Maude v Thornton

• Jurisdiction: Ireland
• Judgment Date: 11 November 1929
• Date: 11 November 1929
• Court: High Court (Irish Free State)

Maude v. Thornton

GERALD E. MAUDE and Others

and

MARGARET THORNTON and Another (1)

High Court.

Easement - Way of necessity - Land-locked tenement - Lands subsequently sold under Land Purchase Acts - Vesting Order - Whether right of way preserved - Land Law (Ir.) Act, 1896 (59 & 60 Vict. c. 47), sects. 31and 34.

It was established in evidence to the satisfaction of the High Court that, on the making of a certain lease in 1877, a right of way was, by implication, reserved as a way of necessity over the lands comprised in the lease, there being no mention of any right of way in the lease itself. The lands were subsequently sold under the Land Act, 1903. The vesting orders contained no reference to the right of way.

Held that the right of way was not extinguished.

Sect. 34 of the Land Law (Ireland) Act, 1896, which preserves easements existing previously to the making of a vesting order, applies to rights as between the vendor and the purchaser, and is not confined to the rights of third parties.

Dictum of Ronan L.J. in Maguire v. Browne, [1921] 1 I. R., at p. 169,to the contrary, overruled.

Two appeals from the Circuit Court and two cross-appeals which were heard together. The Circuit Court Judge, Judge Sealy, gave one judgment dealing with the four Civil Bills on the 29th June, 1927, and it was from this judgment that the four appeals were brought.

The predecessors in title of one of the plaintiffs, Gerald E. Maude, were the owners of a certain property, in the centre of which was a wood, known as Meldrum Wood. The father of the said Gerald E. Maude had made a lease, dated the 7th May, 1877, for 31 years from the 1st November, 1876, of portion of the property to one, Thomas Neil, and this holding adjoined Meldrum Wood. At the time this lease was made the other lands which surrounded the wood were comprised in two other leases, made in 1864 and 1874, respectively, the particulars of which are set out in the judgment of Meredith J. These two leases were only produced on the hearing of these appeals, the Court having given the parties leave to produce additional evidence to show how the lands, which surrounded the wood, were held when the lease of 1877 was made. The only means of egress from this wood to the highway was by a metalled cart track, there being a gate where this cart track left the wood. This cart track passed over the lands comprised in the lease of 1877. These lands subsequently became vested in Margaret Thornton and Michael Ryan, who were the defendants in two of the Civil Bills, and the plaintiffs in the other two Civil Bills. There was no mention of any right of way in the lease of 1877. The said Gerald E.

Maude succeeded to the property after his father's death, and he sold it all to the tenants under the Land Act of 1903, with the exception of Meldrum Wood, which he retained in his own possession. The vesting orders did not contain any reference to a right of way. The following further facts were found by the Circuit Court Judge:—In 1877, when the lease to Thomas Neil was made, there was a young growing plantation in Meldrum Wood. In the year 1888 the plantation was cut, and the purchasers of the timber carried some of it over this way, without any question being raised as to the right to use the way. Neither the predecessors in title of Gerald E. Maude, nor he himself, made any use of the way from 1888 to 1915 or 1916, but in 1916 the purchasers of some thinnings in the wood carried them out over the way in dispute, and the way continued to be used by purchasers of timber until the year 1926. In 1926 Gerald E. Maude entered into a contract with James Cummins and Nicholas Thornton for the sale to them of Meldrum Wood, and they paid the purchase money, but the conveyance had not been signed when a dispute arose in connection with the right of way. The said James Cummins and Nicholas Thornton endeavoured to...