Quinn and Others v Shields and Others

• Jurisdiction: Ireland
• Judgment Date: 08 May 1877
• Date: 08 May 1877
• Court: Exchequer (Ireland)

Exchequer.

QUINN AND OTHERS

and

SHIELDS AND OTHERS.

Ellis v. The Lord Primate 15 Ir. Ch. R. 237.

Doe d. Kinglake v. BevissENR 7 C. B. 456.

Stammers v. DixonENR 7 East, 200.

Waterpark v. FennellUNK 5 Ir. C. L. R. 120.

Simpson v. Margitson 11 Q. B. 32.

Beere v. FlemingUNK 13 Ir. C. L. R. 506.

Hargrove v. Lord CongletonUNK 12 Ir. C. L. R. 362.

Irons v. Douglas 3 Ir. Eq. R. 601.

Lang v. SmythENR 7 Bing. 294.

Lang v. Gale 1 M. & Sel. 3.

Attorney-General v. Cast-Plate Glass CompanyENR 1 Anst. 39.

Cowper v. BartonUNK Ir. R. 2 C. L. 614.

The Bank of Montreal v. The Munster BankUNK Ir. R. 11 C. L. 47.

Boyle v. Olpherts 4 Ir. Eq. R. 241.

Cochrane v. M'ClearyUNK Ir. R. 4 C. L. 165.

Beere v. FlemingUNK 13 Ir. C. L. R. 506; on app., 9 Ir. Jur. (N. S.) 44.

Cardgan v. ArmitageENR 2 B. & C. 197.

Sadleir v. BiggsENR 4 H. L. C. 458.

Waterpark v. FennellENR 7 H. L. C. 684.

The Duke of Beaufort v. SwanseaENR 3 Ex. 413.

Stammers v. DixonENR 7 East, 200.

Doe d. Kinglake v. BevissENR 7 C. B. 456.

Fee-farm grant Exception "All mosses and turbaries" Construction of documents Meaning of words Question for jury.

254 THE IRISH REPORTS. [I. R. QUINN AND OTHERS v. SHIELDS AND OTHERS. Fee-farm grant-Exception-" All mosses and turbaries"-Construction of documents-Meaning of words-Question for jury. By a fee-farm grant-executed in 1852 under the Renewable Leasehold Conversion Act, in pursuance of a covenant for renewal in a lease of 1806-certain lands were granted to the Plaintiffs, " excepting and always reserving [as in the lease of 1806 were excepted and reserved] out of this grant to the grantor, his heirs and assigns [inter alia] all mosses and turbaries, except such reasonable quantity thereof as the grantees, their heirs and assigns, or tenants residing on the premises, may want for their own consumption;" in 1873, the Landed Estates Court conveyed to the Defendant the fee-farm rent created by the grant of 1852, and all remedies for the recovery of it, and " all the estate and interest of the grantor under that grant." In an action for entering the lands and cutting and carrying away turf :-Held, (1) that the words "all mosses," as used in the fee-farm grant and controlled by its context, meant all places in which turf, or matter in the course of becoming turf, was found, inÂÂcluding the soil of such places ; (2) that the Judge, instead of submitting the meaning of the words as a question to the jury, ought to have so construed them himself, and directed a verdict for the Defendants. Per PALLES, C. B.-Though the word " turbary" would prima fade mean " a right to cut turf," quare, whether the word " turbaries" might not, accordÂÂing to the context, more properly mean " places in which turf may be cut." ACTION tried before Battersby, Q. C., Commissioner of Assize, at the Tyrone Summer.Assizes, 1876. The plaint contained ten counts-six for trespass to the PlainÂÂtiffs' lands at divers times by cutting turf, digging pits, and making. a road thereon; three for conversion of the Plaintiffs' goods, viz., certain turves and peat ; and in the tenth count the Plaintiffs comÂÂplained that they were possessed of a messuage, and by reason thereof were entitled to have a right of turbary in a certain bog to raise and carry away necessary fuel for consumption upon the said messuage, and that the Defendants at divers times disturbed the Plaintiffs in their enjoyment of their said right. The Defendants pleaded to each count-(1), a traverse of the doing of the acts ; (2), a traverse of the property ; and also to the tenth count that the Plaintiffs were not entitled as therein alleged.. VoL. XI.] COMMON LAW SERIES. 255 They further pleaded to each of the counts complaining of trespass Exchequer. to the lands the following special defence :- 1877. That the Plaintiffs held the lands in the said counts mentioned as tenants in fee-farm under an indenture dated the 20th of February, 1852, and made between Edward Litton the grantor in the said fee-farm grant, of the one part, and Patrick Shields, Daniel Shields, Patrick Shields, jun., and Francis Quinn, the grantees in the said fee-farm grant, of the other part, and that the said. grantees were executing parties to the said indenture ; and that by the said indenture, among other things, the said grantees did grant to the said Edward Litton, his heirs and assigns, the right of turbary in the said lands, and the right to enter upon and to permit others to enter upon the said lands for the purpose of cutting turf thereon, and of stacking and carrying away the turf so cut on the said lands ; and afterwards a petition for the sale of the estate of the said Edward Litton in the premises was presented in the Landed Estates Court, and afterwards, by deed of the 24th of January, 1873, Stephen Woulfe Flanagan, one of the Judges of said Court, did grant to the Defendant Michael Shields all the estate of the said Edward Litton in the premises ; and that afterwards, the Defendant Michael Shields, in his own right, and the DefendÂÂant Patrick Shields, and other persons by his authority, entered upon the lands for the purpose of cutting turf thereon, and stacking and carrying it away, and did cut, stack and carry away the same, and in so doing did the acts in the said counts complained of. By lease made in 1806, Sir John Stuart demised to Daniel, 'Charles and Patrick Shields, and their heirs, all that part of the lands of Largulay or Barrackstown, supposed to contain 200 acres plantation measure, for three lives, with a covenant for perpetual renewal, excepting and reserving substantially as is excepted and reserved in the fee-farm grant hereinafter in part recited. By deed ,of the 20th of February, 1852, Edward Litton, in whom all the interest of Sir John Stuart in the lands had become vested, executed, in pursuance of the Renewable Leasehold Conversion Act,a fee-farm grant of the lands, described by metes and bounds, at the yearly rent of L41 Os. 9d., to Patrick Shields, sen., Daniel Shields, Patrick Shields, jun., and Francis Quinn, in whom all the lessees' interest under the lease of 1806 was then vested :-" exceptÂÂing and always reserving out of this grant unto the said Edward Litton, his heirs and assigns, all woods, underwoods, and timber trees which were on the said demised premises on the 13th of January, 1806, being the date of said hereinbefore mentioned indenture of T2 THE IRISH REPORTS. [I. R. lease, and all mines, minerals, coals, and quarries of marble, free stone, limestone, and slate, and all royalties of what nature or kind soever, and all mosses and turbaries, except such reasonable quantity thereof as the said grantees, their heirs and assigns, or tenants residing on said premises, may want for their own consumption." By deed of the 24th of January, 1873, the Landed Estates Court granted to Michael Shields, one of the Defendants, the fee-farm rent of 41 Os. 9d., granted by the indenture of 1852, and all reÂÂmedies and powers for the recovery thereof, and all the mines, minerals, timber-trees, rights, privileges and liberties excepted or reserved, with the appurtenances thereto belonging, and all the estate and interest of the grantor under said deed. No mention was made of...