CALLINAN v McMAHON

• Jurisdiction: Ireland
• Judgment Date: 26 June 1917
• Date: 26 June 1917
• Court: King's Bench Division (Ireland)

Callinan

and

McMahon (1).

K. B. Div.

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.

1918.

Land Purchase Acts — Privilege — Easement — Prescription — Land Law (Ireland) Act, 1896, sect. 34, sub-s. 1.

A privilege cannot become an easement under sect. 34, sub-s. 1, of the Land Law (Ireland) Act, 1896, unless it has been enjoyed for such a time that (apart from its having been enjoyed by consent of the landlord) it would have become a valid easement.

(Per Kenny and Gordon JJ., Gibson J. diss.), such enjoyment must throughout the whole period have been upon the particular holding in respect of which it is claimed.

Semble (per Kenny J.): An ambulatory privilege given by the lessor is not within the section.

King-Harman's Estate, (1908) 1 I. R. 202, considered.

Case stated by Pim J. at the Ennis Spring Assizes, 1917, on appeal from the County Court Judge.

The following facts were proved or admitted:—

1. At and prior to the dates of the agreements hereinafter mentioned the plaintiff and the defendant were both tenants on

the Burton estate. The holding of the plaintiff was situate in the townland of Aughyarna, and that of the defendant in the townland of Gower South, both in the Barony of Moyarta, and County of Clare. In the year 1905 the landlord entered into agreements with his tenants for the sale to them of this estate under the provisions of the Irish Land Act, 1903. By an agreement, dated the 27th day of September, 1905, made between William Cunningham Vandeleur Burton and the plaintiff, and by agreement dated the 25th day of September, 1905, between the said William Cunningham Vandeleur Burton and the defendant, the plaintiff and the defendant respectively agreed to purchase their respective holdings under the provisions of the said Acts. By a further agreement made subsequently the defendant agreed to purchase from the landlord, in accordance with the provisions of the said Acts, an additional parcel of the land on what was known as the Northern Bog, in said townland of Aughyarna, containing about 1a. 0r. 14p. statute measure. As appears by endorsement, dated 23rd October, 1912, on the said agreement the defendant agreed that the said additional parcel of land should be consolidated with the holding already agreed to be purchased by him as aforesaid. A large number of the tenants were granted similar plots of turbary on the same bog by similar agreements. Copies of the said purchase agreements are incorporated and annexed to this case. By fiat of the Irish Land Commission, the holding so agreed to be purchased by the plaintiff was vested in the plaintiff, and the plaintiff was duly registered as owner thereof in accordance with the provisions of the Local Registration of Title (Ireland) Act, 1891, and is now the registered owner of the lands comprised in folio No. 4610 of the Register, County of Clare. There is no reservation either in said purchase agreement or on the folio of any right of turbary either in favour of the defendant or of any other person. By fiat of the Irish Land Commission, dated the 28th day of November, 1912, the holding agreed to be purchased by the defendant was vested in him, and the defendant was duly registered as owner thereof in accordance with the provisions of the Local Registration of Title (Ireland) Act, 1891, and he is now the registered owner of the lands comprised in folio No. 4581 of the Register, County of Clare. Copies of the said folios are incorporated with and annexed to this case.

2. On the Burton estate, and forming portion thereof, there was a tract of bog which extended over portion of the holdings of three tenants, namely, over the holdings of the plaintiff, of a Mrs. Callinan, and of a William Carey. This tract of bog was known as and called the Southern Bog. The landlord retained control over this bog, and exercised the exclusive right of putting any of his tenants from time to time to cut turf thereon without payment of rent of any kind.

3. The defendant's father and the defendant himself for upwards of forty years have cut turf on this bog where pointed out by the landlord, the particular turf bank on which they worked being until about fourteen years ago on that portion of the bog which lay within the ambit of Mrs. Callinan's holding. About fourteen years ago the said bank on Mrs. Callinan's holding became exhausted. The landlord's bog-ranger then pointed out to the defendant a new bank on which he was to cut his turf. This new bank was situate within the ambit of the holding occupied by the plaintiff, which was subsequently purchased and vested in him under the Irish Land Act, 1903. The defendant continued to cut turf since that date without interruption until two years ago, when he was stopped by the plaintiff. The present proceedings arise out of said interference.

4. Cullinan, on behalf of the plaintiff, contended that, inasmuch as the plaintiff and the defendant are now the registered owners of their holdings, and as both their folios and their purchase agreements are silent as to any rights of turbary on the plaintiff's holding, and as the defendant has only been cutting on the turf bank within the ambit of the plaintiff's holding for a period of fourteen years, the defendant has no right either under the Land Acts or by prescription to cut turf on the plaintiff's holding. Fleming K.C. and Costello, on behalf of the defendant, contended, on the other hand, that as the defendant and his predecessors in title had been cutting turf on the Southern Bog with the permission of the landlord, and without the payment of any rent, for forty years, the case fell within sect. 34, sub-s. 1, of the Land Law (Ireland) Act, 1896; that the said bog should be regarded as an entity apart from the holdings over which it extended; that it made no difference to the defendant's rights that the banks on which he had been cutting were on different holdings; and that, accordingly, he has the right as against the plaintiff's holding to continue cutting turf thereon. He referred to Coote v. Phelan (1), King-Harman's Estate (2), and Scott's Estate (3). I decided in favour of the plaintiff, and affirmed the decree of the County Court Judge.

Fleming K.C., on behalf of the defendant, then asked me to state a case, and, as the question is one of general importance and affects a considerable number of tenants in the district, I agreed to do so.

The question for the decision of the Court is:—

1. Whether, notwithstanding the fact that the purchase agreements and the folios both of the plaintiff and of the defendant are silent as to the existence of any right of turbary in favour of the defendant over the plaintiff's holding, and the fact that the defendant has been cutting on the particular turf bank within the plaintiff's holding for a period of not more than fourteen years, the defendant is still entitled to a right of turbary over the plaintiff's holding by virtue of sect. 34 of the Land Law (Ireland) Act, 1896, on the ground that the bog called the Southern Bog is to be regarded as an entity apart from the holdings over which it extends; and that the defendant and his predecessors in title have been cutting on said bog long enough to give a third person a right to the profit à prendre?

2. If this question be answered in the affirmative, the decree of the County Court Judge should be reversed, and the civil bill dismissed with costs, together with witnesses' expenses measured at £4 4s.

3. If this question be answered in the negative, the decree of the County Court Judge should be affirmed with costs, together with witnesses' expenses measured at £4 4s.

P. D. Fleming K.C., Clery, and Costello, for the defendants:—

The bog in question was the landlord's bog. It extended over the holdings of three of the tenants, including the plaintiff's. This bog must be regarded as an entity, and it was in respect of

it that the privilege was in fact enjoyed by the defendant of cutting turf for the use of his holding. He himself and his father for upwards of forty years were cutting turf on this bog by the landlord's permission free of rent, up to fourteen years ago on Mrs. Callinan's holding, and since on the plaintiff's holding, as pointed out to him fourteen years ago by the landlord's bailiff. This was a “privilege” within the meaning of sect. 34 (1) of the Land Act of 1896, which was converted into a right by virtue of that section. The fact that upon the sale of the estate the bog in question was parcelled out amongst the three tenants did not affect the defendant's right. If that portion of the bog had continued in the landlord's hands, the defendant's right would be unquestionable. The plaintiff purchased his portion with knowledge of the defendant's right as against the bog, and must be taken to have purchased his holding subject to that right as against that parcel of the bog within the ambit of his holding. The tenant's right as against the landlord would not be confined to any portion of the bog: Hargrove v. Congleton (1).

[Gibson J.: Then the whole bog was given to the tenant.]

In this present case the practice existed of the landlord pointing out to the tenant the places in the bog where the tenant should cut the turf, but this only modified the manner of enjoying the privilege of turbary with a view to preventing wasteful cutting of the bog: Duggan v. Carey (2).

[Gibson J.: Logically, you must say you can cut anywhere.]

We are not driven to that in this case. A reasonable practice existed of showing where and how the turf should be taken, and the defendant was in fact cutting and exercising his privilege in that part of the bog within the plaintiff's holding for fourteern years at the time of the sale. Moreover, as this privilege was always enjoyed by the defendant, on the sale it became a portion of the contents of his holding under section 34...