Flynn v Harte

• Jurisdiction: Ireland
• Judge: Dodd, J.
• Judgment Date: 07 March 1913
• Court: King's Bench Division (Ireland)
• Date: 07 March 1913

Alice Flynn

and

Edward Harte.

Dodd, J.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1913.

Right of way — Holdings held under a common landlord — Erection of gate — Presumption of grant — Prescription Act (2 & 3 Wm. 4, c. 71; 21 & 22 Vict c. 42).

Held, no obstruction of the right of way.

The law as to the acquisition of a right of way as between tenants of a common landlord considered.

Civil-Bill Appeal heard by Dodd, J., at the Sligo Spring Assizes, 1913.

The civil-bill claimed £10 damages for trespass by the defendant and his servants on the plaintiff's lands, and removing and breaking a gate and posts. The defendant relied on the defence that the acts complained of were done in the exercise of a right of way to which the defendant was entitled.

The plaintiff and the defendant were tenants of holdings held under a common landlord. It was admitted that the defendant had a right of way over the plaintiff's holding. Across the end of this way, where it entered the county road, the plaintiff had recently erected the gate in question for the convenient use of his holding. The defendant was allowed free ingress and egress through the gate. He objected, however, to its being there, and entered on the plaintiff's land and removed it. The plaintiff thereupon brought the present civil-bill. The County Court Judge awarded the plaintiff £10 damages. The defendant appealed to the Judge of Assize.

The plaintiff and the defendant were tenants of holdings held under a common landlord. The defendant had acquired a right of way over the plaintiff's holding. Across the end of this way, where it entered the county road, the plaintiff erected a gate for the convenient use of his holding. The defendant was allowed free ingress and egress through the gate.

Fetherstonhaugh, K.C., and Leonard, for the plaintiff.

Price, for the defendant.

Dodd, J.:—

The controversy in this case is about a gate across a right of way. The holdings in respect of which the litigation has arisen are held under a common landlord. The right, or perhaps it would be more accurate to say a right, is admitted. The contest is as to whether the plaintiff is or is not entitled to put up a gate at the place where the laneway enters upon the county road. I decided in favour of the plaintiff. I was asked by some of the bar to set forth the grounds on which I proceeded, and I willingly accede.

To make my decision clear, it is desirable to trace the origin of the right of way. The law reports upon such questions since 1861 open an intensely interesting chapter in the law—statute law and Judge-made law. I commend an exhaustive study of that branch to the junior members of the Connaught Bar. I must be content with a brief outline.

At common law a right of way might be gained (a) by prescription, or (b) by grant. Prescription, running from time immemorial, of course bound everybody, and therefore bound the fee. But there were lesser interests that could only be bound, if at all, by grant. The Judges of the eighteenth century, recognizing enjoyment of a lengthened period, but not such as would establish a prescriptive right, and being desirous of having a legal origin for a well-established user, resorted to the legal fiction of a lost grant. At first juries were told that they might presume a deed between such parties as were to be bound, from continued enjoyment. The judges later told juries that such grant might be presumed, even though no such grant ever existed. And later still they told the jurors they ought to find so, in accordance with the user, and twenty years was somehow fixed upon.

The Prescription Act, 1832, was applied to Ireland by an Act passed in 1858, which came into operation in 1859. It certainly relieved prescription of much that had hindered its operation. It...