Tisdall v Parnell

• Jurisdiction: Ireland
• Judgment Date: 12 February 1863
• Date: 12 February 1863
• Court: Exchequer (Ireland)

Exchequer.

TISDALL

and

PARNELL.

Knox v. The Earl of Mayo 7 Ir. Chan. Rep. 563. on appeal, 9 Ir. Chan. Rep. 192.

Jack v. M'IntyreENR 12 Cl. & F. 151; S. C., 3 Ir. Law Rep. 140, and 5 Ir. Law Rep. 552.

Wilkinson v. Haygarth 12 Q. B. 837.

Allaway v. Bennett 6 Jur., N. S., 347.

Murray and others v. HallENR 7 C. B. 441.

Edge v. Wandesforde 9 Ir. Law Rep. 161.

Boyle v. OlphertsUNK 4 Ir. Eq. Rep. 241.

M'Mahon v. Lennard 6 H. of Lds. Cas. 970.

Wheelton v. Hardisty 8 Ell. & Bl. 232.

Trew v. The Railway Passengers Assurance Company 6 Jur., N. S., 759.

Empson v. Fairfax 8 Ad. & Ell. 296.

Knox v. Mayo Ubi. supra.

Lessee of Rolleston v. O' Brien 2 How. Exch., 157.

Doe v. Pulman 3 Q. B. 622.

Doe v. Pulman 3 Q. B. 622.

Clarkson v. WoodhouseENRENR 5 T. R. 412, n. a; S. C., 3 Dougl. 189.

Rex v. Johnson 5 Ad. & Ell. 468.

Powell v. Sonnett 1 Bligh. N. S., 552.

M'Donnell v. M'Kinty 10 Ir. Law Rep. 514.

Smith v. LloydENR 9 Exch. 194.

COMMON LAW REPORTS, OF CASES ARGUED AND DETERMINED IN THE COURTS OF QUEEN'S BENCH, COMMON PLEAS, EXCHEQUER, 6rtlyqua kamkt, AND COURT OF CRIMINAL APPEAL. TISDALL v. PARNELL. (Exchequer.) H. T. 1863. Exchequer. Jan. 19, 20. Feb. 12. Tins was an action brought by Elizabeth Tisdall widow, against the A piece of bog, X, was Hon. H. W. Parnell, for trespass quare clausum fregit. There were surrounded by four town also counts for trover, and conversion of the turf upon a certain lands, A, B, portion of bog in the county of Westmeath. The first and second C, and D. X was described defences denied the plaintiff's possession, and the entry alleged. The in the reference to the third and fourth defences alleged that the defendant, under a patent Survey as bog belong of the 19 Car. 2, was tenant in common with the plaintiff of the ing to the ad jacent towns." bog in question. A, " together with all bogs, &c. &c., thereunto belonging," had been granted to the ancestors of the plaintiff by letters patent of the 33 Car. 2 ; and B, " together with all bogs, &c. &c." bad been granted to the ancestors of the defendant, by letters patent of the 19 Car. 2. To an action for trespass upon X, brought by the owner of A, a tenancy in comÂÂmon was pleaded by the defendant the owner of B. At the trial, the meaning of the reference was left to the jury, who found for the defendant. Upon motion for a new trial-Held (the LORD CHIEF BARON dissentiente) that the words "belonging to the adjacent towns " did not, at the date of the letters patent, create a tenancy in common in X, but meant that undefined portions of X formed part of the adjacent towns. Per the LORD CHIEF BARON-The meaning of the words "belonging to the adjacent towns" was a question for the jury, who had properly found those words to mean that X was held in common by the owners of the adjacent townlands. To establish a tenancy in common by use and enjoyment, acts of ownership by all the alleged tenants in common, in various parts of the lands indifferently, must be proved. A jury may, without consent, be discharged from finding upon an issue which their findings on other issues render immaterial. The inadmissibility of the Ordnance Survey as evidence upon questions of title illustrated. VOL. 14. 1 L 2 COMMON LAW REPORTS. The ease was tried at Mullingar, at the Summer Assizes of 1862, before the Lord Chief Justice. It appeared that the plaintiff was the owner of the lands of Killaghee, and that the defendant was the owner of the lands of Glascarn. The place in which the trespasses occurred was a portion of bog adjoining both these lands. The plainÂÂtiff gave in evidence the following documents (amongst others) :ÂÂa patent of the 18th of April 1681, 33 Car. 2, which granted to Richard Fitzgerald the town and lands of Killaghee in fee, conÂÂtaining 103a. Ir. 24p., together with all bogs, &c., &c., thereunto belonging, situated in the barony of Rathconrath. A tracing of the Down Survey, and a copy of the reference to the map, wherein the town of "Killaghhugh," containing 103a. Ir. 24p. of profitable land, was described as belonging to Thomas Fitzgerald ; and 121a. Ir. 8p. of R bog was described as "bog belonging to the adjacent towns."-[For a transcript of the references, vide the judgment of the LORD GRIEF BARON, p. 16.]-A lease of the 5th of July 1746, whereby A. Malone demised to James Fitzgerald, for lives renewÂÂable for ever, the lands of Killaghee, containing 103a. 1r. 24p., and 40 acres of unprofitable land. Several aged witnesses stated that, as far back as their recollection extended, the turf-bog adjoining the lands of Killaghee, up to the lands of the defendant, was set by, and rent therefor paid to, the bailiffs of the plaintiff, and those through whom she claimed, until the year 1861. For the defendant the following documentary evidence (inter alia) was given :-patent of the 19th of June 1666, 19 Car. 2, granting to Mary Woodward, Letitia Durham and Charles WoodÂÂward, Glascarn, in the barony of Moycashel, containing 118a. 2r. 32p., profitable land, one-third each, for life ; remainder of the entire to Charles Woodward and his heirs, for ever, together with all bogs, loughs, &c. &c., common of pasture and turbary to the premises, or any of them, belonging or appertaining, at the yearly rent of 13. 7s. I Id. Also three tracings from the Down Survey, and a map embodying the extracts. The titles of the plaintiff and defendant to the respective town-lands were admitted. On behalf of the defendant, it was stated by a surveyor that, COMMON LAW REPORTS. 3 in 1836, no part of the bog was then appropriated, except parts in the exclusive possession of the tenants of the plaintiff, and of three other adjoining proprietors, inclosed next their good land; that there was then a considerable part of the bog unapÂÂpropriated, of which a large portion fronting Glascarn was, at the time of the trial, unappropriated. The plaintiff's Counsel objected that there was no evidence to go to the jury of the defendant's title as tenant in common of the bog ; and further, that there was no evidence of the enjoyÂÂment by the defendant or his ancestors of the bog, as tenants in common. His Lordship overruled the objections, and in his charge called the attention of the jury to the maps given in eviÂÂdence by both parties, as showing the grant of the whole bog referred to by the letter B-[vide the judgment of the Loan CHIEF BARON, p. 16]-for the use of the adjacent towns, and to the appropriation of portions of that bog by the parties possessing the adjacent land. His Lordship then told the jury that the only question was, whether the defendant was tenant in common with the plaintiff to the unappropriated portion of the bog upon which the alleged trespass had been committed; and that, if a tenancy in common had been originally created over the whole bog, it would continue until put an end to, either by a partition operating upon the whole, or by an appropriation of particular parts by the several tenants in common, with the concurrence or sufferance of the others ; but that such appropriation would only determine the tenancy in common as to both parts so approÂÂpriated ; and as to the rest of the bog not so appropriated, the tenancy in common would continue. He further told the jury that there was clear evidence of partial appropriation (but not more) by the owners of the adjacent lands, or their tenants, which appeared to him to be in accordance with the note upon the Down Survey describing it as " bog belonging to the adjaÂÂcent towns," but that there was evidence that there remained of this bog, in 1836, above 121 acres unappropriated; and that in his opinion if a tenancy in common was originally created, it would still subsist as to so much as remained unappropriated. H. T. 1863. Exchequer. TLSD ALL V. PARNELL. 4 COMMON LAW REPORTS. The jury found for the defendant, with his Lordship's approval. A conditional order for a new trial having been obtained by G. Battersby, upon the grounds of misdirection, and of the verdict being against the weight of evidence Hans Hamilton and C. Palles now showed cause, and cited Knox v. The Earl of Mayo (a); Jack v. MIntyre(b); WilÂÂkinson v. Baygarth (c). G. Battersby and C. Ferguson, contra. As to the value of the Judge's approval or disapproval of the verdict: Allaway v. Bennett (d). As to rights of common : SelÂÂwyn's .Nisi Prius, p. 495. The question as to the plaintiff's expulsion should have been left to the jury : Murray and others v. Hall (e); Edge v. Wandesfor de (f). Palles, in reply, cited Boyle v. Olpherts (g); M'Mahon v. Lennard (h); Wheelton v. Hardisty (i); Trew v. The Railway Passengers Assurance Company (k); Empson v. Fairfax (1). FITZ GERALD; B. Feb. 12. A piece of land, computed to contain 121 acres, is situate between four townlands. It has four boundaries, each of which forms a boundary of one of the four townlands respectively. Of these four townlands, admittedly one is the property of the plaintiff in this cause ; one of the defendant ; and the other two belong each to another proprietor. A principal question in the action is, whether the plaintiff and defendant are, or are not, tenants in common of a portion of the piece of land containing 121 acres. (a) 7 Ir. Chan. Rep. 563; on appeal, 9 Ir. Chan, Rep. 192. (b) 12 Cl. & F. 151; S. C., 3 Ir. Law Rep. 140, and 5 Ir. Law Rep. 552. (c) 12 Q. B. 837. (d) 6 Jur., N. S., 347. (e) 7 C. B. 441. (f) 9 Ir. Law Rep. 161. (g) 4 Ir. Eq. Rep. 241. (h) 6 H. of Lds. Cas. 970. (i) 8 Ell. & Bl. 232. (k) 6 Jur., N. S., 759. (I) 8 Ad. & Ell. 296. COMMON LAW REPORTS. 5 It is now sought to set aside a verdict obtained' by the defendant upon that issue, on the ground that no evidence was given at the trial of the existence of such tenancy in common. The piece of land containing 121 acres is described in the referÂÂence to the Down Survey as " bog belonging to the adjacent towns ;" and tracings from the Down Survey, showing its position, and one of which...