Dáil Éireann díospóireacht -
Friday, 24 Apr 1931

Vol. 38 No. 3

In Committee on Finance. - Land Bill, 1930—From the Seanad.

Parliamentary Secretary to the Minister for Lands and Fisheries (Mr. Roddy)

I move:—

That the Dáil agree with the Seanad in amendment 1:—

Section 15, sub-section (1). Paragraph (d) deleted and a new paragraph substituted therefor as follows:—

"(d) save where the portion of such holding which is so sublet is held by the sub-tenant thereof under a judicial tenancy and is substantially agricultural or pastoral or partly agricultural and partly pastoral, the Land Commission may, if in their opinion such portion is of such character that it ought not to be declared under this section to be a separate holding, treat the said holding (notwithstanding anything contained in this section) as if the said portion thereof were in the occupation of the tenant of the said holding and were not sublet."

The object of this amendment is to secure that a judicial sub-tenancy must be declared a tenancy to which the Act of 1923 applies, provided that it is substantially agricultural or pastoral in character or partly agricultural and partly pastoral. I think Deputies will agree that it is only right that every sub-tenant who had a judicial rent fixed should be brought within the terms of the Act of 1923. I think this amendment will have the effect of bringing in every sub-tenant in the country who has a holding which is substantially agricultural or pastoral in character.

Mr. Derrig

I understand from the Parliamentary Secretary that this amendment, which is an improvement on the original section in the Bill, proposes to make it definite and specific that a type of judicial tenant who has been hitherto excluded from the operations of the Land Act is now to be included. These judicial tenants are tenants who are themselves subtenants. Apparently they were excluded up to the present even though they had judicial rents fixed on their holdings. As the amendment is a definite improvement and it makes right the position of these people and brings them within the Bill we are prepared to accept it.

Question put and agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 2:—

Section 30. Before sub-section (6), a new sub-section inserted as follows:—

"(6) An appeal on questions of fact, as well as on questions of law, shall lie to the Supreme Court from any order made by the Judicial Commissioner under this section."

This is really a drafting amendment. It provides that an appeal on questions of fact, as well as on questions of law, shall lie to the Supreme Court from any Order made by the Judicial Commissioner under the section relating to the amendment of vesting orders. Such an appeal does undoubtedly exist at the moment on questions of law, and in the opinion of the legal experts in the Land Commission such an appeal does already lie on questions of fact, but in order to make it perfectly certain that an appeal shall lie both on questions of fact and of law, I think it advisable to accept this amendment. It is very difficult to separate questions of fact from questions of law. They are so intermixed that it would be quite impossible to separate them. For that reason this section in the Bill stands in a somewhat different category from the other sections.

Questions put and agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 3:—

Section 32, sub-section (1). The words "the appointed day" deleted in lines 61-62 and the following words substituted therefor, "whichever of the following is the later, that is to say:—

(a) the appointed day, or

(b) the making of the order or the publication of the list by or in which the appointed day is fixed."

My attention was drawn by a member of the Dáil to Section 32, which makes the date of the conversion of real estate into personal estate different from the appointed day. The point was made that making the appointed day a date prior to the date on which the list of vested holdings is published might inflict a certain hardship on vendors. It is quite possible that the vendor might die in the interval between the appointed day and the date of the publication of that list. As a consequence, of course, serious trouble would arise for his heirs or successors to prove that they were entitled to the property which he left behind him. It is purely a legal point, and it is at the request of the members of the legal profession that this amendment has been introduced.

Question put and agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 4:—

Section 34, sub-section (5) After the word "received" in line 36, the following words inserted:—"for his own benefit, or to have retained under his control as a trustee."

This is a drafting amendment. Really, this amendment should have been introduced on the Committee Stage in the Dáil because similar amendments were introduced to sections 45 and 46, but, owing to an oversight, this section was not amended.

Question agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 5:—

Section 34, sub-section (6). After the word "agent" in line 45 the following words inserted:—"be paid or partly paid on such allocation and, if and in so far as such sum is not so paid, such sum may."

This also is a drafting amendment. I did not consider that it was really necessary; I felt the section as originally worded was perfectly clear; but in order to avoid discussion in the Seanad I agreed to accept it. It does not alter the sense of the section nor does it alter its meaning in any way.

Question agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 6:—

Section 40, sub-section (1). After the word "interruption" in line 42 the words "or objection made" inserted.

The section, as Deputies will understand, is for the benefit of persons who have been peacefully exercising grazing rights. As the law exists, these rights are confirmed, if they are enjoyed for a period of twenty years. Until this Bill is passed that law will remain. Such rights must have been openly, peacefully and continuously enjoyed, according to the existing law. Under this section such rights are confirmed after eight years user on the date of the passing of the 1923 Act. Hitherto, according to the existing law, these rights would not be confirmed until the user had proved he had been undisturbed in peaceful possession for twenty years. During this period the owner of the land may not have been able for several reasons to interrupt the user as he would be undoubtedly entitled to do. The word "interruption," in the sense in which it is used in this section, means stopping a person from using a right. There are cases in which the owner may not have been able to stop parties exercising a grazing or a turbary right. He may have been away and, for one reason or another, he may not be able to stop the exercise of particular rights. He may, perhaps, have attempted to take legal proceedings. Except for this particular section he would have twelve years more in which to take legal proceedings; that period represents the difference between the eight years and the twenty years.

It is only fair that if formal objection were made the rights should not be claimed. When it was originally introduced the section was not intended to benefit, and certainly should not benefit, persons who seized grazing or turbary rights by force and kept out those who really had rights there. That has happened in many parts of the country. In my experience of Land Commission administration during the last three years I have come across many cases where one tenant has seized a grazing or a turbary easement which undoubtedly was the right of an adjoining tenant, and which it was the intention of the landlord that the adjoining tenant should enjoy. It is not only the landlord who would suffer damage by such unlawful trespass. In regard to mountain grazing and bogs, there are several tenants who have bona fide rights of grazing and turbary, and these rights will possibly be infringed by this section. They should be protected as far as possible from the claims of unlawful and, perhaps, violent trespassers.

This amendment will undoubtedly help tenants just as much as it will help the owners. There are many cases throughout the country where certain tenants are exercising rights of grazing and turbary to which they really are not entitled, and the landlord never intended these particular tenants should have these grazing or turbary easements. It will, for that reason, give the Land Commission an opportunity of setting right these cases. I may say that these difficulties are numerous in many parts of the country. The words "objection made" are introduced for this end only. They do not mean a person objecting merely because of dislike; he must make a formal objection; he must take some definite open step to stop the user before he will be held to have made an objection. It will be for the courts to determine whether any such steps have or have not been taken. The amendment is a reasonable one, and, in a sense, it is more in the interests of the tenants than of the owners, and I ask the Dáil to accept it.

Mr. Derrig

This is an amendment we would like to examine somewhat more closely. It owes its origin to an amendment introduced by Deputy Geoghegan, the effect of which would have been to confirm tenants in the possession of grazing or turbary rights which they enjoyed since a date prior to the passing of the 1923 Land Act. The Parliamentary Secretary met us very fairly in that matter, and he introduced a special section containing four sub-sections in order to deal with it. In that section it is laid down:

Where the tenant of a holding to which the Land Act, 1923, applies openly enjoys any grazing or turbary on the lands of his landlord and has so enjoyed such grazing or turbary without lawful interruption since a date prior to the passing of the said Act, the Land Commission may, on the application of such tenant and if it thinks proper so to do having regard to all the circumstances of the case, declare the enjoyment of such grazing or turbary (as the case may be) to be a right appurtenant to such holding subject to such (if any) conditions and limitations as the Land Commission shall think fit to impose and shall specify in such declaration.

The purpose of the amendment, it seems to us, is to limit the rights of the tenants because if the tenants had enjoyed grazing or turbary rights under the Bill as it stood without lawful interruption since before the 1923 Land Act, then they would be entitled to have such rights regarded as an appurtenant to their holdings. Now, however, if any other person comes along who claims he has rights in this matter and who says he has made objection, without even specifying what the nature of the objection is, the whole right of enjoyment which we were trying to safeguard for these tenants is going to be jeopardised. I think the amendment is very loose indeed. The words are "or objection made." What is the nature of the objection to be? Is it a legal objection or is there to be a legal process in connection with it?

Mr. Roddy

I think I already explained the meaning of the objection. The owner must make a formal objection; he must take some certain open step to attempt to stop the user before he would be held to have made any objection. The nature of the objection is a matter that will have to be determined subsequently by the Land Commission, and it will be for the Land Commission to say whether the objection is or is not within the meaning of this section.

Mr. Fahy

It will be necessary for such objection to be raised before the introduction of this measure?

Mr. Roddy

It is necessary that it should be made during the period when the tenant was using it and before the passing of this Bill.

Mr. Fahy

And he must produce proof of having objected?

Mr. Roddy

Yes. This is really more in the interest of the tenant than the owner. There are many cases where tenants are enjoying easements of this character which really belong to other tenants and which it was the intention of the landlords that the other tenants should enjoy. As a matter of fact, the Land Commission have frequently to settle disputes of that character between tenants enjoying turbary rights and certain grazing rights. These are very common kinds of disputes. My own opinion and the opinion of my legal advisers is that this amendment does not take away from the effectiveness of the section. In fact it clarifies, to some extent, the meaning of the words "lawful interruption."

Question agreed to.

Mr. Roddy

I move:—

That the Dáil agree with the Seanad in amendment 7:—

Section 44, sub-section (1). After the word "it" in line 59 the words "in the same manner" inserted.

In my opinion the amendment does not alter the section in any way, and while I think it was unnecessary I accepted it.

Question put and agreed to.

Question:—"That the Dáil agree with the Seanad in these amendments"—put and agreed to.

Ordered: That the Seanad be informed accordingly.