M'Cann, Tenant; Marquis of Downshire, Landlord

• Jurisdiction: Ireland
• Court: King's Bench Division (Ireland)
• Judgment Date: 01 January 1894
• Date: 01 January 1894

M'Cann, Tenant;

Marquis of Downshire, Landlord.

M'CANN, TENANT ; MARQUIS OF DOWNSHIRB, LANDLORD (1). Land Act, 1881, s. 58Town-parkAccommodation landOnus of proof- Evidence of increased value. In 1855 the landlord, in consideration of M. agreeing to build a house in "the town of Dundrum," agreed to demise to M., as soon as the house was built, the plot whereon it stood, for a term of three lives or ninety-nine years, and also a plot of 7 acres, " as a town-park," to be allotted to M., and to be held with the house at a rent of 30s. an acre, for a term of thirty-one years. M. built the house, and thereupon, in January, 1860, the landlord executed to him a lease of the premises in Dundrum, to hold for the term agreed upon; and in June, 1860, the landlord executed a lease demising to M. 7 acres and 35 perches, situated about half-a-mile from Dundrum, for the term and at the rent agreed upon. This latter was an ordinary agricultural lease, and on its expiration M.'s widow, who had succeeded M. as tenant, continued to hold on as tenant from year to year. At the date of the agreement M. did not live in Dundrum, but he subsequently came to reside there, and till his death carried on the business of publican in that place. His widow continued to live in Dundrum, and kept on his business. She served an originating notice to fix a fair rent of the 7 acres. The landlord offered no evidence that the holding bore an increased value as accommodation land, over and above its ordinary letting value as a farm, save a general statement to that effect by his agent: Held (reversing the decision of the Land Commission), that the onus of proving that the holding bore an increased value as accommodation land, over and above its ordinary letting value as a farm, lay upon the landlord, and that as this onus was not discharged, the holding, which was an agricultural holding, was not excepted from the Land Act of 1881. Archer v. Caledon {ante, p. 473) explained. Boyle v. Foster (30 L. B. Ir. 623) distinguished. APPEAL by the tenant against an order of the Irish Land Commission dated 27th February, 1894, declaring the holding to be a town-park, discharging the order of the Sub-Commission, by which a fair rent was fixed, and dismissing the originating notice. At the hearing before the Sub-Commission the agreement (1) Before "WALKER, C, PORTER, M.H., and FITZ GIBBON and BARRT, L.JJ. VOL. II. 3 B Appeal. 1894. June 13,14. Appeal, hereinafter referred to was produced by the landlord, but was in1894 ' admissible in evidence as it was not stamped. The lease of the ^Tenant*' holding was thus the only evidence of the letting before the DOWNSHIRE, Court, and it being an ordinary agricultural lease the Sub-Com mission fixed a fair rent on the holding. The case was re-heard by the Land Commission, and the agreement having in the meantime been properly stamped, was received in evidence, and Mr. Justice Bewley made the order appealed from, being of opinion that the holding was a town-park and excepted from the operation of the Land Acts, 1881, and 1887 (1). It appeared from the evidence that Hugh M'Cann, the late husband of the tenant, entered into an agreement with the Marquis (1) The decision of the Land Commission with Mr. Justice Bewley's judgment is reported in the Irish Law Times Reports, Vol. 28, p. 38. The passages from the learned Judge's judgment quoted by the Judges in the Court of Appeal are cited from the report there given. The reporter is indebted to the kindness of Mr. Justice Bewley for the manuscript of his judgment, which is here printed. BEWLEY, J.: The holding in this case consists of a field, containing seven statute acres, situated in the Co. Down, about half-a-mile from Dundrum Railway station, and is held under a tenancy from year to year, which arose on the expiration of a lease of the 23rd June, 1860, made to the predecessor in title of the present tenant by the then Marquis of Downshire, for a term of thirtyone years. The tenant resides in Dundrum, and the landlord alleges that the holding is a town-park, and is excluded from the operation of the Land Act of 1881. The first question we have to consider is whether Dundrum is a town within the meaning of the Act. In a case from the same locality, heard by us about a year ago, we held Dundrum was not a town, but the recent decision of the Court of Appeal in Archer v. Caledon (28 Ir. L. T. R. 4) renders it necessary for us to reconsider the matter. Section 15, sub-sect. 1, of the Landlord and Tenant (Ireland) Act, 1870, excluded from certain of the benefits conferred by that Act, inter alia, "any holding ordinarily termed town-parks, adjoining or near any city or town, which shall bear an increased value as accommodation land over and above the ordinary letting value of land occupied as a farm, and shall be in the occupation of a person living in such city or town or the suburbs thereof." No definition of a town is contained in this Act, nor in any of the Land Acts, but in numerous cases that came before the County Court Judges, or on appeal before the Judges of Assize, on claims for compensation for disturbance under the Act of 1870, it of Downshire, of which the following are the material portions : Appeal. " It is this 16th day of May, 1855, agreed between the Marquis of 1894 , Downshire of the one part and Hugh M'Cann of Gastlewellan in ^x^nf'. the County of Down, publican, of the other part, that the said DOWNSHIRE, Marquis, as soon as the said Hugh M'Cann shall have . . . com pleted . . . the dwelling-house . . . hereinafter mentioned, shall and will grant unto the said Hugh M'Cann, his heirs, executors, administrators, and assigns, a good and sufficient lease of all that piece or parcel of ground situated in the town of Dundrum . . . for the lives of their Royal Highnesses Albert Prince of Wales, Prince Arthur William Patrick, and Princess Alice Maud Mary, children of the Queen, and the lives and life of the survivors and was held that a mere village was not "a town" within the meaning of the Act. Difficulties, of course, arose in determining whether a place was .a village or a town, and if it had not Town Commissioners, or was not a town corporate, the amount of the population, the existence of fairs and markets, and the holding of Quarter Sessions or Petty Sessions furnished some tests as to whether it was important enough to be called a town. Newmarket, in the Co. Cork, with a population of 765, was held by Mr. Justice Lawson not to be a town; and Mr. Otway, Q.C., the Recorder of Belfast, considered that Portglenone, Co. Antrim, which had about 800 inhabitants was little more than a village, even though it had fairs. Mr. Justice O'Hagan appears to have been of opinion that Borrisokane, with a population of 700, and Kircubbin, with a population of 600, were not towns within the meaning of the 58th section, sub-sect. 2, of the Land Act, 1881, and judicial rents have no doubt been fixed in hundreds of cases on holdings in the neighbourhood of villages, which would have been held to have been excluded from the operation of the Land Acts, if they had been treated as being near a town. The Court of Appeal seems also to have recognized the distinction between a mere village and a town in the case of Killeen v. Lambert (10 L. R. Ir. 362), one of the most important cases decided on the question of town-parks under the Land Act of 1881. At p. 366 of the report, Lord Chancellor Law pointed out that in order to exempt holdings as being town-parks from the Act of 1881, three statutory requisites must exist(a), that they adjoin or are near a city or town; (b), that they bear an increased value as accommodation land beyond their ordinary letting value for merely farming purposes ; and (c), that they are occupied by a person living in the city or town or its suburbs. At p. 367, he says :" The several parcels of land here in question lie, five of them near, and the other two immediately adjoining, if not actually in, the town of Claremorris, in the Co. Mayo, a Quarter Sessions town, with fairs and markets, and containing a population of over 1000." Lord Justice Deasy, at p. 371, 3 5 2 614 THE IRISH REPORTS. [1894. Appeal, survivor of them, and for the term of 99 years, whichever shall 1894. l on g es t Jag^ t 0 commence from the 1st day of November, 1854, at tenant; the yearly rent of £1 13s. 10d., . . . and shall and will also demise DowNSHiRB, otherwise secure unto the said Hugh M'Cann, his executors, or J~J&IHU10VOL administrators, and assigns, 7 acres statute measure, or thereabouts, of land as a town-park to be allotted by the agent or surveyor of the said Marquis to be held with the said dwellinghouse and premises for a term of 31 years, to commence from the 1st day of November next after the said messuage and buildings . . . shall be completely finished as aforesaid at the yearly rent of thirty shillings per statute acre, and one shilling in the £ for receiver's fees." says:" Now these holdings are unquestionably near the town of Claremorris, which is a Quarter Sessions town with about 1100 inhabitants, and they are all occupied by persons living in that town." AndFitz Gibbon, L.J., commences his judgment in these terms : " Claremorris is unquestionably 'atown,' not merely ' a collection of houses larger than a village'Dr. Johnson's definitionbut a market and Sessions town, possessing a population and an amount of business likely to create a demand for, and so enhance the value of, any neighbouring land suitable for use as accommodation land." Applying the tests already referred to to Dundrum, we find that in 1881 (which, according to the decision of the Court of Appeal in Nelson v. Headfort (18 L. R. Ir. 407), is the time we must look to to ascertain whether the holding in this case is a town-park within the meaning of the Land Act of 1881) Dundrum had only a population of 372, and had neither fairs nor markets, nor was it the seat of Quarter Sessions or Petty...