Fowler v Blakely

• Jurisdiction: Ireland
• Judgment Date: 25 April 1862
• Date: 25 April 1862
• Court: Rolls Court (Ireland)

Rolls.

FOWLER

and

BLAKELY.

Chatterton v. WhiteUNK 1 Ir. Eq. Rep. 200.

Anonymous 1 Hog. 147.

Massy v. Gubbins L. & T. 95.

Coppinger v. Gubbins 1 J. & L. 410.

Purcell v. Nash 1 Jones, 627.

Stevenson v. Moore 7 Ir. Chan. Rep. 462.

Annonymous; Boyle v. OlphertsUNK 1 L. & T. 328; S. C., 4 Ir. Eq. Rep. 241.

Lord Waterpark v. Fennell 1 Jones, 627, n.

Rorke v. Errington 7 H. of L. Cas. 017.

Chatterton v. WhiteUNK 1 Ir. Eq. Rep. 200.

Anonymous caseUNK 1 Hogan, 147.

Massy v. Gubbins Long. & Town. Rep. 95; S. C., H. & J. 597.

Coppinger v. Gubbins 3 J. & L. 409, 410.

58 CHANCERY REPORTS.. FOWLER v. BLAKELY. THOMAS MONTGOMERY, being seised in fee of the lands of Little-mount, Lisduff and Rathkeeland, in the county of Fermanagh, by lease, dated the 14th of November 1842, demised to Charles Blakely, his heirs and assigns, part of the said lands of Little-mount and Lisduff, containing thirty-two acres, Irish plantation measure, with the bog then in the possession of the said Charles Blakely, situate in the bogs of Littlemount and Rathkeeland; to hold the same, with the rights, members and appurtenances thereunto belonging or otherwise appertaining, from the 1st of November 1842, for three lives or thirty-one years, at the rent of 40. It was proved by Mr. Hugh Swansey, who was the agent of the property in 1842, and had prepared the lease, that Charles Blakely, previously to and at the date of the lease, was in posÂÂsession, as tenant from year to year, of about an acre and a rood of the bog of Rathkeeland, on which he cut turf for consumpÂÂtion, but not for sale ; and in 1846 or 1847 he got possession of a further portion of the bog of Rathkeeland. The petitioner became the purchaser, in the Landed Estates Court, of the lands of Littlemount, Lisduff and Rathkeeland, which were conveyed to him by the Commissioners, by two several deeds, dated the 11th of March 1859. By an order of the Landed Estates Court, dated the 6th of June 1859, 3a. 2r. 17p. were declared to be the portion of the bog of Rathkeeland to which the respondent was entitled under the lease of 1842 ; and comÂÂpensation was awarded to the petitioner for the non-delivery of the actual possession of that portion of the bog of Rathkeeland, during the tenancy. The petition was filed for an injunction to restrain the respondent, the widow of Charles Blakely, and entitled to his interest under the lease, from cutting turf for sale on the bog of Rathkeeland. CHANCERY REPORTS. 59 Some other statements in the affidavits filed in the matter are referred to in the judgment ; but, for the purpose of this report, it is unnecessary to repeat them. Mr. Berkeley and Mr. De Moleyns, for the petitioner, argued that the demise being of land, together with bog, conferred merely a right to cut turf for sale: Chatterton v. White (a); Anonymous (b); Massy v. Gubbins (a); Coppinger v. Gubbins (d); Purcell v. Nash (e); and distinguished the case from Stevenson v. Moore W 'where the demise was of a bog where turf had been always cut for sale. 1862. Rolls. FOWLER v. BLAKELY. Argument. Mr. Brewster and Mr. William Smith, for the respondent, conÂÂtended that this was a separate demise of a portion of the bog of Rathkeeland as bog, no portion of the lands of Rathkeeland having been demised with it, and it conferred the right to use it as such, whether for consumption or profit : Anonymous ; Boyle v. Olpherts (g); Lord Waterpark v. Fennell (h). The MASTER OF THE ROLLS. The petition in this case was filed for an injunction to restrain the respondent, Rebecca Blakely, from digging up, cutting or removing any of the soil or surface of the land or bog of RathÂÂkeeland, for the purpose of making turf, save for the use and consumption of the said respondent, as tenant of the said lands, and to be used and consumed in the dwelling-house on the lands occupied by the said respondent ; and from selling, removing or _ disposing of the turf already cut on said bog. The petition states that Richard Thomas Montgomery, being seised in fee of the lands of Littlemount, Lisduff and RathkeeÂÂland, in the county of Fermanagh, by lease, dated the 14th of November 1842, and made between the said Richard Thomas (a) 1 Ir. Eq. Rep. 200. (b) 1 flog. 147. (c) L. & T. 95. (d) 1 & L. 410. (e) 1 Jones, 627. (f) 7 Ir. Chan. Rep. 462. (g) 1 L. & T. 328 ; S. C., 4 Ir. Eq. Rep. 241. (1) 1 Jones, 627, n. April 25. Judgment. 60 CHANCERY REPORTS. Montgomery of the one part, and Charles Blakely of the other part, the said Richard Thomas Montgomery, demised to the said Charles Blakely, his heirs and assigns, that part of the lands of Littlemount and Lisduff, therein described, containing thirty-two acres, Irish plantation measure, with the bog then in the possession of the said Charles Blakely, situate in the bogs of Littlemount and Rathkeeland ; habendum from the 1st of NovemÂÂber 1842, for the lives therein mentioned, two of whom are living, or thirty-one years...