General Principles
Cases
Seamus Durack Manufacturing Ltd v Considine
[1987] IR 677,
Judge: Mr. Justice Barron
Barron J. delivered on the 27th day of May 1987.
The Defendant is a farmer who at all material times had a holding of 12 acres adjoining the field in dispute. In or about the year 1950, the Defendant’s sister purchased the adjoining 26 acres including this field. The Defendant leased this property from her until the year 1971. In that year, she sold 4½ acres of her holding immediately adjoining the Defendant’s holding. This 4½ acres comprised two fields, upon the smaller of which being the field nearest to the Defendant’s holding there were two sheds. These sheds were used by the Defendant to bottle milk which he sold in the town.
The fields were bought with the intention of building two factory premises on them. A factory was built on the larger field, but nothing was ever built on the smaller one. The Defendant’s sister reserved to herself for her life the right to use the two sheds on the smaller of the two fields. This she did for the benefit of her brother. Following the sale, the Defendant used the sheds and continued to use the smaller field as before. He also put up a post and wire fence over portion of the boundary between the two fields where such was necessary. He appears to have done this to prevent his cattle from straying onto the factory premises.
The presence of the Defendant in this field was known to the purchaser in 1971 before the completion of the purchase. There is a dispute as to whether or not the Defendant left the property before completion. Whether he did or not, I am satisfied that as and from the time he erected the fence to which I have referred, which at the latest must have been sometime in 1972, the field has been used by him exclusively for the purpose of grazing his cattle.
Notwithstanding this finding, the Plaintiff submits that such possession is not adverse possession for the purpose of the Statute of Limitations. He submits that possession cannot be adverse unless it is inconsistent with the purpose for which the owner of the land intended to use it. He relies upon Leigh .v. Jack 5 Ex. D.264. In that case the Defendant was entitled to two plots of ground on either side of an intended street under two conveyances made by the Plaintiff’s predecessors in title. No part of the intended street was conveyed by either conveyance and the area so reserved was never dedicated to the public as a highway. The Defendant used this land as a storage area for scrap metal in such a way as to make it impassable save to persons on foot. Having done so for the statutory period he claimed a statutory title to it. This claim was rejected by the Court on the ground that the Plaintiff and his predecessors in title had never been dispossessed. Passages from the judgments indicate the reasons for the decision. At page 271 Cockburn L.C. said:
“I do not think that any of the defendant’s acts were done with the view of defeating the purpose of the parties to the conveyances; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another’s right. The defendant simply used the land until the time should come for carrying out the object originally contemplated. If a man does not use his land, either by himself or by some person claiming through him, he does not necessarily discontinue possession of it. I think that the title of the plaintiff is not barred by the Statute of Limitations.”
Bramwell L.J. said at page 273:
“I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes.”
Cotton L.J. said at page 274:
“In deciding whether there has been a discontinuance of possession the nature of the property must be looked at. I am of opinion that there can be no discontinuance by absence of use and enjoyment where the land is not capable of use and enjoyment. In the present case the property sought to be recovered is a piece of land intended to be dedicated to the public as a road.”
Counsel for the Plaintiff relies upon the literal meaning of that part of the passage from the judgment of Bramwell L.J. where he says:
“Acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it.”
He submits that once an intention can be established to use the land for a particular purpose, a statutory title cannot be obtained unless the acts relied upon are such that the intended purpose can no longer be fulfilled. He submits that the intention of the Plaintiff’s predecessors in title was to build a factory and that the grazing of cattle for the past 14 years is no bar to such a development.
In Leigh .v. Jack, it was common case that the land concerned was intended for a street and that until such use was made of it, it would remain idle. The Judges were indicating that in such circumstances there need not necessarily be any overt acts of user on the part of the owner until the laying out of the intended road, but that meanwhile the owner retained possession. If the intended user had been to build upon or to cultivate the land, the passage cited from the judgment of Bramwell L.J. suggests that the result might have been otherwise. In my view also it is a significant feature of this case that the Defendant was aware from the express words of the deeds of conveyance of his holdings that the land concerned was intended to be used as a road in the future and was not likely to be used for any purpose in the meantime.
In Littledale .v Liverpool College 1901 Ch.19, the Plaintiff claimed a possessory title to a strip of ground between two fields of which along with the strip the Defendants were the owners. The Plaintiff had a right-of-way over this strip from a public road to one of his fields. He had fenced off this strip and had grazed his cattle on it. The Court found as a fact that he did so not with the intention of asserting a right to the soil but merely to assert his right to a right-of-way. Accordingly they found that he had not the necessary animus possidendi and dismissed his claim.
This case was referred to by Black J. in Convey .v. Regan, 1952 IR 56. In that case, the Defendant claimed a statutory title to a bog. His claim failed on the basis that Black J. found that the acts upon which he relied more properly established a right to a profit a prendre rather than to the soil. Dealing with the question whether or not the cutting and taking of turf from the bog was a dispossession of the owner, Black J. said at page 58:
“There are, however, certain points on which the law is fairly clear. When one claims a possessory title for whatever period of time may be necessary it is not enough to show mere non-user by the owner of his property if it be, say, a mine or a quarry. This is illustrated by such cases as McDonnell .v. McKinty, approved of in Smith .v. Lloyd. I think it is equally insufficient where, as here, the property is a patch of bog, the only practical use of which is the cutting of turf, which is a seasonal operation. There must be dispossession of the owner by acts inconsistent with his enjoyment of the soil for the purpose for which he intended to use it – in this case the purpose of cutting turf. Any other use this small patch of ground may have had was, in my view, negligible: Leigh .v. Jack.”
McDonnell .v. McKinty and Smith .v. Lloyd are not strictly in point. In both cases there were conveyances under which the estate in the soil itself was granted to one party and the estate in the minerals under the soil were granted to another. In each case the Court decided that mere non-user by the owners of the mineral rights did not deprive them of that estate. There was no suggestion in either case that the owner of the soil purported to work the minerals.
Although Black J. refers to Leigh .v. Jack and refers to the need for a dispossession of the owner by acts inconsistent with his enjoyment of the soil for the purpose for which he intended to use it, his decision is not based upon non-interference with such purpose but upon the absence of animus possidendi in relation to the soil.
Leigh .v. Jack was followed by Egan J. in Cork Corporation .v. Lynch an unreported judgment delivered on the 26th July 1985. In that case the land concerned had been acquired by the Plaintiff for the purpose of a new north ringroad for the City of Cork. It was not used by the Plaintiff thereafter, but taken by the Defendant for use in connection with his premises which adjoined the land, and so used by him for almost 30 years before action brought. It was held, following Leigh .v. Jack,that the use made by the Defendant of the land was not inconsistent with the purpose for which the Plaintiff required the land and that there was no adverse possession. The defence accordingly failed.
In that case Egan J. cited with approval a passage from the Judgment of Lord Denning in Wallis’s Cayton Bay Holiday Camp Ltd .v. Shell-Mex and BP Ltd 1974 3 All ER 575 as follows:
“Where the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because more other person enters on it and uses it for some temporary purpose, like stacking materials.”
In this latter case the route of a proposed new road can through a farm cutting off a strip of land between the proposed new road and the existing road. The local authority purchased the route of the new road and the Defendant’s predecessors in title purchased the strip which was to be cut off when the new road was built. In practice no fences were put up and the farm continued to be farmed as theretofore including the site of the new road and the strip. About a year before the expiry of the statutory period the strip ceased to be farmed but was used by the Plaintiffs as a visual frontage amenity for its holiday camp. It was held that the acts of user were trivial in comparison with the intended use of the strip and that accordingly the statutory title had not been acquired.
Here also there was a special purpose for which the land was required and which was known to the parties. Where, however, in the absence of such a purpose the owner has no present use for his land, this will not prevent him from being dispossessed: Treloar .v. Nute 1977 1 All E.R. 230. Nevertheless, in that case, the Court accepted that the literal application on the relevant statutory provisions had been adapted by the English Court of Appeal to meet one special type of case. The case referred to being one where the owner of a piece of land retains it with a view to its utilisation for some specific purpose in the future and that meanwhile some other person has physical possession of it.
The decisions in Wallis’s Cayton Bay Holiday Camp Limited .v. Shell-Mex and BP Limited and Trelaor .v. Nute were both considered by Kenny J. in Murphy .v. Murphy 1980 I.R. 183. In that case he expressed the view that in each of those cases the question was whether the person in possession of lands had been in adverse possession, which he regarded as ultimately being a question of fact.
There is no support in that case for the proposition for which the Plaintiff contends, namely, that to defeat the title of a former owner acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it. In my view the proposition as stated is too broad. If it were to be accepted literally, then it seems to me that it would follow that in any case where land has been used by other than the owner for the statutory period then his right is dependent not upon the statute but upon whether or not the failure to use the land was occasioned by the desire of the owner to hold it for a particular time or purpose or until a particular hope could be realised.
There seems to be no reason in principle why the relevant provisions of the Statute of Limitations 1957 should be adapted to allow for the case of an owner who stands by and allows another to use his land merely because he wishes to use it for a specific purpose in the future. Where an owner has such a specific purpose in mind which is known to that other using his land then it may be reasonable to infer that the intention of that other is not to acquire a title to the soil but to take a benefit from it rather than allow it to lie idle. Those were the facts in Leigh .v. Jack. As Kenny J. said in Murphy .v. Murphy each case must be decided on its own facts. Adverse possession depends upon the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.
Taking this view of the submission made on behalf of the Plaintiff I can find nothing in the facts to show that the Defendant intended to use the land upon a temporary basis or merely to prevent it lying idle until the owner was in a position to use it for a purpose of which he was aware. He made full use of the land to graze his cattle. That supports the necessary adverse possession. This does not extend to the sheds since until his sister died three years ago he used these with her permission.
Jennings v Coughlan
[1927] 61 I.L.T.R 122
Sullivan, P.
The Circuit Judge held that the appellant was not entitled to succeed either in law or equity. I am of opinion that the Circuit Judge was right. Peakin v. Peakin has a strong bearing on the case. The appellant had been allowed the use of the field. When her brother bought the lands he allowed her to use it “the same as always.” That is not the kind of occupation which would be protected under the Statute of Limitations. She was a guest, and owner might have maintained an action against her at any time.
Hanna, J.,
I concur.
Tracey Enterprises Macadam Ltd v Drury
[2006] IEHC 381
Laffoy J.
As I have already found, Dundrum acquired title to the disputed plot by virtue of the 1990 Conveyance. It remains to consider whether that title has been extinguished by the defendant having acquired title by adverse possession.
Although the plaintiff has not sought an order for possession, in essence, this action concerns entitlement to possession of the disputed plot which goes hand in hand with title and ownership. The defendant’s defence is that he has acquired a possessory title to the disputed plot. In determining whether he has, the provisions of the Statute of Limitations, 1957 (the Act of 1957) come in to play. Section 13(2) provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of twelve years from the date on which the right of action accrued to that person. Section 18(1) deals with when the right of action to recover land accrues and provides that no right of action to recover land shall be deemed to accrue unless the land is in the adverse possession of some person in whose favour the period of limitation can run. Section 24 provides that at the expiration of the period fixed for a person to bring an action to recover land the title of that person to the land shall be extinguished.
The meaning of “adverse possession” in s. 18 of the Act of 1957 was explained by the Supreme Court inMurphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
“Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words ‘adverse possession’ were not used … . The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In section 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 a servant or caretaker or a beneficiary under a trust …”
Later in his judgment Kenny J. referred to the decisions of the English Court of Appeal inWallis’s Holiday Camp v. Shell-Mex [1975] Q.B. 94 and Treloar v. Nute [1976] 1 W.L.R. 1295, commenting that in each of those cases the question was whether the person in possession of lands had been in adverse possession. He then observed that this is ultimately a question of fact.
InSeamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 Barron J., having referred to the judgment of Kenny J. in Murphy v. Murphy, stated that each case must be decided on its own facts and continued (at p. 683):
“Adverse possession depends on the existence ofanimus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”
In relation to the type of acts of use and enjoyment which will amount to possession, the following passage from the judgment of Lord O’Hagan inThe Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 has been cited frequently by this Court with approval in recent years (for example, by Costello J. at first instance in Murphy v. Murphy, at p. 193, and by Gilligan J. in Keelgrove Properties Limited v. Shelbourne Development Limited in his unreported judgment delivered on 8th July, 2005):
“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.”
The practical application of the principle stated in that quotation may be observed inDoyle v. O’Neill (the High Court, Unreported, 13th January, 1995) in which O’Hanlon J. stated:
“In order to defeat the title of the original landowner, 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 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.”
On the facts, O’Hanlon J. held that the acts of user relied on in that case, which he described as being very casual, sporadic and of an inconclusive nature, were inconclusive to found a claim to a possessory title.
On the other hand, in an authority relied on by the defendant,Griffin v. Bleithin [1999] 2 I.L.R.M. 182, the application of the principle that in every case possession must be considered by reference to the peculiar circumstances, resulted in a different outcome. There Quirke J., found on the facts that the defendant’s use of a yard for the purpose of parking vehicles and his use of a shed for storing equipment and for other purposes connected with his various activities between 1974 and 1994 constituted possession in circumstances where the yard and shed were located in Rathgar in Dublin and the defendant had overheld on the determination of his tenancy of the yard and shed by notice to quit in 1974 and that the possession was adverse.
On the basis of the authorities, the two key questions which fall for consideration here are, first, whether the use of the disputed plot by the defendant constituted possession and, secondly, if it did, whether it was adverse possession in the sense of being possession inconsistent with the title of the true owner.
In relation to the first question, in my view, the evidence does not establish that in the period from 1983 to 2000 the defendant’s use of the disputed plot constituted possession. Apart from clearing waste from the disputed plot in a manner akin to abating a nuisance, the defendant’s use was limited to sporadic incursions for the purpose of testing machinery following repair or service in the adjoining workshop. This is borne out by the defendant’s reference in the letter of 17th November, 1993 to the fact that in the past, in common with others, he had used the disputed plot “on occasion”. Having regard to the nature of the disputed plot, the manner in which it was used by the defendant between 1983 and 2000, which covers most of the crucial period between 1993 and 2005, would not have sent out a signal that the defendant was occupying the disputed plot to the exclusion of the true owner and all others.
If, contrary to the view which I have expressed, the use by the defendant of the disputed plot prior to the year 2000 did constitute possession, the evidence strongly suggests that prior to 2000 the plaintiff did not have the necessaryanimus possidendi to justify an inference that the possession was adverse. The state of mind evinced in the letter of 17th November, 1993, which I have analysed earlier, was not consistent with an intention to exclude all persons other than himself from the disputed plot. Even by September, 2001 that position had not changed. The defendant was not asserting a right of exclusive possession to the disputed plot. His justification for erecting the fences he erected at that time was to keep Mr. Quinn’s straying cattle off land which he still regarded as commonage and away from the property he owned. After the solicitors acting for Dundrum formally objected to the erection of the fences by the defendant in September, 2001, the correspondence which passed between the solicitors indicates that on both sides the issue between the parties was seen as a paper title boundary dispute. It seems to me to be of particular significance that the plaintiff was not even at that stage asserting that he had established a possessory title to the disputed plot. The first time such assertion was made on his behalf was in 2004. Accordingly, I reject the defendant’s assertion that he has acquired title by adverse possession to the disputed plot.
There will be a declaration that the disputed plot was at all material times and remains in the ownership of the plaintiff. A perpetual injunction has not been sought and none is necessary having regard to the terms of the declaration.
No evidence has been adduced as to any loss or damage incurred by the plaintiff and, accordingly, the plaintiff is not entitled to any damages.
Hamilton v ACC Loan Management Ltd
[2018] IECA 127
Court of Appeal (Ireland)
Peart .
General Background
4
The plaintiff’s late father, John Hamilton, was a farmer in Co. Monaghan. He became ill in about 1991 and died intestate on the 25th June 1996, leaving his wife Dympna Hamilton, and five children (all over age) including the plaintiff who was the eldest son, and the only child who had an interest in farming. They farmed the lands together prior to the date of death, and the plaintiff continued to do so thereafter, including certain lands of his own that he had previously purchased in his own name from an uncle some years previously. His mother, Dympna Hamilton, had her own income from employment in the mushroom growing industry. It appears that at the date of death two of his brothers worked in Belfast, another brother was an electrician, and his only sister was a student in Dublin
5
A grant of letters of administration (intestate) of the estate of her late husband was taken out by Mrs Hamilton on the 15th February 1993.
6
At the date of his death John Hamilton was the owner of some 100 acres of farmland, including the c. 31 acres comprised in Folio 14587 Co. Monaghan, some 26 of which are the subject of the present proceedings (‘the disputed lands’).
7
Since John Hamilton died intestate, his estate fell to be distributed pursuant to the provisions of Part VI of the Succession Act, 1965 (‘the 1965 Act’), and in particular s. 67 thereof. Simply put, Mrs Hamilton was entitled to two thirds of her late husband’s estate, with the remaining one third being distributed in equal shares between the plaintiff and his four siblings.
8
However, the first curiosity in this case is that even though Mrs Hamilton obtained a grant of administration (intestate) on the 15th February 1993, it was not until some 13 years later on the 25th October 2006 that she executed a deed of assent for the purpose of transferring, as personal representative, the beneficial ownership of the deceased’s property to those entitled. During that 13 year interval the persons entitled to the property on intestacy had an equitable interest by virtue of s. 10(3) of the 1965 Act which provides that the personal representative shall hold the deceased’s estate as trustee for the persons by law entitled thereto. That equitable interest exists until such time as the legal ownership becomes vested by a deed of assent by the personal representative.
9
The next curiosity is that when she eventually executed a deed of assent, she vested the entire of the deceased’s property in herself, rather than to herself and her children in the shares to which each was by law entitled on intestacy, including the ‘disputed lands’. One could speculate that the reason that she felt entitled to do so since by s. 126 of the 1965 Act, s. 45 of the Statute of Limitations Act, 1957 had been amended by substitution, whereby no action or claim to the estate of a deceased person or to any share or interest therein whether under a will or on intestacy, may be brought ‘after the expiration of 6 years from the date when the right to receive the share or interest accrued’. Any claim by any of her children to their share or interest in their father’s estate on intestacy was therefore barred after the 25th June 1998. That, of course, would not have prevented her from transferring their respective shares to them should she have chosen to do so.
10
For the purposes of the present case, however, it is clear that while she may have been entitled in 2006 to transfer the property comprising her deceased husband’s estate by way of deed of assent to herself, it could only be in respect of property that formed part of the estate when she did so. That raises directly the question whether the plaintiff had by then acquired ownership of the disputed lands by adverse possession against her as personal representative.
11
A claim by a personal representative against a person in adverse possession of land forming part of a deceased’s estate is barred only after 12 years under s. 13(2) of the Statute of Limitations Act, 1957 (‘the 1957 Act’). Such a claim is not one coming within the types of claim covered by the new s. 45 of the 1957 Act. As stated in McGuire: Succession Act, 1965, A Commentary (1986, Incorporated Law Society, 2nd ed. by Pearse) at p. 313 under the heading ‘Actions by personal representatives’:
‘The wording of the new section 45 does not make it clear whether the six-year limitation period contained therein, applies to claims by the personal representatives of a deceased to recover property which forms part of his estate ……
An action by the personal representatives, although a ‘claim to the estate of a deceased person’, is not one arising ‘under a will or intestacy ‘(the old section 45) or ‘under a will, or intestacy, or under section 111 of the Succession Act, 1965’ (the new section 45), and therefore, it may be argued, is not within the terms of section 45, see M.P.D. v. M.D. [1981] I.L.R.M 179 at 183; Brady and Kerr, The Limitation of Actions, p.86.’
12
I would respectfully agree with the learned author, though my agreement is necessarily obiter since that precise question does not arise, and was not argued in any detail, in the present appeal. I say it does not arise for present purposes because if the occupation of the disputed lands by the plaintiff constitutes adverse possession, that possession has persisted from the date of death of his father on the 25th June 1992, and any action against him in that regard would be barred after the 25th June 2004, being two years before the deed of assent by his mother to herself to which I have referred. It was therefore barred even if a 12 year limitation applies. The real question in these proceedings is not the length of the plaintiff’s occupation, but rather whether his occupation of the disputed lands following the death of his father comes within the meaning which the law attributes to ‘adverse possession’.
13
On the 26th October 2006, the day following the execution of the deed of assent of the lands to herself, Mrs Hamilton, then as beneficial owner, transferred certain lands, including the ‘disputed lands’ to her son, Sean Hamilton, in consideration of natural love and affection. The reason for this has become clear. By facility letter dated the 21st August 2006 ACC Bank had offered Sean Hamilton a loan of €248,000 the purpose of which was ‘to assist with the purchase of 6 acres of land located at Drumhannon[sic], Latton, Castleblayney, Co. Monaghan …’. These 6 acres had been sold and Sean Hamilton was keen to buy them back. The security required for those borrowings was, inter alia, a first legal mortgage and charge over 31 acres of land located at Drumhannon of which the 6 acres had been part until 1993. In order to put that security in place, clearly those lands had to be in the ownership of Sean Hamilton, hence the transfer by his mother to him for natural love and affection already referred to.
14
The plaintiff was asked in cross-examination what he knew of these transactions in 2006. It appears that he had been aware that his brother was buying back the small area of 6 acres which had been sold to a Mr Connolly back in 1993 as part of the agreement reached by the plaintiff with Bank of Ireland, which I refer to later at para. 17, and which had formed part of the lands in folio 14587 Co. Monaghan, but he did not know the price, and said that he was certainly not aware that the remaining 26 acres of that folio which he was farming on his own account following his father’s death, were being offered as security for the loan. He only became aware of that fact in 2013 when out of the blue a ‘For Sale’ sign was erected on the disputed lands. It was only at that stage that he found out that the lands were being sold by the second and third named defendants, who were the bankruptcy receivers appointed over his brother Sean’s estate following his being declared a bankrupt in Northern Ireland. In fact the plaintiff had leased from his brother, Sean, the 6 acres that he had bought back from Mr Connolly, since his brother was living in Belfast.
15
Yet another curiosity in this case is that following the transfer to Sean Hamilton by his mother of lands, including the disputed lands, in October 2006, and his drawing down of the loan from ACC Bank, and his execution of the required mortgage and charge over the lands specified in the facility letter referred to, those transactions were not registered on folio 14587 County Monaghan until after Sean Hamilton was declared bankrupt on the 3rd May 2012. The copy folio 14587 County Monaghan that is available to the Court shows the registration of ownership of the disputed lands in the name of Sean Hamilton, and the registration of the charge in favour of ACC Bank as a burden on the folio, was not effected in the Land Registry until the 13th June 2012.
The factual basis for the adverse possession claim
16
I have already, described how the plaintiff farmed with his father prior to his father’s death in June 1992. He was the only one of the children who had any interest in farming. Prior to his father’s death he had bought some land for himself from an uncle which was adjacent to his father’s lands. His siblings pursued their own careers elsewhere. His brother, Sean, went to live in Belfast, as did another brother. His third brother was an electrician, and his sister pursued a course of study in Dublin.
17
When his father died in June 1992 the plaintiff continued farming the disputed lands and his own lands. It appears that his father left a debt of something in the region of €70,000 owing to Bank of Ireland. That debt was not secured on any of the farm lands. But the bank was anxious to get the debt resolved, and the plaintiff and his agricultural adviser had discussions with the bank about what should be done. As a result of these discussions, the plaintiff took over responsibility for the debt, and the bank agreed that if a sum of €50,000 was paid by him in a relatively short timeframe the bank would accept that sum in full discharge of the full amount due and owing by the deceased at the date of death. The bank stipulated that the amount would be raised by the sale of 31 acres (including the disputed lands). As matters transpired however, only the 6 acres already referred to were sold to a Mr Connolly, but the plaintiff managed to raise the balance by another means, and in due course he repaid the agreed sum of €50,000 to the bank. This was paid by him personally, and was not paid by the estate of his father.
18
The plaintiff has stated that his mother had her own income from employment, and she remained in the family home. I should perhaps add that the disputed lands are some five or six miles away from the family home and the other farm land owned by his father adjacent to the family home.
19
After his father’s death in 1992, the plaintiff continued to farm his own lands and the disputed lands, treating the latter as his own. For example, he had his own cattle herd number. He also obtained various types of grant assistance from the Department of Agriculture, such as headage payments, REPS grants, single farm payments and so forth, and in all application forms for such payments he declared himself to be the owner of the disputed lands. He was in sole occupation and control of the lands. He was farming the lands openly and transparently, and in a way that was clearly inconsistent with the interest of his mother either as personal representative or as a person entitled to an interest on the intestacy of her late husband, or the interests of any of his siblings. His activities on these lands are described in his statement of claim as follows, and he gave evidence consistent with same:
‘11. The plaintiff has used the said lands and premises as his own land without interruption, interference or objection by anyone. His presence on the said lands was not by the consent or sufferance of any other person or party. He annually applied for and was in sole receipt of the rents and profits and all agricultural payments and subsidies payable in respect of the lands, and no acknowledgement has been given by him in favour of any person in respect of the said lands or of any part thereof.
12. At all times since 1991 and without interruption, the plaintiff was using and farming the said lands openly and transparently and in a manner which was adverse to any title or interest claimed by Dympna Hamilton and/or the said Sean Hamilton. The plaintiff made full and ordinary use of the property and carried on an extensive agricultural business thereon including, inter alia, the development and culturing of pasture and grass-lands; breeding and rearing and grazing of cattle thereon and the growing and harvesting [of] silage annually. He carried out extensive enhancements and improvements on the said lands including drainage, reclamation and fertilisation. He erected constructed repaired and maintained all boundary fences, gates and gateways to the property and effectively excluded all other persons from accessing the property except those who were his invitees and contractors.’
20
In his evidence he said that when his father died any income from the sale of cattle or the farm went towards paying off Bank of Ireland as well as loans that he got elsewhere, such as AIB Bank. He himself was living in rented accommodation, and his mother was in receipt of her own income from her employment as a mushroom picker, and her widow’s pension. There was no other income from the farm that went towards her support.
21
In addition to working the farm after his father died, the plaintiff worked as a contractor as he had his own digger machine. That provided an income for himself and his wife. He farmed his own land and he worked the family farm also. But he stated in cross-examination that his mother would not have been paid any money by way of income from the farm as any profits either went to the bank, or back into the farm by way of improvements and the purchase of machinery. The plaintiff did say, however, that he would do jobs for his mother. Specifically he said that he had developed the garden adjacent to the house because that had not been done when the house was built, and he had also laid tarmacadam around the house.
22
Part of the lands which he continued to farm is referred to as Mullananalt. In due course however, around 2004/2005 he negotiated a sale of that particular piece of land for a wind turbine. He obtained money for that piece of land and put that money in his mother’s account because at that stage she was beginning to suffer from Alzheimers Disease, and was unable to continue with her own employed work. By this time she had ceased being a mushroom picker, and was working as a helper with a car that took disabled children to a school in Cootehill. It was put to him that if he was in adverse possession of that particular piece of land as he was in relation to the disputed land, it was strange that he gave the money for the sale of it to his mother. It was put to him that he knew that it was her land. But he replied that he did not know that, and that the reason he gave the proceeds of the sale to her was that she was not fit for work and was not getting the same income as she had been. He stated again that he was farming the land ‘as his own’, and that as far as he was concerned it was his land. But it was later clarified in re-examination that in fact the wind turbine plot was land that his mother owned in her own right and which had passed to her from her own father’s estate back in 1979, so the sale of that piece of land is irrelevant to the present dispute. It also transpired that it was not a sale of a plot for the turbine, but rather a lease. The plaintiff must have been confused about this when being cross-examined the previous day.
23
He was also asked about the fact that in or about 1994 his mother transferred a piece of land to him so that he could build a house for himself and his wife, as they were living in rented accommodation at the time. He built a house and they moved into it in 1996. It was suggested to him that if he already owned the land she would not have to transfer a site to him. He said that it was just agreed that this would be done so that he could apply for a planning permission for a house on the site in his own name. He was the farmer in the family and was farming the land, and his mother was happy that this was the position. It is suggested by the defendants that this transfer by mother to him serves to negate his claim to adverse possession. I will return to that question.
24
He was asked also about a plan in 2006 that his mother would seek a planning permission for a house for his sister, Corina, of whom his mother was apparently very fond. A small piece of land was carved off for that purpose. But again, as with the wind farm, it later transpired that this was from land owned independently by Mrs Hamilton and not relevant to the present dispute. It was not part of his father’s estate at all.
25
The plaintiff was asked also about the lands being put into his mother’s name by the deed of assent in 2006. As far as the plaintiff was concerned he was told that it was being done for legal reasons so that she could transfer the land. He said that he would not have known any different and that he did not think it was for ownership reasons. He did not talk to the solicitor about any of this apparently. He went on to say that he was never informed that she had been registered as the owner in 2006, and that he did not understand the legal processes involved.
26
The plaintiff was asked also about a letter that his solicitor had written on the 18th August 2014 to G.J. Moloney & Co., solicitors acting for the receivers, in answer to their letter to the plaintiff dated the 12th August 2014. That letter to the plaintiff had stated that the receiver was instructed that he was ‘grazing livestock on the lands without the consent of the receiver who has taken possession of the lands’. He was asked to remove his livestock, failing which the receivers would remove the animals without further notice to him. He was advised to take legal advice, which he did.
27
The plaintiff’s solicitor’s letter in reply, and about which he was questioned in cross-examination stated, inter alia:
‘Lest there be any confusion our client is not, nor was he ever, merely grazing livestock on the above lands.
As you are aware, having been directly conveyed to the receiver on numerous occasions, Mr Hamilton by way of long term leasehold agreement has been in sole occupation of the above lands for in excess of 20 years.
Without going into unnecessary detail, your client has effectively failed to acknowledge our clients legal and indeed beneficial entitlement, and for that matter, his occupation and legal rights and entitlements in the above lands.’
28
It is the reference to a ‘leasehold agreement’ that led to his being questioned as to the significance of this letter. There was never a leasehold agreement, or any similar document. That reference in the latter was erroneous. The receiver’s solicitors in due course responded noting that no lease agreement had ever been produced, and, in any event, Sean Hamilton could not have granted such a lease without the consent of ACC Loan Management under the terms of the charge over the lands, and that any such lease would be void.
29
Before addressing the trial judge’s overall conclusions, I refer to his conclusion in relation to the reference to this asserted leasehold interest. At paras. 13–15 of his judgment, the trial judge stated:-
‘13. The plaintiff was pressed about the reference in his solicitor’s letter dated 18th August 2014 which referred to his leasehold interest. This leasehold interest was not asserted after that letter. The plaintiff clarified that there was a lot of emotion arising from the confusion caused by the receivers’ offer for sale of the relevant lands and of lands which were actually purchased by his brother in the vicinity. It is worth noting at this stage that the plaintiff’s brother had purchased a few acres and had allowed the plaintiff to use them his farm. The plaintiff was willing to buy these few acres from the receivers.
14. Suffice to say that the said letter from the plaintiff’s solicitor on its face would have helped to defeat the plaintiff’s claim were it not for the emotion which flowed from his mother’s condition and the very late disclosure to the plaintiff of the somewhat irregular looking transactions in 2006. The plaintiff was faced with an astonishing scenario and his bankrupt brother, suffering from a mental health problem in Northern Ireland, did not assist in explaining matters. The Court accepts that the plaintiff never had a lease of the relevant lands and that he cannot be bound by a letter from his solicitor which does not recount the entire history of the plaintiff’s involvement with each portion of the lands mentioned in the two folios identified in the subject line of that letter.
15. There was no evidence to infer any improper motive on the part of the plaintiff for delaying his application to register the relevant lands in his name until after the death of Mrs Hamilton on 21st January 2015. The plaintiff understandably did not feel that his late mother could or should be troubled given her condition and the plaintiff’s de facto exclusive occupation, control, and use of the lands as part of his own farm.’
30
I would uphold the trial judge’s finding that there never was any lease or other form of agreement in the plaintiff’s favour, and that he should not be bound by what was stated in his solicitor’s letter in that regard.
31
No other witnesses other than the plaintiff gave evidence before the trial judge. I have set forth the plaintiff’s evidence in far more detail than did the trial judge in his judgment, simply because it is helpful when considering the conclusions reached by the trial judge.
The judgment
32
In his judgment, the trial judge set out a relatively brief history of dates and events, by reference to what in para. 3 he described as ‘some relevant facts which are agreed’. Those relevant facts are included in what I have already described above. As to the legal issue which he had to decide he stated:
‘4. The parties have agreed that the issue for the Court to decide relates to the nature and extent of the plaintiff’s possession of the relevant lands. More particularly, did the plaintiff exclude his mother from control of the relevant lands and did he manifest an intention to do so” Animus possidendi is the term which connotes the thrust of these questions.’
33
Having referred to the limitation period of 12 years from the date on which the right of action accrued to the person bringing a claim to recover land referred to in s. 13(2) of the1957 Act, the trial judge went on to state that ‘another way of approaching the nub of the controversy which arises is to ask whether the plaintiff used the relevant lands for 12 years after the death of his father for himself or in some way with his mother’s conditional consent to possession’. He then referred to the judgment of Black J. in Convey v. Regan [1952] I.R. 56, that of Slade J. in Powell v. McFarlane [1977] 38 P&CR 452, and then to the judgment of Clarke J. (as he then was) in Dunne v. Iarnrod Eireann [2007] IEHC 314. In the latter case, Clarke J. reviewed a number of the leading authorities on adverse possession, including Convey v. Regan, and Powell v. McFarlane, and having identified certain principles emerging therefrom, stated at paragraph 4.12:
‘Having regard to all of those principles it seems to me that the questions which I must ask on the facts of this case are as follows:–
1. Is there a continuous period of 12 years during which Mr Dunne was in exclusive possession of the lands in question to an extent sufficient to establish an intention to possess the land itself rather than to exercise grazing rights or the like over it.
2. Is any contended for period of possession broken by an act of possession by CIE. If so time will only commence to run again when that act of possession by CIE terminates.
34
By reference to these questions, the trial judge stated that he should therefore rephrase them and ask:-
(i) whether there is a continuous period of 12 years during which the plaintiff was in exclusive possession of the relevant lands to an extent sufficient to establish an intention to possess the land itself rather than to fulfil some joint enterprise or other agreement with Mrs Hamilton”, and
(ii) was the intended period of possession broken by an act of possession by Mrs Hamilton”
35
The trial judge went on to state that he had been impressed by the plaintiff’s candour when he gave his evidence, and that the receivers had even assured the plaintiff that they were not alleging that he had misrepresented matters in his affidavit or his evidence.
36
In his judgment under the heading “Findings of Fact” the trial judge stated:
‘9. The plaintiff’s account of using the relevant lands for his own farm as opposed to some notional farm for the family or with Mrs Hamilton as contended for by the receivers is accepted by the Court. Despite careful cross-examination based on the transfer of a one-acre plot by Mrs Hamilton to the plaintiff’s sister in 2006, the plaintiff maintained that the legal formalities for transferring the relevant lands by deed did not arise for discussion. The evidence established that the transfer of the lands actually registered in Mrs Hamilton’s name to the plaintiff’s sister was given effect in anticipation of seeking planning permission. The transfer of lands in 1994 to the plaintiff and the plaintiff’s wife from Mrs Hamilton was also to get planning permission to build the house in which the plaintiff resides with his wife.
10. It was confirmed by the plaintiff also that he alone was involved in farming the relevant lands seeking grants, and maintaining the herd number.
11. The plaintiff in reply to specific questions stated that he ‘definitely’ was not aware of the deed of transfer to his brother in 2006 until the events leading to these proceedings in 2013. Counsel rightly did not explore what would have happened if he had known, because in effect the plaintiff by his own account – which is not contradicted – was in exclusive possession of the relevant lands from 1992 to 2006 (14 years) in any event.
12. Mrs Hamilton was registered in 1997 as the owner of folio 14955 of Co Monaghan containing 11.2 hectares. The plaintiff explained that those lands were transferred from his grandfather’s estate. These are the lands which were released in September 2008 to a company which operates a wind farm. Again, the Court was not persuaded that this in some way undermined the plaintiff’s assertion that he was in exclusive possession of the relevant lands for his own farming and aid applications.’
37
Following these findings of fact the trial judge dealt with the repayment by the plaintiff of £50,000 to Bank of Ireland to which I have already referred, and the fact that Mrs Hamilton had her own income, albeit small. He then stated that ‘there is no basis arising from these facts to suggest that the plaintiff’s occupation and control of the relevant lands. In excess of 12 years was in some way a joint enterprise with Mrs Hamilton. Mrs Hamilton’s passiveness allowed the plaintiff to acquire an adverse possession title as has arisen in other farming families in Ireland’. He then concluded:
‘12. The Court finds that there was a continuous period in excess of 12 years during which the plaintiff was in exclusive possession and control of the relevant lands, and that that possession was not broken by any act of Mrs Hamilton. The plaintiff’s claim for a declaration that he is in adverse possession and is entitled to be registered as owner of the relevant lands contained in folio 14587 of the Register of Freeholders, Co Monaghan may therefore be granted’.
The appellants’ submissions on appeal
38
The appellants have submitted that while they accept that the plaintiff was in actual occupation of the lands in question for a period of in excess of 12 years from the date of death, they disagree with the conclusion of the trial judge that this occupation amounts to exclusive possession and control, and therefore as a matter of law to adverse possession such that the plaintiff is entitled to be registered as sole beneficial owner thereof. The appellants submit that the evidence showed clearly that Mrs Hamilton remained in occupation of all the lands following the death of her husband, but simply permitted her son to carry on farming all the lands (including the disputed lands) and that there was never any distinction between the disputed lands and the other lands surrounding the family home, either in the mind of Mrs Hamilton or indeed the plaintiff. They have submitted that the plaintiff’s evidence was that in fact the income generated from the entire farming operation went towards paying for the upkeep of the farm and towards the bank borrowings of the deceased. It is submitted also that it is clear that in fact the plaintiff was engaged in a joint operation with his mother whereby with her knowledge and consent he farmed all the lands as a single venture and without distinction, and therefore with her consent and knowledge. In all these circumstances they submit that the trial judge erred in his findings and his conclusions, and that the evidence showed only that the plaintiff had farmed all the lands with the consent and permission of his mother, and therefore that his occupation of the lands was not adverse possession as that phrase must be understood, and not inconsistent with her legal title to the lands.
39
I have referred earlier to the two questions that the trial judge considered should be asked in this case by reference to the two questions identified by Clarke J. in Dunne v. CIE. Before expressing my overall conclusions, it is worth referring in more detail to the judgment of Clarke J. in that case since he usefully examined in some depth the earlier authorities. Commencing at para. 4.1 he stated the following:
‘4.1 In Tracy Enterprises Macadam Ltd v. Thomas Drury [2006] IEHC 381 (unreported, High Court, Laffoy J., 24th November 2006) Laffoy J. conducted a recent of the relevant authorities. The dicta of Barron J. in Seamus Durack Manufacturing Ltd v. Considine [1987] I.R. 677 (which in turn derived from the judgment of Kenny J. speaking for the Supreme Court in Murphy v. Murphy [1980] I.R. 183, was noted to the following effect: –
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of the state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principal has relevance only in so far as that when this factor is present it is easier to hold an absence of animus possidendi.”
4.2 In addition, the practical application of the general principles was noted by Laffoy J. as being in accordance with a passage from the judgment of O’Hanlon J. in Doyle v. O’Neill (Unreported, High Court, 13th January 1995, O’Hanlon J.) in which the following was stated:
“In order to defeat the title of the original landowner, 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 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”.
4.3 The general principles seem to me to be well summed up in a passage from the judgment of Slade L.J. in Powell v. McFarlane [1979] 38 P&C.R. 452 at 470 where the following is set out:-
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 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 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.’
4.4. To like effect Costello J., in Murphy v. Murphy [1980] I.R. 183 at 193 quoted with approval a passage from the Lord Advocate v. Lord Lovett in which Lord O’Hagan said:–
“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 in 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”.
4.5 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 land is concerned and to the type of use which one might reasonably expect a typical owner to put those lands to.’
40
In relation to these questions in the context of the present case I am satisfied that the trial judge was correct to conclude that the plaintiff was in factual possession of the disputed lands, and that he had the necessary animus possidendi. First of all, nobody else was in possession of the land or shared possession with him. He alone occupied the land. He had his own cattle on the land and had his own herd number. He alone applied for various grants and payments as stated above. He was the only one of the children of Mr and Mrs Hamilton who had an interest in farming. That much is very clear. He treated them as his own lands, and did so for the requisite period of 12 years, and more. He had the necessary intention to possess the lands to the exclusion of all others. This is not a case where his presence on the lands was sporadic or temporary. It was permanent and exclusive. Viewed objectively by reference to the lands, the plaintiff had the necessary level of physical control spoken of in Powell v. McFarlane above.
41
However, it is necessary to look at a further question, and that is whether certain acts done by Mrs Hamilton are such as to negative the discontinuance of possession on the part of the paper title owner, as it is put in Powell v. McFarlane. In other words was the de facto possession or occupation of the lands in question by the plaintiff interrupted by these acts such that his occupation of the lands was not continuous throughout the 12 year limitation period.
42
In his judgment in Dunne v. CIE, Clarke J. addressed this question in the context of that case. I should perhaps add that while this judgment was the subject of a successful appeal, the principle appearing below was not affected. At para. 4.9 of the judgment, Clarke J. stated:
‘4.9 Two other legal issues are of relevance. Firstly, it is common case that in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. In Powell v. McFarlane Slade LJ 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 judgement, 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 are keen 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. This is of relevance because there are a number of actions taken by CIE which are said to amount to acts of possession. It will be necessary to assess whether those acts do amount to possession having regard to the low threshold identified in the authorities. If they do, however, those acts will prevent time running during the period at which they occurred.’
43
The question to be asked at this point is whether there was any act of possession, however slight, by Mrs Hamilton during the period of twelve years following her husband’s death in June 1992 which can be considered to have interrupted the plaintiff’s otherwise exclusive and single possession of the land such that there was not continuous possession for the required period.
44
In this regard, the trial judge was satisfied that the acts on the part of Mrs Hamilton asserted by the defendants to negative the plaintiff’s exclusive and adverse possession and to indicate that his possession was in fact consistent with her paper title ownership, were insufficient to disentitle the plaintiff to the declaration that he seeks.
45
The trial judge found as a fact that the transfer of the plot of land to the plaintiff’s sister was out of land owned independently by Mrs Hamilton, and was not part of the disputed lands. He was satisfied also that the land leased to a wind turbine company was part of land that Mrs Hamilton had inherited from her grandfather, and did not undermine the plaintiff’s claim in respect of the disputed lands. I am satisfied that the trial judge was correct in relation to these conclusions. Those particular actions by Mrs Hamilton are irrelevant to the disputed lands
46
However, the defendants also relied on the fact that in 1994 Mrs Hamilton had transferred some land (c. 25 acres) into the name of the plaintiff and his wife, and again this was said to be inconsistent with any claim by him to adverse possession of the disputed lands. The evidence was that this 25 acres comprised land at Carnaveigh. The defendants submit that this transfer must be seen as a satisfaction of his entitlement to a share of his father’s estate on intestacy, and that thereafter he had no further claim on the estate, including to the disputed lands. In my view there is no evidence to support such a submission. The trial judge concluded briefly in this regard by stating: ‘the transfer of lands in 1994 to the plaintiff and the plaintiff’s wife from Mrs Hamilton was also to get planning permission to build the house in which the plaintiff resides with his wife’. The plaintiff was cross-examined about this transaction in 1994. It was put to him that he had taken those lands in satisfaction of his share of his father’s estate. He did not accept that proposition. He stated: ‘Well, it was just put into my name because I was the farmer and it was really because I wanted to build a house on it and I needed the land in my name to get planning permission’. I am not satisfied that this particular transaction in 1994 has any relevance to the question as to whether the plaintiff has demonstrated the necessary animus possidendi over the disputed lands, or whether his mother by this action on her part asserted her title to those lands as legal personal representative, such that any exclusive occupation by the plaintiff of the disputed lands adverse to her paper title was interrupted in 1994.
47
I am satisfied that the trial judge applied the correct legal principles to the facts which he found, and by reference to the judgment of Clarke J. in Dunne v. CIE asked himself the correct questions for the purpose of determining the issues in this case. I am satisfied that that as a matter of law he was correct to conclude as he did, and on the facts as found. All of this means that the defendant’s occupation of the land during the twelve year period was adverse to the title of the true owner and that Mrs. Hamilton had taken no steps during that period to interrupt that possession.
48
For these reasons I am satisfied that the defendants’ appeal should be dismissed.
Dooley v Flaherty
[2014] IEHC 528 Hogan J.
Part I – Introduction
1
1. In these proceedings the plaintiffs seek a declaration that they are entitled to vacant possession of the property known as No. 25 Henry Street, Galway. The plaintiffs agreed to purchase the property at auction in May 2012 having been led to believe by the title description offered prior to the auction that the property was vacant, subject only to a life tenancy at a peppercorn rent in favour of one Paddy Flaherty. It appears that Mr. Paddy Flaherty died some time in or about December 1995. At that point his brother, Michael Flaherty (senior) took over the tenancy. Mr. Michael Flaherty (senior) died in June 1998 and his son (and present defendant), Michael, took over the tenancy in turn.
2
2. While the plaintiffs’ paper title to the property is not now disputed, they are nonetheless met with the defence of adverse possession on the part of the defendant, Michael Flaherty.
3
3. The case, in essence, turns on the defendant’s claim that he had twelve years’ uninterrupted possession of the property from September 1998 which he says he occupied without ever paying rent to the plaintiffs’ immediate predecessor in title, Paul Fitzgerald, from that point onwards.
4
4. Before considering the legal questions, it is first necessary to summarise the evidence.
Part II – The Evidence
5
5. The plaintiffs called two witness, Paul Fitzgerald and Orla Cullinan, while Michael Flaherty was the sole witness called by the defence. The following is a short summary of the evidence they gave relevant to the issue of adverse possession.
Paul Fitzgerald
6
6. Paul Fitzgerald gave evidence that he and his family were property developers who had purchased the property from the previous owners in 1990. He said that he knew Mr. Michael Flaherty ( i.e., the present defendant) and that he had received rent from him in September 1998 after the death of his father who was also called Michael Flaherty
7
7. He said that he collected rent from him in 2004. He also said that he had called to the property in 2008 for this purpose but that he did not meet Mr. Flaherty.
8
8. Mr. Fitzgerald said that at some stage – he thought that it was around 2007 – his employees gained access to the property by going through a neighbour’s attic to repair an area which had been damaged by dampness. There is correspondence before the Court showing that the adjoining property owners had written to him on October 13 th, 2008 to complain that “the state of the roof on your property has [had] consequences for our house.” Sometime thereafter he arranged with one of his own employees for the slates on the roof to be repaired.. He acknowledged that the house was not in good condition, but this was because the property was not a priority for him. He had also insured the property.
Orla Cullman
9
9. Ms. Cullman said that she was a solicitor of long standing. She said that Mr. Dooley (the first named plaintiff) and herself decided to purchase the property having learned that it was to be sold at an auction along with other distressed properties. As far as she was aware the property was uninhabited and, immediately following the auction and having paid a deposit, Ms. Cullinan, Mr. Dooley and a locksmith picked the lock and went into the house. She said as they were touring the property Mr. Michael Flaherty came “out of nowhere”. She said that Mr. Flaherty originally claimed that he was Patrick Flaherty before Mr. Dooley recognised him as Michael Flaherty because he had acted for him at an earlier stage. Mr. Flaherty said that he would leave the property for the sum of €5.000.
10
10. A few days later Mr. Dooley had the locks changed. He ultimately arranged to give Mr. Flaherty a copy of the key for the property on condition that he signed a receipt as caretaker for property.
11
11. Ejectment proceedings were commenced against the present defendant in the Circuit Court in Galway in July 2012. No appearance was entered to those proceedings. It appears that as the purchasers did not at that stage have full legal title to the property, doubts emerged regarding their standing to seek such relief. They proceedings were, at any rate, shortly thereafter discontinued.
12
12. The purchasers had, however, contracted to purchase subject only to a life tenancy in favour of a life tenant now deceased, they commenced vendor and purchaser proceedings seeking a declaration that they were entitled to vacant proceedings. That relief was refused by this Court, but the purchasers appealed to the Supreme Court. The matter was then resolved by the parties, with a small reduction in the price. The sale of the property ultimately closed in October 2013.
Michael Flaherty
13
13. Mr. Flaherty said is he now 59 years of age and he had spent all his life at 25 Henry Street. He had worked for Bus Éireann for the last 39 years. His family previously paid rent to a Ms. O’Beirne, a pharmacist, who was the previous owner of the property. Mr. Flaherty said his father had died in June 1998 and by this stage Mr. Fitzgerald had acquired the ownership of the property.
14
14. Mr. Flaherty acknowledged paying Mr. Fitzgerald the sum of IR£5 in September 1998 and said that this was the only rent he had ever paid. He denied ever seeking €5,000 payment in return for vacating the property. Mr. Fitzgerald also gave evidence of his modest and frugal life style and how he lived in the property.
15
15. A long time later in February 2010 he received two letters from Mr. Fitzgerald concerning the property. The first letter was dated 4 th February 2010 and it asked him to call to sign the rent books in respect of the rents received from him. The second letter was also addressed to Mr. Flaherty and was dated 12 th February 2010 and it was marked “Urgent – Re Rent Book.” It stated:
“Our accountants have informed me that I must get you to sign a rent book for the rents we have received from you. Please contact Caroline Gallagher of my office [at a particular telephone number] to arrange a suitable time that I can call to you and get this rent book signed.”
We have made numerous attempts to contact you – we urgently need you to call the office so as to arrange a time to get the rent book signed.”
16
16. Mr. Flaherty was then contacted by Ms. Caroline Gallagher who asked him to sign a document acknowledging that rent was due, but he refused to do so.
17
17. Mr. Flaherty also said that if the roof was indeed repaired by Mr. Fitzgerald or by one of his employees, he was personally unaware of this.
18
18. Mr. Flaherty described the events of May 2012. He happened to be asleep on a bank holiday afternoon and was disturbed by the presence of voices. He denied ever asserting that he was Patrick Flaherty. He claimed that he challenged the right of Mr. Dooley and Ms. Cullinan to be present, although he acknowledged that he did not object to them touring the premises.
19
19. Mr. Flaherty stated that he was unaware that no “for sale” sign was placed on the property and he confirmed that he had no advance knowledge that any auction was to take place and. While this was disputed, I think it clear that this was so, as the photographs of the property in the auction brochure did not show any sign on the premises.
Part III: Whether the plaintiffs’ claim is statute-barred”
20
20. In view of these conflict of facts, I will endeavour to decide this case by reference to the established facts, avoiding, where possible, the necessity to resolve the factual disputes between the parties, not least where, in many cases – such as whether rent was demanded or paid in 2004 or at other points during the currency of the 12 year period – the available evidence simply pits one person’s word against another.
21
21. So far as the claim for adverse possession is concerned, there can be little doubt but that by paying rent in September 1998 to the plaintiff’s predecessor in title, Paul Fitzgerald, the defendant had thereby acknowledged the title of the true owner. Accordingly, therefore, time did not run against the plaintiffs (or their predecessors in title) before that point. It follows, therefore, that to establish adverse possession the defendant must show continuous uninterrupted possession for a period of not less than 12 years from that date. It follows that the earliest at which time might have expired for the purposes of an adverse possession claim was September 2010.
22
22. If, however, adverse possession has been established at the expiration of the 12 statutory period prescribed by s. 13(2) of the Statute of Limitations 1957, then the subsequent course of conduct on the part of the claimant is largely irrelevant, save that in certain unusual circumstances evidence in relation to such subsequent conduct may possibly negate the existence of any prior animus possessendi on the part of the claimant. It might be, for example, that the conduct of a claimant immediately after the expiry of any putative 12 year period would be inconsistent with the argument that he or she had always intended to possess the land adversely to the owner during that period. Given the facts of the present case, it is not, however, necessary to express any concluded view on this question.
23
23. The plaintiffs placed much store on the fact that when they called to the premises in May 2012 and introduced themselves as the new owners they say that defendant made no objection. Nor did he object to the fact that the locks were thereafter changed by the plaintiffs.
24
24. As it happens, I think that the evidence does not go quite as far in that direction as the plaintiffs have submitted. When the plaintiffs entered the property in May 2012, they disturbed Mr. Flaherty and he naturally challenged them as to their entitlement to be present on the property. But even if the plaintiffs are correct in submitting that the defendant raised no effective protest at their sudden entry into the property, this is irrelevant as a matter of law if the defendant by this point had already acquired title by adverse possession. It is clear that once title is extinguished in that manner then “no subsequent act of possession…would be sufficient to re-instate it” Dunne v. Iarnród Éireann [2007] IEHC 314, per Clarke J.
25
25. The condition of the premises is likewise largely irrelevant to these issues. There is no doubt but that for the entirety of the period in question ( i.e., between 1998 and 2010) the property was in a total state of disrepair and virtual dereliction. It appears that the windows and external doors were decayed and decrepit. There was no internal flush toilet and the external toilet did not work properly. There was no hot water supply within the property. The state of the premises is, however, at most relevant to show that the squatter had no real intention of adversely acquiring possession on the basis that if he or she did, more care would have been taken of the property during the running of the limitation period.
26
26. If the decrepit state of the premises serves to create a presumption that there was no real animus possessendi on the part of the squatter, such a presumption is, at best, a slight one which can be disproved on the facts of a particular case. Such is the position here. It is clear that Mr. Flaherty is a man of extremely modest and frugal tastes. It is also clear from his evidence that he is content with his work and his own company and that he cares little for that which the modern world seems to regards as essential or necessary. One may surmise that Mr. Flaherty would be quite content to live in this accommodation, irrespective of whether he owned it or not. In the present case, therefore, the state of the property has no relevance to the question of whether Mr. Flaherty’s possession was adverse to the true owner.
27
27. Nor can I accept that this property is not capable of enjoyment. The plaintiffs submitted that, for the purposes of the law on adverse possession, the land must be capable of enjoyment and that as the property was not really suitable for human habitation, it did not meet this criterion. The fact is, however, that Mr. Flaherty did derive enjoyment from the property: it has been, after all, his home all his life.
28
28. In any event, I cannot help thinking but that the plaintiffs’ submission involves the use of the term “enjoyment” in a slightly different sense than that which appertains to land law in general and to the law of adverse possession in particular. Of course, the homeowner who enjoys a splendid view from his or her house in summer or whose family can huddle around a blazing fire in a well appointed sitting room on a cold winter’s evening can be said to be deriving “enjoyment” from the property. This, however, is not quite the sense in which the term is used in this legal context. “Enjoyment” in this sense refers to the use of and obtaining benefit from the property and not simply to the act of deriving pleasure or satisfaction from ownership.
29
29. If, moreover, the plaintiffs’ submission were correct, it would mean that the courts might be required into inquire into the subjective tastes and feelings of landowners for the purposes of assessing whether the law on adverse possession applied to that particular property, thus adding needless complexity to an area of the law which is already beset with its own difficulties. Just as importantly, this would also unfairly weaken the legal rights of landowners. The owner of an ugly office block in a desolate industrial estate is nonetheless entitled to have her legal entitlements safeguarded by the law, even if she actually detested the place and derived no personal pleasure or satisfaction from that ownership
30
30. The real question, therefore, remains that of whether Mr. Flaherty established uninterrupted possession for twelve years in a manner which is adverse to the true owner. At this juncture, the precise nature of the tenancy is hard to determine. It was certainly a parol tenancy, as there was no lease in writing. Viewing the evidence as a whole, the payment of rent by Mr. Flaherty in September 1998 was probably consistent with the existence of a weekly tenancy.
31
31. If that were so, then by virtue of s. 17(2) of the 1957 Act the tenancy must be deemed to be determined at the end of that week once Mr. Flaherty ceased to pay rent: This sub-section provides:
2
“(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.”
32
32. On this basis, therefore, having regard to the provisions of s. 17(2) time began to run in favour of Mr. Flaherty from September 1998 onwards. But was the running of time ever thereafter interrupted”
33
33. In this respect, the decision of Clarke J. in Dunne is most instructive. In that case the plaintiff had claimed title by adverse possession of a triangular section of land adjacent to Clondalkin railway station. There was no doubt but that the plaintiff was in continuous occupation over a long period, but for Clarke J. the issue was whether CIE as owner of the paper title to the lands could point to acts of possession which negatived any adverse possession by the claimant.
34
34. What is of particular importance is that Clarke J. approved earlier comments of Slade L.J. in Powell v. McFarlane (1979) 38 P & CR 452, 472 where the latter had stated that:
“… anowner or other person with the right to possession of land will readily be 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 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.”
35
35. Clarke J. went on to add:
“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. This is of relevance because there are a number of actions taken by CIE which are said to amount to acts of possession. It will be necessary to assess whether those acts do amount to possession having regard to the low threshold identified in the authorities. If they do, however, those acts will prevent time running during the period at which they occurred.”
36
36. Having reviewed the evidence, Clarke J. was satisfied there were such acts of possession in that, first, at least a portion of the lands had been occupied during this period for the purposes of renovating Clondalkin station and, second, fences had been erected on the lands in response to complaints from neighbouring landowners:
“The first such question concerns work carried out in renovating Clondalkin Station, which continued for a period of approximately a year and a half in 1993 to 1995. 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.”
Secondly there was evidence concerning complaints made by a neighbouring land owner, Mr. Kavanagh, who was concerned with the adequacy of the fencing between his lands and the disputed lands. At times those complaints were raised by solicitors acting on behalf of Mr, Kavanagh. As a result of one of those complaints made to CIE in 2001, it is common case that CIE sent out a contractor who repaired the fences between Mr. Kavanagh’s lands and the disputed lands in or around that time. 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, I have come to the view that both of the matters to which I have referred, amount to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times.
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. On that basis it seems to me clear that no adverse possession claim can be maintained in respect of any period subsequent to a time in or about 1993 for there is not a continuous twelve year period subsequent to that time during which it can be said that CIE were entirely out of possession.”
37
37. In the light of the test posited by Clarke J. in Dunne, it is clear that the owner did perform an act of possession at some stage after the complaints from the neighbours by thereafter effecting repairs to the roof and to the slates. While Mr. Fitzgerald suggested that this was done around 2007, I think it more likely that these repairs were effected at some stage shortly after the receipt of the letter of complaint from the adjoining landowners in October 2008, i.e., after that point but before the expiration of the 12 year limitation period in September 1998. There is no doubt at all but that this is a sufficient act of possession on the part of the owner such as would arrest the running of time, even if this also obviously fits into the category of a minimal act of possession in the manner envisaged in Dunne.
38
38. I accept that Mr. Flaherty was unware of these works, but I am also satisfied that such repair work was actually done. It is unnecessary to address the question as to whether the owner who claims an act of possession by entering his own lands by stealth could satisfy the Dunne test: where, for instance, certain farmland has been occupied adversely by a squatter, would it suffice to arrest the running of time if, for example, the owner could show that he had once walked the lands at night during the running of the 12 year period” In any event, in the present case, the repair work on the roof was done openly for the world at large to see and observe and this, in my view, constitutes a sufficient act of possession.
39
39. I also accept the evidence of Mr. Fitzgerald that he insured the property for all of this period. This also amounts to an act of possession which would satisfy the Dunne test.
40
40. In the light of these findings, it is unnecessary to dwell on the question of the February 2010 correspondence. It must be recalled that if, indeed, no rent had been paid since September 1998, then the weekly tenancy would have been determined by operation of law, namely, s. 17(2) of the 1957 Act, so that time would have been running in Mr. Flaherty’s favour from the point he ceased paying rent. In those circumstances, it is doubtful if the correspondence from February 2010 seeking an acknowledgment of rent paid can be regarded as amounting to a positive act of possession. If, on the other hand, there had been a written lease then the situation might well have been otherwise, because in those circumstances the lease would not have been terminated by operation of law simply by reason of non-payment of rent, as s. 17(2) of the 1957 Act does not apply where there is a lease in writing. It is in that latter type of case that the February 2010 correspondence might have been regarded as amounting to an implied assertion that the relationship of landlord and tenant still existed between the parties.
41
41. This, I think, is the true explanation of the judgment of Henchy J. in Sauerzweig v. Feeney [1986] I.R. 227 on which the plaintiffs so heavily relied. In that case the tenant held residential property by virtue of a lease in writing. For various reasons no rent was paid after 1950 and from 1960 the tenant paid the ground rent and the rates. The landlord later demanded rent in 1977, 1978 and 1981, but the defendant did not reply to this correspondence. The landlord then commenced ejectment proceedings by serving a notice to quit, but the tenant claimed title by adverse possession. The Supreme Court rejected this latter claim, with Henchy J. observing ( [1986] I.R. 224, 227):
“The landlord showed that she had not determined or abandoned the tenancy when she made formal demands in writing for the payment of rent in August 1977, in August 1978 and again in February 1981. To none of those demands did the defendant reply that the tenancy had no application to him.”
The only proper conclusion in those circumstances is that the tenancy was not determined until the service of the notice to quit in the present proceedings What the plaintiff, as landlord, has lost is not her title to the property but her right to recover rent after the expiration of six years from the date when the arrears became due (see s. 28n of the Act of 1957).”
42
42. Viewed thus, Sauerzweig is really a case about whether the tenancy had been determined. Henchy J. found that it had not been determined, in part, at least, because as he noted, this type of case ( i.e., where there was a written lease) was not governed by what he described as “the artificial determination of tenancy” rule provided for in s. 17(2) of the 1957 Act. As the tenancy in that case had not yet been determined, no time could run in the tenant’s favour by reason only of the non-payment of rent and the only action which was barred was the owner’s right to recover the rent.
43
43. This reasoning cannot apply to the present case given s. 17(2) of the 1957 Act does sharply distinguish between those cases where there is a lease in writing and those cases in which there is not so far as the running of time is concerned. As there was no lease in writing, time began to run as the weekly tenancy was artificially determined by s. 17(2) once Mr. Flaherty ceased to pay rent.
Part IV – Conclusions
44
44. While the present case undoubtedly presents certain unusual features, I think it clear that the case for adverse possession has not been made out. For the reasons just stated, I think that there were acts of possession on the part of the plaintiffs’ predecessor in title, Mr. Fitzgerald in the course of the period from September 1998 to September 2010, even if those acts of possession can also fairly be described as minimal.
45
45. I will now await further submissions from counsel as to what further orders (if any) would now be appropriate in the light of this judgment.
Cork Corporation v Lynch
[1995] 2 ILRM 598,
Egan J., delivered the 26th day of July, 1985.
This action concerns a plot of land situate along Silverspring’s Laneand Castle Avenue and abounding Lower Glanmire Road in the City of Cork. The pleadings are quite simple. The Plaintiff/Appellants (to whom I will refer as “the Corporation) have brought Ejectment, on the Title proceedings against the Defendant/Respondent in respect of the plot. The Defendant avers that he has been in possession of the said plot for upwards of 12 years without acknowledging the title of the Corporation thereto. He had also pleaded that the plot was not the property of the Corporation but, insofar as this plea could be taken as amounting to a denial of the “paper” title of the Corporation, it has been abandoned and the Corporation was not put on proof of its paper title.We are only concerned, therefore, with the applicability of the Statute of Limitations Act, 1957.
The disputed plot in this case adjoins a garage premises and forecourt acquired by the Defendant almost 30 years ago and since then occupied by him. The internal boundary consists of a wire fence. There is a natural boundary on the northern side of the disputed plot. The western and southern bounderies consist of walls.There is no access to the disputed plot except through two gates along the internal boundary. The northern portion of the disputed plot (which is divided from the rest of it by a natural hedge) started to be used by the Defendant for the dumping of crashed cars shortly after the commencement of his garage business by the Defendant. Then around 1960or 1961 the Defendant commenced to use the remainder of the disputedplot for the purpose of parking customers’ cars and self-drive cars (as many as 40 or 50 cars). From then onwards it seems clear that there was no user of the disputed plot or any of it by any person or body other than the Defendant. A chain link fence was built along the boundary walls and along the natural northern boundary around 1973 or 1974 and the wire fence constituting the internal boundary was also erected. Thesurface was improved by chippings about twenty years ago and half ofthis was subsequently covered by tarmac.
Under Sec. 13 (2)(a) of the Statute of Limitations 1957 no action to recover land shall be brought by a person (other than a State Authority)after the expiration of 12 years from the date on which the right ofaction accrued to the person bringing it or, if it first accrued through some person through whom he claims, to that person. I am satisfied that there was exclusive physical occupation of the disputed plot by the Defendant for upwards of the statutory period but the matter does not end there. Under Sec. 18 of the 1957 Act no action to recover land shallbe deemed to accrue unless the land is in the possession (in the section referred to as “adverse possession”) of some person in whose favour the period of limitation can run.
The disputed plot was acquired by the Corporation in 1965. It was not compulsorily acquired nor was it specifically acquired for the purpose of road widening or the building of portion of a new road. I am nevertheless satisfied that this was the intention at the time of its acquisition and that this intention persisted up to the time of actionbrought. The intention was that it should form portion of a North RingRoad which was mooted almost forty years ago and which has since become a partial reality. It was argued on behalf of the Corporation that where a Local Authority acquires land it cannot be said to be dispossessed until something manifestly inconsistent with the ultimate purpose is done by the squatter e.g. the erection of a major structure. It was contended that the putting up of wire fencing, the laying of chippings and tarmacadam and the user as a car park did not amount to such occupation as would be manifestly inconsistent with the title of theCorporation which would not require physical occupation until such time as the contemplated road widening became an actuality.
In the case of:- Leigh .v. Jack 5 Exchequer Division p.264whichwas a decision of the Court of Appeal, Bramwell L.J. stated as follows:-
“In order to defeat a title by dispossession the former owner, acts must be done which are inconsistent with his enjoyment of the soilfor the purpose for which he intended to use it: that is not the case here, where the intention of the Plaintiff and her predecessors in title was not either to build upon or cultivate the land, but to devote it at some future time to public purposes”.
Again in the Court of Appeal in the case of:- Wallis’s Cayton BayHoliday Camp Ltd. .v. Shell-Mex and B.P. Ltd. 1974 3 A.E. P.575
Lord Denning stated as follows:-
“where the true owner of land intends to use it for a particular purpose in the future but meanwhile leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking of materials”.
There appears to be a dearth of modern Irish authority on the matter but the relevant English statutes are close enough in wording to those contained in the Irish statute as to make the English authorities strong persuasive precedents in this country.
I have come to the conclusion, therefore, that “adverse possession” within the meaning of the 1957 Act has not been established by the Defendant. The Appeal will, therefore, be allowed and there will be a decree for possession in favour of the Corporation.
The Corporation cannot be relieved, of some criticism in regard to laches in pursuing their claim or asserting their right to possession and for this reason there will be no Order for costs either in the Circuit Court or in the High Court.