§ (1.) A holding vested in a purchaser by a vesting order under this Act shall continue to have appurtenant thereto and to be subject to, as the case may be, any previously existing easements, rights, and appurtenances; and any privilege previously in fact enjoyed, whether by permission of the landlord or otherwise, in such manner and for such time that, if the holding had belonged to a different owner from the rest of the estate, it would have been an easement or right, shall be an easement or right within the meaning of this section, and shall be appurtenant to or exercisable over the holding, as the case may be.
§ (2.) The vesting order may, if the Land Commission think fit, declare that the sale is made subject to or free from any particular easement, right or appurtenance, and such declaration shall have full effect.
§ (3.) This section shall extend to any sale on declaration of title made by the Land Judge in pursuance of the Landed Estates Court (Ireland) Act, 1858, in like manner as if it were herein re-enacted with the necessary modifications.
339LORD INCHIQUINmoved, at the end of the clause, to insert the words,—
Provided, however, that this section shall not apply to any privilege enjoyed by permission of the landlord, or otherwise over lands in the occupation of such landlord.He said that it would be exceedingly obnoxious to the landlord if the words of the clause were extended over land which he had in his occupation after the tenancy had ceased.
THE EARL OF BELMOREsaid that this was the clause on which her Majesty's Government obtained the solitary victory on Friday. He then moved an Amendment which was consequential to the striking out of Clause 8 and the substitution of another clause. The present Amendment provided that, if a landlord had sold a farm to one of his tenants, and that tenant had had the privilege of cutting bog, for instance, the landlord should be at liberty to reserve to himself his own bog, having no longer any connection with the tenant.
*THE LORD CHANCELLOR OF IRELANDsaid that the Amendment was out of keeping with the structure of the clause. If a tenant had enjoyed rights or easements over a property owned by someone not his own landlord for a certain number of years, he would have a legal title to those easements. But, in consequence of the law of common ownership, the tenant would have no legal title if the property were that of his own landlord. This was felt to be a hardship. The Amendment of his noble Friend suggested that, although it might be reasonable to give these rights over the land of other tenants of the landlords, it would not be reasonable if the lands chanced to be in the occupation of the landlord himself. But his noble Friend would see that the rights, to be good and made legal, should be in use and operation for a great number of years, sufficiently long to have given a clear and absolute legal right in the event of these being not over the property of the same landlord, and that was thought to be safeguarded by the circumstance that it must be upon clear recognised use going back a great number of years. He did not think there would be any foundation for distinguishing lands that chanced to be in the occupation of the landlord from those in the occupation of 340 his tenants. This was a reciprocal clause. From its construction it would be seen that if the tenant had over his own farm certain rights in the habit of being used by other people, they were preserved against him, and this was to be borne in mind.
§ LORD MACNAGHTENsaid this was not confined to easements but rights. What rights were in contemplation of the authors of the Act? What was the meaning of "shall be appurtenant to or shall be exercisable over the holding"?
*THE LORD CHANCELLOR OF IRELANDsaid the words were intended to deal with the double aspect of the matter. If the tenant was in the habit of using them he was to retain them, but if other people were in the habit of exercising rights over his land they were to retain those rights.
§ Amendment, by leave, withdrawn.
THE EARL OF ARRANmoved, in Sub-section (1), after the words "purchaser shall," to insert the words "in the event of the sale being carried out." He said that in the Act of 1888 this provision existed, and the vendor was discharged from all liability in respect of rent and arrears from the date of the conveyance being sanctioned. He submitted that it was necessary that the words of the Amendment should be inserted.
§ *THE MARQUESS OF LANSDOWNEI am assured that this is unnecessary, and the point the noble Earl is anxious to safeguard is covered by the words, a few lines further down, "if the advance is refused the agreement shall be void."
THE EARL OF ARRANThat is not the point. When the sale has been sanctioned the tenant may refuse to carry out his agreement.
§ Amendment agreed to.
§ Clause 39,—