O'Donnell v Ryan

• Jurisdiction: Ireland
• Judgment Date: 03 May 1854
• Date: 03 May 1854
• Court: Court of Common Pleas (Ireland)

Common Pleas.

O'DONNELL

and

RYAN.

Solly v. Forbes 4 B. Moore, 448.

Framlingham v. BrandENR 3 Atk. 390.

Wright v. KempENR 3 T. R. 470.

White v. Supple 2 D. & W. 471.

Moody v. ThurstonENR 1 Strange, 481.

Moore v. Magrath Cowp. 9.

Atkinson v. Pilsworth 1 Ridg. P. C. 461.

Radnor v. Reeve B. & P. 391.

Cholmondely v. Clinton 2 J. & W. 101.

The Queen v. Bolton 1 Q. B. 72.

Dover v. AlexanderENR 2 Hare, 275.

Luttrell v. M'CreeryIR 2 Ir. Com. Law Rep. 289.

Pentland v. SomervilleUNK 2 Ir. Ch. Rep. 280.

Allen v. ClarkeENR 2 Exch. 366.

Governors of Bristol Hospital v. NortonENR 11 M. & W. 928.

Rutledge v. Hood 5 Ir. Jur. 59.

Bullen v. Denning 5 Barn. & Cres. 847.

44 COMMON LAW REPORTS. E. T. 1853. kind to raise the issue, before they were entitled to call on the CommonPleas. plaintiff to prove that he had taken the required oath ; and, M`MAHON therefore, that I was right in refusing to direct a verdict for the v. LEONARD. defendants. Therefore, all the exceptions must be overruled, and Judgment entered for the plaintiff. H. T. 1854. Jan. 27, May 3. O'DONNELL v. RYAN. By lease dated Tuts was an ejectment on the title, brought by Sir Richard Annesley the 24th of March 1775, O'Donnell, Bart., to recover the mines and minerals in, under and J. T. M. de mised to P.M. upon the lands of Currane, in the barony of Burrishoole, and county the lands of C. for lives re- of Mayo, and now in possession of the defendants, who were working newable for ever, and by them under the name of the Clewbay Copper Mining Company. a subsequent The case was tried at the Summer Assizes 1853, in the county Mayo, deed of the 16th of July 1776, reciting that there was an informality in the lease of 1775, which the parties had agreed to remedy, J. T. M. demised to P. M. the said lands of C., situate, &c., " and all manner of mines and minerals of coal, lead, iron, tin and other mines upon the said lands, and bog timber, forest trees and young saplings of oak, ash, yew and elm, and all timber and other trees ; the benefit of fishing, fowling,'hunting anclihawking on the premises always excepted and reserved." The deed also con- tained a provision enabling P. M. and his assigns to cut whatever trees he himself should plant. The interest of J. T. M. having become vested in the plaintiff; by indenture of the 28th of September 1832, reciting that it was made in pursuance of a covenant for perpetual renewal contained in the lease of 1776, and that all the lives in that lease were dead, the plaintiff demised to P. B. " all the said lands of C., situate," &c., " all manner of mines, minerals of coal, lead, iron, tin and other mines whatsoever upon the said lands, and bog timber, forest trees and saplings of oak, ash, yew and elm, and all timber and other trees ; the benefit of fishing, fowling, hunting and hawking on the said premises always excepted and reserved to the plaintiff." By fee-farm grant of the 11th of July 1850, P. B. demised to J. M. the lands of C., with the rights, &c., and ail manner of mines and minerals, &c., in the same terms as in the lease of 1776. In the year 1851, all the estate of 3. M. was sold by the Incumbered Estates Court, and by deed under the seal of the Court conveyed by two of the Commissioners to the defendant, his heirs and assigns, subject to the rent, covenant and leases mentioned in the schedule annexed to the conveyance. The schedule contained no reference to any lease reserving the mines. Upon a special verdict, finding the above facts :-Held, per TORRENS, J. and BALL, 3., that the mines passed to the lessee under the deeds of the 16th of July, 1776, and. the 28th of September 1832 [JACKSON, J., disseatiente; MONAHAN, C. J., dubitante].-Held also, per MONAHAN, C. J., that even though the mines were not by the above deed vested in J. M., the conveyance of the Incumbered Estates Court vested them indefeasibly in the defendant [JACKSON, J. and TORRENS, J. disÂÂsentientibus.] Semble-On the argument of a special verdict, the plaintiff is entitled to begin. COMMON LAW REPORTS. 45 when a special verdict was found by the jury. The facts of the case will be found fully stated in the judgment of JACKSON, J. On the opening of the case, a discussion arose as to the right to begin. MONAHAN, C. J. This is a special verdict, on which there is a finding for neither plaintiff nor defendant, but merely of a particular state of facts. The plaintiff, therefore, is entitled to begin. George P. O'Malley (with him P. J. Blake), for the plaintiff. They cited the following authorities on the construction of the leases : Solly v. Forbes (a); Framlingharn v. Brand (b); Wright v. Kemp (c); White v. Supple (d); Furlong's Landlord 4 Tenant, pp. 370, 402. And they relied on the Renewable Leasehold ConÂÂversion Act, 12 & 13 Vic., c. 105, ss. 1, 7, 9 & 14; and on the Incumbered Estates Act, 12 & 13 Vic., c. 77, ss. 24, 27, 28 & 37 ; and on the 16 & 17 Vic., c. 64, s. 3. D. R. Pigot (with him Robinson) relied on Moody v. ThursÂÂton (e); Moore v. Magrath (f) ; Atkinson v. Pilsworth (g); RadÂÂnor v. Reeve (h); Cholmondely v. Clinton (i) ; The Queen v. Bolton (k) ; Dover v. Alexander (1) ; Luttrell v. M'Creery (m); Pentland v. Somerville (n); Allen v. Clarke (o); Sugden's V. c P., p. 68 ; and on ss. 10, 15, 16, 17, 21, 24, 27, 29, 49, 50, 51 & 54 of the 12 & 13 Vic., c. 77, the Incumbered Estates Act. Cur. ad. melt. (a) 4 B. Moore, 448. (b) 3 Atk. 390. (c) 3 T. R. 470. (d) 2 D. SE W. 471. (e) 1 Strange, 481. (f) Cowp. 9. (g) 1 Ridg. P. C. 461. (h) B. & P. 391. (1) 2J. &W. 101. (k) 1 Q. B. 72. (1) 2 Hare, 275. (m) 2 Ir. Com. Law Rep. 289. (ii) 2 Ir. Ch. Rep. 280. (o) 2 Exch. 366. 46 COMMON LAW REPORTS. H. T. 1854. JACKSON, J. CommonPleas. This was an ejectment on the title, brought by Sir Richard Au O'DONNELL nesley O'Donnell against the Rev. Peter Browne and others. The RYAN. declaration seeks to recover all and singular the mines, quarries, beds of copper, lead, tin and all other ores, metals and minerals, in or upon the lands of Currane. There was a special verdict found. The facts are very short, and may be stated as follows :-On the 16th of July 1776, John Thomas Medlicott, being seised in fee of the lands of Currane and other lands, by lease of that date, reciting that on the 24th of March 1775, the said John Thomas Medlicott had executed a lease of these same lands, with all the rights, memÂÂbers and appurtenances thereto belonging, to Patrick M'Loughlin and his heirs, in consideration of the sum of 650 paid as a fine, for three lives, renewable for ever on payment of a peppercorn renewal fine, at the yearly rent of i100 ; and further reciting that the said Patrick M'Loughlin had ever since been in possession of the said lands under that lease, and that there was an informality in the lease, likely to lead to future controversy, which both parties agreed to prevent : the said John Thomas Medlicott, in consideration of the said sum of 650, demised to Patrick M'Loughlin and his heirs the said town and lands, with the rights, members, appenÂÂdances and appurtenances thereunto belonging, "and all manner of "mines and minerals of coal, lead, iron, tin and other mines upon "the said lands ; and bog timber, forest trees, and young saplings " of oak, ash, yew and elm, and all timber and other trees ; the "benefit of fishing, fowling, hunting and hawking on the premises "always excepted and reserved out of the said demise." Then follows a covenant to this effect-that Patrick M`Loughlin, his heirs and assigns, might at any time during the term thereby granted, or or any renewal thereof, have full liberty to fell and carry away and dispose of such trees as he or they from time to time during the said term should plant. The special verdict then sets out an indenture of the 20th of December 1777, by which Patrick M.Eoughlin assigned by way of demise the lands to Join M'LoughÂÂlin, his heirs and assigns ; and another indenture of the 16th of July 1785, by which John Thomas Medlicott, the lessor, conveyed COMMON LAW REPORTS. 47 to Sir Neal O'Donnell all his interest in the said lands, and all H. T. 1854. CommonPleas. royalties, mines and minerals. The special verdict then states that DONNELL' O previous to and on the 28th of September 1832, all the interest of v. Patrick M`Loughlin, subject to the lease of the 20th of December RYAN. 1777, became vested in the Rev. Peter Browne, as trustee for the Marquis of Sligo. That all the cestui que vies in the lease of the 26th of July 1766 were dead ; and that by indenture of the 28th of September 1832, Sir Richard O'Donnell, in pursuance of the covenant for perpetual renewal contained in the lease of 1776, demised to the said Peter Browne, his heirs and assigns, all the said lands, with their rights, members and appurtenances (all manner of mines and minerals, of coal, lead, iron, tin and other mines whatsoÂÂsoever upon the said lands, and bog timber, forest trees, and young saplings of oak, ash, yew and elm, and all timber and other trees ; the benefit of fishing, fowling, hunting and hawking on the said premises always excepted and reserved, to the use and benefit of Sir Richard O'Donnell, his heirs and assigns), for three lives therein named, with a covenant for the perpetual renewal thereof. The special verdict then states that all the cestui que vies in the lease of 1832 are now living, and that the Rev. Peter Browne is dead, and that all his interest in said lands is now vested in the Rev. Peter Browne his son, and that all the estate of John )`Loughlin is now vested in his grandson John M'Loughlin. It then states a lease, dated the 14th of March 1846, from Peter Browne to John M.Loughlin, of all the lands, excepting what is exÂÂcepted by the lease of the 20th of December 1777. It then states a fee-farm grant of the 11th of June 1850, from Peter Browne to John M'Loughlin and his heirs, of the several lands and premises demised by the renewal of the 28th of September 1832, by the...