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Published: Fri, 12 Oct 2018
Muskett v Hill and Tozer (1839) 132 E.R. 1267
LAND LAW – LICENSES COUPLED WITH A GRANT – ASSIGNMENT TO THIRD PARTIES
A miner was granted a license to search and mine for metal on the defendant’s land, and to keep and use any metal which he found for his own purposes. The miner purported to assign this by deed to the claimant, including the right to access the land in order to mine and take the metal. The defendant obstructed the claimant’s ability to exercise this purported right to mine by preventing the claimant from coming onto the land.
Licenses create personal rights and as such are generally not capable of being assigned to third parties, in contrast to proprietary rights which are normally assignable. This means that the recipient of a purported assignment of a license generally cannot enforce the license against the grantor.
Relying on this rule, the defendant claimed (among other things) that the purported assignment did not result in the transfer of any right to access the land to the claimant. One of the central issues in this case was therefore whether licenses are ever capable of assignment.
The Court held that a grant of permission to mine and used metals creates a proprietary interest (likely a profit a prendre) which is capable of assignment. A grantor cannot defeat the effective use of the proprietary interest by revoking a license which is necessary to access the land to make use of the right, and it followed from this that any effective transfer of that proprietary right had to be accompanied by the transfer of this irrevocable license also.
As such, this case sets out the rule that a license which is coupled with a proprietary interest is capable of being assigned with that interest.
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