such goods, not greater than the sum of 15l., such value to be determined by the magistrate. Provided always that no such order shall bar any person from recovering possession of the goods or money so delivered or forfeited, by suit or action at law, from the person to whose possession such goods or money shall come by virtue of such order, so that such action be commenced within six calendar months next after such order shall be made.

C. A. Russell, K.C. and W. R. Warren for the plaintiff.-The question raised on this appeal is as to the nature of the duty of a bailee for reward when a demand is made upon him by a person other than the bailor in respect of goods deposited with him. The Divisional Court held that it was not necessary for him to give any notice to the bailor. But it has been held that, where there are rival claimants, bailees are under the obligation to decide at their peril or to interplead. See

Glyn, Mills, Currie, and Co. v. East and West India
Dock Company, 42 L. T. Rep. 90, 92; 5 Q. B.
Div. 129.

The bailee clearly owes a duty when a demand is made upon him by a third person towards his bailor, and is liable in damages for non-performance of that duty. Although there is no actual decision to be found in the reports that he is obliged to give notice in writing to his bailor, it is submitted that that duty is to be inferred from the authorities. In this case the bailee is clearly to blame for the loss, because, although he knew the address of the bailor, he did not communicate with her or in any way give her an opportunity of coming forward when the hostile claim was made. They also referred to

Ross v. Edwards and Co., 73 L. T. Rep. 100;

Ex parte Davies; Re Sadler, 45 L. T. Rep. 632;
L. Kep. 19 Ch. Div. 86.

Leslie Scott, K.C. (Heber Hart with him) for the defendant.-If there is any duty, as has been contended on behalf of the plaintiff, imposed on a bailee to protect the interests of the bailor, there is no evidence here of any breach of that duty unless it be that the duty is not merely to take all reasonable steps, but also to send notice to the bailor. The question is whether this is claim in tort for conversion of the goods or in contract for failing to carry out an implied term in the contract of bailment-namely, to take reasonable care of the goods. [VAUGHAN WILLIAMS, L.J.-There may be a third casethat is to say, where there are circumstances which prevent a person from taking advantage of an order made in his favour: (see Wood and others v. Dunn, 15 L. T. Rep. 411; L. Rep. 2 Q. B. 73; and Allen v. Dundas, 3 Term Rep. 125.] If it is for conversion, the only question is whether the defendant exercised any dominion inconsistent with that of the plaintiff. If, on the other hand, the claim is based on contract, the claim being that the defendant would exercise due diligence to prevent the removal of the goods by, e.g., the summary order of a magistrate, there is no causal nexus here between the act of the defendant and the result which followed. The bailment was in fact determined by the order of the magistrate. The effect of sect. 40 of the Metropolitan Police Courts Act 1839 is to transfer possession of the goods, and it is only that with which the bailee is concerned. When the order is once made, it is obligatory on him to comply

[CT. OF APP.

with it. There is no authority to show that you can go behind the order made by a court of competent jurisdiction unless you can prove fraud or collusion, and that is not suggested here. Neither can it be said that the order was the natural result of a breach of duty on the part of the defendant; the order was in fact brought about by the improper action of the magistrate himself. He referred to Union Credit Bank and Davies v. Mersey Docks and Harbour Board, 81 L. T. Rep. 44; (1899) 2 Q. B. 205; Biddle v. Bond, 6 B. & S. 225.]

Warren, for the plaintiff, in reply.

VAUGHAN WILLIAMS, L.J.-This action was brought by Mrs. Ranson in the Brompton County Court, and the particulars of her claim are thus given : "The plaintiff claims the return and delivery up of her property, consisting of the household furniture and effects enumerated below, deposited for safe custody with the defendant on or about the 30th March 1910, and which the defendant has wrongfully detained and neglected to return after demand made for their delivery, or the value of the said goods, 961. 48. 6d., and damages for detention of the said goods, 31. 158. 6d. Alternatively the plaintiff claims damages against the defendant for wrongful conversion by the defendant of the said goods to his own use, 100l." Then follows a list of furniture and effects. In the action in the County Court the defendant did not dispute that the goods had been deposited by the plaintiff as her property to be warehoused by him for reward. It was not denied that prima facie he was liable for the return of the goods, and that a demand made by the plaintiff had not been complied with, but the defendant defended on the ground that, so far as the bulk of the goods were concerned, they were the subject-matter of an order made by a magistrate under the authority conferred upon him by sect. 40 of the Metropolitan Police Courts Act 1839. That section has no particular reference to goods deposited in a warehouse; it is a section which gives power to a metropolitan police magistrate upon complaint by any person claiming to be entitled to the property or possession of any goods which are detained by any other person, the value of which shall not exceed 15l., to order the goods to be delivered to the owner. This section applies to any case where goods are unlawfully detained. What happened in this case was this: The plaintiff was a married lady living separate from her husband; the goods in question were her own goods, and she deposited them with the defendant for safe custody. Under these circumstances her husband, who had no right to the goods, went to the defendant's warehouse and made application for delivery to him of the goods, which he asserted were his. The defendant, through his manager, said that the goods had been deposited with him by the wife, and that he could not give up the goods unless he was protected by a magistrate's order. Accordingly the manager's assistant (Cameron), together with the husband, went off to the policecourt to obtain an order for delivery up of the goods by the defendant, and the mode in which this was done was by the husband applying for a summons calling upon the warehouseman to show cause why he should not be ordered to hand over the goods. A day or two elapsed before the

CT. OF APP.]

hearing of the summons, but before the actual hearing the defendant, by his manager, was aware of the address of the plaintiff. As a matter of fact, before the hearing of the summons no communication was made by the defendant or his servants to the plaintiff that there was this claim by the husband for the delivery up of the goods to him. I am not going in detail into the evidence, but the letter which was written by the defendant to the plaintiff on the day after the magistrate made the order shows that he was not prevented from giving notice by the fact of not knowing the address of the plaintiff before the order was made. The order obtained from the magistrate was intended to have the effect of defeating the plaintiff's title to her goods, and, as I have already said, the defence set up here is that, without reading the whole of the section, the section is one which enables the magistrate to order delivery up of the goods, and means are given to enforce the order in these words: "Every person who shall neglect or refuse to deliver up the goods according to such order shall forfeit to the party aggrieved the full value of such goods, not greater than the sum of fifteen pounds.' And the section concludes with these words: "Provided always that no such order shall bar any person from recovering possession of the goods or money so delivered or forfeited by suit or action at law from the person to whose possession such goods or money shall come by virtue of such order, so that such action be commenced within six calendar months next after such order shall be made." The date of the magistrate's order was the 10th April, and the date of the plaint in the County Court was the 16th June.

am not quite sure that I understand the operation of the statute as suggested by Mr. Leslie Scott. However, it is not necessary to go into that, because the case has been argued on the assumption that the plaintiff cannot succeed unless she satisfies the court that her right of action is not barred by this section. But before dealing with the effect of the magistrate's order I should like to deal with the question of the duty of the defendant as bailee. The action is not really in form an action for negligence, but an action either for detinue or for conversion. Under these circumstances one wishes to know what is the duty of the bailee to the bailor. While the goods were in the possession of the bailee under a deposit made by the bailor and accepted as a bailment by the warehouseman the husband comes along, and his way of making the claim should have suggested to the bailee that the demand was not one he ought to have complied with. Prima facie his duty was to see whether the nature of the claim was such that he ought to communicate with the bailor. The claim put forward was for delivery up of the goods; primâ facie it was the duty of the bailee to protect the title of his bailor. Under these circumstances I can only say that the bailee in this case did not take such steps to communicate to the bailor the fact that a claim had been made against her goods as a reasonable man ought to have taken. In the course of his judgment in the Divisional Court Phillimore, J. said this: "I do not find that there was any duty on the part of the defendant here to do more than bring to the notice of the tribunal before which the matter came that there was another claimant to the goods. That was effectually done, but unfortunately the learned

[CT. OF APP. magistrate allowed himself to be deceived by the false statements which were made by the plaintiff's husband. So far, however, as the warehouseman or bailee was concerned, I do not think he was under any liability to do more than he did." With all respect to the learned judge, I do not agree that the only duty of the defendant as bailee was to make the statement which was made by his manager to the magistrate when the summons was granted. There were two rival claimants to the goods, and in my view it was clearly the duty of the bailee to communicate to the bailor the fact that a claim had been made against her goods, the custody of which had been accepted by him. That being so, and on the ground that there was such a duty imposed on the bailee, I think the judgment of the County Court judge, so far as the liability of the bailee is concerned, must stand. I now wish to deal with another ground on which I think the judgment of the County Court judge ought to be supported. The defence set up here really amounts to this: that the defendant acted under the compulsion of the magistrate's order, and that under those circum. stances he was bound to obey that order, and that the order, so far as the bulk of the goods was concerned, was perfectly right. But I am not satisfied that he did act under such compulsion. It is impossible to say that when the summons was taken out the defendant could have stayed away altogether or send a clerk who knew nothing of the facts of the case. That he was under an obligation to appear and make a statement is not denied. But I think there are strong grounds for saying that if the defendant had given the plaintiff notice of the summons and she had attended the hearing this order would never have been made. It was his duty to give her notice, and it was not a sufficient compliance with the requirements of his duty to tell the magistrate of her claim to the goods. But the matter does not stop there; the defendant can only rely on the order if he really acted under compulsion of the order. I have already stated that the summons was taken out by arrangement with the defendant's manager. I am not charging the defendant with collusion or fraud, but I think when he was pressed to give up the goods he wanted to be protected in his position, and so in concert with the husband he went to the police-court and got the summons taken out and he seems then to have thought that he had performed his duty, so far as the plaintiff was concerned, if he merely mentioned to the magis trate the fact that she was the person who had deposited the goods with him. The order was then made, and it is plain that there was no obligation on the defendant to give up the goods unless and until he was paid the money due to him for their custody. Whether that is so or not, at any rate that is the view taken by the defendant himself at the time. The husband was not able to pay the charges due for warehousing, and the warehouseman might have said: "You cannot have the goods until you pay the charges due in respect of them." In fact the defendant bought some of the goods and set off the price against his charges. In these circumstances I doubt whether it is true to say that he acted under compulsion of the order. The mere fact of the order being made is not sufficient unless the defendant acted under compulsion of it.

When the case came to be tried, the defendant no longer sought to justify his purchase of part of the goods, but he treated these goods as part of the deposited goods which he still had. Under these circumstances I think the defendant cannot really take advantage of the order on the basis that he acted under compulsion of it. I think this arrangement was made in order that the defendant might have the protection of the order. I have very little more to say except that I wish to call attention to one case which, I think, throws some light on the matter-viz., Wood and others v. Dunn (15 L. T. Rep. 411; L. Rep. 2 Q. B. 73), which was a case of a garnishee order. The plaintiffs were trustees for the creditors of one R. Stap under a deed made in pursuance of the Bankruptcy Act 1861, and they sued the defendant to recover a debt due from him to Stap. The defendant pleaded that in compliance with the garnishee order, and to avoid and because he could not otherwise have avoided execution, he had paid the debt to the judgment creditor. The Court of Queen's Bench gave judgment for the plaintiffs on the ground that the payment, although in obedience to the order, would have afforded no defence after registration of the deed and with notice of it. That view was not approved by the Exchequer Chamber, and the judgment was set aside. So far as the result of that case is concerned, it was one in which the garnishee order under which payment had been ordered was held to be a sufficient protection to the judgment debtor. But although that is so, I find on reading the judgments a great deal to show that one can only rely on an order as affording protection if in truth and in fact one has acted under compulsion of the order. It is not necessary for me to read the headnote at length, but the second semble is as follows: 66 Semble, also, that if the garnishee has notice of a trust deed or bankruptcy before the time for showing cause against the ex parte order has elapsed, he would be bound to show cause, and if he were to pay to the judgment creditor, instead of showing cause, the assignees could recover the debt from him." That is different from the present case, but it goes to show that the person who is affected by the order may be under an obligation to show cause against the order. Not only did the defendant not give notice to the plaintiff of the claim which was made against her goods, but when he was in the police-court and mentioned the husband's claim he in no way put the case of the bailor before the magistrate. He did not really show cause against the order being made. Under these circumstances he is, in my opinion, now estopped by his conduct from relying on the order. The principle upon which the court acts in granting protection is thus stated in the judgment in the Exchequer Chamber. Now, the plea alleges that the payment was made in order to avoid execution being levied, and because the defendants could not otherwise avoid such execution. This is admitted on the record, and, the payment being so made, we should be anxious, unless prevented by some positive statutory enactment or decided authority, to hold it a protection on the broad principle, one exemplification of which is given in Allen v. Dundas (3 Term Rep. 125), quoted by Mr. Cleasby-viz., that the law will never compel a person to pay a sum of money a second time which he had paid once

66

[CT. OF APP.

under the sanction of a court having competent jurisdiction." The conclusion to which I come is that if the defendant, instead of only caring to have an order made to protect him in handing the goods over to the claimant, had shown cause against the making of the order by giving his bailor notice, this order would never have been made. I think this order was in fact invited by the defendant and arranged by him, and therefore he cannot rely on it. In my judgment this appeal must be allowed and the judgment of the County Court judge restored.

FLETCHER MOULTON, L.J.-I am of the same opinion. I think that the importance of the case is that it calls attention to sect. 40 of the Metropolitan Police Courts Act 1839, and I do not think it will be out of place if I say a few words as to the meaning of that section. It is intended to deal with cases where goods of small value are wrongfully detained by somebody and it is desirable by reason of the smallness of the amount that there should be a summary remedy to put an end to the illegal possession. The object of the section is to change the possession of the goods where the magistrate is satisfied that they are illegally detained. Here there was a formal bailment of goods to the value of about 501., at any rate of a substantial amount which were bailed for reward by the plaintiff with the defendant as warehouseman. The date of the bailment was the 30th March. The plaintiff, who was a married woman living apart from her husband, was living with her sister at the time the bailment was made. The carman who fetched the goods for conveyance to the defendant's warehouse received formal notice of the plaintiff's address, which was not very far from that of the defendant, who in fact preserved the notice. On the 8th April a man, claiming to be the husband of the plaintiff, called at the defendant's warehouse and claimed that he was entitled to the goods, and he asked that they might be delivered up to him. The defendant's manager told him that the goods had been put in his hands by the plaintiff, and gave him her address. On the next day he came back and said he had been unable to find his wife. It was then suggested by the defendant's manager that they should go to the police-court and obtain from the magistrate an order for the defendant's protection. In my opinion it is the duty of the bailee of goods to protect the interests of the bailor and give notice to him in the event of any hostile claim being put forward. The bailee's manager's assistant then went with the husband to the police-court, and, on its being shown that the husband claimed the goods, and that the defendant refused to give them up without an order, a summons was taken out and served on the defendant's assistant manager. It was kept four days, and then he and the claimant went before the magistrate, the claimant giving evidence to the effect that the goods were his. No information was given to the magistrate as to the circumstances of the bailment or as to the value of the goods, and no notice of the claim was sent to the bailor. When the order was made, there was no evidence that it was served. The parties then went back to the defendant's office, where the claimant said he had no money wherewith to pay the defendant's charges for warehousing the goods. An arrangement was accordingly made under which the defendant bought back a portion

CT. OF APP.]

of the goods at half their value, he paying himself his charges by setting them off against the price of the goods and handing the remainder over to the claimant. Next day the defendant wrote to the bailor, at the address which he had had in his possession all the time, informing her that some of the goods deposited by her with him had been removed by order of the magistrate. Having done that, the bailee comes to the court to defend an action brought by the bailor against him for detinue or conversion of the goods by reason of the failure in the performance of his duty as bailee. I cannot imagine a more complete failure of a bailee to perform his duty, and, in my opinion, no order obtained by reason of such gross neglect could avail him in any court of justice. I think the action in the County Court was a completely undefended one. I desire to adopt the words of the president that this was an order invited and arranged for the protection of the bailee. For these reasons I think this appeal should be allowed.

FARWELL, L.J.-I am of the same opinion. The action as brought in the County Court was an action for negligence on the part of the bailee for not taking sufficient care in the custody of the goods deposited with him by his bailor. The jury found there was negligence on the part of the bailee, and the appeal is based on the ground that there was no evidence to support that finding. With regard to the proceedings that were taken in the police-court, the bailee relies on the order which was made by the magistrate under sect. 40 of the Metropolitan Police Courts Act 1839; and the County Court judge thought that an order properly obtained under that section would protect the bailee in respect of the goods handed over by him pursuant to that order. In my opinion that order does not avail him. An order of a court of competent jurisdiction is binding on all persons who are properly brought before it. It is clear that the goods in question were of greater value than 151., which would have been sufficient to exclude the jurisdiction of the magistrate, but that point was not taken. But, as I have said before, an order of the court is only binding on those persons who are properly before it, and on no one else. I acted on this principle in Brydges v. Brydges and Woods (100 L. T. Rep. 744; (1909) P. 187) when I said: "But the court has no jurisdiction, inherent or otherwise, over any person other than those properly brought before it as parties or as persons treated as if they were parties under statutory jurisdiction (e.g., persons served with notice of an administration decree or in the same interest with a defendant appointed to represent them), or persons coming in and submitting to the jurisdiction of their own free will, to the extent to which they so submit (e.g., creditors of a bank. rupt executor, who has carried on business under a power in the will, coming in to claim against the testator's estate in order to obtain subrogation to the executor's right of indemnity). But the courts have no jurisdiction to make orders against persons not so before them merely because an order made, or to be made, may or will be ineffectual without it. Even in the case of an injunction Lord Eldon says in Iveson v. Harris (7 Ves. 251, at p. 256): "I have no conception that it is competent to this court to hold a man bound by an injunction who is not a party in the cause

[K.B. DIV.

for the purpose of the cause. The old practice was that he must be brought into court so as, according to the ancient laws and usages of the country, to be made a subject of the writ." Here the magistrate purports to make an order which has no immediate effect on the rights of property; it merely purports to affect the possession of the goods. In the absence of the bailor, in my opinion, it does not bind the bailor, and the bailee cannot rely on it. The other way of putting the plaintiff's case was on the ground of negligence. The bailee knew the address of the plaintiff, and wrote to her the next day after the order was made, yet he took no steps before the summons was issued to give notice of the summons to the bailor, nor did he attempt to protect her by taking care that the magistrate should not make an order affecting her interests in her absence. In my opinion the bailee owed a duty to his bailor to protect her interests, and I do not think that he discharged that duty by calling the attention of the magistrate to the matter. If the attention of the magistrate had been properly called to the matter, he could not have made the order which in fact he did make. I think that the observations in Wood and others v. Dunn (sup.) are very relevant: "We think it is not necessary for us to decide that it would be safe for a garnishee, having been served with an order to pay, and afterwards, and before payment, receiving notice of a bankruptcy or a trust deed, after that to pay under the order without an immediate threat of execution, and without taking any steps himself to get the order set aside, or giving notice to the assignee informing him that he should pay unless the assignee got the order set aside." That is an a fortiori argument, because a garnishee owes no duty for reward as a bailee does who accepts goods. I think there was evidence of negligence in this case, and that the judgment of the learned County Court judge was right. In my opinion this appeal must therefore be allowed. Appeal allowed.

Solicitors for the plaintiff, Oswald Hanson and Smith.

Solicitor for the defendant, Lewis W. Taylor.

HIGH COURT OF JUSTICE,

Highway

KING'S BENCH DIVISION. Friday, Jan. 27, 1911.

-

Prescribed

(Before CHANNELL, BRAY, and HAMILTON, JJ.) LONDON COUNTY COUNCIL (apps.) v. HUGHES (resp.). (a) Dedication Building distance-London Building Act 1894 (57 & 58 Vict. c. ccxiii.), s. 13 (1)—London Building Act 1894 (Amendment) Act 1898 (61 & 62 Vict. c. cxxxvii.), s. 3.

The respondent was the underlessee and occupier of a house, and between her house and the next house there was a way leading into a mews, which was a cul-de-sac. She built an addition to her house, the greater part of which was within 20ft. of the centre of the roadway of (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

K.B. Div.]

the way, being the prescribed distance under the London Building Act 1894. A notice having been served by the appellants under sect. 3 of the London Building Act 1894 (Amendment) Act 1898 to set back the addition within the prescribed distance, the respondent refused to do so on the ground that the way was not a highway.

In 1844 the land on which the respondent's house and other houses were built, together with the mews and the way, being part of the Pitt Estate, was the subject of a building agreement, and in 1849, in pursuance of the building agreement, the respondent's house was demised by the freeholder for a term of ninety-nine years. There had never been any gate or barrier between the way and the road. The mews had been lighted by the public authority since 1876. In 1891 the way and part of the mews were paved by the local authority under sect. 105 of the Metropolis Management Act 1855. Since 1854 and up to the present time the Pitt Estate had been administered in Chancery. The mews and way were not included in the leases of any of the premises abutting on the mews, and by each lease rights of way were granted, but the freeholders did not part with the property therein or the possession thereof.

The magistrate found that the mews and way were

in the possession and control of the lessees of the freeholders, and that there was no evidence of an intention on the part of the freeholders to dedicate the way as a highway.

Held, that if the way was both legally and in fact in the possession and control of the lessees there could be no effective dedication as a highway; but that even if it was in the possession and control of the freeholders, there was no evidence of dedication by them.

CASE stated on an information laid by Thomas Chilvers on behalf of the appellants, the London County Council, which charged that the respondent on the 3rd Sept. 1909, on the southern side of a street leading from Campden House-road to Campden-mews, in the Royal Borough of Kensington, in the county of London and within the Metropolitan Police District, did for twenty-eight days after the service on her by the London County Council (hereinafter referred to as "the council") of a notice empowered to be served under Part 2 of the London Building Act 1894 (57 & 58 Vict. c. ccxiii.), as amended by the London Building Act 1894 (Amendment) Act 1898 (61 & 62 Vict. c. cxxxvii.), s. 3, neglect to comply with the requirements of such notice-to wit, to cause a building and the external fence or boundary of the forecourt or other space between the external walls of such building and the roadway of the said street leading from Campden House-road to Campden-mews aforesaid to be set back so that every part of the external walls of such building and the external fence or boundary of such forecourt or space should be at a distance in every direction from the centre of the roadway of such street not less than the distance permitted under Part 2 of the said London Building Act 1894, whereby she (the respondent) became liable to the penalty prescribed by sect. 200 (2) of the said London Building Act 1894 as amended by the said London Building Act 1894 (Amendment) Act 1898.

[K,B. Div.

By sect. 13 (1) of the London Building Act 1894 it is enacted as follows:

(1) No person shall erect any new building or new structure or any part thereof or extend any building or structure or any part thereof in such manner that any external wall of any such building or structure or (if there be a forecourt or other space between such external wall and the roadway) any part of the external fence or boundary of such forecourt or other space shall without the consent in writing of the council be in any direction at a distance less than the prescribed distance from the centre of the roadway of any street or way (being a highway).

Sect. 3 of the London Building Act 1894 (Amendment) Act 1898 repealed and replaced sect. 14 of the London Building Act 1894 and in effect provided that in the event of a building being erected within the prescribed distance from the centre of such a roadway as aforesaid it should be lawful for the council to serve a notice upon the owner or occupier of such building requiring him to set it back. By sect. 200 (2) of the London Building Act 1894 any person neglecting to comply with such a notice is made liable to a penalty.

At the hearing of the information the following facts were proved or were admitted by both parties

(a) The respondent is underlessee and occupier of a house, No. 43 (formerly No. 10), Campden House-road, Kensington. Between Nos. 43 and 45, Campden House-road a way about 10ft. wide, which together with the mews is known as Campden House-mews, leads out from Campden House-road and at right angles thereto into a mews which together with the way is known as Campden House-mews. The mews is a cul-de-sac, the way being the only way in or out and leading to the mews only.

(b) The respondent recently built an addition to her house-namely, a room with an ingle nook or recess from the room-towards the way upon what was a piece of land or garden occupied with and as part of her house. The great part of such extension was within 20ft. (the prescribed dis. tance) from the centre of the roadway of the way. On the 11th Aug. 1909 the appellants served on the respondent, pursuant to sect. 3 of the London Building Act 1894 (Amendment) Act 1898, a notice, dated the 5th Aug. 1909, requiring her to set back the building and the fence or boundary of such extension so that every part of the external walls thereof should be at a distance not less than the prescribed distance from the centre of the roadway.

(c) The respondent, at the instance of the freeholders of her house (who were also the freeholders of the soil of the mews and the way), refused to comply with the requirements of the notice on the ground that the way was not a highway.

(d) The history and description of the mews and way are stated in this and the following sub. paragraphs. On the 2nd Nov. 1844 a building agreement was made between Stephen Pitt and others, the then owners of the property known as the Pitt Estate, of the one part and W. Eales and J. Little of the other part. A plan referred to in this agreement was not produced, and it was stated to have been lost; but it was proved or admitted that the piece of land to which the