Browne v Maguire

• Jurisdiction: Ireland
• Judgment Date: 26 January 1922
• Date: 26 January 1922
• Court: House of Lords (Ireland)

Browne v. Maguire

BROWNE

Appellant

MAGUIRE, Respondent (1)

[House of Lords.]

H. L.

Easement - Way of necessity - Land-locked tenement - Grants made at different times - No evidence as to date when owner parted with the last portion of land surrounding the alleged dominant tenement.

The plaintiff was the owner of a farm of land which he had purchased under the provisions of the Irish Land Act, 1909, and which immediately adjoined an historic moat, consisting of a circular close, on which timber was growing, and which was completely surrounded by lands in the occupation of persons, some of whom were tenants of the Earl of Erne, and others of whom (including the plaintiff) had purchased their holding from him. In the year 1919 the defendant purchased the fee-simple of the moat from the Earl of Erne, and subsequently proceeded to cut down the timber growing on it, and to remove it by a pass leading to the county road, claiming that he had a right so to use the pass as a way of necessity. In an action for an injunction to restrain the defendant from carting the felled timber over the pass:

The House of Lords (1)held, that no evidence having been given to establish beyond reasonable doubt what were the dates on which Lord Erne had parted with the several portions of land surrounding the close, it was impossible to say over which plot of land the implied easement of necessity existed, and dismissed the appeal from the judgment of the Court of Appeal in Ireland ([1921] 1 I. R. 148), which declared that the defendant was not entitled to use the pass in the way claimed.

Lord Buckmaster (2):—

My Lords, the question raised upon this appeal is as to the existence and extent of a right claimed by the appellant to pass over the respondent's land for the purpose of cutting and carrying from a piece of property that he had purchased from the Earl of Erne the timber that grows thereon.

The physical facts of the case can be shortly stated. There exists in Cornashee, in the county of Fermanagh, a moat ring or rath of undoubted antiquity and of uncertain origin. It is some 3 acres 2 roods in area, and upon it there are trees, some of which have grown to maturity, some of which have passed into decay. It is surrounded by a marked boundary, and it is on all sides cut off from access to the highway by the surrounding property. Both this moat ring and all the surrounding property were once in the absolute ownership of the Earl of Erne; but at a date a long...