Head v Meara

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 27 February 1912
• Court: High Court
• Date: 27 February 1912

Head

and

Meara.

Ross, J.

CASES

DETERMINITD BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND.

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1912.

Conveyance — General words — Easement — Right of way — Continuous and apparent easement — Unity of possession — Implied grant.

Two adjoining hereditaments, A and B, belonging to the same owner were the subject of an absolute order for sale in the Land Judge's Court. Over B there was a formed road constructed by the owner and used, but not as a way of necessity, for the purposes of A. B was dismissed out of Court, and A, “with the appurtenances,” was subsequently conveyed by the Land Judge to a purchaser.

Held, that a right of way over the formed road passed to the purchaser.

Query, whether the Conveyancing Act, 1881, applies to a Land Judge's conveyance.

Trial of Action.

The action was brought by the plaintiff for £100 damages for wrongfully obstructing a general right of way from the plaintiffs house at Derrylahan, in the county of Tipperary, through the lands of Ballyduff to the county road, and for an injunction.

The facts sufficiently appear in the judgment of Ross, J. The Land Judge's conveyance, under which the plaintiff claimed, was dated the 14th May, 1902, and granted to the plaintiff the lands of Derrylahan, “described in the annexed map, with the appurtenances.”

R. F. Harrison, K.C., and F. W. Price, for the plaintiff.

Littledale, K. C., and W. G. Shannon, for the defendants:—

The mortgage by the plaintiff's predecessor in title extinguished any right of way: Taws v. Knowles (1). As to the form of conveyance by the Land Judge, the Conveyancing Act, 1881, does not apply to Land Judge's conveyances, so as to import general words. The words “with the appurtenances” do not include a right of way: Goddard, Law of Easements, p. 154; Birmingham, Dudley, and District Banking Company v. Ross (2).

R. F. Harrison, K.C., in reply:—

A “formed road” is considered to be a continuous and apparent easement, and passes without general words: Brown v. Alabaster (1). The word “appurtenances” is sufficient to carry a right of way: Thomas v. Owen (2). Easements may be acquired under the general words under the Conveyancing Act, 1881: Goddard, Law of Easements, p. 143.

R. F. Harrison, K.C., and F. W. Price, for the plaintiff.

Littledale, K. C., and W. G. Shannon, for the defendants:—

Ross, J.:—

The action is brought to restrain the defendants from obstructing a right of way, and for damages.

The plaintiff, Major Head, is the owner of Derrylahan, county Tipperary. The defendants are in occupation of Ballyduff, the adjoining lands. The plaintiff claims the right to use an avenue, which passes through the defendants' lands and opens into the county road leading to Birr. There is another avenue on the plaintiff's lands, which...