Ewart v Belfast Poor-Law Guardians

• Jurisdiction: Ireland
• Judgment Date: 01 July 1881
• Date: 01 July 1881
• Court: Chancery Division (Ireland)

CHANCERY DIVISION

EWART

and

BELFAST POOR-LAW GUARDIANS.

Whitehead v. ParksENR 2 H. & N. 870.

Northam v. HenleyENR 1 E. & B. 665.

Chasemore v. Richards 7 H. L. Cas. 349.

Grand Junction Canal Company v. ShugarELR L. R. 6 Ch. App. 483.

Broadbent v. Ramsbotham 11 Ex. R. 602.

Holker v. PoritELR L. R. 8 Ex. 107.

Briscoe v. DroughtUNK 11 Ir. C. L. R. 250.

Dudden v. The Guardians of Clutton UnionENR 1 H. & N. 627.

Gore v. M'DermottUNKIR I. R. 1 C. L. 340.

Popplewell v. HodkinsonELR L. R. 4 Ex. 248.

Ballacorkish Silver Lead and Copper Mining Co. v. HarrisonELR L. R. 5 P. C. 49.

Acton v. BlundellENR 12 M. & W. 324.

Grant Construction Water rights Water flowing in defined subterranean channel Abstraction of water Derogating from grant.

v. C. EWART v. BELFAST POOR-LAW GUARDIANS. 1880. Grant-Construction-Water rights-Water flowing in defined subterranean July 8, 9, 10, channel-Abstraction of water-Derogating from grant. 15. August 7. T., who was lessee for lives renewable for ever of a parcel of ground expressed in the original lease to be demised, " together with the free use of all springs and streams of water arising in or running through the demised premises, or any part thereof, for any bleach-greens or other works which then were, or at any time thereafter should be, erected on the premises," made two sub-leases to different persons, for lives renewable for ever, of portions of the premises, the first sub-lease being made in 1851, and describing the premises therein comprised as " that parcel of land formerly used as a bleach-green, together with the free use of all waters arising in or running through the demised premises, or any part thereof, theretofore used for the purposes of linen manufacture on the said lands, as fully as T. was entitled thereto ; " the second being made in 1853, of the remaining portion of the lands, " together with the free use of all water, if any, arising in or running through the demised preÂÂmises, or any part thereof, as fully as T. was entitled thereto." The interest in both sub-leases, as well as the equity of redemption in the superior lease, subject to a mortgage affecting the same, afterwards became vested in W., who was subsequently adjudicated a bankrupt, and the lands were sold by the Court of Bankruptcy. The Plaintiff purchased the portion of the lands comprised in the sub-lease of 1851; and one C., under whom the Defendants claimed, became the purchaser of the portion included in the sub-lease of 1853. Both portions of the lands were set up for sale by auction on the same day, but the Court having refused the Plaintiff's first tender, he was obliged to increase it, and was not actually declared the purchaser until a few days after the confirmation of the sale to C. By deed of the 15th of March, 1876, made between the assignees of W. and certain other persons and the Plaintiff, which recited (inter alia) the superior lease, the sub-lease of 1851, with the water rights thereby respectively granted, and the sub-lease of 1853, the grantors conveyed to the Plaintiff the parcel of land formerly used as a bleach-green, together with the free use of all water rising in or running through the demised premises, or any part thereof, thereÂÂtofore used for the purposes of linen manufacture, as fully as T. was entitled thereto under the recited superior lease or otherwise. By deed of the 11th of April, 1876, made between the same grantors and C., containing similar recitals to those in the conveyance to the Plaintiff, the grantors conveyed to C. the lands comprised in the sub-lease of 1853. The testatum of this deed made no mention of water rights. The Plaintiff's lands were at a lower level than the lands of C. ; and in the Plaintiff's lands, a few feet from the fence dividing VoL. V.] CHANCERY DIVISION. them from C.'s lands, a copious stream of pure water issued from the ground. This water was peculiarly suitable for bleaching purposes ; and the Plaintiff, who was a bleacher, deposed that he intended to use the water for bleaching ; and at the time of action brought, it was used for domestic purposes in the dwelling-house on the Plaintiff's grounds, and for the supply of a large mill thereon. The Defendants, who were the rural sanitary authority for the village of L., entered into an agreement with C. to permit them to bore for water on his lands ; and they made a cutting on C.'s lands, a few feet from the fence, and obtained a large supply of water, whereupon the stream on the Plaintiff's land ceased to flow. The Plaintiff having applied for an injunction to restrain the Defendants from diverting and abstracting the water from his stream : Held, that the conveyance to the Plaintiff expressly granted this water to him ; and that as the grantors could not derogate from their own grant, neither C., who derived his title from these grantors, nor the Defendants, claiming through him, could lawfully deprive the Plaintiff of the use of the water in question. Whitehead v. Parks (2 H. & N. 870) approved of and followed. ACTION for an injunction to restrain the Defendants from abstracting and diverting certain waters, streams, and springs from the Plaintiff's lands, and from continuing cuttings and openings made by the Defendants so as to divert or abstract the said waters, streams, and springs. By indenture of lease dated the 12th of February, 18.50, made between Elizabeth May of the first part, George A. C. May of the second part, and Robert Thompson of the third part-which recited that said Elizabeth May was tenant for life in possession of the ground and premises thereinafter described, and that the said George A. C. May was seised of the remainder in the same premises for an absolute estate for lives renewable for ever-the said Elizabeth May and George A. C. May granted to the said Robert Thompson, his heirs and assigns, the piece or parcel of ground and land called the Bleach-green, being part of the town-land of Ligoneil and Ballysillan, county Antrim, containing 66A. 2n. 30p. statute measure, together with the free use of all springs and streams of water arising in or running through the said demised premises, or any part thereof, for any bleach-greens, or other works which then were or at any time thereafter should be erected or set up on the said premises, to hold for three lives, renewable for ever, at a yearly rent of 250. formerly used as a bleach-green, together with the free use of all waters arising in or running through the said demised premises, or any part thereof, theretofore used for the purposes of linen manuÂÂfacture on the said lands, as fully as the said Robert Thompson was entitled thereto under the said lease of the 12th of February, 1850, or otherwise. By an indenture dated the 5th of April, 1853, Elizabeth Thompson and Richard J. K. Sinclair, repreÂÂsenting the estate of Robert Thompson, demised to James Bodel, his heirs and assigns, that piece or parcel of land, being the residue of the lands demised by the said lease of the 12th of February, 1850, and not comprised in the said lease of 9th of May, 1851, that is to say, that parcel of land being part of the townlands of Ligoneil and Ballysillan, and part of the lands formerly used as a bleach-green, together with the free use of all water (if any) arising in and running through the said demised premises, or any part thereof, as fully as the said Elizabeth Thompson was entitled thereto under the said lease of the 12th of February, 1850, or otherwise. The sub-lessees' ,interests, under the above two subÂÂleases, were afterwards conveyed to one Richard Waring by a Landed Estates Court conveyance, dated the 6th of July, 1866. By an indenture of grant, dated the 23rd of May, 1868, and made between the said George A. C. May and Charles H. May of the one part, and James Thompson and Jane Thompson of the other part, the lessee's interest, under the lease of the 12th of February, 1850, was converted into an estate in fee-farm. The said Richard Waring having purchased the interest in the premises under the said lease and grant, the same was, by an indenture dated the 8th of March, 1869, conveyed to the use of one William Ross, to secure the repayment of 1500, with a proviso that, on payment by Richard Waring of 1500 and interest, William Ross would convey the estate to him. Richard Waring was, on the 14th of August, 1874, adjudiÂÂcated a bankrupt ; and on the 28th of May, 1875, it was ordered VoL. V.] CHANCERY DIVISION. by the Court of;. Bankruptcy that the estate and interest of the bankrupt, his assignees and mortgagee, in the lands of Ligoneil and Ballysillan should be sold, and the premises were set up for sale in four lots. Lots 1, 2, and 4, together, contained all the premises comprised in the sub-lease of the 9th of May, 1851, with the exception of a few feet of ground, and lot 3 contained all the premises comprised in the sub-lease of the 5th of April, 1853, together with the above-mentioned few feet of ground. All these lots were set up on the same day, and the Plaintiff was the highest bidder for lots 1 and 4, Andrew Clements for lot 3, and one Pinkerton for lot 2. On the 7th of December, 1875, these biddings were brought before the Judge of the Bankrupt Court, and he confirmed the sale of lots 2 and 3, and refused to accept the Plaintiff's bids for lots 1 and 4, and directed proposals to be received for these lots, and on the same day the Plaintiff made a higher bid for them, and his bid was accepted on the 10th of December. The Plaintiff was subsequently substituted for PinÂÂkerton as the purchaser of lot 2, and lots 1, 2, and 4 were conÂÂveyed to the Plaintiff by an indenture of the 15th of March, 1876. By this indenture-which was made between the said William Ross of the first part, Margaret Heburn of the second part, Charles Henry James and Lucius Henry Deering and Samuel Gordon, the assignees in bankruptcy of Richard Waring, of the third part, John Oulton and William Borthwick of...