Published: Fri, 12 Oct 2018
Muskett v Hill (1839) 5 Bing (NC) 694
CONTRACTUAL LICENSES – ASSINGMENT – LICENSE COUPLED WITH INTEREST
The claimant was a mining group which had been purportedly assigned a person’s right to mine and keep metals and minerals from the defendant’s land. This right was accompanied by a contractual license allowing the original grantee to enter the land to exercise their right to mine, and the assignment to the claimant purported to also assign the license. The defendant tried to exclude the claimant from the land, and the claimant sued in response.
Ordinarily, licenses are a form of non-proprietary, personal right which can be revoked at will by the grantor and which cannot be assigned to third parties. The defendant in this case relied on this general rule to claim that the assignment of the license was ineffective, and so the claimant had no right to be on the land. The issue in this case was whether the license could be assigned in circumstances where it accompanied a separate interest and was necessary to make use of that interest.
The Court found in the claimant’s favour.
It was held that where a license is granted coupled with a proprietary interest (in this case likely a profit à prendre to remove metal from the land), such that the license is necessary to use that interest, the license cannot be revoked. An irrevocable license of this nature can be assigned along with the proprietary interest, since otherwise the assignee would not be able to make any practical use of the assigned interest.
This case established the rule that where a contractual or other form of license is granted for the purposes of exercising a proprietary interest, that license can not be revoked, and can be assigned, contrary to the general rule.
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