Hanna v Pollock

Judgment Date16 January 1899
Docket Number(1897. No. 2956.—Ex. Div.)
Date01 January 1900
CourtQueen's Bench Division (Ireland)
Pollock (1).


(1897. No. 2956.—Ex. Div.)













Watercourse — Artificial watercourse — Enjoyment of, for twenty years — Tenants of common landlord — Prescription Act, 2 & 3 Wm. 4, c. 71.

Prior to 1894 (when they purchased their holdings through the Irish Land Commission) H. and P. were tenants of adjoining farms on the same estate. In 1861 the predecessor of H., for the better drainage of his holding constructed a drain through his lands to a neighbouring river, and at the same time a weir was constructed on the course of this drain, and a “carry” or conduit, by which some of the water was led in a different direction along H.'s side of the boundary between the two farms to the public road, and thence along that road (which ran through. P.'s holding) supplying a tank on P.'s holding with water, and ultimately finding its way to the river at a point lower down its course. In 1896 H. altered the drainage of his lands and removed the “carry,” so that it no longer supplied P.'s tank. P. entered on H.'s land and restored it. H. sued for damages for trespass, obstruction of the watercourse, and for flooding the lands. P. justified under an alleged lost grant, and by prescription. At the trial the jury found a lost grant, but found there was no flow of water as of light prior to the drainage operations in 1861, and the Judge directed a verdict for the defendant:—

Held, by Fitz Gibbon and Walker, L.JJ. (dissentiente Holmes, L.J.), affirming the majority of the Queen's Bench Division, that the drain was merely an artificial drain, not of a permanent character, but open to alteration or removal at H.'s pleasure, and that P.'s enjoyment must be regarded as permissive only.

Held also by Walker, L.J., and Holmes, L.J., that a lost grant of an easement may be presumed from enjoyment for twenty years between two tenants. whether holding under the same landlord or not.

Held by Fitz Gibbon, L.J., following Bright v. Walker (1 C. M. & R. 211), and Wilson v. Stanley (12 I. C. L. R. 345), that since the Prescription Act a fictitious grant cannot be presumed as the foundation of a right upon less than forty years' user by a termor against a termor.

The facts of this case are reported in the Court below ([1898] 2 I. R. 532), with a plan, showing the line of the watercourse.

The defendants appealed.

O'Shaughnessy, Q.C., Campbell, Q.C., and William Moore, for the appellant.

Serjeant Dodd, Wylie, Q.C., and R. F. Todd, for the respondents.

The arguments were substantially the same as in the Court below.

Fitz Gibbon, L. J.:—

This case being reported ([1898] 2 I. R. 532), I shall refer to that report with its map, and avoid, as far as I can, repeating what appears therein.

We propose to consider two questions—(1), the question of fact,—Whether there was sufficient evidence to sustain the first and second findings of the jury, of a lost grant by M'Curdy Hamilton to James Pollock of liberty to erect a “carry” or “weir,” and to divert a portion of the water flowing to that “carry” to the defendant's farm? (2), the question of law,—Whether, the period of user being less than forty years, and the parties to the alleged grant being termors only, and there being no evidence except of user to sustain the plea, the Judge was at liberty to leave the question of lost grant to the jury? In other words, is the judgment in Bright v. Walker (1), as hitherto understood, and as applied to the provisions of the Prescription Act, relating to twenty years' user, law or not?

If the question of fact be decided in favour of the plaintiff, who is the owner of the alleged servient tenement, the discussion of the question of law becomes, as it did in Timmons v. Hewitt (2), unnecessary to the decision of the case; and though my colleagues think it right for us to express our opinions upon it, those opinions cannot bind this Court, or even ourselves, in any future case.

I am clearly of opinion that there is no sufficient evidence in fact to found the presumption of a lost grant. The presumption

must always be founded upon intention inferred from circumstances, from user, and from conduct. Upon the undisputed facts of this case, I find it impossible to put into black and white any form of instrument sufficient to confer the right claimed by the defendants, which any person with the lowest measure of regard for self-interest could consent to execute, and in the evidence for the defendants, which includes that of the supposed grantee, James Pollock, I find sufficient proof both of what the transaction upon which it is now sought to found the fiction of a grant really was, and also that neither party has at any time dealt with the water in question in the way which would be essential to constitute such a user as of right as would be necessary to sustain the finding of the jury.

In discussing the case I shall fully accept the position which Angus v. Dalton (1) has, perhaps, advanced farther than any other case, that not only is belief in the existence of the presumed grant unnecessary, but that even where its existence is negatived, the jury not only may, but ought to, give to user as of right for the prescribed period the full effect of an actual grant, wherever the presumption can be lawfully made. In dealing with the facts, I shall rely only on the defendants' evidence, or on what is admitted.

In short, I shall discuss the case upon the most favourable assumption for the defendants, as indeed I am bound to do when the jury have found in their favour.

Speaking generally, I concur upon the question of fact, with Andrews, J., but it is my duty to give a detailed judgment of my own.

I take the evidence, as far as I can, in order of date, and I refer to the map printed in the Report. The oldest witness was the defendant, James Pollock, aged 89, who knows the place all his life. John Taylor, John Kerr, and Thomas M'Kennon also knew it before 1861. These witnesses prove that the water in dispute rises north of the Ballycastle road in lands now belonging to the plaintiff, called Whitegate or Chequer Hall. The land, both above and below the road, has a slight fall towards the

Killaggan water, a natural stream, and the natural outlet for the water from the land above the road.

At the commencement of the evidence, what is now the county road to Clogh Mills was an “old avenue” running at an angle from the Ballycastle road past the defendants' farm. At that time, as now, water accumulated above the Ballycastle road, on the plaintiff's lands. Until 1861, this water made its way to the Killaggan water by two courses, neither of which was a natural stream. A pipe from C on the map, carried most of the water which flowed in any defined course down to the Killaggan water. James Pollock, Taylor, Kerr, and M'Kennon all agree that before M'Curdy Hamilton, the presumed grantor, altered the flow of the water, a portion of it came straight down from Whitegate past Pollock's by a shough at the left-hand side of the Clogh Mills road to N, where it was taken under the road or “avenue” to Pollock's house through a hole which he made, and for which the county afterwards substituted a culvert. All the water running through the pipe from C, reached the Killaggan water above a scutch mill now belonging to John Mullen, but the water which ran down the Clogh Mills road past Pollock's house fell into the Killaggan water below the mill. The land both above and below the Ballycastle road, east of the Clogh Mills road, belonged to the plaintiff's predecessor, and from its low-lying and boggy character it needed drainage and improvement of the outlet for the water.

In this state of facts M'Curdy Hamilton, in or about 1861, made the water-course, which is now the subject of dispute, from B, about half-way between C and the intersection of the roads, past the point where the carry in dispute was put up, and thence on to the Killaggan water at S, above the scutch mill.

This water-course was wide and shallow; its purpose was the drainage of Hamilton's lands; and it discharges more water from the lands above the road than had previously found its way either through the pipe from C, or down the shough along the road.

The main case which the defendants tried to make in evidence at the trial was that, before M'Curdy Hamilton's operations, water ran down to the site of the carry, and from that site to the Clogh Mills road, and thence to Pollock's house. In short, the defendants tried to prove that the carry was put up originally in order to leave them water to which they were entitled, and of which they had a user as of right. This case was met, not only by evidence, part of which was given by witnesses produced for the defendants, that no water ever came to the site of the carry until the new cut made by M'Curdy Hamilton brought it there, but by the fact, admitted by James Pollock himself, that “the water had to be taken a wee bit up hill” from the new course to the Clogh Mills road by making the “carry” in question.

The jury found, upon ample evidence, against the defendants, that “before the drainage operations of 1861, no water flowed as of right from the site of the carry to the Clogh Mills road and thence to the defendant's farm.” Upon the question whether there is any evidence to sustain the presumption of a grant, this finding appears to me to be of vital importance.

I take the transaction of 1861 from the evidence of the defendant James Pollock, who was a party to it. After proving that he fetched water to the hole which he made under the Clogh Mills road before the carry was made, but discounting that evidence by the finding that this water was not brought as of right from the site of the cany—which implies that it came down the side of the road—he says...

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