Middleton and Another v Clarence
Jurisdiction | Ireland |
Judgment Date | 05 June 1877 |
Date | 05 June 1877 |
Court | Queen's Bench Division (Ireland) |
Q. Bench.
Before MAY, C. J., O'BRIEN and BARRY, JJ.
De Vesci v. O'KellyUNK Ir. R. 4 C. L. 269.
Earl of Cardigan v. ArmitageENR 2 B. & C. 197.
Hall v. LundENR 1 H. & C. 676.
Rochfort v. EnnisUNK 13 Ir. C. L. R. 324.
Errington v. RorkeUNK 6 Ir. C. L. R. 279.
Booth v. DalyUNK 6 Ir. C. L. R. 460.
O'Donnell v. RyanUNK 4 Ir. C. L. R. 73.
In re Tottenham's Estate Ir. R. 3 Eq. 528.
Earl of Antrim v. Gray Ir. R. 9 Eq. 513.
Gore v. M'DermottUNK Ir. R. 1 C. L. 348.
Demise of land and a quarry, with a right of quarrying — Right of lessee to throw the spoil from the quarry on the lessor's adjoining land — Effect on that right, of a Landed Estates Court conveyance — 21 & 22 Vict. c. 72, ss. 54 & 61.
VoE. XI.] COMMON LAW SERIES. Under the wording of the 9 & 10 Viet. c. 37, sections 28, 29, & 33, the appointments should be made pro Mc vice, and not in the nature of a permanent appointment; such an appointment is contrary to the policy of the Act. An office of trust is one for which no bargain can be made : The Corporation of Liverpool v. Wright (1) ; The Corporation of Dublin v. Hayes (2). Waters, Q. C., for the Corporation.-The cases cited are distinÂguishable from the present ; in those cases the fees levied from the public were paid to the person making the appointment, but in the present case the person (the Coroner) who made the appointment does not get the money. 49q Q. Bench. 1877. TUE QUEEN V. FINLAY. S. Walker, Q. C., and D. Fitzgerald, for the Auditor. O'Brien, Q. C., for Dr. Egan. THE COURT arranged not to issue the certiorari, as the result would be to deprive Dr. Egan of the sum he had fairly earned ; but intimated that the appointment of a permanent medical witÂness was illegal, and that medical witnesses should be appointed from time to time as circumstances might require. Conditional order discharged. MIDDLETON AND ANOTHER v. CLARENCE (3). Q. Bench. 1877. _Demise of land and a quarry, with a right of quarrying-Right of lessee to -June 4, 5- throw the spoil from the quarry on the lessor's adjoining land-Effect on that right, of a Landed Estates Court conveyance-21 If 22 Yid. c. 72, ss. 54 4. 61. M., seised in fee of the lands of A., containing 349 acres, in 1864 demised a portion of them containing four acres and a quarry underlying part of it to the Defendant, " together with liberty of quarrying," for a term of thirty-one years; in 1872 the Landed Estates Court conveyed all the lands, a large portion of which was untenanted, to the Plaintiffs in fee, " subject to the leases (1) 1 Johns. 359. (3) Before MAY, C. J., O'BRIEN and (2) Ir. R. 10 C. L. 226. BARRY, JJ. 2 M2 THE IRISH REPORTS. [1. and tenancies in the schedule annexed," which referred to the lease of 1864 merely by its date, the names of the lessor and lessee, the acreable contents of land, the term, and the yearly rent ; in 1876 the Defendant, in working the quarry, east the spoil and refuse upon a portion of the land in the possession of the Plaintiffs and immediately adjoining the quarry:-Held, (1) that the-Defendant had a right to do so as incidental to his liberty of quarrying ; (2) that such right was an easement or in the nature of an easement ; (3) that, though not expressly preserved, it was not extinguished by the Landed Estates-Court conveyance. TRESPASS q. c. f. The plaint contained one count, and com-, plained that the Defendant broke and entered lands of the'PlainÂtiffs, and. threw gravel, earth, and stones thereon. The Defendant pleaded. three defences : (1) a traverse ; (2) that the lands were not the lands of the Plaintiffs ; (3) that before the-alleged trespasses, i. e., on the 28th April, 1864, one Thomas M'Manus, being then seised. in fee of the lands, and of a stone quarry contained in and underlying the said lands, together with a lime-kiln built thereon, by indenture granted to the Defendant liberty and license to quarry stone in and from said quarry, and burn lime in said...
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