Donnelly v Adams

• Jurisdiction: Ireland
• Judge: Barton. J.
• Judgment Date: 07 December 1904
• Court: Chancery Division (Ireland)
• Docket Number: (1902. No. 803.)
• Date: 07 December 1904

Donnelly

and

Adams.

Barton. J.

Appeal.

(1902. No. 803.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Easement — Way necessary for convenient user of tenement — No defined path — Door — Lease — Implied grant — Derogation.

The defendant, an owner of building ground on which he had erected houses, demised one of them, with the garden thereto attached, to the predecessor of the plaintiff. In the rere wall of the garden was a door opening on the defendant's ground. This ground was to a large extent waste, being used in part for storing building materials, and in part for growing vegetables. It was surrounded by a wall, in which were two gates opening on public passages. These gates were kept locked, the keys being in the possession of the defendant. There was no defined path from the door to either gate. At the time of the demise the defendant gave the lessee a key of the back door, to enable him to bring in coals. The lessee wanted to get a right of way, but the defendant told him he could not give a right of way, but he would allow him to bring in coals by the back door. The lessee had since brought his coals through the door, the gates being opened by the defendant for the purpose on each occasion. There was no other way by which coals could be brought to the house except by the hall door. The place in which coals were stored was at the back of the house, approached by a path laid in concrete leading through the garden from the back door:—

Held, on appeal (reversing the decision of Barton, J.), that, having regard to the evidence as to the conversation between the parties thereto at the date of the letting, and the giving of the key by the defendant to the lessee, and also the condition, user, and circumstances of the demised premises, the lease was made by the defendant to the lessee upon the terms that during its continuance the occupiers of the house thereby demised should have the right to use the door opening from the demised premises into the defendant's land, for the purpose of bringing in coal for the use of the inhabitants of the house, with the further right of passing and repassing, for the purpose aforesaid, across the defendant's land between the door and one of the adjoining public highways, by such route and through such gate leading to either of such highways as the defendant might from time to time point out.

Action for damages for the obstruction of the plaintiff's right of way from the rere of his premises, No. 19, Harcourt-terrace, across the defendant's land, for a declaration that he was entitled to such right of way, and for an injunction to restrain the defendant from interfering with him in the exercise of it.

The amended statement of claim alleged, amongst other matters:—By indenture of lease, dated the 19th February, 1886, J. S. Joly demised to the defendant, Stephen Adams, a parcel of ground in the City of Dublin, for 900 years at a yearly rent; the defendant built on the plot the house and offices after mentioned: by indenture of sub-lease, dated the 16th August, 1888, the defendant and his mortgagees, in consideration of a fine of £630 paid to him, demised to Joseph Patrick Donnelly that piece or plot of ground, being part of the farm or lands of Saint Sepulchre's fronting Harcourt-terrace, bounded on the north by Mr. Pickering's house and premises, on the south by a house and premises then in course of erection by the said Stephen Adams, on the east by ground in the possession of the said Stephen Adams, and on the west by Harcourt-terrace, as more particularly described on the map annexed to the said lease, together with the house, out-offices, and premises thereon erected and built, to hold the same, with the rights, members, and appurtenances thereunto belonging or in anywise appertaining unto the said Joseph Patrick Donnelly, for 897 years at the yearly rent of £10. Prior to the execution of the sub-lease the rere wall of the said premises divided the same from a field at the rere thereof, which field was portion of the premises demised by the lease of 1886, and there was a door in the said rere wall leading from the premises in the sub-lease to the said field, and there were two well-defined passages or ways leading from the said back door across the field—one to Adelaide-road, a public highway, and the other to a gateway leading to a public way on the Grand Canal premises. Prior to the sub-lease a substantial house, two storeys high, with out-offices, suitable for a gentleman's city residence, and known as 19, Harcourt-terrace, had been built by the defendant on the premises thereby demised, and the said ways or passages were great conveniences and a valuable right in connection with and necessary for the reasonable enjoyment of the said house: the defendant also erected the said rere wall, and when erecting same placed the door therein, and the said door led to no other place than those before mentioned. Joseph Patrick Donnelly died in 1900; the plaintiff, James Donnelly, was assignee of his personal representative. Recently the defendant informed James Donnelly that he would close up the door—that Donnelly had no right of way there, and the defendant thereupon dug a trench in the said field alongside and parallel to the door, and built a wall close to the door, which trench and wall completely blocked up the door, and prevented the plaintiff making any use of the doorways or passages.

Pending action James Donnelly assigned his interest to Mary Josephine Donnelly, by whom the proceedings were continued.

The sub-lease of the 16th August, 1888, contained a covenant by the lessee to use the demised premises only as a private residence: all the other houses on the road where the demised house was situated were private residences.

There was no “coal stopper” or other means for getting in coals in the front of the house, except by the hall door; and the coal-hole was at the back of the house on the ground-floor between the kitchen and the outer door, which was connected by a concrete footpath through the garden with the back door in the garden wall which opened into the defendant's land.

The further facts and the result of the evidence are stated in the judgment of Barton, J., and it is necessary to set out only the following portions of the oral examination of the witnesses.

James Donnelly's evidence:—

Question.—Outside the door, what is the character of defendant's land?

Answer.—There is some grass growing, and a lot of old planks and rubbish, and other things that builders generally use.

Q. Is there any sort of a path or track on this ground?

A. The last time I was there there was a small path, but it is over twelve months ago.

Q. What was the width of that path?

A. About eighteen inches—a small path like what would be made by a person walking. It was from the back of these houses down to the gate.

W. H. Beardwood (architect):—

Q. At the back of the houses is there a path?

A. Yes, about four inches wide.

Q. Does it go back to the door behind No. 19?

A. No, for the door has not been used, and it is undefined there, as grass has grown on it.

Lewis Fleming:—

Q. At the back door was there not a stone step?

A. Yes, a granite sill in the doorway, and then a stone step under that on to the cartway.

Q. What kind was the passage?

A. Like a beaten cart-track over ground not prepared, and where the wheels would sink in was filled in with rubble—it was a sort of amateur metalling.

Frederick Hayes (surveyor):—

Q. There is a beaten track there?

A. Yes.

Q. And cart-tracks?

A. Yes, the beaten track is from defendant's house, and is about eighteen inches wide.

Q. Are there marks of cart-wheels there?

A. I did not notice any.

Q. There is nothing at the back of No. 19 except a little footpath?

A. No.

Q. Is it not a prepared path?

A. No, it is ordinary clay.

The defendant:—

Q. You use the back door of your own house?

A. Yes, I go from my house to my office, and back that way; and my man has been putting ashes on the track all the winter for my convenience to make it as dry as possible.

Q. Are there any cart tracks?

A. Yes, from the gateway to the angle of the vegetable green. There is a heap of stones there, and getting them in and out made these cart tracks. There is a rough cartway up the back where the coal carts used to come up to the corner at the sides of the houses, and the men used to carry the coal from that on their backs.

Q. When No. 19 was built, was there any track at the back?

A. No, not the smallest definition of a track.

Q. Any track that is there now has been made either by your carts carrying stones, or the coal carts?

A. Yes, and I brought in the coal to my own house that way?

Q. When you gave the key to Donnelly, was he to be able to go in and out?

A. No, it was to get his coals in only.

Q. At the time Donnelly took the lease had you a conversation with him about the back door? (Question objected to.)

A. Yes, he wanted to get a right of way, and I told him I could not give him a right of way under the circumstances, but I would allow him to get in his coals when he wanted.

D. F. Browne, K.C., and Garrett W. Walker, for the plaintiff.

Matheson, K.C., and T. Henry Maxwell, for the defendant.

The arguments were similar to those in the Court of Appeal, infra.

D. F. Browne, K.C., and Garrett W. Walker, for the plaintiff.

Matheson, K.C., and T. Henry Maxwell, for the defendant.

Barton, J.:—

Plaintiff complains of the obstruction of two alleged rights of way by the erection of a wall opposite to, and practically against, the back door of her premises, 19, Harcourt-terrace. Plaintiff holds the house from defendant under a lease made to her late father for 987 years, and dated August 6th, 1888. The house stands upon a building plot situate between Adelaide-road and the canal. This building plot is held by...