Tottenham v Byrne

• Jurisdiction: Ireland
• Judgment Date: 12 June 1861
• Date: 12 June 1861
• Court: Exchequer (Ireland)

Exchequer.

Before PIGOT, C. B., and FITZGERALD and DEASY, B.B.

TOTTENHAM

and

BYRNE.

Rex v. MontagueENR 4 B. & C. 598.

Douglas v. Lock 2 Ad. & Ell. 743.

Legh v. HealdENR 1 B. & Ad. 622.

Lade v. ShepherdENR 2 Str. 1004.

The Queen v. Pratt 4 Ell. & Bl. 860.

Holmes v. BellinghamENR 7 C. B., N. S., 329.

Harrison v. HampsonENR 4 C. B. 267.

Steel v. Prickett 2 Stark. N. P. C. 463.

Duncan v. Louch 6 Q. B. 904.

Brownlow v. Tomlinson 1 Mann. & G. 484.

Trustees of the Dundee Harbour v. Dougall 1 Maccq., App. Cas., 317.

Young v. Cuthbertson Ibid, 455.

Robinson v. HindeENR 2 Mood. & R. 441.

Cardigan v. ArmitageENR 2 B. & C. 197.

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

Rimington v. CannonENR 12 C. B. 18.

Smith v. LloydENR 9 Exch. 562.

Smith v. LloydENR 9 Exch. 562.

Goodtitle v. AlkerENR 1 Burr. 133.

Incorporated Society v. Richards 1 Dr. & War. 258.

Scott v. Nixon 3 Dr. & War. 388.

376 COMMON LAW REPORTS. E. T. 1861. houses, and the maintenance of them ; and, if so, they must be Exchequer. taken to have also contemplated that those future houses should HARGROVE be so dealt with as to have provided for them the means of V. CONGLETON. being kept in repair, being kept from damp, and have the means for cooking food. If so, the case is plainly within Hill v. Barry and Duggan v. Carey. The plaintiff claims in reference to a house built by himself, and not a house previously upon the premises. lie himself occupies the house ; for his brother takes care of it, and that occupation is his. How far the terms of this lease give him a right of taking turf for a large number of tenants is not a matter which we have to determine. Then comes the question whether the right is extinguished by the assignment ? That is disposed of, once you establish that this right exists in the person who holds the lands. There is nothing to prevent him conveying it together with the land. The authoriÂties, in reference to this point, adverted to by the defendant's Counsel, :are wholly inapplicable. In every one of them the reserÂvation was one which gave a right in gross ; and with that class of authority we have nothing to do. In truth, after the cases of Hill v. Barry and Duggan v. Carey, the question is purely one of the construction of the lease under which the plaintiff claims. May 2. T. T. 1861. June 12. TOTTENHAM v. BYRNE.* A demised to Tins was an action for the disturbance of a right of way to a well. B certain lands to hold for The summons and plaint contained five paragraphs. The first ever, " saving and reserving the present road to Rosemount, and also the roads to Tubbernacoolah well." Held, that the soil and freehold of the roads were thereby excepted to the grantor. A road, the soil and freehold of which was in A, ran from a highway to a well. The land upon each side of the road belonged to B. B built a wall along the high * Before BIGOT, C. B., and FITZGERALD and DEASY, B.B. COMMON LAW REPORTS. 377 stated the existence of the well, and a road to it, before the demise T. T. 1861. Exchequer. therein stated, and then stated a demise of the 31st of May 1805, M TOTTENHA from the then owner in fee of the lands, Bartholomew Boyd Elliott, v. to Thomas Jones, of the lands of Mount-Elliott, reserving out of said demise the said road to said well, to hold for ever ; and then stated that all Elliott's estate was vested in the plaintiff, and alleged an obstruction of the road by the defendant. The second paraÂgraph stated plaintiff's seisin of the towniand of Mount-Elliott, and claimed a way to the well for himself, his servants and tenants, occupiers of the towniand, on foot and with horses and cattle; and that the defendant obstructed it. The third claimed a public right of way to the well, for all persons with horses and cattle. The fourth paragraph stated the reservation in the lease of the 31st of May 1805, as a grant by Jones, the lessee, to Bartholomew Boyd Elliott, of the highway leading to the well. The fifth was for a breaking and entry of plaintiff's land, and building a wall upon it. The defendant pleaded six defences, from which the following issues were eliminated :-First ; whether, at the time of the committing of the grievances in first count mentioned, the land therein described as the road leading to the well therein mentioned, or any part thereof, was the land, soil and freehold of the plaintiff, as therein mentioned ? Secondly.-Whether the defendant was entitled to the right of *ay, as in the second count alleged ? Thirdly.-Whether there was, and of right ought to have been, such common or public highway, as in the third count alleged, to the well therein mentioned? Fourthly.-W hetber Thomas Jones did execute the deed in the fourth count mentioned? BYRNE. road, across the mouth of the road to the well, leaving a stile for foot passem, gers, and levelled the fences on each side of the road. There was a dispute as to whether those acts of B had been done twenty years before action brought. Upon the trial of an action of trespass, brought by A against B, the jury were unable to agree whether the acts of B had been done within twenty years, but found that the public, down to the bringing of the action, had exercised a right of way to the well, since the erection of the stile, on foot, and before with horses and carriages. The learned Judge thereupon discharged them from a Ending upon the time when B's acts were done, and directed a verdict for the plaintiff. Held (ProoT, C. B., dissentiente), that this was a misdirection, and that if B's acts had been done more than twenty years before action brought, A's title was barred by the Statute of Limitations. vol.. 12.. 48 378 COMMON LAW REPORTS. T. T. 1861. Fifthly.-Whether all the estate and title of said Bartholomew Exchequer. Boyd Elliott, in the way in the fourth count mentioned, was, at the, TOTTENHAM time of the committing of any of the grievances or trespasses therein V. BYRNE. mentioned, vested in the plaintiff, as therein alleged? Sixthly.-Was the land, in the fifth count mentioned, or any part thereof, the land of the plaintiff? The case was tried before Mr. Justice Christian, at the Spring Assizes of 1861, for the county of Wexford. The plaintiff gave in evidence a deed of the 31st of May 1805, by which Bartholomew Boyd Elliott, the then owner in fee, demised to Thomas Jones, and his heirs, a certain portion of the lands of Mount-Elliott, to hold for ever, at a certain rent, " saving and reÂ" serving the present road to Rosemount, and also the roads to TubÂ" bernacoolah well." The title of Bartholomew Boyd Elliott was then traced to the plaintiff. It appeared that, many years before the bringing of the present action, the defendant had caused to be built a wall along a road called the Valley-road, which wall crossed the mouth or entrance of the road in dispute, leading from the high road to the well. Where the wall so crossed the well-road, a stile was placed, which permitted the passage of people on foot, but barred that of horses, cattle or carriages. It also appeared that, about the same time, the fences, on each side of the road to the well, had been levelled by the defendant. Positive evidence was given, on the part of the plaintiff, that this wall and stile were not built until January 1843. Equally positive evidence was adduced by the defendant, that it was built in summer 1839. The first, fifth and sixth issues raised substantially the same question, whether the road in question was the soil and freehold of the plaintiff? and upon these issues the...