General Principles
Cases Misc Issues
In re Smith
[1939] IR 244
Maguire P.
The history of the two small holdings of land with which I am concerned here reproduces in its main features the history of many such holdings in rural Ireland.
Originally the two parcels of land, now comprised in Folios 2269 and 2270 of the Land Registry, County of Cavan, were holdings of tenanted land worked as a single unit by the Smith family. Apparently John Smith was entered on the landlord’s books as tenant. The tendency to subdivide in order to provide for more than one member of the family showed itself many years ago, when a small portion of the lands now included in Folio No. 2270 was cut off from the main holding. Of this portion Michael Smith was given possession by his brothers Thomas and John. A shop was erected on this plot, where Michael Smith carried on business and in which business has been carried on to the present day. The two brothers, John Smith and Thomas Smith, remained in possession of the main holding.
The precise circumstances under which the small portion to which I have referred was cut off from the main holding are not clear. On the one hand, it is claimed that Michael Smith was only allowed there as a permissive occupant, and that the members of the family from time to time resided there and had equal rights such as they were, with Michael. On the other hand, it is stated that there was a definite gift to Michael of the lands, which are here the subject of a claim by Philip Clarke.
No attempt, apparently, was made to apportion the rent or the annuity on the lands, but they have been for many years separately rated.
I have little doubt that the subdivision of the lands when they were merely tenanted lands, was void by reason of s. 2 of the Land Act, 1881.
In the year 1901, the lands in both Folios were purchased, under the Land Purchase Act of 1881, and were vested in John Smith. He was registered as owner under the Local Registration of Title (Ireland) Act, 1891, on the 15th day of July, 1901. According to the affidavit of Maggie Smith, Thomas Smith had married her in the year 1899. Upon this marriage, she states, a marriage agreement in writing was entered into, whereby John Smith transferred all the land to Thomas, receiving therefor a sum of £40. This agreement, it is said, has been lost. It is further stated that John Smith, shortly after the marriage, left the holding and went to reside elsewhere. He died intestate in the year 1926. It is curious, if such an agreement did exist, that John Smith should have become the purchaser of the holdings from the Land Commission, to be later duly registered as owner thereof. The fact that he left the holding seems, however, consistent with his having, as alleged, assigned his interest to Thomas.
I return now to the portion which was in the possession of Michael Smith. It seems clear that Michael Smith was in sole possession of this strip of land at the time of the purchase from the Land Commission. After his marriage he and his wife were in possession down to his death in 1911. His wife remained on in possession down to her death in 1936. By her will she bequeathed the house and lands to her sister Mary Brady, who died in 1937, she having bequeathed the premises to Philip Clarke, who now seeks a declaration of his title to the land.
Meanwhile the main holding had changed hands. Thomas Smith died in 1908, intestate, leaving his widow Maggie Smith and three children, Bernard, Peter and Rose, him surviving. They have, since 1908, been in possession of the lands occupied by Thomas Smith. An application on behalf of Maggie Smith and her three children for a declaration, under s. 52 of the Local Registration of Title (Ireland) Act, of their title to the lands comprised in both Folios was made to this Court. Since the notice of this application was served Maggie Smith died and the application before me is made on behalf of the three children, Bernard, Peter and Rose.
I will deal first of all with the application of Philip Clarke. He claims, under the will of Mary Brady, to be entitled to the lands formerly occupied by Michael, and, lately, by Annie Smith. I have already pointed out that the subdivision of the lands, while they were only tenanted lands, if challenged, would have been held void by reason of s. 2 of the Land Act, 1881. The purchase of the lands under the Land Purchase Acts created a new position. It has been held in Geoghegan’s Case (1) that the subdivision or subletting of lands, the subject of an advance by the Land Commission, without the consent of the Land Commission, is only void as against the Land Commission. In that case a direction was given to register the title of the transferee of portion of a holding, notwithstanding the absence of the consent of the Land Commission. It seems to me clear that unless subsequent statutory provisions, to which I shall refer in a moment, alter the law applicable to this case, Annie Smith would have been entitled to a declaration of title under s. 52 of the Local Registration of Title (Ireland) Act, 1891, had she applied for it. Such registration would not, however, affect the overriding power of sale conferred on the Land Commission in such a case, see Geoghegan’s Case (1).
Mr. O’Leary, however, points out that the scope of the decision in Geoghegan’s Case (1) was severely limited by s. 65 of the Land Act, 1923, whereby subdivision of land purchased under that Act was, unless made with the consent of the Land Commission, prohibited, and all attempts at subdivision were made void against, all persons, and that this prohibition and its consequent effect was extended to all holdings or parcels of land purchased under the Land Acts prior to 1923 by s. 4 of the Land Act, 1927, which differs only from s. 65 of the Land Act, 1923,
in that it only operates while any portion of the advance is outstanding. The effect of this section, Mr. O’Leary argues, is to overrule the decision in Geoghegan’s Case (1)and to deprive Philip Clarke of any help from it. He contends that the subdivision of these lands is void against all persons; consequently, he argues, Bernard, Peter and Rose Smith are entitled to a declaration under s. 52 in respect of the whole of the lands comprised in both Folios.
In answer, Mr. Smyth contends that Annie Smith would, but for the Local Registration of Title Act, have acquired a title by possession of the strip of land in her possession before the Land Act, 1927, was passed, and Philip Clarke is now entitled to a declaration under the sections based on her possession.
It seems to me, however, that the line of reasoning adopted by Mr. O’Leary has a fatal weakness for him. His claim is based altogether on possession of the lands. He has no roots in the title of John Smith, the registered owner. This being so, I am at a loss to understand how he can base a title on possession to a portion of the lands, of which the applicants whom he represents admittedly have never been in physical possession.
The only element of difference between the possession by Bernard, Peter and Rose Smith of the lands they occupy and the possession by Philip Clarke of the portion occupied by him, is that the Smiths have paid the annuity on the whole holding. I do not think this is sufficient to enable the Smiths to oust Philip Clarke. Both applicants are claiming a declaration of title based solely on possession. It seems to me that the only person who would be entitled, as against Clarke, to rely upon the provisions of s. 4 of the Land Act, 1927, are persons claiming through or under the registered owner. I suggested at one stage of the case that Mr. O’Leary might consider raising representations to the registered owner to enable him to invoke the aid of the section. He declined to do so, for the reason that now to raise representation to the registered owner might create difficulties for him in other ways.
I am not to be taken as rejecting Mr. Smyth’s contention that the section does not apply to this case. I do not consider it necessary to decide this point. The position as I see it is that the lands in Folio No. 2270 are now in the possession, as to one part, of Bernard, Peter and Rose Smith and, as to the other, by Philip Clarke, and
that the occupiers of each part, basing their claims on possession, are in the same boat.
I am of opinion that I must accede to the application of Philip Clarke. I give him the declaration asked for in his notice of motion in respect of that portion of the lands comprised in Folio 2270 of the Land Registry of Eire ,County of Cavan, as defined in the notice of motion.
As regards the application on behalf of Bernard, Peter and Rose Smith, I can only consider this application with reference to the lands comprised in Folio 2269 and the part of Folio No. 2270 which is unaffected by the declaration I make in favour of Philip Clarke. On the facts before me I am satisfied that the Statutes of Limitation did run in favour of Maggie Smith, Bernard, Peter and Rose Smith and that, but for the Local Registration of Title (Ireland) Act, 1891, they would have acquired a title to the lands by possession as tenants in common. The death of Maggie Smith places a difficulty in the way of my making a declaration in favour of these applicants now before me at the present moment. She died since these proceedings commenced. Subject to representation being raised to Maggie Smith, I am prepared to make a declaration of their title to the land in Folio 2269 and the part of the lands comprised in Folio 2270 of the Land Registry of Eire , County of Cavan, other than the part in the possession of Philip Clarke, as tenants in common in fee simple. I direct that the note as to equities in each case be cancelled.
I do not know what attitude the Land Commission will take up as regards the land. This seems to me to be a case in which they might reasonably entertain favourably an application to consent to the subdivision, which has such a long history behind it, and under the protection of which two families have managed to make a living. Even if I had come to the conclusion different to the one at which I have arrived, I would have felt strongly inclined to express a hope that the Land Commission would relieve the position by, even at this late hour, giving a consent to a subdivision which had not produced any ill results.
Musgrave v M’Avey
[1907] 41 I.L.T.R 230
Gibson, J.
In this Civil Bill ejectment, at the instance of the plaintiff, I stated a case for the decision of the Court as to the application of the Statute of Limitations. The Court took the view that the questions stated involved questions of fact, and were not questions of law, and they were, therefore, unable to answer them. The duty, therefore, devolves upon me of disposing of the appeal on my own responsibility. In a previous ejectment the Lord Chief Baron appears to have dismissed the action. Though no decision on facts by one judge can bind another, such is my respect for the opinion of that eminent and accurate judge that I might have followed his decision if the facts proved were shown to be the same, and if his conclusion represented his definite opinion. Unfortunately on that occasion the plaintiffs were not represented by counsel, and I much doubt whether the view of the facts and law on which my opinion is founded was brought to the notice of the Court, particularly the transaction of 1895. I feel constrained, therefore, to act on my own conclusion. The facts are few and simple, but meagre. The landlords are dead; their agent is dead. The defendant was not examined as a witness. The defendant, a tenant on the Musgrave Estate, now vested in the plaintiffs, having been evicted for non-payment of rent was, on Oct. 12, 1891, put in as a caretaker under an agreement signed by him, undertaking to take due care of the premises and to give up possession to the landlords or their agent when required. On March 16, 1895 he paid the agent, on foot of arrears of rent due at the time of the ejectment, £12, and lodged with him two promissory notes, receiving two receipts as stated in Musgrave v. M’Avey, [1906] 2 Ir. R. 516, 40 Ir. L. T. R. 148. These receipts purported to be only for a debt, but the debt was unquestionably for old rent arrears, as found in the case stated by Andrews, J., and as appeared from the entry in the deceased agent’s book. I question if this fact was adequately brought before the Lord Chief Baron at the original hearing. From Oct. 12, 1891, the defendant has been in continuous occupation of the premises, enjoying the profits. No act of change or interruption on the part of the owners antecedent to the first ejectment was proved, nor was there any demand of possession. There was no evidence on either side of payment of rates or rating, if that would have made any difference. On the above facts ought the Court to infer that the landlord’s title was extinguished? When the defendant became a caretaker under *230 the agreement it is clear (1) that the possession under the contract was the landlord’s, not the defendant’s; (2) that the defendant was estopped from asserting any claim to possession inconsistent with the terms of the agreement: Doe v. Baytup, 3 A. & E. 188; Doe v. Birchmore, 9 A. & E. 667; Doe v. Mills, 2 A. & E. 17. While the agreement was in force he could not dispute the landlord’s title to possession. To set up an adverse possession he should have previously returned the possession to those from whom he received it as caretaker. To bring the Statute of Limitations into operation the defendant should have been in possession, and this he could not be while he was caretaker. The mere fact that he received, or appropriated, the trifling profit of premises of small value in apparent excess of (but not necessarily inconsistent with) a caretaker’s usual privileges, can hardly of itself prove determination of the contract on the landlords’ part. The defendant got no wages. The question is, does such enjoyment of profits for a long period make it proper to infer that the signed contract was abandoned? A contract, particularly a contract creating an estoppel, cannot be got rid of or be rescinded by acts of the servant only. I am not aware of any case where a contract like this has been held to be determined from mere inaction on the part of the employer without proof of overt acts on his part. Even a licence to do acts not primâ facie authorised would not necessarily determine the contract. Did the landlords ever intend to alter the character of defendant’s occupation? When possession or dispossession has to be inferred from equivocal acts, the intention with which they are done is all-important: Littledale v. Liverpool College, [1900] 1 Ch. 23. Here the vital point is the landlord’s intention. The agreement is express and in writing, and is quite different from the constructive caretaking created by s. 7 (2) of the Act of 1887. I would, therefore, feel great difficulty in holding that the mere receipt of profits by the caretaker proved that the caretaker was removed from that position and put into possession simpliciter. If such change took place, when should it be inferred to have occurred? In the first or second year, or when? No doubt, something depends on the length of time, the value of the premises, and the surrounding circumstances. But how could it be safely inferred that for the twelve years next before the action the landlords were dispossessed of these inconsiderable premises? Assuming, however (what I do not decide), that inference of dispossession might properly be drawn from mere appropriation of profits by a caretaker, whose occupation originated in express contract, the transaction of 1895 (no explanation of which has been given by the defendant) must be considered. It certainly suggests that the defendant was allowed to receive the profits by the landlords’ favour in the expectation that the tenancy might be restored, but without, meanwhile, altering the status of the caretaker. The form of the receipt is strong as to this, and I admit that my view as to this payment was wrong and my brother Andrews right, as was decided in Musgrave v. M’Avey, [1906] 2 Ir. R. 516, a decision which, of course, binds me. The transaction of 1895 is much more consistent with the continued existence of the caretaking relation than with the opposite view. If the transaction of 1895 superseded the caretaking contract and turned the defendant into a tenant at will as of that date, this would be equally fatal to the defendant. Dealing with the case as one of inference of fact depending on probabilities and intention, I am of opinion that the express contract of 1891 was in force in 1895, that the defendant’s title was not extinguished, and that the dismiss must be reversed. The onus of getting out of this signed contract lies on the defendant, and such onus is not easily discharged when the landlords and their agent are dead, and the defendant has not been called as a witness. In my opinion the defendant has failed to make out a case that the landlords were dispossessed. Having regard to the history of the litigation, the County Court Judge had no alternative but to dismiss, and I, therefore, confine the costs awarded to the costs of the appeal, allowing no costs below.
Griffin v. Bleithin
[1999] 2 I.L.R.M. 182Judgment of Mr. Justice Quirke delivered on the 12th day of March 1999 .
1. This is an Appeal brought by the Defendant, Mr. Michael Bleithin, against the entire of an Order of the Circuit Court (Groarke J.) dated the 11th day of December 1997 whereby the Plaintiff herein was granted certain relief including:-
(1) A permanent injunction restraining the Defendant from entering onto or using a garage or store on premises at the rear of property known as 1-6 Victoria Road, Rathgar in the City of Dublin and requiring the Defendant to remove his property from that premises; and
(2) An Order:-
(a) declaring that the Plaintiff’s title to a particular shed on the premises at the same location has been extinguished pursuant to the provisions of Section 24 of the Statute of Limitations, 1957; and
(b) declaring that the Defendant is entitled to a right to pass and repass over a certain area within the Plaintiff’s property and to a particular user of that area (for the purposes of servicing a particular shed) on the grounds that he, by virtue of his adverse possession thereof, has barred the Plaintiff’s title thereto.
2. It has been quite properly conceded on behalf of the Defendant and agreed between the parties that, subject to the claim of the Defendant herein, the Plaintiff, as personal representative of the late John Griffin deceased, is, by deed of Assignment dated the 1st day of November, 1968 entitled, as beneficial owner thereof, to the entire of the property which is in dispute herein for a term of 900 years from the 1st day of May, 1899 subject to the rent reserved by a lease of that date and to the covenants on the Lessee’s part and conditions therein contained but subject also to additional easements or rights of way over a portion thereof in favour of persons or parties not concerned with or involved in these proceedings.
3. It is contended on behalf of the Defendant that since in or about 1967 or 1968 the Defendant has been in exclusive occupation and possession of the lands, premises and hereditaments devised by the said lease dated the 1st day of May, 1899 and assigned to the late John Griffin by the said deed dated the 1st day of November 1968 and that his possession and occupation thereof has at all times been adverse to and wholly inconsistent with the title of the late John Griffin and his successors in title (including the Plaintiff) to that property. Accordingly, the Defendant claims that the Plaintiff’s title to the lands and premises in question is statute barred pursuant to Section 13(2) of the Statute of Limitations, 1957 and the Defendant seeks a declaration to the intent that the Plaintiff’s title to the said lands has been extinguished pursuant to the provisions of Section 24 of the Statute of Limitations, 1957.
THE FACTS
4. On the evidence adduced at the hearing the following are the facts which are most material to the determination of the issues in this case.
1. The late John Griffin died intestate on 22nd December, 1981 and a Grant of Letters of Administration to his estate issued to the Plaintiff on 29th January, 1992.
2. The proceedings herein were commenced by the issue and service of a Civil Bill herein dated the 7th day of February, 1994.
3. The Defendant went into possession of the yard which is coloured yellow on the map appended to the Civil Bill herein in or around 1968 on foot of a relatively informal agreement made between the Defendant and the late John Griffin (hereinafter referred to as “the deceased”) which provided that the Defendant should be entitled to the use of the yard and possibly one of the small sheds (which is coloured blue on the map attached to the Civil Bill) in return for a weekly rental of £8 per week. It was further agreed that the Defendant would have access to and egress from the yard by means of the lane-way which is also coloured yellow on the map annexed to the Civil Bill herein upon which is written “Paved Lane – right of way”.
4. Although the deceased sought the rent regularly from the Defendant the latter failed to pay any of the rent due on foot of the agreement and a Notice to Quit dated the 18th day of April, 1974 and signed by the deceased was served upon the Defendant by registered post requiring the Defendant to vacate the yard and shed concerned which was declared by the Notice to Quit to be “…. held by you on a weekly tenancy….”.
5. Notwithstanding constant requests made by the deceased and the service of the Notice to Quit, the Defendant did not vacate the yard and shed which he was occupying and after separating from his wife in 1976 he commenced residing in a vehicle within the yard.
6. On the 10th day of January, 1972 a Mr. Michael G. Magee entered into possession of and occupied that portion of the deceased’s premises which is coloured red on the map annexed to the Civil Bill herein and therein described as a “large garage” (hereinafter referred to as “the large garage”) on foot of an agreement made between Michael Magee of the one part and the deceased of the other part whereby the deceased agreed to let the large garage to Mr. Magee and to a company known as Slumber Sweet Limited of which Mr. Magee was the principal shareholder for purposes connected with the business of Slumber Sweet Limited and at an annual rental of £380. Mr. Magee and Slumber Sweet Limited went into possession of and occupied the large garage on foot of the said agreement and remained in occupation and possession of the large garage until at least August of 1982 when Mr. Magee was required to travel to Australia. It would appear that the tenancy agreement between Mr. Magee and Slumber Sweet Limited of the one part and the deceased of the other part was not formally determined by or between the parties thereto at any time up to the date of the commencement of the proceedings herein.
7. Sometime in 1981 or 1982 the Defendant approached Mr. Magee and indicated that he intended to build up some of the sheds on the side of the yard which was opposite to the large garage and he asked Mr. Magee for the latter’s permission to store some of the Defendant’s materials within the large garage. Mr. Magee agreed to allow the Defendant to store some materials within the large garage at some point in 1982 but Mr. Magee is quite clear in his recollection that at no time prior to August of 1982 did the Defendant ever seek to establish either office accommodation or residential accommodation or any other kind of accommodation within the large garage and I accept Mr. Magee’s recollection in that respect.
8. By Order of the High Court (Murphy J.) dated the 13th day of December, 1982, a Mr. William P. Farrell was given liberty to proceed with the sale of the entire of the lands, premises and hereditaments which are in dispute in the proceedings herein and it is probable that the said Order for Sale represented the final stages of an attempt by the said William P. Farrell to recover monies which he claimed were due and owing to him by the deceased. The said Order expressly declared that the Defendant had failed to attend at the hearing of the application made by William P. Farrell although notified of the nature and extent of the application.
9. At some date which Mr. Magee could not precisely identify he was required on the due dates to pay the rent reserved by the agreement with the deceased for the use of the large garage to the Solicitors (Messrs. A&L Goodbody) who were acting for Mr. William P. Farrell and Mr. Magee made those payments of rent to another firm of Solicitors (Messrs. T.P. Robinson) who in turn passed the rental payments on.
5. Mr. Magee believes (and I accept) that he left the premises in or around 1986 and paid no rent after that date.
10. The Defendant used the yard for the purpose of parking his trucks (and occasionally vintage cars) and for the purpose of maintaining his trucks throughout the 1970’s although his driving commitments required him to be absent from the premises for significant periods from time to time.
11. By the Autumn of 1983 the Defendant had been absent from the yard for such a lengthy period of time that it was considered to be derelict and was, on at least one occasion, occupied by other persons and at some point in the Autumn of 1983 Dublin Corporation was required to enter into and onto the yard and to cut up some of the machinery which was present there and to clear the entire of the premises because it was deemed to be a potential health hazard.
12. In 1984 the Defendant approached the Plaintiff and asked her to sell the large garage to him but the Plaintiff refused to consider such a sale and by her Solicitors wrote to the Defendant in 1985 requiring him to vacate the premises.
THE LAW
6. Section 13(2) of the Statute of Limitations, 1957 provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of 12 years from the date on which the right of action accrued to that person, or to any person through whom he or she claims.
7. The relevant period of limitation in respect of an action by a personal representative of the deceased owner of land seeking recovery of such land in succession to the owner is the period of twelve years which is laid down by Section 13(2) of the Statute of Limitations, 1957 – see Drohan -v- Drohan [1981] I.L.R.M. 473 and Gleeson -v- Feehan and O’Meara [1991] I.L.R.M. 783.
8. Time begins to run against the owner of land only from the date on which a right of action accrues to him or to the person through whom he or she claims. The essential requirement for the running of time is that the land is occupied by someone whose occupation is adverse to that of the owner.
9. Section 18(1) of the Statute of Limitations, 1957 provides that:-
“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.”
10. It is now well settled that a person claiming adverse possession within the foregoing section must prove animus possidendi on his part.
CONCLUSIONS
11. The Defendant went into possession of the yard and the blue shed in 1967 and 1968 on foot of a valid weekly tenancy and although he paid no rent on foot of his tenancy agreement with the deceased, the tenancy was not terminated until the 26th day of April, 1974 when the time limited by the Notice to Quit dated 18th April, 1974 had expired.
12. Although the Defendant was absent from the yard and the blue shed for significant periods from time to time (notably throughout the latter part of 1983) it is inescapable that he has used the yard which is shown yellow on the map annexed to the Civil Bill herein for the purpose of parking vehicles and I am satisfied on the evidence that he has used the blue shed for storing equipment and for other purposes connected with his various activities between 1974 and the date of the commencement of the proceedings herein.
13. Since 26th April, 1974 the Defendant has had no legal estate, right or title in or to the yard and the blue shed so that it follows that his possession of the yard and of the blue shed has been adverse to the title of the deceased and of the Plaintiff and during that period between April of 1974 and the date of the commencement of the proceedings herein, no acknowledgement has been made of the title of the deceased or of the Plaintiff sufficient for the purposes of Section 58 of the Statute of Limitations, 1957. Furthermore, I am satisfied on the evidence that various acts of user were done by the Defendant in the yard and in and to the blue shed to enable the Defendant to acquire an interest in the yard and in the blue shed and that the acts were done with sufficient animus possidendi by the Defendant to render his possession of that interest adverse to the title of the Plaintiff for the purposes of Section 18 of the Statute of 1957.
14. Section 24 of the Statute of 1957 provides that:-
“…..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.”
15. It follows that what was extinguished by the end of the limitation period was the title of the Plaintiff to the yard and to the blue shed and the Plaintiff’s right to bring an action to recover the yard and the blue shed.
16. It should be noted however that insofar as the Defendant has acquired an interest in the yard and in the blue shed, that interest is subject to any other rights, easements or interests vested in and enjoyed by any other person or persons in and to and over the area coloured yellow on the map annexed to the Civil Bill herein including the right to pass and repass over that area and the right of access to and from the various properties (including the large garage) adjacent to the yard and the blue shed.
17. Insofar as the large garage is concerned the position is altogether different.
18. I am satisfied on the evidence that Mr. Michael Magee and Messrs. Slumber Sweet Limited went into lawful possession and occupation of the large garage in January of 1972 on foot of a tenancy agreement between the deceased of the one part and Mr. Magee and Slumber Sweet Limited of the other part at an annual rental of £380 determinable by either party upon reasonable notice. I am further satisfied that Mr. Michael Magee and Slumber Sweet Limited remained in lawful possession and occupation of the large garage and continued to pay rent in respect of that premises until in or around 1986 although they did not carry out any business activities in the premises between August of 1982 and the date when they discontinued paying rent in 1986.
19. Although the Defendant was permitted to store some equipment within the large shed some time in 1982 and although he began to trespass upon the premises at a later date (probably after Dublin Corporation had cleared the site in the Autumn of 1983) and although he apparently slept on the premises intermittently in the late 80’s, I am quite satisfied on the evidence that between January of 1972 and some time in 1986 the large garage was lawfully used and occupied by and on behalf of Mr. Magee and Slumber Sweet Limited who paid to or for the benefit of the deceased and the Plaintiff an annual rent of £380. It follows that insofar as the Defendant was ever in possession or occupation of any part of the large shed between 1972 and 1986 such possession or occupation was not adverse to the title of the deceased and of the Plaintiff.
20. It follows from the foregoing that the Plaintiff, as personal representative of the deceased, is entitled to the deceased’s interest in the large garage including the right to pass and repass over the area coloured yellow on the map attached to the Civil Bill herein for the purpose of effecting access to and egress from the large garage and to the benefits of such easements and rights as may be contained within the Deed of Assignment dated the 1st day of November, 1968 insofar as they affect and refer to the large garage subject to the covenants on the lessee’s part and conditions therein contained.
21. It follows from all of the foregoing that the Plaintiff is entitled to the relief which she has been granted by the Order of the Circuit Court dated the 11th day of December, 1997 and that the Defendant similarly is entitled to the relief which he has been granted pursuant to the same Order. It follows further that the Defendant’s appeal against the said Order must be and is hereby dismissed.