Marquis of Donegall v Lord Templemore

• Jurisdiction: Ireland
• Judgment Date: 08 November 1858
• Date: 08 November 1858
• Court: Exchequer (Ireland)

Exchequer Chamber.

MARQUIS OF DONEGALL

and

LORD TEMPLEMORE

12 Ir. Law Rep. 175.

Weld v. HornbyENR 7 East, 195.

Stammers v. Dixon Ibid, 200.

Duke of Beaufort v. Mayor, &c., of SwanseaENR 3 Exch. 413.

Duke of Beaufort v. Mayor of SwanseaENR 3 Exch. 413.

Calmady v. Rowe 6 Com. B. 861.

Doe v. Beviss 7 Com. B. 504, 511.

Jones v. WilliamsENR 2 M. & W. 331.

Carpenter v. BullenENR 8 M. & W. 212.

Bain v. Whitehaven and Furness Railway 3 H. L. Cas. 1.

Hale de jure Maris Harg. Law Tracts, 26.

Horne v. Mƒ€™KenzieENR 6 Cl. & Fin. 628.

374 COMMON LAW REPORTS. M. T. 1858. Exch. Ohatn. ert-bequtt amber, . MARQUIS OF DONEGALL v. LORD TEMPLEMORE. Nov. 8. (Error from the Court of Exchequer.) In an eject- BILL 'of exceptions.-The action, which was one of ejectment, was ment on the title, to recover brought for the recovery of the possession of all that the quays possession of " certain quays, with the fore-shore, or nnreclaimed mud-banks of the river L," the plaintiff gave in evidence a patent, A. b. 1620, granting to his ancestor the " fishings and fishing places of all the river L.' and the ground and soil of all the said river; " a so a settlement, made in 1792, by the said grantee's descendant, who was also the common ancestor of plaintiff and defendant, whereby the said property was settled as " all that the river of L., and the ground and soil thereof," on the settlor for life, with remainders over, and with powers of leasing to the settlor ; also a lease of 1793, by the said settlor, under that power, to one J. H., of the premises in dispute, as " a piece of strand, being part of the ground and soil of the river L." Plaintiff also proved that the L. was a tidal navigable river, and that the fresh water stream thereof was traceable at low water down to a spot to seaward of the banks in dispute. The defendant gave in evidence, first, certain ancient patents and inquisitions, dealing with other properties, for the purpose of showing, by the description of the boundaries therein, that what was called the " L." in 1620 consisted only of a portion of the river, ending at a point to the inland of the premises in dispute, and that all the banks below that point were then the bay of B. Secondly ; certain leases, and other acts done by the owners of those other properties, with respect to portions of the banks lower down than those in dispute, but within the point to which the fresh water flowed; some of which bore date subsequently to 1792. The Judge left it to the jury to consider whether the premises were or were not, in 1620, part of the bed and soil of what was then known as the river L., and difected a verdict for the plaintiff, if they should find in the affirmative ; if in the negative, for the defendant. Held (affirming the judgment of the Exchequer), a right direction, and not deroÂgating from the plaintiff's grant ; there being a distinction between the grant of a river as such, and of a river by a particular name, as the " L."-[LEFROY, C. J., and CRAmProx, J., dissentientibus]. Held also-That the documents offered by the defendant were properly admissible: the first class (being ancient instruments, coming from the proper custody), as evidence of reputation of what in 16-20 constituted the " L.; " and the second class as evidence of possession.-[LEFnov, C. J., and CRAMPTON, J dissentientibus]. Per CRAMPTON, J.-That the documents were admissible as evidence of title in the defendant, by presumed grant or adverse possession. Held also, per totam Curiam-That thê defendant was not estopped by the settleÂment of 1792 and lease of 1793, from denying that the premises formed part of the bed and soil of the " L.; " as this proceeding was collateral to the purpose for which those deeds were made, and such estoppel would not be mutual. Held also-That the acts of ownership subsequent to 1792, whilst the tenant for life was living, were admissible as evidence of possession, not of acquiescence. COMMON LAW REPORTS. S7,5, commonly called Bates and Gregg's quay, with the fore-shore or unreclaimed mud-banks of the river Lagan, in front thereof, together with a proportion of the back stream passing through the same ; and also, all that portion of the ground and soil of the river Lagan immediately adjoining the same, extending from the Long Bridge, and the approach thereto from the county of Down, to the centre of the channel of the river Lagan, opposite Dargan's Island irt the county of Antrim ; all which said 'lands and premises are• situate, lying and being in the county of Down aforesaid. The defendant took defence as follows :-The Right Hon. Henry Spencer Baron Templemore appears and takes defence for so much, of the lands and premises, in the plaintiff's declaration in ejectment• mentioned, as formerly in the possession of the said defendant and. his undertenants, and lately purchased from the defendant by. the, Corporation for Improving the Port and Harbour of Belfast, and, which are part and parcel of the premises in plaintiff's declaration mentioned, and therein called All that the quays commonly called 4' Bates and Gregg's quays, with the fore-shore or unreclaimed "banks of the river Lagan in front thereof, together with a propo4-3 " tion of the back stream passing through the same ; and also all " that portion of the ground and soil of the river Lagan immediately. "adjoining the same, extending from the Long Bridge, and the " approach thereto, from the county of Down to the centre of the;Â" channel of the river Lagan, opposite Dargan's Island, in the county. "Antrim." The case went down for trial, and was heard at the Spring Assizes at Belfast, in the county of Antrim,* before Pigot, C. B., and a special jury ; and a verdict was had for the defendant. *NorE.-The venue had been changed, by an order of the Court, from county of Down to county of Antrim, on affidavits alleging bias and local feeling against the plaintiff. several trials were had, the verdicts in which were set aside on new trial motions, The last trial took place before Burton J., and a special jury of the county of Down, at the Summer Assizes of 1847, when the jury found for the defendant. A rule nisi having been obtained to set aside that verdict, and cause having been shown, the verdict was upheld by the Court of Queen's Bench; and thereupon the plaintiff brought an ejectment in the Court of Exchequer.-Vide 12 Ir. Law Rep. 175. 376 COMMON LAW REPORTS. M. T. 1858. The question in dispute was, were the premises mentioned in the, Exch. Cham. ejectment part of the ground and soil of the river Lagan ? The river DONEGALL flows south of the town of Belfast into the Bay of Carrickfergus ; on v. TEMPLE- its eastern side is Ballymacarrett (a portion of the Claneboy estate), MORE. in the county of Down ; and on its western side is Belfast in the county of Antrim. To the south of Belfast, the tide ebbs and flows, about two and a-half miles, and at ebb-tide there is a portion of mud-banks which, until some years since, were exposed at low water. The Harbour Commissioners of Belfast, wishing to extend the quayÂage, reclaimed these mud-banks ; and under a Local Act an inquiry was held to assess compensation to the owner thereof. The Marquis of Donegal and Lord Templemore respectively asserted a claim,. whereupon the Harbour Commissioners paid the sum assessed by the jury into the Court of Chancery ; and the present action was brought under an order of that Court to try the title. At the trial the plaintiff examined several witnesses, to prove that the fresh water stream of the river Lagan flowed down to a place called Garmoyle, to the seaward of the premises mentioned in the ejectment ; and that these premises had, previous to being reclaimed, been situated between high and low water mark, on the banks of the river, and that the Lagan was a tidal and navigable river. In addition to this evidence, the plaintiff gave in the several patents, inquisitions and documents mentioned and set out in the former report of this case (a), together with the other documents necessary for proving the intermediate steps of his title; also certain leases and acts of ownership, since 1792, by Lord Donegal, of porÂtions of the bed and soil of the river opposite the premises in dispute. The defendant gave in evidence a certain inquisition taken at the town of Antrim, on the 12th day of July 1605, before William Parsons, Esq., and others therein named, and which was in the words following :- " The jurors therein named, being duly sworn, say upon their "oaths, that the late Lady Queen Elizabeth in her lifetime was (a) 12 tr. Law Rep. 175. COMMON LAW REPORTS., 377• " seised in her demesne as of fee, in right of her Crown of England, M. T. 1858. Exch. Chain. " of and in all manors, castles, messuages, towns, townlands, lands, ----,---- DONEGALL " tenements and other hereditaments whatsoever, lying and being in v. "the inferior part of the territory or country of Clandeboy, which TEMPLE.. MORE. "said inferior part of said territory, is commonly named the territory "or country of Lower Clandeboy, and is wholly situate and lies in "the said county of Antrim. And the jurors aforesaid say upon: "their oaths, that the territory or country of the Lower Clandeboy; " in the county of Antrim, aforesaid, contains in itself certain small "parcels or territories commonly called tuoghs and cinaments therein " named, with their appurtenances all and singular, which said preÂ" mises are lying and being in the said county of Antrim : and the "jurors aforesaid further say, upon their oaths, that the said "territory of the Lower Clandeboy hath these metes, bounds and " general limits in form following, viz. :-Towards the entire eastern "part thereof is the high sea, towards the south is the port or bay of "Knockfergus and the river Lagan as far as the passage (in English) "'the Foord' of Garrifinbress, in and upon the river Lagan aforesaid, "&c. And the jurors...