Whipp v Mackey

• Jurisdiction: Ireland
• Judgment Date: 03 November 1927
• Date: 03 November 1927
• Docket Number: (1924. No. 8796.)
• Court: Supreme Court (Irish Free State)

Supreme Court.

(1924. No. 8796.)

Whipp v. Mackey.

SAMUEL WHIPP

Plaintiff

and

ANTHONY MACKEY, Defendant (1)

Agreement - Construction - Whether licence or grant of easement - Annual"rent" - Non-payment of - Revocation of licence - Forfeiture - Equitable relief.

Appeal by the plaintiff from a decision of Meredith J., made on the 18th February, 1926, upon the trial of the action, dismissing the plaintiff's claim, with costs.

The facts have been summarised in the head-note, and are fully set out in the judgment of the Chief Justice.

By an agreement in writing, dated 10th May, 1919, and made between H. and the defendant, H., therein described as "the landlord," agreed to let and the defendant, therein described as "the tenant," agreed to take for the term of fifteen years from March 25th, 1919, liberty to moor or anchor eel tanks to an island in the river Shannon at a yearly rent, payable half yearly on March 25th and September 29th. One of the clauses provided that if the tenant should "commit any breach of this agreement the landlord shall be at liberty, upon giving one week's notice in writing to the tenant . . ., to terminate the licence hereby created." In 1920 H. assigned his interest in the property to the plaintiff. Three years' rent being in arrear on September 29th, 1923, the plaintiff served the defendant with a week's notice terminating the licence and requiring him to remove the eel tanks; but as the defendant failed to comply with the notice, the plaintiff brought an action claiming a declaration that the agreement and the licence thereby granted were determined, and also claiming an injunction to restrain the defendant from continuing to moor or anchor eel tanks at the said island. The defendant alleged in his defence that he had paid or tendered all rent due before the action was brought, and he averred that it was never intended or understood between the parties to the agreement that the power of determining the licence applied to non-payment of rent; and he counter-claimed for relief against the forfeiture claimed in the action. From the evidence it appeared that the defendant was deprived of all use of the fisheries during the three years ended September 29th, 1923, owing to the disturbed state of the country.

Held, that the agreement was an agreement for a licence, that was revocable according to the terms of the contract and not otherwise.

Hurst v. Picture Theatres, Ltd. [1915] 1 K.B. 1, followed.

Per FitzGibbon J.: The agreement did not create or agree to create any interest in land, and it did not grant or agree to grant any easement, as there was no dominant tenement to which the easement could be annexed.

Held also that there was an explicit agreement for payment of the yearly sum specified on the named gale days; and that, as the defendant had made default in payment, he had incurred the penalty of forfeiture of the benefit of the agreement.

But held, further, that the defendant was entitled to be relieved against the forfeiture upon equitable grounds, as the clause in the agreement under which the agreement might be terminated was inserted as a penalty to secure the performance of the terms of the agreement, including the payment of the "rent" on the days specified.

Cage v. Russel, 2 Vent. 352; Hill v. Barclay, 18 Ves. 56; Davis v.Thomas, 1 Russ. & M. 506; Sanders v. Pope, 12 Ves. 282; and Barrow v.Isaacs[1891] 1 Q.B. 417, applied.

Per Kennedy C.J.: Generally speaking, where the forfeiture is only for securing payment, and where there is no injury from the delay in payment, or only such injury that payment of a sum for interest and—if needs be—costs will be a full compensation for it, equitable relief will not be refused.

Cur. adv. vult.

Kennedy C.J.:—

This was an appeal from an order of the High Court (Meredith J.), made on the 18th February, 1926, upon the trial of the action, whereby the plaintiff's claim was dismissed, with costs.

The relevant facts are as follows:—

A Mr. Frederick Thomas Clifford Henry, of Fort Henry, in the County of Tipperary, was at the time of the agreement, which I shall mention in a moment, seised as owner in fee-simple of divers lands, fishing, shooting, and turbary rights, comprising, in addition to his lands of Garrynatineel and his residence at Fort Henry, the island known as Friars' Island, and another island in the River Shannon opposite the said lands, and half the bed and soil of the River Shannon adjoining the said lands, and rights of fishing in the river from the pool known as "The Upper Meadow" to the pool known as"Cassane," and situate in the barony of Owney and Arra, and County of Tipperary, together with extensive shooting and sporting rights. Mr. Henry, on the 10th of May, 1919, entered into an agreement with the defendant in the present action, Mr. Anthony Mackey, of Castle Connell, in the County Limerick, which agreement is the subject of the present proceedings.

The agreement in question is not very long, and it will be convenient to read the whole of it. It is as follows:—

"1. The landlord agrees to let and the tenant agrees to take for the term of fifteen years, from the twenty-fifth day of March, one thousand nine hundred and nineteen, liberty to moor or anchor three timber eel tanks to Friars' Island, in the River Shannon, situate in the townland of Fort Henry, or Garrynatineel, and County of Tipperary, and to erect posts for that purpose, at

the yearly rent of twelve pounds ten shillings, payable half-yearly, on the twenty-fifth day of March and twenty-ninth day of September in each year, the first payment to be made in one thousand nine hundred and nineteen.

2. The places for mooring the said eel tanks shall be at the points marked A, B, and C on the plan hereto annexed. The mooring posts shall be fixed on Friars' Island, and the little island below Friars' Island, in the same places as the former mooring posts were fixed.

3. The tenant and his servants shall have access to the said tanks from the shore by boat only, and shall not interfere with the grazing of the said island.

4. Within one week after the determination of the licence hereby created, by effluxion of time or otherwise the tenant shall remove the said eel tanks and all posts erected by him, and shall make good all injury to the soil. In the event of the tenant not removing the said eel tanks and posts within the said period, the landlord shall be at liberty to remove the same without notice to the tenant.

5. If the tenant shall commit any breach of this agreement, the landlord shall be at liberty, upon giving one week's notice in writing to the tenant at his address aforesaid, to determine the licence hereby created, and in that case the then current gale of rent shall be apportioned up to the day of the actual removal of the eel tanks and posts by the tenant, and shall be payable forthwith.

6. The tenant shall be at liberty to determine this agreement upon giving to the landlord six calendar months' notice in writing, terminating upon either of the said gale days, and previously to the determination of this tenancy removing from Friars' Island aforesaid the said eel tanks and posts, and making good all injury to the soil.

7. During the continuance of this agreement the landlord will permit the tenant, his servants, and workmen to cross and recross on foot of the landlord's lands of Garrynatineel from the public road between Ballina and Birdhill between the points marked 'Y' and 'Z' and on the line marked red on the plan hereto annexed."

The agreement, which was not under seal, was signed by both parties.

The following paragraph is added at the foot of the agreement, signed by Mr. Henry:—

"It is admitted that it is necessary to have a cabin tank moored with a tank from Friars' Island, and that when the Shannon is in flood and when low it is necessary to shift the position of the tanks and the place of their mooring from those marked in the map, and, accordingly, it is agreed that Mr. Mackey has authority for using the cabin tank, and shifting the other three tanks when necessary owing to the varying pressure of the water."

Having made this agreement with the defendant, Mr. Henry, on the 8th day of September, 1920, sold the property, of which he was, as I have mentioned, seised in fee-simple, to Mr. Samuel Whipp, of Chepstow, Monmouthshire, the plaintiff in the present action, for a sum of £12,000. The habendum in the conveyance of the property to Mr. Whipp was expressed to be subject to the tenancies mentioned in the schedule thereto, and in the schedule the first item is as follows:—

"An agreement of lease, dated the 10th day of May, one thousand nine hundred and nineteen, made between the Vendor of the one part and Anthony Mackey of the other part of a liberty of mooring eel tanks to Friars' Island, in the River Shannon, for a term of fifteen years, from the 25th March, one thousand nine hundred and nineteen, at a rent of £12 10s. 0d."

The present action has been brought by Mr. Whipp, claiming an injunction to restrain Mr. Mackey, his servants, or agents, from mooring, anchoring, or placing, or continuing to moor, anchor, or place eel tanks or other obstructions at or near Friars' Island, in the River Shannon, situate in the townland of Fort Henry or Garrynatineel, and County of Tipperary, and from erecting posts, or otherwise trespassing upon the said lands or waters, the property of the plaintiff; and also claiming a mandatory injunction, ordering the defendant to remove forthwith the said eel tanks and other obstructions from the said lands and water, and claiming damages for trespass, and further or other relief.

In the statement of claim, having set out the terms of the agreement of the 10th May, 1919 (which I have read), and the vesting of the hereditaments in the plaintiff, together with "all the rights of the said Frederick Thomas Clifford Henry" under the said agreement with the defendant, it is...