Thomas v Sorrell (1673) Vaugh 330

Key Points

A licence is permission from an owner of land (licensor) to the licensee to use the land for a specific purpose and is not a property right

This case also defines different categories of licence, including bare licences which are licences given without any consideration from the licensee

Facts

  • The Crown demanded that D, a tavern owner, pay a penalty of £450 for having sold wine without a licence, contrary to the Taxation Act 1660
  • The 1660 Act said it would not apply to “the Master, Wardens, Freemen, and Commonalty of the Mystery of Vintners of the City of London, or to any other city or town corporate”
  • D claimed that he had a licence in his capacity as a member the Mystery of Vintners of the City of London
  • D relied on letters patents under the Great Seal whereby Kings James incorporated the Company of Vintners in the City of London, by the name of Master, Warden, Freemen, and Commonalty of the Mystery of Vintners to sell wine non obstante the Statute of 7 E. 6. Wines Act 1553

Held (Court of Common Pleas)

In favour of the Crown; the royal patents were incapable of modifying the taxation provisions

Vaughan CJ

Bare licences

A bare licence is simply the giving of personal permission by the landowner for the licensee to enter and remain on the land. A bare licence effectively confers the right only of not being a trespasser so long as they comply with the terms of the licence; it does not confer any higher status than that.

“A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a mans park, to come into his house, are only actions, which without licence, had been unlawful”: p.351

Licence coupled with a grant

A licence coupled with a grant is where the licence is linked to an interest in the land and is a property right, e.g. a licence to go on to land to collect wood, which is called a “profit”.

“But a licence to hunt in a mans park, and carry away the deer kill’d to his own use; to cut down a tree in a mans ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree; but as to the carrying away of the deer kill’d, and tree cut down, they are grants”: p.351

Commentary

Viscount Simon cited Thomas v Sorrell in Winter Garden Theatre v Millennium Productions [1948] AC 173 as authority for the proposition that “the effect of a licence by A to permit B to enter upon A’s land or to use his premises for some purpose is in effect an authority which prevents B from being regarded as a trespasser when he avails himself of the licence”: p.187

Likewise, Denning LJ in Errington v Errington [1952] 1 KB 290 said that “the classic definition of a licence was propounded by Vaughan C.J. in the seventeenth century in Thomas v. Sorrell…The difference between a tenancy and a licence is, therefore, that, in a tenancy, an interest passes in the land, whereas, in a licence, it does not”: p.298