General Principles
Further Cases
Byrne v Dublin City Council
[2018] IEHC 597 the High Court (Meenan J.) JUDGMENT of Mr. Justice Meenan delivered on the 22nd day of March, 2018.
Background
1. This is an appeal from the Circuit Court concerning the ownership of a plot of land (“the land”) situated at the rear of No. 33 Brian Road, Marino, Dublin 3. A number of properties on St. Declan’s Road, Brian Road and Brian Avenue, Marino adjoin the land.
2. The plaintiff is the owner of No. 33 Brian Road and the defendant has the paper title to the land.
3. In order to determine whether the plaintiff has acquired title by adverse possession of the land it is necessary to examine the history of both No. 33 Brian Road and the land. No. 33 Brian Road was formerly owned by the plaintiff’s grandfather, Mr. Michael Byrne. Mr. Byrne died on 23rd February, 1960 and he bequeathed the property to his wife, Mrs. Bridget Byrne.
4. On 3rd March, 1981, Mrs. Byrne was registered as the fee simple owner of No. 33 Brian Road (Folio DN 23259F). Mrs. Byrne died on 8th January, 1993 and she bequeathed No. 33 Brian Road, including the land, to her children, subject to the right of any of her children or grandchildren to purchase same. The plaintiff, a grandchild of Mrs. Byrne, purchased No. 33 Brian Road in 1993. The plaintiff has been living in No. 33 Brian Road and maintains that she has been in exclusive possession of the land since 1993.
5. It would appear that the defendant let the land in or around 1934 in four plots to Mr. Byrne at a rent of 37p per annum per plot. The rent was paid until 1985 and no payment has been made since. An order of the Assistant City Manager of the defendant dated 13th October, 1994 states:-
“Re: Plot of ground at rear St. Declan Road, Brian Road and Brian Avenue, Marino.
The large garden colour red on the attached map was let to Mr. Michael Byrne, the tenant purchasers of No. 33 Brian Road, in the early thirties. It was let as four plots at rents of 37p per annum each. The last rent was paid for 1985. Some of the residents of the houses surrounding the plot wish to obtain part of the site for use in conjunction with their present holding. Accordingly, it is desired to terminate the original tenancy of Mr. Michael Byrne.
Mr. Michael Byrne and his widow Mrs. Bridget Byrne are now both deceased. The house, 33 Brian Road, is reputed to be now occupied by their granddaughter.
I recommend that notice to quit be served on the present owner of No. 33 Brian Road in respect of the large garden at the rear.”
The “large garden” at the rear is the land the subject matter of these proceedings.
6. Following the said order of the defendant’s Assistant City Manager, a notice to quit the land was served on the defendant, dated 19th December, 1995. The notice to quit stated:-
“I hereby give notice that you are required to deliver up possession of the plot of ground at rear 33 Brian Road, Marino, Dublin on 19th February, 1996.
Please remove all your goods and belongings from the area by the above date.
If you refuse or neglect to deliver up possession of the said plot of ground on the said 19th February, 1996, ejectment proceedings will be instituted against you.
Dated 19th day of December, 1995.
Signed: Assistant City Manager.”
7. Subsequent to the notice to quit, there was correspondence between the then solicitors for the plaintiff and the defendant. Unfortunately, some of this correspondence has been mislaid and all that is now available are the replies from the defendant. These letters dated 26th January, 1996 and 20th February, 1996 indicate an intention on the part of the plaintiff to become registered as the owner of the land in the Land Registry.
8. The plaintiff gave evidence that the land was effectively used as the garden for No. 33 Brian Road. In the early years, the late Mr. Byrne used the land to grow fruit and vegetables; he constructed a glass house and kept hens on the land. Following the death of Mr. Byrne, Mrs. Byrne continued to use the land as part of the garden. She fenced off part of the land with a wire mesh fence so as to make the land inaccessible by any route other than through No. 33 Brian Road. It would appear that in the years after the death of Mr. Byrne, the growing of fruit and vegetables ceased, hens were no longer kept and the glass and hen houses fell into disrepair. However, during this period it would appear that the grass was cut and the boundaries were maintained on a regular basis by the Byrne family.
9. In November 2010 the plaintiff applied to the Property Registration Authority for first registration on the grounds of long possession. Following an exchange of correspondence, the plaintiff did not proceed with this application but subsequently renewed the application in August 2015.
10. The renewed application brought about a reaction from the defendant and the neighbours which led to these proceedings. Doors, gates and gaps began to appear in the boundary walls, fencing and bushes. The neighbours started planting and using the land for social events. Presumably, this was all with the aim of establishing that the plaintiff had not acquired title to the land and that the defendant could proceed with its plan to divide the land among the neighbours.
11. It is common case that the defendant owns the paper title to the land. The defendant proposes to divide up the land amongst the adjoining neighbours. However, should the plaintiff successfully establish that she has acquired title to the land by way of adverse possession then this division cannot proceed. It is in these circumstances that the dispute now comes before this Court.
Statutory Provisions
12. The relevant provisions of the Statute of Limitations Act 1957 (as amended) are:-
Section 13(2):-
“The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;”
Section 17(2):-
“(a) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Act, be deemed to be determined at the expiration of the first year or other period.
(b) The right of action of a person entitled to land subject to a tenancy from year to year or other period, without a lease in writing, shall be deemed to have accrued at the date of the determination of the tenancy, unless any rent or other periodic payment has subsequently been received in respect of the tenancy, in which case the right of action shall be deemed to have accrued on the date of the last receipt of rent or other periodic payment.”
Section 24:-
“Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
Legal Authorities
13. There are numerous authorities on the issue of adverse possession. The Supreme Court decision in Dennis Dunne v. Irish Rail and Córas Iompair Éireann [2016] IESC 47 sets out clearly the principles which a court should apply in dealing with a case such as this. It is not necessary to set out the facts of Dunne as it is clear that cases of adverse possession are particularly fact specific.
14. I refer to the judgment of Laffoy J. where she states:-
“7. The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the following terms:
“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘ animus possidendi’ ).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at para. 4.5) as follows:
“It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.’
In my view, that statement is indisputable”
15. In his judgment, Charleton J. stated:-
“8. The extent of usage required for possession adverse to the holder of the title deeds might first usefully be considered. Buildings and lands and vary markedly as to character and potential use. It is that character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner… It is the ordinary use to which such land may be put that assists in determining whether possession has been taken of it. A residential dwelling is defined by the fact that people live in it. Possession is taken of a flat or a house by moving in to it and living in it as if the place belonged to the possessor…
9. It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. What is required is a use inconsistent with the title-holder. Relevant, therefore, is the extent of the land or premises, the character of the realty and the ordinary use to which same would be put. In a series of cases, it has been consistently held that a particular analysis of the individual circumstances of possession must be made by the trial judge…”
and
“13. Intention to possess may be proven by direct testimony but, given the tendency towards mistakes of memory and exaggeration in such cases, is perhaps more reliably established as an inference from the particular circumstances of a given case; in other words, intention to exclude the owner is best judged from the facts on the ground. That will be a matter for the trial judge. Where no, or minimal, use is made of land, it may be a simple matter not to draw an inference that there was an intention to exclude the title holder…”
Submissions
16. Mr. Gavin Ralston S.C., on behalf of the plaintiff, submitted that the 12 year period required for adverse possession commenced on 19th February, 1996, the date of the expiry of the notice to quit. It is submitted that during this 12 year period the plaintiff was in clear possession of the land and had the intention to possess the land. Maintenance of the land and securing of the boundaries are demonstrative of such.
17. Mr. Paul Burns S.C., on behalf of the defendant, made two principal submissions:-
(i.) When the plaintiff purchased No. 33 in 1993 she only acquired No. 33 Brian Road (Folio DN 23259F). She never acquired any interest in the land. Service of a notice to quit did not confirm any title or confer any title to the land on the plaintiff.
(ii.) The plaintiff fails the tests to establish adverse possession set out in the Dunne case. Reliance is placed on the passage of Charleton J., set out a para. 15 above, to the effect that “It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question…”
Decision
18. As to whether adverse possession has been established it is necessary for the court to decide, in the words of Charleton J., what is “the character of the realty and the ordinary use to which same would be put.” In my view, the land is a garden and this Court must establish whether the plaintiff has been using the land in a manner that is consistent with it being her garden.
19. The plaintiff’s grandfather used the land for the growing of fruit and vegetables. He also constructed glass houses. Following his death in 1960, the plaintiff’s grandmother came into possession of the land and paid rent until 1985. In the years before her death in January, 1993, the growing of fruit and vegetables effectively ceased, presumably, resulting in the greenhouses falling into disrepair. This was the situation when the plaintiff acquired her interest in the 1993.
20. Gardens vary between those with well manicured lawns, herbaceous borders and flowers and shrubs for every season, to those which have been handed back to nature. In this case the garden, like many, falls between the two. The plaintiff gave evidence of regularly mowing the grass, keeping the boundaries in shape and, from time to time, holding family events in the garden during the summer. This is as much as many do in their gardens.
21. It is the case that since 2009 the plaintiff undertook a number of significant improvements to the garden. For example, the removal of the glass house and laying a patio area with an adjacent chimney/barbeque area. However, it does not follow that the plaintiff only began using the land as a garden from this time.
22. Evidence was given by neighbours that they rarely, if ever, saw the plaintiff in her garden. I attach little weight to this. The plaintiff is in full-time employment and, apart from a lodger, lives alone. I do not think that it is at all surprising that the plaintiff is not more frequently seen in her garden which, on the evidence of the neighbours, can only be viewed from the upstairs windows of neighbouring houses.
23. It is also clear that the defendant had no involvement with the land. The defendant did not cut the grass, maintain the boundaries or provide any access route other than through No. 33 Brian Road, a private dwelling house.
24. A number of neighbours gave evidence of gaining access to the land where the boundary was delineated by bushes. However it was not until 2015 that gates or doors were constructed in the boundary fences/walls to enable access.
25. By reason of the foregoing, I conclude that the plaintiff had both the requisite intention to possess ( animus possidendi ) and the factual possession of the land. Although the defendant owns the paper title, it has carried out no act of ownership on the land since the service of a notice to quit on the plaintiff in December 1995 other than indicating a desire to subdivide the land amongst the neighbours.
26. It was submitted by the defendant that when the plaintiff purchased No. 33 Brian Road in 1993 she acquired no interest in the land. I have already detailed the evidence that supports the plaintiff’s factual possession of the land and the requisite intention to possess. I believe that this situation was accepted by the defendant when it served the notice to quit. I refer to the wording of the notice to quit which required the plaintiff to “deliver up possession”. Further, by letter dated 20th February, 1996 from the Assistant Law Agent of the defendant to the plaintiff’s then solicitor it is stated:-
“My clients have now served a notice to quit on your clients and they intend to resume possession of the site…”
The defendant took no further steps to obtain possession of the land.
Conclusion
27. By reason of the foregoing, I find that the plaintiff acquired title by way of adverse possession to the land on 20th February, 2008, 12 years after the expiry of the notice to quit. Therefore, I affirm the order of the Circuit Court.
Dunne v Irish Rail
[2016] IESC 47
Judgment of Ms. Justice Laffoy delivered on the 28th day of July, 2016
Focus of judgment
1. In a report published by the Law Reform Commission in 1989 entitled “Report on Land Law and Conveyancing Law: (1) General Proposals”, LRC 30 – 1989 (Dublin, 1989) it was stated (at para. 52):
“The doctrine of adverse possession has been said to be one of the most controversial features of modern land law. The modern doctrine of adverse possession is provided for in the Statute of Limitations 1957.”
In the report certain amendments to the Statute of Limitations 1957 (the Act of 1957) were proposed. The operation of the doctrine of adverse possession was reviewed again by the Law Reform Commission thirteen years later and the resultant report entitled “Report on Title by Adverse Possession of Land”, LRC 67 – 2002 (Dublin, 2002) recommended further changes to be implemented by statute. Three years later in the report entitled “Reform and Modernisation of Land Law and Conveyancing Law”, LRC 74 – 2005 (Dublin, 2005), the changes which had been recommended in 1989 and 2002 were incorporated in the draft Land and Conveyancing Bill published in the report. In due course, most of the provisions in the draft Bill were enacted into law in the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), which came into effect on 1st December, 2009. However, the provisions of the draft Bill which had been proposed in 1989 and in 2002 to implement the recommendations made in relation to limitations of actions and adverse possession were not included in the Act of 2009 and since then have not been enacted into law. Accordingly, the legal principles which apply to the issues which arise on this appeal have not changed since the judgment of the High Court in these proceedings was delivered on 7th September, 2007 by Clarke J. (the trial judge) ([2007] IEHC 314).
2. Around the time the trial judge delivered judgment, almost nine years ago, there was a considerable amount of academic and practitioner comment on the then state of the law on adverse possession in this jurisdiction, to some extent, it would seem, fuelled by concerns arising from proceedings in the European Court of Human Rights in J.A. Pye (Oxford) Limited v. United Kingdom. The judgment in that case was given by the Grand Chamber on 30th August, 2007 ((2008) 46 EHRR 45). The Grand Chamber ruled that the doctrine of adverse possession as then applied in the United Kingdom did not infringe the European Convention on Human Rights.
3. While the appellant on the appeal, who was the plaintiff in the High Court proceedings, was legally represented by solicitors and counsel in the proceedings in the High Court, he filed the notice of appeal against the judgment and order of the High Court in person and he appeared in person on the hearing of the appeal. The appellant filed written submissions in this Court on 29th January, 2016. Having regard to the format and content of those submissions, it is reasonable to assume that the appellant did not have the benefit of professional legal advice in preparing them. One element of the written submissions has been interpreted by counsel for the respondents (sometimes hereafter collectively referred to as CIÉ) in the written submissions filed on behalf of the respondents on 16th March, 2016 as possibly being a challenge to the legal principles applied by the trial judge in his judgment. It is that matter, which will be outlined later, which is the focus of this judgment.
4. As regards the other issues which arise on this appeal, I am in agreement with the judgment to be delivered by Charleton J. I am also grateful to be in a position to be able to rely on his outline of the factual background and the legal and factual context underlying all of the issues in the case, so that this judgment should be read in the light of that outline.
5. To put in context the matter on which the judgment focuses, I propose first outlining the legal principles applied by the trial judge and summarising the manner in which he applied them to the facts.
Legal principles and their application to the facts
6. In section 4 of his judgment the trial judge outlined the relevant legal principles and in section 5 he applied the law to the facts of the case.
7. The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the following terms:
“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at para. 4.5) as follows:
“It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.”
In my view, that statement is indisputable.
8. Having addressed a controversy arising from a conflict between two authorities in this jurisdiction dating from the 1980s, to which I will return, Clarke J. stated (at para. 4.9) that it was common case on the proceedings before him that, in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. He then quoted the following passage from the judgment of Slade J. in Powell v. McFarlane (at p. 472), which was addressing the concept of animus possidendi. Slade J. stated:
“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”
Although not quoted by the trial judge, Slade J. went on to state that such position is quite different from a case where the question is whether a trespasser has acquired possession.
9. Substituting the expression “minimal acts” for “slightest acts” used by Slade J., the trial judge continued (at para. 4.8):
“It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.”
The trial judge then identified the relevance of the foregoing as arising from the respondents’ contention that a number of actions taken by CIÉ amounted to acts of possession. He identified his task as assessing whether those acts did amount to possession having regard to the low threshold identified in the authorities, so that, if they did, they would “prevent time running during the period in which they occurred”, that is to say, running in favour of the appellant and against the respondents.
10. In the next paragraph (para. 4.9), the trial judge made the following observation:
“On the other hand it is common case that once title is extinguished it cannot be reactivated or reinstated by means of a minimal act of possession.”
However, later in his judgment, the trial judge concluded that the title of the respondents was not extinguished, so that statement, on the facts of the case, is theoretical.
11. Returning to the controversy referred to earlier, the trial judge stated (at para. 4.6) that it had been suggested that there were two lines of authority in relation to adverse possession in this jurisdiction: one derived from the judgment of Egan J. in the High Court in Cork Corporation v. Lynch, which was delivered in the High Court on 26th July, 1985 and was subsequently reported as [1995] 2 I.L.R.M. 598; and the other derived from the judgment of Barron J. in the High Court in Durack Manufacturing Limited v. Considine [1987] I.R. 677. In a nutshell, the distinction between the two authorities related to the approach to be adopted to a situation where the legal owner was making no use of the lands when the person claiming adverse possession entered the lands but had future plans for the use of the lands. The trial judge stated (at para. 4.7) that he preferred the reasoning of Barron J. –
“. . . in which he accepted that factors such as the future intended use of the property by the party with paper title might be a factor in determining whether the necessary intention was present in the party claiming adverse possession but was not otherwise a matter properly taken into account.”
While he elaborated on his understanding of the reasoning of Barron J., he concluded his observations on the controversy by stating (at para. 4.7):
“In fairness, counsel for CIE agreed that, on the facts of this case, there was no evidence that CIE had, for much of the relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch in any event.”
That being the case, as is pointed out by Charleton J. in his judgment (at para. 12), the controversial issue does not arise for decision on this appeal.
12. The final legal principle considered by the trial judge was addressed by reference to the passage from the judgment of Black J. in Convey v. Regan [1952] I.R. 56, which, as the trial judge noted, was followed by the Chancery Division of the English High Court in Powell v. McFarlane (at p. 479), and which is quoted by Charleton J. in his judgment at para. 16. The trial judge went on to state (at para. 4.11):
“I am, therefore, satisfied that, where the extent of use of lands in respect of which adverse possession is claimed are consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it is appropriate to infer the lesser rather than the greater entitlement.”
That principle, in my view, is well established and cannot be disputed.
13. Turning to the application of the legal principles to the facts before him, the trial judge first considered what he referred to as the “alleged acts of possession on the part of CIE” and he found (at para. 5.4) that they amounted “to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times”. He expressly did so having regard to what he described as “the very low threshold” which, on the authorities, he was required to apply to acts of possession by the paper title owner. He followed that finding by the following passage (at para. 5.5), which is quoted in the appellant’s written submissions:
“I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times.”
That passage is introduced in the appellant’s written submissions by the words:
“Clarke J. seemed to state that these acts were still ‘minimal’ . . .”
14. Following on from what is quoted in the preceding paragraph, the trial judge concluded (at para. 5.5) that no adverse possession claim could be maintained in respect of any period subsequent in time to in or about 1993 when the acts, which he was satisfied amounted to a sufficient act of possession on the part of CIÉ, commenced. The trial judge then considered whether the appellant had established adverse possession sufficient to have extinguished CIÉ’s title prior to 1993. On his analysis of the evidence which was before him, he concluded (at para. 5.11) that he was not satisfied that that the nature and type of occupation exercised by the appellant in the period up to 1993 was sufficient to establish adverse possession. It was on that basis that he found that the appellant’s claim must fail.
15. It is against that background that I will now consider the matter raised in the appellant’s written submissions which is the focus of this judgment and the respondents’ counsel response to it.
Matter raised by appellant and respondents’ response
16. Once again, it is important to emphasise that the appellant did not have legal representation on the appeal. In the written submissions filed in this Court, he addressed certain matters under the heading “Title”, which related to the respondents’ paper title, and under the heading “Adverse Possession”. He then set out certain provisions of the Railway Act 1844. Next, he quoted the passage from the judgment of the trial judge at para. 5.5 which I have quoted above and introduced it in the manner indicated earlier, by suggesting that the trial judge seemed to state that the acts of the respondents were still “minimal”. Thereafter the following was stated:
“In conclusion, Clarke J.’s judgment represents on the one hand a most welcome clarification of the law on establishing adverse possession. On the other hand, the test for ‘ceasing adverse possession’, if the author’s view is correct, would appear to be a novel formulation hitherto unexplored. There is a strong legal foundation for the approach, because of the presumption that the paper owner intends to take possession. However, should the same test be applied for re-possession, once possession has been lost or abandoned? Or is it right that minimal or coincidental acts that look like possession or an intention to possess are enough to stop time running, even though an intention to re-possess might not exist?
With the threshold for re-possession so low, and the test so favourable to paper-owners, it is difficult to see how a possessor can win, short of the paper-owner being unaware of his title, or being abroad, or having absolutely no interest over the land. Perhaps, however, this is the correct scope for the doctrine. Perhaps if this had been the law in the U.K., the human rights dimension would never have been in question.”
On reading that statement, it was reasonable to surmise that, in making it, the appellant was quoting observations by a legal practitioner or an academic on the judgment of the trial judge. Although the source was not identified by the appellant in the written submissions, fortunately it has been possible to identify the source as an article by Nicholas McNicholas, B.L. entitled “Recent Developments in Adverse Possession” published in the Bar Review (Volume 12, Issue 6, December 2007).
17. In addressing the appellant’s submission on that point, counsel for the respondents noted that the trial judge had stated in his judgment (at para. 3.5):
“In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should apply.”
Nonetheless, counsel for the respondents addressed the references in the appellant’s submission to “ceasing adverse possession” and to “a novel formulation” allegedly applied by the trial judge and to the questions raised in relation to the test to be applied “for re-possession, once possession has been lost or abandoned”. Counsel for the respondents submitted that the appellant’s submission is misconceived, pointing out that legal possession is not lost or abandoned until a person claiming to be in adverse possession can demonstrate twelve years of exclusive possession with the necessary intent and, until that point is reached, a person claiming to be in adverse possession remains a trespasser. Further, it was submitted that the question of “intention to re-possess” by the owner does not arise, “as such person is already in legal possession insofar as they have title to the lands”.
18. From the perspective of this Court on the appeal, there is a proper practical approach to the questions raised in the appellant’s submission in relation to the test to be applied “for re-possession, once possession has been lost or abandoned”. It is that, as no issue arises on the appeal as to the test to be applied for re-possession, because of the findings of the trial judge, with which I agree, that the appellant had not established adverse possession by 1993 and that from 1993 onwards the actions of the respondents were sufficient to negative adverse possession. Accordingly, it is unnecessary for this Court to comment on the relevant test.
19. It is only fair to record that counsel for the respondents, reading the thrust of the appellant’s submission as being to challenge the statement of the trial judge that certain minimal acts of the legal owner are enough to stop time running, submitted that this is not a novel formulation and that it is well supported by existing authority, giving as an example, inter alia, the reference to “slightest acts” in the judgment of Slade J. in Powell v. McFarlane. Reference was also made to the fact that the judgment of the trial judge has been applied or cited with approval in subsequent High Court judgments in this jurisdiction, referring, in particular, to the judgment of Hogan J. in Dooley v. Flaherty [2014] IEHC 528. It was also pointed out that it was also cited in the judgment of Horner J. in the Chancery Division of the Northern Ireland High Court in McCann v. McCann [2013] N I Ch 7, in which Horner J. quoted the passage at para. 4.9 quoted earlier (at para. 9).
20. Although the trial judge undoubtedly concluded that the respondents had only to meet a very low threshold to establish continued possession and that the acts of possession relied on by the respondents fell into the “minimal” class, the crucial factor is the nature of such acts. Those acts were of a different nature to the acts which in Feehan v. Leamy [2001] IEHC 23, a decision of the High Court (Finnegan J.) which has been controversial on this point, were found to be adequate to stop the limitation period running. There the acts of possession merely involved the legal owner visiting the land in issue on a number of occasions each year, and, having parked his car, looking over the hedge or the gate into the lands in issue. The acts of the respondents in this case, on the other hand, involved, in the course of the renovation and modernisation of Clondalkin railway station, incorporating a portion of the land in dispute in the railway station and building new fences and the like, to the extent that it was accepted by the appellant in evidence that the workers on behalf of the respondents were on the disputed land for a year and a half from 1993 to 1995. Subsequently, a contractor retained by the respondents entered on the disputed land in 2001 to repair fences in response to a complaint from an adjoining owner.
21. It is not beyond the bounds of possibility that in some future case a different view may be taken of the effect of the legal owner of land merely gazing over a wall or fence on to the land several times in a year and that such action may not be found to be sufficient to prevent a trespasser on the land being in adverse possession. However, it is not for this Court to speculate on whether that may happen, nor whether there may be other types of action on the part of a legal owner of a more minimalist nature than the actions by the respondents in this case, which could give rise to a similar finding. For present purposes, the determining feature is that the finding of the trial judge on the application of the relevant legal principle to the actions of the respondents from 1993 onwards is a correct finding.
Outcome of the appeal
22. The appellant has not established that the trial judge did not apply correct legal principles to the resolution of his claim against the respondents that he has acquired title by adverse possession to the lands in dispute, nor has he established that the application by the trial judge of the relevant legal principles to the factual situation was erroneous. Accordingly, the appropriate order is an order dismissing the appeal.
23. Having said that, although none of the aspects of the law which have given rise to controversy in the past have had a bearing on the outcome of this appeal, it must be acknowledged that the appeal illustrates that the law on the doctrine of adverse possession is probably still as controversial as it was in 1989. There would seem to be a need for a review of the recommendations made by the Law Reform Commission in 1989, 2002 and 2005 with a view to bringing clarity to the law in this area.
Judgment of Mr Justice Peter Charleton, delivered on Thursday 28th July 2016
1. Dennis Dunne, the plaintiff/appellant, claims to have been in possession of a 3-acre field beside Clondalkin Railway Station from 1977 to 2007. Given that the limitation period on actions to recover land is 12 years, this should be ample from the point of view of the efflux of time to assert adverse possession. The defendants/respondents, Irish Rail and Córas Iompair Éireann, commonly called CIÉ, claim ownership of the field and have counterclaimed in support of their rights. They assert that there has been no possession by Dennis Dunne which is adverse to their rights as owner. In turn, Dennis Dunne has disputed their title to the land. In the 5 day trial in the High Court before Clarke J, judgment of 7th September 2007, [2007] IEHC 314, Dennis Dunne was represented but lost his case on both grounds, while Irish Rail succeeded on the counterclaim. On this appeal, however, he pleaded his own case and has asserted that the trial judge legally and factually misconstrued his claim for adverse possession, ignoring the fact that he was in “unhindered possession” of the property for 30 years while “maintaining and securing” the property without objection. The circumstances of adverse possession being many and varied, more extensive reference to the facts is required than is usual on an appeal. This judgment concurs with that of Laffoy J.
2. That said, while the owner of land bears the burden of proof on a claimant or counterclaimant who asserts ownership of land through possession, the process of appeal is not one of rebalancing evidence. Instead, it is about the scrutiny of the findings of the trial judge to ensure that any fact upon which the judgment depends was based on evidence. Henchy J in Northern Bank Finance Corporation Limited v Charlton [1979] IR 149 at 194, discussing the limited circumstances in which a finding of fact made by a trial judge may be overturned, noted that an appellate court “can but reject [the trial judge’s] conclusions when they are shown to be incorrect by reference to the totality of the evidence”. Any such finding on appeal will necessarily be rare, as it is not part of the function of an appellate court to weigh evidence in the balance as if in substitution for the function of the trial judge in determining what degree of credit and impact should be given to particular aspects of testimony. The function of an appellate court is not the imaginative recreation of the trial but, rather, the reposing of trust in the trial judge whose findings are not to be upset once these are supported by evidence; although more evidence may seem in certain circumstances to support an alternative conclusion. As McCarthy J remarked in Hay v O’Grady [1992] 1 IR 210 at 217, the “truth is not the monopoly of any majority.” This case is one where it may fairly be said that there was some evidence on both sides on the adverse possession issue, while on the title issue raised against CIÉ by Dennis Dunne, there was uncontradicted evidence as to ownership by the national transport corporation.
The title issue
3. This matter may be dealt with briefly. CIÉ have been at all material times the rateable occupiers of this land. A series of letting agreements were made of the land by CIÉ, in the context of farming and grazing, between the 1930s and the 1960s. A private Act was passed in the Westminster Parliament, then engaging jurisdiction over this country, in 1844 “for making and maintaining a Railway from the City of Dublin to the Town of Cashel, with a branch to the Town of Carlow”. It was under that Act that the predecessors of CIÉ, the Great Southern and Western Railway, acted to acquire land: a form of compulsory purchase limited strictly to a particular breadth. Under the Act of 1844, no land was actually conveyed to the predecessors of CIÉ. Rather, the company was capitalised under s.2 of the Act and was given a power to compulsorily acquire land necessary for the completion of the railway. At trial, title deeds were produced before the High Court showing that among the lands acquired for building the railway line were parcels at Neilstown and the adjoining townlands of Cappagh and Ballynagigan. A land survey referenced in evidence from 1848 demonstrates ownership in the railway company of this particular field. A deed from 25th December 1845 demonstrates not only how hard people were then expected to work, but also that “portions of land in the townland of Neilstown situate in the parish of Clondalkin in the county of Dublin, containing in the whole 2 roods and 7 [perches], Irish plantation measure” was conveyed. Correspondence was demonstrated between the plots filed and one of the plots then purchased. This was shown as being near Clondalkin Station. As to whether this exhibited good title, a conveyancing solicitor was called, Colin Keane, who gave his expert opinion that the documents were:
[A] good paper title in the form of these conveyances. And as long as one can be satisfied that the book or book of reference which is referred to in the deeds is that book of reference there, then you have good title vesting in the Great Southern and Western Railway. And from my knowledge of other titles, I know by various statutes how it has devolved down to CIÉ and Iarnród Éireann… I think it is a far better title than one would normally be accepting. It is at least 100 years older than most titles we see.
The trial judge was content to accept that evidence:
On the basis of the deeds produced in evidence by Mr. Keane and, indeed, his own expert opinion on same, I am satisfied that they amount to prima facie evidence that all of the land shown in the 1848 survey was in fact acquired, at that time, by the railway company. Those lands included the triangular piece of land which is in dispute in these proceedings.
4. Another point was also raised by the appellant in addition to title. It was that the predecessor of CIÉ did not have capacity to acquire title originally. In the notice of appeal, it is also pleaded that “an incorporated entity such as the Respondent, is precluded from gaining title by adverse possession”. The capacity point requires decision first. The Act of 1844 enabled the predecessor of CIÉ to acquire land for railways and for ancillary purposes, one example being s. 230 which afforded the company a wide power “for the Purchase of any Land adjoining or near to the Railway” for the varied purposes of constructing “additional Stations, Yards, Wharfs and Places for the Accommodation of Passengers, and for receiving, depositing, and loading or unloading Goods or Cattle to be conveyed upon the Railway”. In addition, the railway company, in laying out the line, could be compelled by a landowner whose property it bisected to purchase the slice of land cut off from the main holding: “land which shall be so cut through and divided by the railway works” as s. 196 puts it. While there is no evidence that this happened, there was evidence that in the days when cattle were conveyed by train, fields near railway stations were commonly acquired to be used for casual grazing or as a secure pound pending transportation. Frank Masterson, assistant group property manager for CIÉ, referenced what he knew about the land holding pattern at other stations before the High Court:
There would have been extensive freight traffic on the lines … Well, the freight would have consisted of various differencing in agriculture product but also a large element in those days and until fairly well into this century was livestock, so cattle in particular… At a number of locations, most of the locations, for example, that are shown on here there is wide expansive land in addition to the land that the station sits on, which we generally use to, I suppose, staging or storage areas for the cattle until such time was that they were put on trains. You remember obviously that Clondalkin is quite built up now, but at that stage it was well into the countryside.
This evidence was correctly accepted by the trial judge. While a hearsay point was mentioned in argument in the High Court, it was not pursued on this appeal. Reliance on experience of the interpretation of maps which are neutral as to their effect, dating from a time well before any dispute could even have been thought of, does not engage the hearsay rule. Consequently, no issue arises as to corporations and title by long possession.
Adverse possession
5. The field in question is of rough grazing and scrub land, in triangular shape, bounded by old hedges with intermittent fencing, and runs northwards from Clondalkin Station to lands of about the same acreage and a house owned by Seán Kavenagh on the northwest. Beyond this house is a suburban housing estate called Moorfield, while on the north-eastern side there is an extensive business called Cummin’s scrapyard. Since 2007, the field has been taken possession of by CIÉ and the then existing two track system has been expanded on the field to a four track system. Dennis Dunne claims to have made use of the field through the grazing and training of horses, the keeping of chickens, ducks and dogs and the building of stabling and sheds. All this was claimed in the High Court to evidence an intention to displace the title-holder to the land and was asserted to be a sufficient occupation of the field to amply meet the requirement that full usage of the land is required for adverse possession and not mere casual or occasional or limited occupation.
6. Section 13(2) of the Statute of Limitations 1957 fixes the time period for the recovery of land that is adversely possessed as against the holder of the title:
The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority, whichever period first expires.
Here, although CIÉ is a State corporation, it has not been argued that anything other than the ordinary limitation period of 12 years applies. Section 18 requires that for a right of action to accrue to the holder of the title to land, there must be possession adverse to that by some other person:
(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where—
(a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and
(b) no person is in adverse possession of the land on that date,
the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.
(3) Where a right of action to recover land has accrued and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession.
(4) For the purposes of this section—
(a) possession of any land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rentcharge shall be deemed to be adverse possession of the rentcharge, and
(b) receipt of the conventional rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be deemed to be adverse possession of the land.
As amended by the Registration of Title Act 1964, s. 24 sets out the consequences of adverse possession for the full limitation period:
Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.
7. To summarise: s. 13(2)(a) of the Statute of 1957 bars the title holder from recovery of land after the elapse of twelve years from “the date on which the right of action accrued to the person bringing it”; while s. 18(1) provides that no “right of action to recover land shall be deemed to accrue unless the land is in the possession … of some person in whose favour the limitation period can run”; while s.18(2)(b) provides that a “right of action” does not accrue “unless and until adverse possession is taken of the land”; but where there is such possession adverse to the title holder, s. 24 provides that “at the expiration of the period fixed … the title of that person to the land shall be extinguished.” In construing the relevant legal concepts, Clarke J drew in his judgment on the analysis of Laffoy J in Tracy Enterprises Macadam Limited v. Thomas Drury [2006] IEHC 381 (Unreported, High Court, Laffoy J, 24th November, 2006)..
8. The extent of usage required for possession adverse to the holder of the title deeds might first usefully be considered. Buildings and lands and vary markedly as to character and potential use. It is that character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner. For instance, a bridge needs to be supported at each end of its span by the ground on which it rests. It is difficult to conceive of situations where the land needed to support, inspect, repair and maintain a bridge could be adversely possessed. The curtilage of land around the bridge is for a particular purpose which is ancillary and necessary for the structure. Thus in Dundalk UDC v Conway [1987] IEHC 3 land beside and under a bridge which was dedicated to support and maintenance was held not to have been adversely possessed. Where land is not supporting structures, the first point of analysis should be the nature of that land, be it agricultural, tillage, grazing, forestry, bog or limestone karst. It is the ordinary use to which such land may be put that assists in determining whether possession has been taken of it. A residential dwelling is defined by the fact that people live in it. Possession is taken of a flat or a house by moving in to it and living in it as if the place belonged to the possessor. Of course, the majority of such cases are concerned with overholding after the right of the landlord to rent has been responded to by non-payment by the tenant. As to when such a right of action accrues to the landlord, when time begins to run adversely, is not for decision now. Where what is involved is a flat within an apartment complex, ordinarily the squatter or the overholding tenant will occupy one particular dwelling. Adverse possession rights to an entire complex do not accrue by taking possession of a particular defined unit. Thus the character of the intrusion onto another’s land ,premises, or structure, the extent of any continued use by the holder of title, the nature of the ordinary occupation that would be expected and whether there are defined boundaries marking the extent of any claimed possession are all factors that require consideration.
9. It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. What is required is a use inconsistent with the title-holder. Relevant, therefore, is the extent of the land or premises, the character of the realty and the ordinary use to which same would be put. In a series of cases, it has been consistently held that a particular analysis of the individual circumstances of possession must be made by the trial judge. In Murphy v Murphy [1980] IR 183 at 202, Kenny J explained the nature of possession which is adverse thus:
In s. 18 of the Act of 1957, adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v Griffin [[1969] 1 WLR. 23.]
10. While an ouster of the title-holder is not required, in the sense of acts to physically dispossess that person, such user as the character of the land or premises ordinarily and reasonably suggests is required in order for possession to be adverse. Quoted with approval in Bula Ltd (in receivership) v Crowley (No 3) [2003] 1 IR 396 at 425 per Denham J, is a classic statement to that effect by Lord O’Hagan in Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 288:
As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.
11. The cases set out in Canny – Limitation of Actions (Dublin, 2010) at 67-70 are also illustrative of the individual analysis that such cases demand. In argument, counsel for CIÉ claimed that some kind of sign should have been erected outside this field asserting ownership by Dennis Dunne. While there may be some suggestions from cases in other jurisdictions illustrating how possession may be rendered adverse by this kind of dramatic manifestation, any such requirement does not exist in this jurisdiction. Nor could such a suggestion be elevated to a rule of law. It might merely be an instance of how possession adverse to the title holder might be taken. In Powell v McFarlane [1969] 38 P&CR 452 at 478 suggests “ploughing up and cultivation of agricultural land”, “enclosure of land by a newly constructed fence”, and “a notice on land warning intruders to keep out” as instances of positive activities that speak loudly of possession. These may be examples relevant to particular cases. Individual analysis of circumstances is required, however, in all these cases. What is required is possession of an unequivocal character that there is a person occupying adversely to the title holder. As Slade J put the matter in the Chancery Division of the England and Wales High Court, and as Clarke J accepted in his judgment, what is necessary to show adverse possession is “an appropriate degree of physical control”. O’Hanlon J put the matter thus in Doyle v O’Neill (Unreported, High Court O’Hanlon J, 13 January 1995), cited in this case by Clarke J in the High Court, at 20:
In order to defeat the title of the original landowner, I am of the opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.
12. While in some cases the title holder’s intention for future use has defeated what might ordinarily seem a complete form of occupation by the party claiming adverse possession, this is not determinative and may be no more than a factor; see Leigh v Jack (1879) 5 Ex D 264, Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94, Cork Corporation v Lynch [1995] ILRM 598, and to the contrary Seamus Durack Manufacturing Limited v Considine [1987] IR 677. The matter does not now arise for decision. While Clarke J preferred the latter case, counsel for CIÉ conceded that for much of the decades past, CIÉ had no particular plan for this field. Hence, no ruling is made as to future intended use on this appeal. Clarke J correctly identified that mere occupation is not enough to ground a claim of adverse possession and that what is also required is that the ostensible adverse occupier of the land does so with the intention of excluding the original owner. The matter is put thus in Halsbury’s Laws of England, volume 68 at para. 1080 of the 5th edition:
For there to be adverse possession the person claiming possession should have the necessary intention, that is, an intention to possess the land to the exclusion of all other persons including the owner with the paper title so far as is reasonable and so far as the process of the law will allow. An intention to use the land merely until prevented from doing so does not amount to the requisite intention.
13. Intention to possess may be proven by direct testimony but, given the tendency towards mistakes of memory and exaggeration in such cases, is perhaps more reliably established as an inference from the particular circumstances of a given case; in other words, intention to exclude the owner is best judged from the facts on the ground. That will be a matter for the trial judge. Where no, or minimal, use is made of land, it may be a simple matter not to draw an inference that there was an intention to exclude the title holder; an instance being Seamus Durack Manufacturing Limited v. Considine. An example of the absence of an intention to possess is Feehan v Leamy (Unreported, High Court, Finnegan J, 29th May 2000) where the claimant had asserted that a farm, of which he later claimed occupation, was in fact owned by someone in America. The circumstances constituting possession will inevitably be various, but fundamental is that the new possessor takes occupation of the land or premises, or a defined portion thereof, with a view to the exclusion of all others. Such possession must not be by force, deception or with the permission of the owner of the legal title; nec vi, nec clam, nec precario. Hence, lands that are overheld but where there is a mortgage of the land to another party are a particular circumstance; Ulster Bank Limited v Rockrohan Estate Limited [2015] IESC 17. Licensees are another special case. Thus, permission to occupy removes the adverse element from the use of land; Murphy v Murphy [1980] IR 183 at 195.
14. As between the person claiming to adversely possess land and the original owner, the balance tends towards the latter in that any action demonstrative of the assertion of the original title will stop time running. Such acts may be minimal. At paragraph 4.9 of his judgment in the High Court, Clarke J thus correctly encapsulated the relevant principle:
In Powell v. McFarlane Slade L.J. noted, at p. 472, that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.” It is, therefore, important to emphasise that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.
15. Halsbury at para. 1081 puts the principle in a similar way:
Where, having taken adverse possession of unregistered land, a trespasser expressly or impliedly acknowledges the title of the owner, time will start to run afresh against the owner from the date of the acknowledgment. However, an acknowledgment of title made after the expiry of the limitation period will not suffice to revive the owner’s title. There is no similar provision in the case of registered land.
At para. 1082 of Halsbury, the law is stated to be that the discontinuance of possession must be by the party entitled to the possession. Trespassers coming in and making a nuisance are not asserting the right of either the title-holder or of the party claiming possession adverse to the original owner. One of the acts of entitlements of a landowner is to allow others to enter, cross, use or to otherwise enjoy land according to whatever permission is given. Adverse possession is the taking of land to the exclusion of the title-holder and to the exclusion of others. It can be evidence that land was not taken possession of to the extent that its character would ordinarily and reasonably suggest that paths were not blocked off, that prior users continued in their activities on the land and that shortcuts through the land continued to be asserted to gain access to a public utility. There is a very big difference, for instance, between inviting people onto a property for the showing or exercising of horses and those same people asserting a user as if the land in question was just general waste or unused land that might be resorted to by anybody. That difference may be summed up in stating that control over land is a fundamental aspect of occupation.
16. The case Convey v. Regan [1952] IR 56 is authority for the proposition that where the actions of the new occupier are equivocal as to the dispossession of the title-holder, as for instance where a bare grazing right is exercised instead of an occupation of the land, circumstances may suggest a failure to achieve adverse possession. In that case, the principle was put by Black J thus at 59:
The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner’s lands, he must show that those acts were done with animus possidendi, and he must show this unequivocally. It is not, in my view, enough that, the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or to a profit à prendre. When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.
17. Individual circumstances will vary from case to case, however. It may be better to acknowledge that land which is in reality capable only in its ordinary character of being used for rough grazing, may be fully occupied by placing animals on that land and managing it for that purpose for the entirety of the limitation period. There may be circumstances where it is reasonable to infer only the assertion of an incorporeal use and it may be that the facts only support such a use. What is clear, however, is that the analysis of the relevant law by the trial judge on all of the principles which are relevant to this case was unimpeachable. Hence, no errors of law have been identified on this appeal. The particular circumstances of occupation must now be turned to.
Facts from 1977 to 1993
18. In evidence at the trial in the High Court, Dennis Dunne claimed to have started occupation of this 3-acre field in 1977. His testimony in that regard, however, could best be regarded as equivocal. Working, as he then did, on buildings and delivering coal and other fuel to houses in the area by way of horse and cart during the winter, and owning at that point in time one or two horses, he used to keep them on a green near his home. This was about two miles away. He accepted that what he was then looking for was a place to give them “a bit of feed and shelter”. During that time, there was a well on the property from which water could be drawn. Given that the watering of animals is a serious task for anyone keeping livestock, it is therefore inconsistent with possession of this land that Dennis Dunne allowed the nearby caretaker of a CIÉ cottage to enter the land and to shut the well because of the danger posed to his children. While the evidence is equivocal regarding where the well was situated, possibly outside of the boundary now claimed, the experience of Seán Kavenagh of buying and attempting to restore Coolevan house across the hedge to the northwest in 1990 is more instructive as to the degree of control then being exercised by Dennis Dunne. At that stage, Seán Kavenagh describes “one or two” horses being present in the field. When asked as to whether children appear to have horses in the CIÉ field, he answered: “All the time. It was absolutely a nightmare for the first couple of years I was there.” Dennis Dunne was described as being there “more regularly than most.” Other people would, however, have horses and children “would be chasing the horses around the field.” This required him to “go down and get over the fence” because “animals were being chased around the field with ropes hanging out of them.” Seán Kavenagh attempted to solve this problem by approaching CIÉ with an offer to buy the field. Another circumstance relevant to occupation was that people living in Moorfield housing estate who used the railway to commute would take a path across the Kavenagh land and through this field to access Clondalkin station. While Seán Kavenagh’s descriptions of the problems in attempting to stop this trespass on his land, where there were similar problems, does not necessarily lead to an inference that the same things were happening on the disputed land, the reality is that there is a straight line between the housing estate and the station going through both fields. In addition, Clarke J examined a series of aerial photographs which have also been produced in evidence before this Court. They show a set of informal pathways which traversed the land. Further, is clear from the sequence of photographs that the level of usage as a casual shortcut is more apparent from the time prior to the purchase of Coolevan and also becomes less when fencing was put up by CIÉ on a short strip near the railway station from 1993 on. Before this Court, the complaint was made that a veterinary surgeon who attended to Dennis Dunne’s horses was not called to give evidence before the High Court. Ultimately, any such decision is a matter for the client in consultation with his solicitor and no appellate court can second-guess why a witness was not called as consultations in aid of litigation are privileged.
19. It may also be commented that further evidence against the adverse possession by Dennis Dunne of the field was provided by the nearby caretaker for CIÉ, who seems to have been, or who was at one stage, a CIÉ employee and whose son gained ready access to the field and simply walked around it. The evidence went so far as to describe local children corralling in horses by using makeshift defences of pallets. If this was an activity encouraged or permitted by Dennis Dunne, depending on the precise circumstances, it might not be fatal to an adverse possession claim. However, there was no evidence that this was with his express approval but, rather, that the balance of the evidence seems suggest that he could do nothing to prevent it. In addition, aerial photographs did not show the building of stabling and while there is a dispute as to what was burnt out in a malicious fire and as to what replaced it, the reality is that some improvised stabling was provided for up to two horses and this may previously have been a pigeon loft. Clarke J held that there had been no fencing off of a particular area or any sufficient demarcation whereby it might be said that – while exclusive occupation had not been taken by Dennis Dunne of the entire field – some portion of it might have been under his sole control. Clarke J held that he built “a small structure of the top apex of the land” prior to 1993 “which lasted for approximately one year before it was destroyed by fire” but that all the other structures, of which photographs have been shown to this Court on appeal, post-dated 1993.
20. Clarke J further held that there were very few horses on the land up to that year; “perhaps or at most, on occasion, four”. On the question of the paths through the field, he held at paragraph 5.9 that the aerial photographs for the period in question:
…seem to show that there were a significant number of informal pathways through the lands with breaks in the boundary consistent only with the fact that the lands were used by local people as a means of gaining access across the lands from the neighbouring housing estate to the area of the station house. I accept Mr. Dunne’s evidence that he engaged from time to time in putting up some fencing but I am not satisfied that significant work was done in that regard prior to 1993. If Mr. Dunne had maintained a strict attitude to building and maintaining significant fencing, then it seems unlikely that the informal pathways to which I have referred could have been in existence. The fact that those pathways seem largely to disappear during the latter 1990s (from the evidence of the same aerial photographs) suggests that significant fencing only occurred at or around that time rather than earlier.
21. The trial judge also made a definite finding of fact, at paragraph 5.10, as between the evidence of Dennis Dunne and those witnesses supporting his case, and the assertion by CIÉ that there had been insufficient occupation of the land up to 1993 and that this had not been exclusive:
There was also conflicting evidence as to the extent that others, particularly local children, kept ponies and horses on the lands, at least during some of the relevant period. There were other lands adjoining the disputed lands which were, at least until more recent times, largely unoccupied but which were progressively brought into use as a scrap yard. Those lands were, on all the evidence, frequently used by local children for keeping horses. I am also satisfied that, on the balance of the evidence, some use was made by such children of the lands in dispute at least up to the late 1980s. It is clear from the aerial photographs that the boundary between the various lands was quite porous up to that time. While Mr. Dunne may well have been the predominant user of the lands at all material times I am not satisfied that he was the exclusive user (that is to say that he had excluded the local children entirely) until the late 1990s.
22. In consequence of a review of the evidence relevant to these findings of primary fact, there is nothing to suggest that an entirely unreasonable analysis was made of the evidence by the trial judge. On the contrary, in some respects a view quite favourable was taken towards Dennis Dunne’s case but, in all the circumstances, even taking his case at its strongest, it was insufficient to establish adverse possession as against CIÉ.
Possession between 1993 and 2006
23. A claim was first made to CIÉ, by letter dated 29th September 2006, from Dennis Dunne and another individual, that they jointly owned the land by means of adverse possession. Shortly thereafter, proceedings were issued in the sole name of Dennis Dunne and the counterclaim by CIÉ followed. If a claim of adverse possession had not succeeded in the 16 year period up to 1993, it was impossible on the facts before the trial judge in the 13 year period that followed. Seán Kavenagh, as a neighbouring land owner, had complained by way of a solicitor’s letter to CIÉ dated 18th June 2001 that the caretaker at the station house had “permitted a number of horses onto your lands and furthermore the owners of the said horses have now commenced to construct a shared/stable on the lands for the purposes associated with the keeping of these horses.” The gravamen of the complaint was “the inadequacy of the fencing on your lands which has led to some of these horses being caught up and badly injured on the wire fencing around your property.” While the claim that a stallion had got “very badly cut in his attempts to make his way” through wire fencing, the issue of whether Dennis Dunne owned the horse or not being irrelevant, the reality is that, shortly following this letter, CIÉ employees went into the field, perhaps fearing incursion by animals onto the railway line, and repaired the fencing. Whether Dennis Dunne was present for this or not, this action was an assertion of ownership by the owner of title to the land. Hence, unless title had been established through the efflux of time up to that point, time had begun to run again thereafter as to any claim of adverse possession. Clarke J referenced this incident in his judgment at para. 5.3 and correctly analysed its effect. In addition, there was also the period of approximately a year and a half from 1993 to 1995 when renovation of Clondalkin railway station was taking place. This involved an incursion onto the land by CIÉ at the southern boundary with the railway tracks, as the trial judge made clear at paragraph 5.2:
It is clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. I am satisfied from the relevant maps and photographs that it must necessarily have been the case that, at that time, at least a portion of the lands which were part of the triangular area must have been occupied and used by CIE for the purposes of the station works. Mr. Dunne accepted in evidence that workers on behalf of CIE were in the field at that time and up to 1995.
24. Clarke J held, at paragraph 5.4, that having “regard to the very low threshold which, on the authorities, I am required to apply to acts of possession by the paper title owner” the repairing of the fencing, perhaps only at one boundary, the construction of a new footbridge, the extension of the station platform and the replacement of a stone and brick wall with security fencing at the southern end of the property together amounted to sufficient acts “of possession … of the lands in question to negative adverse possession at the relevant times.”
25. All of the findings of fact made by the trial judge were supported by evidence and could not be construed as being an unreasonable or perverse analysis. Rather, the run of the evidence was entirely in accordance with Clarke J’s findings.
Result
26. The legal and factual reality is that Dennis Dunne did not make sufficient use of this 3-acre field belonging to CIÉ over an uninterrupted period of 12 years so as to be able to establish adverse possession. For the first 16 years, his use of the land was both sporadic and lacking in exclusivity. Other people were bringing horses onto the field. Additionally, the caretaker for CIÉ, who was occupying the station cottage in Clondalkin, felt it was his right to simply wander around in it as he saw fit. While this might have been explained in the context of the friendship between Dennis Dunne and this gentleman and his family, what could not be explained were clear physical signs – as shown on aerial photographs – of habitual incursion by local residents who used the field as a shortcut to Clondalkin railway station. Other people apart from Dennis Dunne were also using the field. While CIÉ had no particular plans for this land, the recent expansion of Dublin and its commuter belt has seen at least some of the land being adopted in the context of the expansion of the westwards rail system from 2 tracks to 4. The year 1993 is, in that regard, a watershed in the sense that 23 years ago the rail system was already under pressure and this involved CÍE working at the southern end of the field, taking part of it to extend the station platform, building a pedestrian bridge and replacing the relevant boundary with secure fencing. These actions are dated as between 1993 and 1995. While the reason for not then asserting a claim of adverse possession, after alleged possession for 16 years, was that Dennis Dunne felt that “no one can stop progress” , as he told the Court on this appeal, this failure to assert a claim then could cast considerable doubt as to whether there was ever an intention up to that time to displace the title-holder. What was certainly missing was occupation through sufficient acts of possession to unequivocally indicate that he was taking possession of the land. An owner’s rights remain until such time as title is established by adverse possession through 12 years of use and occupation. That is simply not present in this case. Where the owner asserts rights to property through, as in this case CIÉ did, repairing fencing in 2001 and, earlier in 1993, removing a wall, culling portions of the land and establishing modern fencing to protect a railway, time thereby has ceased to run in favour of the person attempting to establish adverse possession and the clock must be started again.
27. Exclusive possession amounting to occupation of this land was never established on the evidence. The title of CIÉ to the land is, on the other hand, clear. While this result is disappointing for Dennis Dunne, he and his family can console themselves that the land which this Court is now firmly of the view that they do not own, was treated with respect by them and that many gained enjoyment from the horses and other animals which they owned and sometimes kept there.
Keelan v. Garvey.
[1925] IR 1
Supreme Court.
KENNEDY C.J. :
This action is concerned with a small holding of land, part of the lands of Corduff, containing 22 acres 1 rood and 10 perches statute measure, in the Barony of Farney, and County of Monaghan, now registered in Folio 4489 of the Register, County Monaghan, subject to a land purchase annuity of 6 16s. 6d., payable to the Irish Land Commission under the Irish Land Act, 1903. The land purchase advance was 210, and the Poor Law Valuation is 10 10s.
The holding, which was situate on what was called the Shirley Estate, was formerly held by one Patrick Keelan, father of the plaintiff, under a present tenancy, upon which a judicial rent of 10 a year was fixed by Order in the year 1888.
Patrick Keelan died on the 22nd day of June, 1896, having made a will dated the 15th June, 1896, which was duly proved on the 13th November, 1896, by Bernard M’Kitterick and Patrick Hand, the executors therein named.
By his said will Patrick Keelan gave and bequeathed the said holding, or farm of land, to his son, Peter Keelan, the plaintiff, but the will went on to provide that his (testator’s) wife, Catherine Keelan (whom I will hereafter refer to as Catherine Keelan, senior), should have “full possession of the sleeping apartment” then occupied by her “with the apartment immediately over it during her day.” He further provided that his son, Patrick Keelan, was “to have the use of the work shops, with the two apartments under it as long as he chooses.”The will also contained the following provision:” My son, Peter Keelan, is to allow to his mother, Catherine Keelan, before-mentioned, three hundred weight of oaten meal per year, or, in lieu thereof, two pounds sterling per year, all the produce of half a rood of potatoes per year, and the use of an acre of ground, or thereabouts, situated on the side of the road farthest from the house, all during her day, and all free of any expense on her part.”
On the 13th February, 1897, the plaintiff married Catherine Ward (whom I will hereafter refer to as Catherine Keelan, junior), and she went to live with him on the holding where also Catherine Keelan, senior, and the plaintiff’s brother, Patrick, continued to reside. Catherine Keelan, junior, does not appear to have brought any fortune to her husband, and no settlement was made on the marriage.
Soon after the marriage quarrels took place between the parties, whereupon, in the month of November, 1897, the plaintiff left the farm, and did not return until the year 1923, upon the death of his wife.
From November, 1897, when the plaintiff left, there continued to live on the holding the plaintiff’s wife, Catherine Keelan, junior, his mother, Catherine Keelan, senior, and his brother Patrick, until the respective dates which I will mention later.
In the month of February, 1902, Catherine Keelan, senior, left the holding, and went to reside with a married daughter in the same neighbourhood, and so continued until her death in the month of May, 1914. All during that period, up to her death, she received the oatmeal and potatoes provided for her by her husband’s will, and she had the use of the acre of land according to the will, and kept some live stock upon it.
In the year 1908 or 1909, the plaintiff’s brother, Patrick, left the holding, and does not appear to have returned there at any time.
On the 1st November, 1906, Catherine Keelan, junior, signed an agreement for the purchase of the holding under the provisions of the Irish Land Act, 1903. In that agreement, which is in the usual form, Catherine Keelan, junior, is described as “tenant in occupation of the said holding.” The agreement does not contain any reference to any other person as having any interest in the holding, nor is Catherine Keelan described as a married woman.
On the 13th May, 1909, the holding was vested in Catherine Keelan, junior, by fiat of the Irish Land Commission, and on the 26th November, of the same year, she was registered in the Land Registry as owner in fee-simple of the holding “subject to the rights or equities (if any) arising from the interest vested” in her by the said fiat “being deemed to be a graft on her previous interest in the land or arising in any other manner from the existence of such previous interest.” She is described on the register as “wife of Peter Keelan.”
On the 6th November, 1919, Catherine Keelan, junior, made an application (verified by affidavit) to the Registrar to cancel the note as to rights or equities entered on the folio of the said holding. She shows title by stating that Peter Keelan entered into possession of the lands on his father’s death, and was accepted as tenant, and continued as such “until November, 1897, when he left this country.” She states that he has not since been heard of, and is believed to be dead, and that since his departure she “has remained in sole and undisturbed possession of said lands.” She adds: “The applicant has been in sole beneficial occupation of the said lands since the month of November, 1897,”a statement which is contrary to the fact. She states on oath that she believes she has a good title to an estate in fee-simple in the lands, and that there is no person to her knowledge or belief who has, or claims, any estate, right, title, or interest in, or to the lands, and that all wills and other instruments affecting the title and all facts material to the title were disclosed by her. This was, of course, incorrect, for she had not disclosed the will of Patrick Keelan, nor the fact of the rights enjoyed by Patrick Keelan, junior, and by Catherine Keelan, senior, long after the year 1897. In discharge of a ruling by the Examiner in the Land Registry requiring independent evidence, she filed an affidavit by one, Patrick Caragher, which purports to corroborate from personal knowledge the statements upon which she had grounded her application. Upon this evidence the note as to rights or equities on the register was cancelled.
On the 17th March, 1923, Catherine Keelan, junior, died, having made a will, dated the 27th December, 1922, which was, on the 16th April, 1923, proved by James Garvey, the defendant in this action, and the sole executor named in the will. By her said will Catherine Keelan, junior, purported to devise and bequeath the holding to her brother, Patrick Ward, subject to certain charges.
On the 29th June, 1923, the plaintiff issued his writ in the present action, claiming a declaration that he is beneficially entitled to the holding as owner in fee-simple; and a declaration that Catherine Keelan signed the Land Purchase agreement, and was registered as owner of the said lands merely as a trustee for the plaintiff; and a declaration that the defendant, as personal representative of Catherine Keelan, deceased, is trustee of the said lands for the plaintiff; and claiming an order declaring the registration of the said lands in the name of Catherine Keelan, discharged from equities, void, and directing the register to be rectified by restoring the note as to equities, and an order directing the defendant, as personal representative of Catherine Keelan, to convey and transfer the legal estate in the said lands to the plaintiff. In the Statement of Claim it was pleaded that Catherine Keelan signed the purchase agreement “as representative or bailiff of the plaintiff,” and that the cancellation of the note as to equities was obtained by Catherine Keelan “by mistake or by fraudulent misrepresentation.” The defendant, by his defence, relies on the fact alleged, of sole beneficial occupation and possession of the lands by Catherine Keelan from 1897 to her death without acknowledgment of any right, title, or estate in any other person, and pleads the Real Property Limitation Act, 1874, and the Limitations Act, 1833. In the reply, it is pleaded that Catherine Keelan was in possession as wife of the plaintiff, and on his behalf, and as bailiff or agent, and was liable to account to the plaintiff, and that the plaintiff was, in fact, in virtual possession through his said wife.
The action was tried by Molony L.C.J., sitting for the Master of the Rolls.
The plaintiff’s oral evidence at the trial fills in the picture which appears in outline in the narrative of admitted facts and dates which I have just recited. He went away in November, 1897. To the Judge who put the question: “You weren’t happy in your married life”?he replied: “I wouldn’t get leave to be happy.” He appears to have first gone to Dundalk, where he wrote a letter to his wife informing her that he was going abroad. He then went to Liverpool, and there, within a week or so from the time he left the farm, he wrote his second and last letter to his wife. Neither letter is forthcoming, but his evidence is that, in the second letter, he bade his wife sell the oats, and pay a few pounds “he owed off the farm: 16 or 17,” and that he “told her to set the ground if she wished.”Asked if he said anything in the letter as to how long he was going to be away, he answered: “No, because I was greatly knocked about.” Two brothers of the wife, who gave evidence for the defendant, swore that they had seen the Liverpool letter, and that the plaintiff in that letter told his wife to get her brother, Patrick, to help her on the farm. His evidence was that he never, in fact, went abroad, but returned from Liverpool almost immediately, and worked as a labourer for a time at Portrane, and afterwards at Kildare, and during the whole time earned a living for himself without asking or receiving any money out of the farm. From November, 1897, until his wife died in 1923, he never went back to the farm, and never had any direct communication with his wife. He says, however, that he heard from the place regularly. He was kept informed from the neighbourhood as to what his wife was doing with the farm, that she was letting the land, and so on. He says that he sent his wife a message on one occasion, but, objection being taken, the nature of the message was not disclosed. In cross-examination he was asked: “You made up your mind to leave the place?” He replied: “I couldn’t live in it.” The next question was: “You made up your mind that day that you were going away for good?” to which his answer was,”No, but as long as she was there.” He explains his not asking for any account of the proceeds of the farming or for any share of the proceeds, by saying that he did not want it referring to the fact that he had work. The plaintiff’s sister, Bridget Ward, proved that on the death of Catherine Keelan, junior, immediately after the funeral, she took possession of the place. She then advertised for the plaintiff, to whom she handed over possession, on his return, as a result of the advertisement.
The case made by the plaintiff on these facts is that the wife was in possession of the farm as bailiff, agent, or trustee for the plaintiff throughout the whole period. It was also argued that the old doctrine of unity of person of husband and wife has survived the Married Women’s Property Acts for some purposes, and that, by reason of such unity of person, the possession here was always the possession of the husband. It was contended on the part of the defendant that the facts amounted to this, in effect, that the husband going away, put his wife in possession as his tenant at will and that the statutory limitations applicable to a tenancy at will govern the case, and have ousted the plaintiff’s title.
The first and principal question to be determined upon the evidence is whether Catherine Keelan, junior, entered into possession of the holding, and the character of that possession; and, if not originally a possession adverse to the plaintiff, that is to say,”adverse” in the modern sense, as used by Lord St. Leonardsdid its character change, and when, so as to start the Statutes of Limitations running against the plaintiff?
Now, we cannot interpret the evidence without due regard to the status and condition of the parties, and the legal and moral rights and obligations arising from such status and condition.
A husband is bound to maintain his wife according to his estate, or condition in life, or according to his means of supporting her. If he deserts her, she becomes entitled to pledge his credit for necessaries. The wife is bound to reside and co-habit with her husband. This right of consortium implies still a unity of person which is seen, for instance, in the legal unity of domicile.
How, then, does the evidence stand in the present case? The plaintiff became owner of this little holding, subject to certain trusts in favour of his mother and brother. He marries and takes a wife to live with him upon his holding, which becomes their residence and common home as well as their common means of livelihood. Some cause of unhappiness arises which renders co-habitation insupportable to the husband. He goes away from his home to live as best he may by his labour, but free from the unhappiness now existing in his home. Mr. M’Cann says it is a case of common desertion by the husband, but if the evidence is believed (and it is not contradicted) that the wife made life, with her, unbearable by this man, she could not have established a case of desertion by him. He simply goes away and becomes a wanderer for the time being until such time as he may again return to find peace in his own home. The home is not broken up; the rest of the family circlemother and brother and wifelive on there and maintain themselves out of the farm as before. Are these facts incompatible with the continuance of possession by the husband? Do they establish that the wife is in adverse possession to the husband? Do they not rather show the wife living in her husband’s residence and home in enjoyment of the support and maintenance according to her husband’s estate and condition in life which is her right?
In my opinion, the plaintiff has never ceased to be in possession of the holding. In my opinion, the wife never entered into possession of the holding against the husband. In my opinion, the wife was provided with a residence and support in her husband’s farm in fulfilment of the husband’s marital obligations. It follows, I am of opinion, that the Statutes of Limitations never ran against the plaintiff and that his title has not been ousted.
The case of Jack v. Walsh (1), upon which Mr. M’Cann relies, is plainly distinguishable upon the ground that the adverse claimant there was not the wife of the owner of the lands but a stranger in law, and this distinction is actually recognised by Burton J. who delivered the judgment of the Court, as if in anticipation of some such case as the present one.
The purely legal and technical defence is then urged that the note as to rights or equities has been cancelled in the Land Registry, and that the wife is now the registered owner in fee simple, and that the register is conclusive in the absence of fraud or mistake. Counsel for the plaintiff disclaims any case of fraud, but relies on mistake. The procedure leading to the cancellation of the note as to equities is far from reassuring as to the methods adopted by the Land Registry in such cases. The thinnest evidence was acted upon, and, though the husband was not accounted for in the affidavits lodged, no care was taken
by the direction of the proper advertisements or otherwise to see that he was protected if he should have a title. No attempt by search in the Probate Office was made to test the statement as to the devolution from Patrick Keelan. It would be a travesty to hold that the plaintiff’s title was ousted by these careless proceedings behind his back. A mistake has been made which must be rectified, and we have full power to rectify under the statute, as well as in equity.
I am of opinion, therefore, that the plaintiff has established his case, and that the appeal must be allowed with costs, the defendant being declared to be a trustee of the legal estate for the plaintiff.
O’CONNOR J. :
The judgment of the late Lord Chief Justice was based on his finding that Catherine Keelan became at least tenant at will to her husband on his leaving the farm in the year 1897. If I could arrive at the same conclusion on the facts I would concur with him, but in my opinion the learned Chief Justice did not give due consideration to the peculiar relationship which exists between husband and wife. It is true that the old doctrine of unity of ownership and possession as between husband and wife has been abolished by the Married Women’s Property Act, but there still remains a relationship between them arising out of the marriage tie, and the mutual duties and obligations thereby imposed, which must be taken into consideration when the question arises between them as to the exclusive possession by either of the property of the other. It is the moral duty of a wife within certain limits to guard and manage her husband’s property, and, in most cases, this is not merely recognized but cheerfully accepted and performed. Take, for instance, the case of a farmer who is obliged to leave his home and go to a foreign country, there to remain for a considerable or uncertain time, whether for business purposes or in the performance of a duty, such as military service. His wife remains behind, manages the farm, keeps up the home, and supports out of the profits herself and her children, if there are any. It cannot be said that in such a case there is any change in the legal possession of the husband. His actual possession would no doubt cease during his absence, but there would still remain a certain unity between them which would make the possession of the wife the possession of the absent husband. I do not say that such unity could not be broken. There might be such a severance as would destroy the unity. For instance, if the husband announced to his wife that he did not intend to return, that he abandoned her and his family and farm, or if the circumstances showed that such was his intention, then the conclusion might fairly be drawn that the previous unity which made the wife the mere bailiff or agent of her husband was severed, and that her subsequent possession was not his possession, but her own. But in such a case and in analogous cases the question would be one of fact to be arrived at from all the circumstances of the case. Such a question might arise not merely between husband and wife, but between father and child, sister and brother, and even between strangers in blood.
One of such cases was Peakin v. Peakin (1). There, W. Peakin (whose personal representative was the plaintiff) was the owner of a leasehold interest in a dwelling-house. He allowed the defendants, who were his sisters, to occupy the house, and they continued in occupation up to his deatha time sufficiently long to give them title under the Statutes of Limitation, if these applied. It was proved that W. Peakin paid the rent and taxes of the house and gave them a weekly allowance of meat and money for their support. He also executed repairs to the house. The plaintiff, as administrator, demanded possession of the house and, on the refusal of the defendants to leave, brought an ejectment. They set up the defence of the Statutes. At the trial, judgment was given for the defendants. The plaintiff moved to set aside the verdict and judgment, and that judgment be entered for plaintiff. The judgment of the Court was delivered by Andrews J., who held that the possession of the owner of the house continued notwithstanding the defendants’ occupation and that their real position was that of guests, and that there never was any change in the nature of the occupation. He said that the question was entirely one of fact. Now, I by no means say that that case is on all fours with the present. There were circumstances in it which made the plaintiff’s case a very strong one, viz.: the payment by the owner of the rent and taxes, the execution by him of repairs, and the weekly supply of meat and money. I only quote the case as showing that the question in such cases is one of fact to be decided on the evidence of circumstances.
I will refer to only one other case In re Maguire & M’Clelland’s Contract (2). There it was held on all the facts that possession did not give title against the rightful owners. I refer to it for the purpose of establishing that once the relation of principal and agent is shown in the original occupation, that relation will be held to continue in the absence of evidence that there was a change in the character of the occupier (see the judgment of Walker L.J.). Now, with these considerations in my mind I approach the facts of the present case. Peter Keelan (the owner and occupier of the farm in question) married Catherine Ward in February, 1897. They lived together on the farm, and I may presume that the wife assisted her husband, as the wives of small farmers generally do. The marriage did not turn out a happy one. In the language of the plaintiff,”he would not get leave to be happy.” He departed from his home about nine months after the marriage, leaving his wife behind him in possession of the farm, and did not return to it or look after it in any way until he heard of his wife’s death, which occurred on the 17th March, 1923. In fact, he completely effaced himself during his wife’s life. These facts are consistent with more than one theory. One would be that he completely abandoned his wife and the farm, renounced his allegiance and duty towards his wife, and determined to let her fend for herself. Another would be, that finding it was impossible for himself and his wife to live together, he determined to separate from her, to make a provision for her during the period of separation, and that the best way to affect this was to go away himself and leave his wife in the occupation of the farm in order that she might have the means of support which he was bound in law to give her. If the parties were in a higher rank this would probably have been carried out by a deed of separation and a settlement of the farm on the wife during the joint lives or so long as she would remain separated from him. But these people were in a very humble rank of life, and people like them make arrangements in a very rough and ready way, and formalities are rarely observed. Now, if I find two theories, one of which can only be set up by imputing a flagrant disregard of all moral and legal duty, and the other consistent with what was both morally and legally right and proper to be done under the circumstances, I think that I am bound, unless there is coercive evidence to the contrary, to adopt the theory which is based on a recognition of legal obligation with due regard to the rights of the party discharging it. The obligation of the husband in the present case was to provide a home for his wife and to maintain her, and not to give her the farm absolutely. The marriage tie was not broken although there was a separation. He could not do better for his wife than to leave her in the occupation of his farm so that she might have a home with the means of support. He could do this without any change of ownership or without creating any tenancy or altering the legal possession. It would be quite enough to leave his wife to continue in the occupation which she already had, as his wife, but with no obligation to account for the profits of the farm. There was no necessity for accounting, because the farm was so small it must have been considered that it was only sufficient to provide a decent maintenance. I can find no reason at all for the theory of a change in the legal possession. The theory of a tenancy at will seems inconsistent with the husband’s right of consortium which would entitle him at any time to enter without any previous determination of the tenancy. It would not be quite accurate to describe a wife living with her husband as his guest or as a licensee, but she is certainly not his tenant, and she has no independent possession. In the present case the wife had during the consortium no estate or interest of any kind in the land. There was not the least necessity for giving her any estate or interest for the purpose of carrying out the arrangement or understanding that she was to have means of support during the separation. For these reasons I cannot find that there was any change in the relationship so far as property is concerned which existed between the plaintiff and his wife while they co-habited.
No doubt, the long absence of the plaintiff and his complete omission to concern himself with his wife’s dealings with the farm were points to be urged in favour of the theory that he completely abandoned his farm and that his wife ceased to occupy it as his representative, but I think that a change in an existing legal relationship should be clearly established, and the circumstances are not, in my opinion, conclusive. It is also to be remembered that there is evidence that after the separation the husband treated his wife as a mere agent or bailiff for him, because after departure he directed her to apply the profits in discharge of some debts he owed, and gave directions as to the treatment of the lands, directions which she appears to have recognized. It was not, then, the separation or the departure of the husband which changed the legal relationship. If these had not that effect, when did the change take place? The onus rested on the defendant to prove it, and I do not think that the onus has been discharged. No doubt, for a very long time he concerned himself in no way with either his wife or the lands. But from his point of view it may be asked what was the necessity? She was to have the entire profits during the separation for her support in discharge of his legal liability to maintain her. He was only concerned to see that the rent was paid, and he may have been satisfied that that would be done in her own interest.
But there is another aspect of this case. The wife became the purchaser of the farm under the Land Purchase Acts, and the lands were vested in her by vesting order dated 13th May, 1909. At that date the husband could not have lost his estate, because twelve years had not elapsed since he had left the farm. She therefore became the legal owner upon trust for her husband; and I always understood the law to be that the possession of a trustee so long as he carried out the trust is the possession of the cestui que trust. I think that the same principle is applicable to any person who is in possession of lands and uses them, or applies the rents and profits, according to the wish of the true owner. If the person in possession be not the legal owner he is acting as agent for the owner, but if he be the legal owner and acts according to the directions of the true owner he is a trustee. Now, no matter how the present case is regarded, there was an arrangement or understanding between the husband and wife that she was to have the use of the farm at least during separation or possibly for her life. By occupying the farm and appropriating the rents and profits she, as legal owner, who had become a trustee for the true owner under the Land Purchase Acts, was carrying out a trust for him. There was no adverse possession, not using the word”adverse” in any technical sense, but in the sense of an independent, or separate, possession. The possession was for, not against, the owner, because the beneficial occupation was in accordance with an arrangement made by him with the person who had become the legal owner.
I now come to another chapter in the history of the case. On the 6th November, 1919, the wife made an application to the registering authority to discharge the note on the register, that the lands were registered subject to equities. That application was supported by a verified statement by the wife that her husband had left the lands in November, 1897, that he had not since been heard of, and was believed to be dead, and that she herself had been in sole and undisturbed occupation of the farm. On that statement the registering authority made certain requisitions. The first requisition was for the production of independent evidence as to occupation from 1890 to 1909 (which for the present purpose is immaterial) and as to the husband having gone away and not having been heard of. Then there was a query whether there were any children of the marriage. That was followed by this requisition: “Let the applicant make an affidavit that for twelve years at least no claim has been made by, or acknowledgment given, or payment made to any person in respect of the interests of Patrick Keelan (who was the father of Peter Keelan), or Peter Keelan.” That was all, and I feel bound to say that these requisitions were wholly inadequate for the case. The object of the application, as most plainly appeared, was to bar absolutely all claims in respect of the estate of the applicant’s husband; and one would think that the chief care of the registering authority would have been to see that all proper efforts had been made to give notice of the application to the husband if he were alive, and if he could not be found, to direct advertisements for him. Further, if the husband had died, which was the case made, and if he had died intestate, his next-of-kin would have had claims unless they were barred. One would think, then, that some requisition should have been made about themwho they were, where they lived, and as to notice being served upon them. But there was no such requisitiona most singular omission. Under the circumstances I can conceive the alacrity with which the wife made an affidavit in the exact words of the requisition calling on her to make an affidavit. A further affidavit was made by one, Patrick Caragher, in compliance with the requisition to produce independent evidence. But there was nothing to show who Patrick Caragher was, or how he was independent. On this insufficient evidence the note as to equities was cancelled. I can only regard the whole proceeding as a most perfunctory performance, and I cannot avoid the conclusion that the registration was accomplished behind the backs of the only people who were concerned. In the interest of the public I feel bound to protest against the casual manner in which the proceeding was conducted. No counsel acting for a purchaser would have been satisfied with the evidence which was acted on. It is idle to say that the husband could not have been found. When the wife died he was very soon found by his sister. Putting the most charitable construction on the wife’s conduct, she was at least guilty of a mistake which led to a miscarriage, and there is ample jurisdiction to order a rectification of the register. In my opinion the appeal should be allowed.
FITZGIBBON J. :
I concur in the decision of the Court for the reasons stated in the judgment of the Chief Justice, which I have had the advantage of reading. I only desire to point out, in addition, that the decree from which this appeal was taken could not, in any event, have been sustained in its entirety. Its basis is the following passage (1) in the judgment of Molony L.C.J.:”Of course in the majority of cases it may be difficult for a wife to prove that she had acquired a title in her husband’s lands under the Statute of Limitations, but the evidence in this case is conclusive as to her exclusive possession and full beneficial enjoyment.”
But by his will, Patrick Keelan, senior, amongst other bequests, declared a trust that “my wife, Catherine Keelan, to have full possession of the sleeping apartment at present occupied by her with the apartment immediately over it during her day, with the entire possession of a right to dispose in any way she chooses of the furniture and belongings of said sleeping apartment.”
The existence and exercise of the rights conferred upon Catherine Keelan, senior, by her husband’s will have been ignored, but upon the uncontradicted evidence she continued to enjoy them until her death in May, 1914, when the plaintiff’s title to possession of that portion of the premises which had been bequeathed to his mother first accrued, and as this action was commenced in June, 1923, the defendant’s testatrix could never have acquired a title under the statute to that part of the premises which had been bequeathed to her mother-in-law. But I am in entire agreement with the opinion of the other members of the Court that the statute never commenced to run at all in favour of the plaintiff’s wife.
Battelle & Anor v. Pinemeadow Ltd.
[2002] IEHC 120
Judgment of Mr. Justice Finnegan delivered on the 9th day of May 2002
Folio 16979 County Dublin comprised a large area at Rathfarnham, County Dublin. The lands in the Folio were developed principally as housing commencing in 1968 the development being substantially completed by 1971 although further intermittent development continued to take place thereafter. Premises 101 Fairways, Rathfarnham (“the Plaintiffs’ premises”) was demised by lease dated 2nd December 1968 L.S.D. Limited to Stephen Ashworth Barcroft. The lease is registered in the Land Registry in Folio 9139L County Dublin. By agreement for sale dated 12th October 1977 the Plaintiffs agreed to purchase the Defendant’s premises and took a transfer of the same dated the 27th April 1978 and were duly registered as owners on Folio 9139L County Dublin. The Plaintiffs’ premises front on to Fairways and is one of twelve semi-detached houses and to the rear of the rear
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gardens of these houses is a plot of land of which the Defendant is now the registered owner. This plot extends from the rear boundary wall of the houses on Fairways to the Owendower river. While the plot slopes towards the river for some distance close to the edge of the river it falls away steeply. Based on a survey carried out on behalf of the Defendant I find that the distance between the Plaintiffs’ garden wall to the top of the steep incline was as follows to the north nine metres and to the south eight metres and at turn of Plaintiffs’ rear wall five metres. I note that this survey was carried out after interference with the levels of the plot by the Defendant. No earlier survey was made available to me.
The first named Plaintiff gave evidence that he his wife and four children moved into 101 Fairways in February 1978. The area between his rear boundary and the river was overgrown and infested with rats. At his request Dublin Corporation had laid poison for the rats on several occasions but the problem persisted. He then endeavoured to find out the owner of the plot attending first at the Land Registry in November 1978 where he was unsuccessful. He then wrote to Cranford Limited his ground landlords who were in fact the registered owners of the plot. A representative of Cranford Limited called to his house and spoke with his wife. The effect of the conversation as reported to him was that Cranford Limited did not know whether or not they owned the plot but as there was no access to it if they did own it they had no further use for it and no interest in it. Immediately following on this the first named Plaintiff set about cleaning up the area to the rear of his garden and incorporating it into his garden. He cleared away the briars and fenced the area completing this in the early 1980s. He erected a two metre high fence along the northern and southern boundaries and a five foot high fence at the top of the bank along by the river. He planted hundreds of plants and shrubs and completed three walkways inside the fenced area. He laid on electricity and installed garden lighting. He laid out garden furniture. In the mid 1980s he completed a
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water feature in granite comprising a waterfall and pond. All this was completed by the mid 1980s. On the evidence of the first named Plaintiff I am satisfied that the Plaintiffs had sole and exclusive possession of the plot incorporated by them into their garden from at the latest 1st January 1985 onwards. The second named Plaintiff gave evidence as to her conversation with the representative of Cranford Limited. She said they received the keys of the premises having completed the sale in November 1997 but did not move in until February 1978. There was a problem with rats and Dublin Corporation laid poison several times. In 1978 the Plaintiffs decided to find out who owned the land. They wrote to Cranford Limited and some months later in late 1979 or early 1980 a representative of Cranford Limited called to see the land and she showed it to him. He had no map. He was unsure of the ownership of the land but said that Cranford Limited had no interest in the same as it was land locked. So far as Cranford was concerned they could do what they liked with the land.
Both Plaintiffs were asked in cross examination if they had entered onto the land pursuant to permission from Cranford Limited and in each case they said that they had. However on their evidence I am satisfied that this is not the case. Cranford Limited could not say whether or not it owned the land and simply expressed their lack of interest in the same. The effect of the conversation I am satisfied was that Cranford Limited did not know and did not care whether or not they owned the land because it was of nil value and for this reason was indifferent as to what happened to the land: while the agent signified that Cranford would have no objection to anything the Plaintiffs might do to the land in the circumstances this is not the same as the granting of permission. I am satisfied on the evidence that the Plaintiffs did not enter on the land pursuant to the permission of Cranford Limited. The foregoing is sufficient to compel me to find that by the 1st January 1997 the Plaintiffs had acquired title to the lands which they had incorporated into their garden. The title acquired is title by
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encroachment i.e. the right to possession of the premises in dispute against the fee simple owner for the unexpired portion of the term of their lease of the Plaintiffs’ premises 101 Fairways the freeholders’ entitlement to the land in reversion upon expiration of the lease remaining undisturbed.
The Defendant acquired the interest of Cranford Limited in the plot encroached upon by Transfer dated 20th April 1999. On the 31st August 1999 the Defendant entered upon these lands with machinery and demolished the Plaintiffs’ garden. Mr. Finbarr Kerrigan was the owner of a site on Butterfield Avenue which gave him access from Butterfield Avenue on to the entire strip of land to the rear of the Plaintiff’s garden and to the rear of other gardens of the houses on Fairways. In his evidence he said he walked across these lands two or three times a year. He never saw the garden as described by the Plaintiffs and indeed as exhibited in photographs and a video shown to me. However he did see the path along the top of the bank by the river laid by the Plaintiff: his evidence is that he saw this path in the late 1980s. Immediately prior to the machinery entering on the lands encroached on by the Plaintiffs he had gained access to the plot incorporated into the Plaintiffs’ garden by stepping over a fallen fence through overgrowth which he cut away.
Mr. Brian Conroy is the promoter of the Defendant and it is clear from discovered correspondence that he was clearly aware of the position in April 1988. By letter dated 7th April 1998 addressed to his solicitor he stated that he was negotiating the purchase of the entire plot adjoining the river. The letter contains the following paragraph –
“(c) Encroaching adjoining landowner.
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One of the neighbours appears to have encroached substantially into “our” riverbank site by extending their garden up to the river (this is usually very clear as the rear gardens of the estate houses are in a line except for the one who has lengthened his garden).
How is this rectified, and can it be difficult?”
In the light of this I prefer the evidence of the Plaintiffs that the plot in question was in fact enclosed and clearly incorporated into their garden. I do not accept the evidence of Mr. Kerrigan that he walked through the area in question. Had he done so it is inconceivable in the light of the evidence before me that he would not have been aware that it was enclosed and that it had been cultivated as a garden. Compelling in this regard is the fact that he is a forester and one must assume would have no difficulty distinguishing cultivated plants from ordinary wild riverbank vegetation.
In fairness to Mr. Kerrigan however his evidence is that at times when walking through the plot he walked in part at the top of the bank but where this was impassable he walked adjacent to the river bed at the bottom of the bank: having regard to the height of the bank some ten feet, it is possible that he passed by the plot encroached upon by the Plaintiffs without being aware of the cultivated nature of the same.
On the basis of the evidence I am satisfied that the Plaintiffs had the necessary animus posedendi. I am further satisfied that the disputed plot was enclosed by them not later than the 1st January 1985. Accordingly by the 1st January 1997 the Plaintiffs had acquired title by encroachment to the lands which they enclosed. I have not been given an accurate survey of
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the lands in question prior to their disturbance by the Defendants. Doing the best I can on the evidence available I have set out the dimensions of the plot encroached upon above. I direct that a map be prepared on the ordinance survey sheet bearing the dimensions which I have set out for the purposes of the same being annexed to the order declaring for the Plaintiffs’ title which I propose to make. I will hear Counsel as to the precise terms of the declaration which should be made in this case.
There remains to be determined the amount of damages to be awarded to the Plaintiffs in respect of the trespass by the Defendants upon the Plaintiffs’ lands and I propose fixing a date for a hearing of evidence in relation to the same.
Rice v. Begley
[1920] IR 243
Powell J.
POWELL J. :
The defendant was not examined, nor was any witness examined on his behalf. The plaintiff was not cross-examined. I accept her evidence as being true, whatever the effect of it may be. There was admittedly no demand made by the plaintiff until this action was brought on the 6th September, 1918.
Mr. Brown, for the defendant Peter Begley, relies upon the decision of the Court of Appeal in In re Maguire and M’Clelland’s Contract (1). It is necessary carefully to consider the facts of that case in order to ascertain whether the decision is one that is binding on me, having regard to the facts in the present case. It was an appeal from an order of the Master of the Rolls, Sir A. M. Porter, made on the 19th April, 1907, whereby, on the hearing of a summons under the Vendor and Purchaser Act, it was declared that the objections of the purchaser to the title had not been sufficiently answered, and that a good title to the lands sold had not been made.
[His Lordship dealt with the facts in that case, and proceeded:]
The Master of the Rolls held that the title was not one which the Court would force upon a purchaser, and dismissed the summons, and ordered the deposit to be returned. The vendor appealed. In the court of Appeal Sir Samuel Walker C. in his judgment said that the requisition of the purchaser that the interests of the children should be accounted for was, prima facie, a reasonable one, but he rejected the argument of counsel for the purchaser, which the Lord Chancellor said amounted to this, that no title could be made, even after the lapse of fifty years or more, under the Statute of Limitations, if the children were minors at the date of their father’s death. He said there was no case that so decides; that the cases show that the relationship of principal and agent will be dissolved by circumstances; that the attaining of twenty-one years of age by the children is not enough in itself to dissolve the relationship, provided there is no break, but that in the case before him the children had left the place a long time previously; no claim had ever been put forward by any of them; and that he was of opinion that those facts constituted a sufficient break in the possession to dissolve the relationship of principal and agent, or guardian and ward. He referred to the case of Wall v.Stanwick (1), in which Mr. Justice Kekewich had said: “My view, however, is that she, the mother, is accountable as bailiff, and will continue to be so accountable until the relationship of principal and agent has been dissolved. How that can be done I do not for the moment consider.” The Lord Chancellor continued: “Unless that relationship can be dissolved by a child going away, and remaining away for many years, without ever putting forward any claim, I do not see under what circumstances it could be taken to be dissolved, or how any title could ever be made under the Statute of Limitations in cases of this sort.” He says the same principle is to be found in In re Hobbs (1), where Mr. Justice North said: “The cases which have been cited show that as he, that is, the father, was in possession as John’s bailiff at the time when John attained twenty-one, he must be taken to have continued in possession in the same character unless something was done to change the character of his possession”; and the Lord Chancellor said: “What more important change could there be than the going away of children, abandoning the farm, and leaving their stepfather in possession?” He said that the court could not affirm the order of the Master of the Rolls, but that they would take down an undertaking of the vendor to give a statutory declaration that no claim had been made by any of the children at any time since they left the farm, and that, subject to that, they would declare that a good title had been shown.
The principle upon which this decision was arrived at was more fully explained by Lord Justice FitzGibbon. He said that the contention of purchaser’s counsel, if adopted, would prevent specific performance of any agreement for the sale of land where a question of fact fit to be submitted to a jury arose in respect of any possible claimant abroad. He said that the Court, in his opinion, must investigate such questions, putting itself in the place of a jury, and it it finds that the Judge could tell the jury that if they believed the evidence they ought to find against the claim, the Court ought to hold the title to be sufficiently shown. He said that the vendor had insisted on making title through Thomas Maguire, but that the moment the purchaser ascertained that the farm originally was not Maguire’s, that Cosgrave had been the tenant, and that Maguire came in by marrying Cosgrave’s widow, who had children by her first husband, four of whom were minors at the date of their father’s death, this rendered Thomas Maguire in equity a bailiff for these minor children, and the purchaser was right in insisting that their interests should be accounted for. He then states shortly the facts. He says that the four children, for whom the mother was bailiff when she married Maguire, against whom he or she were doing what they had no right to do when they got the second husband’s name inserted as tenant in the landlord’s books, disappeared altogether from the farm. When each child left he or she had at least arrived at years of discretion; they all knew that the farm had been their father’s; that their mother was still living on it, and that she had married their step-father, and that he had taken their father’s place as tenant. Can I, he says, as a juror, have any doubt that when Catherine went into a convent in 1882, provision being presumably made for her, she finally left her mother’s house, making no claim against the land? He then says, “When I am asked where is the break in the possession, I answer that it is to be inferred from the break in the title evidenced by the fact that the step-father was never interfered with, though he became the tenant from 1869 to the present time. I would tell a jury in an ejectment that as each son of the former tenant left the place without making any claim, he supplied some evidence that he had no claim, and that when many years had passed, and the statutory period had expired, and still no claim was made, it ought to be presumed that the former tenant’s interest was extinguished under the Statute of Limitations.”
If this decision means that in every case, and in all circumstances, in which next-of-kin children of a tenant, being of age, leave the family homestead without making a claim, and continue to remain away from the homestead for more than twelve years from the date of their leaving it, their interest is extinguished under the Statute of Limitations, this case appears to me to be an absolute authority for the defendant, and I should be obliged so to hold. But I do not think the Court of Appeal intended to lay down any such general proposition. They investigated questions of fact, putting themselves in the place of a jury. They were dealing with a case in which the following significant facts were present. No claim had ever been made by any of the children, these children knowing that the farm had been their father’s, and knowing that their mother had married Maguire, and that he (Maguire) had assumed their father’s place as tenant; and, knowing that, they had disappeared altogether from the farm. There was the fact that Maguire was never interfered with from the time at which he became tenant in 1869 down to and including the date in 1907 when the case was under consideration. As put by the Lord Chancellor, they had the fact that the children abandoned the farm, leaving their step-father in possession, and from these facts they presumed that the former tenant’s interest was extinguished under the Statute of Limitations, and that the beneficial interest had been acquired by Maguire. There was no evidence as to the circumstances in which the children left, or as to what, if any, share they might have received, and Lord Justice FitzGibbon apparently assumed that provision had been made for the last child, Catherine, when she entered the convent.
Now, I think that the facts in the present case are very different. The plaintiff, whose evidence I believe, was only six years of age when her father died. She has swornand, if it were untrue, I take it that witnesses could have been examined to disprove itthat she had never even heard any talk about her father’s will, that she did not know that she was entitled to any share, and that that was the reason why she had never made any claim on her mother. She says that her mother, as far as she knew, managed the farm while she was there, and until her marriage in 1898 there was no break or change as far as she knew in her mother’s occupation of the farm, and her mother herself has sworn in the affidavit to which I have referred that she was in beneficial occupation of the land from the death of her husband down to October, 1911, ignoring altogether the existence of her children, of whom she was guardian. The plaintiff’s evidence amounted to this, that she did not know what her rights were, or that she had any rights, or that she was entitled to anything except what she might receive at the hands of her mother. She says she did not know of the transactions between her brothers Michael and Peter, which, if she had known, might have put her upon inquiry. How can I presume from her evidence that she had no claim, or that she had abandoned or released her claim? It is admitted that she received no part of her share of the interest in the farm and the position of affairs on the evidence is that Michael got £450 as a result of his proceedings in this Court, and Peter gets a farm at present worth £5,000 and in 1911 worth £2,000 as a result of a deal with his mother and his brother Michael, both of whom admittedly had been, and, as I think, were at the time bailiffs for the plaintiff.
The onus is upon the person alleging the change in the character of the possession relied upon. This is made quite plain, I think, by the decision of Mr. Justice Romer in Tinker v.Rodwell (1), which I do not think is inconsistent with the decision of the Court of Appeal in Maguire’s Contract (2). It will be observed that in that case a very long period had elapsed after the plaintiff had attained twenty-one and after he knew his position, during which the father held possession, and he did not take proceedings to assert his claim for nearly seven years after his father’s death; and Mr. Justice Romer on this point says:”Now, can I hold that in the present case there was a change in the character of the possession? I think not. At first I thought, having regard to the long period during which the father held possession after the plaintiff attained twenty-one and after the plaintiff knew his position, and having regard to the fact that the plaintiff did not take proceedings to assert his claim for nearly seven years after his father’s death, that I should be justified in holding as a fact that some change took place in the character of the father’s possession at a period anterior to twelve years before this action was brought. But on further consideration I have reluctantly come to the conclusion that I am not justified in so holding. It would be too dangerous to infer a change merely from the circumstances stated above. The onus of proving a change lies on the defendant, and that onus has not been discharged. I cannot lay hold of any circumstance which would enable me to fix a date for any such change. There is no evidence of any act on the part of the plaintiff or of the father which can be relied on as establishing or showing clearly any change.”
I think the present case is a fortiori, because the plaintiff in this action did not know her position until the death of her mother, and she brought this action within a few months of her mother’s death. I cannot lay hold of any circumstance in this case which would enable me to fix the date for any such change in the character of the possession of her mother or her brothers, who were admittedly respectively her bailiffs. There is no evidence before me of any act on the part of the plaintiff or of any act on the part of her mother or brothers of which she was
aware, which can in my opinion be relied on as establishing or showing clearly any change; and therefore, while not disputing the authority of the case referred to, I am not satisfied on the facts of this case that there was any change; and in these circumstances I must make a decree for administration.
Moley v Fee
High Court, Laffoy J., April 27, 2007; [2007] I.E.H.C. 143
The plaintiff’s claim as pleaded
These proceedings were commenced by plenary summons which issued on 25th July, 2000 between the plaintiff and Thomas Fee (the Deceased). The Deceased died on 16th January, 2005. Probate of his will was granted to the defendant on 22nd December, 2005. Subsequently, by order of the Master dated 11th May, 2006, it was ordered that the proceedings be carried on and prosecuted between the plaintiff and the defendant. In effect, the defendant is sued as personal representative of the Deceased.
At the hearing of the action the plaintiff was given leave, somewhat reluctantly, to amend his statement of claim. The factual basis of the plaintiff’s claim as pleaded in the amended statement of claim is as follows:
• The Deceased was formerly the owner of “certain lands situated at Wavecrest Drive, Blackrock, Dundalk, in the County of Louth, comprised within Folio No. 12029”.
• In or about the month of April, 1975 the defendant agreed to sell “a part of” that property to Patrick McEneaney and a part to Gerard Cumiskey for a consideration of IR£300 each and Mr. McEneaney and Mr. Cumiskey each paid to the defendant (meaning the Deceased) the agreed consideration of IR£300.
• As a result of the agreement (which in a reply dated 13th July, 2001 to notice for particulars was stated to be a verbal agreement) and in consideration of the payment of IR£300 each, the Deceased permitted Mr. McEneaney and Mr. Cumiskey to enter upon and take possession of the lands and carry out work of site improvement. Subsequently, Mr. Cumiskey placed a mobile home on his portion “of the said site”. Mr. McEneaney and Mr. Cumiskey have each enjoyed ownership and possession of their respective portions “of the said site” and have exercised such rights to the exclusion of all others without any objection from the Deceased.
• In or about the month of September, 1999 Mr. McEneaney and Mr. Cumiskey agreed to sell their respective portions of the said property to the plaintiff and the plaintiff has paid the agreed consideration.
• The Deceased by his solicitor alleged that the plaintiff had trespassed on the land and threatened to take action against him.
The basis in law of the plaintiff’s claim as pleaded is that by reason of the payment of the full consideration by Mr. McEneaney and Mr. Cumiskey to the Deceased, as alleged, each of them was entitled to the freehold interest in his respective portion of the property. By entry into possession of the property and continuing in sole and exclusive occupation by Mr. McEneaney and Mr. Cumiskey, any right or title of the Deceased has been statute barred. Mr. McEneaney and Mr. Cumiskey having paid the full purchase price for the property, the Deceased was a trustee of the property for Mr. McEneaney and Mr. Cumiskey. The plaintiff, having purchased the interest of Mr. McEneaney and Mr. Cumiskey, is entitled to the property.
The first relief which the plaintiff claims is a declaration that he is entitled to the freehold interest “in all the property situated at Wavecrest Drive, Blackrock, Dundalk in the County of Louth”. Additionally, he seeks declarations that the title of the Deceased is statute barred and, alternatively, that the Deceased was a trustee for Mr. McEneaney and Mr. Cumiskey. The plaintiff also seeks an order directing the defendant to convey or transfer the freehold interest “in the said property” to the plaintiff. If necessary, the plaintiff also seeks an order appointing a trustee for the purposes of conveying the property to Mr. McEneaney and Mr. Cumiskey and/or the plaintiff. An order is sought in the amended statement of claim which was not sought in the original statement of claim: an order for the rectification of the register “in respect of a portion of Folio 12029 County Louth, the subject of the proceedings herein”.
In recording the plaintiff’s claim as pleaded, I have highlighted what I consider to be vagueness and uncertainty as to the property the subject of the proceedings. While this was not an issue during the hearing of the proceedings, it is an issue for the court in the light of the evidence. However, I will return to that aspect of the matter later.
In his defence, the defendant has traversed all of the allegations made by the plaintiff in relation to the dealings between the Deceased and Mr. McEneaney and Mr. Cumiskey. In particular the defendant has denied that Mr. McEneaney and Mr. Cumiskey entered into and continued in sole and exclusive occupation of the property and it is further denied that Mr. McEneaney and Mr. Cumiskey paid the purchase price to the Deceased. Alternatively, the defendant asserted that, if there was an agreement between the Deceased and Mr. McEneaney and Mr. Cumiskey, it is unenforceable for failure to comply with the Statute of Frauds (Ireland) 1695. Alternatively, the entitlements of Mr. McEneaney and Mr. Cumiskey under the alleged agreement are statute barred. The defendant has also alleged that Mr. McEneaney and Mr. Cumiskey were guilty of laches.
The defendant has also counterclaimed against the plaintiff, asserting that the Deceased was the registered owner of lands comprised in Folio 12029 and that the Deceased was at all times entitled to possession of the property. There followed an allegation of trespass and of slander of title by the institution and maintenance of these proceedings. The relief sought in the counterclaim is an injunction restraining the plaintiff from interfering with the defendant’s property and damages for, inter alia, trespass and slander of title.
In his reply and defence to counterclaim the plaintiff joined issue with the defendant on the defence. Specifically, he asserted that the Deceased had by his solicitor in open correspondence acknowledged that he had sold “the said property” to the plaintiff’s predecessors in title, Mr. McEneaney and Mr. Cumiskey. It would appear that the defendant did not seek to identify the “open correspondence” by seeking particulars.
The facts: what happened between 1975 and 1977
In relation to the events between 1975 and 1977, the court heard the evidence of Mr. McEneaney and Mr. Cumiskey, who were called by the plaintiff, Mr. Cumiskey having appeared in answer to a subpoena. Two of the Deceased’s children, the defendant and Gillian McBride, were called by the defendant in relation to those events. At the time, the defendant was a small boy and Mrs. McBride was in her late teens. Mr. John Igoe, a retired garda, and Mr. Hugh Cafferty were also called by the defendant. By agreement, a planning file maintained by Louth County Council was admitted in evidence.
In the late 1960s the Deceased, who was a builder, developed a small estate of six bungalows at Blackrock, County Louth, which came to be known as Wavecrest Drive. When he had the development completed he had a plot of land which lay between the rear of some of the bungalows and the sea shore left over.
At this point, I digress to address the confusion which the documents which have been put in evidence create. On the basis of the most recent certified copy of Folio 12029 put in evidence (certified as of 29th September, 2005), that folio relates to part of the townland of Haggardstown, comprising 0.1518 hectares, equivalent to just over one-third of an acre. The Deceased was registered as owner of these lands in the Land Registry on 1st November, 1967. The lis pendens registered in relation to these proceedings is registered as a burden on the folio. However, when these proceedings were instituted it would appear that there was a larger area registered on the folio, because the copy of the land certificate put in evidence discloses that an area comprising 0.3200 hectares was transferred off the folio on 30th October, 2003 and is now registered on Folio 24964F, County Louth. On the second day of the hearing a copy of Folio 24964F was put in evidence and this shows that, as recently as 30th October, 2003, Nora Molloy was registered as full owner on that folio, although a sketch map on the planning file suggests that the Molloy interest dates back to 1975. The lis pendens is also registered as a burden on that folio. Why the lis pendens is registered against the land of Nora Molloy, who is not a party to the proceedings, was not explained. The confusion is compounded by two further factors. First, the transfer dated 27th February, 2003 from Mr. McEneaney and Mr. Cumiskey to the plaintiff, to which I will refer later, purports to transfer part of Folio12029 “containing .182 acres, or thereabouts metric measure (sic)” to the plaintiff. The map annexed to that transfer, which was drawn by a building surveyor, gives the area outlined in red as 0.182 acres (equivalent to .0735 hectares). Secondly, the claim for rectification in the plaintiff’s amended statement of claim relates to “portion of Folio 12029”. The final element of confusion is that, while the filed plan in relation to Folio 24964F has not been put in evidence, the filed plan in relation to Folio 12029 as at 29th September, 2005 would suggest that the “sliver”, as one of the witnesses, Mr. John Woods, described it, transferred to Folio 24964F is half the size of the lands remaining on Folio 12029, not twice the size as the area given in the folios would suggest.
The foregoing confusion could have been easily avoided if the plaintiff had produced a map of the disputed plot based on an up to date ordnance survey map and had related it to the relevant Land Registry folio, which appears to be Folio 12029, as it now is. For present purposes I am proceeding on the basis that the plot of land in dispute, which I will refer to as the disputed plot, is the area depicted on the aerial photograph put in evidence, which is bounded on the west by a hedge separating it from two bungalows in Wavecrest Drive, on the east by the seashore, on the north by a row of conifers, which I assume separates it from Nora Molloy’s back garden and on the south by a “wireless” post and wire fence. I am also assuming that this plot is registered on Folio 12029 in the name of the Deceased, but that it comprises less than one-fifth of an acre.
Returning to what happened in 1975, I am satisfied on the evidence that around April, 1975 the Deceased orally agreed to sell the entirety of the disputed plot to Mr. Cumiskey and Mr. McEneaney on the basis that it would be divided lengthwise from west to east, so that Mr. Cumiskey would get the northern half together with an entrance and Mr. McEneaney would get the southern half less the entrance. Each area would have been capable of accommodating a mobile home. Each agreed with the Deceased to pay IR£300 for his take.
I am also satisfied on the evidence that shortly after the agreement was reached some works were carried out on the disputed plot to render it suitable to take two mobile homes. Some levelling work was done and in late April, 1975 a few consignments of gravel were put on the land. When that work had been done, at the end of April, 1975 Mr. Cumiskey, with the assistance of the Deceased, attempted to bring a mobile home onto his portion of the disputed plot. The residents in Wavecrest Drive obstructed entrance to the disputed plot. Garda Igoe was called and the attempt was abandoned. However, that night or the next day, probably by stealth, Mr. Cumiskey succeeded in putting his mobile home on his portion of the disputed plot. I think the probability is that the mobile home was in situ for over two years, as Mr. Cumiskey testified, and that Mr. Cafferty was mistaken in his recollection that it was there for only three or four weeks. Nothing turns on this conflict, however.
What happened immediately after the mobile home was brought on the site was that the residents in Wavecrest Drive complained to the planning authority, Louth County Council. An enforcement notice under the then in force s. 31 of the Local Government (Planning and Development) Act, 1967 was served on Mr. Cumiskey, as occupier, and on the Deceased, as owner, to compel removal of the mobile home. Following non-compliance, proceedings were initiated in Dundalk District Court. It is not clear what the outcome of the proceedings was. In any event, some time in 1975 Mr. Cumiskey applied to Louth County Council for planning permission for “retention of caravan on site” at Haggardstown, Blackrock”. On 29th June, 1976, Louth County Council issued a notice of decision to refuse planning permission on the ground that the area was zoned for recreational use, which had been the consistent policy of the planning authority since the early 1950s to retain it as a public open space. Mr. Cumiskey appealed to An Bord Pleanála. The appeal was determined against him on 2nd June, 1977, when An Bord Pleanála refused the permission on the ground that the site formed part of a prominent headland overlooking the foreshore and that a caravan on the location would be detrimental to the visual amenities of the area. The zoning for recreational use was considered reasonable. Mr. Cumiskey’s evidence was that when he was informed of that decision, he removed the mobile home from the disputed plot. I accept his evidence on this.
I am satisfied that the actions of Mr. McEneaney and Mr. Cumiskey in April, 1975 and Mr. Cumiskey’s actions thereafter were referable to the fact that there was an oral agreement between them and the Deceased to purchase the disputed plot. The real issue in this case is what impact the opposition of the residents in Wavecrest Drive and, ultimately, the refusal of planning permission by An Bord Pleanála had on that agreement. In addressing that issue it is necessary to consider what else Mr. McEneaney and Mr. Cumiskey did on foot of the agreement.
It is clear on the evidence that Mr. Donal McArdle, a solicitor practising in Dundalk, acted for the Deceased in connection with the transaction. Mr. McArdle subsequently became a judge of the District Court and he has been dead for a long number of years. The firm of Patrick Quinn & Co., solicitors practising in Dundalk, acted for both Mr. McEneaney and Mr. Cumiskey and, in particular, in 1975 Mr. Roger MacGinley was dealing with the matter for them. Mr. MacGinley is still practising as a solicitor in Dundalk. He was not called as a witness.
Mr. Cumiskey’s evidence was that he paid the agreed sum of IR£300 in cash to Mr. MacGinley’s office, Patrick Quinn & Co. He was under the impression that Patrick Quinn & Co. were the Deceased’s solicitors but that patently was not the case. He received a receipt for the money from Patrick Quinn & Co. His evidence was that that receipt referred to the money and the size of the disputed plot he was acquiring. The receipt was not forthcoming at the hearing because later, around 1999, Mr. Cumiskey gave the receipt to the plaintiff. The plaintiff’s evidence was that he brought the receipt in to Mr. MacGinley to find out more about it. When he called some time later, the receipt had been mislaid.
Mr. McEneaney’s evidence was that he paid the sum of IR£300 by cheque. He was able to produce the cheque stub, for what it was worth, which suggested that the cheque was dated 2nd April, 1975 and was for IR£300. Mr. McEneaney’s evidence was that his wife wrote the cheque and that the payee was the Deceased. He testified that he brought the cheque to the office of Mr. McArdle and that he gave it to a girl who was there. It occurred to me that Mr. McEneaney’s recollection on that point might not be correct because Patrick Quinn & Co. were acting for him, as correspondence which emanated subsequently makes clear. Moreover, Mr. McEneaney testified that he gave two pieces of paper which the Deceased gave him, which I understand to have been plans of the two sites carved out of the disputed plot, to Patrick Quinn & Co. However, the defendant seems to have accepted Mr. McEneaney’s evidence on that point.
The items of correspondence from Patrick Quinn & Co. which Mr. McEneaney and Mr. Cumiskey possessed and which were put in evidence do corroborate the existence of an oral agreement between the Deceased, on the one hand, and Mr. McEneaney and Mr. Cumiskey, on the other hand, in 1975. The earliest letter put in evidence was a letter of 26th August, 1975 from Patrick Quinn & Co. to Mr. McEneaney telling him that they had received a contract from the Deceased’s solicitors and asking him to call at his convenience. That letter would suggest that, while a deal had been done, the intention was that there would be a formal contract. It is not clear whether a formal contract was executed. Mr. McEneaney’s evidence was that he could not say that he went in to sign a contract. Chronologically, the next letter is a letter dated 11th March, 1977 from Patrick Quinn & Co. to Mr. Cumiskey and his wife, the heading of which refers to a transaction involving the Deceased and the addressees in relation to a plot of ground at Haggardstown. In the letter the addressees were asked to call to the office some days later to sign the sub-division form, which obviously was the form on which the consent of the Land Commission to sub-division pursuant to s. 12 of the Land Act, 1965, which would have been necessary at the time, would have been applied for. There was a further letter of 8th June, 1977 from Patrick Quinn & Co. to Mr. Cumiskey advising him of the result of the appeal to An Bord Pleanála and pointing out that it marked the end of the procedures which would be open for practical purposes. Mr. Cumiskey was asked to get in touch with the office.
The first two items of correspondence suggest the existence of an ongoing conveyancing transaction. However, it is not clear on the evidence whether contracts were signed or what arrangements were made in relation to the purchase money between the office of Patrick Quinn & Co. and the office of Donal McArdle. What is clear is that the position of the Deceased at all times was that he did not receive the purchase money. Notwithstanding the refusal of planning permission, the conveyancing files in both offices seem to have remained open after 1977. The last item of correspondence put in evidence was a letter dated 20th October, 1981 from Patrick Quinn & Co. to Mr. McEneaney referring to the transaction from the Deceased to him and the transaction from the Deceased to Mr. Cumiskey. In the letter it was stated that the office had been in contact with Donal McArdle & Co. regarding the production of a map to be told that Mr. McEneaney and Mr. Cumiskey were to have the map prepared. Mr. McEneaney was requested to contact the office. Again, it is not clear whether anything arose out of that letter. If there were formal contracts entered into, there is no evidence that they were completed and there is certainly no suggestion that either Mr. McEneaney or Mr. Cumiskey got title from the Deceased.
The position on the ground between 1977 and 1999
Mr. Cumiskey’s evidence was that his portion of the disputed plot was dormant for a number of years and he did not do anything in relation to it. Occasionally, if he was in Blackrock, he would go and look at it but it was overgrown. His home was at Tray, Culloville, County Monaghan in 1975 and still is. In the course of cross-examination he did say he believed he owned it, but he said he was not using it and it was of no value to him. He said it was of no interest to him.
The evidence of Mr. McEneaney, who at all material times lived in Dundalk, was quite similar to Mr. Cumiskey’s. He said he had lost all interest in his portion of the disputed plot when it became apparent that he could not put a caravan on it. He was not going to spend money on it. He visited the site occasionally when out walking the dog, perhaps every three to six months. Once he saw a neighbour putting rubbish on it and he asked him to remove it and he did.
The Deceased’s home was within a hundred yards of the disputed plot. He also owned a caravan park in the vicinity. The evidence of the defendant was that the Deceased dumped grass from the caravan park on the disputed plot until about 1987, when the caravan park was developed for housing, and continued thereafter to dump grass from his residence on it. Mr. Cafferty corroborated the defendant’s evidence of a continued use by the Deceased of the disputed plot after the incident in April, 1975. He recollected the Deceased driving onto the disputed plot with a tractor and trailer carrying 40 or 45 gallon barrels, digging a hole, dumping material and covering up the hole. That practice continued until the Deceased closed his caravan park, which Mr. Cafferty testified occurred probably in 1982 or 1983. Mr. Cafferty’s evidence was that he saw the Deceased dumping material on at least three or four occasions. He also corroborated the evidence of the defendant in relation to the entrance to the disputed plot from where the estate road ends immediately to the south of the adjoining house of the Cotter family. The defendant’s evidence was that the gate piers at that point were damaged when a delivery truck reversed and they were rebuilt by the Deceased and that the Deceased hung a gate and that he had a key to the gate. The defendant’s evidence was that this happened about twenty years ago. Mr. Cafferty recollected seeing the Deceased repairing the piers of the gate years after the incident in April, 1975. He also recollected that there was a gate at that point and that there was a chain on the gate. However, the chain was taken off later and then eventually the gate came off. While, as I have already stated, I believe Mr. Cafferty is mistaken in his recollection that Mr. Cumiskey’s mobile home was only on the disputed plot for three or four weeks, overall, I find his evidence to be reliable. Like the other residents of Wavecrest Drive he had a continuing interest in what was happening on the disputed plot. Indeed, in the context of describing the Deceased’s dumping activities, he observed that he did not know which was the greater evil, which I understand to refer to the presence of a mobile home or the dumping activity.
Mr. John Woods, who is a partner in the firm of Woods Ahern Mullen, who are acting for the defendant in these proceedings, testified that he visited the disputed plot with the Deceased eight, nine or ten years ago. Mr. Woods’ recollection was that there was a gate accessing the disputed plot but they did not go in through the gateway between the piers because the area was all overgrown. They crossed over the broken down wire on the southern boundary. The context of that visit was discussions between the owner of adjoining property and the Deceased in relation to the acquisition by the adjoining owner of the disputed plot from the Deceased. However, discussions came to nought.
The plaintiff’s involvement
The plaintiff’s involvement commenced around 1999. At the time he was living in Crossmaglen, County Armagh, where he still lives. He was 75 years of age. He had retired from the building trade, in which he had worked for other people. He had been in receipt of the old age pension since he was 65 years of age, as had his wife. He had no bank account.
Mr. Cumiskey’s evidence was that the plaintiff approached him and asked him to sell his site at Blackrock and he sold it to him for IR£500, representing what he had paid in 1975 and his expenditure on the site. Mr. Cumiskey’s lack of curiosity was quite extraordinary: he neither asked the plaintiff what he proposed to do with the site, nor did he ask the plaintiff how he found out about Mr. Cumiskey’s ownership of it. He did not speak to Mr. McEneaney about the transaction with the plaintiff and he was quite philosophical about the fact that Mr. McEneaney made a better bargain with the plaintiff.
According to Mr. McEneaney, he was approached by the plaintiff who told him he had bought Mr. Cumiskey’s site, that he understood that Mr. McEneaney had the other half and asked would he sell. Mr. McEneaney said he would. They haggled over the price and eventually agreed on IR£1,200.
The plaintiff’s evidence was that his wife is originally from Blackrock and she wanted a chalet there. When he approached Mr. Cumiskey he knew that he had a site but he did not know where it was. He paid Mr. Cumiskey and Mr. McEneaney in Irish pounds – £1,700 between them – with cash he kept in the house. He was not surprised that the disputed plot was going for so little. He did not know anything about the title difficulties.
However, the plaintiff set about getting the disputed plot put into his own name. He instructed Peter McGuinness of the firm of Esther McGahon McGuinness & Company, who are acting for him in these proceedings, in 1999. The plaintiff told Mr. McGuinness that he had paid Mr. Cumiskey and Mr. McEneaney for the disputed plot, neither had a solicitor acting and they had no title. Mr. McGuinness drew up acknowledgements to be signed by both. Mr. McEneaney attended at the office of Mr. McGuinness on 9th September, 1999 and, in the presence of Mr. McGuinness, who witnessed his signature, he signed an acknowledgement to the effect that he had purchased a site from the Deceased, that he had paid the Deceased, but no formal assurance was completed. He also confirmed that he had disposed of his interest to the plaintiff for the sum of IR£1,200, and acknowledged receipt of that money. He confirmed that he would execute a deed of assurance to vest the lands in Mr. Moley. A similar acknowledgement was signed by Mr. Cumiskey but he did not attend Mr. McGuinness’s office. He signed it in the presence of Michael Rice, who is a son-in-law of the plaintiff and resides in Dundalk.
Subsequently, after these proceedings were instituted, the transfer dated 27th February, 2003, to which I have already referred, was executed by Mr. McEneaney and Mr. Cumiskey.
I found the plaintiff’s evidence as to how he came to acquire the interests of Mr. McEneaney and Mr. Cumiskey highly implausible. I think it reasonable to infer that he was fronting for somebody and that the probability is that that person was Michael Rice. Having said that, the plaintiff has acquired such, if any, interest as Mr. McEneaney and Mr. Cumiskey had in the disputed plot.
Implications of the Deceased’s death
What precipitated these proceedings, as pleaded in the statement of claim, was that the Deceased alleged that the plaintiff was trespassing on the disputed plot and threatened proceedings. Some of the correspondence which passed between the plaintiff’s solicitors and the defendant’s solicitors has been put in evidence, but not all of it. The only item of correspondence which I consider it necessary to comment on was a letter of 31st March, 2000 from the defendant’s solicitors to the plaintiff’s solicitors in response to a letter from the plaintiff’s solicitors dated 23rd March, 2000, which was not put in evidence. In the letter it was stated that the defendant’s solicitors had been instructed that the Deceased had furnished a map to Mr. McEneaney and Mr. Cumiskey “showing the lands agreed to be sold” and asking for a copy of the map. The letter stated that the Deceased’s instructions were that he was “only prepared to deal with” Mr. McEneaney and Mr. Cumiskey “on the basis of the map furnished”. If it is this letter which is referred to as the “open correspondence” in the plaintiff’s reply, in my view it is of no probative value as to what happened in 1975 and it certainly does not constitute a sufficient note or memorandum for the purpose of the Statute of Frauds.
Because of the death of the Deceased in January, 2005 the court has only heard one side of what transpired between Mr. McEneaney and Mr. Cumiskey, on the one hand, and the Deceased, on the other hand, in 1975. A statement by the Deceased taken by his solicitor in July, 2001 in connection with these proceedings, which was not signed by the Deceased, has been put in evidence. According to the statement, the Deceased had agreed to sell to Mr. McEneaney and Mr. Cumiskey in 1975, IR£600 was paid to the Deceased’s solicitor, Donal McArdle, but nothing was signed. The incident in which access for Mr. Cumiskey’s mobile home was blocked is referred to and the statement goes on to say that the mobile home never went on the disputed plot, that Mr. Cumiskey was going to apply for planning permission and that that was the last he (the Deceased) had heard of the matter. He never signed anything nor did he ever get any money. That statement is so incorrect on aspects of the matter which are verifiable that, even if admissible, it would be of no probative value. Mr. Cumiskey’s mobile home was on the land and the transaction between the Deceased and Mr. McEneaney and Mr. Cumiskey was generating correspondence between the solicitors as late as 1981. The evidence of Mr. John Woods, who took the statement from the Deceased, was that it was difficult to take instructions from the Deceased because he was deaf. However, his complaint was that he never got the money. Mr. Woods’ assumption, for what it is worth, was that the sum of IR£600 which the Deceased told him was given to Mr. McArdle went back when the deal did not go through.
The Deceased made his last will and testament on 25th May, 1998. He made two specific devises of property, one of his house to one daughter and another of an interest he had in a licensed premises in the town of Dundalk to another daughter. He also specifically bequeathed his car and caravan to a third daughter. He devised and bequeathed the residue of his estate amongst his five children equally. Counsel for the plaintiff tried to make something of the fact that the Deceased did not deal specifically with the disputed plot in his will. In my view, nothing of significance can be deduced from that fact alone.
The disputed plot was returned on the Inland Revenue Affidavit sworn by the defendant for the purposes of Capital Acquisitions Tax on 6th December, 2005 on the basis that it was owned by the Deceased at the date of his death. The value ascribed to the disputed plot, which was described as comprising 1.518 hectares and as being registered on Folio 12029, was €300,000. Mr. Michael Lavelle, an auctioneer carrying on business in Dundalk and Drogheda gave evidence that he gave the valuation for the purposes of the Inland Revenue affidavit. His evidence was that the disputed plot was worth IR£500 in 1975, in 1999 it was worth €200,000, and in 2003 it was worth €275,000. In November, 2005 he valued it at €300,000 for probate purposes and that was a conservative valuation. I found that evidence utterly unconvincing, particularly as I note that the Deceased’s house on a site of .1 hectare was returned on the Inland Revenue Affidavit at €475,000. Mr. Lavelle acknowledged that he did not know how the disputed plot was zoned for planning purposes when he valued it but he valued it on the assumption that it would be possible to get planning permission for a residence on it. Having regard to the evidence, in my view, he was not entitled to make that assumption. On the basis of the evidence, the likelihood of obtaining planning permission to build anything on the disputed plot seems remote.
Submissions on the law
The case made on behalf of the plaintiff at the hearing was premised on Mr. McEneaney and Mr. Cumiskey having agreed to purchase and the Deceased having agreed to sell the disputed plot for IR£600 and the consideration due under that agreement having been fully discharged. On that basis, it was submitted that Mr. McEneaney and Mr. Cumiskey became the beneficial owners of the entire interest, and the Deceased merely retained the legal estate. In other words he was a trustee for the beneficial owners, so that the defendant now stands in his shoes as trustee. The alternative proposition advanced on behalf of the plaintiff was that Mr. McEneaney and Mr. Cumiskey, having been given possession by the Deceased in 1975, have retained possession and have carried out acts consistent with their ownership. They have had the necessary animus possidendi to bar the title of the Deceased, it was submitted, and such title was extinguished by 1987. Counsel for the plaintiff advanced an argument in reply which is not quite consistent with that argument, namely, that even if Mr. McEneaney and Mr. Cumiskey had made no use of the disputed plot after the refusal of planning permission in 1977, that does not alter their status as beneficial owners. No steps were taken to dispossess them. He submitted that, as a trustee, the Deceased was not a person in whose favour time ran under the Statute of Limitations, 1957, because of the definition of “trustee” in s. 2(2)(a).
On behalf of the defendant, it was submitted that, if there was an agreement which is specifically enforceable, the persons to enforce it were Mr. McEneaney and Mr. Cumiskey, not the plaintiff. It was submitted that, insofar as the plaintiff was suing in reliance on the transfer of 27th February, 2003, that transfer was at a gross undervalue, was not adequately stamped and thus was tainted with illegality and the court should not recognise or give cognisance to it. It was further submitted that insofar as the plaintiff’s case for enforceability was based on the plaintiff having partly performed the agreement, the acts of Mr. McEneaney and Mr. Cumiskey in 1975 did not constitute acts of part performance so as to take the case out of the Statute of Frauds. In support of that proposition counsel for the defendant referred to a judgment of this Court (McWilliam J.) delivered on 5th May, 1978 in Philip M. Howlin v. Thomas F. Power (Dublin) Limited (Unreported), in which it was stated that the principle established by the authorities appears to be that, where the party seeking relief in proceedings has taken some step in pursuance of the contract which has left him in such a position that it would amount to a fraud or be inequitable on the part of the other party to rely on the fact that there was no sufficient memorandum of the contract, the case is taken out of the statute and the court will enforce the contract. It was submitted that Mr. Cumiskey did not suffer any prejudice by placing the caravan on the disputed plot, because he removed it subsequently. It was further submitted that the payment of money was not an act of part performance. It is not necessary to comment on the defendant’s submissions on part performance because the position adopted by counsel for the plaintiff in reply was that this is not a case of suing on a contract and seeking specific performance. The plaintiff’s position is that, as successor in title of Mr. Cumiskey and Mr. McEneaney, he is the full beneficial owner of the disputed plot. It was also submitted on behalf of the defendant that the plaintiff should not be afforded equitable relief because he has not come with clean hands, this, in essence, being the illegality argument, and that, as there had been a delay of 25 years in bringing the proceedings, relief should be refused on the ground of laches.
Conclusions
Counsel for the plaintiff objected that the defendant had not pleaded that the transaction under which the plaintiff claims to have derived beneficial title was tainted with illegality. The reason, presumably, was because the transfer of 27th February, 2005 post-dated the defendant’s defence and counterclaim. The defendant could have sought to amend the defence after receiving the transfer on discovery. Clearly an allegation that a contract is tainted with illegality should be specifically pleaded.
Apart from that, I am not satisfied that the case of illegality has been made out. The transfer was stamped ad valorem on the consideration which passed from the plaintiff to Mr. McEneaney and Mr. Cumiskey. As I understand the defendant’s argument, it is that, on the basis of the defendant’s contention that the consideration of IR£1,700 was a gross undervalue, the transfer should have been stamped ad valorem on the value of the property and adjudged duly stamped. I have already indicated that I do not accept Mr. Lavelle’s evidence of valuation. That being the case, and there being no other evidence of valuation, I am not prepared to hold that the transfer was not properly stamped and that the transaction between the plaintiff and Mr. McEneaney and Mr. Cumiskey is tainted with illegality.
Dealing with the case which the plaintiff has made, that it is the beneficial owner of the disputed plot in succession to Mr. McEneaney and Mr. Cumiskey who were the beneficial owners by reason of paying the full purchase money on foot of their agreement with the Deceased, the relevant legal principle is quite clear even if its application to the facts here is anything but clear. The principle was re-stated by the Supreme Court in Coffey v. Brunel Construction [1983] I.R. 36, in which Griffin J. stated (at p. 43):
“… the principles which apply in a case such as this are quite clear and have been followed for more than one hundred years. Where a binding contract for the sale and purchase of land has been made, and the entire purchase money has been paid, the purchaser becomes entitled to the entire beneficial interest in the lands and the vendor becomes a bare trustee for the purchaser. In Rose v. Watson Lord Cranworth said at p. 683 of the report:-
‘There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate.’
The principles laid down in that case have been universally acted upon since and are now settled law …”
If that principle applied here, so that from, say, April or May, 1975 the Deceased was a bare trustee and Mr. McEneaney and Mr. Cumiskey were the beneficial owners, in my view, if the Deceased had continued in possession adverse to the title of Mr. McEneaney and Mr. Cumiskey, the Statute of Limitations, contrary to the plaintiff’s submission, could have run in his favour. Section 2(2)(a) of the Statute of Limitations, 1957 provides that “trustee” therein does not include “a person whose fiduciary relationship arises merely by construction or implication of law and whose fiduciary relationship is not deemed by any rule of law to be that of an express trustee”. A vendor who is deemed by law to be a bare trustee by reason of receipt of the full purchase money under a binding agreement is a constructive trustee. In Ireland, a constructive trustee can acquire a possessory title against the beneficiary. In consequence, even if the purchase money was paid to and received by the Deceased, if the Deceased was in possession from 1977 onwards to the exclusion of Mr. McEneaney and Mr. Cumiskey he could have barred their beneficial ownership. On the other hand, if Mr. McEneaney and Mr. Cumiskey, having paid the purchase money to the Deceased, were in possession of the disputed plot to the exclusion of the Deceased from 1975 to 1987, the outstanding legal estate in the Deceased would have been barred.
The real difficulty in this case is in determining what the true factual situation was. I have no doubt but that the Deceased verbally agreed to sell the disputed plot to Mr. McEneaney and Mr. Cumiskey on the terms alleged. Moreover, I have no doubt that the Deceased assisted Mr. Cumiskey in getting the mobile home on the disputed land. It would appear that the intention was that there would be a formal agreement executed. Whether that meant that the coming into existence of a binding agreement was postponed until the formal agreement was executed is not clear. What is clear is that, despite the involvement of solicitors on both sides for six years, the transaction was never completed. As to the payment of the purchase money, I accept that both Mr. McEneaney and Mr. Cumiskey parted with the agreed sum. It would appear that, for whatever reason, neither sought nor got a refund. However, I am not satisfied that the Deceased received the purchase money or any part of it. Neither Mr. McArdle, as the solicitor for the vendor, if he received a cheque from Mr. McEneaney (and no evidence was adduced that the cheque was negotiated), nor Mr. MacGinley, as the solicitor for the purchaser, who received cash from Mr. Cumiskey, was likely to part with the money until the transaction was completed. The transaction was never completed. It is not good enough for the plaintiff to assert that the question of the money was a matter between the Deceased and the solicitors. The rationale of the principle on which the plaintiff relies is that the agreed purchase money is substituted for the land in the vendor’s hands. The onus of proving that the Deceased got the purchase money was on the plaintiff and the plaintiff has failed to discharge that onus.
As to who was in possession of the disputed plot from 1977 onwards, it is absolutely clear on the evidence that neither Mr. Cumiskey nor Mr. McEneaney occupied or exercised acts of ownership over the disputed plot of the type that would constitute possession for the purposes of the Statute of Limitations. Apart from that, in my view, neither of them had the necessary animus possidendi. Counsel for the plaintiff referred to the decision of this Court (Barron J.) in Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677. It is worth quoting the passage from the judgment of Barron J. in which he deals with the necessity for animus possidendi. He said (at p. 683):
“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.”
Of course no question arises here of either Mr. McEneaney and Mr. Cumiskey, on the one hand, or the Deceased, on the other hand, having some specific purpose for the disputed plot in the future. The importance of the passage is that it points to the fact that the claimant to a possessory title requires a particular state of mind, the intention to possess.
This case is very unusual in that both Mr. McEneaney and Mr. Cumiskey testified that they had lost interest in the disputed plot after 1977. In contrast, the evidence shows that the Deceased did exercise acts of ownership over the disputed plot after 1977. Moreover, the fact that he brought Mr. Woods to see the disputed plot some time in the late 1990s in the context of discussions for a sale to a third party, suggests that he considered himself the owner of the disputed plot and in possession thereof at all times. In my view, he remained the owner thereof until his death.
The only inference which can be drawn from the facts is that both sides considered that the transaction was not worth pursuing when planning permission was refused in 1977 and that it was impliedly terminated, if not expressly. I find it difficult to understand why Mr. McEneaney and Mr. Cumiskey did not seek a return of the monies they gave to the solicitors involved. However, they have recouped that loss from whomever the plaintiff fronts for. That person acquired no title from Mr. Cumiskey or Mr. McEneaney. As he walked into this situation with his eyes wide open he is deserving of no sympathy.
Order
There will be an order dismissing the plaintiff’s claim and vacating the lis pendens.
As I consider that neither injunctive relief nor a declaration is necessary on the defendant’s counterclaim, and as there has been no evidence of any damage suffered by the Deceased or his estate due to the actions of the plaintiff, I propose making no order on the defendant’s counterclaim.
Costs
I do not propose dealing with the costs issue until it is established to the satisfaction of the court whether the disputed plot has a rateable valuation and, if so, what it is.
Approved: Laffoy J.