Colonel J P Nolan, Landlord; Lee, Tenant (3) Berridge, Landlord; Folan, Tenant

• Jurisdiction: Ireland
• Judgment Date: 20 November 1902
• Date: 20 November 1902
• Court: Court of Appeal (Ireland)

Colonel J. P. Nolan

Landlord

and

Lee

Tenant (3).

Berridge

Landlord

and

Folan

Tenant.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1904.

Landlord and tenant — Land Law (Ireland) Acts, 1881–1896 — Fair rent — “Circumstances of the case, holding, and district” — Facilities for obtaining seaweed for the manufacture of kelp.

Where an agricultural holding is situated in a district in which the production of kelp is a recognised industry and a source of profit, the facility enjoyed by the tenant, by virtue of his tenancy, for taking suitable seaweed from the seashore for the manufacture of kelp is to be taken into consideration in fixing the fair rent of the holding.

Decision of the Irish Land Commission affirmed.

Appeals from the judgments of the Irish Land Commission in several cases, dated May 3, 1902 (4), whereby the decision of the Sub-Commission was affirmed, in taking into account “the right of seaweed for kelp” as an item on which rent should be fixed.

All the cases depended on similar facts, and were heard together.

The holdings were situated in a district which was a seat of the kelp-making industry, and at the hearing before the Sub-Commission and the rehearing before the Irish Land Commission the landlords alleged that the tenants derived considerable profit by converting the seaweed, which grows abundantly on the rocky foreshore of the estates, into kelp, and claimed that in estimating the fair rent a specific allowance should be made in respect of the facilities which the holdings afforded for the manufacture of this product. On the part of the tenants it was argued that the rents fixed must be confined to the agricultural or pastoral qualities of the holdings; that any advantages arising from their marine situation should be ignored in fixing the rent, as the profits of the kelp industry were due entirely to the toil and industry of the tenants themselves.

The evidence produced on behalf of the landlords showed that the rocks of the foreshore had been stripped in 1853, and apportioned amongst the tenants, each of whom was entitled, irrespective of the actual situation of his holding, to cut weed on a portion of the foreshore. It was admitted by certain of the tenants who dwelt too far from the shore to use this right with advantage, that they had been in the habit of selling or otherwise bartering their right to take weed to other tenants more favourably situated. The landlords contended that the kinds of weed suitable for the production of kelp grow on the foreshore; but this was disputed by the tenants, who averred that the most valuable kinds of weed for kelp grow far out in the deep ocean, and are gathered by their industry in boats at a distance of many miles from low watermark. The Sub-Commission were of opinion that the questions, whether the weed grows upon the shore, or is cast upon it, or is gathered as drift weed in its immediate proximity, were immaterial; and, being satisfied in point of fact that the situation of the holdings afforded facilities for procuring weeds suitable for kelp, fixed the fair rent of the holdings, taking into account, as an item on which rent was fixed, the right of seaweed for kelp, the landlords admitting that the tenants were to have the right to take seaweed growing upon or coming on the shore for the use of the holdings and the manufacture of kelp during the continuance of the statutory term. The Assistant-Commissioners specifically stated in the Pink Schedule that, “in estimating the amount stated in paragraph 5, the value of seaweed on the seashore and the immediate vicinity thereof, not merely for manure, but also for the making of kelp on the holding, has been taken into consideration.”

On the rehearing before the Land Commission, the landlords expressly disclaimed any benefit or advantage in respect of seaweed taken from the deep sea, but alleged that a considerable quantity of weeds suitable for the production of kelp was obtainable, as growing weed or drift weed, upon or in the immediate vicinity of the foreshore. The tenants' witnesses disputed this, but the Land Commission held that on the entire evidence the landlords had substantially made good their contention, and, while they affirmed the principle on which the fair rents had been fixed, slightly reduced the allowance for kelp seaweed given...