Beggan v M'Donald

• Jurisdiction: Ireland
• Judgment Date: 18 November 1878
• Date: 18 November 1878
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., MAY. C.J., and MORRIS, C.J.

BEGGAN

and

M'DONALD.

Bright v. WalkerUNK 1 C.M. & R. 211.

Wilson v. StanleyUNK 12 Ir. C. L. R. 245.

Papendick v. BridgwaterENR 5 E. & B. 177.

Tickle v. BrownENR 4 Ad. & E. 378.

Pye v. MumfordENR 11 Ad. & E. 672.

Wright v. WilliamsENR 1 M. & W. 77.

Wilson v. StanleyUNK 12 Ir. C. L. R. 345.

Bright v. Walker 18 Q. B. 568.

Tapling v. JonesENR 11 H. L. C. 304.

Wright v. WilliamsENR 1 M. & W. 106.

Prescription Right of way User for forty years Lease for years Title to easement acquired as against lessee, though defeasible by reversioner 2 & 3 Wm. 4, c. 71, ss, 2, 7, & 8 22 Vict. c. 42.

560 LAW REPORTS (IRELAND). [L. it. L Appeal. 1878. Moitais, C. J J S. & W. I have nothing to add to the judgments pronounced, except my Solicitors for the Plain s: Barrington Co. Solicitors for the Defendant : Alma Hackett. Appeal. BEGGAN v. II`DONALD (1). 1878. Prescription-Bight of way-User for forty years-Lease for years-Title to Nov. 17, 18. easement acquired as against lessee, though defeasible by reversioner-2 4- 3 Wm..4, c. 71, ss. 2, 7, & & 22 Viet. c. 42. right of way may be acquired, as against a lessee for years, by uninterÂÂrupted user as of right for a period of forty years, during the entire of which period the lease has been. in. existence, though the owner of the reversion has not acquiesced in such user, and the dominant and servient tenements are held under different lessors. Under such circumstances the right to the easement becomes at the expiraÂÂtion of the period of forty years absolute and indefeasible as against the lessee for the residue of the term, though liable to be defeated by the reversioner within, three years after the determination of the lease. The doctrine of Bright v. Walker (2) does not apply where the enjoyment on which the right of the easement depends has been for a period of forty years. In an action of trespass quare clausum fregit, the Plaintiff was tenant of lands under a lease for forty-five years, of which about half a year was unexÂÂpired at the time of action brought, the Defendant being a lessee of other lands under a different lessor. Upon a plea of user as of right for forty years before action, of a right of way over the Plaintiff's lands, the Defendant obtained a verdict. There was no evidence that the owner of the reversion expectant on the determination of the Plaintiff's lease had acquiesced in such user. On a motion to enter a verdict for the Plaintiff, pursuant to leave reserved, Held, that, notwithstanding the reversioner's non-acquiescence in the user relied upon, the verdict for the Defendant should stand. (1) Before BALL, C., MA.; C. J., and (2) 1 C. M. & R. 211. MORRIS, C.J. APPEAL by the Plaintiff from an order of the Court of Exche- . Appeal quer discharging a conditional order to change the verdict had for 1878. AN the Defendant into, a verdict for the Plaintiff with nominal damages, BEG vGF. pursuant to leave reserved at the trial. 11`DONALD. See the case reported, I. R. 11 C. L. 362. The action was tried before Fitzgerald, B., at the Fermanagh Spring Assizes, 1877. The Plaint contained two counts for trespass quare elausum fregit. The pleas of the Defendant material to the question reÂÂserved were a plea of user as of right for twenty years of a way ever the Plaintiff's land from a public highway to his own land, and a similar plea of user for forty years. It appeared that the Plaintiff's land was held by him under a lease dated the 1st May, 1832, for a term *of forty-five years. There was no evidence to show acquiescence on the part of the Plaintiff's lessor in the user of the way by the Defendant and those from whom he derived, who were lessees for years under another landlord. The jury found that there had. been an enjoyment of the way by the Defendant and his predecessors for the respective periods of twenty and forty years; and on the findings the learned Judge directed a verdict for the Defendant, reserving leave to the Plaintiff to move to have the verdict entered for him with nominal damages if the Judge ought to have so directed. A conditional order having been obtained on behalf of the PlainÂÂtiff pursuant to the leave reserved, the Defendant showed cause, and the Court below unanimously held that the Plaintiff was enÂÂtitled to succeed on the plea relying on a twenty years' user ; but as to the plea relying on a forty years' user, the Court was equally divided, Panes, C. B., and Dowse, B., holding .(diss., FitzÂÂgerald and Deasy, BB.) that on this plea the Defendant was enÂÂtitled to succeed. The conditional order was thereupon discharged, -and judgment ordered to be entered for the Defendant. From that order the present appeal was brought. Hamilton, Q. C. (with him S. Y. Johnston), for the Appellant, the Plaintiff :- 562 LAW REPORTS (IRELAND), [L. R. L. Appeal. Bright v. Walker (1) decided that unless a right of the kind 1878. claimed here by the Defendant binds the inheritance it binds BEGGAN nothing ; and in Wilson v. Stanley (2), Pigot, C.' B., says that M'DONALD. Bright v. Walker has never been overruled, and it has since that decision in Wilson v. Stanley still continued to be acquiesced in. The fallacy of the judgments in the Court below which were in favour of the Defendant was this, that they treat this right as imÂÂposing a personal liability, and not, as it really is, a burthen on the land and on the inheritance, and a right against it, and not a liabiÂÂlity imposed on the person of the occupier ; and it is on this ground that the reasoning of Baron Parke and other Judges proceeds, that unless the right binds the inheritance it binds nothing. The question really is, whether the tenant can by his acquiescence burthen the inheritance ; whilst the statute itself expressly guards-the inheritance from being being burthened by the acts of theÂÂtermor. This user under the statute is only evidence of a grant ; it does not alter the right, it is only a new way of proving an old right. The Act was merely an Act for shortening the time of preÂÂscription, and not the nature of the right ; the enjoyment for any numbers of years never gave a right, it was only evidence of the existence of the right. In Papendick v. Briclgwater (3), Lord CampÂÂbell, C. J., says :-" It would be very mischievous if it were in the power of a tenant to destroy a profit ci prendre belonging to the land which he occupies, or to impose a servitude upon it." Tickle v. Brown (4). The argument here for the Defendant, and the judgÂÂments below, treated this as a conditional, not an indefeasible, right; but as Parke, B., says-the statute nowhere speaks of two kinds of rights ; you cannot bind the servient tenement unless you have an absolute indefeasible right. What is the servient tenement ? surely not the term for years. If you enter judgment for the Defendant on this record, the combined effect of that judgment and the first two sections of the Act would be to establish an abÂÂsolute right affecting the land against the reversioner, and to give a right of way binding the inheritance ; so that the rights reserved to the reversioner under the 8th section would be wholly null and. (1) 1 Cr. M. & R. 211. (3) 5 E. & B. 177. (2) 12 Ir. C. L. R. 345. (4) 4 Ad. & E. 378. VoL. II.] -Q. 13., C. P., & EX. DIVISIONS. 563 void. The effect of the Acts was merely to shorten the time of Appeal. prescription, leaving all the old requirements of the common law 1878. just as they were before. Pye v. 3fumford (1). An Act of Parlia- BEGGAN V. ment is properly construed, not by reading each section inde- MTONALD. pendently, but by considering the whole Act as one continuous enactment. If this be done, the effect of the 8th section is to prevent the forty years' user as contemplated by the 2nd estaÂÂblishing the right until the inheritor has had three years after the expiration of the term during which it was enjoyed to resist it. No section of the Act contemplates the qualified right for which the Defendant contends, and the pleadings claim an absolute one. Holmes, Q. C. (with him Colquhoun), for the Respondent, the Defendant: This question, though there are dicta as to it, has not been decided by anything that this Court would consider a binding authority ; and in late years a distinct opinion has arisen favourable to the Defendant's contention here. For instance, in Gale on Easements (5th ed.), p. 204, it is said :-" Where, however, the full period of forty years has elapsed, as that would confer a right to the easement, subject to the condition only that the reversioner interfered within three years after the determination of the particular estate, as in the eases of conditional estates, a valid right is given as against all the world, until by the happening of the conÂÂdition the estate is defeated." That is our contention. Apart from the statute or the authorities, the proposition we contend for is not in itself unreasonable. Take the case of long terms'of years, nine hundred for instance-it would be an extraordinary thing if, whilst this statute was passed for shortening the time of preÂÂscription, that a man might for fifty years enjoy a right of way, yet the person having the reversion in the lands over which the right of way was exercised could bring an action of trespass, and succeed by showing that the servient tenement was held under a lease for nine hundred years. A man may have a right by preÂÂscription as to land against a lessee which will cease when the (1) 11 Ad. & E. 672. .564 LAW REPORTS (IRELAND). [L. R. I. Appeal. lease runs out; and why not then as to such a right as that claimed 1878. here? Before the statute a claim of a right of way by prescription BEGGAN might be defeated by showing that there was a time when the v. 3i4DoNup. right did not exist, or, amongst other modes, by showing that during the period of enjoyment the land had been held under lease, for that would be evidence that it...