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Exclusive rights of burial and the law of real property*

Published online by Cambridge University Press:  02 January 2018

Alan Dowling
Alan Dowling*
Affiliation:
The Queen's University of Belfast
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Extract

The ability to identify arrangements affecting property as falling within one or other of the recognised categories of proprietary interest, for example tenancies, licences or easements, and as resulting in certain consequences, is not only desirable, but is in the interest of certainty for all concerned essential. If an occupant of land is a tenant, certain known consequences follow: for example, the occupant has statutory protection which would not be the case were he merely a licensee. Again, if I cross your land merely by your permission, my privilege may be withdrawn at any time, whereas if I have an easement to do so, you cannot stop me. Arrangements which do not behave according to the rules, by appearing to create one type of interest while possessing the attributes of another, either undermine the recognised rules or are exceptional cases which must be acknowledged as such.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 4 , December 1998 , pp. 438 - 452
Copyright
Copyright © Society of Legal Scholars 1998

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Footnotes

*

I would like to thank Professor Mark Thompson of the University of Leicester and my colleague Brian Childs for their helpful comments while this article was being written.

References

1 ‘Churchyard’ is used here to signify a burial ground attached to a parish church of the Church of England, or, prior to its disestablishment, the Church of Ireland. ‘Cemetery’ is used to refer to burial grounds attached to other religious denominations or operated by secular authorities.

2. See Faculty Jurisdiction Measure 1964, s 8; De Romana v Roberts [1906] P 332; Re West Pennard Churchyard [1991] 4 All ER 125.Google Scholar

3. Eg Cemetery Clauses Act 1847, s 40; Burial Act 1852, s 33 (repealed); Consecration of Churchyards Act 1867, s 9; Consecration of Churchyards Act 1868, s 1; Local Authorities' Cemeteries Order 1977, SI 1977/204, art 10; Public Health (Ir) Act 1878, s178.

4. Eg South Metropolitan Cemetery Act 1836, s 8.

5. (1828) 8 B & C 288.

6. [1989] 2 All ER 431.

7. [1929] 1 Ch 375.

8. (1940) 74 ILTR 49.

9. [1995] 1 All ER 387.

10. Ibid at 393.

11. 1997 NSW LEXIS 438, Supreme Court of New South Wales Equity Division.

12. Connor v Moran (1894) 29 ILTR 32 Google Scholar; Hoskins-Abrahall v Paignton UDC [1929] 1 Ch 375. See also London Cemetery Co v Cundey [1953] 2 All ER 257 Google Scholar. In Re AB Ltd (1957) 1 MLJ 143 Google Scholar the Court of Appeal in Singapore held that the sale by a cemetery operator of exclusive rights of burial did not constitute realising assets for the purposes of a taxing statute. Note, however, the possibility that title may pass in cases where a burial vault is located in a private chapel of a church, and title is not vested in the incumbent: St Botolph-without-Aldgate (Vicar) v Parishioners [1892] P 161 at 167 Google Scholar.

13. See R v St Mary Abbot's, Kensington (1840) 12 Ad & E 824 Google Scholar; London Cemetery Co v Cundey [1953] 2 All ER 257 Google Scholar.

14. (1970) 10 DLR(3d) 338.

15. (1918) 46 DLR 583 at 585.

16. Jennings v Mc Carthy (1908) 42 ILTR 217 at 218 Google Scholar, per Palles LCB; Representative Church Body v Crawford (1940) 74 ILTR 49 Google Scholar at 52, per Judge Moonan; Strathcona Cemetery Co v Taylor [1924] 3 DLR 625 at 628 Google Scholar, per Beck JA.

17. The requirement that as an easement the right should be created by deed can be dealt with by an application of the rule in Walsh v Lonsdale: see Hubbs v Black (1918) 46 DLR 583 at 588, per Riddell J.Google Scholar

18. (1828) 8 B & C 288.

19. (1894) 28 ILTR 150.

20. (1918) 46 DLR 583 at 589.

21. For an analysis of the development of the requirement of a dominant tenement, and an argument for recognition of easements in gross, see Sturley, M F ‘Easements in gross’ (1980) 96 LQR 557 Google Scholar. For the search for a dominant tenement in connection with burial rights see Dowling, J A ‘Exclusive rights of burial’ (1992) 43 NILQ 228 Google Scholar.

22. ‘It is true that… it is within the competence of Parliament to confer or create interests without regard to those incidents which are regarded as requisite to an agreement inter partes. Thus Parliament may create interests in gross as it may, I assume, create a tenancy without provision for the payment of rent and notwithstanding the absence of any term certain. but the absence of the incidents ordinarily appropriate to the existence of a tenancy or an easement is, at the least, an important consideration for the determination whether, upon the true construction of the statute, the creation of any such interest was intended’: Newcastle Corporation v Wolstanton Ltd [1946] 2 All ER 447 at 453 Google Scholar, per Evershed, J. The technicalities of the law of easements led McNair, J. in London Cemetery Co v Cundey [1953] 2 All ER 257 Google Scholar to reject as unreliable any analogy between the grantee of an easement and the grantee of an exclusive right of burial.

23. (1890) 44 Ch D 12 at 26, per Lopes LJ.

24. Bevan v London Portland Cement Co Ltd (1892) 67 LT 615 Google Scholar; Holywell Union and Halkyn Parish v Halkyn Drainage Co [1895] AC 117 Google Scholar. See also authorities discussed by Evershed J at first instance in Newcastle Corporation v Wolstanton Ltd [1946] 2 All ER 447 Google Scholar.

25. Southport Corporation v Ormskirk Union Assessment Committee [1894] 1 QB 196 Google Scholar; Lee v Stevenson (1858) EB & E 512 Google Scholar; Simmons v Midford [1969] 2 Ch 415 Google Scholar (overruled in part on a different point in Melluish v BMI (No 3) Ltd [1995] 4 All ER 453.Google Scholar) See also Wright v McAdam [1949] 2 KB 744 Google Scholar; Copeland v Greenhalf [1952] Ch 488 Google Scholar; London & Blenheim Estates Ltd v Ludbroke Retail Parks Ltd [1993] 1 All ER 307 Google Scholar (for appeal, see [1993] 4 All ER 157); P Luther ‘Easements and exclusive possession’ (1996) 16 LS 51; C Sweet ‘The “easement” of tunnelling’ (1916) 32 LQR 70; J F Garner ‘Statutory easements’ (1956) 20 Conv (NS) 208.

26. [1947] 1 All ER 218.

27. [1946] 2 All ER 447 at 453.

28. [1953–54] Ir Jur Rep 58.

29. See eg Cemetery Clauses Act 1847, s 40; Public Health Act (Ir) 1878, s 178. Grants of exclusive rights in cemeteries operated by local authorities are limited now to 100 years: Local Authorities Cemeteries Order 1977, SI 1977/204, art 10.

30. Smith v Tamworth City Council 1997 NSW LEXIS 438.

31. See Young, P W Exclusive rights of burial’ (1969) 39 ALJ 50, 53.Google Scholar

32. See, however, discussion of the requirement of a licence from the Home Secretary in Re St Luke’ s, Holbeach Hum [1990] 2 All ER 749.Google Scholar

33. [1955] 2 All ER 504 at 508.

34. 1997 NSW LEXIS 438.

35. See Megany, R E and Wade, H W R The Law of Real Property (London: Stevens, 5th edn, 1984) p 801 Google Scholar; Gray, K Elements of Land Law (London: Butterworths, 2nd edn, 1993) p 901 Google Scholar.

36. Megarry and Wade, above n 35, p 801; Gray, above n 35, p 900; Dawson, I J and Pearce, R. A. Licences relating to the Occupation or Use of Land (London: Butterworths, 1979) p 47 Google ScholarPubMed. See also Hounslow LBC v Twickenham Garden Developments Ltd [1971] Ch 233.

37. (1868) LR 3 CP 523. See also Hubbs v Black (1918) 46 DLR 583.

38. (1888) 21 QBD 323

39. Hoskins-Abrahall v Paignton UDC [1929] 1 Ch 375.Google Scholar

40. Smith v Tamworth City Council 1997 NSW LEXIS 438.

41. [1953] 2 All ER 257.

42. The basis for McNair J's decision on this ground was R v St Mary Abbot's, Kensington (1840) 12 Ad & E 824. See discussion above, p 440.Google Scholar

43. For the liability of successors in title in relation to positive obligations, see now Rhone v Stephens [1994] 2 All ER 65.Google Scholar

44. (1908) 42 ILTR 217.

45. Matthews v Jeffrey (1880) 6 QBD 290 Google Scholar; Reid v Belfast Corporation (1907) 41 ILTSJ 107 Google Scholar; Reed v Madon [1989] 2 All ER 431 Google Scholar.

46. Matthews v Jeffrey (1880) 6 QBD 290. See also Reed v Madon [1989] 2 All ER 431.Google Scholar

47. [1990] 2 All ER 749.

48. Crawford v Bradley (1940) 74 ILTR 49.Google Scholar

49. Reed v Madon [1989] 2 All ER 431.Google Scholar

50. Smith, R J Property Law (London: Longman, 1996) pp 459–461 Google Scholar; Dawson, I J and Pearce, R. A. Licences relating to the Occupation or Use of Land (London: Butterworths, 1979) pp 169–172 Google ScholarPubMed. The House of Lords has recently confirmed that a licensee with exclusive possession has title to maintain an action in nuisance: Hunter v Canary Wharf Ltd [1997] 2 All ER 426. See also Newcastle Corporation v Wolstanton Ltd [1946] 2 All ER 447, in which Evershed J at first instance held that the plaintiff as licensee with exclusive possession of pipes laid under land had sufficient title to maintain an action in nuisance for withdrawal of a right of support for the land in which the pipes were located. While the case was reversed on appeal, the basis of the decision of the Court of Appeal was that there was no such right, rather than the absence of title in the plaintiff.

51. In Hickey v Sullivan (1894) 29 ILTR 150 Google Scholar the court dismissed the plaintiff's action for trespass on the basis that he had not shown any entitlement to an exclusive right of burial, but pointed out that in any case the cause of action should have been case rather than trespass. See also Bryan v Whistler (1828) 8B&C 288; Spooner v Brewster (1825) 3 Bing 136 and discussion by Evershed J at first instance in Newcastle Corporation v Wolsranton Ltd [1946] 2 All ER 447. For a precedent of a statement of claim alleging disturbance of exclusive right of burial, see Reid v Belfast Corporation (1907) 41 ILTSJ 107.

52. Connor v Moran (1894) 29 ILTR 32.Google Scholar

53. (1940) 74 ILTR 49.

54. See also Campbell v Musgrave (1902, unreported) (Palles LCB), cited in Leslie, J B Irish Churchwardens' Handbook (Dublin: APCK, 1979) p 48 Google Scholar.

55. (1940) 74 ILTR 228.

56. [1989] 2 All ER 431.

57. (1940) 74 ILTR 49.

58. (1856) 22 Beav 596. See, however, the views of Salmond and Walford on the case in E O Walford ‘The nature and effect of licences’ (1947) 11 Conv (NS) 165, 171.

59. [1993] 1 NZLR 415.

60. Ibid at 429.

61. [1995] 1 All ER 387. See also Hoskins-Abruhall v Paignton UDC [19291 1 Ch 375 (payment for erection of vault not conferring any property in vault erected); Nugent v Nugent (1897) 31 ILTR 142 (tree grown with consent on grave held to be part of the land so removal by freeholder not actionable).

62. Ibid at 393.

63. (1825) 3 Bing 136, 139.

64. (1613) 2 Bulst 150.

65. (1615) Cro Jac 366.

66. (1612) 12 Co Rep 105.

67. (1469) YB 9 Edw 4 f14 p18.

68. (1612) 12 Co Rep 105.

69. Megarry and Wade, above n 35, p 547.

70. Melluish v Bmi (No 3) Ltd [1995] 4 All ER 453 Google Scholar (overruling on this point Simmons v Midford [1969] 2 Ch 425, in which Buckley J had held that pipes laid in the servient land were not intended to and therefore did not become the property of the landowner); Elitestone Ltd v Morris [1997] 2 All ER 513. See also Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22.

71. See Faculty Jurisdiction Measure 1964, s 3(4), defining the owner of a monument as ‘the person who erected the monument in question and, after his death, the heir or heirs at law of the person or persons in whose memory the monument was erected’. See further Re St Andrew's, Thornhaugh [1976] 1 All ER 154 Google ScholarPubMed; Re St Bartholomew's, Aldbrough [1990] 3 All ER 440; Re St Michael & All Angels, Tettenhall Regis [1996] 1 All ER 231.

72. Cemetery Clauses Act 1847, s 44.

73. Consecration of Churches Act 1867, s 10.

74. (1880) 6 QBD 290.

75. (1908) 42 ILTR 217.

76. In Canada it appears from Strarhcona Cemetery Co v Taylor [1924] 3 DLR 625 that an exclusive right of burial would pass to the deceased's next of kin.Google Scholar

77. 1997 NSW LEXIS 438.

78. London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 4 All ER 157 at 163, per Millett LJ.Google Scholar

79. In any event, the recognition that exclusive rights of burial can amount to easements if annexed to a dominant tenement (Waring v Griffiths (1758) 1 Burr 440) seems to preclude any argument that the nature of the right is inimical to recognition as a proprietary right.Google Scholar

80. (1970) 10 DLR(3d) 338.

81. The difficulty in England posed by leases in perpetuity does not exist in Ireland, where fee farm grants, giving the grantee an estate in fee simple while yet creating the relation of landlord and tenant between the parties, seem to afford the best of both worlds.