We use cookies to give you the best experience possible. By continuing we’ll assume you’re on board with our cookie policy

Linvestment CC v Hammersley and Another Supreme Court of Appeal Essay Sample

essay
  • Pages: 2
  • Word count: 459
  • Rewriting Possibility: 99% (excellent)
  • Category: law

Get Full Essay

Get access to this section to get all help you need with your essay and educational issues.

Get Access

Introduction of TOPIC

This case overturns the established case law by holding that the owner of servient tenement can in fact change the route of a defined servitude without the consent of the dominant owner if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs. It is not clear what implications this would have for undefined servitudes, but the Court’s reasoning would seem to apply equally well in that case.

Facts
Two men own portions of a farm. The one man’s property is subject to a registered and precisely defined right-of-way servitude in favour of the other’s property. The owner of the servient tenement wished to change the route of the defined right of way at his own expense when the original route became inconvenient to him. The owner of th

e dominant tenement refused to consent to the change on allegedly unreasonable grounds. The servient

Sorry, but full essay samples are available only for registered users

Choose a Membership Plan
owner brought the matter before the High Court to grant an order allowing the change. The High Court rejected the claim, so the applicant appeals to the present court.

Legal question
Can the owner of a servient tenement freely change the route of a defined servitude?

Reasoning
As in the court a quo, it is assumed that the appellant’s allegations are true (that is, the first respondent’s refusal to consent is unreasonable, and the appellant is unduly inconvenienced by the present route). It is acknowledged that the appellant’s claim goes against established law.
Typically the servient owner in respect of a precisely defined servitude can change the route only with the dominant owner’s consent. But comparative jurisprudence reveals that there is a clear trend away from strict adherence to contractual rights to a utilitarian power of lawful relocation of servitudes. The common law must therefore be developed in accordance with s 173 of the Constitution to accommodate changing circumstances, to escape the burdens imposed by past owners, and to alleviate gross and unjustified inconvenience.

Answer to legal question
Yes, such relocation is permitted if (a) the status quo is materially inconvenient to the servient owner; (b) the relocation occurs on the servient tenement; (c) the relocation will not prejudice the dominant owner; and (d) the servient owners pays all costs.

Outcome
The appeal is upheld, with the parties ordered to pay their respective costs (since the appellant may yet fail on the facts, and the respondents could not have predicted the court’s reasoning).

We can write a custom essay on

Linvestment CC v Hammersley and Another Supreme Co ...
According to Your Specific Requirements.

Order an essay

You May Also Find These Documents Helpful

A Critique of Natural Law

Natural Law is a concept that has caused ambiguity throughout the history of Western thought. There is a multitude of incompatible ideas of natural law that have caused even those who are in basic agreement on natural law theory to have opposing notions on the particulars. In spite of this confusion, there have been enough advocates among natural law thinking in Western society to make it possible to identify its major criticisms: 1. Natural law is immutable and is rooted in nature. This defines for man what is right, just, and good, and which ought to govern its actions. (Einwechter, 1999, p.1) 2. The universe is governed by reason, or rational principle which provides a basis for determining justice of man made laws. (Einwechter, p. 1) 3. Natural law is the same for all human beings and at all times. (Cragg, unit 13, part 2) In this paper, I will...

International Law Vs National Law

International law and national law are often in a conflict on some certain cases where it is hard to determine whether an international law will prevail or vice versa. On the other hand, many theorists are ultimately concerned with a conflict between the two systems and that they have labored in an effort to assign a paramount rank to one system or the other to avoid the potential clash. Therefore, this paper will highlight three crucial points in order to obtain a great understanding upon international and national law. Firstly, we will examine the definition and mechanism of international and national law in order to distinguish the function of both laws. Secondly, we will identify the relationship between international and national law. Lastly, we will focus on harmonizing both laws and creating a consensus in cases dealing. Keywords: International, National, Enforcement, Court, State INTRODUCTION In the midst of a war...

The world of feminist research

In the world of feminist research, there is a diversity of issues that can be studied, many of which are sensitive topics. An issue I chose to focus my research on is female genital mutilation (FGM). I have found that more research needs to be conducted on FGM, and it should be done in a way that respects the rights of the individuals and the culture in which it is rooted and practiced. FGM originated in Africa. The practice also occurs in the Middle East, parts of Asia, and in immigrant communities in Europe and North America. It was, and remains, a cultural, and religious practice. Female genital mutilation (FGM) is also known as female circumcision and is performed on young women before they reach puberty. There are four types of FGM practiced, but the first three are the most practiced. My main objective is to find out why the...

Popular Essays

logo

Emma Taylor

online

Hi there!
Would you like to get such a paper?
How about getting a customized one?