Boyle v Olpherts

• Jurisdiction: Ireland
• Judgment Date: 18 November 1841
• Date: 18 November 1841
• Court: Equity Exchequer (Ireland)

Equity Exch.

BOYLE

and

OLPHERTS.

Trant v. DwyerENR 2 Bli. N. S. 11; S. C. 1 Dow. & Cl. 125.

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

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

Pincomb v. ThomasENR Cro. Jac. 524.

Whilster v. PaslowENR Cro. Jac. 487.

Legh v. HealdENR 1 B. & Ad. 622, 628.

HealdENR 1 B. & Ad. 622.

CASES IN EQUITY. 241 1841. 7.Ecityeeh. BOYLE v. OLPHERTS. Nov. 10, 18. HENRY CAREY being seized in fee of the lands of Dernafla, by Indenture By a demise of the 23rd of October 1731, made between him of the one part, and of the track of land called D " John Irwin and several others of the other part, demised to the parties and restreserved of the second part, their heirs and assigns, " All and singular the track out of said d is e- all royal- "d parcel of land commonly called or known by the name of Dernafla, ties, minerals, "lying and being in the manor of Pellipers, barony of Kennaught, and fullers' earth, o3ifpoirrsbr q nicaks , r "county of Londonderry, together with all houses, buildings and appur- cles_ " tenances thereunto belonging : Excepted always and reserved out of ries lime, loaa of "said grant and demise, all royalties, minerals, fuller's earth, clay for slate boor g ss and turf-mosses "bricks, coal pits, quarries of lime, slate or stone, and bogs and turf- whatsoever "mosses whatsoever, together with all woods and underwoods, by whatso- together W g,ith nalolaewrowoodosasan d "ever name or names called or known, then or thereafter standing, lying by whatsoever n "or being within or upon the premises, with ingress, egress or regress to called or name "dig for, fell and carry away all and every the before excepted premises ; known, then "and liberty at all times for the said Henry Carey, his heirs and assigns, or thereafter "to fowl, hunt and hawk in and upon the premises : Saving always and standing, lying owithin orerong wrhite "reserved out of this exception to the said John Irwin (and the other rbu "lessees), their heirs and assigns, liberty to dig, cut and take lime, premises, with ing "slate or other stone and turf-moss, to be spent and employed on the and reg,regssetbos di for "premises, and not elsewhere ; and the same not to be cut or digged ang d car,ryfell "out without the order and appointment of the said Henry Carey, his away all and "heirs and v assigns:" To hold the demised premises, with their appurte- fore exceptedthe be- ep ted premi. ses; nances, except as before excepted, unto the lessees, their heirs and saving always, assigns, for the term of three lives renewable for ever, at the yearly rent and reserved out of this ex- of 20, and 1 as a renewal fine on the fall of each life. ception to the The interest of the lessees under that lease became vested in the lessee,his heirs and assigns, plaintiff and some of the defendants ; and the reversion in fee, subject to liberty to dig, cut and take lime, slate, or other stone and turf-moss to be spent and employed on the premises, and not elsewhere ; and the same not to be cut or digged out without the order and appointÂÂment of the lessor, his heirs and assigns," the soil of the bogs and turf-mosses is exÂÂcepted and remains vested in the lessor, his heirs and assigns. The words "bogs and turf-mosses," in their primary meaning, and when uncontrolled by the context, signify a particular description of lands: and a grant thereof will pass the soil and freehold in such descriptions of land. An exception of bogs and turf-mosses in a lease is not cut down to signify a reservaÂÂtion of a right of turbary merely, by the fact that the grantor also reserves to himself a right of ingress, egress and regress to dig for and carry away the excepted premises. A lease for lives renewable for ever was made of the lands of D., except the bogs and turf-mosses. The tenant reclaimed portions of the bog, and converted them into arable land, and afterwards filed a bill for a renewal :-Held, that the description of the deÂÂmised premises in the renewal ought not to be in the same terms as in the original lease, but ought to be so altered that such portions of the lands as had been reclaimed from the bog should not pass thereby to the tenant. 2i f 242 CASES IN EQUITY. the lease, became vested in the defendant, the Rev. Richard Olpherts. In 1798, the reversion in fee was vested in a Mr. Blacker, who, by Indenture of the 23rd of April 1798, renewed the original lease ; and in that renewal, the demised premises were described in the same terms as in the original lease. Two of the lives in that renewal having died, one in 1818 and the other in 1820, applications were made to Mr. Blacker for a renewal. He promised to give it ; but died, without having done so, in December 1827, having by his will devised the reversion in fee to the defendant the Rev. Richard Olpherts. In 1828, the persons entitled to the tenants' interest applied for a renewal to the defendant Olpherts. No objection was then made to granting it ; but a great number of persons being interested under the original lease, the matter lay over until the year 1838. In March and April of that year, the applications were again renewed; and on the 17th of May 1838, the plaintiffs caused a notice to be served upon the defendant Olpherts, calling on him to renew the lease; and, at the same time, a draft of a renewal was served on him for his approval, and the renewal fines then due were tendered. On the 24th of May 1838, the Solicitor for the landlord wrote to the Solicitor for the tenants, requiring a few days to consider whether the draft renewal was in conformity with the rights of the parties. This was given to him ; and the time having elapsed, and no objection to the draft having been stated, the Solicitor for the tenants caused the draft to be engrossed; and on the 9th of June 1838, the engrossment was tendered to the landlord for execution. This he declined to do ; and thereupon a notice was served upon him, warning him of the consequences of his refusal. On the 7th of June 1838, a further notice was served by the Solicitor for the landlord on the Solicitor for the tenants, cautioning him against taking any proceedings to compel a renewal, and requiring time until the 17th of June to consider whether he would grant the renewal or not. In answer to this application, the Solicitor for the plaintiffs informed the Solicitor for the defendant that a bill for a renewal had been prepared and was then ready to be filed ; that as a matter of preÂÂcaution he would file the bill on the next day, in order that he might have an appearance during the then Sittings; but that if the landlord agreed to make the renewal within the time he asked, he would not charge him with the costs of filing the bill. The bill was accordingly filed on the 8th of June. On the 16th of June, the Solicitor for the defendÂÂant returned the draft renewal with his approval thereon, subject to certain alterations being made therein. Those alterations did not refer to the question relative to the bogs and mosses which afterwards arose between the parties. The plaintiff's Solicitor approved of the material alterations made by the defendant's Solicitor ; but there being some clerical errors in the draft which he corrected, he on the 27th of June sent the draft to the defendant's Solicitor for his final approbation. CASES IN EQUITY. 243 The draft was not returned ; and on the 6th of July 1838, the defend 1841. ant's Solicitor served a notice on the plaintiff's Solicitor, informing him Equity Exch. that the defendant had been advised by Counsel that the exception of BOYLE bogs and turf-mosses in the lease of 1731 comprehended the subsoil as V. well as the mere superficies of the bogs and turf-mosses ; and that the OLPHERTS. renewal ought to be framed accordingly ; and with this notice a draft of a renewal was served on the Solicitor for the plaintiffs, in which all that was bog or turf-moss in 1731, whether it had been since reclaimed or still remained in the state of bog or turf-moss, was excepted. In this respect the draft renewal materially differed from the language of the lease of 1731, and of the draft renewal approved of by the landlord. This was the first time a claim was made to the bogs. In August 1838, the Solicitor for the plaintiff served a notice objecting to the draft renewal as framed, and proposing to insert in the renewal, immediately after the exception, this clause :-" As fully and to the same extent as same were " excepted and reserved to...