Larkin v Lord Rosse

• Jurisdiction: Ireland
• Judgment Date: 27 November 1846
• Date: 27 November 1846
• Court: Rolls Court (Ireland)

Rolls.

LARKIN

and

LORD ROSSE.

Bristow v. WoodENR 1 Coll. 480.

Burnell v. Browne 1 Jac. & Wal. 168.

Gibson v. Spurrier Peak. Ad. Cas. 49.

Seaman v. Vawdry 16 Ves. 390.

Barton v. Lord DownesENR Fl. & Kel. 505.

Lyddall v. WestonENR 2 Atk. 19.

Seaman v. Vawdry 16 Ves. 390.

70 CASES IN EQUITY. not to act upon my own opinion alone, but to ascertain what conÂstruction the Masters in Chancery had put upon the rule when costs were taxed by them. I accordingly stated the matter in writing to the two senior Masters, and have received their answer, certifying the practice.-[His Honor here read the statement and certificate already set out.]-I must say that on principle, I think, that the practice adopted by the Masters is quite right. Were the rule to be otherwise, as the plaintiff's Counsel has contended, the consequence would be that almost every bill would pray for an injunction or a receiver, inasmuch as though the plaintiff would never venture to make the motion, .he would, nevertheless, upon the coming in of the answer, be entitled to charge for two briefs of the pleadings : I must therefore say No rule on this part of the motion. LARKIN v. LORD ROSSE. Tins cause was set down on exceptions to the Master's report of good title. By the decree in the cause the lands of Cappaduffe, being part of the commons of Clam, in the county of Kildare, which had been enclosed under a private Act of Parliament (15 G. 3, e. 3), were set up and sold to James Scott Molloy as an estate in fee-simple. The Commissioner appointed by the Act of Parliament was empowered by the 23rd section to convey these lands to a purchaser, his heirs and assigns, subject to the regulations and directions to be contained in the award to be made by him and enrolled. The lands were sold by the Commissioner to the Rev. William Parsons the purchaser in 1823 ; and upon the 8th of July 1824, he made his award (which was not, however, enrolled), and thereby ordered that the Rev. Wm. Parsons and the purchasers of other portions of the commons, " and their heirs and assigns, and those deriving by, from and under him or them severally and respectively, should at his and their respective costs, charge and expense from time to time, for ever thereafter, as same might be necessary, raise and maintain the fences, and maintain and keep drains and water-courses in, through, over and upon the same premises, in such manner and form as should be a convenience CASES IN EQUITY. 71 to him and them, and the persons and lands adjoining or contiguous 1846. to them, and each and every of them, and so as not to annoy or injure, or cause annoyance, injury, loss or damage to such persons or LAREIN lands adjoining or contiguous to them, or to any person or persons, or V. LORD ROSSE. lands or grounds whatsoever, and keep the main drains in said lands cleansed and open, and free from any obstruction, and to prevent the Statement. said lands and premises, or any part thereof, from being flooded or overflowed with water; and that the said R. Richardson, George Vesey and William Parsons, and those deriving under him and them, and the several owners and proprietors aforesaid, and those deriving under them, should not remove, change, or alter, or encroach upon any of the roads, pathways, boundaries, stiles, bridges, ditches, drains, banks, water-courses, funnels, or other works already made on the . said pieces or parcels of ground, or which should be thereafter made thereon, and should not erect any gate...