Anderson v Cleland

• Jurisdiction: Ireland
• Judgment Date: 14 February 1910
• Date: 14 February 1910
• Docket Number: (1908. No. 7531.)
• Court: Court of Appeal (Ireland)

Anderson

and

Cleland (1).

K. B. Div.

Appeal.

(1908. No. 7531.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Lease — Construction — Reservations and exceptions — Purpose of demise — “Water — course” — Natural stream conveyed partly through culvert — Ownership of culvert — Obligation on lessor as owner of culvert to keep same in repair, notwithstanding absence of any covenant by him to do so — Damages for injury by flooding.

A lease for twenty-one years of demesne lands to be used as a dairy or pasture holding, and expressed to be made for the lessor's temporary convenience pending the development of the land for building purposes, excepted and reserved to the lessor, for his exclusive use and benefit, inter alia, “rivers and rivulets, lakes, pools, water, and water-courses, and roads, with all necessary power and dominion over the same, with power to the lessor to divert, embank, and apply the said rivers, … water, and water-courses, as the lessor should see convenient or expedient to direct and appoint, and also excepting and reserving unto the lessor all and every such reasonable roads and ways to … springs, wells, and places of watering cattle, as have formerly been used, or shall hereafter be found necessary or useful to the lessor.”

Four natural streams converged at a point near the middle of the demised lands, and were conveyed thence by an artificial channel or culvert. There was no covenant in the lease imposing the obligation to keep this culvert in repair upon either lessor or lessee, but there were covenants by the lessee at the end or sooner determination of the term to deliver up the premises, and, inter alia, “all water-courses” in good repair and condition. There was a clause in the lease empowering the lessor on demand to take up possession of the whole or any part of the demised lands for the purpose of building.

Held, in the king's Bench Division by Boyd and Kenny, JJ., diss. Dodd, J., that on the true construction of the lease the flowing water merely, and not the culvert, was reserved to the lessor.

Held, by Dodd, J., and by the court of Appeal, that the culvert was reserved to, and was the property of, the lessor, who was therefore as regards the lessee, who occupied the position of an adjoining owner, bound to maintain the culvert in such a state of repair as would prevent damage to the lessee by flooding.

The culvert having collapsed on three occasions from obstruction and want of repair, and the lands having been in consequence flooded and seriously

damaged, a special jury who viewed the lands awarded the lessee £300 damages.

In the absence of any ground for supposing that the amount awarded was unreasonably out of proportion to the damage actually caused, the Court of Appeal, affirming the view taken by Dodd, J., refused to disturb the verdict on the ground that the damages were excessive merely by reason of the clause for resumption of possession by the lessor on demand.

Action for negligently, and in breach of duty and agreement (1), omitting to cleanse and maintain a water-course alleged to be the property of the defendant, under the exceptions and reservations in a lease dated the 16th May, 1904, made between the defendant of the one part, and the plaintiff of the other part, by reason of which the lands of the plaintiff were flooded. The plaintiff also claimed an injunction.

The defendant traversed all the allegations in the statement of claim, contended that no cause of action in point of law was shown, and counter-claimed for damages in respect of certain alleged breaches by the plaintiff of covenants in the said lease. The questions arising on the counter-claim are not proposed to be dealt with in this report, which only relates to the issue raised in the original action.

The case was tried before Gibson, J., and a common jury in Belfast, at the Ulster Winter Assizes, 1908, when the jury, who viewed the lands, found a verdict for £300 for the plaintiff in the original action, and a verdict for £40 for the defendant on the counter-claim.

The question in the original action was whether the duty of maintaining the water-course in proper repair and condition lay on the plaintiff or on the defendant; and this turned on the construction of the lease.

This lease, which demised to the plaintiff part of Stormont Castle Demesne, known as Castlehill, containing 117a. 3r. 25p., to be used as a dairy or pasture holding, commenced by a recital that it had been admitted by the lessee, as between himself and the lessor, that the lands were building lands, and that the lessor

had agreed, “for his own temporary convenience, pending the construction of roads and avenues, and the general development of said lands, and their permanent letting for building purposes,” to make the lease.

The demise of the lands was made “excepting and always reserving out of this demise unto the lessor, for his exclusive use and benefit, all manner of game, fish, and royalties whatsoever, and all mines, beds, pits, and quarries of coal, iron, lead, and copper, and all other metals and minerals of whatsoever description, and all marble, freestone, limestone, slate, and other stones, and all manure called marl, fuller's earth, clay for making bricks and pipes, and gravel for building or other uses or purposes, and all timber and fruit trees, wood, underwoods, bog-timber, and wood, underground moss, and turbary for cutting and making turf, and rivers and rivulets, lakes, pools, water, and water-courses, and all necessary power and dominion in every respect over the same; and also reserving to the lessor power and liberty to divert, embank, and apply the said rivers, rivulets, lakes, pools, water, and water-courses in such manner as the lessor shall see convenient or expedient to direct and appoint, and also excepting and re-serving unto the lessor all and every such reasonable roads and ways to … springs, wells, and places of watering cattle, as have formerly been used, or shall hereafter be found necessary or useful to the lessor.”

The term of the lease was twenty-one years from the 1st of May, 1904. The rent reserved was as follows:—For the half year ending 1st of November, 1905, £117 15s.; for the next four years £235 10s. annually; for the next six years £265 annually; and for the remainder of the term £294 16s. 4d. annually.

The lease contained a covenant by the lessee to “keep in repair, and preserve in good order, repair, and condition all the fences, roads, walls, paths, and sewers that now are upon or in said premises, or that hereafter be made in, through, or over the premises hereby demised, or intended so to be, and so deliver up the said roads, walls, paths, drains, sewers, and all ditches, gates, stiles, hedges, banks, bridges, water-courses, and enclosures in, upon, or around the said premises in good order, repair, and condition, at the end or sooner determination of this demise.”

There was a further covenant (inter alia) by the lessee as follows:— “That the lessee shall and will, at the end or sooner determination of this demise, deliver up all the said premises, and all additions and improvements thereon, together with all the fixtures, gates, stiles, hedges, ditches, banks, bridges, drains, water-courses, fences, and enclosures for the time being, upon or belonging to the said premises or any part thereof, except such fixtures and buildings as the lessee shall be entitled to remove under or by virtue of any Act of Parliament, and which the lessor shall not have elected to purchase, in such good and complete repair as aforesaid, and in all respects in such state and condition as shall be consistent with the due performance of all the covenants and conditions hereinbefore contained, and on the part of the lessee to be done and performed.”

The lease contained a clause empowering the lessor at any time on demand, without any previous notice, to take up the whole or any part of the lands which might be required or demanded for building purposes, or for the construction of roads or avenues for the development of the land for building purposes.

Four natural open streams flowed through portions of the demised lands, and from a point about the middle of the lands were conveyed through a covered water-course, or culvert, in a south-westerly direction to the southern boundary adjoining the Upper Newtownards Road.

Evidence was given (practically uncontradicted) that the culvert became obstructed, and that it collapsed on three occasions, May, 1907, October, 1907, and December, 1908. Very serious flooding of the lands took place, which the jury found was, to a substantial extent, caused by the obstructions in the culvert for which the defendant was to blame, and which he should have removed. The learned Judge held that the burden of keeping the culvert in repair lay on the defendant, and so instructed the jury, notwithstanding the requisition of the defendant's counsel, who asked for a direction on this point in the defendant's favour.

The defendant moved to set aside the verdict for the plaintiff in the original action, and to enter a verdict for the defendant on the ground that on the pleadings and on the true construction of the lease the plaintiff had no cause of action, and in the alternative for a new trial of the original action on the grounds (inter alia) of misdirection and non-direction by the learned Judge, and that the damages were excessive.

Ronan, K.C., and D. M. Wilson, K.C. (with them Pigot), for the defendants.

Bates, K.C., and Moore, K.C. (with them Andrews), for the plaintiff.

Dodd, J.:—

This is an application that the judgment, verdict, and findings at the trial be set aside, and consequent relief granted. The findings in the original action and on the counter-claim are challenged. The notice of motion covers every conceivable point on...