Rev Thomas Herbert against William Meredith Esq
Kerry Assizes 19 & 20 July 1836.
This was an action for trespass, quare clausum fregit. The defendant pleaded the general issue as to part of the trespass and liberum tenementum.
The circumstances of the case are as follows:
Upwards of 80 years ago [ie c1756] an ancestor of the defendant demised the lands of Killeentierna to an ancestor of Robert Twiss Esq and in the year 1771, Richard Meredith Esq made a lease to George Twiss of those lands including the grist mill of Killeentierna and by the marriage settlement of George Twiss Esq, the defendant’s father covenanted to add a new life to this lease. It appeared that Mr Twiss’s family were also tenants to the Glebe of Killeentierna under the incumbents of the union of Castleisland, which they held for an equally long period as the surrounding property. This Glebe is situated in the centre of Mr Meredith’s property, demised to Twiss, and in the course of time the boundaries between both were destroyed in a great degree.
In the year 1810, Lord Brandon, then the Rev William Crosbie, entered and enclosed 15 acres of land which he asserted the Glebe ought to contain and which the defendant then had no means of preventing, his tenant living at the time in possession of the surrounding land; however, in the year 1820, the lease of Mr Robert Twiss, the then tenant, expired, and Mr Meredith conceiving that the Glebe of Killeentierna should only be 9A 3R 36P, claimed the addition made by Lord Brandon, from that nobleman, which he refused to give up.
An arbitration was then set on foot between the parties but no evidence was given of it. Shortly after the death of the Rev Arthur Herbert, the late incumbent, Mr Meredith marked off the 5 acres which Lord Brandon, as he asserted, had added to the glebe, and the fences were not finished until after Mr Herbert, the plaintiff, got possession, and an action was now brought to try the question – whether the Glebe ought to contain 9A 3R 36P or 15 acres?
It appeared the Seignory of Castleisland originally belonged to Lord Powis, who assigned to Henry Arthur Herbert Esq and he, in the year 1733, conveyed the Seignory to five gentlemen who, in the year 1734, by deed explaining the last deed, granted one-sixth to Mr Meredith’s ancestor, and by a subsequent partition the lands of Killeentierna were conveyed to him. The plaintiff also relied on an old book of reference to the Herbert estate, in the Seignory, dated in 1720, which stated the Glebe as 15 acres, and a map made about the same time.
The defendant, on the other hand, relied on an abstract from the book of survey and distribution, deposited in the Record Office in Dublin, making, as he conceived, the Glebe 9A 3R 36P, the maps of the Down Survey for the county of Kerry having been burned; also, on the lease of Twiss, which demised the grist mill, and evidence to show that the site of this mill and the mill lot were taken in by Lord Brandon and the order of Council, dissolving the union of Castleisland, which estimates the glebe at 35 acres which would correspond with the glebe as the defendant contends it ought to be, that 35 acres being made up as he contended of 9A 3R 36P the old glebe and 25A 2R 7P a new glebe purchased by the Board of First Fruits in the year 1825, to add to the old glebe of Killeentierna.
The jury, having retired, remained in consultation for a considerable time and finally returned a verdict that the close in the declaration belonged to the plaintiff but finding the plaintiff entitled to the mill lot, as from this verdict it appeared that a trespass had been committed. The learned judge decided a verdict for the plaintiff generally but, we understand, that it is the intention of Mr Meredith to apply to set aside the verdict on several points.
The trial occupied great part of Tuesday and Wednesday.1
1 Michael O’Donohoe Collection reference IE MOD/C37.