MOORE v. ORR. E. T. 1855. original lessor, but are demised as bogs in the grant. This is not Queen's Bench a right of common, but a re-grant of a profit a prendre. Shepp. Touch., p. 96:—"If one grant to me to dig turfs in his land or soil, and to carry them away at my will and pleasure, by this is "not granted the land itself, the houses or trees thereupon, or "mines therein." Massy v. Gubbins (a). We say the defendant's right is an unlimited privilege to make profit of the bog in any way he pleases. The lease is one for lives renewable for ever, and in that respect the case differs from Lord Mountjoy's case; for Lord Mountjoy's was a grant in fee. Besides, Lord Mountjoy's right was a limited privilege; here nothing appears to restrict the defendant's right: it is a re-grant from the tenant, and is to be construed in favour of the landlord: Coppinger v. Gubbins (b). As to the repugnancy, we admit that unless there be evidence of unlimited user, we could not sustain the claim: Bateson v. Green (c); Clarkson v. Woodhouse (d); Cudlip v. Rundall (e); Wickham v. Hawker (f). Being a license of profit, the defendant might assign it to as many as he pleased. It cannot be argued that it was a personal privilege given to the lessor, the right of cutting turf for the landlord's own consumption, for he might not be living on the premises. The natural construction of the clause is in favour of an unlimited right; and this would not be an unreasonable construction. In Croker v. Orpen (g), the lease contained an agreement that it should be lawful for the landlord, his heirs and assigns, to enter and search for mines, &c., and carry away the ore; and further, to have, hold and enjoy 200 or 300 acres, at their election, of the land most contiguous to the mines, making an abatement to the tenant for the same; and it was held that this was not a covenant sounding in damages only, but a condition giving the landlord a right of re-entry: Lessee Archbishop of Dublin v. Eaton (h). This is a right to give a license of profit: Doe v. Wood (i); (g) 6 Ir. Law Rep. 351; S. C., 2 J. & Sy. 545; 9 Ir. Eq. Rep. 563. Stukeley v. Butler (a). That case of Lord Mountjoy is reported E. T. 1855. fully in Anderson's Reports, p. 307, case 317. Joy replied. Queen's Bench v. ORR. Cur. ad. vult. LEFROY, C. J. The question in this case turns on the construction of a clause in a lease of the 2nd November 1724, which has been set out in the special case argued before us, and we are called on to say what is the legal effect and operation of that clause to which, it does not seem to be agreed what the title, name or denomination should be given; but I think the result of Mr. Vance's argument was, in the end, to treat it as a covenant, and to insist that the Court should put upon it a reasonable construction, and that the construction he contended for was such. A reasonable construction between parties to the contract must be derived from two sources; first, from the very words of the contract itself; secondly, from the context in which these words are found, which may furnish a clue to the construction of the words themselves. The lease in question demises to the lessee the town and lands of Rocavan, containing 404 acres arable, meadow and pasture; and it demises also 20 acres of bog or moss, in two parts, of the lower side of the said townland; and it demises 290 acres of mountain pasture and red bog in the upper end of the said townland, and also the upper half townland of Ballygally, containing 225 acres arable, meadow and pasture; and 58 acres of red bog and heath; and all that quarter townland of Cloggenerring, containing 193 acres heathy pasture, with a parcel of red bog thereunto belonging, &c. : so that it is not merely a demise of the arable, pasture and meadow land, with a right to use the bog as an easement merely for the cutting of turf, but it is a demise of the sub-soil of the bog as effectually as of the upper surface of it. Then there is a covenant by the lessee in these words:- "That it shall be lawful to and for the said Robert "Colville (the lessor), his heirs and assigns, his and their servants, (a) Hob. 170. April 21. MOORE v. ORR. E. T. 1855. "labourers and workmen, with horses and carriages, from time Queen's Bench "to time to bore, dig and search for mines, minerals, coals and quarries of marble, freestone and slate, in any part of the demised "premises, except in the houses, gardens, orchards, courts and yards, "and to carry away the same; and likewise such turf as the "said Robert Colville, his heirs and assigns, shall give liberty "to cut, make and save, in the mosses or turbary belonging "to the demised premises; he, the said Robert Colville, his "heirs, &c., allowing unto the said Charles Johnston (the lessee), "his heirs, &c., reasonable amends and satisfaction for the "waste," &c. The right reserved to the lessor (whatever it may be called) is one to be exercised by the lessor, his heirs or assigns, through or by means of his own servants, labourers, &c., and not one which he could delegate to another, a stranger, not an owner of the estate. Now this clause with respect to the turf must be governed by the antecedent words, else it has no meaning: there is the qualification, that the lessor, his heirs and assigns, is to be at liberty to carry away such turf as he the lessor, his heirs and assigns, shall give liberty to cut, make and save in the mosses or turbary belonging to the demised premises. But with respect to the use to be made of the turf, or the purpose to which it is to be applied, there is no more or other qualification than with respect to the mines and minerals. The language is the same with respect to the one as the other. Where words are plain, and have an intelligible sense in themselves, we can neither add to, alter or take from these words, if as they stand they import an intelligent or reasonable sense. Then as to the rule of words deriving a meaning from the context: the context here furnishes a perfect analogy with respect to the use to which the turf is to be applied: it is to be used in the same manner as the mines and minerals, with respect to which there is no qualification. But it is argued that serious consequences might result if there were to be an indefinite user of the liberty of carrying away the turf, and that the whole bog might in this way be carried off, and MOORE v. ORR. that would be an unreasonable construction to put on the clause. E. T. 1855. Queen's Bench But can a lessee who has agreed to allow every acre of the arable and pasture meadow land to be dug up by the lessor for the purpose of searching for mines or minerals-all in fact of his good land— object to that construction? Is it unreasonable to suppose that the party, making all these lands liable to be broken up, and having consented to it, however injurious the consequences might be, has not also consented to have the upper surface of the bog taken away? The consequence of cutting the upper surface of the bog may be an actual benefit to the tenant; there may be left behind what he may enjoy; whereas if the other lands were cut up in search for mines and minerals, it is easy to see to what a state the land might be brought: so far, therefore, as the Court is called on to give a reasonable construction to this clause, the party has himself furnished grounds for saying that the mere injury that may occur was not in the apprehension of the parties either unlikely or unreasonable. Another argument was derived from that class of cases deciding that as a custom this was bad. First, it would not destroy the whole subject-matter; and secondly, it appears from the case of Clarkson v. Woodhouse, that as a custom, although the result of its exercise must be to destroy the right of commonage, still it would not prevent the custom being regarded as a good one. The question is, which right is subservient to the other? The landlord has demised the bog, but the lessee has made a re-grant, either a re-grant of the profit a prendre, or a license of a profit a prendre. The first would arise from Lord Mountjoy's case, the second from Wickham v. Hawker. Lord Mansfield says, in Clarkson v. Woodhouse :-" It "is said that the qualification alleged in the replication is repugnant "to the right, for that both the commons of pasture and turbary "may be destroyed by it. There is no foundation for the objec"tion, when it is understood what the repugnancy is that destroys a "custom, namely, such a one as shows that it did never exist." Here we find on the face of the contract, in the same instrument which grants the land, a re-grant of that which is a profit a prendre or a license. Again, with respect to the mines and minerals, the parties 73 L VOL. 4. MOORE v. ORR. E. T. 1855. knew how to make a qualification or an exception, for they have Queen's Bench excepted out of the grant, gardens, orchards, courts and yards, so that when they meant a qualification by confining it to the use of the party, why not do so exactly as they had done in the grant of the mines and minerals? That shows that they did not design to give a mere qualified liberty, but a liberty co-extensive with the liberty of raising and carrying away mines and minerals. No doubt, the right to dig and carry away is qualified to some extent, the reservation being to the lessor, his heirs and assigns; that is, he who obtained this license was not to have the power to transfer the indefinite right he had to exercise for his own benefit to others, except to the assignee of the estate, because specially as to the turf there was no reservation of it, and he could not deal with it as his property. The right to the turf arises solely on the clause in question, and if it be the construction that there is a right, there is no limit to that right. We are of opinion that, although the right of raising the turf for his own benefit is not abridged, yet he cannot transfer that right to a stranger to be exercised by him; the result therefore is, that the plaintiffs are to have judgment as to one cause of action, and the defendant as to the other two. FLOOD v. O'GORMAN. April 24. To an action USE AND OCCUPATION.-The summons and plaint claimed £60, cupation, the payable by the defendant to the plaintiff, for the defendant's use and for use and oc defendant pleaded that before his occupation of the premises, the plaintiff agreed to grant him a lease for a term of years, at a rent to commence from the gale day following the execution of the lease; that afterwards he went into possession until the lease should be executed, and expended, with the approbation of plaintiff, a sum of money on the premises; that the lease had never been granted, though the plaintiff was requested to make same, and that though the defendant had been in possession for six years, he had never derived any profit out of said premises :-Held, that this was no answer to the action. |