Stanley v Riky

• Jurisdiction: Ireland
• Judgment Date: 06 March 1893
• Date: 06 March 1893
• Court: Chancery Division (Ireland)

M. R.

STANLEY

and

RIKY.

Atkinson v. KingUNK 2 L. R. Ir. 527.

Wood v. LeadbitterENR 13 M. & W. 838.

Carr v. Benson L. R. Ch. App. 524.

Hanley v. WoodENR 2 B. & Al. 724. 738.

Haigh v. JaggarENR 16 M. & W. 525.

Chetham v. WilliamsonENR 4 East, 468.

Bailey v. ConynghamUNK 15 Ir. C. L. R. 406, 412.

Atkinson v. KingUNKUNK Ir. R. 11 C. L. 536; on app. 2 L. R. Ir. 320.

Atkinson v. KingUNK 2 L. R. Ir. 320.

Carr v. BensonELR L. R. 3 Ch. App. 524.

Duke of Sutherland v. HeathcoteELRELR [1891] 3 Ch. 504; on app. [1892] 1 Ch. 475.

Duke of Sutherland v. HeathcoteELRELR [1891] 3 Ch. 504; on app. [1892] 1 Ch. 475.

Before WALKER, C., and FITZGIBBON and BARRY, L.JJ.

Webb v. Paternoster Poph. Rep. 151.

Wood v. LeadbitterENR 13 M. & W. 838.

Hewlins v. ShppamENR 5 B. & C. 221.

Atkinson v. KingUNK 2 L. R. Ir. 320.

Winter v. BrockwellENR 8 East, 308.

Haigh v. JaggerENR 16 M. & W. 525.

White v. JamesonELR L. R. 18 Eq. 303.

In re StroudENR 8 C. B. 502.

Sutherland v. HeathcoteELR [1891] E Ch. 504; on appeal, [1892] 1 Ch. 475.

Doe v. WoodENR 2 B. & Al. 724.

Bower v. HillENR 1 Bing. N. C. 549.

Liggins v. IngeENR 7 Bing. 682.

Atkinson v. KingUNKUNK Ir. R. 11 C. L. 536; 2 L. R. Ir. 320.

Haigh v. JaggerENR 16 M. & W. 525.

Duke of Sutherland v. HeathcoteELR [1892] 1 Ch. 475.

Atkinson v. KingUNK Ir. R. 11 C. L. 536; 2 L. R. Ir.

Bayley v. ConynghamUNK 15 Ir. C. L. R. 406.

White v. JamesonELR L. R. 18 Eq. 303.

Carr v. BensonELR L. R. 3 Ch. App. 524.

Sutherland v. HeathcoteELR [1892] 1 Ch. 475.

In re StroudENR 8 C. B. 502.

Atkinson v. KingUNKUNKIr. R. 11 C. L. 536; 2 L. R. Ir. 320.

White v. JamesonELR L. R. 18 Eq. 303.

License Mining Agreement to raise ore Tenant for life Revocable and non-exclusive license Absence of expenditure by the licensee in raising the minerals.

M. It. STANLEY v. RISY. 1892. April 26. License-Mining-Agreement to raise ore-Tenant for life-Revocable and May 12. non-exclusive license-Absence of expenditure by the licensee in raising the minerals. Appeal. Dec. 1, 2. Under the will of her husband Mrs. R. was tenant for life of certain real 1893. March 6. estate in the county of Donegal, with remainder to her two daughters, and the will contained a power to Mrs. R. during her life, and after her death to the acting executor of her will, to let the estate from year to year, or for any term not exceeding thirty-one years, in possession, at the best rent, without a fine. By an agreement, dated the 6th January, 1882, the plaintiff agreed to take from Mrs. R. the bog ore on the estate, with full power to enter upon the estate and raise and remove the ore for the period of three years from the 1st January, 1882, at the yearly royalty of 50, which he agreed to pay by equal half-yearly payments, and to pay a further royalty of 2s. per ton for every ton over and above 3000 tons that he might raise within the period of three years ; provided that, if, after the said period of three years, he should desire to continue to raise the ore, he should be entitled to do so on paying to the person entitled to the said estates a royalty equal to one-fifth of the net profits which he might derive from the sale of the said ore. This was signed by Mrs. R. and C., the executors of the will. At the end of two years the plaintiff, having sent away only about 300 tons of ore, applied to Mrs. R. to modify the agreement by extending the period of three years for raising the ore, on condition that he should be content with 2000 tons instead of 3000, as agreed, and he should pay the 150 within the three years mentioned, and this proposal was accepted. In September, 1887, the plaintiff completed sending away 2000 tons of ore, and acquainted Mrs. R. with his intention to continue to raise and take away the ore, and he subsequently proposed for the further payment of royalty to the said Mrs. It. at the rate of is. 6d. per ton instead of one-fifth of the net profits, which was accepted by Mrs. It. In July, 1891, Mrs. R. informed the plaintiff that she intended to work the bog ore herself, and at the end of the year commenced raising ore. The ore in question lay on or near the surface of the ground, and the plaintiff had not expended any money in the erection of works or otherwise. In an action for an injunction to restrain Mrs. R. (1) from raising and digging up the ore, and from carrying away ore already raised, and (2) to restrain her from impeding the plaintiff in raising and removing the said ore :- Held, by the Master of the Rolls, that after the expiration of the period of -three years mentioned in the agreement, it constituted an irrevocable, but non-exclusive, license to work the ore during the lifetime of Mrs. R., upon the terms set out in the agreement, and that the plaintiff was entitled to an injunction, restraining her from obstructing or impeding him in raising or removing the ore. Held, by the Court of Appeal (varying the decision of the Master of the Rolls), that after the said period of three years the license was revocable, and that the plaintiff was not entitled to the injunction. Held also, by Walker, C., that after the said period of three years it was non-exclusive. MOTION by the plaintiff for an injunction, and treated by consent as the hearing of the action. Elizabeth Young was, under the will of her husband, William Young, dated 27th November, 1874, tenant for life of the lands of Killygordon, in the county of Donegal, subject to the maintenÂÂance and education of his children, Margaret and Elizabeth, with remainder to those two daughters, with cross remainders between them. The testator also gave annuities to his daughters, and he appointed his wife and Mr. R. Smith Chatterton, executors. The will gave a power to the testator's wife during her life, and after her death to the acting executor of the will, to let from year to year, or for any term, not exceeding 31 years in possession, at the best rent and without fine. By an agreement, dated the 6th January, 1882, the plaintiff, R. IL Stanley, and R. F. Olphert, agreed to take from Mrs. Young the bog ore on the said estate. The agreement was in the following terms : " We propose and agree to take from you the bog ore in, under, or upon the estates of the late William Young, with full power of entering upon the said estates, and raising, getting, and removing the said ore, for a period of three years, from the 1st day of January, 1882, at a certain yearly royalty of 50, which we agree to pay by equal half-yearly payments, the first of such payments to be made on the 1st day of July next, and we agree to pay a further royalty of 2s. for every ton over and above 3000 tons that we may raise within the said period of three years to take away, provided that if after the said period of three years 198 LAW REPORTS (IRELAND). [L. R. I. M. R. we, or either of us, shall desire to continue to raise, get, and take 1892. away the said ore, we, or either of us so desiring shall be entitled STANLEY to do so on payment to the person for the time being entitled to U. RIKY. the said estates of a royalty, equal to a one-fifth part of the net profit, which we may derive from the sale of the said ore ; and, for the purpose of computing such profit, and ascertaining the amount of ore raised and removed by us, we agree at all times for the inspection of all necessary persons." This was signed by Stanley and Olphert, and was followed by an acceptance in the following words :-" We accept the above proposal and agreeÂÂment so far as its provisions come within our, or any of our, powers, and will in every way facilitate your dealings with the tenants." This was signed by Elizabeth Young and It C. Smith Chatterton, who was her co-executor of the will of William Young. Almost the entire deposit of the bog ore in the said estates was situated in the farm of a tenant named Joseph Dougherty, and his mother Mrs. M'Creery, and difficulty was experienced in getting them to dig for the ore, or allow anyone to go on the land for that purpose. At the end of two years the plaintiff, having sent away only about 300 tons of ore, applied to Mrs. Young to modify the agreement by extending the period of three years for raising the said ore, on condition that he should be content with 2000 tons instead of 3000 as agreed for, and should pay the 150 within the three years mentioned. By a letter dated the 16th February, 1884, Mrs. Young agreed to this modification. In September, 1887, the plaintiff completed sending away 2000 tons of the said ore, and acquainted the defendant with his intention to continue to raise and take away the said ore. Subsequently the plaintiff proposed for the further payment of royalty to Mrs. Young, at the rate of ls. 6d. per ton, instead of one-fifth of the net profits, and she accepted the plaintiff's suggestion. James Bryson, the steward and land agent of Mrs. Young, was engaged by the plaintiff for the purpose of making arrangements with, and paying, the people who raised and carted the bog ore. In the summer of ].891 the plaintiff made an arrangement with the Doughertys, in whose land the ore VOL. XXXI.] CHANCERY DIVISION. 199. was, to raise, and cart out to a piece of ground rented by him, M. R. 1200 tons by the 1st October, 1891, in consideration of a bonus on 1892. the ordinary payment for such work. This agreement the STANLEY V. Doughertys were carrying out, and had carted about 500 tons to RIKY the plaintiff's plot of ground, when they were stopped by order of the defendant. In the month of March, 1891, Mrs. Young married Captain Riky. About the end of May, 1891, the plaintiff visited Mrs. Riky at her residence, when he was informed by her that she thought of working the bog ore herself after the 1st November, 1891, to which the plaintiff replied that that matter would require consideration. On the 25th July, Mrs. Riky wrote to Stanley, reminding him of the conversation, and hoping that he would have his business wound up by the 1st November...