Earl of Enniskillen v Reilly

• Jurisdiction: Ireland
• Judgment Date: 10 May 1893
• Date: 10 May 1893
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before JOHNSON, GIBSON, and MADDEN, JJ.

EARL OF ENNISKILLEN

and

REILLY

Garnett v. BradleyELR 3 App. Cas. at p. 953.

O'Connor v. SmithUNK 20 L. R. Ir. 393.

Gabbet v. M'CarthyUNK 30 L. R. Ir. 720.

Dean of Ely v. BlissENR 5 Beav. 574, at p. 582.

In re Williams 36 Ch. Div. at p. 578.

Gabbet v. M'CarthyUNK 30 L. R. Ir. 720.

Drainage charge — "Increased rent," — Statutory tenancy ——, 1881 (44 & 45 Vict. c. 49), s. 5 — Jurisdiction of the Land Commission.

372 LAW REPORTS (IRELAND). EARL OF ENNISKILLEN v. REILLY (1). Drainage charge-" Increased rent,"-Statutory tenancy-Drainage (Ireland) Acts, 1863 (26 (5. 27 Vict. c. 88), s. 56, 1872 (35 (5. 36 Viet. c. 31), s. 2-Land Law (Ireland) Act, 1881 (44 (5. 45 Vict. c. 49), s. 5-Jurisdiction of the Land Commission. "Increased rent," assessed by the Commissioners of Public Works upon occupiers of land in respect of drainage works, is not contract rent as between landlord and tenant, but a contribution by the occupier, in respect of the benefit derived by him from such drainage, to the proprietor upon whom the primary liability is cast. The Provisions of the Drainage Acts relating thereto are not affected by sect. 5 of the Land Law Ireland Act, 1881, which enacts that a tenant shall not during the continuance of a statutory term be compelled to pay a higher rent than the rent payable at the commencement of such term. Qucere, Has the Land Commission jurisdiction, in fixing a fair rent, to assess the amount of such increased rent or drainage charge CASE STATED by Holmes, J., for the opinion of the Court upon a civil-bill appeal from the County Court Judge of FerÂmanagh, heard at the Fermanagh Spring Assizes, 1893. The case stated was in the following terms :- " The civil bill in this matter was brought to recover the sum of £11 6s. 5d., alleged to be due for one year's use and occupation by the defendant of his holding in Clonliffe, under the plaintiff, as. tenant from year to year, up to and ending on the 1st May, 1892. No question arose in reference to £10 17s. 2d., portion of the sum sued for. It was admitted that the defendant and his predecessors in title had held, for a long time previous to the year 1880, portion of the lands of Clonliffe as tenants from year to year to the plain-. tiff and his predecessors in title ; that by order of the Irish Land Commission, dated May, 1883, the fair rent of the said holding was fixed at the annual sum of £10 8s.; that subsequently an (1) Before JOHNSON, GIBSON, and MADDEN, JJ. Vor.,. XXXII.] Q. B. & EX. DIVISIONS. 373 addition was made to the lands included in the holding, upon the Q. B. Div. terms that the rent should be increased to £10 17s. 2d. ; and that 1893. a year's rent up to the 1st May, 1892, was due at the date of the ENNISKILLEN service of the civil bill. The controversy between the parties to REuI.Y. the appeal was confined to the sum of 9s. 3d., the residue of the sum sued for, and arose under the following circumstances :ÂThe Commissioners of Public Works in Ireland, by Provisional Order, dated the 3rd August, 1880, and made under the provisions of the Drainage and Improvement of Lands (Ireland) Act, 1863, and the Acts amending the same, constituted an area, therein described, a separate drainage district by the name of the Lough and River Erne Drainage and Navigation District. This ProÂvisional Order was confirmed by the Drainage and Improvement of Lands Supplemental Act (Ireland) 1880. " The monies expended on the drainage and improvement of land in the said district consisted entirely of public monies lent and advanced by the Commissioners of Public Works in Ireland, pursuant to the provisions of the aforesaid Acts. The holding of which the defendant and his predecessors in title were tenants is situate within the area of the said drainage district. The work carried out in pursuance of the Provisional Order and the conÂfirming statute, was commenced in the year 1880, and was not completed until ten years later. " The award prescribed by the 39th and following sections of the Drainage and Improvement of Lands (Ireland) Act, 1863, and the amending Acts, was made by the Commissioners of Public Works in Ireland on the 4th April, 1891, and was duly enrolled on the 2nd May, 1891. " Application having been made on behalf of the plaintiff to the said Commissioners to determine the amount of increased rent which the defendant should pay in consequence of the improveÂment of his holding by the aforesaid works, the Commissioners, by instrument under their seal, dated the 3rd September, 1891, determined that such increased rent should be fourteen shillings per annum, payable by two half-yearly payments on the 1st May and 1st November in every year (1). (1) This " instrument fixing increased rent payable by yearly tenant" recites the statutory authority of the Commissioners of Public Works ; the 2 D 2 374 LAW REPORTS (IRELAND). [L. R. 1. Q. B. .Div. " Such application and determination were alleged to have 1893. been made pursuant to the 56th section of 26 & 27 Viet. c. 88, ENNISKILLEN and the 2nd section of 35 & 36 Viet. c. 31. REILLY. " The sum in dispute consisted of the sum of 7s., one gale of such increased rent from the 1st November, 1891, to the 1st May, 1892, and 2s. 3d., the apportioned part of the previous gale from the 3rd September, 1891 (the date of the instrument determining the amount), to the 1st November following. " The contention of the plaintiff was that the defendant was liable to pay this sum, notwithstanding the order fixing the fair rent of the holding. The contention of the defendant was that, during the statutory term, no addition could be made to the judicial rent, except by agreement pursuant to the 5th section of the Land Law (Ireland) Act, 1881. " The order fixing the fair rent does not refer either directly or indirectly to the drainage works. " I was not asked by either side to hear evidence as to whether the improvement (if...