The Queen (at the prosecution of Lord Rossmore) v The Irish Land Commission

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Court: Queen's Bench Division (Ireland)
• Date: 01 January 1894

The Queen (At the Prosecution of Lord Rossmore)

and

The Irish Land Commission.

394 THE IRISH REPORTS. [1894. Appeal. THE QUEEN (at the prosecution of LORD EOSSMOEE) _1893- v. THE IRISH LAND COMMISSION (1). June 5, 6, 7, 8 9. ' ' MandamusZand Lata (Ireland) Act, 1881, s. 48Refusal of Land Commission to state case for Court of AppealQuestion of lawApplication to state case for appeal, whether frivolous and vexatious. In 1878 D. had taken from R. a holding, containing 14a. Oh. 2p., under an agreement for the season, which stated the lands to be part of the townparks of M., at the rent of £56, and which contained an agreement not to sublet. In 1880 a second written agreement, identical in terms, was executed between the parties, for the season ending the 1st November, 1880. Since 1880 D. had remained in occupation, at the rent of £56; but no further agreement was executed. In October, 1887, the tenant served an originating notice to fix a fair rent, and the Sub-Commission fixed a fair rent at £30. The landlord appealed, stating in his notice of appeal two groundsfirst, that the holding was a townpark, and, secondly, that the letting was one for temporary convenience. When the case came on for hearing before the Land Commission at Monaghan counsel for the tenant was stating his case, when Bewley, J., intimated that the Land Commission had seen the premises, and that the onus lay upon the landlord of showing that the case was not within the Act. Counsel for the landlord then proceeded to state his case, and gave evidence for the purpose of showing that the holding was a townpark. The hearing of the case took up the rest of the day, when the Court reserved judgment until the following morning. On the next day Bewley, J., commenced to deliver judgment, when a second, counsel for the landlord, who had not been present on the former day, asked leave to intervene. Bewley, J., refused leave until after the judgment was delivered. Judgment was then given, affirming the order of the Sub-Commission, and counsel for the landlord asked leave to appeal, stating that there was a question of law he was anxious to raise. Bewley, J., refused leave to appeal, but said he would state a case for the Court of Appeal on any questions of law that might be sent in to them. A draft case was then prepared, raising three questions(1) whether the holding was a townpark, as defined by the Land Law Act, 1881; (2) whether the tenant was a present tenant, as defined by the said Act; and (3) whether the holding was excluded from the said Act, as not being agricultural or pastoral in its character, but let to the tenant for his temporary convenience, and as an adjunct to his residence; and, on the 5th December, it came on to be settled (1) Before Palles, C.B., and FitzGibbon and Barky, L.JJ. Vol. II.] Q. B. & EX. DIVISIONS. 395 before the Land Commission, and after hearing counsel on both sides, Bewley, Appeal. J., refused to state a case, on the ground that the questions were questions of 1893. fact, or mixed questions of fact and law. That order was subsequently The Queen amended by another member of the Land Commission joining in the order, and TR[SIIt'xJiND giving, as a further ground for refusing the application, that it was frivolous Commission. and vexatious. The landlord having applied to the Queen's Bench for'a mandamus to the Land Commission, directing them to give liberty to appeal, or to state a case for the opinion of the Court of Appeal, that Court refused the order: Held (reversing the decision of the Queen's Bench, Barry, L. J., dissentiente), that a mandamus should issue to the Land Commission to hear and determine an application on the part of R. for leave to appeal or to have a case stated. The lands in this case were originally held under an agreement, dated the 1st November, 1824, from the Dowager Lady Rossmore to Robert Little, for three lives, or nineteen years, at the rent of £21 2s. 7d. The last survivor of the cestui que vies died in 1877, Dr. Donnelly, the Roman Catholic Bishop of Clogher, being in possession. An agreement was then executed between Lord Rossmore and Dr. Donnelly in the following form: AGREEMENT FOR THE LETTING OF A TOWN PARK. I, James Donnelly, do hereby agree to take from Lord Rossmore for the season ending 1st November, 1878, the use and enjoyment of parts of the lands of Aughanimy and Lathorcan, situate in the parish and barony of Monaghan, which said lands form part of the town parks of Monaghan, and contain, by estimation, in Aughanimy 3a. Ir. 3p., and in Lathorcan 10a. 2r. 39p., making together 14a. Or. 2p., statute measure, or thereabouts, at the price or sum of £56 sterling, on the following terms and conditions, viz.: First, I agree to keep the gates, stiles, hedges, and fences in good repair and order, and the ditches, drains, and outfalls open and clear to carry off the water. Secondly, I will mow or destroy all the docks, thistles, and weeds once, at least, during my occupancy, and especially during the month of August next. Thirdly, I will not assign, sub-let, or part with the possession of the said premises, or any part thereof, without the consent, in writing, of the landlord, or his agent for the time being. Fourthly, I will not, without such consent as aforesaid, break up any portion of said lands which is now in grass, nor will I alter the fences of said lands in any way. Fifthly, should any of the foregoing terms or conditions be violated, then, and in such case, 1 do pay the sum of £10 as an additional rent or fine. 396 THE IRISH REPORTS. [1894. Appeal. Sixthly, the landlord to pay half the poor-rates, and all county cess, and 1893. all other taxes and rates which may be laid on said premises. The Queen Dated tMs 2gth day of March, 1878. Irish Land Commission. rpne t611ant remained in occupation of the lands during the year 1878 and 1879, and on the 13th May, 1880, executed a second agreement, identical in its terms with that of 1878, for the season ending 1st November, 1880. From 1880, until the service of the notice to fix a fair rent in October, 1887, and since, the tenant had remained in possession of the said lands without any further agreement either in writing or by parol, paying the rent of £56 each year, being the rent specified in the said agreements of 1878 and 1880. The tenant in 1878 was and since had been living in a house close to the said lands and adjoining the cathedral of Monaghan. It was stated that the rent of £56 was far in excess of the agricultural rent of the said lands, and the tenant was induced to give this large rent by reason of the accommodation that the lands afforded to him by securing to him the amenity and privacy of his residence, and also by the fact that they ran into the lands adjoining his residence, coming up to within 15 perches of his house, and he was thereby enabled to farm them as one lot. Since 1878 the tenant had used the lands in the ordinary farming way, both as to their cultivation and the sale of the produce. There was no residence on the lands. The tenant, Dr. Donnelly, from 1864, resided in a house with 10a. 2r. 23p. attached thereto, which he held as tenant from year to year to Lord Rossmore. This house was nearly opposite the new Roman Catholic cathedral and within 300 and 400 yards of the township boundary of Monaghan, and between it and the town the greater portion of the lands, the subject-matter of the originating notice, lay. The Sub-Commission decided in favour of the tenant, and fixed the fair rent at £30, the landlord's contention being that it was a townpark. The landlord having appealed, the case appeared before the Land Commission Court in Monaghan, in January, 1891, but was not reached. It appeared again in a sitting of the Land Commission in Monaghan, on the 1st November, 1892. There was a very long list of appeals before the Land Commission, Vol. II.] Q. B. & EX. DIVISIONS. 397 and Bewley, J., stated at the commencement of the sitting that in Appeal. the event of adjourned cases not being reached before Thursday 1893-they would then be taken, and subject thereto all cases would be Thb &VEm taken in their regular order. Ieish Land A brief had been given by the solicitor for the landlord to Mr. CoMMISSIOir-Law, Q.C, to attend in Monaghan, and on the announcement being made, he telegraphed to Mr. Law, to attend on Thursday morning. But the intervening cases were disposed of so rapidly that on Wednesday evening this particular case was reached, and as the Court refused leave for an adjournment, the landlord's solicitor instructed another counsel to appear for him. When the case was called, Bewley, J., announced that he and his colleagues had inspected the place, and they were satisfied and would so decide that the residence of the tenant was not within the town of Monaghan or its suburbs, and that therefore the contention as to a town-park must fail. Mr. Cordon, Q.C, was then called on by the Court to state the case for the landlord. He contended that the holding was a town-park, but did not raise any question of tenure, or argue that it was a letting for temporary convenience. Evidence was then given, the tenant was examined by his counsel, and the judgment was reserved. On the following morning, Bewley, J., had just commenced to deliver judgment when Mr. Law, Q.C, asked permission to state a point of law, but the Judge declined to hear him until judgment was concluded. On the conclusion of the judgment, Mr. Law stated the two points he was anxious to raise, but the Court said it was too late to raise them. Counsel for the landlord then asked for leave to appeal, but Bewley, J., refused, stating that he would state a case for the Court of Appeal on any questions of law that might be sent into them. Mr. Law then stated that there was one other point which he would ask the Court to reservea point of law. Mr. Teeling, the counsel for the tenant, asked what the question was, and Mr. Law stated that he was quite...