Marquise De La Bedoyere v Greville Nugent

• Jurisdiction: Ireland
• Judgment Date: 13 March 1890
• Date: 13 March 1890
• Court: Chancery Division (Ireland)

Chancery Division.

MARQUISE DE LA BEDOYERE

and

GREVILLE NUGENT.

Lushington v. BolderoENR 6 Madd. 149.

Ford v. TynteENR 2 De G. J. & S. 127.

Downshire v. Sandys 6 Ves. 107.

Wombwell v. Belasyse Ibid. 110 a, note.

Baker v. Sebright 13 Ch. Div. 179.

Halliwell v. Phillips 4 Jur. (N. S.) 607.

Micklethwait v. MicklethwaitENR 1 De G. & J. 504.

Turner v. WrightENR 2 De G. F. & J. 234.

Ford v. TynteENR 2 De g. J. & S. 127.

Coffin v. Coffin Jacob's R., 70.

Wombwell v. Belasyse 6 Ves. 110 a, note.

And Ibid. 110b, note.

The Marquis of Downshire v. Lady Sandys Ibid. 107.

In Ford v. TynteENR 2 De G. J. & S. 127, at p. 131.

Halliwell v. Phillips 4 Jur. (N. S.) 607.

In Lushington v. BolderoUNK 6 Mad. 149.

In Baker v. Sebright 13 Ch. Div. 179, at p. 184.

Lord BarnardENR 2 Vern. 738.

Micklethwait v. MicklethwaitENR 1 De G. & J. 504, at p. 523.

Settled estate — Tenant for life — Equitable waste — Ornamental timber — Right to cut.

VoL. XXV.] CHANCERY DIVISION. 143 attending on this argument, except the petitioner, will be entitled Monroe, J. to their costs with their respective demands: the petitioner will 1890. have his costs as part of his costs in the matter. In re CREAGH'S ESTATE. Solicitors for the owner : Messrs. Moriarty. Solicitors for the petitioners : Messrs. J. TV. G. Lane. Solicitor for the Right Hon. Judge Warren: Mr J. Maunsell. Solicitors for Mrs. Haycroft : Messrs. White. MARQUISE DE LA. BEDOYERE v. GREvruz M. R. NUGENT. 1890. Jan. 15. Settled estate-Tenant for life-Equitable waste-Ornamental timber-Right Feb. 27, 28. March 1, 13. to cut. The Court, at the instance of a remainderman, restrained by injunction a tenant for life, without impeachment of waste, from cutting ornamental timber growing within a demesne, at a considerable distance from the mansion-house, some of the trees being visible from it, and others not. Trees not planted or left standing exclusively for ornament are not necesÂsarily excluded from the rule which protects ornamental timber. The Court being satisfied that ornamental timber had been cut, or marked for cutting, and sold by the defendant, who was tenant for life, without imÂpeachment of waste, and that this was done for profit, and not in order to improve the estate or the remaining timber, restrained such cutting : Held, that a tenant for life without impeachment of waste has not a right to cut ornamental trees, though they are mature (from a mercantile point of view), nor even though they are largely decayed ; and there is no legal limit to this doctrine, arising from the state or condition of the particular trees which it is proposed to cut ; but that, if those trees are injuring others, also ornaÂmental, which it is more desirable to preserve, the Court will not, in that case, interfere with the tenant for life who cuts merely to save from destruction trees of greater value and importance. ACTION by the plaintiff for an injunction to restrain the defenÂdant from cutting timber in the demesne of Clonyn, in the County of Westmeath, of which the defendant, the Hon. Patrick Greville Nugent, was by himself and his tenants in possession as tenant M2 144 LAW REPORTS (IRELAND). [L. R. I. M. R. for life, without impeachment of waste, with remainder to his first 1890. and other sons successively in tail male ; with remainder to the BEDOYERE plaintiff, the Marquise de la Bedoyere, for life ; remainder to her v. NUGENT. sons in tail, with divers remainders over. By an agreement in writing, dated the 21st November, 1889, the defendant sold to Messrs. James Halliday and Son, of Annan, the following timber at Clonyn, viz. 630 larch poles, 11 larch trees, 332 ash, 228 sycamore, and 1 poplar, for £300, all to be cleared off the lands before the 1st April, 1890. Under this contract cutting was commenced by Mr. Halliday, and had proceeded to some length, when it was stopped by an ex parte injunction, on the plaintiff undertaking, in the usual way, to abide any order as to damages, and being put under terms to serve notice of this application. On the latter coming on to be heard, it was admitted by both parties that no question of title arose which would necessitate a trial of the action ; and it was arranged that the motion should be treated as the hearing. Accordingly, the interlocutory motion was ordered to stand over, and was afterwards heard upon viva voce evidence ; the decision at which the Court arrived being treated as a judgment in the action. The facts of the case are stated fully in the judgment. The Right Hon. S. Walker, Q.C., and Mr. Robertson, Q.C. (with them Mr. J. Herbert Shaw), for the plaintiff : The defendant is tenant for life, without impeachment of waste. The question is whether the trees which we seek to have preserved are ornamental. Prima facie all timber within a demesne is ornamental. The settlor planted these trees as ornamental, and his taste determines the question of ornament. In this demesne whole plantations have been cut away, which have been sold for profit. We deny the right of a tenant for life without impeachÂment of waste to cut in a husbandlike manner. He cannot cut even decayed trees, except for the purpose of preserving those that remain: Lushington v. Boldero (1) ; Ford v. Tynte (2) ; Marquis of (1) 6 1ladd. 149. (2) 2 De G. J. & S. 127. Vox.. XXV.] CHANCERY DIVISION. 145 Downshire v. Sandys (1) ; Wombwell v. Belasyse (2) ; Baker v. .211. B. Sebright (3). 1890. BEDOYERE The Mae Dermot, Q.C., and Mr. Bewley, Q.C. (with them Mr. Henry Richards), for the defendant :- NucExr. Our contention is that the defendant did not commit equiÂtable waste, but that, on the contrary, anything he did was wholly for the purpose of improving the demesne. A tenant for life without impeachment of waste has a legal right to cut down timber, and a Court of Equity will not interfere unless he makes an unconscientious use of his powers : Baker v. &bright (3). In order that trees should come within the doctrine of equitable waste they must be ornamental. The trees cut and marked were both for use and ornament. Where trees are partly for use and partly for ornament they may be cut : Halliwell v. Phillips (4) ; Kerr on Injunctions (last ed.), p. 91. The spinny which has been cut away was planted mainly of larch-a timber primarily for use. In some places the thinning has been insufficient, and no tree was cut that should not have been cut. The Court would never have heard a word of this case, except for the false representations made to the plaintiff by the two Cullys, who are hostile to the defendant and who organized the " Plan of Campaign" on this estate. A tenant for life without impeachment of waste is entitled to cut all except trees ornamental to the mansion-house. The demesne must end somewhere, and this demesne ends in a belt of larches. This is not the case of a needy tenant for life trying to make a profit. £300 worth of timber is nothing in a place like Clonyn. We also rely on Micklethwait v. Micklethwait (5) ; Turner v. Wright (6) ; Wombwell v. Belasyse (2) ; Ford v. Tynte (7) ; Coffin v. Coffin (8) ; Craig on Trees and Woods, p. 34. THE MASTER OF THE ROLLS :Â March 13. This action was commenced by the plaintiff for an injunction to restrain the defendant from cutting timber in the demesne of (1) 6 Yes. 107. (5) 1 De G. & J. 504. (2) Ibid. 110 a, note. (6) 2 De G. F. & J. 234. (3) 13 Ch. Div. 179. (7) 2 De G. J. & S. 127. (4) 4 Jur. (N. S.) 607. (8) Jacob's R., 70. 146 LAW REPORTS (IRELAND). EL. R. I. M. B. Clonyn, in the County of Westmeath. On the hearing of an 1890. interlocutory motion, immediately after the issuing of the writ, an BEDOYERE ex parte injunction was first issued-the plaintiff being put under NUGENT. terms to serve notice of this application. On the latter coming on to be heard, it was a common case that no question of title arose which would necessitate the bringing the action to a hearing in the usual way ; and it was arranged that the motion should be treated as the hearing. Accordingly, the interlocutory application was allowed to stand over, and was heard upon viva voce evidence, which lasted several days. The decision at which I have arrived will be treated as a judgment in the action. The defendant, The Hon. Patrick Greville Nugent, is by himself and his tenants in possession of the estates, which include the demesne of Clonyn, as tenant for life, without impeachment of waste, with remainder to his first and other sons successively in tail male ; with remainder to the plaintiff, The Marquise de la Bedoyere, for life, remainder to her sons in tail, with divers remainders over. The defendant has no male issue, though it is stated that he has daughters, or a daughter. He is, however, a comparatively young man, not very long married, and may, of course, have issue male. The Clonyn Estate, which has been the subject of many family settlements, appears to have belonged, prior to 1850, to the first Marquis of Westmeath, the maternal grandfather of plaintiff and defendant, who died on 5th May, 1871, and whose only child, Lady Rosa Nugent, in 1850, married Mr. Fulke Greville, afterÂwards the first Lord Greville. By the marriage settlement, dated 10th April, 1850, a life estate in Clonyn was settled upon the Marquis, with remainder over, and a power for him to revoke and appoint new uses, and by deed of the 29th May, 1851, the property was re-settled, among other uses, " to the use of the said Fulke Southwell Greville, his heirs and assigns, during the natural life of the Marquis, and after the decease of the Marquis to the use of the said S. A. Reynell and E. H. Palmer, their heirs and assigns, during the natural life of the said Lady Rosa Greville, for her sole and separate use, without anticipation, notwithstandÂing her then present or any future coverture, and after her decease to the use of the said F. S. Greville and his assigns, VOL. XXV.] CHANCERY DIVISION. , during his natural life, without...