Mairs, Grantee; Lecky, Grantor

JurisdictionIreland
Judgment Date27 February 1895
Date27 February 1895
CourtCourt of Appeal (Ireland)
Mairs,
Grantee
and
Lecky,
Grantor (1).

Appeal.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Redemption of Rent (Ireland) Act, 1891 — Land Law (Ireland) Act, 1887, sect 1 — Land Law (Ireland) Act, 1881, sects. 8, 21 — Land Act, 1870, sect. 4 — Fee-farm grant — Fixing fair rent — Improvements — Permanent buildings — Reclamation of waste land — Drains and fences — Ulster custom.

In 1874 M. purchased from a tenant from year to year his interest in a holding subject to the Ulster custom. In 1875 M. obtained from L., the landlord, a fee-farm grant of the holding. After purchasing the holding M. executed improvements on the land, including the erection of permanent buildings, the reclamation of wastelands, and the making of drains and fences. In fixing a fair rent under the provisions of the Redemption of Rent (Ireland) Act, 1891, the Land Commission held that the grantee was not entitled to be exempted from rent in respect of these improvements, and that the Ulster custom was not enforceable under the Act of 1870 against a holding under a fee-farm grant:—

Held, reversing the decision of the Irish Land Commission, that M. was entitled to have his interest in the permanent buildings and the reclamation of waste lands, but not in the drains and fences, considered in fixing the fair rent, the Court of Appeal giving no decision on the question raised as to the Ulster custom.

Adams v. Dunseath (10 L. R. Ir. 109) discussed.

Mollan v. Kieran ([1894] 2 Ir. R. 27) overruled.

Appeal, by way of case stated by the Irish Land Commission for the consideration and decision of Her Majesty's Court of Appeal in Ireland.

The case stated was in the following terms:—

“1. On November 2, 1891, the grantee in this case served an originating notice of an application in pursuance of the Redemption of Rent (Ireland) Act, 1891, to redeem his rent, and for an advance under the Land Purchase Acts, or, in case of the grantors not signifying their consent thereto in the prescribed time, to have a fair rent fixed. At the time of serving this originating notice the grantee, the Rev. J. S. Mairs, was in possession of the holding described in the said notice under a fee-farm grant, dated

September 22, 1875, made by Matilda Lecky and Hugh Lecky to the said grantee. The particulars of the holding thereby granted are described in the said originating notice, and are as follows: area in statute measure, 18 acres; rent, £18; and gross poor law valuation, £12.

2. The grantors did not signify their consent to the redemption of the said rent, and accordingly the originating notice duly came before a Sub-Commission as an application to fix a fair rent, and, by an order of the Sub-Commission, dated the 27th day of July, 1893, the fair rent of the holding was fixed at the annual sum of £10 10s.

3. Notices of rehearing were served both by the grantors and the grantee, requiring the case to be reheard before three Land Commissioners sitting together. The case was reheard before three Land Commissioners sitting together at Belfast on February 19, 1894.

4. From the facts proved before us it appeared that the farm is on an estate on which the Ulster custom of tenant-right is recognized, which custom authorizes the tenant of any holding subject to it on this estate to sell his interest in the holding, with the improvements on it, to any unobjectionable person, and that the holding in this case was, in the year 1874, purchased by the present grantee under that custom for the price of £100. At the time of the said purchase the holding was held under a tenancy from year to year at the yearly rent of £13, and Mr. Mairs, after his purchase, continued to hold under the said tenancy until he obtained the said fee-farm grant of September 22, 1875.

5. After his purchase the grantee made considerable improvements on the lands, including the making of drains and fences, the partial reclamation of portion of the holding by removing of rocks and boulders, and the erection of permanent buildings. For the purposes of this case it is unnecessary to state the particulars or value of these improvements.

6. On the part of the grantors it was contended that this case was ruled by the decision of Mollan v. Kieran (1), and that in fixing a fair rent the improvements claimed for were not exempted from rent. On the part of the grantee it was contended that said

decision was erroneous, and ought not to be followed, and that in any case it did not apply to this farm, because the estate on which it was situated was an estate on which the Ulster custom of tenant right existed, giving the tenant a right to sell his interest and improvements, as well as a right to compensation under the Act of 1870 entirely irrespective of section 4, and the limitations thereby enacted.

7. No evidence was given that the Ulster tenant-right custom on this or any other estate extended to a holding held under a fee-farm grant, and we were of opinion that even if such evidence had been given the Ulster tenant-right custom was not enforceable under the Act of 1870 in respect of a holding held under a fee-farm grant. We were also of opinion that this case was ruled by our decision in Mollan v. Kieran (1), and that the tenant was not entitled to claim exemption from rent in respect of improvements made by him, whether buildings, fences, drains, or reclamation, and we were of opinion that the judicial rent should be fixed at £18; but on the application of counsel for the grantee, we agreed to state the present case for the consideration and decision of Her Majesty's Court of Appeal in Ireland.

The questions submitted for such consideration and decision are:—

1. Whether, in fixing a fair rent a grantee holding under a fee-farm grant is entitled to be exempted from rent in respect of (a) buildings, (b) reclamation of waste lands, (c) drains, or (d) fences erected or made by him on his holding, or in respect of any and which of such classes of improvements.

2. Whether the usages prevalent in the province of Ulster included under the denomination of the Ulster tenant-right custom in the Landlord and Tenant (Ireland) Act, 1870, are enforceable under that Act in respect of a holding under a fee-farm grant.”

There is a report of the case before the Land Commission and also before the Sub-Commission in 28 I.L.T.R. 56.

[The following authorities were cited: Adams v. Dunseath (1); Mollan v. Kieran (2); Lanyon v. Clinton (3); Wigglesworth v. Dallison (4); Lyon v. Read (5).]

Meredith, Q.C., and Hume, for the appellant.

Matheson, Q.C., and Crookshank, for the respondent.

Cur. adv. vult.

The Court, having intimated that they were prepared to deliver judgment on the first question argued, hut that if their decision on the second question were required the case must be re-argued; and the parties having consented to accept the decision on the first question:—

Walker, C.:—

This case stated raises two extremely important questions.

The premises which contain 18 acres statute, and are situate in the county of Antrim, were originally held under a yearly tenancy at the rent of £13.

In the year 1874 Mr. Mairs the applicant bought the interest for a sum of £100, and on the 22nd September, 1875, he obtained a fee-farm grant at the rent of £18. The poor law valuation is £12. After his purchase he made improvements on the holding consisting of permanent buildings, reclamation of waste land, and drains and fences. I assume these were made after he obtained the fee-farm grant, and the argument proceeded on that assumption.

The Redemption of Rent Act became law on the 5th August, 1891, and on the 2nd November, 1891, he served an originating notice to redeem his rent and for an advance under the Land Purchase Acts, or, in case of the grantors not signifying their consent thereto in the prescribed time, to have a fair rent fixed.

The case proceeded under the latter alternative, and on the 27th July, 1893, the Sub-Commission made an order fixing the fair rent at £10 10s. on the basis that the grantee was entitled to be exempted from rent in respect of improvements.

There was an appeal, and the Head Commission fixed the rent at £18, on the basis that he was not entitled to exemption from

rent in respect of any of his improvements; but they have stated a case for this Court, submitting two questions, the first of which is whether in fixing a fair rent the grantee holding under a fee-farm grant is entitled to be exempted from rent in respect of (a) buildings; (b) reclamation of waste land; (c) drains; or (d) fences erected or made by him on his holding; or in respect of any and which of such classes of improvements.

The status of the applicant to apply to fix a fair rent under the Act of 1891 is not disputed.

Inasmuch as the decision of the Head Commission was based on the assumption that it is a logical consequence of the decision in Adams v. Dunseath (1), that a grantee under a fee-farm grant who avails himself of the rent-fixing provisions of the Redemption of Rent Act cannot be exempted from rent in respect of any improvements made by him or his predecessors in title, it is necessary to see what was decided by the majority of the Court in that case, so far as material to the one before us.

The facts there were:—The lands had been held under a yearly tenancy by James M'Kee; and in...

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