Austin v The Scottish Widows' Fund Mutual Life Assurance Society

• Jurisdiction: Ireland
• Judgment Date: 29 June 1881
• Date: 29 June 1881
• Court: Court of Appeal (Ireland)

Appeal.

Before PALLES, C. B. and DEASY and FITZ GIBBON, L.JJ.

AUSTIN

and

THE SCOTTISH WIDOWS' FUND MUTUAL LIFE ASSURANCE SOCIETY

Regina v. MathiasENR 2 F. & F. 570.

Cannon v. VillarsELR 8 Ch. D. 415.

Ward v. WardENR 7 Exch. 838.

Clifford v. HoareELR L. R. 9 C. P. 362.

Drewell v. TowlerENR 3 B. & Ad. 735.

Dublin, Wicklow & Wexford Railway Company v. SlatteryELR 3 App. Cas. 1204.

Easement — Private right of way on foot — Right to carry burdens — Interference with convenient user of passage — Obstruction — Questions submitted to jury at trial — Practice, Nisi Prius — New trial — Setting aside some of several findings —

VOL. VIII.] Q. B., C. P., & EX. DIVISIONS. 385 of the 13th section is a complete answer to such a proposition ; C. P. Div. and on the simple facts of this case, the present tenant shows 1881. no title. He married a daughter of the previous tenant. He did BEAMISE not get an assignment of the lease. He merely married the CROwLEY. daughter of the tenant. An ejectment is brought in October, 1881, and he does nothing until the 13th November, and then lodged an originating notice to fix a fair rent, and then served this notice of motion. HARRISON, . :- I concur. The application must fail, upon the very reading of the Act of Parliament. The applicant does not show that he fulÂfils the condition of a party who alone would be entitled to apply to suspend or postpone pending proceedings in Courts of Law, viz., that of a present tenant ; and it is essential he should prove himÂself to be such before he can seek the intervention of the Court. Solicitor for the Plaintitf : R. W. Doherty, Junior. Solicitor for the Defendant : 2'. S. Sullivan. AUSTIN v. THE SCOTTISH WIDOWS' FUND MUTUAL LIFE ASSURANCE SOCIETY (1). June 27, 28, Easement-Private right of way on foot- Right to carry burdens-Interference 29, with convenient user of passage-Obstruction-Questions submitted to jury at trial-Practice, Nisi Prius-New trial-Setting aside some of several findings-Judicature (Ireland) Act, 1877, Schedule Rule 32. The Plaintiff was entitled to a right of way on foot through a passage across the Defendants' premises. This passage had been formerly level throughout, with the exception of a three-inch step. The Defendants raised part of the passage, causing an ascent of four with a descent of three steps. The Plaintiff brought an action for the obstruction to his right of way, caused by this alterÂation, and in his statement of claim alleged that his servants had been in the habit of carrying bales and other heavy goods along the passage. Evidence (1) Before PALLES, C. B., and DEASY and FITZ GIBBON, L..11. Va. VIII. 2 .IC Appeal. was given to show that the alterations prevented goods from being conveyed 1,881. by trucks along the passage, and that heavy burdens could only be carried Arum through it at much greater inconvenience than formerly. The jury, after viewing the premises, found, in answer to questions left to them by the Judge- r:Cis, (a) that the passage was rendered by the alterations substantially less conve- ASSURANCE nient•as a mere footway ; (b) that it was rendered substantially less conve SOCIETY. Went for persons on foot carrying such burdens as might, previously to the alterations, have been carried through it ; (c) and that the carrying of burdens on trucks was a reasonable user of the passage previous to the alterations. On the hearing of the appeal, the Plaintiff admitted that the findings upon certain other questions left to the jury were immaterial : Held, that the Judge ought to have directed the jury that no right had been shown to roll trucks or carry burdens not commonly carried by ordinary passengers in the use of a footway through the passage ; and that the first question alone ought to have been left to the jury ; but as that question apÂpeared to have been fairly and properly tried, the circumstance that other issues of a different nature had also been submitted erroneously to the jury did not form any ground for setting aside the verdict for the Plaintiff on the first question, and...