Kilkelly, Tenant; Caldwell, Landlord

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 03 May 1904
• Date: 30 June 1904

Kilkelly

Tenant

and

Caldwell

Landlord.

Land Com.

Appeal.

CASES

DETERMINED 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.

1904.

Landlord and tenant — Land Law (Ireland) Acts, 1881 to 1896 — Character of holding — “Which is let to be used wholly or mainly for the purpose of pasture” — Lease for lives or term of years expiring in 1891 — Covenant to lay down and maintain in grass the entire holding during the last three years of the term — Lands bound by the covenant at the date of the passing of the Land Law (Ireland) Act, 1896 — Land Law (Ireland) Act, 1896, sect. 5 (1) (c) — Residential holding.

The holding was demised by lease, dated 17th March, 1863, for three lives (one of which was in being at the date of the tenant's originating notice), or for twenty-nine years, from 1st November, 1862. The lessee covenanted not to plough or plant with manured potatoes any part of the lands after 1st May, 1888, and to lay down in grass so much of the holding as might, before that date, have been broken up, and after that date to maintain the entire holding in grass or feeding ground, and not in tillage of any kind.

By an assignment made in 1872, to which the lessor was a party, the assignee of the lease covenanted with the lessor to keep up the house standing on the holding as a gentleman's residence:—

Held, by the Court of Appeal (Fitz Gibbon and Walker, L.JJ.; Holmes, L.J., dissenting), affirming the decision of Meredith, J., that the holding, notwithstanding the operation of the covenant by which it had to be used mainly as a pasture holding at the date of the passing of the act of 1896, was not thereby brought within section 5 (1) (c) of that act, which excepts from the Land Law (Ireland) Acts a tenancy in a holding which “is let to be used wholly or mainly for the purpose of pasture.

Held, also, by Meredith, J., that the main object of the letting was not shown to be for a residence.

Gaffney v. Fetherstonhaugh ([1900] 2 I. R. 417) discussed and distinguished (1).

Rehearing before the Irish Land Commission.

By lease, dated the 17th day of March, 1863, and made between Charles B. Caldwell, of the one part, and Richard Maguire, of the other part, reciting a prior lease of the hereditaments thereinafter demised, dated 18th day of June, 1849, and

made by Charles Andrew Caldwell (then deceased) to Richard Maguire (the lessee) for a term of three lives or thirty-one years, from the 1st day of May, 1849, whichever should longest last, and reciting that two of the lives in the said recited lease were then dead, and reciting that Richard Maguire had expended £500 in buildings and improvements according to plans and specifications approved of by the said Charles B. Caldwell, who was then the owner of the rent and reversion expectant on the determination of the said lease, and reciting an agreement for a new lease, it was witnessed that in pursuance of the said agreement and in consideration of the surrender of the said former lease, and the rents and covenants thereinafter contained, Charles B. Caldwell demised to Richard Maguire all that and those certain lands called Moatfield, Grange, and New Grange, situate in the barony of Slane and county of Meath, together with the rectorial and impropriate tithes of the said demised premises, to hold the same unto Richard Maguire, his heirs, executors, administrators, and assigns, for the lives and life of the said Richard Maguire, and his sons Thomas Daniel Maguire and Mathew Maguire (then aged, respectively, thirty-four and twenty-eight), or for the term of twenty-nine years to be computed from the 1st day of November, 1862, yielding and paying the yearly rent of £382 6s. 9d. sterling, payable as therein mentioned, and also yielding and paying an additional rent of £3 for every acre or part of an acre set, let, aliened, or parcelled out to under-tenants without the lessor's consent in writing (small tenements to labourers of the lessee employed to labour on the demised premises as tenants at will excepted) with the usual powers of distress and entry securing both the said rent and the said additional rent. Covenants by the lessee to keep the demised premises and all houses, buildings, fences, ditches, drains, trees, and other improvements in good and tenantable order and condition, and so to yield up at determination of the demise, and not to commit waste. Further covenant by the lessee “that the said Richard Maguire, his heirs, executors, administrators, or assigns, shall not plough any part of the said lands, hereby demised, from, and after, the 1st day of May, which shall be in the year 1888, nor will the said Richard Maguire, his heirs, executors, administrators, or assigns, after the said 1st day of May, 1888, set or plant any part of the said lands with manured potatoes, except such portion thereof as may be necessary for his or their own use, not exceeding 10 acres of land, without the consent of the said Charles B. Caldwell, his heirs, or assigns, first thereunto had in writing.” Proviso reserving an additional rent of £10 per annum for every acre ploughed in breach of the foregoing covenant. Further covenant by the lessee that “the said Richard Maguire, his heirs, executors, administrators, and assigns, shall and will lay down and sow with a full and sufficient quantity of grass seeds all and every part of the said demised premises that shall be planted or broken up before the said 1st day of May, 1888, in smooth and flat ridges, and keep and preserve the same in grass or feeding ground, and not in tillage of any kind unless with the consent in writing of the said Charles B. Caldwell, his heirs and assigns as aforesaid, and in default thereof shall pay a further additional or increased rent of £5 for every acre that shall not be sufficiently sowed with grass seeds, laid down and preserved as grass or feeding ground in manner aforesaid, over and above all other rents hereby made payable.” Covenant by the lessor for quiet enjoyment.

The lessee's interest in this lease was assigned to Andrew Tiernan by an indenture dated 7th August, 1872, in which the said Charles B. Caldwell joined and consented to the assignment thereby made, in consideration of the covenants therein contained on the part of the said Andrew Tiernan, which included a covenant that “the said Andrew Tiernan, his heirs, executors, administrators, and permitted assigns, will, at all times, during the unexpired residue of the term aforesaid, keep in his own occupation all and singular the lands and premises hereinbefore expressed to be hereby assigned, and also keep up the house now standing thereon as a gentleman's residence and in good tenantable order and repair, and shall and will within one year from the date of these presents put the outbuildings and offices belonging thereto into good and substantial repair, and so keep the same during the residue of the term granted by the said lease, and also shall and will preserve intact from injury all ancient mounds, stones, and caves, now standing, lying, or being in, upon, or under, the said assigned premises.”

The lessee's interest in the lands was sold to Mr. John Kilkelly for £8705 in the Chancery Division of the High Court of Justice, in proceedings instituted before the Land Judge, and was conveyed to him by the Land Judge's conveyance dated 25th February, 1898.

While one of the lives named in the lease was still in being, Mr. Kilkelly served an originating notice to fix a fair rent of the holding. The originating notice stated the acreage of the holding as being 337 acres and 29 perches statute measure, and the Poor Law Valuation as £422.

The Sub-Commission fixed the fair rent of the holding at £397 12s. 6d.

Both landlord and tenant served notices requiring the case to be heard before the Irish Land Commission, and the case came before Mr. Justice Meredith. The evidence as to the character and user and other circumstances connected with the holding are stated in his judgment.

Cherry, K.C., and A. C. Meredith, for the tenant.

Wakely, K.C., and Chaytor, for the landlord.

The arguments appear sufficiently from the judgment.

Cherry, K.C., and A. C. Meredith, for the tenant.

Wakely, K.C., and Chaytor, for the landlord.

Meredith, J.:—

The acreage in this case is considerable, comprising 337a. 0r. 29p. statute measure; the Poor Law Valuation is £422, and the old rent was £382 6s. 9d. The Sub-Commission presided over by Mr. Commissioner Bailey had the assistance of learned counsel, who appeared before them, and argued the various points that have been discussed on the re-hearing. The Lay Assistant Commissioners visited the holding. I am of opinion that the conclusion arrived at by the Sub-Commission was correct, so far as regards the decision that the tenant was entitled to have a fair rent fixed in respect of the holding. I differ with the Sub-Commission as regards the amount of the rent, but, of course, that is another matter.

The legal questions raised would, I think, never have been raised at all if the tenant, Mr. Kilkelly, had not been, perhaps I may say, somewhat precipitate in his action. If he had waited until the expiration of the lease of 1863, and come in under the 21st section of the Act of 1881, I doubt if many of the questions that have been debated would have been debated and argued at all.

The grounds upon which the landlord resists the application of the tenant to fix a fair rent are stated in his notice of appeal. The first of these grounds is that the main object of the letting was for a residence. Having regard to the acreage of the holding, the relative value of the land and buildings, and the entire history of the case, I am of opinion that that ground is absolutely unsustainable. Mr. Wakely, for the landlord, no doubt did not press that point, so far as regards the state of affairs in 1863—or, perhaps I should say, he did not...