Mary Elizabeth Saunders, Tenant; G. Baldwin Hamilton, Landlord

• Jurisdiction: Ireland
• Judgment Date: 01 December 1916
• Date: 01 December 1916
• Court: Court of Appeal (Ireland)

Mart Elizabeth Saunders, Tenant; G. Baldwin Hamilton, Landlord.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1917.

Land Law Acts — Character of Holding — Fair Rent — “Ordinary Agricultural Farm” — Nursery — Town-Park — Accommodation Land — Practice — Evidence — Assessor's Report — Land Law (Ireland) Act, 1887, sect. 9 — Land Act, 1896, sect. 7 — Irish Land Act, 1903, sects. 88(2), 89.

Where no evidence is given on the hearing of a fair rent appeal to show that a holding, alleged to be town-park, bears an increased value as accommodation land, the judicial commissioner cannot act upon a statement to that effect in the report of his assessor.

A holding used as a nursery for the growing of forest-trees, flowers, and such like, may be an agricultural holding.

(Per Ronan L.J.). A holding so used, though agricultural in its character, is not “let and used as an ordinary agricultural farm” within the meaning of the Land Law (Ireland) Act, 1887, sect. 9.

The following is the judgment of FitzGerald J. in the Court below, delivered on the 9th June, 1916:—

This is an appeal by way of re-hearing by the landlord from the decision of the sub-commission fixing a fair rent. The area of the holding is 10a. 3r. 20p. The old rent was £30 10s. 6d.; the poor law valuation is £29 10s., of which £8 are on the holdings, and the rent fixed by the sub-commission is £26 14s. The grounds of the landlord's appeal are that the holding is a town-park, that the holding is not agricultural or pastoral, and that the tenant is not in bona fide occupation of the holding. The holding consists of 10a. 3r. 20p. It is situate three-quarters of a mile from the centre of the city of Cork. The urban boundary of the city passes through the holding, of which the greater part is included within such urban boundary. The holding was let by a lease of the 15th November, 1851, from Charles B. Baldwin, m.p., to Robert Searls, of Rutland Street, in the city of Cork, victualler, for a term of three lives, or thirty-one years, and the lease contained a covenant by the lessee to keep the demised premises and all improvements made or to be made thereon in good and sufficient order, repair, and condition. In the lease the demised premises are called that part of the lands called Spittal lands formerly in the tenancy and possession of Mr. Robert Hewson, and lately in the tenancy of Mr. William Daly, containing 10a. 2r. 17p., situate in the parish of Saint Nicholas, and county of Cork.

There is no reference in the lease by name to any buildings in the demised premises. In 1867 the lessee's interest, subject to sub-leases of parts of the holding, was assigned to Thomas Rogers of Russell Lane, in the city of Cork, gardener. In 1888 the said Thomas Rogers, therein described as a market-gardener, and the representatives of a man named White, who had been sub-lessee of portion of the premises, and whose term was still sub-sisting, assigned the holding to David Saunders, therein described as a nurseryman. The existing tenant is the widow of David Saunders, who died in 1902, and was succeeded by her. I understand that the term in the lease of 1851 had expired, and that the lessee had remained on as a yearly tenant. On the holding there is a two-story, slated dwelling-house, known as Linden Lodge, which is sub-let on a monthly tenancy, with a small adjoining garden, at £26 a year. There are also on the holding three labourers' cottages, which are sub-let on weekly tenancies to three labourers, who are in the employment of the tenant, and who work for her on the holding, and on other adjacent holdings in her occupation. Linden Lodge was rebuilt by the lessee about twenty-six years ago at a cost of about £300, and has been sublet ever since. I understand there was an old cottage there before which was smaller, and not in good repair, and it was never let. The materials of the old cottage were used in the building of Linden Lodge on the same site. The assessor reports there are no signs of the old cottage. The three labourers' cottages were in existence before the lease of 1851, but the tenant alleged an expenditure of £25 on one of the cottages on a new roof.

The existing tenant, and her husband during his life, carried on the business of a nurseryman and market-gardener on the holding before the Court, and upon adjoining holdings, and holdings in the immediate neighbourhood. [His Lordship referred to the particulars of these holdings.] Of the holding before the Court, about three-fourths are used as a market-garden and one-fourth as nursery-ground, and the holdings are occupied as before stated. The tenant herself lives a little nearer the city, on a holding which is two roods and two perches in area, and consists of a two-storied, slated residence and garden. [His Lordship, having stated the facts as above set forth, proceeded.]

Fair rents have undoubtedly been fixed upon market-gardens adjoining Cork city and in this neighbourhood; that is to say, where the cottage of the market-gardener was in what might be almost termed a street, with the market-garden behind the cottage. There have been very few, if any, town-parks established round Cork. It is the same in all big cities. The facilities provided by shops for milk and vegetables lessen very much the demand for accommodation land, which is much greater amongst the inhabitants of smaller towns...