The King (Darcy) v The Justices of County Carlow

• Jurisdiction: Ireland
• Judgment Date: 05 April 1916
• Date: 05 April 1916
• Court: King's Bench Division (Ireland)

The King (Darcy)

and

The Justices of County Carlow (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Justices — Application for Order to enter Land to dig for Road Materials — Orchard — “Orcharding out” — Necessity of proof by Applicant that Land is not an Orchard — Certiorari — Conclusiveness of Decision of Justice that Land is an Orchard — Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), s. 162.

The prosecutor, a road contractor, applied to a magistrate at petty sessions for an order under s. 162 of the Grand Jury (Ireland) Act, 1836, to enter a field in the occupation of D., and dig for and carry away road materials. He gave evidence that these materials could not conveniently be procured elsewhere. D. gave evidence to show that the field was an orchard, fruit-trees having been planted on it by him some time before the application, admittedly with the object of preventing an order to enter being made. The magistrate held on the evidence that the field was an orchard, and made an order, “Application refused, without costs.” The prosecutor applied for a writ of certiorari to quash this order on the ground that the field was not an orchard, and that D., in planting portion of the field, did not bona fide intend to create an orchard.

Held, by the King's Bench Division (Cherry L.C.J., and Madden J.), that the certiorari should be refused. Per Cherry L.C.J., on the ground that certiorari did not lie to quash an order of dismissal by justices. Per Madden J., on the ground that the magistrate had rightly decided that the field was an orchard.

Held, by the Court of Appeal, affirming the order of the King's Bench Division, that the certiorari should be refused, on the ground that the magistrate having heard the evidence and determined the question of fact that the field was not an orchard, there was no jurisdiction to review his determination.

The Queen v. Dayman, 7 E. & B. 672, applied and followed.

To justify the making of an order to enter land under a. 162 of the Grand Jury (Ireland) Act, 1836, the applicant must satisfy the justices that the land does not come within the class excepted by the section, viz., a deer-park, bleach-green, orchard, etc.

Reg. (Murphy) v. Justices of Wexford, [1894] 2 I. R. 81. approved of.

Certiorari.

This was an application on behalf of the prosecutor to make absolute, notwithstanding cause shown, a conditional order for a writ of certiorari to quash an order made by a justice at petty sessions on the 4th June, 1915, refusing an application by the prosecutor for an order under sect. 162 of the Grand Jury Act, 1836, to enter a certain field in the occupation of Dermot H. Doyne, and dig for and carry away road materials.

The following statement of the facts is taken from the affidavit of the prosecutor, filed for the purpose of obtaining the conditional order:—

On the 25th September, 1914, the prosecutor, a road contractor, and one Patrick Kavanagh, also a road contractor, had obtained orders from the justices authorizing them to enter a certain field, part of the lands of Tullowbeg, in the County of Carlow, then in the occupation of the said D. H. Doyne, and dig for and carry away materials for the repair of roads, for which the prosecutor and Patrick Kavanagh then held contracts. Doyne obtained a conditional order for a writ of certiorari to quash these orders, on the ground that the justices had no jurisdiction to prescribe a point of entrance upon the land specified in the orders. This conditional order was discharged by an order of the King's Bench Division, dated the 17th November, 1914. Doyne appealed from this order. The Court of Appeal, by an order dated the 21st January, 1915, affirmed the order of the King's Bench Division.

The field in question contained 24a. 1r. 16p., statute measure. Immediately after the order of the Kings Bench Division Doyne planted thirty-six fruit-trees, which number he afterwards increased to sixty, some around the plots in the field in respect of which the prosecutor and Kavanagh had obtained the said orders to get materials, and some along the boundary fence separating Doyne's laud from the public road, from which road convenient access could be had to that part of the field in respect of which the prosecutor and Kavanagh had obtained the above-mentioned orders. After the order of the Court of Appeal, Doyne erected a wire fence enclosing about 4a. 1r. 10p. of the field. The fruit-trees above referred to were within the portion so enclosed, but only occupied 3r. 30p. thereof.

The prosecutor was a contractor to the County Council of the County of Carlow for the repair of portion of a public road in the county for the period of one year, from the 31st March, 1915, to the 31st March, 1916.

Paragraphs 6 and 7 of the prosecutor's affidavit set out as follows:—

“6. On the 1st day of June, 1915, I caused to be issued a summons against Dermot H. Doyne … to obtain an order under sect. 162 of the 6 & 7 Wm, IV, c. 116, to enter part of the lands of Tullowbeg, in the county of Carlow, so enclosed by the wire fence hereinbefore referred to, for the purpose of getting gravel, stones, and sand for the repair of the said road. The said summons came on for hearing at the Tullow petty sessions on the 4th day of June, 1915, before Mr. J. C. Ryan, resident magistrate, when an order was made to the following effect:—‘Application refused, without costs.’ …

7. On the hearing of the said summons the County Surveyor, Mr. J. P. Punch, and I proved that road material could not be conveniently procured elsewhere than on the lands of Tullowbeg aforesaid, the property of the defendaut The defendant swore that eighteen months before the summons in the last preceding paragraph hereof referred to, he conceived the idea of making an orchard at the locus in quo, but deferred doing so until after the orders of the 17th day of November, 1914, for entry to his lands of Tullowbeg aforesaid were made; that he then first planted about forty apple-trees, and some of them having been stolen or damaged, he supplemented them, making a total of about sixty. He admitted that his object in so doing was to prevent access to his lands by contractors, and that it was done on the advice of a friend. He also admitted, with regard to the erection of the wire fence round the 4a. 1r. 10p., that this was not erected until after the order of the Court of Appeal, bearing date the 21st day of January, 1915. He swore that it was his intention to plant the remainder of the 4a. 1r. 10p. with fruit-trees at the proper season. The resident magistrate held that upon the evidence of the defendant he bona fide intended to plant the whole of the said area of 4a. 1r. 10p. with fruit-trees, and held that it was an orchard, and dismissed the summons.”

The prosecutor, in his affidavit, prayed for an order of certiorari to bring up the order made at petty sessions on the 4th June, 1915, for the purpose of quashing the same, and for a writ of mandamus compelling the said magistrate to adjudicate thereon according to law, on the ground that the said field was not an orchard, and that the defendant in planting it did not bona fide intend to create an orchard.

The conditional order was granted for the certiorari only, on the ground mentioned in the affidavit.

An affidavit was made by D. H. Doyne, for the purpose of showing cause against the conditional order. He admitted that the dates mentioned in the affidavit of the prosecutor were substantially correct, as well as the statement of his (Doyne's) evidence contained in paragraph seven. He stated, “The order which is sought to be quashed was made by the magistrate after a lengthened hearing, and he held as a matter of fact that the ground which I have fenced off was an orchard, and that I bona fide intended to plant with fruit-trees the part which has not yet been planted.” He also stated that he intended to plant more fruit-trees on the land, which was in every way suitable for that purpose.

Battersby K.C., and Lupton, for the prosecutor.

Leech K.C., and Charles Murphy, for D. H. Doyne.

Cherry L.C.J.:—

This is an application to make absolute a conditional order for a writ of certiorari to quash an order of justices under section 162 of the Grand Jury Act, refusing an application of the prosecutor for an order for liberty to enter the lands of Dermot H. Doyne for the purpose of raising and taking road materials therefrom. There has been...