Cronin v Connor

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 19 November 1912
• Court: King's Bench Division (Ireland)
• Date: 19 November 1912

Cronin

and

Connor (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.

1913.

Trespass — Damage by cattle of owner of the soil to turf of owner of turbary rights — Dominant and servient tenement — Unreasonable user of natural rights by owner of servient tenement.

An action for trespass will lie for damage, caused by the cattle of the owner of the soil and freehold of a bog, to turf, cut and spread on a plot of such bog, (not fenced or divided from the residue) by the owner of other lands who enjoys the right to cut and save turf on such plot, where such cattle are depastured by the owner of the soil upon the bog without provision by him for the prevention of such injury by his cattle to the turf.

The depasturage of cattle by the owner of the soil of the servient tenement, without such provision against injury to the turf of the dominant tenant so situated, is, under such circumstances, a user by such owner of the soil of his natural rights which is unreasonable in relation to the dominant tenant as prejudicing the value of the incorporeal hereditament in the nature of a profit à prendre enjoyed by the dominant tenant, by endangering the saving of the turf.

Case Stated for the opinion of the Court by Boyd, J., sitting as Judge of Assize for the hearing of civil-bill appeals at the Kerry Summer Assizes, 1912, in respect of an appeal against

a decree of the County Court Judge of Kerry, awarding the plaintiff, Patrick Cronin, the sum of 15s. as damages for trespass by the cattle of the defendant, James Connor.

The defendant was formerly the tenant of a farm at Raccomane in the county of Kerry, on which there was a turf bog of about 16 acres in extent. The plaintiff was formerly the judicial tenant of a neighbouring farm on the same estate, and had, with other persons, a right of turbary upon the bog situate on the defendant's farm. Both plaintiff and defendant purchased their farms under the Land Purchase (Ireland) Acts, and the right of the plaintiff to turbary over a certain plot on the defendant's bog was expressly reserved to the plaintiff by the vesting order vesting the fee of his farm in the plaintiff, and also by the similar order vesting the fee of defendant's farm in the defendant. The defendant's bog adjoined a stream, and the defendant kept open a gap between the lowland and the bog on his farm, through which his cattle were allowed to enter and graze upon the bog and water at the stream. There was water besides the stream on the defendant's farm. The defendant's cattle injured the turf on the plot on which the turbary was reserved to the plaintiff when the turf was in course of saving. The plaintiff complained of the injury done by the defendant's cattle, and removed them from the bog while the turf was being saved; but the defendant insisted on putting the cattle back on the bog, and maintained his right so to do, contending that it was the plaintiff's duty to keep the cattle from injuring the turf, and that he, the defendant, had no duty in that respect. There was no physical boundary, except by “lock-spitting,” between the plot on which the plaintiff had turbary and the rest of the bog in the defendant's occupation.

In the year 1906 a civil bill for trespass by the defendant's cattle on the plaintiff's turf was brought by the plaintiff against the defendant, and was heard and dismissed by the County Court Judge of Kerry, the late Judge Shaw, on the 16th October, 1906. On appeal to the Judge of Assize, at the March Assizes for the next year, Johnson, J., by decree dated the 18th March, 1907, reversed the decree of the County Court Judge, and, holding the defendant...