Beere v Fleming and Others

• Jurisdiction: Ireland
• Judgment Date: 05 June 1862
• Date: 05 June 1862
• Court: Exchequer (Ireland)

Exchequer.

BEERE

and

FLEMING and others.

Massey v. Gubbins Long. & Town. 88, 99.

Wilson v. MackrethENR 3 Burr. 1824.

Ewart v. Graham 7 Dom. Proc. 331.

Boyle v. Olpherts Long. & Town. 320.

Earl Cardigan v. ArmitageENR 2 B. & C. 197.

M'Donnell v. M'Ginty 10 Ir. Law Rep. 514.

Bright v. WalkerENR 1 C., M. & R. 211.

Burrowes v. Hayes Hay. & Jon. 597.

Lord Courtown v. Ward 1 Sch. & Lef. 8.

Lord Waterford v. Austem Jon. 627.

Dorrell v. Collins Cro. El. 6.

Horneby v. CliftonENR 3 Dyer, 264 b.

Smith v. LloydENR 9 Exch. 562.

Irons v. DouglasUNK 3 Ir. Eq. Rep. 612.

Wright v. Tatham 5 Cl. & F. 670.

506 COMMON LAW REPORTS. T. T. 1862. Exchequer. BEERE v. FLEMING and others.* May 30, 31. 5. (Exchequer.) June To a summons Txxs was an action against the defendants for cutting turf upon a and plaint, containing bog in their possession, the turbary whereof was reserved to the counts in tresÂpass and tro plaintiff. ver, for cut ting turf upon The plaintiff, in the first paragraph of the summons and plaint, a bog granted to the defend- stated John Taaffe b , that on Taae being seised in fee-simple of the lands ants by a deed, which reserved of Makenagh, in the county of Sligo, by a deed dated the the turbary " o the plain- 22nd of December 1820, granted and conveyed them unto James to an equita- Fleming and Harloe Fleming, their heirs and assigns, as the same ble defence was pleaded to this were formerly held by Michael Feehy, " saving and reserving effect; that the very questions " unto the said John Taaffe, his heirs and assigns, all woods, under raised in this action had "woods, timber and other trees under and above ground, but not been the sub ject of a bill " the soil on which the same then were or thereafter should be and cross-bill filed by the " growing ; and all mines, minerals, turbary, patent privileges, and ancestors of the to " royalties, of what nature and kind soever ; with full and free parties this action ; the former to establish an exclusive right to turbary in the ancestor of the plaintiff, under an instrument in writing of the year 1791, the latter praying the execution of a conÂveyance to the ancestors of the defendants in the terms of the above mentioned instrument ; that the ancestor of the plaintiff having brought an action of eject,- ment for the bog in question, pursuant to deeretal order of the Court of Chancery, a verdict was found for the ancestors of the defendants, which the Court, sitting in Banco refused to set aside ; that in a second action brought by the ancestor of the plaintiff, for preventing him from cutting turf on the bog, he was nonsuited ; that the cross-suits having come to a hearing, a decree was pronounced, which remains in minutes " as the parties thereto agreed, and did act on the minutes, and submitted thereto ;" that by that decree, the bill of the ancestor of the plaintiff was dismissed with costs, and the ancestors of the defendants were declared entitled to the possession of the bog in question (inter alia); that the deed, upon the conÂstruction of which the present action was brought, was made in pursuance of that decree, and in the exact terms of the deed of 1791 ; that the judgments and decrees in the former action and suits were still in force, and that by them, the very quesÂtions raised by the first paragraph of the summons and plaint had been decided.-Demurrer thereto allowed, upon the ground that the dismissal of a bill, seeking equitable relief in respect of an instrument on which a party can sue at law, is no bar to an action at law upon the same instrument, although the decree do not state the dismissal to have been without prejudice. Held, that there is no repugnancy between a grant of " bog " and a reservation of " turbary," as turves are not the sole profit of bog. And that " turbary," not being the soil, but only a profit a apprendre, is not within the 3 4 W. 4, c. * Coraw FITZGERALD, HUGHES, and DEASY, BB. COMMON LAW REPORTS. 507 "liberty at all times to cut, fell, grub up, raise up, manufacture, and T. T. 1862. huer. "carry away the same ; and also to copse in and preserve all woods Exc eq " and underwoods that then were or thereafter might be growing BE ERE v. "on the said premises; together with full and free liberty at all times FLEMING. "to make any roads, causeways, water and watercourses, ditches, "drains, or fences, that might be found necessary." Habendum to James and Harloe Fleming, their heirs and assigns, for ever, at the yearly rent of £85, late currency. Having added, that by mesne assignments, the above rent and all rights and privileges, created and reserved by the deed of 1820, were now vested in the plaintiff, the first paragraph of the summons and plaint complained that, the defendants Richard Fleming and Edward -Frazer, who were in possession, each of one third, of the lands in question, had by their servants and undertenants " dug up and cut and carried away a " large quantity, that is to say 150 kishes, of turf, on and being " part of the turf bog on the said lands, so by said indenture of the " 22nd of December 1820 granted, and thereby wrongfully interÂ" fered with the turbary saved and reserved...