Deeble v Linehan

• Jurisdiction: Ireland
• Judgment Date: 04 February 1860
• Date: 04 February 1860
• Court: Exchequer (Ireland)

Exchequer Chamber.

DEEBLE

and

LINEHAN.

Eldridge v. Knott Cowp. 215.

Hillary v. Waller 12 Ves. 253.

Day v. Williams 2 Cr. & Jer. 461.

The Trustees of Magdalen College v. The Attorney-General 3 Jur., N. S., 675.

Fenwick v. ReidENR 5 B. & Al. 232.

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

Levett v. WilsonENR 3 Bing. 115.

Beauman v. KinsellaIR 8 Ir. Com. Law Rep. 291.

Dewhurst v. Wrigley 1 Burt. Coop., N. S., 329.

Yard v. FordENR 2 Wms. Saund. 175, E, note.

Holcroft v. KeelENR 1 Bos. & Pul. 400.

Campbell v. Wilson 3 E. 297.

Bulstone v. BensteadENR 1 Camp. 463.

Wright v. HowardENR 1 Sim. & Stu. 203.

Mason v. HillENR 3 B. & Ad. 311.

Jenkins v. HarveyENR 1 C., M. & R. 877.

Finch v. ResbridgerENR 2 Vern. 390.

Daniel v. North 11 E. 372.

Rugby Charity v. Mereweather 11 E. 375, n.

Rex v. BarrENR 4 Camp. 16.

Wood v. VealeENR 5 B. & Al. 456.

Davis v. StephensENR 7 Car. & P. 705.

Gray v. Bond 5 B. Moo. 527; S. C., 2 Bro. & Bing. 669.

Hanks v. CribbinIRIR 7 Ir. Com. Law Rep. 489; S. C. 9 Ir. Com. Law Rep. 312, note.

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

Terry v. JonesUNK 3 Moo. & Sc. 472, 482, 485.

The King v. The Inhabitants of Scarisbrick 6 Ad. & Ell. 539, 514.

Dawson v. The Duke of Norfolk 1 Pri. 246.

Eldridge v. Knott Cowper, 215.

Day v. WilliamsENR 2 Cr. & J. 461.

The President and Scholars of Magdalen College, Oxford v. The Attorney-GeneralUNK 21 Jur. 674.

Little v. WingfieldIR Now reported in 11 Ir. Com. Law Rep. p. 63.

The King v. BarrENR 4 Campbell, 16.

Davies v. StephensENR 7 Car. & P. 570.

Hanks v. CribbinIR 7 Ir. Com. Law Rep. 489.

Bright v. Walker 1 Cr., M. & Ros. 217, 222.

Fenwick v. ReidENR 5 B. & Ald. 234.

Hanks v. CribbinENRIRIR 7 Ir. Com. Law Rep. 498; S. C., 9 Ir. Com. Law Rep. 312, note. Eldridge v. Knott (1 Cowp. 214).

COMMON LAW REPORTS, OF CASES ARGUED AND DETERMINED IN THE COURTS OF QUEEN'S BENCH, COMMON PLEAS, EXCHEQUER, gutlittr gainkr, AND COURT OF CRIMINAL APPEAL. errhtqutr Chamber.* DEEBLE v. LINEHAN. (Error from the Court of Common Pleas). H. T. 1860. Exch. Chain. Feb. 3, 4. An ancient Tins was an action of trespass, for entering certain lands of the watercourse, which had sup plaintiff, and breaking down a dam erected thereon. There was also plied D.'s mill, had been in a count for injury to the plaintiff's reversion. The defendant 1824, and th pleaded that he was entitled to the flow of a certain stream of water 1 l thence 826, until obstruct ed by a new road which was made across it; and the supply of water having been thus cut off, a new watercourse was constructed by D., to supply his mill, through the lands of A. (through which the original watercourse had passed) ; and L., in 1853, obstructed the new watercourse. The lands of L. had been in the occupation of tenants from 1827 to 1853. The reversioner did not reside upon them ; and the rents were received by a barrister living in Dublin, but who occasionally came to Cork (where the lands were situated), and lodged in the neighbourhood. An action having been brought by L. against D., for removing the obstruction to the watercourse, the latter claiming a title to the flow of the water, and the Judge at the trial having left to the jury the presumption of a grant to D., and having also told them that they should be satisfied that such grant had been actually executed in fact:-Held (reversing the judgment of the Court of Common Pleas), per PICOT, C. B., O'BRIEN and HAVES, JJ., and HUGHES, B., dubitante LEFROY, C. J.), that there was sufficient evidence to leave to the jury a question of presumption of a grant to D. Held (per FITZGERALD, B.), that there was no evidence of acquiescence on the part of the reversioner sufficient to authorise such question of presumption being left to the jury. Held also (per LEFROY, C. J., PIGOT, C. B , O'Burnsi and HAVES, JJ., and HUGHES, B.), that the jury should not have been required to find that, as a matter offact, a deed of grant had been actually executed. * Coram LEFROY, C. J., PIGOT, C. B., HAYES and O'BBINN, XT., and GREENE, HUGHES and FITZGERALD, BB. vol.. 12. 1 L 2 COMMON LAW REPORTS. H. T. 1860. through the plaintiff's grounds to his mill; but that the plaintiff Exch. Cham. had wrongfully erected a bank or dam across the watercourse, and that the defendant necessarily entered for the purpose of removing the obstruction. The defendant also pleaded other defences, denyÂÂing the plaintiff's title to the locus in quo. The material question in the action was, whether the defendant of right ought to have had and enjoyed the benefit of the entire stream flowing through the said watercourse to his mill? The case came on for trial at the Cork Summer Assizes of 1858, before Mr. BARON GREENE ; and the following facts were given in evidence :-That the mill in question, called " Droop's mill," and situÂÂated near " the Dyke," on the western confines of the city of Cork, and which was supplied with water through the watercourse in dispute (called the new watercourse), had been conveyed, in 1714, by fee-farm grant, by one Mary Harding to E. Fenn and his heirs, subject to a fee-farm rent, with a covenant that the grantee should enjoy the use of the watercourse then supplying the mills (and called the old watercourse), on payment of twenty shillings a-year to the Rev. Mr. Davies ; and the estate of the grantee under this instrument subsequently vested in Deeble, the defendant : and E. Fenn, and also the intermediate owners of the mill had, from time to time, enjoyed the use of the old watercourse, from 1714 to the time when the new watercourse was made. The old and new water. courses both ran through 'lands belonging to the See of Cork ; and, in the year 1766, a lease of the lands through which the watercourses ran was made by the then Bishop of Cork to one Bradshaw, for a renewable term of twenty-one years. Bradshaw assigned his interest therein to one Baker, whose interest subseÂÂquently vested in David Hall, the present owner ; and Baker, in 1782, made an under-lease of said lands (expressly including the watercourse to Droop's mill) to one Robert Forsayth, with a toties quoties covenant for renewal. There had been several renewals, both of the original and derivative leases, from time to time ; and one of the latter, dated 20th of March 1817, was made by G. Tyner (assignee of Baker) to Thomas Forsayth. (assignee of Robert ForÂÂsayth), being a renewal of the under-lease of 1782, with a toties COMMON LAW REPORTS. 3 quoties covenant for renewal. Thomas Forsayth, by deed, bearing date the 8th of February 1819, after reciting that he was entitled to a rent out of the old watercourse, assigned said old watercourse to one Lucy Wherland, in consideration of 32. 10s. Od., for the term of nineteen years from March 1817, and for all future interest therein, to be obtained by renewals under the toties quoties coveÂÂnants, by him, his executors or assigns ; and thereby covenanted that the watercourse should be inserted in all such renewals, and that further assignments thereof should be executed by him and them to Lucy Wherland, her executors and assigns. Upon the above assignment to Lucy Wherland (who was aunt of the defendÂÂant Deeble, and then owner of Droop's mill), the rent of the old watercourse, which had, up to that time, been paid to the lessees or under-lessees of the See of Cork, ceased to be so paid. By deed of March 1821, Thomas Forsayth assigned the lands held by him under the lease of 1782, and the renewals thereof (including the old watercourse), to one John Lyne, for the residue of his term therein, and all future renewals of the same, subject to under-tenants' leases. In 1821, John Lyne died, having made his will, appointing Cornelius Lyne his executor ; and the latter proved the will, and became entitled thereunder to all the premises assigned by the deed of March 1821, upon trust for the three sisters of John Lyne, the testator, and, as such executor, entered into receipt of the rents, gave receipts for the same to the tenants (upon their payment to the plaintiff, who resided in Mallow), and continued in possession, as executor, until his death in 1840 ; but, previously thereto, he had obtained two further renewals, in 1829 and 1836, of the under-lease of June 1782, in pursuance of the covenant therein, from the representatives of Baker's interest under the See of Cork. In 1822, the plaintiff Linehan married one of John Lyne's sisters,* thereby becoming entitled to her one-third ; and, *Nom-In the report of this case in the Common Pleas (9 Ir. Com. Law Rep. 309), in p. 310, line 9 from top of page, the word " daughters " should be " sisters "--REP. 4 COMMON LAW REPORTS. in 1844, upon a partition, a portion of the lands, including the site of the new watercourse, was allotted to the plaintiff, of which he obtained a renewal, in 1850, from David Hall, the representative of Bradshaw, the original lessee. In 1797, Robert Forsayth executed a further under-lease of a part of these lands (including the site of the new watercourse), to one Rose, for fifteen years, with a toties quoties covenant for renewal ; which under-lease contained a covenant that, in case a new public road, then in contemplation, should be made upon the premises, and compensation awarded, such compensation should be for the mutual benefit of both parties to the lease ; and, in 1829, Cornelius Lyne executed a renewal of the latter demise (which had expired in 1812), to the representatives of the tenant Rose, for a further term of nineteen years ; which latter renewal omitted the clause for compensation. In the interval between 1812 and 1829, there had been a further re-letting by the lessee of the lease of 1797 (who was then only entitled to an equitable right to a renewal); and, in 1851, the plaintiff brought an ejectment on the title, for the lands (including the site of the new watercourse), upon the exÂÂpiration of the lease of 1829, against one Thomas Walker, who was then in occupation...