More O'Ferrall, Tenant; Quirk, Landlord

• Jurisdiction: Ireland
• Judgment Date: 24 November 1894
• Date: 24 November 1894
• Court: Land Commission (Ireland)

More O'Ferrall,

Tenant

and

Quirk,

Landlord (1).

Land Com.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Redemption of Rent (Ireland) Act, 1891 (54 & 55 Vict. c. 57) — Demesne lands.

Where a tenant has impressed a holding with the character of demesne it is excluded from the fair rent provisions of the Land Acts, though the lands may never have been demesne of the landlord before the Court.

Borrowes v. Colles (28 Ir. L. T. R. 41) followed.

The facts of the case are fully stated in the judgment of Bewley, J.

White, Q.C., and Henry Richards, for the tenant:—

The word “demesne” in the Act is used in the popular and ordinary sense: Pratt v. Gormanstown (2), Borrowes v. Colles (3), and Allen v. Grogan (4).

R. E. Meredith, Q.C., and Wakeley, for the landlord, relied on Pratt v. Gormanstown (2); Borrowes v. Colles (3); Allen v. Grogan (4); Magner v. Hawkes (5).

White, Q.C., and Henry Richards, for the tenant:—

R. E. Meredith, Q.C., and Wakeley, for the landlord

Bewley, J.:—

The proceedings in this case were instituted by the tenant under the Redemption of Rent (Ireland) Act, 1891, for the purpose of redeeming a perpetual yearly rent of £207 16s. 6d., created by a fee-farm grant, dated the 17th June, 1872, or in the alternative to have a fair rent fixed in default of obtaining the grantor's consent to the redemption. The grantor did not give the prescribed consent, and the case having come before a Sub-Commission on the hearing of the application to have a fair rent fixed, the tenant's originating notice was dismissed on the ground that the holding is demesne land.

The tenant, Mr. Ambrose More O'Ferrall, is a deputy-lieutenant of the county of Kildare, and the owner of extensive estates in four or five counties in Ireland, but if the holding is not excluded from the operation of the fair rent provisions of the Land Acts, he is entitled, to use an expression of Lord Justice Barry in Pratt v. Gormanstown (1), “to pose as an over-rented farmer,” and his social position or the extent of his property cannot in any way affect the decision of this Court.

The holding, which contains 142 statute acres, is situate in the county of Kildare, near to Moyvalley, and was originally let, with other lands, to Mr. Richard More O'Ferrall (the father of the present tenant) by Mr. Eugene Quirke by a lease, dated the 28th January, 1840, for a term of ninety-nine years, at the yearly rent of £207 16s. 6d. Mr. More O'Ferrall was then living in the large mansion-house of the demesne of Balyna, which immediately adjoins this holding. This demesne contains about 500 acres, and the present holding was apparently an ordinary farm, intersected by a public road, now closed, and divided into a number of fields, twelve or thirteen of which lay between the road and the boundary of Balyna demesne. Mr. More O'Ferrall proceeded to remove and level all the internal fences of these twelve or thirteen fields, and incorporated the entire portion north of the public road as well as other lands lying to the west with the original demesne of Balyna. He also planted a handsome avenue of trees, considerably over half-a-mile [in length, from the boundary of the old demesne to the north-eastern extremity of that part of the present holding lying north of the public road. He contemplated, it is said, making a road or drive from Balyna House to the Enfield road between these trees, but this was not carried out owing probably to the construction of the Midland Great Western Railway. The trees, which are elm and lime, planted in a double row on each side, with a grassy space 15 yards wide in the centre, must obviously add greatly to the beauty of Balyna demesne, and the front of the mansion-house or part of the lawn close to it commands an uninterrupted view between the trees that cannot fail to be striking. Where the lines of the trees intersect the western

boundary of this holding there is no fence of any kind, and cattle can range at pleasure from the holding to the adjoining lands.

A comparison of the last revision of the Ordnance map of the locality with that issued after the survey of 1837 shows clearly the changes that have been effected in the physical features of the present holding since it came into Mr. Richard More O'Ferrall's hands.

Upon the evidence, whatever the legal consequences may be, it is manifest that at least a very substantial part of the present holding has been actually incorporated with and now forms part of Balyna demesne.

In 1869, after Mr. Ambrose More O'Ferrall, the present tenant, had attained the age of 21 years, a family settlement, dated the 26th October, 1869, was executed by Mr. Richard More O'Ferrall, re-settling the extensive family estates; and by that deed Mr. Richard More O'Ferrall assigned his interest in this holding, under the lease of the 28th January, 1840, together with his interest in other adjoining leaseholds, to trustees upon trusts, corresponding to the uses of the freehold estates thereby settled in strict settlement.

In the year 1872, Mr. Richard More O'Ferrall paid to Miss Ellen Mary Quirke, the present landlord, the sum of £400 for the purpose of acquiring a perpetual estate in the present holding, and by a fee-farm grant dated the 17th June, 1872, the holding was granted to him by Miss Quirke, in fee, subject to the perpetual yearly rent of £207 16s. 6d. Mr. Richard More O'Ferrall duly made and executed his will, dated the 15th April, 1876, and thereby devised inter alia the lands granted by the last-mentioned indenture to the trustees of the settlement of the 26th October, 1869, to hold to the same uses, and upon the same trusts as were thereby declared of the fee-simple lands thereby settled. The testator died on the 27th October, 1880, and Mr. Ambrose More...