Bell and Others v The Lord Mayor, Aldermen and Citizens of The City of Belfast

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 20 November 1913
• Court: King's Bench Division (Ireland)
• Docket Number: (1913. No. 5729).
• Date: 20 November 1913

Bell and Others

and

The Lord Mayor, Aldermen, and Citizens of the City of Belfast (1).

K. B. Div.

(1913. No. 5729).

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.

1914.

Lands Clauses Acts — Compulsory powers — “Owner” — Grantor of fee-farm conversion grant — Grantee's interest acquired by agreement — Entry on lands without grantor's consent — Action by grantor for wrongful entry and waste — Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 84 — Belfast Corporation Act, 1911 (1 & 2 Geo. 5, c. cxc), ss. 3, 39 — Renewable Leasehold Conversion Act (12 & 13 Vict. c. 105), ss. 7, 20.

Held, that the owner and occupier who may consent to entry are not identical with all persons interested; and that the estate of a grantor of a

fee-farm grant, made under the Renewable Leasehold Conversion Act, was not such as to make him owner of the lands within the meaning of sect. 84.

Held, also, that liability for waste under such fee-farm conversion grant does not extend to everything which could be deemed waste as between landlord and tenant, and that although as between landlord and tenant the conversion of land into a cemetery would have been restrained, such use of his fee-simple estate by a grantee of such grant was not actionable waste.

Motion For Judgment.

The action was brought to recover damages for wrongful entry by the defendants upon lands of the plaintiffs, situate within the county borough of Belfast, and for waste for wrongfully cutting and carrying away portion of the soil of the said lands, and felling timber and trees, and for an injunction.

By virtue of a fee-farm conversion grant, dated 4th June, 1858, Charles Nicholas Delacherois Purdon became seised in fee-farm of the lands in question; and by a sub-fee-farm conversion grant dated 21st October, 1862, the lands were granted by Charles Nicholas Delacherois Purdon to John Patterson, subject to the payment of the yearly fee-farm rent of £167 0s. 2d. All the estate and interest of Charles Nicholas Delacherois Purdon in the rent of £167 0s. 2d., and in the lands, subsequently and before action brought, had become vested in the plaintiffs.

Under the Belfast Corporation Act, 1911 (1 & 2 Geo. 5, c. cxc), the defendants were empowered to acquire, inter alia, the said lands for the purposes of cemetery extension. The defendants acquired the grantee's interest under the fee-farm grant of 1862 by agreement, and on the 6th June, 1912, the deed conveying the premises to the corporation was executed. Soon afterwards the corporation entered into possession of the property. On the 3rd June, 1912, the defendants opened negotiations with the plaintiffs’ solicitors for the purchase of the rent payable to the plaintiffs. An offer of twenty-two and a half years’ purchase was made, but the plaintiffs claimed twenty-five years’ purchase plus 10 per cent. for compulsory purchase. In the course of further correspondence the plaintiffs’ solicitors warned the defendants against entering upon the premises; but at the same time threatened to make the defendants liable under the covenant to repair contained in the original grant. On the 15th May, 1913, an arbitrator was appointed to inquire into, and adjudicate upon, the claims of all persons having any interest in the lands.

On the 20th May, 1913, the plaintiffs issued the writ in the present action, and subsequently delivered a statement of claim. In paragraph 10 of the statement of claim the cause of action was set out as follows:— “On or prior to the 14th May, 1913, the defendants, contrary to the provisions of sect. 84 of the Lands Clauses Consolidation Act, 1845, and without giving to the plaintiffs, or any of them, notice of intention to acquire the said lands or notice to treat, and without the consent and contrary to the wishes of the plaintiffs, and without having paid or secured to the plaintiffs any compensation in respect of their interest in the said lands, wrongfully entered upon the said lands, and cut down and uprooted certain timber and trees growing thereon, and committed great waste and spoil on the said lands, and stripped the surface of the said lands, and dug and excavated the soil thereof, and removed soil and earth from the said lands, and commenced to lay out the said lands as a cemetery, whereby great and irreparable damage has been, and is being, done to the said lands and to the reversion and interest of the plaintiffs therein, and whereby the security of the plaintiffs for the said fee-farm rent of £167 0s. 2d. has been, and is being, greatly diminished.” The defendants, in addition to formal traverses, pleaded that they were lawfully in possession as assignees of the grantee's interest; that any act done by them was in the nature of meliorating waste; that before the issue of the writ they, by virtue of their statutory powers, had acquired the right to purchase compulsorily the plaintiffs’ interest in the said lands (if any), and in the said rent; that all acts were done and all conditions fulfilled and performed enabling them so to do; and that at the time of the issue of the writ they were the equitable owners of the plaintiffs’ interest in the land and rent, subject to the payment of such price as might be fixed by the arbitrator. In their reply the plaintiffs averred that while the defendants were empowered to acquire the lands for the purpose of extending the city cemetery, the only notification given to the plaintiffs was to the effect that the defendants required and intended to acquire the lands for street improvements, flood-prevention works, and an addition to the corporation gas-works. They also challenged the validity of the arbitration on the ground that the requirements of sect. 4 of the Railways Act (Ireland), 1851, had not been complied with.

The action was tried by Dodd, J., with a jury, at the Belfast Summer Assizes, 1913. It was found by the jury that the plaintiffs sustained no damage. In his report the learned Judge stated: “Mr. Wilson undertaking to speed the arbitration proceedings, I was inclined to hold that the plaintiffs were entitled to an injunction at the time the writ was issued, but that it should not issue for a period of six months—but I was inclined to grant the costs of this hearing to the plaintiffs. I was of Mr. Gordon's opinion that an action was not maintainable either for injury to the possession, or injury to the reversion, but I thought the plaintiffs were entitled to sue for a breach of statutory duty. In any event, I thought public bodies must be kept strictly within their powers. I thought the principles in Herron v. The Rathmines and Rathgar Commissioners (1) were applicable, and I intimated my intention of making the defendants pay the costs. Counsel for the defendants strenuously resisted such an order, on the ground that it was not usual at Nisi Prius, and that the case was not one in which a Court of Equity would grant an injunction. I yielded, and left both parties to apply to the Court for such judgment as they may be entitled to, either for relief or for costs, allowing an appeal as to costs if such allowance were required.”

Each party now moved for judgment.

D. M. Wilson, K.C., and Newett, for the plaintiffs:—

We submit that entry under the conveyance from the grantees, without the consent of the owners of the grantor's interest, was in defiance of section 84 of the Lands Clauses Consolidation Act, 1845, and that parties seeking to take lands under the statutory powers conferred by that Act must acquire the whole interest in the lands. By sect. 84 promoters shall not, except by consent of the “owners and occupiers,” enter upon any lands until they

shall either have paid to every party having “any interest” in such lands, or deposited in the bank, the purchase-money or...