Adverse Possession
Cases
Mulhern v Brady
[2001] IEHC 23
Ms. Justice Carroll
This is an application by James Mulhern the registered owner of Folio 3726, County Longford to be registered as full owner of the lands in Folio 2070F, County Longford claiming possessory title against John Brady the registered owner. The application was refused by the Registrar of Title on the 13th of July, 1999 and comes to the High Court on appeal under Section 19(1) of the Registration of Title Act,1964.
The lands in Folio 2070F comprise 0.786 acres and were carved out of lands comprised in Folio 3726 which originally comprised 135 acres 20 perches. It is a site which was sold by the previous registered owner, Dan Kieran Farrell. It is surrounded on three sides by the lands in Folio 3726 and on the fourth side by the public road. Mr. Farrell sold the site to Mr. Brady in 1979 and the new Folio 2070F was opened on 28th February, 1980. Mr. Farrell also sold two other sites out of Folio 3726 on which houses were built. These were Folio 2491F opened in February, 1981 containing 0690 acres and Folio 2492F containing 1.265 acres opened in June, 1981.
In or about 1982 Mr. Farrell exchanged the remaining lands in Folio 3726 (with other lands) with Mr. Mulhern the Applicant for other lands owned by Mr. Mulhern. The exchange document is dated 7th February, 1984 and Mr. Mulhern was registered as owner of Folio 3726 on 12th April, 1985. Mr. Mulhern said he went into possession of the lands exchanged in 1982. He claims he also went into possession of the lands in Folio 2070F at the same time. In his Affidavit sworn on 9th June, 2000 he said the lands in Folio 2070F were surrounded by the lands in Folio 3726 and he said there were no fences dividing the same. This is not so.
It is clear from the maps and photographs produced by Mr. Peter Flanagan, engineer (witness for Mr. Mulhern), that the plot of land in Folio 2070F has clearly defined old boundaries (ditch and hedge) with a number of gaps. One long gap of 24 feet on the west side has a post and wire fence. There is a cattle pen on Mr. Mulhern’s land adjoining the north-west corner. A gate was erected by Mr. Mulhern from the pen into the disputed lands in the weeks proceeding the hearing. This replaced a fence. There are four ten foot gaps and the rest of the gaps are smaller and broken through by animals. The gap in the north-east corner near the road adjacent to the gate from Mr. Mulhern’s lands to the public road did have wire across it six or seven years previously according to Mr. Victor Kiernan, the auctioneer acting for Mr. Brady. There are now two to three strands of wire there. There was also evidence of a v-shaped lay-by on the road at the north-east boundary between the lands in Folio 2070F and Folio 3726. From this v-shaped lay-by it was possible to gain entrance to the disputed lands in former years. Mr. Brady said he could enter the site in 1984 by that route. Mr. Victor Kiernan said it was possible to park a car there up to a few months ago. Mr. Flanagan (recalled) said there is now no entrance from the road but at sometime in the past perhaps there was.
There is a conflict of evidence about the fencing. Mr. Mulhern said that he fenced the plot. He put wire along the road and put wire up on the 24 foot gap. Mr. Dan Kieran Farrell (called by Mr. Mulhern) said he never saw any fence erected and the condition of the boundary was the same three weeks previously as it ever was for the last 45 years. His father had put in the wire. He saw no timber or wire fence. The gaps were there as long as he remembered. Mr. Brady said he fenced the 24 foot gap by post and wire fencing. When he bought it he fenced it to make it safe from trespass. I accept that Mr. Brady did fencing when he bought the land. However he does not say that he did any fencing in the years since 1979–1980. It is possible that animals breaking in knocked down this fencing. If Mr. Mulhern put up fencing between the lands in Folio 2070F and the lands in Folio 3726 he was merely fencing his own lands. The matter does not turn on fencing.
Mr. Mulhern claims that he had exclusive use and possession of the disputed plot either by using it himself or by receiving rent for it. He said he went into possession of the plot in late 1982 at the same time as he took possession of the exchanged lands, because there were entrances to it. He allowed Mr. Farrell to graze the after grass. In 1983-1984 he rented the whole farm to Henry Moorehead. In 1986 he rented the lands back to Dan Kieran Farrell for one year and then for twenty years from the 1st of March, 1987 to the 1st of March, 2007 at £5,000 per annum. Mr. Farrell’s cattle were seized in 1992. Mr. Mulhern said that he and Dan Farrell got hay off the plot in 1993. At the end of 1993and 1994 he said he made an eleven month letting to Gerard Costello although Dan Farrell also paid him rent. He said Mr. Farrell put cattle back with Gerard Costello up to 1996. Mr. Farrell denied that he ever shared with Mr. Costello. After 1996 Mr. Mulhern said the lands were rented out to various people.
Asked if he knew about the site which was sold to Mr. Brady he said George Maloney, Solicitor, who acted for both for him and Mr. Farrell at the time of the exchange, mentioned that three sites were sold off the entire farm. Asked if he had an interest to establish what parts were held by him he said not really; he left it up to his Solicitor. He could not recall Mr. Farrell saying he had sold the plot in question. When it was put to him that Mr. Brady spoke to Mr. Moorehead about cattle trespass he could not recall anything about Mr. Moorehead.
He said the first time he was aware of another owner was when a planning permission notice was displayed in 1997/98. Prior to that he had no knowledge. He did not see any “for sale” sign on the site over a period of months. He was not aware planning permission was granted in 1986 and he was not aware of a sale to Mr. Conway in 1998.
When asked about the 133 acres mentioned in the 20 year lease he said he calculated it from the outline on the Folio map. He did not include any land outside the outline. Mr. Farrell got a lease back of the land he had exchanged.
Mr. Dan Kieran Farrell said he sold the site for £3,000 in 1979. He said the lease back to him did not include the lands in Folio 2070F. He visited the farm everyday when he had cattle on it and from time to time he saw cattle on the disputed land. He let his cattle break in through the gaps. He was not claiming entitlement to the land.
A neighbour, Edward Dervan, who has lands on the opposite side of the road said he saw horses, cattle and sheep on the disputed lands from time to time. They got in and out of the field through the gaps. He also said he saw a sign for sale.
Mr. John Brady, the Respondent and registered owner, lives about four miles away from the site. He said he came four or five times a year and went on site. On one occasion in the mid-eighties he saw cattle on the land. He told Mr. Moorehead he was trespassing. Mr. Moorehead apologised and removed the cattle.
He bought the site to build a house but did not build because he inherited another house. He got planning permission in 1980 and again in 1986 when it was advertised in the newspaper. He said he put a notice on the site. He sold the site to a Mr. Conway in 1998 who got planning permission in that year, but the sale fell through. He then sold recently to another purchaser, Mr. Donohoe. The plot was too small for renting. He was not aware of any machinery being brought onto the land. He only saw cattle there once with Mr. Moorehead and he never saw Mr. Mulhern before seeing him in Court.
Mr. Victor Kiernan, an auctioneer acting for Mr. Brady was familiar with the site and visited it ten or twelve times. He never saw cattle there. He put a “For Sale” sign up (2 feet x 2 feet) which could be seen for thirty yards. This was six or seven years ago when Mr. Brady wanted to sell. He said it was up for six months to a year.
In my opinion based on that evidence, there was no abandonment by Mr. Brady. He visited the plot four or five times a year and only once saw cattle trespass which he dealt with. He advertised for planning permission in 1986 in local newspapers and his auctioneer erected a For Sale sign for six months to a year. Mr. Mulhern’s version is that he exchanged the lands with Mr. Farrell which did not include the plot in Folio 2070F but he thought it did because he did not bother to find out what plots were sold out of the farm. I find it hard to believe a farmer would not bother to find out exactly what land he was getting. When he rented to Mr. Moorehead, Mr. Moorehead must have been under the impression that the plot in question was part of the lands rented but he removed his cattle when Mr. Brady told him he was trespassing.
When Mr. Mulhern leased the farm back to Mr. Farrell for £5,000 per annum for twenty years he only leased back what he got in exchange. Mr. Farrell knew that the plot in question had already been sold by him to Mr. Brady and was under no illusion that it formed part of the 133 acres comprised in the lease. No rent was paid in respect of the plot to Mr. Mulhern. Mr. Farrell allowed his cattle to trespass on Mr. Brady’s land from time to time knowing it to be Mr. Brady’s land and without any intention of ousting him.
Mr. Mulhern falls in his claim as he cannot establish twelve years continuous occupation and possession to the exclusion of the registered owner. There was no open assertion of title as evidence of intent to extinguish the title of the registered owner. He relied on the acts of his tenants, Mr. Moorehead and Mr. Farrell, between 1983 and 1996. But Mr. Moorehead removed his cattle when asked by Mr. Brady and Mr. Farrell who allowed his cattle to trespass from time to time had noanimus possidendi. User of the land after Mr. Mulhern vacated it as immaterial. The law on adverse possession has been very succinctly summarised by O’Hanlon J. in Doyle -v- O’Neill & Anor (Unreported) 13th January, 1995.
“In order to defeat the title of the original land owner I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a land owner alert to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
He said at page 20:-
In this case I am quite satisfied that Mr. Mulhern has not established twelve years adverse possession and occupation to the exclusion of the registered owner. Accordingly, he fails in his application.
The State (Philpott) v Registrar of Titles
[1986] ILRM 499, [1985] 7 JIC 2901
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Gannon J.
Judgment of Gannon J. delivered the 29th day of July, 1985
This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted on the 6th of May, 1985 directed to the Registrar of Titles in the Land Registry. The prosecutor was on the 28th July, 1983 registered full owner with possessory title of 4.505 hectares in the townland of Glenaknockane, Barony of Duhallow, Co. Cork in folio 29970F of the Register of Freeholders Co. Cork. On the 19th of February, 1985, the respondent, the Registrar of Titles, entered on the said folio an inhibition against all dealings with these lands without the approval of the respondent. Prior thereto the prosecutor had entered into a contract on the 23rd of November, 1984 for the sale with other lands of the lands on this folio. The sale had not been closed on the 7th of December, 1984 which was the closing date prescribed in the contract and completion was still pending on the 19th of February, 1985. The prosecutor had had no notice of the intended entry of the inhibition on the folio, the entry whereof is in purported exercise of a power conferred on the respondent pursuant to section 121 of the Registration of Title Act 1964. The first notification the prosecutor received of the exercise of this power by the respondent was a letter dated the 25th of February, 1985 from the Examiner of Titles in the Land Registry with which was enclosed a letter dated the 28th of September, 1984. Although not expressed to be from the Registrar the letter appears to have been sent in compliance with subsection (3) of section 121 of the 1964 Act. The letter is addressed to the solicitors for the prosecutor with a heading referring to the folio and lands of the prosecutor and is signed by the Examiner of Titles. It states as follows:-
“Dear Sirs,”
We had correspondence from Messrs. David J. O’Meara & Sons of Bank Place, Mallow, Co. Cork on behalf of Mr. Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre, Banteer claiming rights. We enclose herewith a copy of our reply of the 28th September, 1984.
It has been decided to enter an inhibition under section 121 of the Registration of Title Act 1964in the event of there being an error and claim under this section. The inhibition reads “all dealings are inhibited except with the approval of the Registrar of Titles”.
A copy of this letter has been sent to the registered owner, Christopher Philpott.”
The enclosure with that letter was a letter from the Examiner of Titles to Messrs. David J. O’Meara & Sons, Solicitors, Bank Place, Mallow, Co. Cork with a reference to folio 29970E County Cork, registered owner Christopher Philpott of Glouncome, Lyre, Banteer, Co. Cork your clients Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre. It said:-
“Dear Sirs,”
Your letter of the 17th September, 1984 addressed to Richard Sherlock of this office has been passed to me.
On the basis of the effect of registration with a possessory title as set out in section 38 (1) of the Registration of Title Act 1964the registration of Christopher Philpott is in order.
Any person aggrieved by the decision may appeal to the Court under section 19 (1) of the said Act. Alternatively, an application may be made to convert the title under section 50 (1) of the said Registration of Title Act and rule 38 (3) of the Land Registration Rules 1972. If the applicants application is based on possession form 5 of the said rules should be considered, in a similar manner to an application for first registration based on possession.
You should also see sections 97 and 98 of the Registration of Title Act 1964. Your clients may have rights which can be protected under these sections.
Your clients rights may also be protected under paragraphs (h), (j) or (p) of subsection 1 of section 72 of the said Act.”
It is signed by the Examiner of Titles.
On receipt of notification of the entry of the inhibition the prosecutor’s solicitors enquired from the Examiner of Titles if the purchasers from the prosecutor could be registered as owner on completion of the sale. The reply from the Examiner of Titles is dated the 27th of March, 1985 and is as follows:-
“Dear Sirs,”
We are in receipt of your letter of the 28th February 1985 which has only recently reached the writer.
The inhibition may not be removed until the matters arising on the title and the registration are rectified and the registration of Patrick and Particia Barry may not be completed.
The registration of Christopher Philpott with a possessory title was made on foot of the affidavit dated the 11th May, 1981 of Christopher Philpott and your letter of reply of the 1st June, 1983. It is now possible that the registered owner is not entitled to the fee simple. An application to convert the title to absolute should be made by the registered owner. All parties will then be notified and their rights clarified if possible.”
It is signed by the Examiner of Titles.
The grounds upon which the Conditional Order of Certiorari was granted on the 6th of May, 1985 are set out in the following four paragraphs in the Order namely:-
2 “1. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the said section in and about his decision to enter the same.
2. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the land registration rules for the entry of such inhibitions.
3. That the said decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles, prior to the time when he entered the said inhibition on the register, failed to inform the prosecutor either of the fact that he proposed to enter such an inhibition or the grounds for such entry or to afford to the prosecutor an opportunity to make representations or otherwise to be heard by him in relation to the entry of the said inhibition.
4. That the Registrar failed to exercise his power to enter inhibitions on the register pursuant to section 121 of the Registration of Titles Act 1964in accordance with the requirements of constitutional and natural justice.”
The prosecutor accordingly challenges the determination of the Registrar to place an inhibition on the folio on the grounds that the Registrar did not conform to the requirements of section 121 of the 1964 Act, nor comply with the requirements of the land registration rules for the entry of an inhibition; and further that by failing to give to the prosecutor previous notice and a hearing on the matters upon which the determination was made there was a denial of justice which invalidates the entry on the folio. The respondent shows cause by affidavit which, unfortunately, does not depose to anything that he as Registrar of Titles did or did not do. In his affidavit showing cause the Registrar deposes that the Examiner of Title “in the course of investigating the title sought to be registered on behalf of the prosecutor” was not satisfied about certain matters pertinent to the registration of title. The affidavit discloses that in correspondence between the Examiner of Titles and other parties in September, 1984 unspecified matters were ascertained which indicated that an error may have been made in effecting the registration of the prosecutor’s title. The registration of the prosecutor’s title had been effected in July, 1983. It is evident from the affidavits filed on behalf of both parties that when examining the evidence in support of the application by the prosecutor for registration the Examiner of Titles had no communication with the parties referred to in his letter of the 28th of September, 1984. The affidavits also show that after registration had been completed the Examiner of Titles when replying to enquiries of the parties referred to in his letter of the 28th of September, 1984 did not have any communication with the prosecutor, the then registered owner, with reference to whose registration the enquires apparently were being made.
Section 121 of the Registration of Title Act 1964under which the registrar, the respondent, acted is as follows:-
2 “121 (1) Whenever it appears to the Registrar that an error which may be capable of rectification has been made in registration, the Registrar may enter in the register such inhibition against dealings with the land or the burden affected by such error as he thinks proper for the purpose of protecting the Central Fund against claims for compensation in respect of losses occasioned by registrations made after such error is discovered and before it is rectified.
(2) An inhibition entered in the register under this section shall not affect any registration actually pending in the central office when such inhibition is entered nor prevent the completion of such registration.
(3) Whenever the Registrar enters an inhibition under this section, he shall send notice of such inhibition and of the error because of which it was entered to all persons who appear from the register to be affected by such error and to such other persons (if any) as may be prescribed.”
By Section 3 (1) of the 1964 Act “prescribed” means prescribed by general rules. Section 120 of the 1964 Act provides for the payment of compensation in respect of losses occasioned
(a) by rectification of an error originating in the Land Registry and rectified pursuant to section 32 (1) of the Act,
(b) by an error originating in the Land Registry which was not rectified under that subsection,
(c) by an error of entry in or omission from the register procured by forgery or fraud,
(d) by an error in an official search and
(e) by an error in the Land Registry Office copies of documents.
This section is of importance in cases of first registration founded upon claims based solely upon long continuous adverse possession. Such appears to be the basis for the registration of the prosecutor on Folio 29970F County Cork. The other section of the Act which provides expressly for the entry of an inhibition on the folio is section 98. For the purposes of comparison and guidance on the intendment of the Act it would be advisable to quote that section also which is as follows:
2 “98 (1) The court or, subject to an appeal to the court, the Registrar, on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or Registrar thinks expedient, make an order or, in the case of an application to the Registrar, an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
(2) The Registrar, on the application of the person who has “obtained an order of the court under the provisions of this section, shall make an entry of the order on the register in the prescribed manner.
(3) The court or Registrar may annex to any such order or entry any terms or conditions they think fit, and may discharge any such order or cancel any such entry, and generally may exercise such powers as the justice of the case requires; but nothing herein contained shall empower the Registrar to discharge an order made by the court.
a (4) (a) Nothing in this section shall authorise any restrictions to be imposed on the powers of a tenant for life, or a person having the powers of a tenant for life, under the Settled Land Acts.
(b) Any entry made under this section may be withdrawn or modified at the instance of all the persons for the time being appearing by the register to be interested therein.”
These are the statutory provisions upon which the prosecutor relies in support of ground 1 of the Conditional Order. In support of ground 2 the prosecutor relies on rules 137 to 145 of the Land Registration Rules of 1972. Other than these rules, which clearly prescribe for the implementation of the provisions of section 98 of the 1964 Act, there are no other rules specifically referable to section 121 of that Act. Although the express purpose of the use of the power conferred by section 121 is to enable the Registrar to protect the common fund its effect is to maintain a position of no change by preventing any effective dealings with the registered land or with ownership of any interest in it until the inhibition has been removed. The section places no obligation upon the Registrar to correct the error nor does it make any provision for the removal of the inhibition.
In a well constructed and carefully prepared argument Mr. McCarthy for the prosecutor submitted that the exercise by the Registrar of the power conferred by section 121 of the 1964 Act requires a determination by the Registrar made upon consideration of facts or matters relative to the administration of the registration of ownership of land. It is a power for the exercise of which the rules or regulations make no express provision and consequently leave the determination in the sole discretion of the Registrar. The rights of the registered owner to transmit his interest or to create a charge upon it are prohibited and are so affected by reason not of the facts or matters considered by the Registrar but by virtue of his determination upon such facts and matters and his consequent exercise of the power conferred by section 121. In support of his contention that the function and power invested in the Registrar by section 121 is in the nature of a judicial act and one which must be exercised in a judicial manner Mr. McCarthy cited the statement of Palles C.B. in Reg. (Wexford County Council) .v. Local Government Board 1902 2 I.R. 249 quoted by O’Byrne J. in the State (Crowley) .v. Irish Land Commission 1951 I.R. 250 at 265. The quotation from the Chief Barron is as follows:
“I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice”
(here he refers to the observations of May C.J. in Reg.-v- Corporation of Dublin 2 L.R.I. 371 at 376)
“assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a “Court” or “jurisdiction” , so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorising it is judicial.”
It was argued that the power, being a personal one exercisable at his discretion by the Registrar, imposes the onus to conform strictly with the statutory requirements permitting a determination to be made. Mr. McCarthy contended that the exercise of the power in a judicial manner requires personal enquiry by the Registrar – the only person on whom the power is conferred – to ascertain facts from which the inference may be drawn that an error giving rise to a claim for compensation has been made in the Land Registry which is capable of rectification. He submitted that such enquiries would in justice require communication with the registered owner, and if the rights to be affected relate to the registration of the registered owner, justice requires that the registered owner be given an opportunity of defending his right as, and to be, the registered owner. In support of his contentions Mr. McCarthy cited the observations of Walsh J. in East Donegal Co-Operative -v- Attorney General 1970 I.R. 317 at 343:-
“All the powers granted to the Minister by section 3 which are prefaced or followed by the words “at his discretion” or “as he shall think proper” or “if he so thinks fit” are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licensee or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.”
Mr. McCarthy contended that the stated objects of the 1964 Act most pertinent to this instant application are expressed in sections 121, 120, and 98 and in the rules made under the Act, in particular rules 137 to 145 inclusive. He submitted that justice required that the Registrar should disclose to the registered owner the existence of facts or information from which an error in the registration can be identified, the nature of the error, whether or not it is capable of rectification pursuant to the provisions of section 32 (1) of the 1964 Act or otherwise so coming within the scope of section 120 (1) as to necessitate the protection of the common fund from a claim for compensation. Mr. McCarthy argued that there is nothing in section 121 which relieves the Registrar from the obligation of giving to the registered owner before entering an inhibition under that section the sort of notice and information required before entry of an inhibition under section 98. By subsection (3) of section 121 the Registrar is required to give such notice and information after the entry of the inhibition. Mr. McCarthy submits that if the power conferred by section 121 is to provide for a circumstance of some urgency, such as a threatened or pending claim for compensation, the information to be furnished under subsection (3) should state the facts creating such circumstance. The rules and forms prescribed by the Act specify the terms in which an inhibition may be expressed, but the inhibition entered by the Registrar does not conform to these. It would seem from the prescribed rules and forms, Mr. McCarthy maintains, that an inhibition is intended to be of only temporary effect. But, he pointed out, the inhibition under section 121 seems to be permanent in its effect unless and until the registered owner or some person to whom the Registrar has given notice takes some step either for the removal of the inhibition or for rectification of the register.
For the respondent showing cause Mr. Clarke submitted that section 121 confers a power on the Registrar to protect the common fund from claims for compensation due to error occurring in the registration of ownership or other interests in the land. Because of the nature and purpose of the power conferred its effect is of an interim nature only, to preserve the status quo and to prevent the acquisition of rights by unregistered persons, pending rectification of an error. He compared section 121 with section 98 showing the distinctive characteristic of section 121 to be its holding operation and peremptory nature with subsequent notice putting contending parties in a position to agree or take steps for rectification of the error. He argued that it was within the power of the Registrar to remove the inhibition if the person whose claim or representations gave rise to the entry failed to proceed. He referred to rule 142 of the 1972 rules which provides for application to the Registrar on notice for the modification or discharge of an inhibition. This rule he submitted applies to inhibitions entered pursuant to section 121 as well as to those entered on the application of persons other than the Registrar. He argued that no injustice is done by a necessarily peremptory but temporary restraint on the rights affected where provision is made for subsequent immediate enquiry and is subject to a right of appeal under section 19 of the Act.
On the matter of the residual right of appeal to correct a determination found to be not in accordance with the principles of justice Mr. McCarthy referred to comments of McGarry J. in Leary -v- Nation Union of Vehicle Builders 1971 1 Ch 34 cited with approval by Pringle J. in Ingle -v- O’Brien 109 I.L.T.R. 7 at page 11. He also quoted from the judgment of O’Higgins C.J. in the State (Abenglen Properties Limited) -v- Dublin Corporation 1982 I.L.R.M. 590 at 597 where he says:-
“The question immediately arises, as to the effect on the exercise of the court’s discretion, of the existence of a right of appeal or an alternative remedy. It is well established that the existence of such ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground of refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where under administrative legislation, adequate appeal machinery particularly suitable for dealing with errors in the application of the code in question exists. In such cases, while retaining always the power to quash, the court should be slow to do so, unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
Mr. McCarthy pointed out that in the absence of sufficient information in either the notice of entry of the inhibition, namely the letter of the 25th February, 1985, nor in the affidavit showing cause as to the facts or circumstances giving rise to the entry of the inhibition the prosecutor, the registered owner, does not know the nature of the case required to be made by him nor of the case he might expect to meet in the event of an appeal by him under section 19 of the 1964 Act. In reply to the contention that the inhibition is a mere holding operation of a temporary but urgent nature he submitted that the only matters properly within that description, namely matters pending in the central registration office, are in fact excluded by subsection (2) of section 121 from the effects of an inhibition under that section. He contended that the entry on the folio gives no indication that the inhibition is intended to have only temporary effect.
Having given careful consideration to the legal principles enunciated and to the arguments submitted I am satisfied that the application of the prosecutor is well founded. The establishment of the register to evidence ownership of land and of rights over land of which the ownership is registered necessarily involves serious consequences from registration of cautionary notices or inhibitions affecting registered land. The determination to enter an inhibition is entrusted only to the Registrar, and must be exercised by him in a judicial manner. Section 121 of the 1964 Act which gives him a discretion in the exercise of this power sufficiently indicates the purpose and circumstance for its exercise. In my opinion every exercise of this power should be capable of being identified as protecting the common fund from a real probability of a claim for compensation, and should relate to an identifiable error made in the Land Registry of a nature for which compensation could be payable in accordance with section 120 of the Act. The use of the power conferred in section 121, while available to anticipate an urgent situation, is not confined to such circumstances. The section does not require that the inhibition should be limited as to the time of its duration or its purpose. Nevertheless, conformity with the other like provisions of that nature in the statute requires that its limitations (if any) of time and purpose should be disclosed by the entry. It is understandable that in the circumstances of some urgency for the protection of the common fund it would be imprudent or impractible to give, prior to making the entry of the inhibition, the notice and opportunity for hearing indicated in subsection (3) of section 121. But because of the grave nature of the interference with rights over land and the evidence thereof empowered by section 121 I am of opinion that, unless the urgency of the circumstances otherwise require, justice requires that notice should be given to the person whose rights may be affected of the intention to enter such an inhibition and an opportunity given to show cause why it should not be entered. By so doing the primary object of the section, namely the protection of the common fund from claims for compensation, could be achieved without injustice to any party. Whether a contrary effect might result is something which the Registrar would have to assess in every case as it arises and upon its own facts. On the evidence before this court there is nothing to show that the purpose of section 121 is being achieved, namely that there is any risk of any claim for compensation of a nature indicated in section 120 which is being prevented or avoided. There is no evidence to suggest an urgency which made it necessary to proceed without communication to the registered owner, nor of circumstances suggesting that to do so might in any way defeat the purpose of section 121. There is also an absence of sufficient evidence to show that the Registrar gave his personal attention to the factors supporting a proper determination under this section or that the determination was in fact made by him. I accept the arguments advanced on behalf of the prosecutor as supported in evidence and sound in law. In my opinion all four grounds on which the Conditional Order was made have been established and cause shown must be disallowed.
Byrne v Dublin City Council
[2018] IEHC 597
JUDGMENT of Mr. Justice Meenan delivered on the 22nd day of March, 2018.
Background
1
This is an appeal from the Circuit Court concerning the ownership of a plot of land (‘the land’) situated at the rear of No. 33 Brian Road, Marino, Dublin 3. A number of properties on St. Declan’s Road, Brian Road and Brian Avenue, Marino adjoin the land.
2
The plaintiff is the owner of No. 33 Brian Road and the defendant has the paper title to the land.
3
In order to determine whether the plaintiff has acquired title by adverse possession of the land it is necessary to examine the history of both No. 33 Brian Road and the land. No. 33 Brian Road was formerly owned by the plaintiff’s grandfather, Mr. Michael Byrne. Mr. Byrne died on 23rd February, 1960 and he bequeathed the property to his wife, Mrs. Bridget Byrne.
4
On 3rd March, 1981, Mrs. Byrne was registered as the fee simple owner of No. 33 Brian Road (Folio DN 23259F). Mrs. Byrne died on 8th January, 1993 and she bequeathed No. 33 Brian Road, including the land, to her children, subject to the right of any of her children or grandchildren to purchase same. The plaintiff, a grandchild of Mrs. Byrne, purchased No. 33 Brian Road in 1993. The plaintiff has been living in No. 33 Brian Road and maintains that she has been in exclusive possession of the land since 1993.
5
It would appear that the defendant let the land in or around 1934 in four plots to Mr. Byrne at a rent of 37p per annum per plot. The rent was paid until 1985 and no payment has been made since. An order of the Assistant City Manager of the defendant dated 13th October, 1994 states:-
‘Re: Plot of ground at rear St. Declan Road, Brian Road and Brian Avenue, Marino.
The large garden colour red on the attached map was let to Mr. Michael Byrne, the tenant purchasers of No. 33 Brian Road, in the early thirties. It was let as four plots at rents of 37p per annum each. The last rent was paid for 1985. Some of the residents of the houses surrounding the plot wish to obtain part of the site for use in conjunction with their present holding. Accordingly, it is desired to terminate the original tenancy of Mr. Michael Byrne.
Mr. Michael Byrne and his widow Mrs. Bridget Byrne are now both deceased. The house, 33 Brian Road, is reputed to be now occupied by their granddaughter.
I recommend that notice to quit be served on the present owner of No. 33 Brian Road in respect of the large garden at the rear.’
The ‘large garden’ at the rear is the land the subject matter of these proceedings.
6
Following the said order of the defendant’s Assistant City Manager, a notice to quit the land was served on the defendant, dated 19th December, 1995. The notice to quit stated:-
‘I hereby give notice that you are required to deliver up possession of the plot of ground at rear 33 Brian Road, Marino, Dublin on 19th February, 1996.
Please remove all your goods and belongings from the area by the above date.
If you refuse or neglect to deliver up possession of the said plot of ground on the said 19th February, 1996, ejectment proceedings will be instituted against you.
Dated 19th day of December, 1995.
Signed: Assistant City Manager.’
7
Subsequent to the notice to quit, there was correspondence between the then solicitors for the plaintiff and the defendant. Unfortunately, some of this correspondence has been mislaid and all that is now available are the replies from the defendant. These letters dated 26th January, 1996 and 20th February, 1996 indicate an intention on the part of the plaintiff to become registered as the owner of the land in the Land Registry.
8
The plaintiff gave evidence that the land was effectively used as the garden for No. 33 Brian Road. In the early years, the late Mr. Byrne used the land to grow fruit and vegetables; he constructed a glass house and kept hens on the land. Following the death of Mr. Byrne, Mrs. Byrne continued to use the land as part of the garden. She fenced off part of the land with a wire mesh fence so as to make the land inaccessible by any route other than through No. 33 Brian Road. It would appear that in the years after the death of Mr. Byrne, the growing of fruit and vegetables ceased, hens were no longer kept and the glass and hen houses fell into disrepair. However, during this period it would appear that the grass was cut and the boundaries were maintained on a regular basis by the Byrne family.
9
In November 2010 the plaintiff applied to the Property Registration Authority for first registration on the grounds of long possession. Following an exchange of correspondence, the plaintiff did not proceed with this application but subsequently renewed the application in August 2015.
10
The renewed application brought about a reaction from the defendant and the neighbours which led to these proceedings. Doors, gates and gaps began to appear in the boundary walls, fencing and bushes. The neighbours started planting and using the land for social events. Presumably, this was all with the aim of establishing that the plaintiff had not acquired title to the land and that the defendant could proceed with its plan to divide the land among the neighbours.
11
It is common case that the defendant owns the paper title to the land. The defendant proposes to divide up the land amongst the adjoining neighbours. However, should the plaintiff successfully establish that she has acquired title to the land by way of adverse possession then this division cannot proceed. It is in these circumstances that the dispute now comes before this Court.
Statutory Provisions
12
The relevant provisions of the Statute of Limitations Act 1957 (as amended) are:-
Section 13(2):-
‘The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;’
Section 17(2):-
‘(a) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Act, be deemed to be determined at the expiration of the first year or other period.
(b) The right of action of a person entitled to land subject to a tenancy from year to year or other period, without a lease in writing, shall be deemed to have accrued at the date of the determination of the tenancy, unless any rent or other periodic payment has subsequently been received in respect of the tenancy, in which case the right of action shall be deemed to have accrued on the date of the last receipt of rent or other periodic payment.’
Section 24:-
‘Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.’
Legal Authorities
13
There are numerous authorities on the issue of adverse possession. The Supreme Court decision in Dennis Dunne v. Irish Rail and Córas Iompair Éireann [2016] IESC 47 sets out clearly the principles which a court should apply in dealing with a case such as this. It is not necessary to set out the facts of Dunne as it is clear that cases of adverse possession are particularly fact specific.
14
I refer to the judgment of Laffoy J. where she states:-
‘7. The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the following terms:
‘(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (” animus possidendi”).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.’
The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at para. 4.5) as follows:
‘It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.”
In my view, that statement is indisputable’
15
In his judgment, Charleton J. stated:-
‘8. The extent of usage required for possession adverse to the holder of the title deeds might first usefully be considered. Buildings and lands and vary markedly as to character and potential use. It is that character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner… It is the ordinary use to which such land may be put that assists in determining whether possession has been taken of it. A residential dwelling is defined by the fact that people live in it. Possession is taken of a flat or a house by moving in to it and living in it as if the place belonged to the possessor…
9. It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. What is required is a use inconsistent with the title-holder. Relevant, therefore, is the extent of the land or premises, the character of the realty and the ordinary use to which same would be put. In a series of cases, it has been consistently held that a particular analysis of the individual circumstances of possession must be made by the trial judge…’
and
’13. Intention to possess may be proven by direct testimony but, given the tendency towards mistakes of memory and exaggeration in such cases, is perhaps more reliably established as an inference from the particular circumstances of a given case; in other words, intention to exclude the owner is best judged from the facts on the ground. That will be a matter for the trial judge. Where no, or minimal, use is made of land, it may be a simple matter not to draw an inference that there was an intention to exclude the title holder…’
Submissions
16
Mr. Gavin Ralston S.C., on behalf of the plaintiff, submitted that the 12 year period required for adverse possession commenced on 19th February, 1996, the date of the expiry of the notice to quit. It is submitted that during this 12 year period the plaintiff was in clear possession of the land and had the intention to possess the land. Maintenance of the land and securing of the boundaries are demonstrative of such.
17
Mr. Paul Burns S.C., on behalf of the defendant, made two principal submissions:-
(i.) When the plaintiff purchased No. 33 in 1993 she only acquired No. 33 Brian Road (Folio DN 23259F). She never acquired any interest in the land. Service of a notice to quit did not confirm any title or confer any title to the land on the plaintiff.
(ii.) The plaintiff fails the tests to establish adverse possession set out in the Dunne case. Reliance is placed on the passage of Charleton J., set out a para. 15 above, to the effect that ‘It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question…’
Decision
18
As to whether adverse possession has been established it is necessary for the court to decide, in the words of Charleton J., what is ‘the character of the realty and the ordinary use to which same would be put.’ In my view, the land is a garden and this Court must establish whether the plaintiff has been using the land in a manner that is consistent with it being her garden.
19
The plaintiff’s grandfather used the land for the growing of fruit and vegetables. He also constructed glass houses. Following his death in 1960, the plaintiff’s grandmother came into possession of the land and paid rent until 1985. In the years before her death in January, 1993, the growing of fruit and vegetables effectively ceased, presumably, resulting in the greenhouses falling into disrepair. This was the situation when the plaintiff acquired her interest in the 1993.
20
Gardens vary between those with well manicured lawns, herbaceous borders and flowers and shrubs for every season, to those which have been handed back to nature. In this case the garden, like many, falls between the two. The plaintiff gave evidence of regularly mowing the grass, keeping the boundaries in shape and, from time to time, holding family events in the garden during the summer. This is as much as many do in their gardens.
21
It is the case that since 2009 the plaintiff undertook a number of significant improvements to the garden. For example, the removal of the glass house and laying a patio area with an adjacent chimney/barbeque area. However, it does not follow that the plaintiff only began using the land as a garden from this time.
22
Evidence was given by neighbours that they rarely, if ever, saw the plaintiff in her garden. I attach little weight to this. The plaintiff is in full-time employment and, apart from a lodger, lives alone. I do not think that it is at all surprising that the plaintiff is not more frequently seen in her garden which, on the evidence of the neighbours, can only be viewed from the upstairs windows of neighbouring houses.
23
It is also clear that the defendant had no involvement with the land. The defendant did not cut the grass, maintain the boundaries or provide any access route other than through No. 33 Brian Road, a private dwelling house.
24
A number of neighbours gave evidence of gaining access to the land where the boundary was delineated by bushes. However it was not until 2015 that gates or doors were constructed in the boundary fences/walls to enable access.
25
By reason of the foregoing, I conclude that the plaintiff had both the requisite intention to possess ( animus possidendi) and the factual possession of the land. Although the defendant owns the paper title, it has carried out no act of ownership on the land since the service of a notice to quit on the plaintiff in December 1995 other than indicating a desire to subdivide the land amongst the neighbours.
26
It was submitted by the defendant that when the plaintiff purchased No. 33 Brian Road in 1993 she acquired no interest in the land. I have already detailed the evidence that supports the plaintiff’s factual possession of the land and the requisite intention to possess. I believe that this situation was accepted by the defendant when it served the notice to quit. I refer to the wording of the notice to quit which required the plaintiff to ‘deliver up possession’. Further, by letter dated 20th February, 1996 from the Assistant Law Agent of the defendant to the plaintiff’s then solicitor it is stated:-
‘My clients have now served a notice to quit on your clients and they intend to resume possession of the site…’
The defendant took no further steps to obtain possession of the land.
Conclusion
27
By reason of the foregoing, I find that the plaintiff acquired title by way of adverse possession to the land on 20th February, 2008, 12 years after the expiry of the notice to quit. Therefore, I affirm the order of the Circuit Court.
Mulhern v Brady
[2001] IEHC 23
Court: High Court (Ireland)
Judge: Ms. Justice Carroll
Ms. Justice Carroll
This is an application by James Mulhern the registered owner of Folio 3726, County Longford to be registered as full owner of the lands in Folio 2070F, County Longford claiming possessory title against John Brady the registered owner. The application was refused by the Registrar of Title on the 13th of July, 1999 and comes to the High Court on appeal under Section 19(1) of the Registration of Title Act,1964.
The lands in Folio 2070F comprise 0.786 acres and were carved out of lands comprised in Folio 3726 which originally comprised 135 acres 20 perches. It is a site which was sold by the previous registered owner, Dan Kieran Farrell. It is surrounded on three sides by the lands in Folio 3726 and on the fourth side by the public road. Mr. Farrell sold the site to Mr. Brady in 1979 and the new Folio 2070F was opened on 28th February, 1980. Mr. Farrell also sold two other sites out of Folio 3726 on which houses were built. These were Folio 2491F opened in February, 1981 containing 0690 acres and Folio 2492F containing 1.265 acres opened in June, 1981.
In or about 1982 Mr. Farrell exchanged the remaining lands in Folio 3726 (with other lands) with Mr. Mulhern the Applicant for other lands owned by Mr. Mulhern. The exchange document is dated 7th February, 1984 and Mr. Mulhern was registered as owner of Folio 3726 on 12th April, 1985. Mr. Mulhern said he went into possession of the lands exchanged in 1982. He claims he also went into possession of the lands in Folio 2070F at the same time. In his Affidavit sworn on 9th June, 2000 he said the lands in Folio 2070F were surrounded by the lands in Folio 3726 and he said there were no fences dividing the same. This is not so.
It is clear from the maps and photographs produced by Mr. Peter Flanagan, engineer (witness for Mr. Mulhern), that the plot of land in Folio 2070F has clearly defined old boundaries (ditch and hedge) with a number of gaps. One long gap of 24 feet on the west side has a post and wire fence. There is a cattle pen on Mr. Mulhern’s land adjoining the north-west corner. A gate was erected by Mr. Mulhern from the pen into the disputed lands in the weeks proceeding the hearing. This replaced a fence. There are four ten foot gaps and the rest of the gaps are smaller and broken through by animals. The gap in the north-east corner near the road adjacent to the gate from Mr. Mulhern’s lands to the public road did have wire across it six or seven years previously according to Mr. Victor Kiernan, the auctioneer acting for Mr. Brady. There are now two to three strands of wire there. There was also evidence of a v-shaped lay-by on the road at the north-east boundary between the lands in Folio 2070F and Folio 3726. From this v-shaped lay-by it was possible to gain entrance to the disputed lands in former years. Mr. Brady said he could enter the site in 1984 by that route. Mr. Victor Kiernan said it was possible to park a car there up to a few months ago. Mr. Flanagan (recalled) said there is now no entrance from the road but at sometime in the past perhaps there was.
There is a conflict of evidence about the fencing. Mr. Mulhern said that he fenced the plot. He put wire along the road and put wire up on the 24 foot gap. Mr. Dan Kieran Farrell (called by Mr. Mulhern) said he never saw any fence erected and the condition of the boundary was the same three weeks previously as it ever was for the last 45 years. His father had put in the wire. He saw no timber or wire fence. The gaps were there as long as he remembered. Mr. Brady said he fenced the 24 foot gap by post and wire fencing. When he bought it he fenced it to make it safe from trespass. I accept that Mr. Brady did fencing when he bought the land. However he does not say that he did any fencing in the years since 1979–1980. It is possible that animals breaking in knocked down this fencing. If Mr. Mulhern put up fencing between the lands in Folio 2070F and the lands in Folio 3726 he was merely fencing his own lands. The matter does not turn on fencing.
Mr. Mulhern claims that he had exclusive use and possession of the disputed plot either by using it himself or by receiving rent for it. He said he went into possession of the plot in late 1982 at the same time as he took possession of the exchanged lands, because there were entrances to it. He allowed Mr. Farrell to graze the after grass. In 1983-1984 he rented the whole farm to Henry Moorehead. In 1986 he rented the lands back to Dan Kieran Farrell for one year and then for twenty years from the 1st of March, 1987 to the 1st of March, 2007 at £5,000 per annum. Mr. Farrell’s cattle were seized in 1992. Mr. Mulhern said that he and Dan Farrell got hay off the plot in 1993. At the end of 1993and 1994 he said he made an eleven month letting to Gerard Costello although Dan Farrell also paid him rent. He said Mr. Farrell put cattle back with Gerard Costello up to 1996. Mr. Farrell denied that he ever shared with Mr. Costello. After 1996 Mr. Mulhern said the lands were rented out to various people.
Asked if he knew about the site which was sold to Mr. Brady he said George Maloney, Solicitor, who acted for both for him and Mr. Farrell at the time of the exchange, mentioned that three sites were sold off the entire farm. Asked if he had an interest to establish what parts were held by him he said not really; he left it up to his Solicitor. He could not recall Mr. Farrell saying he had sold the plot in question. When it was put to him that Mr. Brady spoke to Mr. Moorehead about cattle trespass he could not recall anything about Mr. Moorehead.
He said the first time he was aware of another owner was when a planning permission notice was displayed in 1997/98. Prior to that he had no knowledge. He did not see any “for sale” sign on the site over a period of months. He was not aware planning permission was granted in 1986 and he was not aware of a sale to Mr. Conway in 1998.
When asked about the 133 acres mentioned in the 20 year lease he said he calculated it from the outline on the Folio map. He did not include any land outside the outline. Mr. Farrell got a lease back of the land he had exchanged.
Mr. Dan Kieran Farrell said he sold the site for £3,000 in 1979. He said the lease back to him did not include the lands in Folio 2070F. He visited the farm everyday when he had cattle on it and from time to time he saw cattle on the disputed land. He let his cattle break in through the gaps. He was not claiming entitlement to the land.
A neighbour, Edward Dervan, who has lands on the opposite side of the road said he saw horses, cattle and sheep on the disputed lands from time to time. They got in and out of the field through the gaps. He also said he saw a sign for sale.
Mr. John Brady, the Respondent and registered owner, lives about four miles away from the site. He said he came four or five times a year and went on site. On one occasion in the mid-eighties he saw cattle on the land. He told Mr. Moorehead he was trespassing. Mr. Moorehead apologised and removed the cattle.
He bought the site to build a house but did not build because he inherited another house. He got planning permission in 1980 and again in 1986 when it was advertised in the newspaper. He said he put a notice on the site. He sold the site to a Mr. Conway in 1998 who got planning permission in that year, but the sale fell through. He then sold recently to another purchaser, Mr. Donohoe. The plot was too small for renting. He was not aware of any machinery being brought onto the land. He only saw cattle there once with Mr. Moorehead and he never saw Mr. Mulhern before seeing him in Court.
Mr. Victor Kiernan, an auctioneer acting for Mr. Brady was familiar with the site and visited it ten or twelve times. He never saw cattle there. He put a “For Sale” sign up (2 feet x 2 feet) which could be seen for thirty yards. This was six or seven years ago when Mr. Brady wanted to sell. He said it was up for six months to a year.
In my opinion based on that evidence, there was no abandonment by Mr. Brady. He visited the plot four or five times a year and only once saw cattle trespass which he dealt with. He advertised for planning permission in 1986 in local newspapers and his auctioneer erected a For Sale sign for six months to a year. Mr. Mulhern’s version is that he exchanged the lands with Mr. Farrell which did not include the plot in Folio 2070F but he thought it did because he did not bother to find out what plots were sold out of the farm. I find it hard to believe a farmer would not bother to find out exactly what land he was getting. When he rented to Mr. Moorehead, Mr. Moorehead must have been under the impression that the plot in question was part of the lands rented but he removed his cattle when Mr. Brady told him he was trespassing.
When Mr. Mulhern leased the farm back to Mr. Farrell for £5,000 per annum for twenty years he only leased back what he got in exchange. Mr. Farrell knew that the plot in question had already been sold by him to Mr. Brady and was under no illusion that it formed part of the 133 acres comprised in the lease. No rent was paid in respect of the plot to Mr. Mulhern. Mr. Farrell allowed his cattle to trespass on Mr. Brady’s land from time to time knowing it to be Mr. Brady’s land and without any intention of ousting him.
Mr. Mulhern falls in his claim as he cannot establish twelve years continuous occupation and possession to the exclusion of the registered owner. There was no open assertion of title as evidence of intent to extinguish the title of the registered owner. He relied on the acts of his tenants, Mr. Moorehead and Mr. Farrell, between 1983 and 1996. But Mr. Moorehead removed his cattle when asked by Mr. Brady and Mr. Farrell who allowed his cattle to trespass from time to time had noanimus possidendi. User of the land after Mr. Mulhern vacated it as immaterial. The law on adverse possession has been very succinctly summarised by O’Hanlon J. in Doyle -v- O’Neill & Anor (Unreported) 13th January, 1995.
“In order to defeat the title of the original land owner I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a land owner alert to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
He said at page 20:-
In this case I am quite satisfied that Mr. Mulhern has not established twelve years adverse possession and occupation to the exclusion of the registered owner. Accordingly, he fails in his application.
Re; Shanahan
ation: 1965 WJSC-SC 1029
Docket Number: (44-1964)
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: Ó Dálaigh,C.J.
Dálaigh,C.J.
This is an appeal from an order made by Teevan J. dated 7th February, 1964 rejecting an application by Mrs. Hanna Shine under section 52 of the Local Registration of Title (Ireland) Act, 1891. The terms of section 52, though long familiar to practitioners, will bear repetition:
“A right to be registered as the owner of any registered land in derogation of the title of the registered owner shall not be acquired by any mere possession, however long, commencing after the first registration of the land, but where any person but for the provisions of this Act would have obtained a title by mere possession to any registered land, he may apply to the court in the prescribed manner for an order declaring his title to such land, and the court, if satisfied that such title would have been acquired but for the provisions of this Act, may make an order declaring such title, and ordering the register to be rectified in such manner as it thinks just.”
The declaration which she sought was in respect of part of the lands comprised in folio No. 26039 of the Register of Freeholders, County of Tipperary, of which John Shanahan became the first registered owner in 1950; the area of the part in question is 1 rood 10 perches or thereabouts and it is identified by map. The respondent, Bridget Shanahan, is the widow and personal representative of John Shanahan, deceased, who died on 6th March, 1960
In 1931 the lands comprised in the folio were in the possession of Patrick Shanahan, the father of John Shanahan, as the purchasing tenant under the Land Act,1923, with a right to have the fee simple vested in him under the Land Acts, By an agreement in writing dated 24th November, 1931 Patrick Shanahan agreed to let to John Joseph Shine, the applicant’s husband, the part of the holding, the of this application, under a tenancy from year to year, at a yearly rent of 10/-, payable half-yearly on every 1st May and 1st November. The consideration also included a fine of £40. There was moreover a clause in the agreement as to what was to happen in case the consent of the Land Commission to the sub-division of the holding should thereafter be obtained and they should agree to accept John Joseph Shine as their direct tenant: the landlord undertook for himself, his executors, administrators and assigns to do everything necessary to give the tenant a good title in the plot; and, in such case, the rent or annuity payable out of the entire holding was to be reduced by the 10/-per year payable out of the plot.
John Joseph Shine entered into possession of the plot in pursuance of the agreement and paid the annual rent of 10/-. Shortly afterwords he erected thereon a small dwellinghouse and shop and he resided there for some time with his wife, husband the applicant. Then in or about 1936 or1937 the applicant’s left the district and he has not since returned. Since he left he has not communicated with the applicant or provided her with any maintenance or support.
In the affidavit grounding her application the applicant continues her narrative in these words; …. “I continued to pay the rent reserved by the said agreement up to the year 1938, and since then no rent has been paid thereunder or otherwise and I have not acknowledged the right or title of anyone to the said premises and plot. I have continued to reside in the said premises end have been in sole occupation thereof since my husband left me. At present my sole means is the Old Age Pension. So far as I am aware my husband is still alive and residing in England, but I am not aware of his address or whereabouts. Since he left he never paid any rent or rates for the said lands and premises. The said Patrick Shanahan died in the year 1934 and his son John Shanahan succeeded him as occupier of the said Lands of Drumgower but neither of them ever went Into occupation of or made any claim to or received any rent or profits out of the said plot and premises subsequent to the last payment of rent by me In or about the year 1938. The said John Shanahan died on the 6th day of March, 1960 intestate leaving him surviving his widow Bridget Shanahan and the following children, namely Mary Shanahan; Patrick Shanahan and Margaret Shanahan all of whom are residing on and in occupation of the lands of Drumgower registered on said Polio with the exception of that part comprising the said plot and premises. I have, given no acknowledgment to the said Widow and children in respect of the said property and I have not given any acknowledgment to the said John Joseph Shine in respect of ownership or otherwise of the said shop, dwellinghouse end plot. Since the year 1938 I have not acknowledged the title or claim of anyone to the said shop, dwellinghouse and plot which is surrounded by a boundary fence and thereby cut off from the rest of the lands of Drumgower and no one has made any claim to it.”
The respondent, Mrs. Shanahan, filed two affidavits, one sworn by herself and the other by her brother-in-law, Michael Shanahan, in opposition to the granting of the order sought. Mrs. Shanahan says that in or about 1938 her husband, John Shanahan, owed a debt of approximately £16 to Mrs. Shine. At the time her husband was in bad circumstances and unable to discharge the debt. She says it was agreed husband and Mrs. Shine that this debt would be left outstanding in the books of Mrs. Shine and would be credited against the rent of 10/- per annum due under the 1931 Agreement. Martin Shanahan in the second affidavit says he was aware that in or about the year 1938 John Shanahan owed a debt of about £16 to Mrs. Shine. At the time John Shanahan was unable to discharge the debt. Martin Shanahan adds that in his presence it was agreed between John Shanahan and Mrs. Shine that the debt would be left outstanding and would be credited against the rent of 10/- per annum which Mrs. Shine was paying to John Shanahan for the plot under the 1931 Agreement.
In reply to these affidavits two further affidavits were filed on Mrs. Shine’s behalf. Mrs. Shine says that at no time did she enter into the alleged or any agreement with John Shanahan. John Shanahan was, she says, indebted to her not for the sun of £16 but for the sum of £12. 13. 9d. and that was in the years 1941, 1942 and 1943. She instructed her solicitor, Mr. P. J. O’Meara of Thurles to write to John Shanahan for the purpose of obtaining payment of the debt but she received no payment of the debt. She also refers to the last receipt for rent dated 6th October, 1938 and exhibits it. The other affidavit is made by Mr. O’Meara. He says he was instructed in 1941 by Mrs. Shine to collect a debt of £12. 13. 9d. from John Shanahan for goods supplied by her to him. He wrote first on 10th June, 1941. and following on this letter John Shanahan called to his in reference to the payment of the account. As John Shanahan neglected to discharge the account Mr. O’Meara says he got further instructions from his client in June, 1942 and that she authorised him to negotiate for and to accept payment of the account by weekly payment. He accordingly wrote a further letter to John Shanahan on 4th June. 1942 and requested John Shanahan to call at his offices, but this he didn’t do. Mr. O’Meara concludes by saying that at no time in the course of his instructions, or in any other way did he become aware of the arrangement to in the affidavits filed on behalf of the respondent having been entered into; end he adds that to his knowledge no such agreement was in fact made.
Mr. Justice Teevan found it possible to resolve this conflict of evidence without the necessity of having the deponents attend court to give oral testimony. He rejected as he said “without hesitation” the case set up by Mrs. Shanahan and Martin Shanahan. He nevertheless dismissed Mrs. Shine’s application.
Counsel for Mrs. Shanahan contended that as Mrs. Shine’s affidavit disclosed that her possession commenced by a tenancy from the then proprietor of the parent holding, mere non-payment of rent could only bar claims for rent but could not bar the right of the landlord in reversion on determination of the tenancy. The judge said: “I accept this last proposition. Here we have a yearly tenancy, and while it subsists the landlord is not entitled to possession and, therefore, cannot be barred by the mere possession of his tenant. This is so oven if rent has not been paid for more than twelve years. In such circumstances, all that is barred is the recovery of the rent for more than six years. On her own case Mrs. Shine sets up this agreement and shows that it was the origin of her possession. Furthermore, she actually sets up, herself, the receipt for the last payment of rent and it is as I have said, in her own name. She demolishes her own case.”
“Pauldine”
“5th October, 1938.”
The rent, receipt in question is in the following form:-
“Received from (Mrs.) Hannie Shine the sum of thirty shillings for rent due.
“Signed John Shanahan”
“Pauldine”
“5th October 1938. ”
The receipt is stamped.
Thirty shillings is the equivalent of three years rent and three years arrears of rent would cover the period, May, 1935 to May, 1938. The rent was payable in equal moieties and the first moiety of the rent would have been due 1st November, 1935. Mr. Shine is stated to have gone away in or about the year 1936 or 1937. Part of the rent paid by Mrs. Shine accrued due while her husband was still here.
The Judge should not, it seems to me, have resolved the conflict of evidence between the parties without hearing oral evidence; and I rather doubt if he would have done so if he had not been satisfied that the respondent, Mrs. Shanahan, was in any event entitled to succeed on a point of law.
In resolving the question of fact the Judge criticised Martin Shanahan for failing to describe the circumstances under which the agreement was made; he did not, the Judge said, state where it was made or in any way describe the circumstances which might clothe his averments with probability. Whether this was the fault of the counsel or solicitor who drew the affidavit or a real paucity of knowledge or recollection would have been readily apparent at an oral hearing. Moreover, the judge does not appear to have adverted to the fact that Mrs. Shine, who in 1941 was pressing for payment by John Shanahan of the shop debt of £12. 13. 9d. Was, if her own version of the matter is to be accepted, indebted to John Shanahan in the sum of £1. 10. 9d., for arrears of rent. But she does not mention this; nor, apparently, did John Shanahan when he called to see Mrs. Shine’s solicitor, Mr. O’Meara. A possible explanation of the absence of all reference to arrears of rent in 1941 would be that Mrs. Shine had in 1938 entered into the arrangement deposed to by Mrs. Shanahan and Martin Shanahan, and that the £12. 13. 9d. which Mr. O’Meara was instructed to collect in 1941 was a new debt. I call attention to this matter merely to indicate that the conflict of testimony with which the Court was faced could not be satisfactorily resolved without oral evidence; and also to point out that if the ruling in Mrs. Shanahan’s favour cannot be upheld on other grounds it will be necessary to remit the case to the High Court for an oral hearing.
The case made by the applicant in her affidavit is that she continued to pay the rent reserved by the Agreement of 24th November, 1931 up to the year 1938. Upon that basis Mr. Justice Teevan was in my opinion, quite right to reject the application. There was no adverse possession of the land but only of the rent charge: section 18(4) Statute of Limitations Act,1957.
Whether Mrs. Shine was assignee of her husband’s interest as the judge held or whether, as I think is the preferable view, the original tenancy continued is immaterial: on either view the tenancy in question was undetermined and there was no adverse possession of the land but only (if, of anything) of the rent charge.
I need not deal withIn re Michael Daily (1944) N.I.I which was cited by counsel for the applicant. That was a case in which a wife with her two children were held to have acquired a title by possession to the husband’s freehold interest. The case does not bear on the question which we have to resolve.
The receipt for rent paid on 5th October, 1938 in no way points to Mrs. Shine as tenant. The arrears include rent accrued while her husband was still in Ireland, and the receipt does not distinguish between these arrears and the later arrears. The inference, in my opinion, is that no new arrangement had been come to as of that date. The receipt acknowledges that the rent was received from Mrs. Shine, but on the facts of this case this is not evidence of the acknowledgment by the landlord of Mrs. Shine as tenant. Nor neither then nor later is there evidence of a verbal tenancy.
The substantial argument advanced on behalf of the applicant was that where rent under a tenancy from year to year is not paid there is a presumption that the tenancy has terminated.
Stagg v. Wyatt (1838) 2 Jur. 892 was relied upon for that proposition. In that case Tindal C.J. had, at the trial, charged the jury that on the evidence of non-payment of rent for a space of 16 years, no demand having been proved to have been made, they were at liberty to presume the tenancy had been determined. On a motion to show cause this direction was upheld. Tindal C.J. who sat on the appeal said he was not prepared to say there was no evidence, though had he been on the jury he might not, on such evidence, have come to the same conclusion that they did. Park J. contented himself with observing there was no misdirection; while Coltman J. felt he could not say that 16 years abstinence from any demand of payment of rent could not be evidence to go to a jury of the abandonment of the tenancy.
If I am to acceptStagg v. Wyatt as good law the appellant is nevertheless still remote from having established a statutory title. There is here a circumstance which clearly distinguishes this case fromStagg v. Wyatt, Here the appellant deposes that in 1942 her landlord was indebted to her in the sun of £12 odd for shop goods. He was unable to discharge this debt. She instructed her solicitor to seek payment of the debt but she did not institute proceedings to recover what was due. On the basis of the case which the appellant puts forward she was herself then £2 in arrears in respect of rent (4 years rent, 1938–1942, at 10/- per annum). Both the appellant and the landlord abstained from enforcing their respective claims. Twenty years would have had to run (1942 to 1962) before the appellant had recouped herself the net amount (£12 minus £2 arrears of rent) due to her for shop goods out of the rent falling due half-yearly at 10/- per annum. Mr. Justice Teevan was not asked to presume the determination of the tenancy by reason of the non-payment of the rent. Counsel’s submission, I take it, is, in effect, that this Court should now do so. I would decline to do so. The relationship of debtor-creditor/creditor -debtor which existed between the parties for twenty years terminating in 1962 would, in my opinion, negative any presumption of the determination of the tenancy that might otherwise arise from the non-payment of rent.
Counsel for the applicant also submitted that the Agreement of 24th November, 1931 was void as being in breach of the prohibition of sub-letting contained in the Land Act,1927, section 3, and that the applicant was therefore at best a tenant at will and that in such case the Statute would run after the first year of possession i.e., from 1939: see section 17(l) of the Act of 1957. This submission is wholly at variance with the case male in the affidavit to ground this application in the High Court, and the Court, in my view, should not entertain it. It may be that it is open to the applicant to apply afresh on this new basis, but this is a matter that need not now be discussed.
I would dismiss this appeal
Dunne v Iarnród Eireann
[2016] IESC 47
Court: Supreme Court (Ireland)
Judge: Mr Justice Peter Charleton, Ms. Justice Laffoy
Adverse possession
5
The field in question is of rough grazing and scrub land, in triangular shape, bounded by old hedges with intermittent fencing, and runs northwards from Clondalkin Station to lands of about the same acreage and a house owned by Seán Kavenagh on the northwest. Beyond this house is a suburban housing estate called Moorfield, while on the north-eastern side there is an extensive business called Cummin’s scrapyard. Since 2007, the field has been taken possession of by CIÉ and the then existing two track system has been expanded on the field to a four track system. Dennis Dunne claims to have made use of the field through the grazing and training of horses, the keeping of chickens, ducks and dogs and the building of stabling and sheds. All this was claimed in the High Court to evidence an intention to displace the title-holder to the land and was asserted to be a sufficient occupation of the field to amply meet the requirement that full usage of the land is required for adverse possession and not mere casual or occasional or limited occupation.
6
Section 13(2) of the Statute of Limitations 1957 fixes the time period for the recovery of land that is adversely possessed as against the holder of the title:
The following provisions shall apply to an action by a person (other than a State authority) to recover land?
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority, whichever period first expires.
Here, although CIÉ is a State corporation, it has not been argued that anything other than the ordinary limitation period of 12 years applies. Section 18 requires that for a right of action to accrue to the holder of the title to land, there must be possession adverse to that by some other person:
(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where?
(a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and
(b) no person is in adverse possession of the land on that date,
the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.
(3) Where a right of action to recover land has accrued and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession.
(4) For the purposes of this section?
(a) possession of any land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rentcharge shall be deemed to be adverse possession of the rentcharge, and
(b) receipt of the conventional rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be deemed to be adverse possession of the land.
As amended by the Registration of Title Act 1964, s. 24 sets out the consequences of adverse possession for the full limitation period:
Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.
7
To summarise: s. 13(2)(a) of the Statute of 1957 bars the title holder from recovery of land after the elapse of twelve years from ?the date on which the right of action accrued to the person bringing it?; while s. 18(1) provides that no ?right of action to recover land shall be deemed to accrue unless the land is in the possession ? of some person in whose favour the limitation period can run?; while s.18(2)(b) provides that a ?right of action? does not accrue ?unless and until adverse possession is taken of the land?; but where there is such possession adverse to the title holder, s. 24 provides that ?at the expiration of the period fixed ? the title of that person to the land shall be extinguished.? In construing the relevant legal concepts, Clarke J drew in his judgment on the analysis of Laffoy J in Tracy Enterprises Macadam Limited v. Thomas Drury [2006] IEHC 381(Unreported, High Court, Laffoy J, 24th November, 2006)..
8
The extent of usage required for possession adverse to the holder of the title deeds might first usefully be considered. Buildings and lands and vary markedly as to character and potential use. It is that character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner. For instance, a bridge needs to be supported at each end of its span by the ground on which it rests. It is difficult to conceive of situations where the land needed to support, inspect, repair and maintain a bridge could be adversely possessed. The curtilage of land around the bridge is for a particular purpose which is ancillary and necessary for the structure. Thus in Dundalk UDC v Conway [1987] IEHC 3 land beside and under a bridge which was dedicated to support and maintenance was held not to have been adversely possessed. Where land is not supporting structures, the first point of analysis should be the nature of that land, be it agricultural, tillage, grazing, forestry, bog or limestone karst. It is the ordinary use to which such land may be put that assists in determining whether possession has been taken of it. A residential dwelling is defined by the fact that people live in it. Possession is taken of a flat or a house by moving in to it and living in it as if the place belonged to the possessor. Of course, the majority of such cases are concerned with overholding after the right of the landlord to rent has been responded to by non-payment by the tenant. As to when such a right of action accrues to the landlord, when time begins to run adversely, is not for decision now. Where what is involved is a flat within an apartment complex, ordinarily the squatter or the overholding tenant will occupy one particular dwelling. Adverse possession rights to an entire complex do not accrue by taking possession of a particular defined unit. Thus the character of the intrusion onto another’s land, premises, or structure, the extent of any continued use by the holder of title, the nature of the ordinary occupation that would be expected and whether there are defined boundaries marking the extent of any claimed possession are all factors that require consideration.
9
It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. What is required is a use inconsistent with the title-holder. Relevant, therefore, is the extent of the land or premises, the character of the realty and the ordinary use to which same would be put. In a series of cases, it has been consistently held that a particular analysis of the individual circumstances of possession must be made by the trial judge. In Murphy v Murphy [1980] IR 183 at 202, Kenny J explained the nature of possession which is adverse thus:
In s. 18 of the Act of 1957, adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v Griffin [ [1969] 1 WLR. 23.]
10
While an ouster of the title-holder is not required, in the sense of acts to physically dispossess that person, such user as the character of the land or premises ordinarily and reasonably suggests is required in order for possession to be adverse. Quoted with approval in Bula Ltd (in receivership) v Crowley (No 3) [2003] 1 IR 396 at 425 per Denham J, is a classic statement to that effect by Lord O’Hagan in Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 288:
As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.
11
The cases set out in Canny – Limitation of Actions (Dublin, 2010) at 67-70 are also illustrative of the individual analysis that such cases demand. In argument, counsel for CIÉ claimed that some kind of sign should have been erected outside this field asserting ownership by Dennis Dunne. While there may be some suggestions from cases in other jurisdictions illustrating how possession may be rendered adverse by this kind of dramatic manifestation, any such requirement does not exist in this jurisdiction. Nor could such a suggestion be elevated to a rule of law. It might merely be an instance of how possession adverse to the title holder might be taken. In Powell v McFarlane [1969] 38 P&CR 452 at 478 suggests ?ploughing up and cultivation of agricultural land?, ?enclosure of land by a newly constructed fence?, and ?a notice on land warning intruders to keep out? as instances of positive activities that speak loudly of possession. These may be examples relevant to particular cases. Individual analysis of circumstances is required, however, in all these cases. What is required is possession of an unequivocal character that there is a person occupying adversely to the title holder. As Slade J put the matter in the Chancery Division of the England and Wales High Court, and as Clarke J accepted in his judgment, what is necessary to show adverse possession is ?an appropriate degree of physical control?. O’Hanlon J put the matter thus in Doyle v O’Neill (Unreported, High Court O’Hanlon J, 13 January 1995), cited in this case by Clarke J in the High Court, at 20:
In order to defeat the title of the original landowner, I am of the opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.
12
While in some cases the title holder’s intention for future use has defeated what might ordinarily seem a complete form of occupation by the party claiming adverse possession, this is not determinative and may be no more than a factor; see Leigh v Jack (1879) 5 Ex D 264, Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94, Cork Corporation v Lynch [1995] ILRM 598, and to the contrary Seamus Durack Manufacturing Limited v Considine [1987] IR 677. The matter does not now arise for decision. While Clarke J preferred the latter case, counsel for CIÉ conceded that for much of the decades past, CIÉ had no particular plan for this field. Hence, no ruling is made as to future intended use on this appeal. Clarke J correctly identified that mere occupation is not enough to ground a claim of adverse possession and that what is also required is that the ostensible adverse occupier of the land does so with the intention of excluding the original owner. The matter is put thus in Halsbury’s Laws of England, volume 68 at para. 1080 of the 5th edition:
For there to be adverse possession the person claiming possession should have the necessary intention, that is, an intention to possess the land to the exclusion of all other persons including the owner with the paper title so far as is reasonable and so far as the process of the law will allow. An intention to use the land merely until prevented from doing so does not amount to the requisite intention.
13
Intention to possess may be proven by direct testimony but, given the tendency towards mistakes of memory and exaggeration in such cases, is perhaps more reliably established as an inference from the particular circumstances of a given case; in other words, intention to exclude the owner is best judged from the facts on the ground. That will be a matter for the trial judge. Where no, or minimal, use is made of land, it may be a simple matter not to draw an inference that there was an intention to exclude the title holder; an instance being Seamus Durack Manufacturing Limited v. Considine. An example of the absence of an intention to possess is Feehan v Leamy (Unreported, High Court, Finnegan J, 29th May 2000) where the claimant had asserted that a farm, of which he later claimed occupation, was in fact owned by someone in America. The circumstances constituting possession will inevitably be various, but fundamental is that the new possessor takes occupation of the land or premises, or a defined portion thereof, with a view to the exclusion of all others. Such possession must not be by force, deception or with the permission of the owner of the legal title; nec vi, nec clam, nec precario. Hence, lands that are overheld but where there is a mortgage of the land to another party are a particular circumstance; Ulster Bank Limited v Rockrohan Estate Limited [2015] IESC 17. Licensees are another special case. Thus, permission to occupy removes the adverse element from the use of land; Murphy v Murphy [1980] IR 183 at 195.
14
As between the person claiming to adversely possess land and the original owner, the balance tends towards the latter in that any action demonstrative of the assertion of the original title will stop time running. Such acts may be minimal. At paragraph 4.9 of his judgment in the High Court, Clarke J thus correctly encapsulated the relevant principle:
In Powell v. McFarlane Slade L.J. noted, at p. 472, that ?an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.? It is, therefore, important to emphasise that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.
15
Halsbury at para. 1081 puts the principle in a similar way:
Where, having taken adverse possession of unregistered land, a trespasser expressly or impliedly acknowledges the title of the owner, time will start to run afresh against the owner from the date of the acknowledgment. However, an acknowledgment of title made after the expiry of the limitation period will not suffice to revive the owner’s title. There is no similar provision in the case of registered land.
At para. 1082 of Halsbury, the law is stated to be that the discontinuance of possession must be by the party entitled to the possession. Trespassers coming in and making a nuisance are not asserting the right of either the title-holder or of the party claiming possession adverse to the original owner. One of the acts of entitlements of a landowner is to allow others to enter, cross, use or to otherwise enjoy land according to whatever permission is given. Adverse possession is the taking of land to the exclusion of the title-holder and to the exclusion of others. It can be evidence that land was not taken possession of to the extent that its character would ordinarily and reasonably suggest that paths were not blocked off, that prior users continued in their activities on the land and that shortcuts through the land continued to be asserted to gain access to a public utility. There is a very big difference, for instance, between inviting people onto a property for the showing or exercising of horses and those same people asserting a user as if the land in question was just general waste or unused land that might be resorted to by anybody. That difference may be summed up in stating that control over land is a fundamental aspect of occupation.
16
The case Convey v. Regan [1952] IR 56 is authority for the proposition that where the actions of the new occupier are equivocal as to the dispossession of the title-holder, as for instance where a bare grazing right is exercised instead of an occupation of the land, circumstances may suggest a failure to achieve adverse possession. In that case, the principle was put by Black J thus at 59:
The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner’s lands, he must show that those acts were done with animus possidendi, and he must show this unequivocally. It is not, in my view, enough that, the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or to a profit à prendre. When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.
17
Individual circumstances will vary from case to case, however. It may be better to acknowledge that land which is in reality capable only in its ordinary character of being used for rough grazing, may be fully occupied by placing animals on that land and managing it for that purpose for the entirety of the limitation period. There may be circumstances where it is reasonable to infer only the assertion of an incorporeal use and it may be that the facts only support such a use. What is clear, however, is that the analysis of the relevant law by the trial judge on all of the principles which are relevant to this case was unimpeachable. Hence, no errors of law have been identified on this appeal. The particular circumstances of occupation must now be turned to.
Facts from 1977 to 1993
18
In evidence at the trial in the High Court, Dennis Dunne claimed to have started occupation of this 3-acre field in 1977. His testimony in that regard, however, could best be regarded as equivocal. Working, as he then did, on buildings and delivering coal and other fuel to houses in the area by way of horse and cart during the winter, and owning at that point in time one or two horses, he used to keep them on a green near his home. This was about two miles away. He accepted that what he was then looking for was a place to give them ?a bit of feed and shelter?. During that time, there was a well on the property from which water could be drawn. Given that the watering of animals is a serious task for anyone keeping livestock, it is therefore inconsistent with possession of this land that Dennis Dunne allowed the nearby caretaker of a CIÉ cottage to enter the land and to shut the well because of the danger posed to his children. While the evidence is equivocal regarding where the well was situated, possibly outside of the boundary now claimed, the experience of Seán Kavenagh of buying and attempting to restore Coolevan house across the hedge to the northwest in 1990 is more instructive as to the degree of control then being exercised by Dennis Dunne. At that stage, Seán Kavenagh describes ?one or two? horses being present in the field. When asked as to whether children appear to have horses in the CIÉ field, he answered: ?All the time. It was absolutely a nightmare for the first couple of years I was there.? Dennis Dunne was described as being there ?more regularly than most.? Other people would, however, have horses and children ?would be chasing the horses around the field.? This required him to ?go down and get over the fence? because ?animals were being chased around the field with ropes hanging out of them.? Seán Kavenagh attempted to solve this problem by approaching CIÉ with an offer to buy the field. Another circumstance relevant to occupation was that people living in Moorfield housing estate who used the railway to commute would take a path across the Kavenagh land and through this field to access Clondalkin station. While Seán Kavenagh’s descriptions of the problems in attempting to stop this trespass on his land, where there were similar problems, does not necessarily lead to an inference that the same things were happening on the disputed land, the reality is that there is a straight line between the housing estate and the station going through both fields. In addition, Clarke J examined a series of aerial photographs which have also been produced in evidence before this Court. They show a set of informal pathways which traversed the land. Further, is clear from the sequence of photographs that the level of usage as a casual shortcut is more apparent from the time prior to the purchase of Coolevan and also becomes less when fencing was put up by CIÉ on a short strip near the railway station from 1993 on. Before this Court, the complaint was made that a veterinary surgeon who attended to Dennis Dunne’s horses was not called to give evidence before the High Court. Ultimately, any such decision is a matter for the client in consultation with his solicitor and no appellate court can second-guess why a witness was not called as consultations in aid of litigation are privileged.
19
It may also be commented that further evidence against the adverse possession by Dennis Dunne of the field was provided by the nearby caretaker for CIÉ, who seems to have been, or who was at one stage, a CIÉ employee and whose son gained ready access to the field and simply walked around it. The evidence went so far as to describe local children corralling in horses by using makeshift defences of pallets. If this was an activity encouraged or permitted by Dennis Dunne, depending on the precise circumstances, it might not be fatal to an adverse possession claim. However, there was no evidence that this was with his express approval but, rather, that the balance of the evidence seems suggest that he could do nothing to prevent it. In addition, aerial photographs did not show the building of stabling and while there is a dispute as to what was burnt out in a malicious fire and as to what replaced it, the reality is that some improvised stabling was provided for up to two horses and this may previously have been a pigeon loft. Clarke J held that there had been no fencing off of a particular area or any sufficient demarcation whereby it might be said that – while exclusive occupation had not been taken by Dennis Dunne of the entire field – some portion of it might have been under his sole control. Clarke J held that he built ?a small structure of the top apex of the land? prior to 1993 ?which lasted for approximately one year before it was destroyed by fire? but that all the other structures, of which photographs have been shown to this Court on appeal, post-dated 1993.
20
Clarke J further held that there were very few horses on the land up to that year; ?perhaps or at most, on occasion, four?. On the question of the paths through the field, he held at paragraph 5.9 that the aerial photographs for the period in question:
?seem to show that there were a significant number of informal pathways through the lands with breaks in the boundary consistent only with the fact that the lands were used by local people as a means of gaining access across the lands from the neighbouring housing estate to the area of the station house. I accept Mr. Dunne’s evidence that he engaged from time to time in putting up some fencing but I am not satisfied that significant work was done in that regard prior to 1993. If Mr. Dunne had maintained a strict attitude to building and maintaining significant fencing, then it seems unlikely that the informal pathways to which I have referred could have been in existence. The fact that those pathways seem largely to disappear during the latter 1990s (from the evidence of the same aerial photographs) suggests that significant fencing only occurred at or around that time rather than earlier.
21
The trial judge also made a definite finding of fact, at paragraph 5.10, as between the evidence of Dennis Dunne and those witnesses supporting his case, and the assertion by CIÉ that there had been insufficient occupation of the land up to 1993 and that this had not been exclusive:
There was also conflicting evidence as to the extent that others, particularly local children, kept ponies and horses on the lands, at least during some of the relevant period. There were other lands adjoining the disputed lands which were, at least until more recent times, largely unoccupied but which were progressively brought into use as a scrap yard. Those lands were, on all the evidence, frequently used by local children for keeping horses. I am also satisfied that, on the balance of the evidence, some use was made by such children of the lands in dispute at least up to the late 1980s. It is clear from the aerial photographs that the boundary between the various lands was quite porous up to that time. While Mr. Dunne may well have been the predominant user of the lands at all material times I am not satisfied that he was the exclusive user (that is to say that he had excluded the local children entirely) until the late 1990s.
22
In consequence of a review of the evidence relevant to these findings of primary fact, there is nothing to suggest that an entirely unreasonable analysis was made of the evidence by the trial judge. On the contrary, in some respects a view quite favourable was taken towards Dennis Dunne’s case but, in all the circumstances, even taking his case at its strongest, it was insufficient to establish adverse possession as against CIÉ.
Possession between 1993 and 2006
23
A claim was first made to CIÉ, by letter dated 29th September 2006, from Dennis Dunne and another individual, that they jointly owned the land by means of adverse possession. Shortly thereafter, proceedings were issued in the sole name of Dennis Dunne and the counterclaim by CIÉ followed. If a claim of adverse possession had not succeeded in the 16 year period up to 1993, it was impossible on the facts before the trial judge in the 13 year period that followed. Seán Kavenagh, as a neighbouring land owner, had complained by way of a solicitor’s letter to CIÉ dated 18th June 2001 that the caretaker at the station house had ?permitted a number of horses onto your lands and furthermore the owners of the said horses have now commenced to construct a shared/stable on the lands for the purposes associated with the keeping of these horses.? The gravamen of the complaint was ?the inadequacy of the fencing on your lands which has led to some of these horses being caught up and badly injured on the wire fencing around your property.? While the claim that a stallion had got ?very badly cut in his attempts to make his way? through wire fencing, the issue of whether Dennis Dunne owned the horse or not being irrelevant, the reality is that, shortly following this letter, CIÉ employees went into the field, perhaps fearing incursion by animals onto the railway line, and repaired the fencing. Whether Dennis Dunne was present for this or not, this action was an assertion of ownership by the owner of title to the land. Hence, unless title had been established through the efflux of time up to that point, time had begun to run again thereafter as to any claim of adverse possession. Clarke J referenced this incident in his judgment at para. 5.3 and correctly analysed its effect. In addition, there was also the period of approximately a year and a half from 1993 to 1995 when renovation of Clondalkin railway station was taking place. This involved an incursion onto the land by CIÉ at the southern boundary with the railway tracks, as the trial judge made clear at paragraph 5.2:
It is clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. I am satisfied from the relevant maps and photographs that it must necessarily have been the case that, at that time, at least a portion of the lands which were part of the triangular area must have been occupied and used by CIE for the purposes of the station works. Mr. Dunne accepted in evidence that workers on behalf of CIE were in the field at that time and up to 1995.
24
Clarke J held, at paragraph 5.4, that having ?regard to the very low threshold which, on the authorities, I am required to apply to acts of possession by the paper title owner? the repairing of the fencing, perhaps only at one boundary, the construction of a new footbridge, the extension of the station platform and the replacement of a stone and brick wall with security fencing at the southern end of the property together amounted to sufficient acts ?of possession ? of the lands in question to negative adverse possession at the relevant times.?
25
All of the findings of fact made by the trial judge were supported by evidence and could not be construed as being an unreasonable or perverse analysis. Rather, the run of the evidence was entirely in accordance with Clarke J’s findings.
Result
26
The legal and factual reality is that Dennis Dunne did not make sufficient use of this 3-acre field belonging to CIÉ over an uninterrupted period of 12 years so as to be able to establish adverse possession. For the first 16 years, his use of the land was both sporadic and lacking in exclusivity. Other people were bringing horses onto the field. Additionally, the caretaker for CIÉ, who was occupying the station cottage in Clondalkin, felt it was his right to simply wander around in it as he saw fit. While this might have been explained in the context of the friendship between Dennis Dunne and this gentleman and his family, what could not be explained were clear physical signs – as shown on aerial photographs – of habitual incursion by local residents who used the field as a shortcut to Clondalkin railway station. Other people apart from Dennis Dunne were also using the field. While CIÉ had no particular plans for this land, the recent expansion of Dublin and its commuter belt has seen at least some of the land being adopted in the context of the expansion of the westwards rail system from 2 tracks to 4. The year 1993 is, in that regard, a watershed in the sense that 23 years ago the rail system was already under pressure and this involved CÍE working at the southern end of the field, taking part of it to extend the station platform, building a pedestrian bridge and replacing the relevant boundary with secure fencing. These actions are dated as between 1993 and 1995. While the reason for not then asserting a claim of adverse possession, after alleged possession for 16 years, was that Dennis Dunne felt that ?no one can stop progress?, as he told the Court on this appeal, this failure to assert a claim then could cast considerable doubt as to whether there was ever an intention up to that time to displace the title-holder. What was certainly missing was occupation through sufficient acts of possession to unequivocally indicate that he was taking possession of the land. An owner’s rights remain until such time as title is established by adverse possession through 12 years of use and occupation. That is simply not present in this case. Where the owner asserts rights to property through, as in this case CIÉ did, repairing fencing in 2001 and, earlier in 1993, removing a wall, culling portions of the land and establishing modern fencing to protect a railway, time thereby has ceased to run in favour of the person attempting to establish adverse possession and the clock must be started again.
27
Exclusive possession amounting to occupation of this land was never established on the evidence. The title of CIÉ to the land is, on the other hand, clear. While this result is disappointing for Dennis Dunne, he and his family can console themselves that the land which this Court is now firmly of the view that they do not own, was treated with respect by them and that many gained enjoyment from the horses and other animals which they owned and sometimes kept there.
Judgment of Ms. Justice Laffoy delivered on the 28th day of July, 2016
Focus of judgment
1
In a report published by the Law Reform Commission in 1989 entitled ? Report on Land Law and Conveyancing Law: (1) General Proposals?, LRC 30 – 1989 (Dublin, 1989) it was stated (at para. 52):
?The doctrine of adverse possession has been said to be one of the most controversial features of modern land law. The modern doctrine of adverse possession is provided for in the Statute of Limitations 1957.?
In the report certain amendments to the Statute of Limitations 1957 (the Act of 1957) were proposed. The operation of the doctrine of adverse possession was reviewed again by the Law Reform Commission thirteen years later and the resultant report entitled ? Report on Title by Adverse Possession of Land?, LRC 67 – 2002 (Dublin, 2002) recommended further changes to be implemented by statute. Three years later in the report entitled ? Reform and Modernisation of Land Law and Conveyancing Law?, LRC 74 – 2005 (Dublin, 2005), the changes which had been recommended in 1989 and 2002 were incorporated in the draft Land and Conveyancing Bill published in the report. In due course, most of the provisions in the draft Bill were enacted into law in the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), which came into effect on 1st December, 2009. However, the provisions of the draft Bill which had been proposed in 1989 and in 2002 to implement the recommendations made in relation to limitations of actions and adverse possession were not included in the Act of 2009 and since then have not been enacted into law. Accordingly, the legal principles which apply to the issues which arise on this appeal have not changed since the judgment of the High Court in these proceedings was delivered on 7th September, 2007 by Clarke J. (the trial judge) ( [2007] IEHC 314).
2
Around the time the trial judge delivered judgment, almost nine years ago, there was a considerable amount of academic and practitioner comment on the then state of the law on adverse possession in this jurisdiction, to some extent, it would seem, fuelled by concerns arising from proceedings in the European Court of Human Rights in J.A. Pye (Oxford) Limited v. United Kingdom. The judgment in that case was given by the Grand Chamber on 30th August, 2007 ( (2008) 46 E.H.R.R. 45). The Grand Chamber ruled that the doctrine of adverse possession as then applied in the United Kingdom did not infringe the European Convention on Human Rights.
3
While the appellant on the appeal, who was the plaintiff in the High Court proceedings, was legally represented by solicitors and counsel in the proceedings in the High Court, he filed the notice of appeal against the judgment and order of the High Court in person and he appeared in person on the hearing of the appeal. The appellant filed written submissions in this Court on 29th January, 2016. Having regard to the format and content of those submissions, it is reasonable to assume that the appellant did not have the benefit of professional legal advice in preparing them. One element of the written submissions has been interpreted by counsel for the respondents (sometimes hereafter collectively referred to as CIÉ) in the written submissions filed on behalf of the respondents on 16th March, 2016 as possibly being a challenge to the legal principles applied by the trial judge in his judgment. It is that matter, which will be outlined later, which is the focus of this judgment.
4
As regards the other issues which arise on this appeal, I am in agreement with the judgment to be delivered by Charleton J. I am also grateful to be in a position to be able to rely on his outline of the factual background and the legal and factual context underlying all of the issues in the case, so that this judgment should be read in the light of that outline.
5
To put in context the matter on which the judgment focuses, I propose first outlining the legal principles applied by the trial judge and summarising the manner in which he applied them to the facts.
Legal principles and their application to the facts
6
In section 4 of his judgment the trial judge outlined the relevant legal principles and in section 5 he applied the law to the facts of the case.
7
The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the following terms:
?(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (? animus possidendi?).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.?
The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at para. 4.5) as follows:
?It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.?
In my view, that statement is indisputable.
8
Having addressed a controversy arising from a conflict between two authorities in this jurisdiction dating from the 1980s, to which I will return, Clarke J. stated (at para. 4.9) that it was common case on the proceedings before him that, in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. He then quoted the following passage from the judgment of Slade J. in Powell v. McFarlane (at p. 472), which was addressing the concept of animus possidendi. Slade J. stated:
?An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.?
Although not quoted by the trial judge, Slade J. went on to state that such position is quite different from a case where the question is whether a trespasser has acquired possession.
9
Substituting the expression ?minimal acts? for ?slightest acts? used by Slade J., the trial judge continued (at para. 4.8):
?It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.?
The trial judge then identified the relevance of the foregoing as arising from the respondents’ contention that a number of actions taken by CIÉ amounted to acts of possession. He identified his task as assessing whether those acts did amount to possession having regard to the low threshold identified in the authorities, so that, if they did, they would ?prevent time running during the period in which they occurred?, that is to say, running in favour of the appellant and against the respondents.
10
In the next paragraph (para. 4.9), the trial judge made the following observation:
?On the other hand it is common case that once title is extinguished it cannot be reactivated or reinstated by means of a minimal act of possession.?
However, later in his judgment, the trial judge concluded that the title of the respondents was not extinguished, so that statement, on the facts of the case, is theoretical.
11
Returning to the controversy referred to earlier, the trial judge stated (at para. 4.6) that it had been suggested that there were two lines of authority in relation to adverse possession in this jurisdiction: one derived from the judgment of Egan J. in the High Court in Cork Corporation v. Lynch, which was delivered in the High Court on 26th July, 1985 and was subsequently reported as [1995] 2 I.L.R.M. 598; and the other derived from the judgment of Barron J. in the High Court in Durack Manufacturing Limited v. Considine [1987] I.R. 677. In a nutshell, the distinction between the two authorities related to the approach to be adopted to a situation where the legal owner was making no use of the lands when the person claiming adverse possession entered the lands but had future plans for the use of the lands. The trial judge stated (at para. 4.7) that he preferred the reasoning of Barron J. –
in which he accepted that factors such as the future intended use of the property by the party with paper title might be a factor in determining whether the necessary intention was present in the party claiming adverse possession but was not otherwise a matter properly taken into account.?
While he elaborated on his understanding of the reasoning of Barron J., he concluded his observations on the controversy by stating (at para. 4.7):
?In fairness, counsel for CIE agreed that, on the facts of this case, there was no evidence that CIE had, for much of the relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch in any event.?
That being the case, as is pointed out by Charleton J. in his judgment (at para. 12), the controversial issue does not arise for decision on this appeal.
12
The final legal principle considered by the trial judge was addressed by reference to the passage from the judgment of Black J. in Convey v. Regan [1952] I.R. 56, which, as the trial judge noted, was followed by the Chancery Division of the English High Court in Powell v. McFarlane (at p. 479), and which is quoted by Charleton J. in his judgment at para. 16. The trial judge went on to state (at para. 4.11):
?I am, therefore, satisfied that, where the extent of use of lands in respect of which adverse possession is claimed are consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it is appropriate to infer the lesser rather than the greater entitlement.?
That principle, in my view, is well established and cannot be disputed.
13
Turning to the application of the legal principles to the facts before him, the trial judge first considered what he referred to as the ?alleged acts of possession on the part of CIE? and he found (at para. 5.4) that they amounted ?to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times?. He expressly did so having regard to what he described as ?the very low threshold? which, on the authorities, he was required to apply to acts of possession by the paper title owner. He followed that finding by the following passage (at para. 5.5), which is quoted in the appellant’s written submissions:
?I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times.?
That passage is introduced in the appellant’s written submissions by the words:
?Clarke J. seemed to state that these acts were still ?minimal?
14
Following on from what is quoted in the preceding paragraph, the trial judge concluded (at para. 5.5) that no adverse possession claim could be maintained in respect of any period subsequent in time to in or about 1993 when the acts, which he was satisfied amounted to a sufficient act of possession on the part of CIÉ, commenced. The trial judge then considered whether the appellant had established adverse possession sufficient to have extinguished CIÉ’s title prior to 1993. On his analysis of the evidence which was before him, he concluded (at para. 5.11) that he was not satisfied that that the nature and type of occupation exercised by the appellant in the period up to 1993 was sufficient to establish adverse possession. It was on that basis that he found that the appellant’s claim must fail.
15
It is against that background that I will now consider the matter raised in the appellant’s written submissions which is the focus of this judgment and the respondents’ counsel response to it.
Matter raised by appellant and respondents’ response
16
Once again, it is important to emphasise that the appellant did not have legal representation on the appeal. In the written submissions filed in this Court, he addressed certain matters under the heading ?Title?, which related to the respondents’ paper title, and under the heading ?Adverse Possession?. He then set out certain provisions of the Railway Act 1844. Next, he quoted the passage from the judgment of the trial judge at para. 5.5 which I have quoted above and introduced it in the manner indicated earlier, by suggesting that the trial judge seemed to state that the acts of the respondents were still ?minimal?. Thereafter the following was stated:
?In conclusion, Clarke J.’s judgment represents on the one hand a most welcome clarification of the law on establishing adverse possession. On the other hand, the test for ?ceasing adverse possession?, if the author’s view is correct, would appear to be a novel formulation hitherto unexplored. There is a strong legal foundation for the approach, because of the presumption that the paper owner intends to take possession. However, should the same test be applied for re-possession, once possession has been lost or abandoned? Or is it right that minimal or coincidental acts that look like possession or an intention to possess are enough to stop time running, even though an intention to re-possess might not exist?
With the threshold for re-possession so low, and the test so favourable to paper-owners, it is difficult to see how a possessor can win, short of the paper-owner being unaware of his title, or being abroad, or having absolutely no interest over the land. Perhaps, however, this is the correct scope for the doctrine. Perhaps if this had been the law in the U.K., the human rights dimension would never have been in question.?
On reading that statement, it was reasonable to surmise that, in making it, the appellant was quoting observations by a legal practitioner or an academic on the judgment of the trial judge. Although the source was not identified by the appellant in the written submissions, fortunately it has been possible to identify the source as an article by Nicholas McNicholas, B.L. entitled ? Recent Developments in Adverse Possession? published in the Bar Review (Volume 12, Issue 6, December 2007).
17
In addressing the appellant’s submission on that point, counsel for the respondents noted that the trial judge had stated in his judgment (at para. 3.5):
?In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should apply.?
Nonetheless, counsel for the respondents addressed the references in the appellant’s submission to ?ceasing adverse possession? and to ?a novel formulation? allegedly applied by the trial judge and to the questions raised in relation to the test to be applied ?for re-possession, once possession has been lost or abandoned?. Counsel for the respondents submitted that the appellant’s submission is misconceived, pointing out that legal possession is not lost or abandoned until a person claiming to be in adverse possession can demonstrate twelve years of exclusive possession with the necessary intent and, until that point is reached, a person claiming to be in adverse possession remains a trespasser. Further, it was submitted that the question of ?intention to re-possess? by the owner does not arise, ?as such person is already in legal possession insofar as they have title to the lands?.
18
From the perspective of this Court on the appeal, there is a proper practical approach to the questions raised in the appellant’s submission in relation to the test to be applied ?for re-possession, once possession has been lost or abandoned?. It is that, as no issue arises on the appeal as to the test to be applied for re-possession, because of the findings of the trial judge, with which I agree, that the appellant had not established adverse possession by 1993 and that from 1993 onwards the actions of the respondents were sufficient to negative adverse possession. Accordingly, it is unnecessary for this Court to comment on the relevant test.
19
It is only fair to record that counsel for the respondents, reading the thrust of the appellant’s submission as being to challenge the statement of the trial judge that certain minimal acts of the legal owner are enough to stop time running, submitted that this is not a novel formulation and that it is well supported by existing authority, giving as an example, inter alia, the reference to ?slightest acts? in the judgment of Slade J. in Powell v. McFarlane. Reference was also made to the fact that the judgment of the trial judge has been applied or cited with approval in subsequent High Court judgments in this jurisdiction, referring, in particular, to the judgment of Hogan J. in Dooley v. Flaherty [2014] IEHC 528. It was also pointed out that it was also cited in the judgment of Horner J. in the Chancery Division of the Northern Ireland High Court in McCann v. McCann [2013] N I Ch. 7, in which Horner J. quoted the passage at para. 4.9 quoted earlier (at para. 9).
20
Although the trial judge undoubtedly concluded that the respondents had only to meet a very low threshold to establish continued possession and that the acts of possession relied on by the respondents fell into the ?minimal? class, the crucial factor is the nature of such acts. Those acts were of a different nature to the acts which in Feehan v. Leamy [2001] IEHC 23, a decision of the High Court (Finnegan J.) which has been controversial on this point, were found to be adequate to stop the limitation period running. There the acts of possession merely involved the legal owner visiting the land in issue on a number of occasions each year, and, having parked his car, looking over the hedge or the gate into the lands in issue. The acts of the respondents in this case, on the other hand, involved, in the course of the renovation and modernisation of Clondalkin railway station, incorporating a portion of the land in dispute in the railway station and building new fences and the like, to the extent that it was accepted by the appellant in evidence that the workers on behalf of the respondents were on the disputed land for a year and a half from 1993 to 1995. Subsequently, a contractor retained by the respondents entered on the disputed land in 2001 to repair fences in response to a complaint from an adjoining owner.
21
It is not beyond the bounds of possibility that in some future case a different view may be taken of the effect of the legal owner of land merely gazing over a wall or fence on to the land several times in a year and that such action may not be found to be sufficient to prevent a trespasser on the land being in adverse possession. However, it is not for this Court to speculate on whether that may happen, nor whether there may be other types of action on the part of a legal owner of a more minimalist nature than the actions by the respondents in this case, which could give rise to a similar finding. For present purposes, the determining feature is that the finding of the trial judge on the application of the relevant legal principle to the actions of the respondents from 1993 onwards is a correct finding.
Outcome of the appeal
22
The appellant has not established that the trial judge did not apply correct legal principles to the resolution of his claim against the respondents that he has acquired title by adverse possession to the lands in dispute, nor has he established that the application by the trial judge of the relevant legal principles to the factual situation was erroneous. Accordingly, the appropriate order is an order dismissing the appeal.
23
Having said that, although none of the aspects of the law which have given rise to controversy in the past have had a bearing on the outcome of this appeal, it must be acknowledged that the appeal illustrates that the law on the doctrine of adverse possession is probably still as controversial as it was in 1989. There would seem to be a need for a review of the recommendations made by the Law Reform Commission in 1989, 2002 and 2005 with a view to bringing clarity to the law in this area.
Walsh v Property Registration Authority
[2016] IECA 34
Court: Court of Appeal (Ireland)
Judge: Mr. Justice Gerard Hogan
JUDGMENT of Mr. Justice Gerard Hogan delivered the 17th day of February 2016
1
This is an appeal by the Property Registration Authority ( the Authority ) against an order for costs made in judicial review proceedings in the High Court by Hedigan J. in an ex tempore ruling delivered on 10th February 2014. The Authority contends that as those proceedings concerned the exercise by it of its land registration functions under s. 49 of the Registration of Title Act 1964 ( the 1964 Act ) it would be inappropriate, by reason of the quasi-judicial nature of those statutory functions, to have any costs order made against in circumstances where it had taken no active step in those proceedings. The Authority accordingly argued that it enjoyed an effective immunity from costs in uncontested cases of this kind and it invited the Court to allow this appeal on that particular and specific basis.
2
At the conclusion of the hearing of the appeal on 22nd April 2015 the Court indicated that it was dismissing this appeal and that it would give its reasons at a later date. The purpose of this judgment is to give the reasons for that decision.
3
It should be noted that the Authority originally had appealed to the Supreme Court against the making of this costs order. By order of the Chief Justice made on 28th October 2004 (made with the concurrence of the other members of the Supreme Court), this appeal was transferred to this Court pursuant to Article 64 of the Constitution.
4
The background to this appeal is quite straightforward. The notice party, Coillte Teo., applied to the Property Registration Authority ( the Authority ) pursuant to s. 49 of the Registration of Title Act 1964 ( the 1964 Act ) for registration of certain lands bearing Folio No. 33105 in the Register of Freeholders for Co. Mayo on the basis of adverse possession. The Authority ultimately acceded to that application and on 13th March 2013 it registered Coillte as the owner of the lands.
5
As it happens, Mr. Walsh has been the registered owner of these lands since 1986. On 23rd January 2013 the Authority wrote to him advising him of this application by Coillte and warned him that Coillte would be registered as owner of the lands unless good cause to the contrary was shown by him in writing within 21 days of receipt of the letter. On 30th January 2013 Mr. Walsh’s solicitors, Gilvarry & Associates, wrote objecting to this course of action, stating their client was the full registered owner of the lands which he purchased in 1984 and that he denied any entitlement to Coillte over the lands. Gilvarry & Associates further requested a copy of Coillte’s affidavit so that a fully and detailed response could be given by their client.
6
The Authority wrote to Gilvarry & Associates on 5th February 2013 enclosing a copy of Coillte’s affidavit which had set out the grounds by which it sought registration by reason of its adverse possession of the lands. The Authority requested that if Mr. Walsh was to maintain his objection to Coillte’s application that a replying affidavit setting out fully the legal grounds of the objection would be sent to the Authority within one month from receipt of this letter.
7
Gilvarry & Associates replied on 15th April 2013 to confirm that Mr. Walsh’s affidavit would be supplied by the end of that week. They further requested confirmation that no decision would be made by the Authority in advance of receipt of this affidavit.
8
As it happens, however, and unbeknownst at the time to Mr. Walsh and his solicitor, the Authority had already proceeded to register Coillte as the registered owner on 13th March 2013. The Authority had apparently taken the view that, as no replying affidavit had been received by Mr. Walsh within the time it stipulated in the letter of 5th February 2013, it could – and should – proceed to register Coillte as the full owner.
9
Mr. Walsh was later dismayed to learn subsequently that the registration had proceeded without reference to him. Gilvarry & Associates then wrote to the Authority on 19th April 2013, objecting in forthright terms to what had happened:
As you will be aware, our client was objecting to the application and we had requested a full copy of the application form from you. We received a partial copy of the application being the affidavit of the applicant, but did not receive any supporting documentation to include maps, which it clearly referred to in the schedule of this affidavit.
Our client is extremely distressed as this application now appears to have been completed without reference to him on 13th March 2013. Our client was neither informed over the pending completion nor of the actual completion of the application. Similarly, this office was never informed. While it is clear from your letter of 5th February 2013 that you gave one month for a reply to be submitted, you never stated that there was a prospect that the application could potentially proceed without reference to our client. Surely a final warning would have been appropriate whereby you warned our client that the application was going to go ahead and would be unsuccessful unless he responded within a further specified period of time. This was not done and this is grossly unfair.
Our client lives forty miles away from this office in a remote rural area. We prepared the basis of his objection and was in the process of finalising his affidavit of objection and we had arranged to meet him in our sub office in Killala next week.
Our client is extremely stressed at what has transpired and we are indeed shocked that the PRA would proceed with a contentious application in full knowledge that the registered owner denied absolutely Coillte’s entitlement to the land. In this regard we refer you to a copy of our letter of 30th January 2013
Quite frankly, we are astonished that you would proceed to complete an application whereby you are aware that the registered owner was legally represented and you were aware he denied the applicant’s entitlement to the lands. In fact, our client is in full and exclusive possession of these lands and has been since 1984. The fact that neither our client nor this offer was notified f completion of registration is also very disturbing.
10
On 25th April 2013 Gilvarry & Associates wrote another letter to the Authority warning that judicial review proceedings were imminent and that such proceedings would issue in the event that the registration of Coillte under s. 49 of the 1964 Act was not vacated. The letter writer stated expressly that the object of the correspondence was to ensure that the State body was not put to the expense of meeting Mr. Walsh’s costs in judicial review proceedings and to demonstrate that an opportunity was given to you to rectify the matter prior to us having to make application for judicial review.
11
Gilvarry & Associates also wrote another letter on 25th April 2013 addressing the merits of the matter. The letter writer contended that Mr. Walsh had specifically barred Coillte from entering his property; that Coillte employees had been warned off from entering the property and that Mr. Walsh had himself fenced off the property.
12
The Authority responded to Gilvarry & Associates on 29th April 2013 stating in effect that because the applicant had not shown good cause in opposition to Coillte’s application within the time specified in the letter of February 5th, 2013, it had proceeded to deal with Coillte’s application. The Authority also noted that no application for an extension of time had ever been made on behalf of Mr. Walsh.
13
On 17th June 2013 the High Court granted Mr. Walsh leave to commence judicial review proceedings quashing the making of the s. 49 order. The Authority duly entered an appearance in those proceedings, but it ultimately did not oppose the application for judicial review. On 19th November 2013 the High Court made an order by consent quashing the registration of Coillte as owner of the lands in question.
14
At that point Mr. Walsh applied for his costs as against the Authority. Having heard argument on the point, Hedigan J. held that the applicant was entitled to his costs of the judicial review proceedings as against the Authority. The question now before this Court is whether Hedigan J. was correct in making that order.
15
I should pause here to record that Coillte took no part in the judicial review proceedings or, for that matter, in this appeal. Accordingly, the sole issue before the Court is instead whether the Authority enjoys a form of quasi-immunity from costs in these circumstances by reason of the fact that it was itself acting in a quasi-judicial capacity.
16
The Authority relies in this context on the jurisprudence that holds that it is inappropriate to make an order for costs against a judge of the District Court or the Circuit Court in judicial review proceedings who takes no part in such proceedings. There is, of course, established authority that persons holding judicial office should not, save, perhaps, in exceptional cases, be liable in costs: see, e.g., McIlwraith v. Fawsitt [1990] 1 I.R. 343, O’Connor v. Carroll [1999] 2 I.R. 160 and O’F v. O’Donnell [2009] IEHC 142, [2012] 3 I.R. 483.
17
The fundamental basis for this rule so far as individual judges are concerned is, of course, to protect the independent exercise of the judicial power as envisaged by Article 34 and Article 35 of the Constitution. If judges could be made personally liable for costs, then, of course, as O Néill J. pointed out in ( O’F. v. O’Donnell [2012] 3 I.R. 483, 511); a judiciary could not function if it were exposed to that kind of risk. Personal immunity from costs – save, possibly, in quite exceptional cases where the impugned judicial order was made mala fide– is thus a necessary feature of judicial independence. This line of authority which protects individual judicial personages is, accordingly, not at issue in the course of this appeal.
18
The question which does arise, therefore, is a different one, namely, whether the Authority can invoke a similar immunity on the facts of this case. While the Authority consented to the making of an order of certiorari quashing the registration and did not contest these judicial review proceedings, it did so presumably on the basis that it could not stand over the fairness of the procedures it had actually adopted in this case. In truth, therefore, the decision came to be quashed because of a failure on the part of the Authority to abide by basic fairness of procedures in respect of a matter fundamentally concerning the applicant’s land ownership. In so consenting to the making of the order of certiorari, the Authority has effectively acknowledged that it should have given Mr. Walsh a more extended opportunity of making a submission or, at the very least, explicitly warning him of the consequences of failing to submit the appropriate affidavit within the one month period stipulated in correspondence.
19
It is accordingly clear the Authority did not, in fact, exercise any power of adjudication in the present case as between the rival claims of both Mr. Walsh and Coillte. In these circumstances the argument that the Authority should therefore enjoy some sort of quasi-immunity from costs because it might in other circumstances have been exercising quasi-judicial powers of adjudication in respect of disputes concerning land ownership simply evaporates. No principled basis for such an immunity can be advanced in a case of this kind. Indeed, it would be manifestly unfair if an entirely innocent private citizen such as Mr. Walsh who was simply protecting what he contends are his own legitimate rights of ownership in the lands should be disadvantaged in terms of costs in a case of this kind. This is especially so given that the Authority were expressly warned by Gilvarry & Associates that the applicant would be seeking his costs if the Authority did not vacate the registration order prior to the commencement of these proceedings.
20
In these circumstances, it is unnecessary for this Court to examine what the position might have been had it concluded that the Authority was indeed exercising quasi-judicial or adjudicatory functions in the present case. It is true there is recent authority to the effect that statutory bodies discharging adjudicatory functions may enjoy a de facto immunity from costs where the deciding body in question takes no active part in the proceedings in which the validity of its decision has been challenged: see, e.g., the decision of Dunne J. in Casey v. Private Security Appeals Board [2009] IEHC 547 and the subsequent decision of my own (delivered as a judge of the High Court). in Hussein v. Labour Court (No.2) [2012] IEHC 599 which followed that decision, albeit with reservations.
21
It must nevertheless be said that the case for an institutional immunity in respect of the exercise of quasi-judicial powers is less clear-cut and obvious than in the case of a personal immunity from costs for persons discharging judicial powers. As I observed in Hussein (No.2), if there were indeed such an institutional immunity on the part of administrative bodies exercising adjudicatory powers of this kind, it would represent a major change from long-established practice and tradition in relation to the award of costs against a range of statutory bodies. As such a change would have far-reaching effects and consequences, it might be thought that the case for such an immunity would be require to be convincingly established.
22
Having regard to the circumstances of the present appeal it is, however, unnecessary to consider this wider issue any further. The Authority did not in fact purport to exercise any powers of adjudication in the present case and the registration order which it had made in favour of Coillte was set aside by reason of the (tacitly admitted) breach of fair procedures on the part of the Authority. But orders of this kind made by administrative bodies such as the Authority are routinely quashed on this and similar grounds and it has never been suggested heretofore that the administrative body in question should enjoy some form of quasi-immunity from an order for costs where it had never exercised a power of adjudication in the first place.
Conclusions
23
It was for these reasons, therefore, that the Court concluded that Hedigan J. was correct when he concluded that, at least so far as these proceedings were concerned, the Authority was exercising purely routine administrative functions which did not involve any adjudication upon the respective rights of the parties. In these circumstances the question of any quasi-immunity from costs in respect of the discharge of any quasi-judicial or adjudicatory functions simply did not arise.
24
It follows, therefore, that I consider Hedigan J. was entirely correct to award the applicant his costs as against the Authority. It was for these reasons, therefore, that the Authority’s appeal against the making of the costs order was dismissed.