Hanna v Pollock

• Jurisdiction: Ireland
• Judgment Date: 26 February 1898
• Date: 26 February 1898
• Docket Number: (1897. No. 2956. Exch. Div.)
• Court: Queen's Bench Division (Ireland)

HANNA

and

POLLOCK

(1897. No. 2956. Exch. Div.)

Q. B. Div.

Artificial watercourse — Right to the flow of water — Presumption of lost grant between tenants of common landlord — Effect of merger through purchase of the fee by the tenant of the servient tenement ——

Angus v. DaltonELR 4 Q. B. D. 172, 186.

Arkwright v. GellENR 5 M. & W. 203.

Beggan v. M' DonaldUNK 2 L. R. Ir. 560.

Blackburne v. SomersUNK 5 L. R. Ir. 1.

Bright v. WalkerENR 1 C. M. & R. 211.

Clancy v. ByrneUNK Ir. R. 11 C. L. 355.

Daniell v. Anderson 31 L. J. Ch. (N. S.) 610.

Deeble v. LinehanUNK 12 Ir. C. L. R. 1.

Doe v. ReedENR 5 B. & Ald. 232.

Dynevor v. TennantELR 13 App. Cas. 279, at p. 292.

Dynevor v. TennantELR 13 App. Cas. 279.

Dynevor v. TennantELR 33 Ch. D. 420, 426.

Fahey v. DwyerUNK 4 L. R. Ir. 271.

Gayford v. MoffattELR L. R. 4 Ch. 133.

Greatrex v. HaywardENR 8 Exch. 293.

Hanks v. CribbinUNK 7 Ir. C. L. R. 489.

Little v. Wingfield 11 Ir C. L. R. 75, 78.

Magor v. Chadwick 11 A. & E. p. 586.

Martin v. Great Northern Railway CompanyENR 16 C. B. 179.

Mason v. Shrewsbury, & c., Railway CompanyELR L. R. 6 Q. B. 578.

O' Kane v. O' KaneUNK 30 L. R. Ir. 489.

O'Kane v. O' KaneUNK 30 L. R. Ir. 489.

Outram v. MaudeELR 17 Ch. D. 391.

Rameshur Singh v. Koonj PattukELR 4 App. Cas. 121.

Re KeoghUNK [1896] 1 Ir. R. 285.

Saint v. PilleyELR L. R. 10 Ex. 137.

Tennent v. NeilUNK Ir. R. 5 C. L. 418.

Timmons v. HewittUNK 22 L. R. Ir. 627, 641 (see at p. 637).

Timmons v. HewittUNK 22 L. R. Ir. 627, 641.

Wheaton v. Maple & Co.ELR [1893] 3 Ch. 48.

Wheaton v. MapleELR [1893] 3 Ch. 48.

Wood v. WaudENR 3 Exch. 748.

02 THE IRISH REPORTS. [1898. HANNA v. POLLOCK (1). (1897. No. 2956. Exch. Div.) Artificial watercourse—Right to the flow of water—Presumption of lost grant between tenants of common landlord—Effect of merger through purchase of the fee by the tenant of the servient tenement—Purchase of Land (IreÂland) Act, 1885 (48 49 Viet. c. 73), ss. 8, 9—Land Law (Ireland) Act, 1896 (59 (S" 60 Viet. c. 47), s. 34. Prior to 1894 (when they purchased their holdings through the Court of 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 direcÂtion 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 this " carry," so that it no longer supplied P.'s tank. P. entered on H.'s land and restored it. H. sued for damages. P. justified under an alleged parol agreement in 1861, and by prescription. At the trial the jury found a lost grant, but found that there was no flow of water as of right prior to the drainage operations in 1861, and the Judge directed a verdict for the defendant. On new trial motion : Held, per Andrews, Madden, and Boyd, JJ. (diss. Kenny, J.), that the drain through H.'s farm was merely an artificial drain, made for the improveÂment of his land, and was essentially not of a permanent character, but open to alteration, improvement, or removal by H. at his pleasure ; that the enjoyment therefore by P. of a supply from such drain must be regarded, not as of right, but as permissive merely ; and that H. was entitled to a verdict for nominal damages, and to judgment. Per Kenny, J. (diss.), that, having regard to the evidence and to the course of the trial, the drain must be taken to be a permanent though artificial waterÂcourse, and that therefore H. was not entitled to succeed on this ground ; that twenty years' uninterrupted user having been proved, the jury were justified (1) Before ANDEEWS, MADDEN, Bona, and KENNY, JJ. Vox.. II.] QUEEN'S BENCH DIVISION. in finding a lost grant ; that the easement so established bound the tenancy of H. during its subsistence, and could not be defeated by its voluntary merger in the fee, consequent upon the purchase by him of his holding in 1894 through the Court of the Land Commission; and that accordingly the verdict and judgment ought to stand. NEW TRIAL MOTION. Prior to 1894, when they purchased their holdings through the Court of the Irish Land Commission, Hanna and Pollock were tenants of the same landlord of adjoinÂing farms, the boundary between the two being on the line marked Q-N-Weir-S on annexed map. In 1861 Hanna's predecessor in title (Hugh M'Curdy Hamilton) constructed a drain through his lands from " B " to " Weir," and thence to " S," where the drain emptied into a river, the Killagan Water. At the same time a " carry," or conduit, was constructed, apparently by Pollock, runÂning from the point marked "Weir" to "N," along the boundary between the two holdings, but on Hanna's side of that boundary, thence along a public road through Pollock's holding, past his house (near which, at " P," it supplied a watertank), and ultiÂmately finding its way into the Killagan Water, at a point further down stream. In 1896 Hanna altered the drainage of his lands, and removed or so altered the " carry " or conduit from " Weir " to " N " that the water no longer flowed along it, or supplied Pollock's tank at "P." Pollock entered and restored the " carry." Hanna thereÂupon instituted the present action against James Pollock and his brother Nathaniel Pollock, claiming damages for trespass, and for obstruction of a watercourse (apparently from " Weir " to " S "), and for flooding his lands. The defendants Pollock justified, alleging an agreement in 1861 between Pollock and Hanna's predecessor to deepen the stream (i.e. from " B " to " Weir"), and divert a part to the Killagan Water, and to construct a " carry " (from " Weir " to " N" and " P ") ; relying further on user as of right uninterruptedly from 1861 onwards, and counterclaiming for damages. At the trial before the Lord Chief Baron the following quesÂtions were left to the jury :-1. Did Hugh XL‘Curdy Hamilton, by deed, now lost by time and accident, grant to James Pollock, and his successors in title to the farm held under his lease, liberty 2 P 2 (Answer—Yes.) 2. Did said Hugh li‘Curdy Hamilton, or other r. Poixecti. the lessee of the farms now the plaintiff's, grant to James Pollock and his successors in title to the farm held under his lease, that a portion of the water flowing at the point marked " Weir " on the plaintiff's map, should flow through the hole in the fence to the public road, and alongside such road to the defendant's tank opposite his house ? (Answer—Yes.) 3. Before the drainage operations of 1801 did any water flow, as of right, from the place marked " Weir!' on the plaintiff's map to the public road, and from thence to the defendants Pollocks' farm ? (Answer—No.) Upon these findings the learned Judge directed a verdict for the defendants in the original action and on the counterclaim, with nominal damages on the counterclaim, and gave judgment for the defendants, with costs. The plaintiff now moved to change the verdict and judgment, and to have judgment entered for him for a nominal sum, and for judgment on the counterclaim, notwithstanding the findings of the jury on the first and second questions submitted to them, on the ground that the plaintiff and the defendants, being owners in fee of their respective lands, and the origin of the presumed grant having been found by the jury in their answer to the third quesÂtion, no question of lost grant should have been submitted to them, and on the ground that the alleged user was insufficient to establish a right under the Prescription Act, and that a lost grant could not, under the circumstances of the case, be inferred, or for a new trial upon the like grounds, and on the ground of misdirecÂtion, and on the ground that the first and second findings of the jury were against evidence and the weight of evidence. Serjeant Dodd (John Gordon, Q.C., and R. F. Todd, with him), for the plaintiff, argued that the drain was a temporary structure, built for the plaintiff's own convenience and the improvement of his land ; and that the user by the defendant of portion of the water it conveyed could not east on the plaintiff a burden to Vol,. II.] QUEEN'S BENCH DIVISION. 535 maintain it for ever : Arkwright v. Gell (1); Greatrex v. Hay- Q. B1 8.9D8.iv. ward (2) ; that, assuming the Court to be bound by the decisions HANNA in Timmons v. Hewitt (3) and O'Kane v. 0' Kane (4) to hold that v. a lost grant may be presumed between tenants of a common land- POLLOCK. lord, still such lost grant could only be a grant to bind the limited estates of the parties thereto; that the 9th section of the Purchase of Land (Ireland) Act, 1885—now repealed by- the Land Law (Ireland) Act, 1896 (see sects. 34, 50, and 52), but operative when the vesting orders in this case were made—left this matter open ; and that the plaintiff was entitled to nominal damages. 0' Shaughnessy, Q.C., and J. H. Campbell, Q.C. (William Moore with them), for the defendants, contended On the evidence that the drain was a permanent structure, and that therefore, though it was an artificial watercourse, the defendants were entitled to set up a prescriptive right, and to rely upon the presumption of a lost grant between the parties : Rameshur Singh v. Koonj Pattuk (5); Wood v. Waud (6) ; Blackburne v. Somers (7); that Timmons v. Hewitt (3) and O'Kane v. °Wane (4) established beyond question that in Ireland a lost grant may be preÂsumed where the fee is not...