Barry v Lowry

• Jurisdiction: Ireland
• Judgment Date: 07 November 1877
• Date: 07 November 1877
• Court: Exchequer (Ireland)

Exchequer.

Before FITZGERALD, DEASY and DOWSE, BB.

BARRY

and

LOWRY.

Tickle v. Brown 4 A. & E. 369, 382.

Daves v. StephensENR 7 C. & P. 570.

Bailey v. Appleyard 8 A. & E. 161.

Beggan v. M'Donald Ante, 362.

Prescription — User for forty years — 2 & 3 Wm. 4, c. 71 — 22 Vict. c. 42 — Uninterrupted enjoyment — Acquiescence.

BARRY v. LOWRY (1). Prescription- User for forty years-2 3 Wm. 4, c. 71-21 22 Viet. c. 42- Uninterrupted enjoyment-Acquiescence. To an action of trespass q. c. f. the Defendant pleaded a user as of right for forty years of a way over the Plaintiff's lands from a public highway ; there was evidence that, during the whole period, the Defendant used the way without interruption, but that the Plaintiff erected across the way agate which he kept locked for the last sin years at least, allowing a key to be given to the DefenÂdant and others using the way :-Held that, in the absence of evidence that the key was given to the Defendant in consequence of his assertion of a right, the fact of its being given did not constitute an acquiescence in the user by the Plaintiff, and that there was, therefore, no evidence of enjoyment as of right proper to be submitted to the jury, TRESPASS q. c. f., tried. before Fitzgerald, J., at the Waterford Spring Assizes, 1877. 'The plaint, dated the 31st of October, 1876, contained two counts, for breaking and entering the Plaintiff's close and breaking his gate and fences. The Defendant pleaded, (1) traverse ; (2) twenty years' user of a right of way to a well upon the Plaintiff's close, in right of a passage in the Defendant's possession ; (3) forty years' user of same ; (4) a public right of way over the Plaintiff's close to the well. The Plaintiff, besides other replications which are immaterial for the purpose of this report, replied to the plea of forty years' user as follows : (1) traverse ; (2) that, before the commencement of the user relied on, the lands had been demised by the then owner in fee, by lease dated the 10th of February, 1801, to one 'Cooke ; which lease subsisted during the period of thirty years, portion of the period of forty years ; and that, after the determiÂnation of the lease, the Plaintiff, being heir-at-law of the lessor, .and entitled to the reversion expectant on the determination of the lease, within three years next after the determination of the lease, (1) Before FITZGERALD, DEASY and Dower, BB, 2 L 2 484 THE IRISH REPORTS. [I. R. Exchequer. resisted the claim of the Defendant in respect of the alleged 1877. right. BARRY It...