Re Scott's Estate

• Jurisdiction: Ireland
• Judge: Wylie J.
• Judgment Date: 28 February 1916
• Court: Court of Appeal (Ireland)
• Date: 28 February 1916

In the Matter of the Estate of J. C. R. Scott.

Wylie J.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1916.

Land Purchase Acts — Sale of Holding to Tenant — Holding comprising Bog — Right of Estates Commissioners to make Regulations giving Turbary Rights over Bog to Occupier in neighbourhood after Vesting Order or Fiat — Right to rescind or vary Regulations — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 21 — Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 32, sub-s. 3.

In the case of the sale of an estate under the Land Purchase Acts, where portion of a holding consists of bog, and the purchaser had not an exclusive right of turbary before such sale, the power of the Estates Commissioners to make regulations under s. 21 of the Irish Land Act, 1903 (1), authorizing the cutting or making of turf on such bog by any occupiers of land in the neighbourhood of the holding for whose requirements such turf appears to be necessary, is not confined to the period prior to the vesting order or fiat, but such regulations may be made subsequent to the completion of the purchase, notwithstanding that there was no express reservation of turbary rights in the vesting order or fiat. The Estates Commissioners may from time to time rescind, amend, or vary such regulations.

In re King Harman's Estate, [1908] 1 I. R. 202, not followed.

Questions of law submitted by the Estates Commissioners for the decision of the Judicial Commissioner, under sect. 23 (1) of the Irish Land Act, 1903.

From the memorandum of the Estates Commissioners the following facts appeared:—

Prior to, and at the date of the sale, under the Irish Land Act, 1903, of the above-mentioned estate, Patrick Hennessey was entitled as tenant from year to year to a holding on the above estate,

shown on the sale map as No. 22, Lack, West, at a rent of £14 10s., fixed by order of the Land Commission, dated the 5th October, 1883. This order declared that the said rent was fixed on the basis that the tenant was entitled to free turbary on the landlord's bog, but the said order was silent as to whether the holding of the said Patrick Hennessey was or was not subject to any turbary rights of third parties.

Prior to, and at the date of the said sale, Bridget Kelly was entitled as tenant from year to year to a holding, shown on the sale map as No. 18, Lack, West, at a rent of £26, fixed by order of the Land Commission, dated the 21st June, 1887. The said order was silent as to turbary rights.

Prior to, and at the date of the said sale, John Murphy was entitled as tenant from year to year to a holding, shown on the sale map as No. 24 Lack, West, at a rent of £16, fixed by order of the Land Commission, dated the 2nd November, 1901. The said order was silent as to turbary rights, but from particulars recorded in the pink schedule it appeared that a sum of 10s. was included in the rent in respect of “16 perches free turbary Lack, Wast.”

At the time of the sale of the estate, the tenants referred to entered into agreements to purchase their respective holdings on the 1st November, 1907. The said three agreements were all silent as to turbary.

Subsequently the Estates Commissioners, pursuant to their powers under the Act of 1903, declared certain lands, including the said three holdings, fit to be regarded as a separate estate, and on the 9th January, 1915, made the requisite advances to the purchasers, and fiated their agreements.

Prior to the sale of the estate, Bridget Kelly and John Murphy, neither of whom had any turbary within the ambit of their holdings, had been provided with free turbary for the use of their respective holdings on the bog on Patrick Hennessey's holding by the vendor, whose bailiff gave them possession of banks. They continued to cut turf on Patrick Hennessey's holding up to 1912. In the turf-cutting season of that year, Patrick Hennessey permitted John Murphy to cut turf on his bog, but refused to permit Bridget Kelly to cut. In the turf-cutting season of 1913, Patrick Hennessey prevented both John Murphy and Bridget Kelly from cutting. There was on Patrick Hennessey's holding a large quantity of turf, which was considerably more than could be required for the use of his holding for a long period.

In consequence of the refusal of Patrick Hennessey to permit John Murphy and Bridget Kelly to enter upon and cut turf on his holding, John Murphy and Bridget Kelly instituted proceedings in the County Court against Patrick Hennessey for damages in respect of the loss sustained by them by reason of Patrick Hennessey unlawfully restraining them in manner aforesaid. The county court judge held that John Murphy was entitled as of right to cut turf on the holding of Patrick Hennessey, and awarded him £1 damages, and on appeal this decree was affirmed. In the case of Bridget Kelly, the county court judge dismissed the civil bill, and on appeal the dismiss was affirmed. Save as aforesaid, the legal rights of the tenants on the estate of the vendor to cut turf from any portion of the said bog, prior to or after the sale of the estate, had not been determined in any court of law.

The Estates Commissioners proposed, if they had power to do so, to make regulations, pursuant to sect. 21 of the Act of 1903, authorizing Bridget Kelly and John Murphy, for whose requirements turbary appeared to be necessary, to cut and make turf on the bog on Hennessey's holding for the use of their respective holdings, and also proposed, if they had power to do so, to set apart a suitable portion of the bog, sufficient for the use of Bridget Kelly and John Murphy, or such other occupiers of land in the neighbourhood who might come within the provisions of sect. 21, for some years, and to authorize Bridget Kelly and John Murphy, or such other persons as aforesaid, to enter on the holding of Patrick Hennessey to cut and make turf from such portion so set apart on payment by each or any of them each year of such a sum of money as appeared to the Estates Commissioners to be fair and just payment for such privilege, and also to provide that no other person should cut or make turf on the portion so set apart. The Estates Commissioners also proposed to provide that the cutting and making of turf by Bridget Kelly and John Murphy, or such other persons as aforesaid, should not prevent the future reclamation of the bog, and that sufficient turf and pasturage should be left for the use of the proprietor of Hennessey's holding for a reasonable period, and further that Bridget Kelly and John Murphy, and any person entering on Hennessey's holding, under the authority of such regulations, should make reasonable amends and satisfaction for any damage done or occasioned thereby.

The following questions of law were submitted:—

1. Had the Estates Commissioners power, under sect. 21 of the Irish Land Act, 1903, to make regulations authorizing the cutting and making of turf on Hennessey's holding for the use of Bridget Kelly and John Murphy, or either of them, or for the use of any ocoupier of land in the neighbourhood? And,

2. If the answer to 1 was in the affirmative, had the Estates Commissioners power, and if so to what extent, subject to the provisions of the said section, to set apart a suitable and sufficient portion of bog for the exclusive use of Bridget Kelly and John Murphy, or such occupier of land as aforesaid, for such period of time as might appear to them reasonable?

Powell K.C., and Edmund Meredith, for the Estates Commissioners.

Hugh Kennedy for Patrick Hennessey.

Kenny K.C., for Bridget Kelly and John Murphy.

Longworth, for the vendor.

Wylie J.:—

It appears to me that the object of sect. 21 of the Act of 1903 was to provide a way of getting rid of the difficulties arising in reference to turbary rights on holdings coming within the section, by enabling the Land Commission to make regulations as to the manner in which those rights were to be exercised. I have no doubt that, where such turbary rights exist, the Land Commission have power under the section to make regulations, otherwise where several tenants have turbary rights on a holding they would be in constant litigation. Turbary rights on a holding may have existed at the time the holding was vested, in which case they would be preserved by sect. 34 of the Act of 1896, or they may have been created as part of the terms of sale, as the Estates Commissioners would have full power to do, and expressly excepted by the vesting order. If such rights either did not exist, and accordingly would not be affected by sect. 34, or were not created as part of the terms of sale, and reserved by the vesting order, the Land Commission would have no power to make regulations under the section after vesting.

In In re King Harman's Estate (1), the Court of Appeal have put a limited construction on the general words contained in sect. 21, making it consistent with the statutory effect of a vesting order. But the basis of the decision in that case was that there were no existing turbary rights, and accordingly that the Land Commission, having vested the lands without creating or reserving any such rights, could not go back on what had been done. From a careful reading of the judgment of Lord Justice Holmes in that case, I do not think that he was of opinion that the Land Commission could not make regulations in respect of existing rights subsequently to a sale.

Under paragraph 5 of the fiated agreement in this case, the holding was vested in Patrick Hennessey “in fee-simple subject as hereinafter mentioned, and as provided by the Irish Land Act, 1903.” In other words, the holding was vested in him in fee-simple subject to any easements, rights, and appurtenances preserved by sect. 34 of the Act of 1896, and to the provisions of sect. 21 of the Act of 1903, as to the making of regulations. By a decree in the County Court...