curtilage - Methuen-Campbell v Walters

Methuen-Campbell v Walters
Court of Appeal (Civil Division)
21 June 1978

Case Analysis

Where Reported
[1979] Q.B. 525; [1979] 2 W.L.R. 113; [1979] 1 All E.R. 606; (1979) 38 P. & C.R. 693; (1978) 247 E.G. 899; (1978) 122 S.J. 610

Case Digest
Subject: Landlord and Tenant

Keywords: Appurtenances; Conveyance; Freeholds; Statutory interpretation

Summary: Leasehold reform; conveyance to lessee; meaning of "appurtenant"

Abstract: "Appurtenances" within s.2(3) of the Leasehold Reform Act 1967 include land within the curtilage of the house. Property consisting of a house, garden and paddock was assigned to a lessee for a term of 64 years in 1929. The plan showed an unbroken line between garden and paddock. On the tenant serving a notice under the Act for the conveyance of the freehold of the house and premises the landlord sought a declaration that premises did not include the paddock. At first instance it was held that "appurtenances" included the paddock. On appeal, held, allowing the appeal, that though "appurtenances" included land within the curtilage of the house, the paddock could not be so described, and that where premises included a cultivated garden and an area of rough pasture, the latter did not come within the definition of "garden." (Trim v Sturminster Rural DC [1938] 2 K.B. 508 applied).
Judge: Goff, L.J.; Buckley, L.J.; Roskill, L.J.
Significant Cases Cited


*525 Methuen-Campbell v Walters
Court of Appeal
21 June 1978
[1979] 2 W.L.R. 113
[1979] Q.B. 525
Buckley, Roskill and Goff L.JJ.
1978 June 15, 16, 19, 20, 21
Landlord and Tenant—Leasehold enfranchisement—Adjoining properties—Demise of house, garden and paddock—Whether paddock "premises" being "appurtenance" or part of "garden"—Leasehold Reform Act 1967 (c. 88), s. 2 (3)
Property consisting of a dwelling house, garden and an area of rough pasture known as "the paddock" was assigned to a lessee for a term of 64 years in 1929. The plan to the lease showed an unbroken line denoting the boundary between the garden and the paddock. The garden was divided from the paddock by a wire fence and a wicket gate gave access from the garden to the paddock until sometime before 1973, when the gate was boarded up.
In 1973, the tenant served notice on the landlord, under the Leasehold Reform Act 1967, for the freehold of the house and premises to be conveyed to her. The landlord sought a declaration that the house and premises, as defined by section 2 (3) of the Act,1 did not include the paddock. The deputy circuit judge held that, on the true construction of the subsection, the paddock was within the meaning of "appurtenances" and passed under the conveyance of the house.
On appeal by the landlord :-
Held, allowing the appeal, (1) that the dispropriatory provisions of the Leasehold Reform Act 1967 to acquire property were not to be construed liberally to include all the property occupied by right of the demise but were limited by section 1 (1) of the Act to the house and premises; that in the context of the definition of "premises" in section 2 (3), "appurtenances" was not to be construed strictly according to its original meaning of incorporeal rights but was to be construed to include land within the curtilage of the house; that, although the paddock was contiguous with the garden of the house and was an amenity enjoyed with the house, it had always been separated therefrom by a fence and could not be described as within the curtilage (post, pp. 535B-F, H - 536B, D-E, 538G - 539A, 540C-D, H - 541D, 542F, 543G - 544A).
Trim v. Sturminster Rural District Council [1938] 2 K.B. 508, C.A. applied.
Hill v. Grange (1556) 1 Pl. 164; Leach v. Leach [1878] W.N. 79 and Clymo v. Shell-Mex & B.P. Ltd. (1963) 10 R.R.C. 85, C.A. considered.
(2) That, where the demised premises included a cultivated garden and a comparatively large area of rough pasture, the latter could not come within the meaning of "garden" in the definition of "premises" in section 2 (3) of the Act and, therefore, the paddock, being neither part of the garden nor an appurtenance, was not land that could be enfranchised under the Act (post, pp. 538B, 539G - 540B, 543D, 544F-G, 545C-E).
The following cases are referred to in the judgments:
Barnes v. Southsea Railway Co. (1884) 27 Ch.D. 536.
Bettisworth's Case (1580) 2 Co.Rep. 31b.
Buck d. Whalley v. Nurton (1797) 1 B. & P. 53.
Buszard v. Capel (1828) 8 B. & C. 141.
Clymo v. Shell-Mex & B.P. Ltd. (1963) 10 R.R.C. 85, C.A..
Cuthbert v. Robinson (1882) 51 L.J. Ch. 238
Evans v. Angell (1858) 26 Beav. 202.
Hill v. Grange (1556) 1 Pl. 164.
Leach v. Leach [1878] W.N. 79.
Lister v. Pickford (1864) 34 L.J.Ch. 582.
Pulling v. London, Chatham and Dover Railway Co. (1864) 3 De G. J. & S. 661.
St. Thomas's Hospital (Governors) v. Charing Cross Railway Co. (1861) 1 J. & H. 400.
Trim v. Sturminster Rural District Council [1938] 2 K.B. 508; [1938] 2 All E.R. 168, C.A..
The following additional case was cited in argument:
Pilbrow v. Vestry of St. Leonard, Shoreditch [1895] 1 Q.B. 433, C.A..
APPEAL from Deputy Circuit Judge Michael Evans sitting at Swansea County Court.
On August 3, 1976, the landlord, Christopher Paul Manser Methuen-Campbell, Penrice Castle, Reynoldston, Swansea (the tenant for life), applied to the court for a declaration that the house and premises known as The Gables, Reynoldston, Swansea which the tenant, Kate Evelyn Walters, was entitled to have conveyed to her by the landlord pursuant to a notice of desire to enfranchise the property given by the tenant under and by virtue of Part I of the Leasehold Reform Act 1967 did not include the paddock situated on the south-western side of the property. The landlord also sought an order for possession of the paddock.
On August 19, 1977, Mr. Michael Evans sitting as a deputy circuit judge, declared that on the true construction of section 2 (3) of the Act, the paddock was within the meaning of "appurtenance" and passed under the conveyance to the tenant.
The landlord appealed on the grounds (1) that the judge misdirected himself in construing the word "appurtenances" in section 2 (3) of the Act so as to include the paddock and that upon a true construction of the word, the paddock was not comprehended thereby; (2) that upon the true construction of the Act the word "appurtenances" meant and referred to incorporeal rights appurtenant to the house to be enfranchised and not corporeal rights such as a tract of land such as the paddock; (3) that as the purpose of the Act was to give residential security by way of enfranchisement and that such security was given to the tenant upon favourable economic terms, the definition of the subject matter of the enfranchisement, which included the word "appurtenances" ought to be interpreted restrictively; (4) that, alternatively, if the judge were right in construing the word as including corporeal hereditaments, then the true test as to whether the paddock was an appurtenance was whether it would pass on a conveyance of the house without being specifically mentioned and that *527 the judge misdirected himself in construing the hypothetical conveyance of The Gables, Reynoldston, without more, as including the paddock; (5) that, in the further alternative, even if the judge was right in construing the word "appurtenances" so as to comprehend the paddock, there was no evidence upon which the judge could have held, as he seemed to have done, that the paddock was at the relevant time (namely January 2, 1973) occupied with and used for the purposes of the house by an occupant thereof within the meaning of section 2 (3) of the Act.
By a respondent's notice of October 14, 1977, it was contended that the judgment should be affirmed on the additional or alternative ground that if the paddock was not comprehended by the word "appurtenances," then upon the true construction of section 2 (3) of the Act, the paddock was comprehended by the word "garden" and, upon the evidence, the judge ought to have so found.
The facts are set out in the judgment of Goff L.J.
Jules Sher for the landlord.
Ian Edwards-Jones Q.C. and Trefor Hughes for the tenant.
The main submissions of counsel are dealt with in the judgments (post, pp. 529F-G, 535G - 536G, 537B, 538E-G, 540A, B, F-G, 544H). Pilbrow v. Vestry of St. Leonard, Shoreditch [1895] 1 Q.B. 433 was cited by the landlord for the proposition that "curtilage" included everything within the boundary of the land.
I have asked Goff L.J. to deliver the first judgment in this case.
This is an appeal from a judgment, or order, dated August 19, 1977, of Mr Michael Evans Q.C., sitting as a deputy circuit judge in the Swansea County Court in a matter arising under the Leasehold Reform Act 1967. Proceedings were commenced by an originating application dated August 3, 1976, and the dispute between the parties is how much of the demised premises should be included in an enfranchisement under the Act. The landlord, who is the appellant, is tenant for life under a settlement created by the will of Emily Charlotte Talbot, who died in 1918 and whose will and codicils were proved in the Principal Probate Registry on January 10, 1919. As such, he is the estate owner of the demised premises and his title is admitted.
The relevant lease is dated August 27, 1894, and is made between the same Emily Charlotte Talbot of the one part and Horatio Edward Rawling of the other part. It was assigned to the tenant, the respondent to the originating application and this appeal, by an assignment dated October 31, 1929. Her title is also admitted.
I must draw attention to a number of sections of the Leasehold Reform Act 1967 and read certain extracts therefrom. I start with section 1 (1), which says:
"This Part of this Act shall have effect to confer on a tenant of a leasehold house, occupying the house as his residence, a right to acquire on fair terms the freehold or an extended lease of the house and premises where" - and then follow certain conditions.
*528 Then I pass to section 2 (3), which is as follows:
"Subject to the following provisions of this section, where in relation to a house let to and occupied by a tenant reference is made in this Part of this Act to the house and premises, the reference to premises is to be taken as referring to any garage, outhouse, garden, yard and appurtenances which at the relevant time are let to him with the house and are occupied with and used for the purposes of the house or any part of it by him or by another occupant."
I pass on to section 8, which gives the right to enfranchisement:
"(1) Where a tenant of a house has under this Part of this Act a right to acquire the freehold, and gives to the landlord written notice of his desire to have the freehold, then except as provided by this Part of this Act the landlord shall be found to make to the tenant, and the tenant to accept, (at the price and on the conditions so provided) a grant of the house and premises for an estate in fee simple absolute, subject to the tenancy and to tenant's incumbrances, but otherwise free incumbrances."
Section 9 is the section which determines the price. I need not read the whole of it but subsection (1), so far as material, and as amended retrospectively by section 82 of the Housing Act 1969, is as follows:
"Subject to subsection (2) below, the price payable for a house and premises on a conveyance under section 8 above shall be the amount which at the relevant time the house and premises, if sold in the open market by a willing seller, (with the tenant and members of his family who reside in the house not buying or seeking to buy), might be expected to realise on the following assumptions:- (a) on the assumption that the vendor was selling for an estate in fee simple, subject to the tenancy but on the assumption that this Part of this Act conferred no right to acquire the freehold, and if the tenancy has not been extended under this Part of this Act, on the assumption that (subject to the landlord's rights under section 17 below) it was to be so extended; ..."
Section 14 deals with the alternative option, the right of the tenant to take an extension of the lease instead of to acquire the freehold, and section 15 describes the terms of any extended lease. Subsection (1) of that section provides that it shall be a tenancy on the same terms as the existing tenancy but with such modifications as may be required or appropriate, and subsection (2) deals with the rent:
"The new tenancy shall provide that as from the original term date the rent payable for the house and premises shall be a rent ascertained or to be ascertained as follows:- (a) the rent shall be a ground rent in the sense that it shall represent the letting value of the site (without including anything for the value of buildings on the site) for the uses to which the house and premises have been put since the commencement of the existing tenancy, other than uses which by the terms of the new tenancy are not permitted or are permitted only with the landlord's consent; ..."
*529 Those two sections, sections 14 and 15, further provide that the new tenancy shall be a 50-year tenancy, with one rent review.
So it will be seen that where the tenant exercises an option to take a new tenancy, the ground rent is fixed at the date of the expiration of the old tenancy. The landlord can, as I have said, have one rent review, and it is also provided that the tenant is to pay the costs varying from time to time of the landlord's liability for services or repairs. Further by section 15 (7) the terms are subject to any agreement to the contrary between the parties.
The only other section of importance which I should read is section 10, which deals with the rights to be included on a conveyance of the freehold. Subsection (1) of that section is as follows:
"Except for the purpose of preserving or recognising any existing interest of the landlord in tenant's incumbrances or any existing right or interest of any other person, a conveyance executed to give effect to section 8 above shall not be framed so as to exclude or restrict the general words implied in conveyances under section 62 of the Law of Property Act 1925, or the all-estate clause implied under section 63, unless the tenant consents to the exclusion or restriction; but the landlord shall not be bound to convey to the tenant any better title than that which he has or could require to be vested in him ..."
The expression "relevant time" is defined by section 37 (1) (d) as meaning:
"... in relation to a person's claim to acquire the freehold or an extended lease under this Part of this Act, the time when he gives notice in accordance with this Act of his desire to have it; ..."
It will be seen that the assumption required to be made under section 9 (1) (a) gives the tenant electing to call for a sale of the freehold the benefit of his right to a new lease, and although under such a lease the landlord would get a modern, and therefore increased, ground rent with one, but only one, rent review, still obviously the price will be less, and I think substantially less, than it would be if the value of the freehold were assessed as if it were subject only to the original lease, at all events where the enfranchisement is near the end of the long term.
Mr. Edwards-Jones says, and says rightly, that this is not a penal provision, and he says that Parliament itself has declared that the prescribed terms are fair and, therefore, there should be no leaning on construction one way or the other. Mr. Sher, however, says that the Act is expropriatory and is giving a right of compulsory purchase, and that we ought therefore to construe it strictly. I think there is force in the latter submission. Too much weight should not be attached to it, but on the other hand we should not be too ready to give too liberal a construction to the words defining what the tenant is given a right to purchase.
I turn now to describe the property. It consists of a house and land now known as The Gables, Reynoldston, Gower in West Glamorganshire. Whether that is the original house which existed at the time of the demise, and whether, if so, it has been altered or to what extent, I do not know, for the lease contained a covenant by the tenant forthwith at his own expense to erect, alter and rebuild and (if specially required) according *530 to plans and elevations to be first approved of by the lessor; but nothing turns on that.
The house lies at the northern part of the demised premises. South of the house, and at a lower level, there is a garden, and still further south and also again at a lower level, an area of rough pasture which has been referred to as the paddock. There was at all material times a post and wire fence dividing the garden from the paddock, but originally it included a gateway - it was a wicket gate - giving access from the garden to the paddock, with concrete steps leading down from the one to the other. There are also a considerable number of trees along this fence on the cultivated garden side. On the plan to the lease the garden and part of the paddock were alike coloured pink. The southern part of the paddock was coloured blue, but there is no significance in that for present purposes. It represents an area over which the lease reserves to the landlord a right to re-enter, the rent being thereupon reduced ky an amount calculated at the rate of £8 per acre.
The plan to the lease, however, does show an unbroken line drawn across the whole of the property, which appears to denote the boundary between the garden and the paddock.
In the course of time the gate to the paddock became broken down; it was not replaced with a new gate but was roughly closed off. Mr. Reynolds, the landlord's surveyor, described it as an opening boarded up with planks. Mr. Walters, the tenant's son, called it an old gateway now obstructed by a broken wooden gate. The judge did not think the differing descriptions mattered, and he said that photograph no. 14, which we have seen, spoke for itself. He said: "The gateway or opening was and is an access to the paddock from the house area" and so in a sense it was; but it was not an open access from the time when it was boarded up. It was no longer a gate which one could open. The evidence shows that this gate was broken down and the opening roughly closed up before, and remained so at the relevant time; that is January 2, 1973. Mr. Walters' evidence was that it was blocked up in this way because sheep, and occasionally ponies, strayed from the paddock into the garden.
At the south-west corner of the paddock there was another gate leading into a public highway, but Mr. Reynolds gave evidence that it was not in use and that one had to climb that gate to get into the paddock that way.
I shall now read the parcels from the lease itself. They are:
"All that piece or parcel of land with the dwelling house, stables and offices erected thereon situate in the village and parish of Reynoldston in the county of Glamorgan on the southern side of the highway road leading from Fairy Hill to Penrice and now in the occupation of the lessee all which said premises are delineated in the plan in the margin hereof and therein coloured pink and blue and contain in all by admeasurement two acres one rood and three perches or thereabouts with power to the lessee his executors administrators or assigns to alter or rebuild the said dwelling house in conformity with the covenant hereinafter contained ..."
The area of the house and garden is 0.5 of an acre and of the paddock 1.6 of an acre. The lease was for a term of 99 years from March 25, *531 1893, at a yearly rent of £16. It is common ground that it is a long lease at a low rent to which the Act applies, the rateable value falling within the prescribed limit.
The issue is whether the tenant is entitled to a conveyance of the whole of the demised premises, or whether the landlord is entitled to exclude the paddock as not falling within the words "house and premises." The tenant in fact served a notice desiring to have the freehold as long ago as January 1, 1968, and in the schedule thereto the premises were described as: "Dwelling house and land comprised in lease dated August 27, 1894, between Miss Emily Talbot and Dr. Horatio Rawling." There were some negotiations about price after this and ultimately the notice lapsed, and the tenant served another notice, that being the one with which we are concerned. That is dated January 2, 1973. In the schedule to that notice the property is described as "House garden and land, known as The Gables, Reynoldston."
In his notice in reply the landlord took the point that the tenant was currently barred under section 9 (3) of the Act because of her failure to proceed to completion under the 1968 notice, which was not then five years old. This was a misapprehension, because no price had ever been agreed, and, therefore, that section had no application and the objection was withdrawn by letter dated January 22, 1974.
In her answer to the original application the tenant relied upon this letter as an estoppel precluding the landlord from objecting to the inclusion of the paddock, but the judge ruled against this and there is no appeal on that point. So that all that is before us is the question whether the paddock falls within the words "house and premises."
At the trial it was thought that the question turned solely on the definition of "premises" in section 2 (3) of which it was considered that the only relevant words were "garden" and "appurtenances." The judge held that the paddock was not garden, but that it was an appurtenance. He found:
"... the uses to which the paddock has been put continuously over the years down to the present day have been for the purposes of the house by Mrs. Walters and other occupants."
He therefore dismissed the landlord's originating application for a declaration:
"... that the house and premises which the [tenant] is entitled to have conveyed to her by the [landlord] pursuant to a notice of desire to enfranchise the above mentioned property dated January 2, 1973, given by the [tenant] to the [landlord] under and by virtue of Part I of the Leasehold Reform Act 1967 do not include the paddock ..."
and he made the counter declaration sought by the tenant:
"... that the whole of the said paddock is included in the said house and premises for the purposes of the said Act and that the [tenant] is entitled to have the same conveyed to her pursuant to the said notice of desire to enfranchise."
The landlord contends that the judge was wrong, first because the paddock could not as a matter of law be appurtenant to the house since only an incorporeal hereditament can be appurtenant to land; secondly because even if it could be, it did not satisfy the proper test for determining what is appurtenant, and ought not to be so held; and thirdly because the conditions as to user in section 2 (3) were not satisfied at the relevant time. The tenant, of course, disputes all these contentions, but in addition, by a respondent's notice she claims that the paddock was "garden" within the meaning of that expression in section 2 (3), and by an amendment which we have allowed she contends further:
"... that the judgment of the judge should be upheld on the ground that the relevant paddock is in the circumstances of this case, and in the alternative to being 'appurtenant,' or part of the 'garden' itself within the scope of the term 'a house' as used in Part I of the Leasehold Reform Act 1967."
Appeal lies only on a point of law, but the landlord submits that there was no evidence to support the judge's finding of fact which I have read.
The tenant and her family came to the house in 1929. There was then the mother and father and three children, a son, Mr. Walters, who gave evidence and two daughters, one two years older and the other two years younger than the son. The whole family left the property at the outbreak of war and it was sublet. The tenant and her husband returned in 1944 but the children, who had grown up and married, did not live there again, save only the younger sister who lost her husband in 1968 and then returned to live with her mother.
The father died in 1949 and thereafter Mr. Walters visited the property quite frequently, that is to say, for three weeks every annual holiday and for eight to ten weekends a year, until his sister returned home, and thereafter his visits were less frequent, principally I think because he was no longer concerned about his mother being alone, but they did not cease altogether and they continued until after the relevant time, so that he was able to give some evidence about the state of affairs at that time, although the younger sister was not called as a witness.
In recent years Dr. Burgess, who had been in partnership with the younger sister's husband, also came to live at the house. Mr. Walters said that he had a home there for three years, so it would seem that he must have come some time in 1972. Dr. Burgess, the mother and the younger sister all left the house finally in 1975.
The evidence showed that the paddock was used quite often for recreational purposes by the family in the early years when the children were young. After the war, however, the use was greatly diminished, but it was still used by the grandchildren when they were visiting, and by other persons with the permission of the tenant. From about 1950 a local builder used it for grazing his pony under an informal agreement with the tenant. This was for their mutual benefit, she having the grass kept down and he obtaining a feed for his animal and a safe place in which to keep it. He also did odd jobs about the house. He was clearly not a visitor, but this intermittent use did not in any way detract from the tenant's occupation; indeed, it was user by her licensee. *533
Mr. Sher placed much reliance upon the way in which, as the family grew up, user of the paddock diminished, and upon the fact that, as I have observed, the evidence showed that the gateway leading to the paddock was broken down and the opening blocked up by the relevant time, January 2, 1973, although I think, looking at the photograph, that any reasonably agile person would not have had great difficulty in getting through, or over, the fence from the garden into the paddock.
In my judgment, however, if the paddock could on the true construction of the words used in section 2 (3), that is to say,
"any garage, outhouse, garden, yard, and appurtenances which at the relevant time are let to him with the house and are occupied with and used for the purposes of the house or any part of it. ..."
and on the evidence as to user in the early days fall within those words then it was still so at the relevant time. There was no sufficient change to exclude it. I need not consider the evidence as to user further at this stage, for one must first consider whether on construction the words of section 2 (3) are wide enough to include the paddock. It may be that it will be necessary to go on to consider further whether there was any evidence on which the judge could find as he did, that the user at the relevant time was for the purposes of the house within the meaning of the section, whatever those words may mean.
There is only one other point I need mention. In 1961 Mr. Reynolds, the landlord's agent, caused an application for outline planning permission to be made in the tenant's name, and it was granted on January 15, 1961, for not more than five houses. It is clear, however, that this was not because of any intention on the part of the tenant or her family to build on it, but simply because she wanted to buy the freehold, and there were negotiations to that end. Mr. Reynolds requested that this application be made to assist him in arriving at a valuation by testing whether the land had any development potential, and in my judgment this incident has no relevance to anything that we have to decide.
Now I have to consider, on those facts, the problem which arises under section 2 (3) of the Act in determining whether the paddock falls within the house and premises which the tenant is entitled to enfranchise. The original strict meaning of "appurtenances" required that the thing appurtenant should be of the same character as the principal subject matter. Therefore, land could not be appurtenant to land and any attempt to make it so was void. This is clearly stated in Coke upon Littleton, 18th ed. (1823), p. 121b, section 184:
"Concerning things appendant and appurtenant, two things are implied. First, that prescription (which regularly is the mother thereof) doth not make any thing appendant or appurtenant, unlesse the thing appendant or appurtenant agree in quality and nature to the thing whereunto it is appendant or appurtenant; as a thing corporeall cannot properly be appendant to a thing corporeall, nor a thing incorporeall to a thing incorporeall."
The same thing was very clearly held in Buszard v. Capel (1828) 8 B. & C. 141, where Lord Tenterden C.J. said, at p. 150: *534
"It is difficult to understand what is really meant by that part of the finding of the jury, 'that the exclusive use of the land of the river Thames opposite to and in front of the said wharf ground between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the said wharf ground and premises; but that the land itself between high and low water mark was not demised.'"
After adverting to the difficulty of understanding how the exclusive use could be demised and the land not, he continued:
"If the meaning of this finding be that the land itself was demised as appurtenant to the wharf, that would be a finding that one piece of land was appurtenant to another, which, in point of law, cannot be. If, on the other hand, the meaning be that the use and enjoyment of this land passed as appurtenant, that would be a mere privilege or easement, and the rent would not issue out of that; ..."

This strict meaning would yield to a context, however, not only in a will but also in a deed, as was shown in Hill v. Grange (1556) 1 Pl. 164, 170, where the following occurs:
"And all the four justices agreed unanimously that the averment or pleading that the land has been always appurtenant to the messuage is not good here, and also they agreed that land might not be appurtenant to a messuage in the true and proper definition of an appurtenance. But yet all of them (except Brown, justice, who did not speak to this point) agreed that the word (appertaining to the messuage) shall be here taken in the sense of usually occupied with the messuage, or lying to the messuage, for when appertaining is placed with the said other words," - that of course is a reference to context - "it cannot have its proper signification, as it is said before, and therefore it shall have such signification as was intended between the parties, or else it shall be void, which it must not be by any means, for it is commonly used in the sense of occupied with, or lying to, ut supra, and being placed with the said other words it cannot be taken in any other sense, nor can it have any other meaning than is agreeable with law, and forasmuch as it is commonly used in that sense, it is the office of judges to take and expound the words, which common people use to express their meaning, according to their meaning, and therefore it shall be here taken not according to the true definition of it, because that does not stand with the matter, but in such sense as the party intended it."
There, however, for what it is worth, it is to be observed that the word was "appertaining" and not "appurtenant." Indeed, I think the strict meaning has so far yielded to context as to be really dead and to be replaced by another, which is that all that passes on a demise as appurtenant is that which would pass without express mention: see Evans v. Angell (1858) 26 Beav. 202, where Sir John Romilly M.R. said, at p. 205: "Therefore, if these pieces of land pass at all, they must do so under the word 'appurtenances' ..." and he did not say "which they cannot do because they are land and not an incorporeal hereditament." But he went on later to say: *535
"The word 'appurtenances" has a distinct and definite meaning, and though it may be enlarged by the context, yet the burthen of proof lies on those who so contend. Prima facie, it imports nothing more than what is strictly appertaining to the subject matter of the devise or grant, and which would, in truth, pass without being specially mentioned."
That the strict meaning had acquired the signification I have mentioned must, I think, be the explanation of the fact that in Buck d. Whalley v. Nurton (1797) 1 B. & P. 53, whilst both Lord Eyre C.J. and Heath J. applied the strict rule and excluded all other lands, they held that the orchard was included in the grant.
The present position seems to me to be clearly stated by Slesser L.J. in Trim v. Sturminster Rural District Council [1938] 2 K.B. 508, where he said, at pp. 515-516:
"The question for the decision of this court is whether, in coming to that conclusion, the learned judge was correct in law. In my opinion, he was wrong in law in coming to any such conclusion. In the definition to which I have referred certain specific matters are mentioned, that is to say, any yard, garden and outhouses, and then follows the word 'appurtenances.' That word has had applied to it, through a long series of cases mostly dealing with the meaning of the word in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word 'appurtenances' which would not equally pass under a conveyance of the principal subject matter without the addition of that word, that is to say, as pointed out in the early case of Bryan v. Wetherhead (1625) Cro.Car. 17 that the word 'appurtenances' will pass with the house, the orchard, yard, curtilage and gardens, but not the land. That view, as far as I understand the authorities, has never been departed from, except that in certain cases it has been held that the word 'appurtenances' may also be competent to pass incorporeal hereditaments. Certainly no case has been cited to us in which the word 'appurtenance' has ever been extended to include land, as meaning a corporeal hereditament, which does not fall within the curtilage of the yard of the house itself, that is, not within the parcel of the demise of the house."
That confines "appurtenances" to the curtilage of the house.
Mr. Edwards-Jones argued that the present legal meaning is wide, and is indeed the same as the popular meaning foreshadowed as long ago as the third year of the reign of Philip and Mary in Hill v. Grange, 1 Pl. 164. He submits that the legal meaning of the word today comprehends anything used and occupied with, or to the benefit of, the house, either as a matter of convenience or as an amenity, but in the face of Trim's case I do not think it possible so to hold.
But if that be not the legal meaning (and in my view it is not) then Mr. Edwards-Jones says that there is here a context which will give it that wider meaning. He relies on the fact that the word "appurtenances" in section 2 (3) follows the words "garage, outhouse, garden, yard"; *536 secondly, that the definition includes the words "... let to him with the house and ... occupied with and used for the purposes of the house," and he rightly points out that although one might use a right of light, one certainly could not occupy it; and thirdly that the subject of incorporeal hereditaments is so comprehensively dealt with by section 10. If indeed context be needed to enable the word "appurtenances" to include corporeal, as distinct from incorporeal, hereditaments, I would agree, but I see nothing in that context to enlarge the meaning of the word "appurtenance" beyond the curtilage of the house.
Alternatively he says, on the facts of this case the paddock is in any event within the curtilage. He relied on the fact that the house, garden and paddock were all let as one entire unit, but I think that in itself is not relevant - certainly not of much weight. But he relied also on the evidence of Mr. Walters that the land is vital to the enjoyment of the house, that the house and field are one unit and that there is a clear view to the south. He also relied strongly on the evidence of Mr. Rees, who is a surveyor and who said: "In my view the paddock is an essential element in the use of this type of house; any purchaser would expect some land with it." This evidence, however, and the rest of the evidence as to user, which I need not review in detail, goes, I think, no further than to show that the paddock is a valuable amenity. It does not make it an appurtenance and it does not show it to be within the curtilage of the house. Mr. Edwards-Jones submits that the paddock is all part of the residential unit and that we ought to take a broad, common sense, view of the word "appurtenance" itself, or of the definition of "house and premises" as a whole, and if necessary, to treat the paddock as part of the house itself or as being within the word "garden." But the Act is not one dealing with residential units. It is one giving people whose houses are held on long leases at a low rent security of tenure in their homes, and it specifies what is meant by "house and premises."
Without in effect not following Trim v. Sturminster Rural District Council [1938] 2 K.B. 508, which I am not prepared to do, even though it may be distinguishable, I cannot go along with these submissions of Mr. Edwards-Jones, or adopt the wide construction which he would seek to put upon the section, and I bear in mind also what I have already adverted to, but not, I hope, giving it too much weight, that this is a section which gives the tenant a compulsory right of purchase, and is thus expropriatory.
Mr. Edwards-Jones relied very much on a number of cases under section 92 of the Lands Clauses Consolidation Act 1845, but there the problem was different. Here, as I have said, we are dealing with an expropriatory Act. whereas there the court was considering the converse, a section protecting the landlord from undue expropriation. I do not think these cases help very much, but perhaps I should refer to two of them.
The first is Barnes v. Southsea Railway Co. (1884) 27 Ch.D. 536. There there was a house which fronted on to a highway; there was land in front of the house, between the house and the road with a way to the front of the premises; behind it there was a yard and over against the boundary walls some buildings described as kennels, and behind it a laid-out garden. The whole of that area and property was enclosed within *537 one boundary, and in the corner there were double gates giving access to a paddock outside that boundary. There ran from the double gates to another highway a path, or road, giving access from that highway to the rear of the premises. The railway company wished to acquire a part of that back way in and a part of the paddock and the owner claimed, under section 92, that they could not do that but were bound to take the house as a whole. He succeeded in that contention.
Mr. Edwards-Jones says that that is a decision that the paddock was considered to be part of the house. It may be that that can be spelt out of the relief claimed, because the notice of motion sought to restrain the company from taking further proceedings to assess the amount of the compensation and from entering upon or taking any other proceedings for the purpose of obtaining possession of the land comprised in the notice, save upon the condition that they should acquire the whole house.
Reading the judgment, however, I think that the ratio decidendi and all that the court was dealing with was the road which ran across the paddock and not the rest of the paddock itself. But even if it be otherwise, this was a special case in that it afforded the rear access to the premises so that there was a direct nexus between the paddock and the rest of the property enclosed in the boundary to which I have referred. Bacon V.-C. in his judgment said, at p. 542:
"To his house so constructed the entrance for visitors is on one side, and the entrance and the exit for the use and enjoyment of the house is on the other side; and for that purpose he, the owner of the house, has made a part of his piece of land into a roadway by which he carries away from his house all the refuse or all that needs to be carried away, and by which he gets from the railway station coals, goods, and other necessaries; and that forms the entrance to the backyard of his house."
In my view this case is really against him because, unless one stops at the curtilage of the house, when one seeks to give a secondary meaning to "appurtenance" beyond the strict legal meaning, there is nowhere to stop, short of the whole of the demised premises, apart from the qualification in section 1 (3) of the Act, which says:
"This Part of this Act shall not confer on the tenant of a house any right by reference to his occupation of it as his residence (but shall apply as if he were not so occupying it) at any time when - (a) it is let to and occupied by him with other land or premises to which it is ancillary; ..."
Once one departs from the curtilage, I think that one might produce some extravagant results. This objection is supported by what Bacon V.-C. said in the Barnes case, quoting from Pulling v. London, Chatham and Dover Railway Co. (1864) 3 De G.J. & S. 661. The relevant quotation is at p. 544:
"Then the Lord Justice says further, 'If, indeed, it is to be held that these fields are part of the appellant's house, I do not see why every part of a large park would not be entitled to be considered as part of the mansion standing in the park, and to pass by a conveyance of the mansion.'"
*538 The other section 92 case which I would mention is that of St. Thomas's Hospital (Governors) v. Charing Cross Railway Co. (1861) 1 J. & H. 400. But there the court was dealing actually with the building, albeit it was a detached new wing, and with part of the garden. So that case, in my judgment, affords no support for Mr. Edwards-Jones' argument.
In my view it is impossible to treat this paddock as part of the house simpliciter, so I reject that. Likewise, for reasons which I will give in a moment, in my view it cannot be regarded as part of the garden. However, the garden is not itself part of the house and it would, I think, be extraordinary if, that being so, this paddock, separated from the house by the garden, could be regarded as part of the house.
So far as the garden is concerned, Mr. Edwards-Jones says that you can have a formal cultivated garden and a wild garden, and no doubt it is true that some people do have such a corner, or part, in their pleasure garden. But when you have, as here, a cultivated garden and a piece of rough pasture ground separated from one another, and apparently marked as separate in the lease plan, I do not think it is possible to regard that rough pasture (the paddock) as being garden. So in the end, in my judgment, the crux of the problem becomes: Is this within the curtilage?
The word "curtilage" is defined in the Shorter Oxford English Dictionary, 3rd ed. (1973) as "A small court, yard, or piece of ground attached to a dwelling house and forming one enclosure with it." Note 7 in Stroud's Judicial Dictionary, 4th ed. (1971), p. 663 suggests that it may be wider than that. We have looked at some of the cases cited in Stroud, but I do not think they afford us any assistance. What is within the curtilage is a question of fact in each case, and for myself I cannot feel that this comparatively extensive piece of pasture ought to be so regarded, particularly where, as here, it was clearly divided off physically from the house and garden right from the start and certainly at all material times.
Mr. Edwards-Jones has threatened that the consequences of this construction of the section would be that one would find all over the country large numbers of small pieces of land which could not be enfranchised and which would be left in the hands of the respective landlords as property of no real use or value to them, although the various tenants, if they could have enfranchisement, would have obtained value and benefit out of those small pieces of land. But I do not think that in practice that would be so, although the Act does not, of course, necessarily give the tenant the right in every case to everything contained in his demise.
In that connection I would conclude my reasoning by citing the concluding words of Upjohn L.J.'s judgment in Clymo v. Shell-Mex & B.P. Ltd. (1963) 10 R.R.C. 85, a case in which he quoted with approval the passage which I have read from Slesser L.J.'s judgment in Trim's case. Upjohn L.J. said, at pp. 98-99:
"This appeal was said to raise some important questions of principle upon which guidance was required, but we cannot see that it raises any question of principle at all. The whole problem is a question of mixed fact and law but depends very largely on the facts. Provided a piece of land satisfies the concept of being an appurtenance, it is a question of fact and circumstance whether it is an appurtenance."
*539 In my judgment, for the reasons which I have given, this piece of land does not satisfy the concept of being an appurtenance but what the position will be in other cases will depend first upon the question of law whether the piece of land in question does satisfy that concept, and secondly whether on the facts of the particular case it ought to be regarded as an appurtenance.
For these reasons I would allow the appeal, discharge the declaration that has been made and substitute the counter-declaration which I have read.
I have reached the conclusion, like Goff L.J., that this appeal succeeds. As we are differing from the judge, who gave a most careful judgment, and in deference to the arguments to which we have listened over a period of some four days, which have included the citation of authority as far back as the reign of Queen Mary Tudor as well as of more recent date, I will endeavour to give my own reasons.
In the ultimate analysis it seems to me that the determination of this appeal depends upon the true construction of a very few words in section 2 (2) of the Leasehold Reform Act 1967. We have been referred to a number of decisions upon other statutes in which the word "appurtenance" occurs, notably section 92 of the Land Clauses Consolidation Act 1845. We have also been referred to other decisions on the Housing Act 1936 and the Housing Act 1957, where the same word has appeared. We have also, as Goff L.J. said at the end of his judgment, been referred to the decision of this court in Clymo v. Shell-Mex & B.P. Ltd. where the same word appears in a different context in the Rating and Valuation Act 1925.
This word makes its appearance throughout the reports in a number of different contexts. Sometimes it has arisen for consideration as a matter of the construction of a will or a deed, and on other occasions as the matter of the construction of a statute. The meaning that is to be given must depend upon the context in which it appears.
If one looks at the history of the use of the word "appurtenant" there seems to be no doubt that originally conveyancers did give it an exceedingly restricted meaning. Goff L.J. referred to Hill v. Grange, 1 Pl. 164. I quote a passage which appears just before the passage which Goff L.J. quoted. It is at p. 170:
"And afterwards all the four justices argued, all whose arguments I heard except the beginning of Staunford's arguments" - Staunford was apparently a justice of the Common Bench - "and what I here affirm touching the beginning thereof, I report upon the credible information of others. and they all argued to the same intent, and agreed unanimously that land could not be appurtenant to a messuage in the true sense of the word appertaining. For a messuage consists of two things, viz. the land and the edifice, and before it was built upon it was but land, and then land cannot be appurtenant to land."
One therefore starts from that basic meaning, which was repeated by Sir John Romilly M.R. in Evans v. Angell, 26 Beav. 202, 205; but it is also clear that that being a restricted meaning, that construction will *540 yield without great difficulty to the context in which the word appeared; and indeed, later the passage to which Goff L.J. referred in Hill v. Grange, and much relied upon by Mr. Edwards-Jones, shows that even as far back as 1556 the courts were ready to give a wider interpretation to the word "appurtenant" than that which the strict doctrine of the conveyancers of the day required. Whether it is right to say that today the strict meaning is dead or whether it would be better to say that a context in which this word should be given a strict meaning would now be extremely rare, is perhaps more a matter of language than anything else.
For my own part, I confess that I was attracted by Mr. Sher's first though not his main point that in the context in which this word is used in section 2 (3) it might be possible, even today, to give the word its strict meaning. My reason for so thinking is that when one looks at the context of the subsection, immediately before the word "appurtenances" one finds "garage, outhouse, garden, yard" - all corporeal hereditaments; it occurred to me that it was at least a possible view that in that context and following four specific corporeal hereditaments, the intention was to use the word "appurtenances" in its strict meaning. But the more I have listened to the arguments and considered these other cases, the more I am led to the conclusion that in this context it is impossible to give this narrow meaning to this word, and I think Mr. Edwards-Jones is right when he said that to give it this narrow meaning makes nonsense of the rest of the language, because it cannot be said that a party can occupy or use an incorporeal hereditament such as an easement of light.
So I start from the view, as does Goff L.J. that the word "appurtenances" has here to be given its wider meaning. But that is not to say that it should be treated as synonymous with what Mr. Edwards-Jones has called "a residential unit as a whole." One has to consider section 2 (3) in the context of the Act as a whole, and I ask myself - to what is the tenant entitled under this section? He is entitled to demand the enfranchisement of the house and the premises, provided that he is, as a first condition, the tenant of a leasehold house. But the Act does not go on to say that he shall be entitled to the enfranchisement of the house and premises, the premises being the whole of that which he occupies by reason of the demise from which his right arises. It would have been very easy to have defined the scope of the tenant's entitlement under section 2 (3) as the whole of the property which the tenant occupies under the demise, and to have said that he should be entitled to enfranchise the whole of what Mr. Edwards-Jones would call "the residential unit." That would not have been difficult to enact, but the Act does not so state. The Act states that that which he is entitled to enfranchise is the house (which is given what I might call an inclusive definition) and the premises, which are given an exhaustive definition; that exhaustive definition, to which Goff L.J. has already referred, is that "the premises" must be taken to refer to any garage, outhouse, garden, yard and appurtenance.
In my judgment, therefore, the question is whether or not (leaving on one side the further argument that this paddock forms part of the house or of the garden - and for the reasons Goff L.J. has given I think it is impossible to say that it is either) this paddock can fairly be said to be *541 an appurtenance of the house, giving "appurtenance" a reasonably wide meaning, though not treating it as synonymous with all the land instantly occupied by the tenant seeking enfranchisement.
It is at this point that one does get some assistance from the cases. It seems to be clear that the cases show that the courts have never yet, even when treating "appurtenance" as apt to cover a corporeal hereditament, gone as far as construing the word as including land which does not itself fall within the curtilage of the house in question; and, like Goff L.J., I think it would be almost impossible to decide this case in favour of the tenant without ignoring the decision of this court in Trim v. Sturminster Rural District Council [1938] 2 K.B. 508. Goff L.J. has read the relevant passage from the judgment of Slesser L.J. at pp. 515-516 and I shall not repeat it; but I would draw attention to the fact that that passage was expressly approved by Upjohn L.J. giving the judgment of the court in the Clymo case, to which reference has already been made. Both decisions are binding on this court. They can only be departed from or distinguished, if in the particular context the word "appurtenances" can be given an even wider meaning than that which those cases show may be given to it. It seems to me that in the context of section 2 (3) of the Act of 1967 it is impossible to give any wider meaning to the word than to treat it, as Slesser L.J. did, as in effect synonymous with the curtilage of the house.
It was suggested this morning by Mr. Edwards-Jones that even so this paddock could be said to be within the curtilage of this house. This is, as Goff L.J. has said, a mixed quantity of law and fact. There is no finding by the deputy judge that this paddock was within the curtilage, and if he had found that it was, I confess that I would have wondered whether, on the evidence, that view was correct as a matter of law.
Goff L.J. has described the geographical layout of the paddock. It is well apart from the house physically, though contiguous with the garden, and I do not think that, giving the word "curtilage" its ordinary meaning by any possible legitimate construction can it be extended so as to include the paddock which the tenant is seeking to enfranchise.
So, for those reasons, in addition to the reasons which Goff L.J. has given, I have reached the conclusion that, with all respect to the judge's contrary view, the paddock cannot be said to be part of the curtilage of the house, and unless it can it is not an appurtenance within the subsection, and, since it is not, I do not think it is possible for the tenant to succeed.
I would only add this, I do not think it right to describe this statute as confiscatory legislation, it is a statute which obliges a landlord to enfranchise the tenant at a price fixed by the statute; rather, it is in the nature of a compulsory purchase. But where someone is seeking to exercise such a right given by statute it seems to me that it is for the person seeking to exercise that right to show that on the facts found he can properly bring his claim within the language of the statute which confers that right upon him; in my judgment the tenant cannot do so.
I would allow the appeal, set aside the declaration granted by the deputy judge, and subject to hearing counsel, substitute the alternative declaration to which Goff L.J. referred at the end of his judgment.
I agree; I also would only add something of my own out of respect for the judge and for the arguments which have been presented to us.
The word "appurtenance" in English law is a term of art which, according to its original and strict meaning, where the principal subject matter is land, does not include land but is restricted to incorporeal rights: see Coke upon Littleton, 18th ed. (1823), 121b, the passage which Goff L.J. has read; Hill v. Grange, 1 Pl. 164; Buszard v. Capel, 8 B. & C. 141; Evans v. Angell, 26 Beav. 202; Lister v. Pickford (1864) 34 L.J.Ch. 582 and Cuthbert v. Robinson (1882) 51 L.J. Ch. 238.
It would seem that the verb "appertain" may not perhaps have quite so technical a meaning. I note that in Evans v. Angell, 26 Beav. 202 Sir John Romilly M.R. said, at p. 205:
"In the first place, it is to be observed, that the word here is simply 'appurtenances,' not 'lands appertaining to,' or any equivalent words. It must, therefore, be distinguished from that class of cases which rest on such words. This distinction is taken in Hearn v. Allen (1627) Cro.Car. 57."
He says, at p. 206:
"There is a still further class of cases which must be distinguished from those to which I have already referred, where the words are not simply 'appurtenances,' but 'lands appurtenant' or 'lands appertaining thereto,' and the like. They rest on a totally different footing. ..."
But the technical meaning of the word "appurtenance" will yield to a context and perhaps, with the passage of years, it has become easier for it to do so. Thus in a will the word may carry land if the context and circumstances indicate that the testator so intended: Buck d. Whalley v. Nurton, 1 B. & P. 53 and Cuthbert v. Robinson, 51 L.J.Ch. 238.
In a statute, if the legislature uses a technical term, it should in my opinion be taken to use it in its technical sense unless it is plain that something else was intended. I agree with the view expressed by Goff L.J. that in an Act such as the Leasehold Reform Act 1967, which, although it is not a confiscatory Act is certainly a dispropriatory Act, if there is any doubt as to the way in which language should be construed, it should be construed in favour of the party who is to be dispropriated rather than otherwise.
In Clymo v. Shell-Mex & B.P. Ltd. 10 R.R.C. 85, it was held (see per Upjohn L.J. at p. 93) that the word "appurtenances" as used in section 22 of the Rating and Valuation Act 1925, in the context in which it is there to be found, extends to land described as appurtenant to houses or buildings. It was I think clear from the context afforded by section 22 (1) and (4) of that Act that the word there was used as applying to land. In such a case the question of what corporeal property is included as appurtenant in any particular case must depend in part on the construction of the instrument and in part on the circumstances of the case; in other words, the question is one of mixed law and fact.
In the absence of some contrary indication the word "appurtenances," *543 in a context which shows that it is used in a sense capable of extending to corporeal hereditaments, will not be understood to extend to any land which would not pass under a conveyance of the principal subject matter without being specifically mentioned; that is to say, to extend only to land or buildings within the curtilage of the principal subject matter.
Perhaps I may refer to one other ancient authority in this connection; it is Bettisworth's Case (1580) 2 Co.Rep. 31b, where I find this stated, at p. 32a: "For when a man makes a feoffment of a messuage cum pertinentiis, he departs with nothing thereby but what is parcel of the house, scilicet the buildings, curtilage and garden; ..." See also Trim v. Sturminster Rural District Council [1938] 2 K.B. 508 and in particular the passage which has already been read by Goff L.J. and what was said in the Clymo case by Upjohn L.J. at p. 97. What lies within the curtilage is a question of fact, depending upon the physical features and circumstances of the principal subject matter.
For the purposes of this appeal I will assume in the tenant's favour that the word "appurtenances" in section 2 (3) of the Act is apt to include land. It may be that the reference in that section to "occupation" and "use" is sufficient to admit such an interpretation. It then becomes a question whether the paddock can be aptly described as an appurtenance of The Gables, for the Act only applies to the house and premises. The relevant house in this case is The Gables and the word "premises" must be interpreted in relation to the house in accordance with the definition contained in section 2 (3).
The tenant has submitted that in this case the paddock would pass under a conveyance of The Gables without any specific mention of the paddock. The paddock is said to be a parcel of the house, having been both let and occupied with it. The judge so held, but I do not find myself able to agree with that view. We have been referred to no cases going that length, except perhaps Leach v. Leach [1878] W.N. 79. Unless it can be said that in that case the description of the property devised as the testator's mansion house afforded a context justifying an extended construction of the word "appurtenances," which I very much doubt, I do not think that the very liberal construction adopted by Malins V.-C. should be regarded as good law.
What then is meant by the curtilage of a property? In my judgment it is not sufficient to constitute two pieces of land parts of one and the same curtilage that they should have been conveyed or demised together, for a single conveyance or lease can comprise more than one parcel of land, neither of which need be in any sense an appurtenance of the other or within the curtilage of the other. Nor is it sufficient that they have been occupied together. Nor is the test whether the enjoyment of one is advantageous or convenient or necessary for the full enjoyment of the other. A piece of land may fall clearly within the curtilage of a parcel conveyed without its contributing in any significant way to the convenience or value of the rest of the parcel. On the other hand, it may be very advantageous or convenient to the owner of one parcel of land also to own an adjoining parcel, although it may be clear from the facts that the two parcels are entirely distinct pieces of property. In my judgment, for one corporeal hereditament to fall within the curtilage of another, the *544 former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole. The conveyance of that messuage or parcel by general description without reference to metes or bounds, or to the several component parts of it, will pass all those component parts sub silentio. Thus a conveyance of The Gables without more, will pass everything within the curtilage to which that description applies, because every component part falls within the description. The converse proposition, that because an item of property will pass sub silentio under such a conveyance of The Gables, it is therefore within the curtilage of The Gables, cannot in my opinion be maintained, for that confuses cause with effect.
If a conveyance of The Gables simpliciter will pass all the component parts of what lies within the curtilage, to add the words "and the appurtenances thereof" adds nothing to the effect of the conveyance so far as those component parts are concerned. This was recognised by Sir John Romilly M.R. in Evans v. Angell, 26 Beav. 202, 205, and by Slesser L.J. in Trim v. Sturminster Rural District Council [1938] 2 K.B. 508. So construed, the word serves no purpose save as a conveyancing precaution of the kind which was effected before 1881 by the addition of numerous and often inappropriate general words to parcels described in a conveyance.
Under the Act we are concerned with the enfranchisement of a leasehold house occupied as a dwelling house, in the instant case The Gables. The tenant is entitled to enfranchisement of that house and the premises, and the term "premises" is defined in section 2 (3). In the present case the words "garage, outhouse, garden, yard" are not applicable. So the question is whether the paddock can be properly recognised as an appurtenance of the dwelling house. "Appurtenance" for this purpose is in my judgment confined to what is within the curtilage of The Gables. So the question comes to this: Whether the paddock is within the curtilage of the house. In other words, would the paddock pass under a conveyance of "all that house known as The Gables"?
The tenant has submitted that the house and the paddock all constitute one residential unit but, as Goff L.J. has stressed in the judgment which he has delivered, there is nothing in the Act about residential units; we have to consider what are the premises as defined, which go with the house. I am quite ready to accept that the common ownership of the *545 house and the paddock is advantageous to the occupant of the house and that the availability of the paddock to the occupant of the house may be something which adds to the value of the right to occupy the house. It does so, however, in my view because the common ownership of the house and the paddock provides an amenity, or a convenience, for the occupants of the house which enhances the value of the house; but the paddock can serve that purpose perfectly well without being part and parcel of the house.
The evidence established that the garden has at all material times been surrounded by a fence, fencing it in with the house and separating it from the paddock, a fence in which there was a gate until the date which has been mentioned in Goff L.J.'s judgment. But the presence of the gate does not in my judgment detract from the fact that the garden was separated physically from the paddock by a fence. The garden no doubt serves the intimate domestic purposes of the house, and the enjoyment of those uses of the garden is an integral part of the enjoyment of the house as a residence. The enjoyment of the paddock serves, as I say, to provide what may be a valuable amenity and convenience but is not, I think, a use of a kind such as to negative the fact that the paddock was at all material times separated from that plot of land, namely the garden, within which the house is situate.
For these reasons, which are substantially those which have already been expressed by Goff L.J. and Roskill L.J., I am unable to agree with the conclusion at which the judge arrived. I reach the conclusion that the paddock is not within the curtilage of the house and so, within the true construction of the Act, cannot be regarded as an appurtenance of the house.
Consequently in my judgment this appeal succeeds.
May I just add that I respectfully agree with what has fallen from Buckley L.J. with regard to the decision of Malin V.-C. in Leach v. Leach [1878] W.N. 79; it is a decision which may have been dictated, unless something supported it other than what appears in the very brief report, more by sympathy with the widow than with regard to the accuracy of the language used.