Doherty v Allman

• Jurisdiction: Ireland
• Judgment Date: 02 April 1878
• Date: 02 April 1878
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

DOHERTY

and

ALLMAN

Lease for 999 years Covenant Waste Injunction Damages.

TOL. I.] CHANCERY DIVISION. Murphy coming in so late, I do not consider them entitled to costs, as if it had been sent in at an earlier period it might possibly have been approved and recommended by the Owner. Solicitors for the Owner and Petitioner : Messrs. Tyrrell and $tanuell. Solicitors for the mauls qui trust : Mr. Hartley. Solicitor for Mr. Hussey: Mr. Daniel O'Connell. Solicitors for Mr. Hewson : Messrs. Scott, Webb 8' Seymour. Solicitor for Messrs. Sandys : Mr. Mulville. Solicitors for various tenants : Mr. James Plunkett, Messrs. Alma Hackett, and Mr. S. W. Roche. HOUSE OF LORDS. DOHERTY v. .A TATMAN (1). Lease for 999 years-Covenant-Waste-InjunctionDamages. APPEAL, by the Plaintiff, against the decision of the Court of Appeal in Chancery (Ir. R. 10 Ex. 460), by which the decree of the Vice-Chancellor was reversed (Ir. R. 10 Eq. 362). Mr. Kay, Q. C. (of the English Bar), Mr. Jackson, Q. C., and Mr. Robinson, for the Appellant. Mr. Dauney, Q. C., Mr. Davey (both of the English Bar), and Mr. O'Hea, for the Respondent. THE LORDS were clearly of opinion that, under the circumÂÂstances of the case, the Court of Chancery was not required to exercise its discretionary jurisdiction in granting an injunction, and therefore affirmed the decision of the Court of Appeal. Solicitors for the Appellant : Hughes, Hooker, si Buttanshaw. Solicitors for the Respondent : Street, Son, Poynder. (1) Week. N., 4th May, 1878, p. 97; nom. Doherty v. Allsonan. Vol.. I.

V. C. Court.

DOHERTY

and

ALLMAN.

Cole v. GreeneENR 1 Lev. 309.

Greene v. ColeENR 2 Wms. Saund. 252.

Smyth v. CarterENR 18 Beav. 78.

Elliott v. Watkins 1 Jones, 308.

Mayor of London v. Hedger 18 Ves. 355.

Maddock v. MalletUNK 12 Ir. C. L. R. 173.

Lord Courtown v. Ward 1 Sch. & L. 8.

White v. Walsh 1 Jones, 626, n.

Lord Waterpark v. Austen 1 Jones, 627, n.

Roper v. WilliamsENR 1 T. R. 18.

Gibson v. DoegENR 2 H. & N. 615.

Barret v. Blagrave 6 Ves. 104.

Pickard v. Sears 6 A. & E. 469.

Duke of Bedford v. The Trustees of the British Museum 2 M. & K. 552.

The Attorney-General v. Nichol 16 Ves. 338.

Dent v. Auction Mart CompanyELR L. R. 2 Eq. 238.

Jackson v. The Duke of Newcastle 3 De G. J. & Sm. 275.

Robson v. WhittinghamELR L. R. 1 Ch. App. 442.

Coppinger v. Gubbins 3 J. & L. 397, 412.

Grubb v. The Earl of BurlingtonENR 5 B. & Ad. 517.

Smyth v. CarterENR 18 Beav. 78.

Cole v. GreeneENR 1 Lev. 309.

Landlord and tenant — Alteration of the structural character of demised premises — Legal waste — Injunction.

362 THE IRISH REPCIETS. L DOHERTY v. ALLMAN. Landlord and tenant-Alteration of the structural character of demised pre mises-Legal waste-Injunction. The conversion into dwelling-houses of premises demised as " stores," with an express covenant to keep and deliver them up in repair, is such a change in the structural character of the premises as amounts to legal waste ; and the tenant will be restrained from making such a change, though it would increase the value of the premises, and though he holds for a long term of 999 years, and though alterations, not effecting a change in the structural character of the premises, had from time to time been made during the term : and, semble, even though there were no express covenant to keep and deliver up in *repair, and though the lessor had acquiesced in the former alterations. BILL by a landlord to restrain the assignee of the lessee from committing waste by converting the premises, which were demised. for a term of 999 years, from corn-stores into a row of dwelling-houses. The material facts are fully stated in the judgment. Mr. Jackson, Q. C., Mr. W. M. Johnson, Q. C., and Mr. J. D. _Robinson, for the Plaintiff. These premises were demised as corn-stores, and therefore the landlord is entitled to have them retained in that condition. ConÂÂÂverting buildings of one kind into buildings of a different kind is waste : 8 Bac. Ab., 387, 7th ed. (C.) ; 5 Br. Ab., tit. Waste : Cole v. Greene (1) ; Greene v. Cole (2). Even if the effect of the alteration is to increase the value of the demised premises, the Court will restrain the tenant from making it, if the landlord objects : Smyth v. Carter (3) ; Elliott v. Watkins (4) ; Mayor of London v. Hedger (5). See also Maddock v. Mallet (6). The fact that certain temporary alterations were permitted does not preÂÂÂclude the landlord from preventing this alteration : Lord Cour (1) 1 Lev. 309. (4) 1 Jones, 308. (2) 2 Wms. Sauna. 252. (5) 18 Yes. 355. (3) 18 Beay. 78. (6) 12 Ir. C. L. R. 173. VoL. I.] EQUITY SERIES. town v. Ward (1) ; and the lease being for a long term does not prevent an injunction being granted to restrain ,a tenant from committing waste : White v. Walsh (2) ; Lord Waterpark v. Austen (3). It lies on the Defendant to show that there ever was a user of these premises as dwelling-houses, and nothing has been proved but mere temporary occupation, and. there has never been any structural alteration of the premises, but they still continue to be stores. Mansel v. Hort, not yet reported, was also reÂÂÂferred to. Mr. Jellett, Q. C., Hr. Campion, Q. C., and Mr. O' Bea, for the Defendant. These buildings have been so constantly altered with the acquiescence of the landlord, and used for so many different purÂÂÂposes, that they have lost the distinctive character of stores ; and this Court will not grant an injunction to restrain the lessee from making the proposed alteration : Roper v. Williams (4). When there has been a user of the premises in an altered state for several years, a licence from the landlord to so use them will be presumed : Gibson v. Doeg (5) ; Barret v. Blagrave (6) ; _Pickard v. Sears (7). Even if an action at law would lie on the covenants, a Court of equity will not grant an injunction to compel the tenant to retain the premises in the same state as they were in in 1798, when their condition has been from time to time completely changed : Duke of Bedford v. The Trustees of the British Museum (8). The proposed alteration will increase the value of the premises, and therefore, even if an action would lie, only nominal damages could be reÂÂÂcovered ; but, to induce a Court of equity to grant an injunction, it must be shown that substantial damages would be recoverable at law : The Attorney-General v. Nichol (9) ; Dent v. Auction Mart Company (10) ; Jackson v. The Duke of Newcastle (11) ; Robson v. Whittingham (12). It is laid down by Sir E. Sugden that the (1) 1 Soh. & L. 8. (7) 6 A. & E. 469. (2) 1 Jones, 626, n. (8) 2 M. & K. 552. (3) 1 Jones, 627, 31. (9) 16 Yes. 338. (4) 1 T. & R. 18. (10) L. R. 2 Eq. 238. (5) 2 H. & N. 615. (11) 3 De G. & Sm. 275. (6) 6 Yes. 104. (12) L. R. 1 Ch. App. 442. :364 THE IRISH WORTS. V. C. Court. 1876. DOHERTY v. ALLHA.N. Court has a discretion in exercising its jurisdiction in such cases, and that if it were found that an improper use was to be made of the legal right of the landlord (as suppose it were a case of meÂÂÂliorating waste), it would not grant an injunction : Copping er v. Gubbins (1). An act is not waste which is not injurious to the inheriÂÂÂtance by diminishing the value of the estate, or by increasing the burden on it, or by impairing the evidence of title : per Lord Denman, C. J., in Doe d. Grubb v. The Earl of Burlington (2). In Smyth v. Carter (3), the effect of the proposed change of a house into a brewery would have been to cause an intolerable nuisance ; that case, therefore, does not apply to the present, as here the change will be an improvement. July 4. THE VICE-CHANCELLOR :- The bill in this case has been filed for the purpose of obtaining a perpetual injunction [against committing waste on the premises demised by the leases of 1798 and 1824. The waste sought to be restrained is converting these premises from their original chaÂÂÂracter of stores into a row of dwelling-houses, six in number. That such an alteration in the nature and character of the buildings would amount to legal waste cannot be questioned. From the clear and express statement of the law in Cole v. Greene (4) down to the latest authority on the subject, the rule as to matters of this nature has been settled ; and it is immaterial whether or not the party committing waste considers, or even proves, that the effect of committing it will be to increase the value of the demised preÂÂÂmises. It is also immaterial, in my opinion, whether or not the original lease contains a covenant to maintain the premises in the same character, for in every case a tenant enters into an implied covenant to do so. But in this case, as in most others, there is in each of these leases, both that of 1798 and that of 1824, a covenant which in express terms prohibits such acts as those complained of. The lease of 1798 contains a covenant in the ordinary form, that the tenant " shall and will during this demise, preserve, uphold, support, maintain, and keep the said demised premises, and all (1) 3 J. & L. 391, 412. (3) 18 Beay. 78. (2) 5 B. & .&d. 617. (4) 1 Lev. 309. VOL. X.] EQUITY SERIES. 365 improvements made and to be made thereon in good and sufficient V. C. Court. *order, repair, and condition, and at the end or other sooner deter- . 1876 mination of this demise shall and will so...