
Remains of a large old tour boat on the Basingstoke Canal
CourtCourt of Exchequer Chamber (precursor to the Court of Appeal)
Decided1 May 1863
Citation(s)(1863) 2 H & C 121
159 ER 51
Transcript(s)bailii.org
Case history
Prior action(s)Trial, before Bramwell, B and jury who awarded one farthing damages (​1⁄960 of £1)
Court membership
Judge(s) sittingPollock CB
Martin B
Bramwell B
Case opinions
Decision byPollock CB
ConcurrenceMartin B
Bramwell B
Keywords
Easements; right for boating business agreed to be exclusive; whether an exclusive right of navigation enforceable against third parties (easement); competition law; exclusivity agreements

Facts

The Basingstoke Canal Co gave Hill an exclusive contractual licence in his lease of Aldershot Wharf, Cottage and Boathouse to hire boats out. Hill did so regularly. Mr Tupper also occasionally allowed customers to use his boats by his Aldershot Inn to bathe or fish in the canal. Hill wished to stop Tupper from doing so. He sued Tupper, arguing that his lease gave him an exclusive easement and so a direct right to enforce it against third parties (rather than mere licence).[1]

Judgment

Pollock CB held that the contract did not create any legal property right, and so there was no duty on Mr Tupper. If Hill wanted to stop Tupper, he would have to force the Canal Company to assert its property right against Tupper.[1]

An easement would not be recognised.[2] The benefit of an easement must be for the land. Here, the right to exclusive use of the canal was not for benefitting the land itself, but just for the business.[1]

A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property...[1]

Bramwell and Martin BB concurred.[1]

gollark: Anarchoprimitivism, but also a giant space god floats above the planet randomly striking people with lightning.
gollark: Or, well, not all the time.
gollark: You still need people to get food and stuff! You can't have everyone go in torture chambers!
gollark: A brutal totalitarian dictatorship ruthlessly optimizing for suffering could probably work better.
gollark: If you want higher total suffering, that would be hard... hmmm...

See also

Notes
  1. Judgment at bailii.org
  2. (1863) 2 H & C 121, 127

References
  • N Gravells (ed), Landmark Cases in Land Law (2013)
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