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Published online by Cambridge University Press: 16 January 2009
The common law doctrines relating to mixtures and improvements of personal chattels give the impression, to most English lawyers, of being somewhat mysterious. Proprietary interests come and go like ships in the night, now mingled with rights to possession, now quite separate. But although cases involving proprietary claims are not common, the issue often arises as to A's personal rights against B, where B has without A's consent expended effort on A's property, and B's personal rights against A (if any) in respect of the improvement.
1 See, inter alia, Gordon, (1955) 71 L.Q.R. 346; Jones, (1977) 93 L.Q.R. 273, esp. 288–293Google Scholar; McGregor on Damages, 14th ed., 1980, paras. 1052–1067; Palmer, Bailment, 1979, pp. 1023–1024; Sachs (1978) 41 M.L.R. 713–717; Weir [1973] C.L.J. 23; Law Reform Committee, 18th Report on Conversion and Detinue, Cmnd. 4774, esp. at para. 89.
2 (1886) 34 Ch.D. 234.
3 (1880) 5 App.Cas. 25, 39, line 36 to 40, line 5.
4 (1839) 5 M. & W. 351; 151 E.R. 149.
5 Ibid., pp. 354, 150, lines 16–21.
6 But if B should in the meantime have sold on to C, who is innocent, and A sues C rather than B, then a new statutory rule, the Torts (Interference with Goods) Act 1977, s. 6 (2), comes into play. (This is on the assumption that the 1977 Act applies to the coal trespass cases at all. See below, n. 30.) A's damages are reduced to the extent that the increased value of the goods is attributable to the improvement. Alternatively the court may order specific restitution of the improved goods, subject to the payment by A to C of an allowance representing the increase in value: 1977 Act, s. 3 (7). C will, of course, have an action against the rogue B, if he can be found, and if he is worth pursuing through the courts.
7 Cf. Reid v. Fairbanks (1853) 13 C.B. 692; 138 E.R. 1371, and see text to nn. 20–22.
8 [1892] A.C. 166, 174, col. 1, lines 35–42.
9 Ibid., lines 30–35.
10 (1841) 3 Q.B. 440n.; 114 E.R. 575n. See also Clarke v. Nicholson (1835) 6 C. & P. 714; 172 E.R. 1432.
11 Ibid., pp. 441, 576, lines 21–27
12 (1871) L.R. 6 Ch.App. 742.
13 (1880) 5 App.Cas. 25. A good discussion of the problems involved in assessing a “ fair value” is to be found in the recent New South Wales decision in Bilambil-Terranora Pty. Ltd. v. Tweed Shire Council [1980] 1 N.S.W.L.R. 465, where on the facts of the case two members of the Court of Appeal opted for the Jegon v. Vivian value, and the third for the Livingstone value.
14 See the Bilambil-Terranora case [1980] 1 N.S.W.L.R. 465, 491, para. 100, per Mahoney J.A.
15 [1892] A.C. 166, 174, col. 1 to 177 col. 1, per Lord Macnaghten, and 186, lines 14–19, per Lord Watson. See also per Lord Diplock in Broome v. Cassell &co. Ltd. [1972] A.C. 1027, 1129C.
16 [1949] 1 K.B. 295.
17 Ibid., pp. 298, lines 24–36.
18 (1853) 13 C.B. 692; 138 E.R. 1371.
19 See Rendell v. Associated Finance Pty. Ltd. [1957] V.R. 604; Thomas v. Robinson [1977] 1 N.Z.L.R. 385, and n. 50 below.
20 13 C.B. 692; 138 E.R. 1371.
21 Ibid., pp. 722, 1384, lines 34–37.
22 Ibid., pp. 729–730, 1387, lines 28–36.
23 Rosenlhal V. Alderton [;1946]Google Scholar; 1 K.B. 374.
24 In the later cases this even included, surprisingly, a profit element, representing that which would have induced the tortfeasor to undertake the work at all: Re United Merthyr Collieries (1872) L.R. 15 Eq. 46.
25 We have already seen (n. 6 above) how s. 6 (2) produces a similar result if the original owner sues a bona fide purchaser from the improver: in such a case only the purchaser need be bona fide, and the improver could be a rogue. What the law was before s. 6 (2) was enacted is not clear.
26 Damages, para. 1056.
27 41 M.L.R. 713, 714.
28 Bailment, p. 1023.
29 The Act's long title.
30 Although it may be regarded as doubtful how far the Act can apply: is coal hewn and brought to the surface goods “ improved” within s. 6? McGregor on Damages, para. 1057, thinks not, as expenses in making the goods saleable “ can hardly be properly categorised as improvements.” This seems, however, unduly restrictive of the word “ improved.” The better view, it is submitted, is that a person has “ improved ” goods if through his acts they increase in value. Thus, s. 6 defines the improver's allowance by reference to “ the extent to which… the value of the goods is attributable to the improvement.“ This view is supported by the Law Reform Committee's 18th Report, para. 89 (which summarises the then law which this provision was intended to represent), beginning: “ But where goods have acquired an increased value as a result of acts of the defendant, it is clear that, as a general rule, the plaintiff cannot…recover such increase as part of the value or as damages and this also in cases where the defendant has incurred expense in making the goods saleable." What, however, of mere maintenance of goods, e.g., looking after a pedigree cat with all the expense that that might involve? The courts might well hold that to maintain property in a particular condition, which if left alone would rapidly deteriorate, must be equivalent to a series of small improvements continually raising the condition of the property back to its original state. (But cf. Palmer, Bailment, p. 1024, and also cases on workmen's liens for effecting improvements, such as Hatton v. Car Maintenance Co. Ltd. [1915] 1 Ch. 621, and Re Southern Livestock Ltd. [1964] 1 W.L.R. 24.)
31 Patrick v. Colerick (1838) 3 M. & W. 483; 150 E.R. 1235.
32 See Anthony v. Honey (1832) 8 Bing. 186; 131 E.R. 372; but cf. Howard E. Perry Ltd. v. British Railways Board [1980] 1 W.L.R. 1375: defendant's refusal to deliver up goods temporarily during a strike, though contractually bound to do so, or even to let the plaintiffs onto the defendants' land to take it away themselves, held a conversion, and this despite the defendant's admission that the goods were the property of the plaintiffs. See generally, Palmer (1980) 9 Anglo-American L.R. 279.
33 (1886) 34Ch.D. 234.
34 Cf. the attitude of the Irish Master of the Rolls in Allison v. Jenkins [1904] 1 I.R. 341, 348–349, seemingly extending the notion of salvage to a non-maritime case. But that case is not concerned—as is salvage—with a fair remuneration for work done, but rather with recovery of a specific sum expended under compulsion to discharge the liability of another, which is a perfectly orthodox restitutionary head of recovery: see Moule v. Garrett (1872) L.R. 7 Ex. 101, which was not cited.
33 See, e.g., Ramsden v. Dyson (1866) L.R. 1 H.L. 129.Google Scholar
36 34 Ch.D. 234, 239, lines 7–9, per Marten Q.C.
37 Ibid., p. 242, line 30 to p. 243, line 11.
38 Ibid., p. 250, lines 20–28.
39 Ibid., p. 248, lines 19–24.
40 [1939] Ch. 286.
41 Cf. however the odd case of Craven-Ellis v. Canons Ltd. [1936] 2 K.B. 403, which may be explained as a case where the court proceeded on the basis, however erroneous, that there was free acceptance of the plaintiff's services as managing director by the defendant company: see per Greer L.J., p. 409, lines 35–38. Alternatively, it could be said that the services of the plaintiff were a necessary for the defendant company, much as a lunatic requires necessaries and must pay for them without request: see per Greer L.J., p. 412, lines 27–34.
42 See, e.g., Nicholson v. Chapman (1793) 2 H.B. 254; 126 E.R. 536.
43 [1950] 1 K.B. 252.
44 Bucknill L.J., p. 260 and Asquith L.J., p. 265.
45 Cf. however, the rather cryptic dictum of Brightman J. in Lloyd v. Stanbury [1971] 2 All E.R. 267, 275: the judge held that the buyer of land let into possession before completion who sees fit to improve the property cannot recover his expenditure if the seller refuses to complete, and then added “ I am not referring to any expenditure which is necessary to preserve the property.” Perhaps the judge was here referring to the possibility of claiming that a buyer of land let into possession before completion could be an agent of necessity: Great Northern Railway v. Swaffield (1874) L.R. 9 Ex. 132.
46 The Law of Restitution, 2nd ed., p. 269.Google Scholar
47 Quaere whether if the court orders the return of the goods an allowance must be ordered to be paid as a condition of the return? See below, in relation to the facts of Greenwood v. Bennett [1973] Q.B. 195.
48 Cf. however, the singular Irish case of Re Pike (1888) I.R. 23 Ch. 9, quite inconsistent with Falcke's case, though perhaps explicable by a benevolent use of the doctrine of necessaries for lunatics: see Re Rhodes (1890) 45 Ch.D. 94.
49 [1973] Q.B. 195.
50 It is not possible here to deal in any detail with the possible application in English law of the Roman law doctrine of accessio. For a discussion, see my article “ Proprietary Claims at Common Law for Mixed and Improved Goods ” [1981] C.L.P. 159. The view there put forward is that, contrary to the widely held view, accessio has no application to personalty in English law, and that accordingly the owner of an inferior chattel joined to a dominant one still has (in principle, at least) a proprietary claim to his goods. A similar result is reached where mixtures are concerned. For a discussion where specificatio is concerned, see my article “ Specificatio in the Common Law” in (1981) 10 Anglo-American L.R. 121.
51 The question whether the 1977 Act, and especially ss. 6 and 3 (7), applies in interpleader proceedings at all is a very important one, yet is nowhere expressly dealt with by the Act. It is submitted that such proceedings are not “ proceedings for wrongful interference against a person ” (s. 6 (1) ), nor are they “ proceedings for wrongful interference against a person who is in possession or in control of the goods” (s. 3 (1)). As a result, neither s. 6 (1) nor s. 3 (7) could apply to the actual facts of Greenwood V. Bennett, were they to recur.
52 [1892] A.C. 166, 176, col. 2, lines 37–43.
53 Cf. Glenwood Lumber Co. Ltd. v. Phillips [1904] A.C. 405, where the Privy Council refused to make any such allowance. Peruvian Guano was not cited, but neither was Glenwood Lumber more than " referred to ” (by counsel) in Greenwood v. Bennett. The 1977 Act, s. 3 (7), gives the court power to require the payment of an allowance as a condition of specific delivery of the goods, but the court is not obliged to do so. Since the improver is entitled to his allowance as of right under s. 6, no doubt the court will ordinarily do so.
54 [1973] Q.B. 195, 203A.
55 Ibid., p. 202BC-C, DE-EF.
56 As to the existence of this principle see per Lord Diplock in Orakpo v. Manson Investments Ltd. [1978] A.C. 95, 104C-F, and per Mahon J. in Avondale Printers V. Haggle [1979] 2 N.Z.L.R. 124, 144–155; cf. 1977 Act, s. 7 (4).
57 This is a view supported by some text-writers, such as Goff and Jones, and even some judges. For recent examples of judicial approval, albeit obiter, see Van den Berg v. Giles [1979] 2 N.Z.L.R. 111, and The Winson [1979] 2 All E.R. 35, 44.
58 See [1973] Q.B. 195, 203BC.
59 (1886) 34 Ch.D. 234.
60 Ibid., p. 248, lines 24–26.
61 Hence Bolton v. Madden (1873) L.R. 9 Q.B. 55, with which Treitel has such difficulty: The Law of Contract, 5th ed. (1979), pp. 51 63.
62 (1842) 3 Q.B. 278; 114 E.R. 513, 515, lines 24–29.
63 (1871) L.R. 6 Ch.App. 742, 761, lines 5–8.
64 (1879) 27 W.R. 793, 794, col. 2.
65 (1856) 25 L.J.Ex. 329, 332, col. 2, lines 22–23.
66 Even pro-restitution lawyers appreciate this subjectivity: cf. B.P. Exploration Co. (Libya) Ltd. v. Hunt (No. 2) [1979] 1 W.L.R. 783, 799FG-G, 803C-D. per Robert Goff J.
67 [1970] 1 Q.B. 447.
68 Ibid., p. 468C.
69 Ibid., p. 473C.
70 Materials annexed to the realty will of course pass at common law to the old lady: Gough & Son v. Wood [1894] 1 Q.B. 714, 719, lines 10–13. For the company to obtain a charge in equity there must be either knowing acquiescence by the old lady of the company's mistake (Ramsden v. Dyson (1866) L.R. 1 H.L. 129) or positive encouragement by her (Re Foster (No. 2) [1938] 3 All E.R. 610; Hopgood v. Brown 11955] 1 W.L.R. 213, 223–224).
71 Cf. Goff and Jones, op. cit., pp. 113–114. Of course, if I am right in my view that accessio has no application to personalty in English law (see n. 50 above), an improver may still have a proprietary claim based on the goods he has annexed to the improvee's chattel (realty being different, see previous note). It is the value of his labour that he cannot recover.
72 Cf. the proposals in the Law Commission's Working Paper No. 78, concerning rights of access over neighbouring land to enable the carrying out of repairs on one's own land. The Law Commission has decided in principle in favour of a right of access, grantable by some form of tribunal, where a landowner refuses permission for a neighbour to cross his land to repair his own. At present a landowner may act as “ unreasonably” (in the eye of his neighbour) as he pleases in refusing access: John Trenberth Ltd. v. National Westminster Bank Ltd. (1979) 39 P. & C.R. 104. This seems to be yet another example of the forces of “ progressive enlightenment” removing property owners' rights as the fancy takes them. The folly or shortsightedness of him that built on his own land in such a way that he would need to trample over his neighbour's land to repair (and worse, the folly of the planner that let him) seems to have been accorded little weight: see paras. 2.25, 2.26, 3.3 of the Working Paper.
73 But the legislature has forbidden self-help where recovery of dwellings is concerned: Protection from Eviction Act 1977.
