Hosie v Lawless

CourtSupreme Court (Irish Free State)
Judgment Date16 March 1927
Date16 March 1927

Supreme Court.

Hosie v. Lawless

Practice - Transfer of action - Action commenced in High Court - Transfer to Circuit Court - Action "fit to be prosecuted in the High Court" - Appeal - Discretion of the Court - Courts of Justice Act, 1924 (No. 10of 1924), sects. 25, 26.

Motion to Transfer.

The plaintiff brought an action in the High Court, claiming (1) an injunction to restrain the defendants, their servants, agents, contractors, and workmen from trespassing on her lands of Killinney, Firhouse, Co. Dublin, and from removing the soil, sand, and gravel therefrom, and from undermining the lands and removing the support therefrom, and to restrain the defendants from so working their own lands as to cause subsidence or injury to her lands, and to restrain them from obstructing or otherwise interfering with her right of way to her lands; and (2) for a mandatory injunction to compel the defendants to remove a gate erected across the said right of way. The defendants moved to transfer the action to the Circuit Court for Dublin.

Michael Lawless, one of the defendants, stated in his affidavit in support of the motion, that the total valuation of the plaintiff's lands, as shown by the certificate of valuation, was £32. The places where the plaintiff's lands were alleged to have been undermined by the defendants were in close proximity to the River Dodder, the right bank of which was being constantly eaten away by the flow of the river; and more than 15 feet of the said bank at the part adjoining the plaintiff's holding had been eaten away during the past 25 years by the flow of the river. He had had an inspection made by an architect, who reported that, even if the defendants could be held accountable for the damage to the plaintiff's lands by undermining, the said damage could not exceed the sum of £10. In reference to the right of way claimed by the plaintiff, it was apparently over a path leading from the Firhouse Road through the lands of the defendant, Margaret Lawless, his (deponent's) wife, to the river, where it ended, and was used for the carting of gravel, which she sold. The plaintiff's house and lands adjoined the county road, known as Firhouse Road, and there would be no advantage to the plaintiff in passing over the said roadway. For the past 30 years neither the plaintiff nor her predecessors had used the said roadway, or had ever driven cattle over it. The said roadway divided his wife's farm in two, and the exclusive ownership over it was always claimed by his wife's predecessor, and by his wife since she had purchased the same.

In another affidavit made in support of the motion to transfer the action, Charles John Dunlop, Fellow of the Surveyors' Institution, and a member of the Royal Institute of Architects, stated that he had inspected the lands, and that defendants had pointed out to him the places from which they had taken gravel and sand from their lands. In his opinion, the removal of said sand and gravel had not materially affected the plaintiff's lands. The plaintiff's lands were not actually undermined, but there was considerable natural erosion from the stream, which was acting on the banks of plaintiff's lands, and this natural erosion would probably continue. The damage to plaintiff's lands, even if the defendants were held liable, could not, in his opinion, amount to more than £15.

Rosetta Hosie, the plaintiff, in an affidavit made for the purpose of opposing the motion to transfer the action, stated that it was not true to say that the defendants had not undermined her lands. Her lands at Killinney were on high ground, above the valley of the River Dodder. The western and north-western boundary of the said lands was a cliff falling directly to the valley of the Dodder, about 15 or 20 feet in height above the level of the river. Between the said cliff and the actual bed of the river at the points where the defendants had been excavating there was a distance of about 100 or 200 feet of rough strand, or foreshore. For the past 30 years, during which she had resided on the lands, she had never seen the river washing up against the cliffs at or near the points where the excavations had been made, and there had been no erosion by the river at those points. Regarding the right of way, she stated that it led from the holding of one, Myles Perry, to the public road, and was on the lands occupied by her lessee, Patrick Byrne. It would be quite impossible for Myles Perry to bring his cattle to or from his said holding to the public road through her lands without trespassing on the lands in the occupation of Patrick Byrne. The laneway for the past 30 years had been used constantly by the occupiers of the lands, which were now in the possession of Myles Perry. The said lands had always been held by her family, and were originally let to the defendants' family before the defendant, Margaret Lawless, bought her present holding, and they were now held by Myles Perry. During their occupation of the said lands the defendants and the said Myles Perry constantly used the said laneway as a right of way and approach to and from the public road. She denied that the exclusive ownership of the said lane was always claimed by the predecessor of the defendant, Margaret Lawless, while he owned the lands. Another affidavit to oppose the motion was made by John P. Bergin, a member of the Institute of Civil Engineers. He stated that he agreed with the plaintiff that it...

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9 cases
  • Attorney General (at the relation of Sligo Corporation) v Gilbride
    • Ireland
    • Supreme Court (Irish Free State)
    • 16 April 1929
    ...of the former County Court, extended as to quantum, overruled. Boyle v. Masterson, 25 L.R. Ir. 179, distinguished. Hosie v. Lawless,[1927] I.R. 464, applied. Cur. adv. vult. In the case of the motion to transfer the first action, the following judgment was delivered:— Meredith J. :— The pri......
  • State (Boyle) v Nolan
    • Ireland
    • Supreme Court
    • 1 January 1987
  • Meagher v Woods
    • Ireland
    • High Court
    • 3 July 2015
    ...2 I.R. 24; (1924) 58 I.L.T.R. 161. Gledhill v. Hunter (1880) 14 Ch. D. 492. Harrington v. Judge Murphy [1989] I.R. 207. Hosie v. Lawless [1927] I.R. 464. Howard v. Howard (1892) 30 L.R. Ir. 340. Mulvey v. Flanagan [1936] Ir. Jur. Rep. 40. Tuite v. Cullen [1914] 1 I.R. 60. Courts — Jurisdict......
  • Ronayne v Ronayne
    • Ireland
    • Supreme Court
    • 16 July 1970
    ...I.R. 24. 2 (1930) 64 I.L.T.R. 40. 3 [1931] L.J.Ir. 124. 4 [1957] N.I. 68. 5 [1934] N.I. 129. 6 [1968] I.R. 7. 7 (1956) 90 I.L.T.R. 67. 8 [1927] I.R. 464. 9 See p. 16, 10 [1925] 2 I.R. 24. 11 [1925] 2 I.R. 24. 12 [1925] 2 I.R. 24. 13 [1934] N.I. 129, 133. 14 [1927] I.R. 464. 15 [1966] I.R. 3......
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