Rudd v Rea

JurisdictionIreland
Judgment Date19 April 1921
Date19 April 1921
Docket Number(1920. No. 537.)
CourtChancery Division (Irish Free State)
Rudd v. Rea.
RUDD
and
REA
(1920. No. 537.)

Reservation - Growing timber - "Use of all roads and passes" for removal of timber - Licence to erect saw-mill - Implied rights - Construction of railway - Making gaps in fences - Manufacture of sleepers, etc. - Auctions on the lands - Time for removal of timber.

Under a contract for the sale by the owner of land of the timber growing on it, with "the use of all roads and passes," and permission to erect saw-mills on the lands, the purchaser was held not entitled (a) to use a saw-mill erected by him on the lands for the purpose of manufacturing sleepers or brush-heads out of portion of the timber; (b) to remove the timber by a mode of traction which so injured the roads through the land as to render them incapable of use by the owner of the land; (c) to hold sales of the timber by public auction on the land; (d) to leave timber or branches on the land longer than was reasonably necessary. The purchaser under such a contract heldentitled (a) to lay down and work a railway on the land for the purpose of removing the timber; (b) to make gaps in walls and fences for the purpose of removing the timber, subject to the duty of restoring the walls and fences.

Action.

The plaintiff was the owner in fee of the mansion and demesne of Oriel Temple, County Louth, under a conveyance dated 10th January, 1920, excepting and reserving unto the assignees of James Lyons all timber growing on the said lands. The said James Lyons was a predecessor in title of the plaintiff, who by agreement in writing dated 18th September, 1919, sold to the defendant all the growing timber in the said demesne, and agreed to allow a period of five years from the date of the agreement for the removal of the said timber, "and the use of all roads and passes." James Lyons also gave verbal permission to the defendant to erect two saw-mills in the demesne to facilitate him in carrying out the contract; there was no other term in the contract with regard to the cutting or removal of the timber. The defendant proceeded to out and remove the timber, which was estimated to weigh about 10,000 tons. In the course of his operations he erected a saw-mill and worked it for the purpose of manufacturing sleepers, brush-heads, &c., out of portion of the timber, and piled logs and manufactured goods on the avenue adjoining the mill; he partly erected a second mill, and for that purpose cleared all acre of shrubs; he constructed 600 yards of railway and hauled timber thereon; he used traction engines, motor lorries, and a caterpillar tractor on the avenues, passes, and roads of the demesne, which were not constructed for such traffic, and thereby did serious and permanent injury to them, and rendered them incapable of being used by the plaintiff for the ordinary purposes of his residence and farm; he left felled trees and branches on the lands and avenues, and thereby interfered with the plaintiff's use of the lands; he made gaps in fences for the purpose of removing the timber; and having taken timber through the gates, he failed to close them; he held public auctions on the lands for the sale of wood cut there. The action was brought for all injunction restraining the defendant from doing or continuing the acts above mentioned, and for damages for trespass and for nuisance.

Powell J., having reviewed the evidence, proceeded:—

Apart from rights or privileges which may have been conferred upon the defendant by express parol licence, or by the existence of terms to be implied by reason of custom or usage, what is the nature of the agreement of the 18th September, 1919? There is very little difference between my view and the general view put forward by the defendant's counsel as respects this matter. The agreement confers a right on the defendant to enter upon the lands of the plaintiff, and to do all things in the exercise of a right of a profit à prendre, which, having regard to all the circumstances, are reasonably necessary for the cutting and removal of growing timber from the locus in quo, to which I add, adopting the language of Mellish L.J. in the case of Hext v. Gill(5), "giving to the defendant every reasonable profit out of the growing timber"; and, of course, I quite accept the application of the well-known principle that where there is a grant of a profit à prendre, such ancillary rights as are reasonably necessary to its exercise or enjoyment are also granted. Lord Coke supplies authority for this in his report of Liford's Case(6):—"If I grant you my trees in my property, you may come with carts over my land to carry the wood. Lex est cuicunque aliquis quid

concedit concedere videtur et id sine quo res ipsa esse non potuit."And this, Lord Coke says, is a maxim in law. I must, in regard to this instrument and the rights of the parties, follow and adopt the rule laid down by Lord Justice Bowen in Myers v. Catterson(1).I think the same learned Judge in a very few words in his judgment in "The Moorcock"(2) lays down the extent and limits of that which must be borne in mind in arriving at a conclusion as to what are proper and necessary implications in an instrument of this kind. "What the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended, at all events, by both parties, who are business men." I must also have regard to the principle laid down by Lord Loreburn in the Lyttleton Times Co. v. Warners, Ltd.(3),where he says: "When it is a question of what shall be implied from the contract, it is proper to ascertain what in fact was the purpose, or what were the purposes to which both intended the lands to be put, and having found that, both should be held to all that was implied in this common intention"; and I read that passage in connexion with the words of Lord Justice Bowen to which I have just referred.

Mr. Justice Parker, as he then was, in referring to Lyttleton Times Co. v. Warners(4), in his judgment in Jones v. Pritchard(5),says that "the case seems to show that if a grantor is doing on land retained by him only what it was at the time of the grant in the contemplation of the parties that he should do, and is guilty of no negligence or want of reasonable care or precaution, he cannot be liable for the nuisance entailed upon the grantee; and, of course, where the grantee is occasioning a nuisance to the grantor by doing on the land granted what it was at the time of the grant in the contemplation of the parties that he should do, and there is no want of care and precaution, the case is an a fortiori one." And in so applying the principle in question in the present case, I must have regard to all the surrounding circumstances in respect of what counsel for the defendant truly describes as a most unusual contract.

Giving full weight to these considerations, I am unable to accede to the contention of defendant's counsel, that the legal effect of this instrument, either as regards what appears on the face of it or in relation to all proper and necessary implications, is or may be that the defendant is entitled to exercise his rights under it to the extent of annihilating the plaintiff's rights for the term of the contract. If that contention is right, it appears to me that the plaintiff has no case. There is certainly nothing on the face of the instrument that confers on the defendant the right to ignore the plaintiff's rights. Is it a reasonable and necessary implication that such rights are to be ignored? A part from authorities laying down general principles, I am told that I am coerced to so hold by authorities applicable to the present case; but let me examine the principal authorities relied on.

The first of these cited by counsel for the defendant is Earl of Antrim v. Dobbs(1). The predecessor of the plaintiff in that case made a fee-farm grant of certain lands, excepting to the grantor"all mines and minerals and the right to him, his servants, horses, and carriages to enter, dig, bore, search for, and carry away the same, he and they paying reasonable compensation for any injury done to the lands in the exercise of these rights." At the time of the doing of the acts complained of, the defendant held portion of the grantee's interest under this grant. By lease the plaintiff demised the excepted mines and mining rights to an iron ore company, who, for the purpose of carrying away ore, laid down about six miles of railway with the rails in question, which passed through the defendant's lands, then through another portion of the lauds comprised in the fee farm grant held by a third party, and finally through lands the property of and occupied by Lord Antrim, to a pier. The railway was worked by locomotive engines. There were other questions involved; but the question which is relevant here was whether the words of the reservation could extend to laying down a railway or tramway over the surface of the lands of the defendant, who derived under the grant. The case was tried before Lord Justice FitzGibbon and a jury, and amongst other questions left by the learned Judge to the jury was the following:—"Was the railway, as it was

constructed and worked, reasonably necessary for working the mines under the lands granted by the deed and carrying away the ore therefrom?" and the jury found that it was. The question for the determination of the Divisional Court was really whether that finding could stand. The Divisional Court consisted of O'Brien and Holmes JJ.; and I think that the judgment of Holmes J. gives one a clear conception of what it was that the Court decided, and also the reasons for the decision. Referring to the words of the reservation, Holmes J. said (1): "When mines are excepted in a grant and there is a reservation giving a right to work them and to carry away their products, it is impossible to decide as a pure question of law whether a particular act done or work constructed is or is not covered by the...

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2 cases
  • Rudd v Rea
    • Ireland
    • Court of Appeal (Irish Free State)
    • 26 Marzo 1923
    ...to the plaintiff the costs of the action incurred by reason of the issues in regard to the aforesaid matters. The facts are stated in [1921] 1 I.R. 223. Molony C.J. :— By an indenture dated the 10th day of January, 1920, the plaintiff purchased the fee-simple interest in the lands of Collon......
  • Gilmore v The O'Connor Don and Another
    • Ireland
    • Supreme Court
    • 1 Enero 1948
    ...(13) [1897] 1 Ch. 315. (14) 30 L. R. I. 111. (1) [1909] 2 Ch. 440. (2) Vaugh. 330, at p. 351. (3) [1904] 1 K.B. 713, at p. 721. (4) [1921] 1 I. R. 223; [1923] 1 I. R. (1) 9 B. & C. 561, at p. 573. (2) [1909] 2 Ch. 440. (3) [1892] 3 Ch. 382. (1) 2 Ball & B. 35. (2) 6 Ch. D. 139. (3) 37 Ch. D......

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