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.
Issues
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).
Decision/Outcome
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.
Updated 15 March 2026
This case summary accurately reflects the decision in Lovett v Fairclough (1991) 61 P. & C.R. 385. The core legal principles described remain good law. The distinction between profits appurtenant (which attach to land and pass with it) and profits in gross (which are personal and require assignment to pass) continues to be recognised in English land law. The article’s treatment of proprietary estoppel is broadly consistent with the general requirements established in cases such as Thorner v Major [2009] UKHL 18, which confirmed that proprietary estoppel requires a representation or assurance, reliance, and detriment, with unconscionability as the overarching test. One minor point of clarification: the article’s secondary heading equates estoppel by convention with proprietary estoppel, which is not strictly accurate — estoppel by convention and proprietary estoppel are distinct doctrines. The court in this case was concerned with proprietary estoppel; estoppel by convention is a separate contractual doctrine. This does not affect the substantive legal analysis presented, but readers should be aware of the distinction. No subsequent statutory changes or later authorities appear to have disturbed the core holdings of this case.
