The Earl of Pembroke and Montgomery v Warren

• Jurisdiction: Ireland
• Judge: V.-C.
• Judgment Date: 06 February 1896
• Court: Chancery Division (Ireland)
• Docket Number: (1895. No. 162.)
• Date: 06 February 1896

The Earl of Pembroke and Montgomery

and

Warren.

V.-C.

Appeal.

(1895. No. 162.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Lease — Covenant not to carry on certain businesses, “or any other offensive or noisy trade, business, or profession whatsoever” — Private hospital — Injunction — Practice — Change of parties — Costs.

A lease made in 1822 of a plot of ground on one side of Fitzwilliam-square (then partly built) in the city of Dublin, for the enclosing, ornamenting, and maintaining of which Square Commissioners had been appointed by Act of Parliament, contained covenants by the lessee to build dwelling-houses of a superior class according to the descriptions in the lease, and that the ground called Fitzwilliam-square should be preserved as a square and laid out as a pleasure ground only. It also contained a covenant not to use any part of the front of the house as a shop, or carry on therein or on any part of the demised premises the business of a tavern, ale-house, soap-boiler, chandler, baker, butcher, distiller, sugar-baker, brewer, druggist, apothecary, tanner, skinner, lime-burner, hatter, silversmith, coppersmith, pewterer, blacksmith, or any other offensive or noisy trade, business, or profession whatsoever.

A sub-lessee opened what the plaintiff called a private or home hospital, but what she described as a residence for herself and persons coming to town for medical advice or to undergo treatment. The Commissioners of the Square and the great majority of the residents objected to this and called on the head landlord to prevent it. On a motion for an interlocutory injunction, evidence was given that such a business would cause great annoyance and would be a source of danger to the other inhabitants of the square and would greatly depreciate the value of the property. Evidence for the defendant went to show that the only persons admitted were patients requiring surgical operations or to be treated medically, and who were sent by their own surgical or medical advisers; that persons suffering from infectious diseases were not received, and that there was no danger from infection.

Held, by the Vice-Chancellor, that the ejusdem generis rule did not apply, and that the concluding general words of the covenant were not to be confined to businesses of a similar nature to those enumerated; that in construing the covenant the nature and purpose of the letting, and the nature of the locality should be taken into account; that the word “offensive” had no definite legal meaning, that it was not to be restricted to what was unpleasant to the eye, ear, or nose, that it should be interpreted secundum subjectam materiem, and that it meant causing well-founded and reasonable annoyance. And the Court being satisfied on the evidence that the great body of the tenants of houses in the square were offended by the opening of the hospital, held, that there had been a breach of the covenant which should be restrained by an interlocutory injunction.

On appeal, held, by Sir P. O'Brien, L.C.J., and Walker, L.J. (Fitz Gibbon, L.J., diss.), that having regard to the locality, and to the circumstances under which the lease was granted, a private hospital was offensive within the meaning of the covenant.

Held, by FitzGibbon, L.J., that a private hospital was not necessarily, or per se, offensive within the meaning of the covenant, and that an interlocutory injunction ought not to be granted.

Pending the action the plaintiff died, and an order was made on the application of his devisee that the proceedings should be continued in the name of the latter. The defendants ultimately submitted to a perpetual injunction. The Vice-Chancellor, in awarding same with costs, held, that such costs should include those incurred prior to the death of the original plaintiff.

Motion for an interlocutory injunction. The action was brought by the Earl of Pembroke and Montgomery for an injunction to restrain the defendants, Graves Warren, Mary Shekleton and Elizabeth Perry, their agents and servants from carrying on, or permitting to be carried on, in the house and premises, 28 Fitzwilliam-square, in the city of Dublin, the business of a hospital, in breach of a covenant on the lessee's part contained in the lease under which the premises were held.

The lease was dated the 27th June, 1822, and by it the then Earl of Pembroke and Montgomery demised to Clement Codd, all that lot or piece of ground situate on the south-west side of Fitzwilliam-square, in the suburbs of the city of Dublin, and in the Manor of Baggotsrath alias Baggotrath, containing in front to said square 76 feet, in breadth in the rere 76 feet, and in the depth from front to rere 200 feet, over and above the breadth of the area which was to be 8 feet wide in the front of the houses that should be built on the said ground, and over and above the flagged passage which was to be 10 feet wide from the said area, mearing and bounding on the north-east by Fitzwilliam-square aforesaid, on the south-west by a stable-lane, which was to be 24 feet wide, on the north-west by ground in Lord Pembroke's hands, and on the south-east by another holding, leased to the said Clement Codd, as the same was set forth in the map thereunto annexed, for the term of 150 years at the yearly rent of £49 8s., Irish currency; and Clement Codd covenanted that he would within the first two years of the term build on the entire front of the said lot, and fronting to Fitzwilliam-square, good and substantial dwelling-houses of the best materials, well roofed and covered with slates, not less than four stories high above the cellars at least, and should make an area of 8 feet wide in the front of said houses, and lay flags before the houses for a foot passage in the like manner as the same was then done before the houses in Merrion-square, and should pave the whole street before the front of said houses from the said flagged passage to the wall that enclosed the said square, and should enclose the said demised premises with a stone or brick wall within the first six months, and should trim the vaults to the front of said lot within the first twelve months of said term, or in default thereof the said Clement Codd should pay an additional yearly rent of £30. And that the front of the said houses should range in the line marked on the said map, and that no bow-window or other projections should be made in the front of the said houses beyond the window stools, and door cases, and that the area should be enclosed with a stone kerb with iron palisadoes on top ranging uniformly along the said intended square, and that the front of the said houses to the said square should be built of red stock bricks, and if the said houses and said area, passage, and pavement should not be built, fixed up, and made in manner aforesaid within the first two years the said Clement Codd would after the expiration thereof pay an additional yearly rent of £98 16s., or that otherwise at the election of the Earl of Pembroke, &c., the demise should be void. Clement Codd also covenanted to insure against fire any houses that should be built on said premises, or in default to pay an additional yearly rent of £70, or that otherwise at the election of the Earl of Pembroke, &c., the demise should be void. And further that the plot or piece of ground laid out on said map, called Fitzwilliam-square, should be preserved as a square, and that no building should be erected thereon during the demise, and that no cattle should be put on said ground, and that the said ground should be laid out as pleasure ground only, and ornamented in such manner as the majority of the tenants of said square should approve, and should be done at their own sole expense. “And further the said Clement Codd, for himself, his heirs, executors, administrators, and assigns, doth also covenant, promise, grant, and agree to and with the said Earl or the person or persons who may for the time being be entitled as aforesaid, that neither he the said Clement Codd, his heirs, executors, administrators, or assigns, nor any of them during the said term of 150 years shall employ or use any part of the front of the said house as a shop, or follow, or carry on, or permit, or suffer, to be followed or carried on, in the said house or on any part of the said demised premises, the business of a tavern, ale-house, soap-boiler, chandler, baker, butcher, distiller, sugar-baker, brewer, druggist, apothecary, tanner, skinner, lime-burner, hatter, silversmith, coppersmith, pewterer, blacksmith, or any other offensive or noisy trade, business, or profession whatsoever, and that on the breach of this covenant or any part thereof this present demise shall be utterly void to all intents and purposes, as if the same had never been made, or that otherwise at the election of the said Earl or the person or persons who may for the time being be entitled as aforesaid, the said Clement Codd, his heirs, executors, administrators, or assigns, shall forfeit and pay unto the said Earl of Pembroke, or the person or persons who may for the time being be entitled as aforesaid, from the time of the breach of the covenant, or any part thereof, whilst such trade or business shall be so carried on a further additional yearly rent or sum of £70 …”

By an Act 53 Geo. 3, c. clxxxv. (loc. & pers. 2 July, 1813), commissioners were appointed for making, enclosing, completing, improving, and ornamenting Fitzwilliam-square; and in order to provide a permanent fund for completing the enclosure and improvements, and keeping up and repairing the same, the houses and plots of ground on the sides of the square, as set out in a schedule, with the buildings then made, or thereafter to be erected thereon, were made chargeable with an annual payment to the commissioners according to...