Lessee Edmund M'Donnell v John M'Kinty and Others

Judgment Date20 April 1847
Date20 April 1847
CourtQueen's Bench Division (Ireland)

Queen's Bench.

JOHN M'KINTY and others.

Seaman v. Vawdrey 16 Ves. 390.

Adair v. Shaftoe 19 Ves. 156.

Doe v. KnightENR 2 Mees. & Wels. 911.

Jack v. Walsh 4 Ir. Law Rep. 257.

Saunders's caseENR 5 Coke, 12 a.

Astry v. BallardENR 2 Lev. 185.

Acton v. BlundellENR 12 Mees. & Wels. 324.

Rich v. JohnsonENR 2 Strange, 1142.

Parker v. GregoryENR 2 Ad. & El. 14.

Ex parte Hassell 3 Young & Col. Exch. 617.

Bennett v. TurnerENR 7 Mees. & Wels. 226.

Roylance v. LightfootENR 8 Mees. & Wels. 553.

Cardigan v. Armytage 2 B. & Cress. 197.

514 CASES AT LAW. E. T. 1847. Queen'sBench. Lessee EDMUND M'DONNELL v. JOHN 3/MINTY and others.* April 16, 20. By indenture EJECTMENT on the title, to recover certain quarries and limestone of the 19th of within or upon the lands of Creggan, in the barony of Glenarm and October 1738, A. granted to county of Antrim. T. WC. and heirs, cer- The case was tried in pursuance of an order from the Rolls Court his tain lands, and of the 19th of November 1844, made in an injunction cause, on a amongst them "ten acres of bill filed by Edmund M`Donnell, one of the lessors of the plaintiff, Creggan," ex- to restrain the defendants from quarrying lime on the lands of cepting mines, minerals and Creggan, and was heard before Torrens, J., at the Antrim Spring quarries, with Assizes for 1845, and a verdict had for plaintiff. The verdict was liberty to A., his heirs and taken subject to exceptions. assigns, to enter and dig, There were several demises in the ejectment, each being laid bore, search on the 6th day of January 1845, and the defendants took a general for and carry away all defence. mines, mine- The plaintiff gave in evidence an indenture bearing date the rats, &c. By a deed of 19th of October 1738, made between Alexander Earl of Antrim and settlement of Thomas M'Cutcheon, whereby the said Earl demised to the said the 2nd of January 1739, Thomas M'Cutcheon, and to his heirs and assigns, the quarter- A. granted to trustees and their heirs "all that and those the baronies, townships, manors, towns, lands, fee-farm rents and hereditaments" thereinafter mentioned, amongst which were the " ten acres of Creggan," and also " the water corn-mill of, &c. with the tburlagh sucken, or molenture, growing, arising, or to grow or arise out of the said lands," and "the the Chief or fee-farm rents out of the premises mentioned," and "the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of all and every the aforesaid baronies, lordships, manors, or reputed manors, lands, tenements, hereditaments and premises, and all parts, parcels and members, or reputed parts, parcels and members of the said premises, or any of them ;" to hold for certain uses. By another deed of the 12th of April 1822, were granted " all the baronies, lordships, castles, manors, towns, lands, quarter-lands, fee-farm rents, and other rents, tenements and other hereditaments, with their and every of their rights, royalties, members and appurtenances," &c., subject to incumbrances, upon certain trusts. Held, in an ejectment on the title to recover the quarries and limestone on certain of the lands so granted; that the words in either deed were sufficient to pass the quarries. Held, that the mines, &c., having been thus excepted to the grantor and his heirs in a grant in fee of the lands by deed of October 1738, his right and title to them is not barred or extinguished if he omit to work them for twenty years. Such right remains in the grantor as if he had never executed the grant. Held also, that such omission to work the quarries for twenty years was not a discontinuance within the meaning of 3 & 4 W. 4, c. 27, s. B. Held also, that a user and possession of part of these quarries by the grantee of the lands would not justify the presumption of a possession of the whole, so as to oust the grantor's title. • CRAMPTON, J absence. CASES AT LAW. 515 land of Losken and Knock, the half quarter-land of Shanche, and the ten acres of Creggan, county measure, situate in the barony of- Glenarm and county of Antrim, "together with all houses, "edifices, buildings, barns, stables, gardens, orchards, lands, curtiÂÂ" lages, yards, meadows, pastures, feedings, mountain grounds, "common of pasture, inclosures, wastes, waste grounds, woods, "underwood, ways, easements, mounds, privileges, commodities, "rights, members and appurtenances whatsoever, to the premises "belonging or in any wise appertaining, or therewith usually held "or enjoyed ; excepting and reserving out of said grant all ways, " waters and water-courses, fishings and fishing places, mines, mineÂÂ" rals, quarries and royalties whatsoever ; with liberty for the said "Alexander Earl of Antrim, his heirs and assigns, his and their "servants and horses, into all and every part of the premises to "enter and dig, bore, search for and carry away all mines, minerals, "marble, slate and other quarry stones whatsoever, he and they "paying reasonable damage for what prejudice should be done "thereby to the soil: Habendum the said lands, tenements and "hereditaments thereby granted and released, except as before "excepted, unto the said Thomas McCutcheon, his heirs and assigns, "to the only proper use and behoof of him the said Thomas " 31'Cutcheon, his heirs and assigns for ever, subject to the yearly "rent of 20, with six pence per 1 receiver's fees," &c. Plaintiff next gave in evidence a settlement, bearing date the 2nd day of January 1739, executed on the marriage of Alexander Earl of Antrim with Anne Plunkett, which, after reciting the intended marriage, witnessed that, "In consideration of the said " intended marriage, and for and in consideration of the said Anne "Plunkett granting and conveying the lands and premises whereof " she was thereinafter mentioned to be seised and possessed, for the " uses and purposes thereof thereinafter limited and appointed, and " for settling and securing a competent jointure upon the said Anne "Plunkett in case she should happen to survive the said Alexander " Earl of Antrim, her said intended husband, and for the settling "and assuring the several and respective baronies, lordships, " manors, towns, lands, fee-farm rents and hereditaments thereinÂÂ" after mentioned, part of the estate of the said Alexander Earl "of Antrim, upon the issue male of the said intended marriage, " and for securing reasonable portions and maintenances for the " daughters and younger sons of the said Alexander Earl of " Antrim, to be begotten on the body of Anne Plunkett, and for " other good causes and considerations, the said Alexander Earl " of Antrim thereunto especially moving, and for and in eon 516 CASES AT LAW. " sideration of the sum of ten shillings to the said Alexander " Earl of Antrim in hand paid (by the trustees), the receipt, &c., " the said Alexander Earl of Antrim, granted, &c., unto A B and " C D (trustees), and to their heirs, all that and those the baronies, " townships, manors, townlands, fee-farm rents and hereditaments " thereinafter mentioned ; that is to say, the respective baronies, " lordships, manors, or reputed manors of Glenarm and Dunluce, " in the county of Antrim ; and also the towns and lands followÂÂ" ing ; that is to say, &c. (enumerating them) ; all which said towns, "lands and premises are situate, lying and being in the barony of " Glenarm and county of Antrim aforesaid ; as also the yearly chief "or fee-farm rent of 17. 2s. 2d., issuing and payable out of the " towns and lands of Kilnaughter," &c., (this deed specified several fee-farm rents issuing out of the enumerated towns and lands): " and also a yearly chief or fee-farm rent of 20, issuing and pay-- " able out of the quarter-land of Loskan and Knock, the half " quarterland of Shanche alias Shanagha, and the ten acres county "measure of Creggan; all which last mentioned towns, &c., were "situate, lying and being in the barony of Glenarm and county of " Antrim." The deed then granted other lands and fee-farm rents issuing out of them, and the thurlagh, sucken or molenture arising out of them ; " and the reversion and reversions, remainder and remainÂÂ" ders, yearly and other rents, issues and profits of all and every the...

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