Clancy v Byrne

JurisdictionIreland
Judgment Date05 June 1877
Date05 June 1877
CourtCommon Pleas Division (Ireland)

Com. Pleas.

CLANCY
and
BYRNE.

Gayford v. MoffattELR L. R. 4 Ch. App. 133.

Russell v. HarfordELR L. R. 2 Eq. 507.

Conlan v. Gavin 9 "Irish Law Times," 198.

Warburton v. ParkeENR 2 H. & N. 64.

Aynesley v. GloverELR L. R. 10 Ch. App. 283.

Daniel v. Anderson 31 L. J. Ch. 610.

Wood v. VealENR 5 B. & Al. 454.

Bright v. WalkerENR 1 C. M. & R. 211, 223.

Holmes v. GoringENRENR 2 Bing. 83; 9 Moore, 166.

Hinchcliffe v. KinnoulENR 5 Bing. N. C. 83.

Gayford v. MoffattELR L. R. 4 Ch. App. 133.

Ewart v. Cochrane 4 Macq. H. L. C. 117.

Pyer v. CarterENR 1 H. & N. 916.

Langley v. HammondELR L. R. 3 Ex. 161.

Watts v. KelsonELR L. R. 4 Ch. App. 166.

Conlan v. Gavin 9 "Irish Law Times," 198.

Right of way existing before tenancy, passing to yearly tenant by parol, as essential to convenient enjoyment.

VOL. XL] COMMON LAW SERIES. CLANCY v. BYRNE. Corn. Pleas. Right of way existing before tenancy, passing to yearly tenant by parol, 1877. as essential to convenient enjoyment. May 25. If, at the time a landlord lays out a farm for letting, there is a usual and June 5. ' manifest way of access from it to the high road through other lands of the landlord, and if he demise the farm with the appurtenanances and all easeÂÂments, &c., usually enjoyed with it, the way will pass, even under a parol demise from year to year, although the way was not a strictly legal way of necessity, but a way the use of which was essential to the convenient use of the farm. In such a case, evidence of user is to be applied, not to show that the tenant, after the commencement of the tenancy, began to use the way, but that, anteÂÂrior to his tenancy, it was the usual way, and as such afterwards enjoyed. Proof that, at the time of the commencement of the tenancy, the way was the usual and recognised way of approach, without which the farm could not be conveniently enjoyed, will sustain a finding by a jury that the way was enjoyed as of right and not by permission. ACTION for disturbance of a right of way, tried before the LORD CHIEF JUSTICE of this Court at the Sittings after Hilary Term, 1877. The Defendant traversed the right, and the sole issue was, whether the Plaintiff was entitled as alleged. The right of way claimed was from the Plaintiff's house over the farm of the DeÂÂfendant, they being both yearly tenants of the same landlord. The Plaintiff, his father and grandfather, had lived in the same house, and had always used the right of way which, up to the year 1857, was the' only passage to the high road ; but in that year the Plaintiff's father got a terminable lease, from another landlord, of adjoining land. through which there was a way to the high road. The land over which the right of way claimed passed had. been in the possession of the common landlord, who let it to the DefenÂÂdant only two years before the present action. A user of nearly forty years was clearly proved, and there was no evidence to show a time when it had not existed. A substituted way had been offered to the Plaintiff, but declined by him. 2 C 2 356 THE IRISH REPORTS. [I. R. Cont. Pleas. The Defendant's counsel asked for a direction, on the ground 1877. that a tenant could not...

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3 cases
  • Hanna v Pollock
    • Ireland
    • Queen's Bench Division (Ireland)
    • 1 Enero 1900
    ... ... In the Exchequer, Palles, C.B., referred to Fahey v. Dwyer ( 2 ), Beggan v. M'Donald ( 3 ), and Clancy v. Byrne ( 4 ), and laid down that user and enjoyment by one tenant against another “is not as of right within the moaning of the Prescription ... ...
  • Flynn v Harte
    • Ireland
    • King's Bench Division (Ireland)
    • 7 Marzo 1913
    ... ... The second alternative, however, held the field; and in Clancy v. Byrne (1), Mr. Justice Lawson in the Common Pleas adopted the finding that the way was “part of the take.” But if the dominant tenement was ... ...
  • Donnelly v Adams
    • Ireland
    • Chancery Division (Ireland)
    • 7 Diciembre 1904
    ... ... Brown v. Alabaster ( 2 ) is an example of such a case; in that case there was a formed and fenced way upon a servient tenement. Clancy v. Byrne ( 3 ) is an example of an Irish case of an implied right of way; and in that case there was a “passage” upon the servient tenement ... ...

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