Dublin (South) City Market Company v McCabes Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1955
• Date: 01 January 1955
• Docket Number: [1950. No. 76 P.]
• Court: High Court

Dublin (South) City Market Co

and

McCabes Ltd

User of premises - Nuisance - Licence to carry on particular trade - Damage or annoyance in breach of restrictive covenant - Implied grant or right to commit breach of restrictive covenant for purposes of particular trade - Derogation from grant - Right of reversioner where no proof of damage to reversion - The Dublin (South) City Market Act, 1876 (39 40 Vict., c. ccxxxii), s. 55.

The defendants were the lessees of certain premises, situated in the Dublin (South) City Markets, which they held from the plaintiffs for a term of 115 years and 3 months subject to the terms and conditions comprised in a lease, dated the 2nd January, 1939. It was provided inter aliaby clause 4 of the lease that the lessees should not carry on any dangerous, noisy, noisome or offensive trade or business in the premises, nor "do or permit to be done any act or thing which shall or may become a nuisance damage annoyance or inconvenience to the lessors or their tenants nor . . . do any act which in the opinion of the lessors whose decision in the matter shall be final and conclusive might injure or depreciate or tend to injure or depreciate the value of the said premises or part thereof of any of the adjoining premises of the lessors provided however that the lessees may continue to carry on therein the business of fishmonger, poulterer, game dealer and ice merchant." Prior to obtaining the lease the defendants held the premises in question, in different lots, under various tenancies and terms and carried on the said business therein. The plaintiffs had leased certain vaults situated immediately beneath that part of the premises occupied by the defendants to a firm of whiskey distillers for use as a bonded stores. From the year 1939 onwards the plaintiffs made numerous complaints to the defendants of dampness on the ceiling of the roof of the said vaults resulting in water dripping on to the floor. The plaintiffs, in correspondence between the parties, claimed that the defendants, in breach of the terms of their lease, had permitted water to percolate from their premises into the vaults, and had permitted fish, ice and water to remain on the floors of their premises in such a manner as to cause condensation in the vaults underneath and had caused "nuisance, damage, annoyance, inconvenience and injury to the plaintiffs and their tenants." The plaintiffs further claimed that the acts of the defendants were such, in the opinion of...