Doherty v Allman

• Jurisdiction: Ireland
• Date: 1877
• Court: House of Lords (Ireland)

[HOUSE OF LORDS.] RICHARD WHEELER DOHERTY APPELLANT; AND JAMES CLAGSTON ALLMAN AND W. C. DOWDEN RESPONDENTS. 1878 March 29; April 1, 2. THE LORD CHANCELLOR (Lord Cairns), LORD O'HAGAN, LORD BLACKBURN and LORD GORDON.

Injunction - Long Lease for Years - Waste.

The grant of an injunction to restrain a person from doing a particular thing is an act dependent on the discretion of the Court, and in exercising that discretion a Court of Equity will consider, among other things, whether the doing of the thing sought to be restrained must produce an injury to the party seeking the injunction; whether that injury can be remedied or a toned for, and, if capable of being atoned for by damages, whether those damages must be sought in successive suits, or could be obtained once for all.

Two leases were granted of pieces of land with some buildings on them, one granted in 1798 for 999 years, the other granted in 1824 for 988 years. There was no reservation of a power of re-entry for breach of covenant, nor was there any negative covenant obliging the lessee not to change the use of the premises. There was a power of re-entry, for rent in arrear and no sufficient distress on the premises. In each lease there was a covenant by the lessee that he, his executors, &c., will “during the term hereby granted preserve, uphold, support, maintain, and keep the said demised premises, and all improvements made and to be made thereon, in good and sufficient order, repair, and condition; and at the end or sooner determination of this demise, shall and will so leave and deliver up the same unto,” the lessor, his heirs, &c. The premises had been used as corn stores for some years; and afterwards as artillery barracks, and dwellings for married soldiers. They had fallen into disrepair: it became necessary to repair them; the lessee thought it would be beneficial to convert the store buildings into dwelling-houses, which would much increase their value, and was proceeding to convert them accordingly, when the lessor filed a bill to restrain him, alleging waste:—

Held, that this was not the case of enforcing a negative covenant where the words of contract were clear and indisputable; that the waste alleged was meliorating waste, and that, under the circumstances, the Court below had, in the due exercise of its discretion in such matters, properly refused to interfere by injunction.

APPEAL against an order of the Court of Appeal in Ireland which had reversed a decree of the Vice-Chancellor of Ireland, made on the 4th of July, 1876, in a cause in which Mr. Doherty was the Plaintiff, and the two Respondents were Defendants.

The Plaintiff had filed a bill against the Defendants complaining of certain acts of waste which he alleged they had committed on lands and buildings of which they were lessees, and he was the landlord and the reversioner, and praying for a perpetual injunction to restrain them from such waste in future. The facts out of which the suit arose were these:—

By an indenture of release of the 10th of May, 1762, John Bernard granted to George Sealy, his heirs and assigns, for ever, two fields, part of the lands of East Gully, in the county of Cork, at a yearly rent of £10. The fields were situated On a rising ground near the town of Bandon, and on them there had been erected some large buildings which had been used as store warehouses, and afterwards as artillery barracks, and dwellings for married soldiers.

On the 18th of October, 1798, Baldwin Sealy, in whom the grantee's interest was then vested, demised part of the premises to one Arminger Sealy, to hold the same from the 29th of September then last past, for a term of 999 years, at the same yearly rent of £10. The lease contained a covenant by Arminger Sealy, the lessee, for himself, his executors, administrators, and assigns, during the said demise to “preserve, uphold, support, maintain, and keep the said demised premises, and all improvements made and to be made thereon, in good and sufficient order, repair, and condition, and at the end or sooner determination of the said demise so to leave and yield up the same to the said Baldwin Sealy, his heirs, executors, administrators, and assigns.” The store, which was the particular subject of this lease was known by the name of “the northern,” or “the larger store.”

On the 29th of November, 1824, Robert Sealy, in whom the interest under the grant of 1762 had become vested, demised another part of the fields there to Thomas Beamish and Henry Heazle, describing them as premises then lately held by John Swete, Esq., formerly the artillery barracks, situate at Bandon, to hold the same for the term of 988 years, at the yearly rent of £32 10s. The same covenant to “preserve, uphold, support, maintain, and keep the premises and all houses, offices, and improvements made and to be made thereon, in good and sufficient repair, order, and condition,” was inserted in this lease, which also bound the tenant to yield up the premises to Robert Sealy, “his heirs, executors, administrators, and assigns, in stiff, staunch, and tenantable order, repair, and condition.” The store which was the especial subject of this lease was called “the southern,” or “smaller store.”

All these premises were subsequently conveyed to the Appellant, his heirs and assigns, for ever. He resided at Oakville in their immediate neighbourhood, and the buildings were visible from his house.

Through various underleases and assignments the Respondents became the lessees of the whole of the premises comprised in the lease of October, 1798. The premises were described in the lease under which they claimed, a lease for 750 years at the yearly rent of £46 8s. 1d., as “A large storehouse and kiln, now in the possession of John Hurley, also the several dwelling-houses and outhouses, and yard, back and adjoining said storehouse and kiln, now partly in the possession of John Swete and his undertenant, being part of East Gully, situate at Gallows Hill, in the town of Bandon, subject nevertheless to the several agreements made by the said John Swete with his several undertenants occupying the same, he, the said John Hurley, having agreed to take with said tenants, and to receive the said respective rents payable by them out of said premises.” The boundaries of the premises demised by the lease of the 23rd of December, 1835, were thus stated: “Bounded on the east by Gallows Hill, and on the south and west by Messrs. Beamish & Heazle's storehouses and fields.” There was in this lease the same covenant to “maintain and keep the demised premises and improvements, &c., in as good repair and condition,” and so to yield them up.

During the war which ended in 1815, and for some years afterwards, these buildings had been used for the accommodation of artillery soldiers, but they were for some time unoccupied, and were said to be falling into decay.

The Respondents proposed to change many of these stores into dwelling-houses, and published advertisements for plans and specifications. After due notice of his objection to such a proceeding, the Appellant filed his bill praying for an injunction to restrain, &c., alleging objections to the proposed alterations on account of the proximity of the projected houses to his private residence.

Much evidence was given by the Respondent to shew that the alterations proposed to be made in the buildings would considerably increase their value.

The cause was heard on the 4th of July, 1876, before the Vice-Chancellor of Ireland, who, expressing an opinion that this was a case in the nature of structural alteration of the premises, thought himself bound to treat it as waste, impairing the evidence of title, and therefore granted a perpetual injunction to restrain it. On appeal, the Lord Chancellor of Ireland and Lord Justice Christian directed the injunction to be dissolved, without prejudice to the right of the Plaintiff to proceed, if so advised, at law^F1.

This appeal was then brought.

Mr. Kay, Q.C., and Mr. Jackson, Q.C. (of the Irish Bar) (Mr. J. D. Robinson (also of the Irish Bar), was with them) for the Appellant:—

The decision of the Vice-Chancellor proceeded upon well-established principles of the Courts of Equity, while that of the Court of Appeal disregarded them, and could not be supported. Structural alteration, which is proposed to be effected here, has always been treated as waste which was ta be restrained by injunction: Bonnett v. Sadler^F2; a rule fully adopted in Ireland: Elliott v. Watkins^F3; Maddock v. Mallet^F4; and though there may be a covenant to repair and to surrender in good condition at the end of the term, yet, if the destruction of the premises is threatened within the term, the landlord would not be left to assert his claim to damages at law, but the Court of Equity would interfere by injunction to prevent the threatened destruction: The Mayor of London v. Hedger^F5. It would be dangerous to adopt a different practice. Damages, at law, might not always afford a sufficient remedy, and Equity would therefore interfere to prevent a mischief for which damages might never give a satisfactory compensation. If the nature of the thing is altered, the evidence of its identity is destroyed, and that is waste: Cole v. Forth^F6; and that is the rule even where the alteration is intended and effected as an improvement^F7; Greene v. Cole^F8; The City of London v. Greyme^F9. Even with relation to a breach of covenant, the mere actual breach of it, where the construction of the contract is clear, and the breach clear, will be met by the grant of an injunction: Tipping v. Eckersley^F10. Johnson v. Hall^F11; Kemp v. Sober^F12; Hunt v. Hodges^F13; Doe d. Wetherell v. Bird^F14; Woolcock v. Den^F15, were also cited.

The title to an injunction is clear where the parties stand in the relation of lessor and lessee, but even as between strangers to each other an injunction will be granted to restrain an obstruction of free access of light and air, for...