Dunn v Bryan

• Jurisdiction: Ireland
• Judgment Date: 25 November 1872
• Date: 25 November 1872
• Court: Chancery Division (Ireland)

V. C. Court.

DUNN

and

BRYAN.

Legh v. HewittENR 4 East, 154.

Packington's caseENR 3 Atk. 215.

Smith v. CarterENR 18 Beav. 78.

French v. Macale 2 Dr. & War. 269.

Dickson v. Fitzgerald Rolls, 3rd June, 1834.

Flint v. Brandon 8 Ves. 159.

City of London v. NashENR 3 Atk. 515.

Aubrey v. FisherENR 10 East, 446.

Loson v. Pryse 4 Myl. & Cr. 600.

Berriman v, PeacockENR 9 Bing. 384.

Phillips v. SmithENR 14 M. & W. 589.

Rayner v. Stone 2 Ed. 128.

Johnson v. GolswaineENR 3 Anstr. 749.

Low v. Innes 4 De G. Jo. & Sm. 286.

Phillips v. SmithENR 14 M. & W. 589.

Aubrey v. FisherENR 10 East, 446.

Humphreys v. HarrisonENR 1 Jac. & W. 581.

Phillips v. SmithENR 14 M. & W. 589.

Berriman v. PeacockeENR 9 Bing. 384.

Aston v. AstonENR 1 Ves. Sen. 264, 396.

Rayner v. StoneENR 2 Eden, 128.

Injunction — Waste — Timber — Hedges — Landlord and Tenant — Proper Cultivation.

VOL. VII.] EQUITY SERIES. 143 Bence. He must pay the costs of the day, and. also the costs of V. C. Court. this motion, and must be ready to proceed forthwith, if the Plain- 1873. tiff desire to have the hearing during the present sittings. GRIFFIN Let the cause be replaced in the list for hearing. HAMILTON. Francis Tierney, Solicitor for Plaintiff. Frederick Hamilton, Solicitor, Defendant, in person. DUNN v. BRYAN. Injunction-Waste-Timber-Hedges-Landlord and Tenant-Proper Cultivation. V. ,C. Court. 1872. Nov. 7, 8, 25. 1. Cutting young trees under twenty years' growth, though of the kinds which may be timber by common law or local custom, is not necessarily waste, but will be so if they be cut unseasonably or in such a manner as to injure the reproductive power of the stools. In all such eases it is a very important conÂÂsideration that they have or have not been previously or usually cut. 2. A tree must attain a growth of twenty years before it can be deemed timber. 3. It is not waste in a lessee to cut down trees not timber, unless they are planted for the ornament or shelter of the house, or perform some important function, such as supporting a bank or the like, and provided also that he cuts them so as not to destroy the germinative or reproductive power of the stools. Trees, even of the kinds that may become timber by attaining a growth of twenty years, may, if under that age, be cut by a lessee, provided they be cut seasonÂÂably, that is, according to what has been done either with the same trees, if springing from old stools, or other trees in the same place or the same neigh-hood, on former occasions. 4. The principle that the cutting of saplings or young timber unfit to be felled is, under certain circumstances, equitable waste, does not apply to cases between landlord and tenant when the cutting of them is seasonable. 5. The mere cutting of a hedge in such a manner as that it will grow again is not waste ; but grubbing up the thorns of which it is composed, or allowing the germins to be destroyed by cattle, or cutting them so unseasonably or imÂÂproperly as that they will not grow again and replace what has been cut, is waste. 6. The Court will not interfere by injunction to prevent the cutting of hedges with a saw instead of with a hatchet or hedge-knife, and will not go into the consideration of these different modes of operating all that it will look to being that no permanent injury to the inheritance is done, 144 THE IRISH REPORTS. [I. R. V. C. Court. 7. To warrant the Court in granting or continuing an injunction, it must 1872. be reasonably satisfied that there is an intention on the part of the Defendant to do the acts sought to be restrained, or at least, that there is probable ground DUNN for believing that, unless the injunction be granted, there is danger of such acts Z. BRYAN. being done ; and it is not a sufficient ground for granting an injunction that, if there be no such intention, it will do the Defendant no harm. 8. The Court will not investigate the proper mode of cultivation of a farm ; and the implied term of an agricultural contract, namely, to cultivate in a proÂÂper manner according to the custom of the country, is not more specific than a general covenant to keep in repair. HEARING ON REPLICATION. The bill was filed on the 24th November, 1871, by Captain Josias Dunn (who was absent on service with his regiment in India), and Daniel M'Allister, of Staffordstown, in the county of Dublin, farmer, and prayed as follows : 1. That the Defendant might be compelled to put certain houses and offices onthe lands comprised in a lease of 19th June, 1786, into proper repair. 2. That he should be compelled to maintain in good condition the portion of said lands in his possession, together with the improvements effected thereon. 3. That an account might be taken of all timber and timber-like trees on said portion of lands cut down by the Defendant or his servants, and that he should account with the Plaintiff Dunn for their value. 4. That the Defendant should make satisfaction to the Plaintiffs for the loss occasioned. to the premises by his cutting down the trees and hedges thereon. 5. That the Defendant and his servants should be restrained from cutting down any timber or timber-like trees standing on the premises, and from making use of any heretofore cut by him thereon ; and also from cutting down or destroying the hedges, and from tilling the premises in an injurious or unhusÂÂbandlike manner, or committing any other waste thereon ; and 6. For the usual consequential relief. The Plaintiffs were the owners of the reversion expectant upon the lease of the lands, one moiety of which was in the posÂÂsession of the Defendant as assignee of the lessee's interest therein. Dunn was the actual and present owner of the reversion, and had made to M'Allister, in 1868, a lease in reversion, to take effect in possession on the expiration of the existing one. VAllister VOL. VII.] EQUITY SERIES. 145 was also the assignee of the lessee's• interest in the other moiety P. C. Court. of the lands comprised in the lease of 1786 (having purchased 1872. a portion of it in 1863, and the residue in 1866), and he and the DUNN Defendant were in occupation each of his own moiety of the lands. . BRYAN The lease of 1786 (which was to expire on the 25th March, 1874) contained but one special covenant, which restricted the lessee from breaking up or converting into tillage, in any one year, any part of the lands except twenty acres of the south side of them, being that portion in the Defendant's possession ; and it reserved an increased rent of £10 for every acre above such twenty which should be so broken up. The bill charged the Defendant with having persistently broken up more than twenty acres of his part of the lands, in wilful vioÂÂlation of the special covenant ; that this was done in spite of freÂÂquent remonstrances, which were systematically diregarded by him ; and that just before the filing of the bill he proceeded to plough up the only field in his possession which he had not preÂÂviously broken up. It next charged that in October, 1871, in conversation with a friend of the Plaintiff named Dyer, the DeÂÂfendant had threatened that he would not only break up the whole of the land in his possession, but that he would cut down to the root every tree and bush growing on the land, and make a complete comÂÂmon of it by the time his lease should be out ; that he would leave the land worth nothing to his landlord when he should have done with it ; and that he would set fire to the house and offices when going away. It was then alleged that he proceeded to carry out this threat, and had accordingly, since the 27th October, cut down a great number of trees on the lands ; that the Plaintiff and Dyer went on the lands a few days before the bill was filed, and found that a number of old ash trees had been cut down ; that they counted upwards of ninety such trees cut down and lying on the ground, and that they also found that the entire hedge-rows where the trees had been growing had been cut to the ground. The bill next contained a general allegation of permissive waste in the buildings, which, upon the evidence at the hearing, was sought to be converted into wilful and malicious waste, and was charged to have been committed in execution of the alleged threat. The bill lastly stated that the Defendant had been tilling the lands in an THE...