Lovett v Fairclough (1991)

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Lovett v Fairclough (1991) 61 P. & C.R. 385

LAND LAW – PROPRIETARY ESTOPPEL/ESTOPPEL BY CONVENTION – PROFIT IN GROSS

Facts

The defendant owned an estate adjoining a river owned by the claimant. His predecessor in title had fished from the river for a long period of time and thus acquired a ‘profit of piscary in gross’ right, and the defendant continued to fish from the river in the same manner, believing himself to be entitled to. The claimant brought an action in trespass against the defendant. 

Issue

The issue in this case was whether the defendant’s predecessor’s rights attached to the land, such that a successor in title could take advantage of it without an assignment of the right.

A secondary issue was whether the defendant’s mistaken belief of entitlement gave rise to an estoppel by convention (also known as proprietary estoppel).

Held

The High Court held that the defendant could not take the benefit of his predecessor’s rights, as they did not endure to the land. The court held that, in contrast to easements and profits a prendre, profits in gross were personal rights, not land rights. As such, for a successor in title to have such a right, the predecessor would need to make an assignment, which had not occurred here.

The High Court also held that no proprietary estoppel arose. Proprietary estoppel, in the absence of a positive representation by the claimant that the defendant has a property interest in the land, requires the claimant to be aware that the defendant is mistaken as to his proprietary entitlements and silently allow him to detrimentally rely on this mistake in an unconscionable fashion.

In this case there was no representation or knowing silence leading to detrimental reliance: it was therefore not unconscionable for the claimant to assert trespass.

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