Overriding Burdens
Registration of Title Act
Section 72 Burdens
72.—(1) Subject to subsection (2), all registered land shall be subject to such of the following burdens as for the time being affect the land, whether those burdens are or are not registered, namely—
(a) estate duty, succession duty, former crown rents, tithe rentcharges and payments in lieu of tithe or tithe rentcharge;
(b) land improvement charges and drainage charges;
(c) annuities or rentcharges for the repayment of advances made under the provisions of any of the Land Purchase Acts on account of purchase money;
(d) rights of the Land Commission or of any person under a vesting order, vesting fiat, final list or transfer order made or published under the Land Purchase Acts;
(e) rights of the Land Commission upon the execution of an order for possession issued under section 37 of the Land Act, 1927;
(f) rights of the public or of any class of the public;
(g) customary rights, franchises and liabilities arising from tenure;
(h) easements and profits à prendre, unless they are respectively created by express grant or reservation after the first registration of the land;
F97[(hh) any wayleave which is a wayleave to which this section applies;]
(i) tenancies created for any term not exceeding twenty-one years F98[(or such other period as may be prescribed)] or for any less estate or interest, in cases where there is an occupation under such tenancies;
(j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed;
(k) in the case of land registered with a possessory, qualified or good leasehold title, all rights excepted from the effect of registration;
(l) a perpetual yearly rent (in this section referred to as the superior rent) which is superior to another such rent (in this section referred to as the registered rent) registered as a burden on registered land and which, as between the said registered land and the registered rent, is primarily payable out of the registered rent in exoneration of such land;
(m) the covenants and conditions contained in the deed or other document creating the superior rent, in so far as those covenants and conditions affect such land;
(n) a purchase annuity payable in respect of a cottage which is the subject of a vesting order under the Labourers Act, 1936;
(o) restrictions imposed by section 21 of the Labourers Act, 1936, on the mortgaging or charging of cottages purchased under that Act;
(p) rights acquired or in course of being acquired under the Statute of Limitations, 1957;
(q) burdens to which section 59 or 73 applies.
F99[(r) covenants which continue in force by virtue of section 28 of the Landlord and Tenant (Ground Rents) (No. 2) Act, 1978]
(2) Where it is proved to the satisfaction of F100[the Authority] that any land registered or about to be registered is exempt from, or has ceased to be subject to, any estate duty, succession duty, former crown rent, tithe rentcharge, payment in lieu of tithe or tithe rentcharge, land improvement charge, drainage charge or annuity or rentcharge for the repayment of any advance made on account of purchase money as hereinbefore is mentioned, F100[the Authority] may enter on the register notice of the fact.
(3) Where the existence of any such burdens is proved to the satisfaction of F100[the Authority], F101[it] may, with the consent of the registered owner or applicant for registration, or in pursuance of an order of the court, enter notice thereof on the register.
F97[(4)This section applies to any wayleave on, over or beneath the surface of land which—
F102[(a) pursuant to an agreement in writing is granted to or by the Irish Gas Board or a relevant person (within the meaning of section 20 of the Gas (Amendment) Act, 2000), or pursuant to an acquisition order within the meaning of the Gas Act, 1976, is granted to that Board or such a person, and]
F103[(b) is intended to be used, or is used, in providing either or both of the following:
(i) a pipeline for the transmission of gas;
(ii) ducts, cables, pipes or conduits for any other purpose where such purpose is expressed in an agreement described in paragraph (a) (whether such agreement is made before or after the coming into operation of section 33 of the Energy Act 2016),
and]
(c) in case the wayleave is granted under such an agreement, under the agreement it is to be enforceable against persons deriving title to the land under a party to the agreement.]
Cases
Mullen v Irish Fish Meal Company
JIC 0901, 1965 WJSC-HC 5285
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: KENNY J.
KENNY J.
The village of Mornington in County Mearh is about 300 yards from the west side of the Beyne where that river flows south east shortly before it enters the sea. About 700 yards of the village there is a tongue of land called “The ” which extends into the river on the south side. Some distance to the west of this, the river flows in a work easterly course. Then its course changes and it flows east and it The Crook its course changes again and it flows south east. All this part of the river is within the jurisdiction of the Drogheda Harbour Commissioners and there are lighthouses and beacons on this stretch. The Boyne is rich in salmon: there are references in Irish literature over a period of 1200 years to this.
Many of the men and boys in Mornington earn part of their living from fishing for salmon and mussels in the river. The mussels are captured by using a long rake with which the bottom of the river is scoured and the clay in which they are is than lifted into the boats where it is put into bags and brought to the shore where the mussels are taken out. Salmon fishing is done from boats by casting nets into the river and drawing them back to the boats.
Until the defendants built a fish processing factory there in 1968, “the Crook” was waste land which could not be tilled and where there was no grass for cattle. On three sides, the north, the west and the east it is bounded by sand and which are covered by the at high . The only access to it is from the south. There was a rough track from the village of Mornington earth to The which was used by those who wanted to take sand and pravel away and by fishermen who left their boats there.
The freehold interest in the village of Mornington, in The Crack and in the adjointing lands was owned by the Brabazon family under a farm grant made in 1856. In 1927 part of the lands were purchased from members of that family and in 1940 James John Lyons was registered as fall owner of 211 acres which included The Crook. The defendants subsequently purchased about 7 acres at the northern tip of the Crook which are now the subject matter of Folio 9068, County Meath.
In their Statement of Claim (which was again amended at the hearing) the four plaintiffs who are fishermen living in Mornington, claim to have acquired a statutory to a piece of land at the north east of The Crook. As there has been considerable confusion in with measurements and maps (the plaintiffs’ engineer discovered at the and of the first day of the hearing that he had made a mistake in the maps Mr. Mallagh’s drawing of the 6th of February 1970 numbered 63/151A. The piece of land which the plaintiffs originally claimed surrounded with the hearing, however, the of the hatched portion the plaintiffs withdrew their claim to have acquired a title to any of the lands. They also claimed to have acquired rights over this plot by prescription: this claim was abandoned. The case finally made was that pleaded in paragraphs 4 and 5 of the Statement of Claim: ……” the plaintiffs, their servants and agents and their predecessors in title were and are at all times entitled to (a) a right to may out and dry their nets along the said lands and foreshore adjoining the river Boyne (b) a right to beach and deposit their fishing boats, nets and other fishing tackle on the said lands and foreshore adjoining the river Boyne (c) a right of way of and along the said lands and foreshore adjoining the river Boyne………….. The plaintiffs aver that the said rights…… are and were customary rights which the fisherman of the village of Mornington which is intended to comprehend the town and townland of Mornington) have enjoyed from time immemorial over the said lands and the plaintiffs are fishermen of the said village and are and were at all times material entitled to exercise such rights over the said lands by custom as aforesaid and as to the said right of way, they claim in the further alternative that it is and was at all material times a public right of way leading to the foreshore and fishing grounds along that part of the estuary of the Boyne.”
The evidence establishes that since 1906 fishermen living in the village of Mornington have beached and kept the type of boats used for catching salmon and dredging mussels on the east and north parts of The Crook and that they put up many lines of timber poles on which they hung their hempen nets to dry. They went to The Crook along the rough track which on the eastern side brought them from the village to The Crook. During some of the years since 1906 more than 100 boats were beached there. Each fisherman did not own one salmon and one mussel boat only because the number of casts with nets to which each is entitled depends on the number of boats which he has. The four plaintiffs own to boats. Each of the adult fishermen regarded a of land fronting on to the bank on the Boyne as being his and did not think that he was entitled to beach his boats on the strips which others had appropriated for their use. The practice of using The Crook for the beaching of boats and the erection of has existed since 1906 at least and probably for 200 or 300 years and the division of the land into strips which were regarded as belonging to one man or one family was a later development which was firmly established by 1906. The Mullens and their ancestors had built up a bank on the river side of their strip by emptying bags of clay from the bottom of the river at the point where until 1968 the bank was and they had moorings in or near this bank.
The strip over which the plaintiffs now claim rights is 136 feet wide and 360 feet in depth. At the point “A” on the amended map attached to the Statement of Claim there is a timber post 4 feet high and 5 inches in diameter which is shown on photograph “J” while at the point “” there is a steel post shown on photograph “K”. At the point “C”, which is not part of the strip claimed which is shown on photograph “L” and at the point “D” (C, D, E and F form a line parallel to the western boundary of the plot claimed by the plaintiffs) there is an iron bar about 6 . At the point”E” there is a post 4 feet 6 of a tree about were cut by fishermen from trees which grew a considerable distance away from The Crook. The existence of the posts and branches on the line C to F supports the evidence that the fishermen put up poles in parallel lines. The physical features and the location of The Crook show that the use of it by the fishermen is the way they described in evidence is highly probable. It gave then easy access to the river, it was on a point where they could cross ever to fish near Baltray and it was an area which no one would use for any purpose except sightseeing and beaching boats.
I am satisfied beyond all doubt by the evidence of Mr. Felix Campbell, Mr. Peter , Mr. Thomas Connolly, and the plaintiffs that since 1916 the fishermen who live in or near have beached their boats on The Crook in each year and that they have put up poles on which they dried their sets. I am also convinced that this practice was open, was done as of right (though there seems to have been an belief among some of them that a grant had at some time been made by the ) and that each of the fishermen believed that he was entitled to exercise this right over a strip of land.
Decided cases of high authority beginning in 1608 and extending up to 1967 establish the nature of those customary rights in land which the law recognises (seethe Tanistry Case (1608) Davis Reports (Ireland) 28, Tysen v. Smith (1833) 9 Ad. and E1. 406, Hall v. Ncttinghan (1875) 1 Ex. D.1, Mercer v. Denne (1904) 2Ch. 534 and Eeckett v. Lyons (1967) 1 All ER 833). The custom must be certain, reasonable in itself, must have been exercised from time immemorial and must have continued from then without interruption. And the custom must not be one which gives a right to take anything out of or away from the land. The Registration of Title Act 1891 and the Act which replaced it, that of recognise than customary rights may affect land as they are some of the burdens which affect registered lands without registration (see s. 47 (f) of the Act of 1891 and s. 72 (1) (g) of the Act of 1964).
The requirement that the custom has been exercised since time immemorial involves that it must have existed before 1189 but as proof of this is impossible, evidence that it has been exercised during the period of living memory is sufficient to raise a presumption that it dates back to 1189 although the defendant may establish, if he can, that it commenced some time between that date and the beginning of living memory. “As to the proof of the custom, you cannot, indeed, reasonably expect to have it proved before you that such a custom did in fact exist before time of legal memory, that is, before the first year of the reign of Richard I; for if you did, it would in effect destroy the validity of almost all customs; but you are to require proof, as far back as living memory goes, of a continuous, peaceable, and uninterrupted user of the custom” (Chief Justice Tindal in Eastard v. Smith(19 129.
The defendants have said that the custom claimed is to a claim of ownership and would prevent any building on the land or the putting up of walls or jetties. The reasonableness of a custom however is to be decided having regard to the visited when began and not . In 1189 and in 1906 this would find cultivating. It would not have occurred to anyone alive on either of those dates to build anything there or to try to grow anything there. So although the custom is now unreasonable in so far as it affects the defendants, it was act when it began and it was for the benefit of the community and particularly for those who lived in Mornington. The defendants have also said that the plaintiffs are claiming a custom, not for the benefit of the villagers or Mornington generally but for themselves only and that this makes the custom unreasonable. The plaintiffs and the other fishermen at Mornington certainly think of this customary right as belonging to them as individuals or as members of a family because they have regarded it as divided between themselves, an arrangement which avoided disputes and was the natural result of the considerable of beats which were kept on this strip. The plaintiffs’ claim, however, is that all the fishermen of Mornington have this customary right over the strip of land which is referred to in the Statement of Claim and it is the defendants” interference with this strip which is the ground of their case.
The custom is also impugned because, it is said, it was not certain. This was because the area over which it could be exercised was not precisely defined and because the persons entitled to its benefit were a changing number. While it is not possible to define precisely the southern boundary line of the lands over which the custom existed, I have no doubt that it was exercised over all the north part of The Crook on three sides and that that area included the whole of the strip to which this action relates. The persons entitled to the custom are those who live in or near Mornington; the numbers who take the benefit of the custom may change from year to year but this is not an objection to its validity. If it were, the custom referred to in (1875) 1 Ex. D. 1 under which the inhabitants of a parish were held entitled to enter on the plaintiff’s lands to put up a and dance around it would have been invalid. It was also said that as. 240 and 241 of the Fisheries Consolidation Act,1959, which give fishermen a right to enter on beaches, and wastes for the purpose of sea fishing and of drawing up and spreading their acts and loading their fish were an indication that the custom claimed in this case was unreasonable. These sections deal with some of the rights of sea fishermen and have nothing to do with river fishermen. And they are not a complete statement of the rights which may be acquired by custom over beaches.
I think that the plaintiffs have established that these who live in or near Mornington have acquired a customary right which entitles them to beach and leave their fishing boats, nets and tackle on the lands shown edged red (excluding the hatched part) on Mr. Mallagh’s map and to lay out and dry their nets there. No evidence was given as to whether the read leading to the factory had been taken in charge by the local authority but there was evidence that they have done some work on it. In my opinion a right of way such as that claimed may be acquired by sister and the plaintiffs and the other fishermen in a rights to go along the track on the east side of The Crook from the village of Mornington to the point furthest north.
The factory build by the first defendants has of the effective use of the strip has been the plaintiffs” boats from this site with a crane and placed them elsewhere. The plaintiffs, however, do not ask for an injunction and stated that they seek damages only for the interference with their rights. There was no argument about the measure of damages and very little evidence on which I can assess them. The first question which arises is whether the plaintiffs are to be compensated on the basis that they have been wholly deprived of their customary rights or whether I should regard them as being entitled to customary rights over the remaining part of the Crook act appropriated for the factory. The plaintiffs” evidence is that they cannot use any other part of the Crook because by arrangement made long ago, the other fishermen use the remaining parts of The the plaintiffs can use only the strip in respect of which they now claim. Any attempt by the plaintiffs to use any other land appropriated by the other fishermen would certainly cause dissension and resentment. I have come to the conclusion that the plaintiffs are entitled to damages on the basis that they have been wholly and permanently excluded from The Crook and have been deprived of the customary rights which they had in it.
The plaintiffs loss is that they have been deprived of a most convenient place where they could beach their boats as of right and from which they could set out on their fishing expeditions. They have now to moor or beach their boats on the north side of the river at Baltray and have to seek permission to do this. The distance from Mornington to The Crook is about 700 yards but keeping their boats at Baltray means that they have to cross the river which causes inconvenience and loss of time and that they are dependent on someone to bring them across. This has the result that they will be on the river at a later time than if they had started from The Crook, and so the Baltray fishermen get the first strike. The loss of the right to put poles on The Crook and to dry their nets is not a serious element in their damages because nylon is replacing hemp as the material for nets and it does not have to be put on poles to dry. The Drogheda Harbour Commissioners have carried out extensive dredging work in the river and this destroyed the mussel beds near The Crook. The plaintiffs and others have brought proceedings against the Commissioners for this and what the first named defendants have done has not caused or contributed in any way to the loss from mussel fishing which the plaintiffs have suffered.
One of the plaintiffs gave vague figures for the amount which he earned from fishing before 1968: the other three did not give any figures and none of them stated what his present earnings from it are. Felix Mullen said that he was a whole time fisherman and that he was averaging £30 a week from salman and mussel fishing before 1958. He did not say what his earnings since 1963 have been though he complained that when he was fishing from Baltray, he missed the turn of the tide on a few occasions. His main complaint was that he could not fish for mussels because he could not get a place where he could keep his boat. Mr. Vincent Mullen was a whole time 1965 when the counsel bank was levelled; he was then employed by the second-named defendants on the building the fish meal factory until May 1959 when the . He then did a months fishing and was subsequently employed on the of the and cannot factory in until March . says that he would had not been removed. Mr. Joseph Mullen is also a fall time fisherman. Since the strip of land was cleared, he has done salmon fishing from boats which he ores on the north side of the river. He keeps some boats on The Crook near the factory but he cannot launch then on to the river. Another of the advantages of the strip which the plaintiffs formerly used was that launching the boats from it into the river was very easy. Mr. Patrick Mullen earned his living from fishing until 1967 when for health reasons he had to give it up though he hopes to be able to resume it again. His sons are using his boats which are now kept at Baltray because there is no space for them at The Crook. He still has some hemp nets which have to be brought to Mornington to dry.
The salmon fishing person in the Boyne lasts from the 12th of February to the 12th of August while the mussel fishing in September and ends in March. For the reasons which I have already given, I propose to ignore any from the mussel fishing. There was no evidence about the number of fish which any of the plaintiffs caught in from the wholesalers to whom they sold or as to the cost of repairs of the boats. An inquiry about damages would take considerable time and I do not think that the plaintiffs will ever to able to give specific figures about their earnings. I am convinced that Vincent earned more when he was employed than he would have made from fishing and that absence of work made him resume this. My estimate is that each of the three of them is entitled to £4 a week for inconvenience and loss of income and as they fished for salmon for 26 weeks the annual loss is £104 which, having regard to the uncertainty of fishing, I propose to capitalise at six years purchase. Patrick had given up fishing in 1967 for health reasons so the estimate in his case must be on a different basis. I propose to award him £200.
There will therefore be judgment for £624 for Vincent Mullen, £624 for Felix Mullen and for the same amount for Joseph Mullen.
The defendants sought to reduce the damages by relying on the licences to use part of the Crook which the Dundalk Harbour Commissioners were prepared to grant to the plaintiffs in compromise of the claim. The plaintiffs refused to accept these because the Commissioners were not prepared to give any commitment as to their duration: the refusal was in my opinion reasonable.
The defendants have counterclaimed for trespass on their land but as the plaintiffs had the customary rights which I have described, this claim fails. It will be dismissed without costs.
Bord Na Mona Plc v Property Registration Authority and Others
[2015] IEHC 348
Court: High Court (Ireland)
Judge: Mr. Justice Henry Abbott
JUDGMENT of Mr. Justice Henry Abbott delivered on the 21st day of May, 2015.
This application comes before the court by way of notice of motion dated 9 th April, 2014, wherein the applicant seeks the following relief mainly:-
2 “1. An order rectifying the errors contained in folios MY19739F; MY3691; MY44796; MY3694; and MY3695 of the Register of Co. Mayo and in particular the reference in the said folios to the following:-
there is appurtenant to the said lands a right to graze six sums on the mountain on other part of the lands of Corvoderry aforesaid edged green in the central and local office map’.”
The matter was heard on affidavit. The applicant is the registered owner in fee simple of 2,528 acres of land comprised and certain entries within folio MY39508 and MY39367 which were acquired by compulsory purchase orders made by the applicant in the exercise of statutory functions respectively dated the 6 th April, 1951, and the 19 th October, 1951, and also comprised in certain entries within folio MY39508; MY46077; MY50373; which were acquired by the applicant through a process of voluntary purchase, the latter bearing land registry dealing numbers D2006WR055016M; D2007WR036587C; D2007WR036586B; D2008WR032109M and D2009LR01652K. The third, fourth, fifth and sixth named respondents are the owners of the folios which are updated versions of the folios opened under the Registration of Titled Act following the acquisition of the land by the Estates Commissioners under the Land Purchase Act 1903 of the Florence Knox Estate and the sale and or vesting of the tenant holdings to the tenants in occupation of the tenancy therein who were entitled to such enfranchisement under the Land Purchase Acts.
The relevant tenant history of the lands is recorded from the period 1881 to 1882 where it appears that there were thirteen tenants renting part of the Knox Estate on an annual basis. These tenancies remained either contractual or statutory under the judicial rent system until the tenants purchased out the landlord’s interest in the lands in 1904. By that time the landlord’s interest in the lands had been acquired by the States Commissioners which themselves had been an innovation of the 1903 Land Purchase Act to accelerate what had, until then, been a slow moving and cumbersome system of land purchase by tenants. The system introduced by the Estates Commissioner and Land Commission under the 1903 Act enabled the Land Commission to acquire first and then sell the entire estate or a large part of the estate to the tenants having had a share in the so called dual ownership of same under the Land Acts for the previous thirty years or so. Initially all six tenants among the thirteen tenants had grazing rights in addition to their home farms on the mountain. Under the Land Acts these grazing rights would not have been profit á prendre in the formal sense, but in the normal evolution of the enfranchisement of tenants under the Land Purchase Acts and the prior Land Acts, these rights which would have been contractual, at best, being formally linked with the protection of judicial tenancy to the home farm which link was solidified by the operation of the Land Purchase Acts into a relationship of dominant and servient tenement with the grazing rights on the mountain held in common as appurtenant rights to the home farm. In that instance the servient tenement subject to the grazing rights might be held by the Land Commission or reclaimed by the landlord. In many cases the Land Commission would, in addition to vesting the home farm in the tenant, also vest a specific share in the area or mountain grazed in common as an alternative to the dominant/servient system.
In many cases the vesting of a specific undivided share in the land in the area of a mountain grazed in common would be by way of fiated agreement for sale. S. 32(1) of the Land Law (Ireland) Act 1896, which, by virtue of s. 100 of the Irish Land Act 1903, is to construed together with the Act of 1903, provides for the sale of such lands by the Land Commission as follows:-
“The Land Commission shall prepare the vesting order, or if they see fit to dispense therewith, shall fiat the agreement for the purchase of the holding, subject to such conditions, exceptions, and modifications as they think necessary; and on the advance being paid such fiat shall have effect as if it were a vesting order made by the Commission in relation to the holding purchased, and the provisions of this Act referring to vesting orders shall apply and be construed accordingly.”
In this case the relevant Plot 1 A, which the relevant part of the mountain referred to above, had been dealt with under the dual Land Act system whereby six of the tenants, who eventually purchased same from the Land Commission, had been allowed reduced rents on their overall holding on the basis that they did not exercise their rights of grazing on the said Plot 1A. This situation changed in the arrangements for the sale to each of the thirteen tenants of an undivided share in the said Plot 1A to be held in common. As a matter of convenience and efficiency it is necessary in a situation where common lands are divided in such a manner that some regulation would be made in relation to the proportions grazed by each tenant in relation to the other but also in relation to the upper stocking rate for such a common area to provide the certainty to avoid disputes and the appropriate level of stocking to avoid over grazing. This regulation was not a mere matter for the convenience of the tenants – it was also important from the point of view of ensuring that the ability of the holdings to provide sufficient profits/income to discharge the substantial annuities to be paid by the statute tenants to the Land Commission would not be threatened by the uncertainty and unpredictability of hill grazing.
The current application is entitled in the matter of s. 32 of the Registration of Title Act 1964. S. 32 is substituted by s. 55 of the Registration of Deeds and Title Act 2006 and it reads as follows:-
2 “(1) Where any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise, and whether in a register or registry map) occurs in registration –
(a) the Authority may, with the consent of the registered owner of the land and of such other persons as may appear to be interested, rectify the error upon such terms as may be agreed to in writing by the parties,
(b) the Authority may, if of opinion that the error can be rectified without loss to any person, rectify the error after giving such notices as may be prescribed,
(c) the court, if of opinion that the error can be rectified without injustice to any person, may order the error to be rectified upon such terms as to costs or otherwise as it thinks just.”
This Court accept the correctness of the submissions on behalf of the third to sixth named respondents that according to John Deeney at para. 42.05 of the Registration of Deeds and Title in Ireland, (Dublin, 2014) the process under s. 32, as substituted, is limited to errors occurring in the registration process rather than errors in the instrument presented for registration. He further states that the purpose of s. 32 of the Registration of Title Act 1964 (as amended) is to enable the correction of errors arising from oversight or negligence on the part of the Land Registry and not something that represented the mistake and intention of the framer of the instrument and the judgments quoted at paras. 2.3 – 2.5 from the submissions of the applicant dealing with the cases of Re Patrick Leonard’s Estate [1912] 1 IR 212 and Re Dooley v. Haugh [1931] IR 197 are supportive of this contention by the third to the sixth respondent. It was submitted that the entry in relation to appurtenant grazing rights of the third to sixth respondents were registered in the original folios not in error but registered in accordance with the documents presented at the time of registration and that therefore the purported error is not one “originating in the Land Registry”, and if there were errors, they originated in the fiated purchase agreements and not on the Land Registry, and so are not errors amenable to rectification as per the terms of s. 32 (as amended).
A substantial time was taken by this Court at the hearing examining the pre-registration title documents which were submitted for the purpose of obtaining registration of the properties after vesting which was made compulsory in the case of land purchase under the Land Purchase Acts by the Local Registration of Title (Ireland) Act 1891. The hearing of the case proceeded by analysis of the Form P. undertaking by a tenant to purchase a holding from the Irish Land Commission in the case of Mr William Hopkins, the predecessor of one of the third to sixth named respondents. This is a vital pre-registration document which was used by all parties in the proceedings but counsel for the third to sixth named respondent object to a certain pre-registration documentation being admitted in the trial on the basis that there was insufficient proof of same through the use of the appropriate witness in the Land Commission records department. It was claimed that the case White and Ors. v. Taylor and Anor. [1969] 1 Ch 150 was authority for the proposition that such documents were hearsay. During the course of the hearing this Court rejected this submission on the basis that these documents were on their face within the general exception to the hearsay rule and found that this objection was entirely inappropriate by reason of the fact that these documents had been exhibited throughout the proceedings to be heard on affidavit in the same fashion without the necessity of the form of proof of same by the keeper of records and if any point were to be taken on lack of form it should have been taken by a case managing point rather than to allow the issues to be set up painstakingly by the filing of long affidavits and exhibits without protest or insistence that more formal proof would be obtained. The analysis in para. 5.5 – 5.8 in the written submissions of the third to sixth respondents are helpful to take the analysis of the fiated purchase agreement to a certain level and are set up verbatim for that purpose:-
2 “5.5 If one takes the Form P. (so called Fiated Purchase Agreements), paragraph 1 states, inter alia;
‘… I will purchase the said holding with the grazing and sporting rights…’
3 5.6 Paragraph 2 thereof includes the words;
‘… I hereby agree to pay for a share of the grazing and sporting rights over the mountain marked la on map and as set out in paragraphs 7a and 8.’
4 5.7 Paragraph 7a states;
‘I hereby agree not to graze more than six sums on the mountain marked la on map.’
5 5.8 Whereas it is not agreed that there was any error by the Registrar, the registrations affected in 1904, were affected in accordance with the relevant Forms P.. If there were errors in those forms (which is not admitted), the errors originated therein, and if the errors were replicated in the relevant folios, then the errors in those folios (which are sought to be corrected by the applicant in the proceedings) were not errors ‘originating in the Land Registry’.”
While this conclusion might be urged with some reason, without further examination of the Form P, it is in my opinion a conclusion that cannot be made having regard to the fact that the entries quoted in para. 5.5, 5.6 and 5.7 of the submissions are to be read in conjunction with the description of the lands set out in the first schedule especially entry number 4 thereof relating to an undivided one thirteenth part of number la stating the same to be 2,689 acres, 2 roods and a purchase state measure. The recital in form P states that:-
“I, William Hopkins the tenant in occupation of the holding described in the first schedule hereto, hereby undertake as follows:-”
In the case of the Irish Land Commission buy under the provisions of the Irish Land Act, 1903, an Estate of which the said holding forms a part, I will purchase the said holding with the grazing and sporting rights from them for the sum of…” (emphasis indicates handwritten amendment).
This recital and the particularisation thereof in the further paragraphs of the agreement accorded in the undertaking which was fiated on the 1 st December, 1904, sets out the full context of the quotation on behalf of the third to sixth respondents in their submissions paras. 5.5 to 5.7. This Court is of the opinion that an error occurred in the registration by the registration of a mere note of appurtenant rights affecting the lands, as the registering authority should have noted the qualifications as set out in paras. 5.5 to 5.7, referred to above not as notes of right appurtenant, but as conditions for the exercise of the grazing on the one thirteenth share in a rational way in the interests of tenants and Irish Land Commission as the authority advancing the purchase price for the combined holding and hoping to have arranged same so as to leave the tenant in a position to repay the annuities in respect of such advance. To have imposed such conditions assigned by the Irish Land Commission was not an error originating in the Irish Land Commission but a reasonable exercise by the Irish Land Commission of their powers under s. 32(1) of the 1896 Act.
It is important to test the foregoing conclusion that there was an error originating in the Land Registry. It is important to check against the standards of registration at the time of registration. As indicated to the parties this Court read the provisions of the 1903 Act and the 1996 Act together with the relevant Rules made under these Acts relating to particulars to be transmitted to the Registrar of Titles. The main provisions relevant to the Rules under the Land Purchase Acts made on the 16 th March, 1897, are set out at Richard R. Cherry, The Irish Land Law and Land Purchase Acts 1860-1901, 3 rd Ed., (Dublin, 1903) 809. Order XIX of these Rules provide for the particulars to be transmitted to the Registrar of Titles in order that the title of the purchaser to the holding be registered pursuant to the Local Registration Title Ireland Act 1890. These particulars are set in paras, (a.)-(k.) of Rule 1 of Order XIX. Order XIX provides that such particulars shall be embodied in a schedule which shall be prepared and certified by the examiner and most importantly Rule 3 of Order XIX provides as follows:-
“The schedule shall be accompanied by an Ordinance sheet having the several holdings delineated thereon as they appear on the map used for the proceedings unless there be a map endorsed upon and referred to the vesting orders, in which case a copy of such map may be endorsed upon the schedule by the Ordinance Survey Department, or the vesting orders may be produced to the Registrar of Titles for inspection.”
These Rules were amended by further Rules of the 29 th April, 1899, which are short and do not affect the issue here. They were further amended by a Rule of the 19 th March, 1900, which provided as follows:-
“It is this day ordered that, notwithstanding the provisions of Rule 2, Order XIX of the Rules dated the 16 th March, 1897, the particulars prescribed by Rule 1 of the same Order may be transmitted to the Registrar of Titles in the form of a copy of the Vesting Order, certified by the Examiner as ‘a true copy transmitted to the Registrar of Titles for the purpose of Registration’, and the provision of Rule 3 of the same Order shall apply as if such copy were the Schedule therein referred to.”
The Rules were amended again on the 17 th May, 1901, but not to any extent relevant to the consideration of this case. These Rules were not updated after the enactment of the 1903 Act until the 2 nd day of July, 1910, but Order VII substantially repeated the provisions thereof, and are only referred to lest they reflected any evolving standard different than the formal rules just cited by this Court after the passing of the 1903 Act. These Rules are printed in T. Henry Maxwell, The Irish Land Acts 1903 to 1909; A Supplement to Lord Justice Cherry’s Irish Land Law and Land Purchase Acts 1860-1901, 2 nd Ed., (Dublin, 1910) at p.1361. A footnote to Order VII relating to registration of purchase ownership in the 1910 Rules set out in Maxwell’s work reads as follows:-
“The following directions dated 1 st January, 1904, in reference to the transmission and cancellation of land certificates have been issued by the Land Commission:-”
2 “1. When the Land Commission by vesting order, or fiat in lieu thereof, vest a holding in a purchaser, and the title to the lands comprised in such holding is already registered pursuant to the Local Registration of Title (Ireland) Act, 1891, the land certificate evidencing the title to such lands shall, if in the custody of the Land Commission, be transmitted to the Registrar of Titles, together with the copy vesting order or schedule of particulars prescribed by the Land Commission Rules.”
Three very important principles emerge from a perusal of the combined effect of these Rules and the note of January, 1904, as follows:-
The vesting order had taken the place of the schedule of particulars originally envisaged by the Rules of 1897.
The directions dated the 1 st January, 1904, by referring to vesting orders and fiated purchase agreements interchangeably confirms the conclusion that this is an appropriate interpretation under the Land Purchase Act relating to fiated agreements as they occurred in this case.
The 1897 Rules and the format of the vesting order/fiated agreement placed a central importance to the identification to the property with reference to maps. It is clear from the inspection of the fiated agreement/vesting order that the word “appurtenant” or “appurtenant rights” was not mentioned in the documentation in these cases which was required to be furnished to the Land Registry for first registration. It is clear that the use of the word appurtenant crept into the description of the Register as a result of the registration process in the Land Registry.
While the penultimate page of the Schedule of Areas for the Estate dated the 12 11 August, 1898, and exhibited EW4 at para. 5 of the affidavit of Ms Emma Walsh sworn on behalf of the applicants on the 9 th April, 2014, contains a helpful narrative of the history of the predecessor tenants of the third to sixth respondents giving up their right of grazing afforded considerable assistance to the court in understanding the background to the preparation of the fiated agreements/vesting orders, this document would not have been, nor should it have been available or furnished to the Land Registry under the Rules relating to particulars to be furnished. It was not necessary that this documentation would be needed to have enabled the Land Registry to register a condition relating to the use of the lands held in common by, inter alia, the predecessors in title of the third to the sixth respondents in relation to the use of same for grazing. The Land Registry official dealing with the matter should have recognised that the references to grazing in the fiated purchase agreement/vesting order were stinting conditions such are described in P. Bland, The Law of Easements and Profits á Prendre, (Dublin, 1997) para. 8-09 p. 161. It must be remembered that the fiated agreement incorporated the undertaking to purchase details when the fiat was stepped on it.
The conditions in the fiated agreement/vesting order did not confer any appurtenant right to the purchasers. The description of same as an appurtenant right confers no value on same as it is not a saleable interest in any respect in registered land and it is interesting to note that no attempt has been ever made to establish rights under a sale or transfer for valuable consideration though a solicitous investigation of the Land Registration Acts in respect of same. The entry in relation to appurtenant rights, as has crept into the folios, is of no value and hence its removal may be effected by rectification of it without injustice to the third to sixth respondents or to the applicant. It is therefore also an error which does not nor cannot even theoretically give rise to any claim in relation to the compensation code of the Registration of Title Acts.
With regard to unity of possession. The applicants have argued that, even if a court held that somehow there was evidence of an appurtenant right to be gleaned from the entry into the folio, which has been held to be subject of an error in the Land Registry, the unity of possession between the dominant and servient tenements, however defined, by reason of the unity of possession of the applicant of the one thirteenth share of each of the third to sixth respondents, has resulted in an extinguishment of a right ox profit á prendre relying on the judgment of Buckley J. in. White and Ors. v. Taylor and Anor. [1969] 1 Ch. 150 at 158.
Counsel for the third to sixth respondents countered this proposition by submitting that the case Margil Property and Anor. v. Stegul Pastoral Property Ltd, and Ors. [1984] 2 NSWLR 1 was an opposing authority to the principles set out in White. This Court does not accept the submissions of counsel in that regard for the following reasons:-
The profit appurtenant of grazing resembles an easement in many respects. It is impossible to identify the same with the occurrence of a right of way across very extensive acreages in New South Wales which in many respects would become a right of way of necessity by reason of the terrain and lack of development by private and public authorities to provide access or convenient access for severed land. The rights identified in the New South Wales case are after severance more in the nature of quasi easements as identified by P. Bland, The Law of Easements and Profits a Prendre, (Dublin, 1997).
The Rule in White which is generally applied has to be persuasive in all the circumstances.
With regard to prescriptive rights. As an alternative position, the third to the sixth respondents sought to rely, through the affidavit of their solicitor Ms Orla Clarke sworn on the 8 th October 2014, on a prescriptive right to graze. This was countered in the submissions by the applicants but the parties agreed that, as these proceedings were determined by affidavit, it was not appropriate that, if such rights were to be pursued, an oral hearing in the circuit by way of Equity Civil Bill would be more appropriate. In the circumstances it is absolutely inappropriate for this Court to express any view in relation to the possibility or otherwise of prescriptive rights arising outside of the recorded Title in the Registry.
This Court has concluded that the offending entry confers no title to anyone and may be rectified without injury to anyone and was an error occurring in the Land Registry and that it is a mischievous anomaly which is appropriate to be rectified by order of the court using its discretion as there is a danger that same may be used (as occurred in this case) for an opportunist attempt to gain some advantage, however described. It therefore grants the application of the applicants in accordance with the notice of motion but awaits the submissions of the parties in relation to the exact form of that order having regard to the provisions of the section as now substituted.