Westropp v Congested Districts Board

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 04 February 1918
• Court: Court of Appeal (Ireland)
• Date: 04 February 1918

Westropp

and

Congested Districts Board.

Barton J.

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.

1918.

Profit à prendre — Turbary — Reservation — Perpetuity — Vesting Order — Superior Interest.

There cannot be a grant of a profit à prendre appurtenant without a capable grantee. A series of residents in a house are not capable grantees.

The plaintiff's father conveyed to the plaintiff his life estate in certain lands, and his estate in fee in certain other lands, including F. bog, retaining the mansion house and demesne of M. (of which he was tenant for life and the plaintiff remainderman), and the house of F. (of which he was owner in fee). The conveyance contained the following reservation:— “Excepting and reserving out of the said bog of F. to the person or persons who now or at any future time shall reside in the mansion house of M. or in F. house, the right of cutting turf exclusively for consumption in the said mansion house of M. and the house of F., and to include a reasonable right of access to the said bog for the purpose of exercising such right of turbary.”

In May, 1912, the parties having failed to agree, the Congested Districts Board made a final offer to purchase from the plaintiff the estates, including F. bog. In July, 1912, the plaintiff, as remainderman as to M. and as devisee as to F., succeeded his father as owner in possession of the mansion house of M. and the house of F. Plaintiff, having claimed a right of turbary in the F. bog, his right was admitted both by the Irish Land Commission and by the Congested Districts Board, and was recognized on the face of the vesting order vesting the lands in the Board.

In an action by the plaintiff to enforce such right of turbary, held, by the Court of Appeal (affirming Barton J.), that the reservation conveyed no right of turbary extending beyond the life of the grantee, and that the action should be dismissed on this point.

Held by Sir I. O'Brien C. (Ronan L.J. dissentiente), that if the reservation in the deed had been valid, it would not have been ultra vires the Land Commission to make the vesting order subject to such reservation; and that in this respect there is no logical difference between ordinary sales and final-offer cases.

Per Molony L.J., that as the Congested Districts Board were registered as full owners of the lands subject to the express reservation, the latter could only be got rid of by substantive proceedings, under the Local Registration of Title Act, 1891, to rectify the Register.

The right of the Irish Land Commission to make vesting orders subject to reservations considered.

Trial of Action.

The plaintiff, the only son of the late Colonel O'Callaghan, brought the action for the purpose of having certain turbary rights enforced by means of declaration of right and for an injunction. His father, Colonel O'Callaghan, conveyed to the plaintiff, by deed dated the 23rd February, 1908, his life estate in certain lands, and his estate in fee in certain other lands, including Fortanebeg Bog. Colonel O'Callaghan retained the mansion house and demesne of Maryfort (of which he was tenant for life and the plaintiff remainderman), and the house of Fortanebeg, of which he was owner in fee. The conveyance contained the following reservation of turbary, which is the subject-matter of this action:— “Excepting and reserving out of the said bog of Fortanebeg to the person or persons who now or at any future time shall reside in the Mansion House of Maryfort or in Fortanebeg House the right of cutting turf exclusively for consumption in the said mansion house of Maryfort and the house of Fortanebeg, and to include a reasonable right of access to the said bog for the purpose of exercising such right of turbary.” The Congested Districts Board desired to purchase the estates, which included Fortanebeg Bog, but the parties failed to agree, and accordingly the Board, in May, 1912, made a final offer under their seal to the plaintiff under the compulsory powers of the Irish Land Act, 1909, for £41,000 in cash, which was accepted. Colonel O'Callaghan was then alive, and was exercising the right of turbary in connexion with Maryfort House, where he resided, and he exercised the right of turbary in respeet to that house down to his death in 1912. The house of Fortanebeg was not resided in at the date of the conveyance, and had not been resided in for about thirty years. In July, 1912, Colonel O'Callaghan died, having devised Fortanebeg House and demesne to plaintiff, who, as remainderman in the case of Maryfort and as devisee in the case of Fortanebeg, succeeded to the dominant tenements. He claimed this profit à prendre, and his right was admitted by the Irish Land Commission and the Congested Districts Board. It was recognized upon the face of the vesting order, which was approved by the legal adviser of the Congested Districts Board. The vesting order, dated 21st November, 1912, was made subject “to the turbary rights reserved to the occupiers of houses in Maryfort and Fortane by a conveyance, dated the 23rd day of February, 1908.”

Jellett K.C., Powell K.C., and Phelps, for the plaintiff.

S. L. Brown K.C., M.‘Cann K.C., and Leonard, for the defendants.

Barton J., having stated the facts, continued:—

I at once approach the question whether this reservation created a perpetual right of turbary appurtenant to these houses, and I shall proceed to give my reasons for concluding that, although I assume that it conferred a personal right upon any then living resident of either of these houses, it did not, and could not, create any greater appurtenant right. The ordinary form of grant creating a right of this kind is a grant to a grantee, his heirs and his assigns, with liberty for him, his tenants, licensees, &c. (which would include resident), to enter and carry away turf from the servient bog for the use of, and to be consumed in, the house in question. I need not discuss the question whether words of limitation would be necessary. Upon that question reference may be made to the opinions of three eminent text-writers, to be found in the Law Quarterly Review, vol. xxv, pp. 199, 264, 289; and upon this branch of the case reference may also be made to the Conveyancing Act, 1881, sect. 62, enabling easements and other rights to be created by way of use. In the present case the reservation is not made to Col. O'Callaghan himself. It is not contended that the deed should be rectified, or that it should be construed as being made to Col. O'Callaghan and his successors for the benefit of residents. Perhaps the explanation of this peculiar form of conveyancing may be that Colonel O'Callaghan was only tenant for life of Maryfort; and it is questionable whether the grantee of rights of this kind must not have an interest at least co-extensive with the estate for which the right is created (see Halsbury xi, 246; Dynevor v. Tennant (1), per Lord Herschell). I need not pursue that question, as it does not arise. The reservation is to present and future residents and to nobody else. The reservation, being a re-grant in the eye of the law, may be made to a third party: Wickham v. Hawker (2), but not to a person or series of persons incapable of taking by a grant, such as a series of residents, who have no estate in the dominant tenement. If such a grant were effective, the right must be separated from every legal estate in the dominant tenement and become incapable of being ever released—a result

which would violate legal principle, and involve consequences which the law does not allow. No precedent or authority has' been cited in favour of a grant to a series of successive residents. The conveyancer has in that respect broken fresh ground. But it has sometimes been sought to attribute alleged prescriptive rights of easements or profits à prendre to an ancient grant made to residents or occupiers. These cases are in point, because prescription presupposes a grant to have anciently existed, and one of the tests of the legality of the origin of such a prescriptive claim is whether it can be referred to a grant from a person capable of making a grant to a person capable of taking under a grant. Such a case was Gateward'sCase (1), where the main question at issue was whether there could be a custom for inhabitants, as such, to have profit à prendre in the soil of another. The Court incidentally laid down several pertinent rules about rights of common (which include turbary): e.g. (a) that there are only four well-known kinds of common, and that a common ratione commorantiae et residentiae, i.e. by reason of dwelling and residence in a house, is not one of them; (b) that an inhabitant or resident, as such, has no estate in the house, and therefore can have no estate in the common; (c) that a common ratione residentiae would be abnormal, not being capable of being extinguished, because if one inhabitant should release it, the next one would have it again; that residents must prescribe in the name of the owner, not in their own name; and (d) that one distinction between prescription and custom is, that prescription is always alleged in a person, but custom merely in the land.

Gateward's Case (1) was applied in Commissioners of Sewers of the City of London v. Glasse (2), where certain occupiers of lands claimed (inter alia) prescriptive rights of common appurtenant to the lands which they respectively occupied. Mellish L.J., at the foot of p. 467, said: “The main objection which was taken was that the right was alleged in the occupiers, and that the occupiers could not have such a right. There is no doubt that the occupiers could not have the right; but looking at the allegation in the Bill, it appears to me that the right is substantially alleged in. the owners on behalf of themselves and the occupier … of course the

occupiers are the...