Cheevers, Tenant; Fallon, Landlord

• Jurisdiction: Ireland
• Judgment Date: 18 December 1894
• Date: 18 December 1894
• Court: Court of Appeal (Ireland)

Cheevers,

Tenant

and

Fallon,

Landlord (1).

Appeal.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Land Law Act, 1881 — Demesne land — Severance of portion of the demesne — User as agricultural land for over fifty years.

By lease, dated the 14th November, 1788, W. D. demised to H. S. “the house, offices, and demesne of P., with the farm and lands of G.,” containing 156a. 2r. Irish plantation measure, for three lives, with a covenant for perpetual renewal. This lease was renewed, and the lessee's interest became vested in C., the tenant.

By sub-lease, dated the 21st November, 1794, portion of these lands were demised by H. S. (the lessee) to W. D. (the lessor), described as “The farm and lands of C., and part of G., otherwise P., and now called Fairy Hill,” containing 83 acres, for three lives, with a covenant for perpetual renewal, at the rent of £100 5s. This lease was renewed, and subsequently became vested in C., the tenant.

By sub-lease, dated the 6th May, 1805, portion of these lands were demised by W. D. to H. D., for three lives, with a covenant for perpetual renewal, at the rent of £26 1s., and this portion of the lands were described as “That part of the demesne of Fairy Hill, … bounded on one side by the high road leading from P. to E., on another side by the road or avenue from the said high road to the house of Fairy Hill, on another side by the said demesne of Fairy Hill,” containing 19a. 0r. 21p. Irish plantation measure. The lease contained a covenant not to build any house or cabin on that part of the demised premises adjoining the said road or avenue leading from said high road to the said house of Fairy Hill, nor within fifty yards thereof.

The lease having subsequently, by eviction or otherwise, become extinguished, T. D. (the successor in title of W. D.), by lease dated the 9th Oct., 1840, demised this holding of 19a. 0a. 21p. to J. F. for three lives, with a covenant for perpetual renewal, at the rent of £16. The lands were described in the same way as in the lease of the 6th May, 1805, and the lease contained the same covenants. On the 24th October, 1846, J. F. made a lease to a tenant for ten years, at £44 1s. 5d., and after its expiration the holding was let to different tenants, and finally, on the 23rd May, 1880, C. entered into an agreement with F. to become yearly tenant of the 19a. 0r. 21p., at a rent of £1 17s. 6d. an acre, and agreed not to break up or conacre any part of the holding. C. had previously acquired the interest under the lease of the 14th

May, 1788, and he subsequently acquired the interest under the lease of the 21st November, 1794, and on these portions of the lands the mansion-house stood, in which he resided. He was a gentleman of good social position, and worked all the lands together:—

Held (reversing the decision of the Land Commission, FitzGibbon, L.J., dissentiente), that the 19a. 0r. 21p. had become detached from the other portion of the demesne of Fairy Hill by the leases of 1805 and 1840, and had become undemesned.

The tenant George Cheevers held the lands under an agreement dated the 23rd May, 1880, with John Fallon (the father of Mary Fallon, the present landlady) in the following terms:—“I hereby propose and agree to pay you the yearly rent of £1 17s. 6d. per acre, for each and every acre of the lands called little Willmount or Fairy Hill, situate near the town of Portumna, and lately occupied by John S. Clarke; said lands contain 19 acres and 21 perches Irish measure, with slated shed thereon, all of which said premises are situate in the parish of Lickmolassy, Barony of Longford, and county of Galway. I agree to become yearly tenant to said premises from the 1st day of May last, 1880, and, in addition to the acreable rent of £1 17s. 6d, I agree to pay the usual taxes between landlord and tenant, namely one half the poor rates, the entire of the county cess. The rent I agree to pay half-yearly on every 1st day of May, and 1st day of November, in each year, the first half-year's rent to be paid on the 1st November, 1880, and I agree not to break up or conacre any part of said lands during my tenancy without the previous consent in writing first had and obtained from you, under a penalty of £2 additional per acre over and above the acreable rent of £1 17s. 6d., and I agree to give up said premises determinable by the usual six months' notice in the same order, repair, and condition in which they now are.”

This portion of the lands of Fairy Hill so held by George Cheevers formed portion of a larger grant of the said lands, the title to which was as follows:—

By indenture dated the 14th November, 1788, William Doolan demised to Henry Shobridge the lands of Pokoroko, containing 156a. 2r., for three lives with a covenant for perpetual renewal, subject to the rent of £113 Irish currency, with a pepper-corn fine for renewal. The interest of William Doolan in the lands became vested in the Marquis of Clanricarde, and by a renewal dated the 15th November, 1878, Lord Clanricarde renewed the lease to Joseph Cunningham. Cunningham's interest was sold in the Landed Estates Court in 1886, and was purchased by George Cheevers, to whom it was conveyed on the 6th August, 1886.

By a sub-lease dated the 21st November, 1794, Henry Shobridge (the lessee in the lease of 1788) demised to William Doolan (the lessor in that lease) “all that and those the farm and lands of Cloardy and part of Goul, otherwise Pokoroko and now called Fairy Hill” containing eighty three acres, for three lives with a covenant for perpetual renewal at a pepper-corn fine for renewal at the yearly rent of £100 5s. This lease was renewed by indenture dated the 4th June, 1830, from Henry Shobridge to John Doolan. William Doolan's interest in this lease became vested in L. F. Goodbody, and his interest having been sold in the Landed Estates Court was purchased by George Cheevers, to whom it was conveyed by indenture dated the 29th June, 1877.

By a sub-lease dated the 6th of May, 1805, William Doolan demised to Henry Dolphin, portion of the lands of Fairy Hill, containing 19a. 0r. 21p. Irish, for three lives, with a covenant for perpetual renewal, at the rent of £26 1s. This lease was renewed on the 19th January, 1831, but the lessee's interest in it came back to the Doolan family before 1840. On the 9th October, 1840, Thomas Doolan (the successor of Wm. Doolan), in consideration of a fine of £110, demised to John Fallon the same 19 acres, described as “all that and those that part of the demesne of Fairy Hill, in as full and ample a manner as the same were formerly held by the late Henry Dolphin of Portumna, meared on the one side by the high road leading from Portumna to Eyrecourt, on another side by the road or avenue from said high road to the house of Fairy Hill, on another side by the said demesne of Fairy Hill formerly in the possession of William Doolan, and on the other side by the parks in the possession of William Mulhuan, Laurence Madden, and Patrick Cannon, containing 19 acres 21 perches plantation measure, together with a small angle or piece of ground adjoining the avenue gate entering into the demesne of Fairy Hill and also adjoining the lands of Gall, in the possession of Henry Shobridge,” to hold for three lives, with a covenant for perpetual renewal at a pepper-corn fine for renewal, subject to the rent of £16 sterling. The lease contained a covenant by the lessee not to build or cause or permit to be built any sort of house or cabin “on that part of the demised premises adjoining the said road or avenue leading from said high road to the said house of Fairy Hill, nor within fifty yards thereof nor upon any part of the said piece of ground or angle adjoining the aforesaid avenue gate on lands of Gall” under penalty of payment of the penal rent of £46 3s. 1d.

On the 24th October, 1846, John Fallon made a lease of the same premises under the same description to John Martin for a term of ten years at the rent of £44 1s. 5d., and the lease contained a covenant not to plough, break up, or convert into tillage any part of the demised land, a covenant not to cut down timber, a covenant against alienation, and a covenant against building as provided in the lease of 1840. After the expiry of Martin's lease, the lands were occupied by several persons who meadowed or grazed the land.

Colonel Cheevers was colonel of the Galway militia, he was a landed proprietor and a man in a good social position. He resided in the dwelling-house on the other part of the lands of Fairy Hill. He had always grazed or meadowed the nineteen acres, and had worked them along with the other lands which he held. On the 19th October, 1890, the originating notice was served, and the Sub-Commissioners fixed a fair rent. On appeal to the Land Commission this order was reversed, and the originating notice was dismissed, on the ground that the land was demesne land. Colonel Cheevers appealed.

Meredith, Q.C., and Cherry, for the appellant.

Fetherstonhaugh, for the respondent.

Walker, C.:—

This is an appeal from the Land Commission. The Sub-Commission fixed a fair rent of the holding. The originating notice is conversant with a holding of 19a. 0r. 21p., of which the appellant, Colonel Cheevers, is yearly tenant, and it was dismissed on the ground that the lands were demesne lands, or the holding not agricultural or pastoral, following the decision in Allen v. Grogan (1).

Colonel Cheevers is ocupying tenant under Mr. Fallon, who holds these same lands under a lease renewable for ever, as tenant to the same Colonel Cheevers, and Colonel Cheevers himself is tenant of them, with other lands, to the Marquis of Clanricarde, under a like lease renewable for ever. Those other lands, which are additional to the lands in the originating notice...