Oliver v Rooney and Others

JurisdictionIreland
Judgment Date25 January 1895
Date25 January 1895
Docket Number(1893. No. 757.)
CourtCourt of Appeal (Ireland)
Oliver
and
Rooney and Others (1).

Q. B. Div.

Appeal

(1893. No. 757.)

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.

Landed Estates Court conveyance — Construction — Schedule of tenancies — Map (“and described in the map”) — Falsa designatio — Landlord and tenant — Encroachment — The Landed Estates Court (Ireland) Act, 1858 (21 & 22 Vict. c. 72), sect. 61.

J. O., plaintiff's predecessor in title, held, 1, a messuage in the town of Galway, under lease, dated the 7th July, 1793, for ninety-nine years, assigned to him by deed, dated the 6th May, 1858. The lease did not state the acreage, but gave the boundaries in front and on each side, the frontage being on Dominick-street, and granted the premises (two houses) “with the ground rearward” thereof “to the watercourse in the said rear.” J. O. also held, 2, in fee, under a conveyance from the Board of Works, dated the 27th September, 1858, for valuable consideration, a piece of land, stretching between said messuage and the Eglinton canal, which had been meanwhile constructed on the site of the said watercourse, and having a width or frontage to Dominick-street of 161/2 feet, and a depth along said canal of 123 feet. This was a strip

consisting mainly of land reclaimed or built up out of the “spoil” of the canal. On 2, and a small part of 1, J. O., shortly afterwards, built a house and offices, which, since 1864, had been let to the constabulary, as barracks, at a rent of £42 10s.

The defendant, K., by a Landed Estates Court conveyance dated the 8th August, 1878, was granted three parcels of land in the town of Galway, lot 2 being stated to contain 2r. 33p., “situate,” &c., “and described in the map annexed, numbered 1, and thereon coloured yellow, with the appurtenances, which premises do not include, and are not intended to include, any portion of the Eglinton Canal.” The map was marked as covering the constabulary barracks, the colouring extending to the actual margin of the canal, and including both 1 and 2. The conveyance was made subject to those tenancies only which were set out in the schedule thereto. The schedule set out two tenancies only referable to map 1, namely, the premises subject to the lease of the 7th July, 1793, stated to contain 1r. 93/8p., and premises subject to a lease dated 1860, stated to contain 1r. 235/8p., making together 2r. 33p.

In 1893, on the expiration of the lease of 1793, K. obtained a civil bill decree in ejectment for the possession of the constabulary barracks, as being the premises comprised in said lease, i.e. 1. The plaintiff, who had not been a party to these proceedings, now sought to recover possession of the part of the barracks which stood on 2, and for an apportioned part of one year's rent. The Judge at the trial, Palles, C.B., ruled that K, under the conveyance of 1878, had acquired an estate in possession in 2, but that the subsequent possession of the plaintiff, since 1878, entitled her, under the Statute of Limitations, to judgment for possession, the apportioned rent for one year being ascertained at £40. On new trial motion:

Held, that the Landed Estates Court conveyance of 1878 conveyed 2 as land comprised in the lease of 1793, i.e. as part of 1, and in effect conclusively made 2 a part of the leasehold, that therefore the Statute of Limitations did not apply, and that the defendant was entitled to judgment.

Per Madden, J.: Where the Landed Estates Court, in the performance of its statutory duties, has ascertained any term of a tenancy, and stated that term—not by way of reference to the lease, but positively—in the conveyance, the lease, though incorporated in the conveyance, and capable of being looked at for other purposes, cannot be used to contradict or modify the statement contained in the conveyance.

Semble, that the facts rebutted the presumption that the land comprised in the deed of 1858 was an encroachment the benefit of which enured to the landlord.

New Trial Motion.

The action was instituted, by writ issued the 31st January, 1893, by the plaintiff, Annie Oliver, to recover possession for non-payment of rent, of certain constabulary barracks, storehouses, &c., situate in the town of Galway, alleged to be held under a contract of tenancy with the plaintiff at the yearly rent of £42 10s. It was tried before Palles, C.B., without a jury, at the Summer Assizes, 1893, for the county of Galway; and, the place of trial having, during the proceedings, been changed to Dublin, the hearing was there resumed and concluded.

The plaintiff's case was that her predecessor in title, John Oliver, held two plots of ground in the town of Galway, adjoining each other. One of these plots was held under a lease of the 7th July, 1793, which had been assigned to him by deed, dated 6th May, 1858. This lease was for ninety-nine years from the 25th March, 1793, and therefore expired on the 25th March, 1892. The premises in this lease were described as “the plot of ground and two new front stone dwelling-houses built thereon by Deborah Haverty, and adjoining each other on the west side of Dominick-street, bounded on the one side by Abraham's mill, and on the other by James Marshall's holding, with the ground rearward of both the said houses to the watercourse in the said rear.” The second plot was held by John Oliver in fee-simple, under a deed of the 27th September, 1858, having been purchased by him, for £30, from the Commissioners of Public Works, to whom same had, by deed dated 31st March, 1849, been conveyed by one Bridget Young. There was a map on this deed and the premises were conveyed with reference thereto. This plot stretched between the Eglinton canal (the watercourse mentioned in the lease of 1793) and the said leasehold, and was described in the deed as having a frontage to Dominick-street of sixteen and a-half feet and a depth along the canal of 123 feet. It consisted, as appeared from the evidence, partly of land reclaimed or built up out of the “spoil” of the canal which had been recently constructed along the bed of the old watercourse by the Board of Works, and partly of portion of James Marshall's mill holding which had been acquired by the Board for the purposes of the canal. John Oliver, being in possession of both plots, erected on them—mainly, it would appear, on the freehold premises—certain buildings, now constabulary barracks, and let them in 1864, at £42 10s. per annum to the constabulary, who entered into and have since continued in possession of them. These were the premises sought to be recovered.

On the expiration, on the 25th March, 1892, of the lease of 1793, the defendant, Captain C. P. J. Kendall, the reversioner upon said lease, brought a civil bill ejectment to recover the premises comprised therein. This ejectment was not served on the plaintiff in the present action. A decree for possession was obtained thereon, and under this decree Kendall took possession (by attornment of the tenants) of inter alia, all the premises set to the constabulary, and entered into receipt of the rents thereof. The defendant Rooney represented the tenants in possession.

The plaintiff's original contention was, that the premises set to the constabulary were part of those conveyed to John Oliver by the deed of 27th September, 1858, and were not comprised in the lease of 1793. It may, however, be taken that this was abandoned at the trial, and her claim confined to that portion of these premises which stood on the freehold.

For the defendant, Kendall, it was contended, amongst other things, that whatever John Oliver got from the Board of Works, was an accretion to the leased premises, as these went down to the river; and that, it having been proved that part, at least of the barracks were included in the leasehold, the plaintiff could in any event be entitled only to the residue; and that therefore ejectment for non-payment of rent would not lie. The main defence, however, was based on a Landed Estates Court conveyance, dated 8th August, 1878, to the defendant, Kendall, which included the premises comprised in the lease of 1793, and also those comprised in the deed of 1858. By this conveyance of 1878, Kendall was granted three parcels of land in the town of Galway, lot 2 being stated to contain 2r. 33p., “situate, &c., and described in the map annexed, numbered 1, and thereon coloured yellow, with the appurtenances, which premises do not include and are not intended to include any portion of the Eglinton canal.” Lot 1 comprised premises described in a map coloured red; lot 3, other premises described in a map coloured blue...

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