Kyle v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 26 April 1864
• Date: 26 April 1864
• Court: Court of Chancery (Ireland)

KYLE

and

O'CONNOR.

Chancery.

Seaman v. Vawdrey 16 Ves. 390.

M'Donnell v. M'Kinty 10 Ir. Law Rep. 514.

Hervey v. SmithENR 22 Beav. 299.

Ware v. Egmont 4 De G., M'N. & G. 460.

Bateman v. Murray 1 Rid. P. C. 187.

Bradbury v. GrinsallENR 2 Wms. Saund. 175

46 CHANCERY REPORTS. 1864. Chancery. KYLE v. O'CONNOR. April 26. By indenture BY indenture of lease, bearing date the 16th of April 1683, made in 1683, Edward Edwards, who was seised in fee of the manor of Hastings, the owner in fee of the ma- in the county of Tyrone, demised to John Kyle and Robert Kyle nor of de mised to A, the mill of Mornbeg, and five acres of ground adjoining, situate for three lives renewable for in the said manor, and also all that the whole freestone quarry ever, a mill, together with or quarries within the said manor of Hastings, or which should certain lands adjoining, and thereafter be found or gotten within the same, with free liberty to also the right of quarrying and for the said John Kyle and Robert Kyle, their, or either of their stones in all the freestone guar- heirs or assigns, or his or their servants, to dig, cut, hew, and ries then with- carry away through any of the lands, tenements and hereditaments in the manor or which should of the said manor (cornfields and meadows excepted), with their thereafter be found within horses, oxen, or otherwise, so much of and so many stones of the same. In 1744, a con- the said quarry or quarries as he or they should please to cut, veyance in fee of part of the dig, hew and carry away, without any let, suit, trouble, or moles manor was made to B, a tation of the said Edward Edwards, his heirs or assigns, or other purchaser, which granted person or persons whatsoever lawfully claiming by, from or under the right of quarrying on him-(reserving to the lessor, his heirs and assigns, the right of the lands there by conveyed, taking stone for his or their own proper building, or otherwise, without any re- within the said manor to hold all the said premises for three servation, and without refer lives renewable for ever, at a yearly rent of £21 sterling, with ence to the inÂdenture of a renewal fine of £10. 10s. Od. 1683. The in denture of 1683 was prior to the Irish Registry Act, and the conveyance of 1744 was defectively registered. There was no evidence as to whether any quarries were open on these lands at the date of the conveyance of 1744, but it appeared that, for fifty or sixty years previous to the institution of the present snit, the right of quarrying on this portion of the manor had been exercised without interruption by those representing the interest of A, Neither A nor his representatives were ever in privity with B, but renewals of the lease of 1683 were executed from time to time by the owners in fee of the unsold portion of the manor. Held, in a suit for a renewal, that as there had been an uninterrupted enjoyment of the right of quarrying on the lands conveyed to B, as far as living memory extended, which would be justified under the indenture of 1683, there was a preÂsumption that in 1744 there was such a user of this right as would give B notice of the indenture of 1683. Held also, that a renewal of the lease of 1863 should only comprise such of the quarries on the lands conveyed by the deed of 1744 as were already open and worked. CHANCERY REPORTS. 47 The original of this lease had been lost prior to the commence- 1864. Chan cery. went of the present suit, but a renewal was produced, dated the 14th of April 1710, which fully recited its terms. KYLE V. In 1744, about one-fourth of the manor of Hastings was sold O'CONNOR. by trustees, under a devise for the payment of debts contained Statement. in the will of Hugh Edwards, the eldest son of Thomas Edwards, who was...