McMorrow and Others v Layden

• Jurisdiction: Ireland
• Judgment Date: 18 June 1919
• Date: 18 June 1919
• Court: King's Bench Division (Ireland)

K. B. Div.

M'Morrow v. Layden

M'MORROW

and

LAYDEN and Others (1)

Negligence - Quarry - Absence of fence - Duty to fence - Continuing liability.

Case Stated by the Right Hon. Mr. Justice Gordon on the hearing of a civil bill appeal in the county of Leitrim at the Spring Assizes, 1919.

The facts appear sufficiently from the judgment.

The plaintiff was owner and occupier of the surface of certain lands on which there was an unfenced quarry, the mining rights in which were leased to the predecessor in title of the defendants. These rights passed by will to the defendants, who paid the rent reserved by the lease, but did not work the mine, and left it in the unfenced condition in which they found it. One of the plaintiff's bullocks fell into the quarry and was killed.

Held, that the plaintiff was entitled to recover damages from the defendants for the loss of his bullock, there being a continuing liability on the part of the defendants to keep the quarry so as not to be a danger and a nuisance to their neighbour.

The judgment of the Court was delivered by Molony C.J.:—

In this case the plaintiff originally brought a civil bill against John Layden and others, claiming £17 damages "for that Michael Layden, senior, during his lifetime entered into an agreement with the plaintiff that he would erect and maintain a suitable protection fence around a quarry on the plaintiff's lands in Tullymurray in the said division and county, yet, contrary to said agreement, the said fence has no been properly erected and maintained, in consequence of which the plaintiff's bullock on the 16th August, 1918, fell into said quarry and was killed, to the plaintiff's loss in the said amount. The defendants are sued as executors de son tort or otherwise of the said Michael Layden, senior, deceased." On the cause of action thus stated in the civil bill the plaintiff did not succeed because it was found by the Judge on the hearing of the appeal at the assizes that there was no agreement which could be enforced against the defendants. However, Mr. Fetherstonhaugh at the hearing of the appeal got leave to amend the civil bill by adding the following claim:—"Alternatively for that the defendants as executors and legatees of Michael Layden, deceased, are possessed of the minerals and right of mining under tenancy from George Marsham beneath the surface of the said lands of Tullymurray, held by plaintiff formerly as tenant to George Marsham, and now as purchaser under the Land Purchase Acts, and the defendants as such owners of the said rights have and keep open a certain quarry surrounded by plaintiff's lands on which he keeps cattle

to graze, and which if unfenced was dangerous to plaintiff's cattle, and defendants neglected and omitted to fence said quarry so as to prevent plaintiff's cattle falling into the quarry, whereby a bullock, plaintiff's property, fell into said quarry and was killed, to the plaintiff's loss in the said sum." It thus appears that the claim upon which the case was fought and the decision given was a claim that there was a quarry on...