Vandeleur v Glynn and The Attorney-General

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeM. R.,H. L.
Judgment Date15 July 1907
Date15 July 1907
Vandeleur
and
Glynn and the Attorney-General.

M. R.

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.

1905.

Foreshore — Patent — User — Admissions — Ex diuturnitate tempons præsumuntur rite acta.

The foreshore may constitute a part of a manor which adjoins the sea, and consequently may pass from the Crown by a grant of the manor, although the technical words to describe it be absent.

When a patent contains words under which foreshore may pass, it may be shown by user that a particular part only of the foreshore passed, although it be clear that other parts did not pass, or although it be left uncertain whether such other parts did or did not pass.

Where a patent, though omitting technical words, contains words under which foreshore may pass, and where there have been proved, affecting part of the foreshore of the manor, several acts of ownership, open, notorious, and long persevered in on the part of the grantee of a manor under a patent, though each of such acts would have been an act of trespass or encroachment if that part of the foreshore had not passed by the patent, the proper course is to attribute all such acts of ownership to a legal origin and not to usurpation, and to hold that such part of the foreshore passed by the patent.

Action to establish the plaintiff's right to a quay at Kilrush, and to demand and receive from the defendants, M. Glynn & Sons, reasonable tolls for the use of the quay.

The pleadings, facts, and arguments are sufficiently stated in the judgments of the Master of the Rolls, and of the Lord Chief Baron in the Court of Appeal.

Matheson, K.C., Matthew J. Bourke, K.C., O'Connor, K.C., and Phelps, for the plaintiff.

The Solicitor-General (Campbell, K.C.), D. S. Henry, K.C., and G. W. Walker, for the Attorney-General.

Healy, K.C., Redmond Barry, K.C., and P. Lynch, for the defendants, M. Glynn & Sons.

The Master of the Rolls:—

The plaintiff in this case is Hector Stewart Vandeleur, and the defendants are Henry R. Glynn and William Glynn, trading as M. Glynn & Sons, and His Majesty's Attorney-General for Ireland.

The statement of claim alleges that in and prior to the year 1846 the plaintiff's father, Crofton Moore Vandeleur, was seized of and entitled to (amongst other hereditaments in the county of Clare) the manor of Kilrush and the foreshore between high- and low-water mark adjoining the said manor, under Letters Patent of King James the First, dated January 19th, 1621, confirmed by Letters Patent of King Charles the Second, dated September 1st, 1661. That the said foreshore being in its then state incapable of being used for purposes of navigation, Crofton Moore Vandeleur, in exercise of his right of property in the said foreshore, and of the franchises and liberties to which he was entitled under the said Letters Patent (all the estates, interests, franchises and liberties, granted by which were then vested in him), constructed on the said foreshore, in the years 1846 to 1848, a quay and pier for the convenience and benefit of public navigation in the said district. That Crofton Moore Vandeleur expended over £1600 in the building of the said quay, and the same was afterwards maintained and improved by him at his own expense. That from the time of the erection of the said quay he claimed and exercised the right of receiving and thenceforth continuously received reasonable dues or rates from all persons using the quay. That on the death of Crofton Moore Vandeleur, on November 9th, 1881, the plaintiff, as his successor in title, under a settlement of July 13th, 1857, became entitled as tenant for life to the said manor, foreshore, and quay.

The statement of claim then states that the defendants, M. Glynn & Sons, are a firm of millers and ship-owners at Kilrush, and have used the quay ever since it was built, and always, up to the happening of the events hereinafter mentioned, paid Crofton Moore Vandeleur, and the plaintiff or their lessee for the time being, the rates charged for the use of the same; that in the year 1892 the said defendants, having a larger class of steamers than had previously plied to the quay, requested the plaintiff to enlarge and improve the berths for steamers at the quay, and the plaintiff at considerable expense complied with the said request, and in other respects incurred much outlay in improving the quay. A number of transactions are then stated, showing that these defendants on several occasions disputed the reasonableness of the tolls, and were decreed for the same in the County Court. In the year 1898 the defendants appealed from one of these decrees; and on the hearing of the appeal, for the first time raised a question as to the plaintiff's title to the quay, and his right to claim reasonable tolls for the use of it. Mr. Justice Andrews, however, who heard the appeal, held that the plaintiff had established his title and right, and affirmed the decree. It is then stated that the defendants disregarded this decision, and were sued again in the year 1899 in the County Court; and on this occasion they challenged the plaintiff's title, and objected to the jurisdiction of the County Court, as a question of title was raised; the plaintiff, on the other hand, contended that the defendants were estopped by the previous decrees from questioning the plaintiff's title. The Queen's Bench Division decided, on a case stated, that they were not so estopped, and the Court of Appeal affirmed that decision, and the civil bill was accordingly dismissed without prejudice.

The plaintiff claims:—1. A declaration that he is entitled to the said quay. 2. A declaration that he is entitled to demand and receive from the defendants, M. Glynn & Sons, reasonable rates and charges by way of quayage for the defendants' use of the quay. 3. An account of the moneys due and payable by the said defendants to the plaintiff as rates or quayage, or by way of compensation for the defendants' use of the pier, from December 17th, 1897.

The statement of defence put in by the defendants Glynn traverses the various allegations in the statement of claim. In paragraph 7 they say that they paid to Crofton Moore Vandeleur, and to the plaintiff, the dues or rates mentioned in the statement of claim, in the belief that the pier and quay were the property of Crofton Moore Vandeleur, and, after his death, of the plaintiff, as grantees from the Crown, and the decree mentioned in the statement of claim was obtained against them on the same footing; that the question of the plaintiff's title to the foreshore and to the pier and quay was first raised as between them and the plaintiff in the course of the proceedings referred to in the statement of claim; but that on June 11th, 1894, the plaintiff brought an action in the Queen's Bench Division against the South Clare Railway Company to enforce his title to (inter alia) an adjoining portion of the foreshore, on which the station of the Railway Company was erected, and which, as alleged by the plaintiff, was held by him under the same title, namely, under the settlement of July 13th, 1857, in the statement of claim mentioned, and at the trial the following questions (among others) were left to the jury:—1. Was the part of the lands claimed, on which the defendants' station was erected, the property of the plaintiff? To this question the jury answered, “No.” 2. Was it part of the foreshore, and the property of the Crown? Answer—“Yes.” 3. Was the plaintiff, or those under whom he claimed, in undisputed possession of the place called the Waste for sixty years before the action? Answer—“No.” The verdict and judgment were accordingly entered for the defendants, and have never been questioned.

There is a further special defence in paragraph 12. They say that “the plaintiff, by means of the said pier and quay, wrongfully covered and obstructed portion of the foreshore, so that it was impossible for these defendants to land or embark persons, goods, wares, and merchandise, on or from the portion so covered and obstructed, and for the same to reach the public road without passing over the said pier and quay, and that they were thereby constrained to use, and did and do use, the pier and quay for the purposes aforesaid, and for no other purpose whatsoever.”

The rest of the defences will appear from what I have to say as to the facts of the case.

It thus appears that the claim of the plaintiff in this action is confined to the pier in question, namely, the Commercial Quay at Kilrush; and that, as to it, while claiming it as his property, he only seeks to establish his right to charge reasonable tolls for its use. The Crown challenges his right altogether, and the Messrs. Glynn do likewise, alleging, in addition, that the tolls sought to be levied by Mr. Vandeleur are unreasonable. At one stage of the case, and having regard to some observations of counsel, it occurred to me that perhaps after all the latter might be deemed to be the real controversy now subsisting between those chiefly interested; and if that had been so, the ascertainment of reasonable tolls might have settled the controversy. Had this been the case, I saw no difficulty in hearing and determining that question, and offered to do so. But when it became apparent that this was not the view of the defendants, and that the real question was as to the plaintiff's title to the place in question, and his right to charge any toll whatever in respect of it, I acquiesced in the propriety of first arriving at a decision on that point, leaving any question as to reasonableness of amount to be afterwards settled by a reference, if necessary, in the ordinary way.

The main question, therefore, is, Has the plaintiff made out his title either under the charter, or by virtue of any presumption of lost grant, to the place on which the quay or pier stands?

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6 cases
  • Walsh v Sligo County Council
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    • High Court
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    ...v. Walsh (1881) 6 App. Cas. 636; 50 L.J.P.C 55; 45 LT 50. Turner v. Wright (1860) 2 De G.F. & J. 234; 45 E.R. 612. Vandeleur v. Glynn [1905] 1 I.R. 483. Wiedemann v. Walpole [1891] 2 Q.B. 534; 7 T.L.R. 722. Williams-Ellis v. Cobb [1935] 1 K.B. 310; [1934] All E.R. 465. Winterbottom v. Derby......
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