The Estate of E.C.S King-Harman

• Jurisdiction: Ireland
• Judgment Date: 27 January 1908
• Date: 27 January 1908
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of E. C. S. King-Harman (1).

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.

1908.

Land Purchase Acts — Purchase of estate by Land Commission — Estates Commissioners — Sale of holding to tenant — Turf — Rights of adjoining tenants — Privilege — Regulations as to turbary — land Law (Ireland) Act, 1896, s. 34 — Irish Land Act, 1903, s. 21.

Held, by the Court of Appeal (reversing the decision of Wylie, J.), that sect. 21 of the Irish Land Act, 1903, did not, under these circumstances, empower the Land Commission to make regulations authorizing the cutting or making of turf upon A's holding by other occupiers of land in the neighbourhood of the holding, for whose requirements such turf appeared to the Land Commission to be necessary.

Semble: The cutting or taking of turf by one tenant upon the holding of another, under the authority of a “bog ticket” given him by his landlord for that purpose, is not such a “privilege… enjoyed… by permission of the landlord” as is contemplated by sect. 34 of the Act of 1896.

Appeal from a decision of the Hon. Mr. Justice Wylie, made on the hearing of questions of law referred for his decision by the Estates Commissioners, as follows:—

Memorandum.

1. In this case the Estates Commissioners have purchased the estate under the provisions of the Irish Land Act, 1903, sect. 6, and it has been vested in the Land Commission.

2. Several holdings on the estate contain large areas of bog. The practice on the estate with reference to the bog before the date of the said purchase, was that, though the bog was included in the ambit of the holding, the landlord had the right to put 1 in other persons to cut turf on same, on payment of a bog rent to the landlord, the tenant having the right of turbary for his own use only.

3. George R. Acheson, a tenant on the estate, who occupied his holding on the terms above mentioned, has purchased the same. The description of his holding was duly amended by order of the Judicial Commissioner, and is now described on the map utilized for sales on this estate as 4 B, 4 D, and 4 E, Portobello, and contains 163_A. 2_R. 35_P.

4. The holding contains a considerable area of turbary, on which, prior to the sale, the landlord exercised the right of turbary above referred to, but the undertaking signed by the purchasing tenant contained no reference to turbary, and the holding has become vested in the said tenant without reference to turbary.

5. The Estates Commissioners find as a fact that the holding contains more than sufficient turf for the use of the proprietor of the holding for a reasonable time. The Estates Commissioners refer the following questions of law for the decision of the Judicial Commissioner.

Questions of Law.

1. Can the Commissioners, notwithstanding that a vesting order has been actually made vesting the holding in the said George R. Acheson, and without any reservation of turbary, make regulations under sect. 21 of the Act, authorizing the cutting or taking of turf on the bog on the holding by occupiers of land in the neighbourhood of the holding, for whose requirements such turf appears to be necessary, upon such terms as to payment or otherwise as may appear to the Estates Commissioners to be just?

2. If so, can the Estates Commissioners, in making such regulations under sect. 21, direct that the payment referred to in that section shall be made to the Land Commission, or their assigns?

Mr. Justice Wylie answered the questions in the affirmative (1).

George R. Acheson appealed.

Fetherstonhaugh, K.C., for the appellant:—

The bog here in question was not vested in trustees as was that which had been retained in the landlord's own hands prior to the sale to the Land Commission. It was sold to and vested in Acheson as part of his holding, under a fiat which had the same effect as a vesting order, and which, as well as his “undertaking” to purchase, contained no reservation, or even mention of any turbary rights. That being so, the Estates Commissioners could not afterwards derogate from their grant by sending in other tenants to cut or take turf upon the holding so vested, in a manner analogous to the former landlord's rights under the Act of 1881, sect. 5. No easement, right, or privilege existed as regards this turf prior to the sale to the Land Commission, beyond that of the landlord under the Act of 1881, sect. 5, to enter, or to authorize other persons to enter, upon the holding for the purpose of cutting or taking turf, on making reasonable amends and satisfaction to the tenant; that right could not continue after the holding had been vested without reservation in the purchasing tenant. The Act of 1896, sect. 34, has no application to this case; the tenants who formerly cut turf on the holding paid for permission to do so;

they enjoyed no easement or right, or any privilege beyond what each “bog-ticket” gave them; they simply bought so much turf from the landlord on each occasion when they took out “bog-tickets.”

If the Estates Commissioners are right in their contention, there can be no time limit to the exercise of their powers under sect. 21 of the Act of 1903, which they could claim to exercise ten years...