Fishbourne v Hamilton

• Jurisdiction: Ireland
• Judgment Date: 04 July 1890
• Date: 04 July 1890
• Docket Number: (1886. No. 8468.)
• Court: Court of Appeal (Ireland)

Appeal.

(1886. No. 8468.)

FISHBOURNE

and

HAMILTON.

Darvill v. RoperENR 3 Drew. 294.

Brown v. ChadwickUNK 7 Ir. C. L. R. 101.

GibbingsUNK 9 Ir. C. L. R. 223.

Hert v. GillELR L. R. 7 Ch. App. 699.

Bell v. WilsonELR L. R. 1 Ch. App. 303.

Midland Railway Co. v. RobinsonELR 15 App. Cas. 19.

Brown v. ChadwickUNK 7 Ir. C. L. R. 101.

Listowel v. GibbingsUNK 9 Ir. C. L. R. 223.

Darvill v. RoperENR 3 Drew. 294.

Tucker v. Linger 21 Ch. Div. 32.

Hext v. GillELR L. R. 7 Ch. App. 699.

Buccleugh v. WakefieldELR L. R. 4 H. L. 377.

Attorney-General v. Welsh Granite Co. W. N., 1887, p. 86.

Bell v. WilsonELR L. R. 1 Ch. App. 303.

Listowel v. GibbingsUNK 9 Ir. C. L. R. 223.

Duke of Buccleugh v. WakefieldELR L. R. 4 H. L. 377.

Hilton v. Lord Granville 5 Q. B. 701.

Glasgow v. FarieELR 13 App. Cas. 657.

Midland Railway Co. v. CheckleyELR L. R. 4 Eq. 19.

Midland Railway Co. v. Haunchwood Brick and Tile Co. 20 Ch. Div. 552.

Earl of Jersey v. Guardians of Poor of Neath Poor Law UnionELR 22 Q. B. Div. 555.

M'Donnell v. KennethUNK 1 Ir. C. L. R. 113.

Dand v. KingscoteENR 6 M. & W. 174.

Earl of Rosse v. WainmanENR 14 M. & W. 859.

Glasgow v. FarieELR 13 App. Cas. 657.

The Duke of Buccleugh v. WakefieldELR L. R. 4 H. L. 377.

Listowel v. GibbingsUNK 9 Ir. C. L. R. 223.

Fee-farm grant Reservation of mines and minerals Limestone Rights of grantor Compensation for damage payable, though not provided for in grant.

Von. XXV.] CHANCERY DIVISION. 483 FISHBOURNE v. HAMILTON. (1886. No. 8468.) Fee-farm grant-Reservation of mines and minerals-Limestone-Rights of grantor-Compensation for damage payable, though not provided for in grant. By indenture, dated the 26th September, 1712, the Earl of T. granted to W., in fee-farm, the lands of B., with the appurtenances, reserving to the grantor all mines and minerals. In the year 1750 all the estate and interest of W. was vested in C., who, in that year, executed a lease for lives, containing a covenant for perpetual renewal, to F. This interest was converted into a fee-farm grant in 1855, in pursuance of the provisions of the Renewable LeaseÂÂhold Conversion Act. The fee-farm grant contained a similar reservation of minerals. The estate and interest of the lessee in the lease of 1750 became vested in the plaintiff; but prior to the fee-farm grant W. F., who was then entitled to the lessee's interest in the lease of 1750, executed a lease, dated the 29th November, 1825, for ninety-nine years to L. The interest of L. in this lease became vested in the defendant H. F., who was ejected for non-payment of rent in December, 1885. In 1876 the defendant I. T. H. (who was entitled to the interest of the grantor in the deed of 1712) executed to H. F. a lease for twenty-one years of the limestone in the said lands, and the right to quarry same. The defendant H. F., under this lease, had gone in on the said lands, and carried on quarrying. In an action for an injunction to restrain this work : Held, by the Vice-Chancellor (dismissing the action) and by the Court of Appeal (Lord Ashbourne, C., and Fitz Gibbon and Barry, L.JJ.), that beds of limestone are included in the definition of " mines and minerals," whether got by quarrying or surface working ; and that, although the deed of the 26th September, 1712, did not contain any proviso for compensation, that defect was supplied by the provisions of the Irish statute, 10 Geo. 1, c. 5. Held, by the Vice-Chancellor, that the defendants were bound to pay compensation to the plaintiff for the injury to the land, but as the suit was not properly framed for that purpose, the plaintiff was not entitled to relief. Held, by the Court of Appeal, that the action should be dismissed on the terms of the defendant I. T. H. remaining bound to compensate the plaintiff for damage done to the lands by the working or removing of the limestone. Hee v. Gill (L. R. 7 Ch. App. 699) considered and approved of. V.- C. ACTION for an injunction to restrain the defendants, their 1890. lessees and workmen, from quarrying limestone on the lands of FISICBOURNE Springhill, and from selling or removing from the said lands any v. HAMILTON. limestone which had been, or might be, obtained by quarrying; and to compel the defendants to remove from the said lands the machinery erected for quarrying purposes. And for an account and assessment of damages in respect of the limestone already got by the defendants, or either of them, by means of quarrying. By indenture dated the 26th September, 1712, by virtue of the therein recited Act of Parliament, Henry, Earl of Thomond, granted to Maurice Warren and his heirs the town and lands of Ballymoyleran, containing by estimation 510 acres, situate in the barony of Slievemarragy, in the Queen's County, with the appurÂÂtenances, excepting and reserving, out of the grant thereby made, unto the said grantor, his heirs and assigns, " all mines and minerals, with free liberty to dig for the same in all places except houses, orchards, and gardens, and to carry away the same ; and excepting in like manner all waifs, strays, deodands, felons, and fugitives, goods, treasure trove, and all advowsons, and presentaÂÂtions of churches and vicarages, seneschalships and profits of Courts Leet and Courts Baron ; with free liberty to hunt, hawk, fish, and fowl, upon the premises, with servants or others in his or their company, at all proper seasons, and all other royalties whatsoever," to hold unto the said Maurice Warren, his heirs and assigns, to the use of the said Maurice Warren, his heirs and assigns for ever, subject to the perpetual yearly rent therein mentioned, and also subject to the covenants by the grantee and conditions therein contained. The said indenture was duly executed by the grantor, and enrolled pursuant to the provisions of the said Act of ParliaÂÂment. All the estate and interest of the said Maurice Warren in the said lands became vested in Sir William Cooper, Bart., who, by indenture of lease dated the 22nd February, 1750, deÂÂmised the said lands and premises to Benjamin Fisher, of Old Derrig, in the Queen's County, for a term of three lives renewable for ever, at the rent and subject to the covenants therein reserved and contained. The said lease was converted into a fee-farm grant under the provisions of the Renewable Leasehold Conversion Act, VoL. XXV.] CHANCERY DIVISION. 485 by indenture made the 5th June, 1855, between Frederick V.- C. 31'Causeland, and Theodosia, his wife, both of Bessbrook, in the 1890. FISHBOURNE county of Londonderry (in whom all the estate and interest of the said Sir William Cooper, the lessor in the said lease of 22nd HAMILTON. February, 1750, was then vested, as tenants for the life of the said Theodosia), of the one part, and William Fishbourne, junior (in whom the estate and interest of the said Benjamin Fisher, the lessee in the said lease, was then vested as a trustee for certain devisees under the will of one Robert Fisher, deceased), of the other part, subject to the perpetual yearly rent, and to the covenants and conditions, therein contained. The said indenture contained the following exception and reservation :-" Excepting and always reserving out of this grant to Henry, the late Earl of Thomond, all mines and minerals, with free liberty to dig for the same in all places except houses, orchards, and gardens, and to convey the same away, and excepting also all waifs, strays, deodands, felons and fugitives, goods, treasure-trove, seneschalships, profits of Court Leet and Court Baron, with free liberty for the said late Earl of Thomond, and for the said Frederick M'Causeland and Theodosia WCauseland, their and her heirs and assigns, and the person or persons entitled for the time being to the yearly fee-farm rent thereby reserved, to hunt, hawk, fish, and fowl upon the premises, with servants and others, at all proper seasons." The estate and interest of the lessee in the said lease of the 22nd February, 1750, and of the grantee in the said fee-farm grant of the 5th June, 1855, of and in the said lands of BallyÂÂmoyleran, were vested in the plaintiff, the heir-at-law of the said William Fishbourne, junior (who died on the 22nd day of July, 1875), as trustee for the persons beneficially entitled to the said lands under the will of Robert Fisher. The action was brought by the plaintiff, as such trustee, for, and on behalf of, and for the protection of the rights of, the said persons. Prior to, and at the time of, the execution of the said fee-farm grant of the 5th June, 1855, portion of the said lands of BallyÂÂmoyleran, called Springhill, containing 57A. 3R. 25 P., Irish planÂÂtation measure, was held from the said William Fishbourne, jun., under an indenture of lease, bearing date the 29th day of NovemÂÂber, 1825, made between the said William Fishbourne, junior, of VoL. XXV. 2 Q FBI:MOURNE rent and subject to the covenants by the lessee and conditions HAMILTON. therein contained. The estate and interest of the said lessee James Lafarelle in the said lands of Springhill vested in the defendant Harman Fitzmaurice by assignment ; and the said Harman Fitzmaurice continued tenant thereof under the said lease until the year 1885, when he was ejected from the said lands for non-payment of the rent reserved by the said lease of 1825. Possession of the said lands was duly delivered to the plaintiff in the month of June, 1885. The period for redemption expired in December, 1885. The premises were not redeemed, and the said lease of 1825 had consequently determined. There were extensive beds of limestone beneath the said lands of Springhill. In the year 1876 the defendant Ion Trant Hamilton, who claimed to be entitled to the estate and interest of the grantor, under the said grant of 1712, of and in the rent thereby reserved, and the exceptions and reservations therein contained, executed a lease, whereby he purported to demise to the said defendant Harman Fitzmaurice, for twenty-one...