122 / 262
Acquisition of ground rent relating to premises includes
relevant right of way.
By lease of 29 December 1948, C.I.E. demised to Auto
Services Ltd., lands at Adelaide Road, Dublin, for a
term of twenty-one years expiring on 31 December
1969. The lease contained a grant of a right of way at
all reasonable times as delineated on the map. The
interest of the lease was subsequently acquired by the
defendants, Hardwicke Ltd., and on 17 February 1964
the lease was assigned to Smiths (Harcourt St.) Ltd., as
lessees, who are the plaintiffs in this case.
By notice dated 29 September 1969 the plaintiffs
informed the defendants of their intention to acquire
the fee simple in the lands demised by the lessee with-
out reference to the right of way, under Section 3 of
the Landlord and Tenant (Ground Rents) Act, 1967.
Section 6 of that Act provides that, once notice is
given, the parties concerned shall without unreasonable
delay take all necessary steps to effect a conveyance
free from incumbrances of the fee simple.
On 31 October 1969 the solicitors for defendant wrote
to solicitors for the plaintiffs stating that defendants
were unwilling save under terms to agree to the acqui-
sition of the fee simple. The plaintiffs served a Notice
of Application upon the County Registrar declaring
them to be entitled to the fee simple. At the statutory
arbitration, having heard the parties, the County Regis-
trar found that the plaintiffs were entitled to acquire the
fee simple, and the agreed price was £11,250.
At this stage the defendants tried to contend that only
the land without the apportenant right of way had been
acquired, which would have been of much less value to
the plaintiffs, despite the fact that their valuer had
negotiated on the basis that the right of way had been
included. The award of the County Registrar had been
made on 15 December 1969 but it was only on 3 July
1970 that defendant's solicitors clearly indicated that
the plaintiffs were not entitled to acquire the fee simple
in the right of way, on the grounds (1) that an. incor-
poral hereditament could not be acquired under the
Act, and (2) that in their notice the plaintiffs had not
indicated that they had intended to acquire the right of
way. It was contended that Section 3 of the 1967 Act
only applied to land. If this contention were correct, no
right of way could be leased under the Landlord and
Tenant Act 1931 as amended.
In the 1967 Act, the word "land" is to be construed
in accordance with the Interpretation Act 1937, and
therefore must necessarily include incorporal heredita-
ments, and accordingly the Act of 1967 does enable a
tenant to enlarge into a fee simple his interest in land
including a right of way.
There was little doubt but that the notice that had
been served under Section 4 of the 1967 Act included a
description, in which sufficient particulars had been
given to identify the property, and the effect of the
service of this notice was to give rise to a statutory
contract of sale between the vendor and purchasfer.
Undoubtedly the purchaser wished to acquire the fee
simple in the lands described together with the right
appurtenant under the lease and the County Registrar's
award fr £11,250 entitles them to do so upon pay-
ment of this sum. There was also a discussion about hte
pleadings.
[Smiths (Harcourt St.) Ltd. v. Hardwicke Ltd.; unre-
ported; O'Keeffe P.; 30th July 1971]
Sisters of Charity allowed to build private nursing home
in Elm Park.
The trustees of the Irish Sisters of Charity have suc-
ceeded in their action against the Attorney-General, in
which they sought the High Court's permission to apply
the net proceeds of the old St. Vincent's Hospital and
other property at St. Stephen's Green and Leeson
Street towards the building of their new private nursing
home at Elm Park, Dublin. A sum of more than
£1,250,000 was involved.
After a three-day hearing, Mr. Justice Kenny held
that the old St. Vincent's Hospital was purchased out
of the Order's funds as distinct from money used for
maintenance. He said there was no charity known as
St. Vincent's Hospital separate from the religious pur-
poses of the Order of Charity, and there was no obli-
gation on them to use the buildings for the nursing of
the sick poor.
The buildings, he said, were held on trust for the
Order for their charitable purposes and the funds were
impressed with the same trust.
On the question of the private nursing home, he said
he did not have to decide if this was charitable. The
question would have arisen if this was a
cy-pres
appli-
cation.
Mr. Justice Kenny said that the summons was
brought to determine what should be done with the
funds and the Court was asked to decide whether the
trusts which affected these properties were in favour of
the Sisters of Charity or St. Vincent's Hospital. When
Mother Mary Aikenhead founded the Order the pur-
pose was the sanctification of members by nursing the
sick poor. In 1834, No. 56 St. Stephen's Green was
purchased with money given by a member of the Order.
In the following year it was opened as a hospital and
the Sisters lived there. The building was conveyed to
members of the Order, and in 1887 No. 57 was bought
with the money of Sister Clifford.
Mr. Justice Kenny referred to paragraph 12 of the
affidavit of the Mother General of the Order in which
she stated that the hospital had been purchased "with
monies provided by our congregation". This, he said,
was corroborated by the 1834 prospectus of the order
which stated : "The Institution to be established by the
Sisters of Charity".
He would declare that the plaintiffs hold the proceeds
of the sale of the buildings referred to in the summons
on trust for the charitable purposes of the Religious
Sisters of Charity in Ireland. How this was to be applied
was a matter for the trustees.
He allowed both sides their costs out of the funds.
[Gleeson v. Attorney-General;
The Irish Times,
10th
April 1973]
Rules for sealing blood samples with a stopper under
the Road Traffic Act not complied with.
The Supreme Court has affirmed the decision of Mr.
Justice Pringle, reported in the February
Gazette
at
page 58, in which it was held that the rules for sealing
a defendant's blood sample, when he has been given a
blood test in a Garda Station to determine the amount
of alcohol which appears as a result of this test, must
be very strictly complied with. It is understood that
this is a test case which will affect many other cases.
[Attorney-General (Nagle) v. Hollingsworth; Sup-
reme Court; unreported; 2 May 1973]
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