Gaw v Córas Iompair Éireann

• Jurisdiction: Ireland
• Judgment Date: 01 January 1955
• Date: 01 January 1955
• Docket Number: (No. 223. P.1949.)
• Court: High Court

Gaw v. Córas Iompair Éireann

Between EUNICE GAW, Plaintiff, and C ÓRAS córas IOMPAIR ÉIREANN éireann

Defendants.

(No. 223. P.1949.)

Easement - Right of way - Covenant by grantor to repair - Way in state of disrepair - Whether successors in title of grantor bound to repair - Benefit of covenant running with right of way - Successor in title of grantee entitled to enforce covenant to repair - Mandatory injunction.

The benefit of a covenant to repair may run with an incorporeal hereditament (a right of way) where the person claiming to be entitled is in the same estate as the original covenantee and possesses an interest in the subject-matter of the covenant independent of the covenant and the covenant touches and concerns that interest.

M.B., a predecessor in title of the plaintiff, was the owner of a house and land which extended from the house down a cliff to the foreshore. A railway company purchased a strip of the land between the house and the foreshore for the purpose of constructing a railway line thereon, and subsequently to a deed of conveyance to the railway company of the said land a further deed was executed containing a grant by the railway company to M.B. of a sole right of way from the house across the said strip of land to the foreshore over a specially constructed passage or footpath. The grant also contained a covenant by the railway company for themselves, their successors and assigns, at all times to keep, repair and maintain the footpath and keep clear the strand at the end thereof.

The plaintiff was the successor in title of M.B., and the defendants by virtue of the provisions of certain public and private statutes were the successors of the undertaking and liabilities of the railway company. The footpath had fallen into a state of disrepair and the strand at the shore end of it had become cluttered with stones and rocks cast up by the tide. In an action against the defendants by the plaintiff claiming a declaration of her title to the right of way and seeking to enforce the covenant to keep, repair and maintain the footpath and keep clear the strand it was

Held 1, that the plaintiff was entitled to a right of passage and to the benefit of the covenant to repair: Holmes v. Buckley Prec. in Ch. 39 considered and approved.

2, that the defendants were bound by the covenant to repair the footpath;

3, that the plaintiff should be given a mandatory injunction to enforce the execution of repairs to the footpath in accordance with the covenant.Todd v. Midland Great Western Railway Co. 9 L. R. I. 85 and Fortescue v.Lostwithiel and Fowey Rly. Co.[1894] 3 Ch. 621 considered.

Witness Action.

By deed of indenture, dated the 20th March, 1856, and expressed to be made between the Dublin and Wicklow Railway Company, of the one part, and Martin Burke, of the other part, the Dublin and Wicklow Railway Company for the consideration therein expressed granted, covenanted and agreed with Martin Burke, his heirs and assigns, that it should be lawful for him his heirs and assigns and his and their servants and agents and the tenants and occupiers for the time being of the house and lands, known as Kyber Pass, situate at Dalkey, in the Barony of Rathdown and County of Dublin, from time to time and at all times for ever thereafter and for all purposes to have and use the sole right and facility of passage and to go, return, pass and repass in, through, along, over and upon the footpath, footway, road, passage and strand at the foot thereof then lately made and constructed over lands belonging to the said Railway Company on both sides of Vico Road and formed, fenced and railed off by the said Railway Company from and out of other portions of the said lands leading from the south side of Kyber Pass, first, to the Vico Road on the south side thereof and after crossing the said road from the north side thereof along towards and upon the said strand at the foot thereof and thence to the sea adjacent thereto. The said deed of indenture contained a covenant by the Railway Company, its successors and assigns, that it and they would from time to time and at all times for ever thereafter, at their own cost and expense, repair, renew, amend and maintain and so keep in a proper, sufficient, substantial and workmanlike manner the said footpath, footway, road or passage and strand at the foot thereof. Subsequently, the interest of Martin Burke became vested in one, James Milo Burke, and the interest and liabilities of the Railway Company became vested in the Dublin Wicklow and Wexford Railway Company. By an order made on consent of the parties in an action in the Court of Common Pleas on the 13th June, 1873, between James Milo Burke and the Dublin Wicklow and Wexford Railway Company it was provided that the Railway Company should, under and by virtue of the said deed of indenture of the 20th March, 1856, and also of another deed dated the 10th August, 1869 (being a conveyance of the house and lands of Kyber Pass to James Milo Burke), be bound to keep the strand referred to cleared for an average width of twenty feet and for a length of forty-four feet and that such space so cleared should be deemed and taken to be the space so to be cleared and for ever kept cleared and maintained according to the true construction of the said deeds.

The right to and interest in the house and lands of Kyber Pass and the said passage of Martin Burke and James Milo Burke subsequently became vested in the plaintiff, Eunice Gaw, and the undertaking and liabilities of the Dublin Wicklow and Wexford Railway Company became vested in the defendants, Córas Iompair Éireann éireann. The defendants failed to perform and observe the covenants and conditions contained in the deed of the 20th March, 1856, and the order of the 13th June, 1873, and allowed the passage to fall into disrepair and to become dangerous and impassable. The strand was not kept cleared and had become impassable and unusable. The defendants having refused to clear the strand or to repair the passage on being requested to do so by the plaintiff, the plaintiff instituted proceedings in the High Court against the defendants claiming 1, a declaration of the plaintiff's sole right of passage; 2, a declaration that the defendants were bound to repair the passage and clear the strand; 3, an injunction restraining the defendants from omitting and neglecting to repair and clear the same; 4, an order directing the defendants to repair and clear the same; and 5, an inquiry as to damages.

Dixon J. :—

A little over a hundred years ago, the Waterford, Wexford, Wicklow and Dublin Railway Company, which had been incorporated in 1846, contemplated the construction of a tunnel for the purposes of the portion of its undertaking connecting Dalkey and Killiney in the County of Dublin. As part of the preliminaries to that construction, the Company entered into an agreement, dated the 25th January, 1848, with one, Martin Burke, described as of Stephen's Green in the City of Dublin. It is only necessary to summarise this agreement. It provided for the sale by Martin Burke to the Company of portion of the lands of Dalkey Commons for a sum which was "to cover all claim for damage by reason of severance or other injury to said lands and the house called Kyber Pass adjoining same by reason of the construction of the said railway and works." After other provisions not material for present purposes, the agreement provided:— "It is also agreed to give to Mr. Burke the right and facility of passage to the sea on the south side of said land."

This agreement was followed by a conveyance, dated the 28th February, 1848, by Martin Burke to the Company of the lands which had been specified in the agreement to hold the same to the Company their successors and assigns for ever. Martin Burke was therein described as of Stephen's

Green in the City of Dublin, hotel keeper. This conveyance contained no reference to any passage to the sea.

There appears to have been some neglect or delay on the part of the Company in giving the right and facility of passage to the sea mentioned in the agreement, because the next record in the transaction is a decretal order made by the Lord Chancellor, on the 21st November, 1853, in the matter of Martin Burke, petitioner, and the Dublin and Wicklow Railway Company, respondents. As will be seen later, an Act of 1851 had altered the name of the Company. This order dealt first with a matter included in the agreement of the 25th January, 1848, viz., the conveyance to Martin Burke of such portions of adjoining lands acquired by the Company as might not be required by the Company for the purposes of their undertaking. This matter was referred to Edward Litton, the Master of the Court in rotation, to enquire and report. The order then proceeded:— "And it is further ordered that the said Master do also enquire and report whether the respondents have in fact since the date of the said agreement of 25th January, 1848, given to the petitioner the right and facility of passage from the petitioner's house called Kyber Pass to the sea on the south side of his land as provided by the said agreement and if the Master shall find that the said respondents have not given the same then His Lordship doth declare the respondents bound forthwith to make and at all times thereafter to maintain a convenient and sufficient passage for the purpose of giving such right and facility for the petitioner's use and accommodation And it is further ordered that the parties be at liberty to apply to the Master from time to time in respect of the execution of this part of the decree And that the Master be at liberty if necessary to direct the proper mode of performance thereof."

The Master did in fact report on the 20th May, 1856, but, before this date, there was a deed of grant by the Company to Martin Burke and the works contemplated would appear to have been executed. The deed is dated the 20th...