JAMES WHELAN, PLAINTIFF v JAMES LEONARD, DEFENDANT [Nisi Prius K.B Div. Appeal]

• Jurisdiction: Ireland
• Judgment Date: 08 July 1916
• Date: 08 July 1916
• Court: High Court

James Whelan

Plaintiff

and

James Leonard

Defendant (1).

Nisi Prius.

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1917.

Easement — Water — Right to draw Water from an enclosed Well — Dominant and Servient Tenement held under same Landlord — Demise — Reservation of “all Waters and Watercourses in or adjoining the demised premises” — Lost Grant — User — Trespass.

A and B were tenants of the same landlord. A held under a yearly tenancy, created on the determination in 1889 of a lease of 1851, which excepted to the lessor “all waters and watercourses in or adjoining the demised premises,” with liberty to the lessor to turn and dispose of such waters and watercourses. B had held 61 acres as tenant from year to year. In 1884 he was ejected on notice to quit, 21 acres of his holding being demesne lands. After being out of possession for about eighteen months, B obtained a tenancy from year to year in 40 acres of the original holding at a rent of £30 subsequently fixed, by fair rent order, at £21; and he later obtained a grazing letting of the remaining 21 acres at a rent of £21, subsequently reduced to £10. There was an enclosed well on A's land, out of which some four or five families admittedly regularly took water, B's family being amongst the number. To an action of trespass brought by A, B in his defence relied on a claim of right, founded on lost grant or alternatively upon a demise, to take water from the well on A's land, and connter claimed for interference by A with the exercise of the right claimed. The action and counterclaim were tried by Gibson J. without a jury. The plaintiff relied on evidence.

Held, by the learned judge at the trial, that the reservation contained in the lease of 1851 did not include the water in the well, and that therefore the defendant B could not claim a right to the water by demise from the common landlord; that owing to the break in B's tenure, evidence of user prior to his new tenancy in 1886 was not admissible; that on the evidence the taking of water by the defendant from the well in question was permissive and not of right; that B had not proved facts from which a lost grant could be presumed, and that verdict and judgment should be given for A in the original action, and against B on the counterclaim.

On Motion by the defendant to set aside the verdict and judgment, Held, by the Divisional Court (Cherry L.C.J. and Boyd J.), 1, that, even assuming

that the water in the well was included in the reservation in the lease of 1851, there was no evidence of a demise to B of a right to take water from the well; and 2, that even if evidence of user prior to 1886 was admitted, the learned judge at the trial had evidence upon which to found his findings of fact that the user proved was permissive, and that these findings, not being against the weight of evidence, the verdict and judgment entered for the plaintiff and against the defendant in the action must stand.

On Appeal, Held, that on the true construction of the lease of 1851 the well, together with the waters therein, were excepted to the landlord, that the user of the well by the defendant was lawful under the permission of the landlord, and that the action ought to be dismissed.

Trial of Action.

The state of the title on both sides, and the conclusions of fact drawn by Mr. Justice Gibson at the trial, are sufficiently set out in his judgment.

Serjeant Matheson K.C., Serjeant A. M.Sullivan K.C., and T. Sullivan, for the plaintiff.

H. D. Conner K.C., P. D. Fleming K.C., and Peart, for the defendant.

Gibson J.:—

This action relates to a claim by the defendant to take water from a well on plaintiff's land, and arose out of a quarrel about the plaintiff's brother Pierce having bought a farm in 1912 in which the Leonards were interested. Up to that period there was apparently no dispute or obstruction on the plaintiff's part. He alleges that since then the defendant has greatly increased the amount of water taken, and that the plaintiff was exposed to trespass from the gate communicating with the approach to the well being left open. The ill-feeling on the defendant's side is certain.

The state of the title on each side is as follows:—Both holdings are on the Barry estate, and are held under a common landlord. The plaintiff's land, consisting of 173 acres, was demised by lease, dated 6th May, 1851, to Redmond Reali for the life of Joseph Reali (who died about 1900), or twenty-one years. It excepted “all waters and watercourses in or adjoining the said premises,” with liberty to turn and dispose of the said waters and watercourses. The overflow from the well in dispute made its way to a stream, which after passing portion of defendant's holding, reached the landlord's demesne. The well (of which a plan was proved) was surrounded with a stone construction, and approached by a step. On the 13th April, 1895, Joseph Reali, son of the lessee, in whom the tenancy was then vested, settled the property on his son Redmond Reali, and the trustees of the settlement sold the lands, on August 24th, 1908, for £1325 to plaintiff's father, T. Whelan, who assigned same to plaintiff on 13th April, 1910. A first judicial rent was fixed (during the continuance of the lease) on 29th October, 1887, a second on 30th May, 1905. Since 1887 there has been, therefore, a yearly tenancy on the terms of the lease: Carrickfergus U.D.C. v. Martin (1).

The defendant's holding of 61 acres represents what was a yearly tenancy, held by Cornelius Heffernan, who, dying in 1857, was succeeded by his widow. The defendant's father got the place in 1865, and defendant, on his marriage in 1872, became owner. The landlord brought an ejectment, on notice to quit, on 13th October, 1884, and got judgment on 14th November, 1884, the defendant not being able to claim protection of the Act of 1881, as 21 acres of the farm were demesne lands. He claimed for disturbance, and got in settlement £400. Having been out of the lands for one and a half years, he was let back as tenant into possession, in 1886, of the 40 acres, and, some few years after, got the 21 acres as a grazing letting. The old rent of the entire holding was £61 18s. The new rent of the 40 acres was £30, and the rent of the twenty-one acres was £21. A fair rent of £21 was fixed on the 40 acres on the 17th February, 1906. The rent of the demesne portion now in force appears to be £10.

No authority was cited at the trial. It was assumed that the exception in the landlord's favour included the well, and I was disposed to take that view, which, if well founded, might assist the defendant. On consideration I am inclined to a different construction. The land was obviously grazing land; the use of spring-water was essential for house and dairy purposes. The

exception should be construed against the lessor: Savill Bros. v. Bethell (1); see also Ireland v. Livingston (2); and it should not be read, unless the language is precise, in a sense which would interfere with the reasonable enjoyment of the subject-matter demised. The words “waters” (not “water”), “watercourses,” and “adjoining,” this last an inaccurate expression, “with power to turn and dispose of the waters and watercourses,” point rather to running water (there were no lakes or ponds on the lands) than to a well-spring, though the overflow, forming a rill or stream, having individual separate existence would be captured. If “waters” includes all water, the addition of “watercourses,” if the latter term means streams, could have no separate effect. Whether “watercourse” means the channel or the stream therein, or includes both, the fact that the expression is used on the context suggests limitation of “waters.” (See Norton on Construction of Deeds, ed. 1906, at p. 213, as to the principle of construction where wide expressions are followed by more special language.) No doubt a lease may be framed so specifically as to leave the lessee at the mercy of his lessor, as in Anderson v. Cleland (3), a case where the landlord contemplated building. The judgment of Holmes L.J., at p. 371, has some bearing on the present point. I have found no case relating to a well, save Hipkins v. Birmingham Gas Co. (4), which was decided on a statute containing the words “place of water” after an enumeration of particulars. The general word “waters” must receive some kind of restriction, and cannot fairly be extended in such a way as to make it impossible for the lessee to get water for drinking or dairy if the lessor chose to forbid it. No argument was addressed to this question of construction. Dealing with an exception in the lessor's favour, the language must be strictly construed, as is laid down in Norton on the Construction of Deeds, p. 119, and Savill'sCase (1). Where general words are followed by specific words the latter may have a restrictive operation. “Watercourse” suggests a channel or stream of moving visible water.

Assuming that the well, constructed as described by the witnesses, passed under the lease to the lessee, whose lease was in

force till 1887, the defendant's case must depend on whether a lost grant by the plaintiff's predecessors can be inferred after 1886, when the new letting of part of defendant's holding was made. Such title must be founded on user as of right for at least twenty years, and must rest on inference of fact, not on presumption of law. As to this the Irish authorities are in conflict with the opinions of the English judges: Kilgour v. Gaddes (1). I must, of course, follow our own decisions. On the facts, the defendant's land being vested in the common landlord for one and a-half or two years before 1886, statutory prescription is excluded.

As to lost grant, where the user relied on as the basis of such grant is for twenty years (not forty years and upwards), if the commencement of...