Public Rights
Cases
In the Estate of Thomas Conolly
Owner and Petitioner
Landed Estates’ Court.
8 February 1870
[1871] 5 I.L.T.R 28
Flanagan J.
Nov. 12, 13, 1869; Feb. 8, 1870
Rights of way—Dedication—User.
User of a right of way by the public from 1813 to the present time having been proved over lands held under a lease from Trinity College, renewable every year:
Held, that a dedication by the tenant, with the assent of the College, must be inferred.
Strand being comparatively valueless, user of rights of way over it by the public, when offered as evidence of dedication, is not entitled to the same weight as user of rights exercised over a pleasure-ground.
Semble, A right in the public to traverse in all directions a strand which is private property is not one that can legally exist.
Semble, User by the public for a year is not always sufficient evidence of dedication.
Rights in the public are created, not by prescription but by dedication.
This case came on upon charge and discharge directed to be filed by a previous order of the Court, the Rev. Francis Kelaghan claiming on behalf of the public certain rights with respect to the estate sold in this matter, the nature of which will be found stated in the judgment of the Court. The discharge filed by the owner denied the existence of a number of those rights.
Affidavits by the agent of the owner and by other *28 persons with respect to the public user of the rights in question were relied upon at both sides.
Representation
Barry, ( Solicitor-General ), and Beytagh, Q.C., for the Rev. Francis Kelaghan.
Ormsby, Q.C., and J. F. Walker, for the owner.
F. Walsh, Q.C., for the purchaser.
The following authorities were cited:—
Notes to Dovaston v. Payne, 2 Smith’s L. C., 140;
Reg. v. Petrie, 4 El. and Bl., 737;
Bright v. Walker, 1 Cr. M. and R, 211;
Wood v. Veal, 5 B. and Ald., 454;
Bateman v. Bluck, 18 Q. B, 870;
Fitzpatrick v. Robinson, 1 H. and B., 585;
Blundell v. Catterall, 5 B. and Ald., 268;
Abbot v. Weekley, 1 Lev., 176;
Mounsey v. Ismay, 1 Hurlst. and Colt., 729;
R. v. Hudson, Strange, 909;
Doe d. Foley v. Wilson, 11 East, 56;
Deeble v. Linehan, 12 Ir. C. L. R., 1;
Reg. v Broke, 1 Fos. and Fin., 514.
Feb. 8.—Flanagan, J.—The question in this case concerns certain rights which are claimed on behalf of the public over Lot No. 30 of the lands sold in this matter. This lot, which is No. 30 on the rental and on the map attached to it, is divided into two portions, one of which (B) is described as a pleasure-ground, and the other (D) I shall denominate the strand.
This case came before me some months since, upon affidavits which did not appear to me to raise, with precision, the questions to be decided, and I directed a charge to be filed by the Rev Mr. Kelaghan, and a discharge by the owner Mr. Conolly.
By the charge there is claimed, in reference to the pleasure ground, a light of way along a road marked on the map from the point C to the point L, which is called the strand road. That right of way is conceded.
The next claim is that of a right of way from the point R in the main street of Bundoran to the point S, from thence through the pleasure-ground, to a spot at which there are steps leading to a bathing-place, from thence to the point D and from D back again.
I need not indicate the points between which rights are claimed in reference to the strand. They are all marked upon the map. A right to the sea-shore is also claimed.
I shall first consider the rights claimed with respect to the pleasure ground, because it seems to me that they involve the only serious question, since a decision that they exist may materially affect the purchaser. Of these rights the claim to one was abandoned at the bar, viz., a right in the public to traverse this pleasure-ground at all times. If it had not been abandoned, I should have had no hesitation in holding it to be altogether illegal. The first question is, whether the public are entitled to the right of way I have mentioned, from the point R to the points S and D and back to the point R. In my opinion, the affidavits which have been filed establish this right.
The material affidavits are few. Bundoran is a favourite watering-place on the North-west coast of Ireland. Mr. Conolly, whose ancestors have had possession of this property for a considerable period, succeeded his father, who was tenant for life, in 1849. In that year, or shortly afterwards, he executed a deed in the nature of a disentailing deed. Sometime in the year 1855, the lease under which he held the premises was converted into a fee-farm grant under the Trinity College Act, and his interest became, in point of law, an estate in fee-simple, subject to the lights of the College over the lands.
Upon the evidence, I think it must be admitted that the public have at all times, uninterruptedly, and without any opposition on the part of Mr. Conolly since 1849, or on the part of his father from the commencement of his title, or at least from the period when Mr. Hamilton became his agent, enjoyed a right of way along a footpath which appears, originally, to have led from the main road of Bundoran, not according to the course of the road, as at present constructed, but contiguous to it. The road at present existing appears to have been made or levelled by Mr. Conolly some seven or eight years ago. The old path disappeared, but its site was near to the road. I need not here advert to the mode in which these premises were originally held, because, whether the tenure was a tenancy from year to year or not, I, as a juror, draw from the evidence the inference that there has been, from time immemorial, an uninterrupted user of a way through and along what is now marked as the pleasure ground to the point D, and also from the point D back to the main road.
The question was argued, principally, upon the Prescription Act In my view of the law affecting it, I do not think that the Prescription Act has any reference to it. Eights in the public are created not by prescription but by dedication. The question is whether, having regard to the nature of the user by the public, I can assume that there was a dedication by Mr. Connolly, or by the party having the fee-simple in the lands. Dedication being a matter of intention, and to be made by the owner of the fee-simple, or, at least, with his knowledge and consent, can I assume, in this case, in the first place, that there is evidence of a dedication by Mr Conolly and his ancestors, and, secondly, that it was assented to by the College ?
The evidence of dedication is user. It is the strongest evidence of dedication in a case like this, where the subject-matter is not waste ground. It is stated in some of the cases that user for a year is sufficient evidence. In particular cases it may be, but I do not say that in a case like the present it would be sufficient evidence of dedication
But having regard to the affidavits in the case, particularly those made by Mr. Kelaghan and Mr. Scott, one of whom is 75 years of age, and the evidence of Mr. Hamilton, the agent, who evidently states the facts as he believe them, I am satisfied that during the entire period from the year 1813 to the present time a right of way along this path has been continuously and uninterruptedly used, and that it was not limited by the point D., but was exercised over the road which returned.
Where I find this user existing from time immemorial—because we connot go beyond the memory of living men—can I infer that there was, in point of law, a dedication, with the assent and knowledge of the owners of this property? I conclude that the latter must have had notice, and, therefore, that this right must have been exercised with their full knowledge and consent.
It is material to remember the mode in which this property was held It was not held under a lease for a long term of years, but under a renewable lease; and it appears that the custom was to renew it every year, i. e., at the expiration of each year there was a re-grant and a fresh title to the possession, both in the Conolly family and the College yearly.
The next question is, what is the extent and character of the right
[His Lordship commented upon the evidence and held that it was a right for foot passengers only.]
The next question respects the Strand, marked D on the map, and presents more difficulty.
It seems to me that user of rights over a strand, when relied on as evidence of dedication, is very different from user of rights over a pleasure-ground. The strand being almost valueless, I cannot draw the same inference as in the other case. And the user by the public in the case of the strand, is not entitled to the same weight.
The evidence of this user is not very satisfactory. The claim is too extensive, it is a claim to exercise these rights over the strand at all points and in all directions. I am not prepared to hold that such a public right of way can legally exist over a strand which is private property. The right of way claimed by the discharge is from the points G, K, N, and P, to the sea-shore. The inference I draw from the affidavits is that these roads, which are eight or nine feet in width, were made, not for bathing purposes, but for the purpose of drawing from the strand, sand and manure.
The question remains whether some right of way does not exist along the strand, and if so from where to where? I think that it exists from the point P to the stile at T. It is clear that the stile was placed there to facilitate the passing of the public to the point G, and thence along the strand. *29 Upon the evidence I have no doubt that it is material to the convenience of the public to have access across the strand to the point T.
I shall not allow the conveyance to be executed without providing for the rights of the public, limited in the manner I have stated.
I have not adverted to the cases which were cited in the argument, as it did not appear to me necessary to do so.
I shall allow the Rev. Mr. Kelaghan his costs as part of the costs against the estate. I think that there was a miscarriage in the preparation of the rental, probably caused by a departure from the rule of the Court requiring the survey to be made by the ordnance officer. The purchaser and the owner will be entitled to their costs.
Abecromby v Fermoy TC
[1900] 1 LR. 302 (Court of Appeal)
An action was brought by an owner in fee for a declaration of title to a strip of land on the bank of the River Blackwater, adjoining the town of Fermoy, called ‘The Barnane Walk,’ subject to a right of way on foot possessed by the public over the premises. The evidence adduced regarding the character and user of the premises showed that so long as memory went back it had been devoted to the recreation of the inhabitants of the town, by whom it was used as a promenade. Chatterton V.-C. granted such a declaration and an injunction against the defendants compelling them to remove posts and chains erected on the land and restraining them from such erection. The Commissioners appealed.
Lord Ashbourne C.:
Lord Justice Holmes will deliver the judgment of the Court.
Holmes L.J.:
Fermoy is a good provincial town, pleasantly situated on the Blackwater, which is said to be the most picturesque of Irish rivers.- The Barnane Walk, with which this action is conversant, seems to be an attractive feature of the place. It begins in the town at a street called West-quay, and runs for about half-a-mile along the right bank of the river. It is somewhat curious that the oral evidence, while very abundant in reference to two or three matters of minor importance, gives hardly any description of the walk itself, or of the mode in which it has been used by the townspeople. It is said by counsel that its breadth varies from 8 to 12 yards; it keeps for its whole length close by the bank of the river; and the photographs produced show that it is shaded at least in some placed by handsome trees. It has existed substantially in its present condition as long as living memory goes back; and a map dated 1795 shows a walk bearing a different name in the same situation, and apparently of the same width and length. It passes when it leaves West-quay for some distance through lands owned by the plaintiff, and for the remainder of its course through what is called in the evidence the Cliffe estate, which has not been connected in title with the plaintiff’s property at least during the present century, and probably for long before. In the year 1837 the earliest date spoken to by any witness West-quay and Barnane Walk were separated from each other by a dividing wall extending across the entrance to the latter, having in the centre a stile about 6 or 8 feet broad, and consisting of four steps on each side with a flat stone on the top. It does not appear when or by whom this barrier was erected; but there is evidence that it was rebuilt or repaired on one or two occasions by the predecesors in title of the plaintiff. At one time there was an opening in the wall at the south side of the stile through which a small cart could pass. An old witness, who I think is both truthful and accurate, says that this aperture first appeared and was probably caused by the action of a high flood in the year 1852; and I am not satisfied that it was ever subsequently closed; but the remainder of the wall continued to exist until it was removed in 1882, under circumstances to which I shall presently refer.
By a lease dated the 2nd February, 1835, the then owners of the property now
vested in the plaintiff demised to Robert Briscoe for a term of lives renewable for ever a plot of ground extending from Barnane Walk southward to the King-street. This plot does not include the walk itself, which is separated from it by a high wall, and is in fact the northern boundary of the demised premises; nor was any right of way over it granted to the lessee in express terms. One or more houses were built on the land facing King-street; and there is a wicket gate or door in the boundary wall by which a garden or orchard at the rere of one of these houses can be entered from the walk. There was formerly another wicket leading to a cottage; but both the cottage and the entrance to it are now gone. The evidence regarding the end of the walk farthest from the town is wanting in precision. The maps show it as continuing at a fairly uniform width up to a certain point, and then terminating without any trace of way or path beyond. We have been told by counsel that there is a wooden barrier at this point; but the only evidence of this fact is an item of expenditure in the defendants’ accounts, and one witness spoke of a beaten track leading from the end of the walk through the fields. It is not alleged, however, that the public has any right of way in this direction; and if people occasionally wander alongside the river, they probably do so by permission of the owner of the land, if they are not trespassers pure and simple. There seems to have been so little controversy at the trial as to the manner in which Barnane Walk was used by the inhabitants of Fermoy that only casual references to the mode of user can be found in the evidence. One witness states that it was a walk for the populace of the town, children, and all, and that there was a band on the river. Another says that it was maintained as a public walk; a third swears that for the forty-five years he has known the place it was used by the people of Fermoy. An old man tells that ‘oft when the work was done, we went down there, and there were plenty there besides me.’ It also appears that there were seats upon the walk, some moveable and some fastened to the ground. There was no objection to perambulators passing over it; but when cyclists became aggressive, the defendants endeavoured to prevent them riding on it.
It is easy to understand from the foregoing evidence and facts, what have been the character and user of the walk as long as memory goes back. Indeed no better description of it can be given than what is contained in an agreement dated the 29th April, 1882, between Sir Robert John Abercromby, the then owner in fee-simple of the lands now belonging to the plaintiff, and the Fermoy Boat Club, by which the latter were given permission to erect a shed for the use of their boats on the Bamane Walk, subject to certain conditions, one of which was to preserve the entire walk from injury, ‘and to permit nothing to be done that should unfit it for the use and recreation of the inhabitants of the town by whom it is used as a promenade.’
It seems to me that the only questions admitting of doubt that arise in this action are 1, whether the townspeople of Fermoy have any legal rights over the walk; and, 2, if so, what are the nature and extent of such rights?
An attempt was made on behalf of the plaintiff to show that it is and has been a public highway for carriages and other vehicles; and many witnesses were examined on this issue. It is difficult to see how it is relevant to the plaintiff’s case and even if it were he has failed to prove it. The existence of the wall across the entrance at the earliest date deposed to, and the fact that it was afterwards rebuilt or repaired by the owners of the soil in 1841 a 1850, its continuance until 1882, and its removal then not by such owner but by the Town Commissioners for a special purpose, are circumstances absolutely inconsistent either with a public highway for carriages by dedication or a private right of way for carriages acquired by lost grant or prescrip tion.
Equally futile were the efforts of the Town Commissioners of Fermoy to show that they had such a property in or authority over the walk as justified them in erecting the posts and chains complained of by the plaintiff.
A local and personal Act of Parliament, passed in the year 1808, created in Fermoy a body of Commissioners who were authorised to fill up vacancies in their number by co-option, and who were invested with wide powers of control over the streets and ways in the town; but there is no proof that these Commissioners interfered at any time with Bamane Walk. Their records, if they kept records, are not forthcoming; and there is no other evidence on the subject. At a date not specified, but sometime between the years 1854 and 1861, the provisions of the Towns Improvement (Ireland) Act, 1854, were adopted with the consent of the old body of Commissioners, the effect of which, according to the fifth section thereof, was to put an end to the operation of the local Act.
The Commissioners that have been since elected, pursuant to the provisions of
the statute of 1854, seem from the first to have taken the walk under their management. They alone have kept it in repair, expending for this purpose con siderable sums of money from time to time. The wall with the stile across the entrance, or what remained of it, was taken down by their direction in 1882, to allow the military to draw water out of the river higher up. Their permission was asked by the boat club before erecting the boathouse under the agreement already referred to. They placed seats on the walk for the use of the public. They took steps to keep it free from nuisance and from practices calculated to cause discomfort or annoyance: such as cycling, playing objectionable games, and bathing at unseason able hours.
It is unnecessary to consider whether the control thus exercised was with or without authority. It was for the benefit of the town, and no one complained of it. The first time the action of the Commissioners in regard to Bamane Walk was objected to was the occasion that has led to the present litigation.
In August, 1896, it was resolved by the Commissioners to place a barrier at the entrance to Bamane Walk from West Quay. This subject came before the body on several occasions afterwards; but the resolution does not seem to have been acted on until the following year, when metal columns connected by horizontal chains, with openings on each side for foot-passengers, were erected near the site of the wall which had been removed in 1882. The only reasons given in the minute-book for the step thus taken were to prevent the deposit of broken glass bottles and other rubbish near the boathouse, and to put a stop to bicycle-riding on the walk. It is possible that there was a third reason, which, although not expressed, influenced the Commissioners at least as strongly as the other two.
The interest under the lease of 1835 has been for some time vested in a lady called Hodder, and about the date of the barrier resolutions she was contemplating building three or four houses on the demised premises, fronting towards the river, and to be approached from West Quay by the walk. The first of those houses was to have been begun in October, 1897; but the project was probably spoken of for some time before, and the townspeople not unnaturally were opposed to their promenade being used as a carriage-way to the new houses. Whether this had anything to do with the action of the Commissioners I am unable to say with certainty; but there is no doubt that Mr. Hodder in October, 1897, applied to them to have the barrier removed, as it was a great inconvenience and a serious injury to his wife’s property. This application was refused, and as far as I can see Mr. Hodder was not in a position to compel the Commissioners to yield to it. The walk was not included in his lease, nor was a right to use it, with horses and carriages, given to the lessee either by express grant or as appurtenant to the demised lands. Mr. Hodder’s request was followed a few weeks later by a peremptory demand on behalf of the plaintiff to take away the barrier; and as the Commissioners insisted on their right to retain it, the present action was instituted to establish the plaintiffs title to that part of the town of Fermoy called Bamane Walk, subject to a right of way for the public over the same, and to compel the defendants to remove the posts and chains.
I do not think that it was ever alleged by the defendants that the plaintiff is not
the owner of the land which forms the walk up to the point where it enters the Cliffe Estate, and his title thereto has not been seriously disputed in the argument in this Court. I am also of opinion that the defendants have failed to show any right on their part to erect the posts and chains. Their only claim to do so is by the authority conferred upon them as Commissioners of Fermoy by the Towns Improvement (Ireland) Act, 1854, and by a Provisional Order transferring to them the powers and duties of the Grand Jury in respect of the roads within the town; and there is no provision in either the Towns Improvement or the Grand Jury code by which the acts complained of can be justified. Counsel referred to the 52nd section of the Commissioners’ Clauses Act, 1847, incorporated with the statute of 1854; but that section is confined to placing fences and posts on the side of the footways of streets or in the carriage ways thereof, so as to make the crossing thereof less dangerous for foot-passengers; and it cannot be said that the posts and chains at the entrance of Bamane Walk come under this enactment.
The remaining matter in controversy – the question to which the discussion here was almost exclusively directed – is the extent to which the dominion of the plaintiff over the walk is limited by rights acquired either by the public generally or by the inhabitants ofFermoy. A public right of way over it, that is to say, a right of way on foot is admitted in the pleadings and declared by the judgment of the Vice Chancellor. This implies, according to the contention of the plaintiff, that while members of the public are entitled to walk from one end of it to the other and back, the plaintiff, provided he leaves sufficient space for two persons to pass each other, can use the remainder of the walk for any purpose he thinks fit. He may fence off a path four or five feet in width for the use of the public, and beyond its limits he may erect buildings, dig pits or raise crops. I am disposed to think that this would be in the plaintiff’s power if the land is only subject to a public right of way; but I must add that if it were a matter for decision, I should have some difficulty in finding that such a right exists at all. There are three reasons for holding that it does not:
1. It is well settled that although there may be a dedication of a way to the public for a limited purpose, there cannot be a dedication to a limited part of the public: Poole v. Huskinson (11 M. & W. 827). In the present case, all the evidence points to a dedication for the benefit of the people of Fermoy.
2. A public right of way, originating in dedication, generally means a right to the public to pass from one public place to another public place: Campbell v. Land (l Macqueen, H. of L. 451); and although the terminus of a public highway may be sufficient without having in the ordinary sense an exit, a mere private place not admitting of a passage through or beyond it, cannot be such a terminus: Young v. Cuthbertson (1 Macqueen, H. of L. 455). It is unnecessary for my present purpose to consider under what circumstances a cul de sac can be a public highway; but I may mention that before giving judgment in The Giants Causeway Case (Not reported. 14th Jan., 1898. The1’_ is a summary of this case in Vol. 32 of the Irish Law Times at p. 211) I sought m vain for an instance of the public being held entitled to a way terminating in private lands where such way was used for no other purpose than to enjoy a pleasant walk.
3. I am satisfied that the Barnane Walk was not used even by the inhabitants of Fermoy for the sake of reaching any definite point or place. The townspeople assembled on it as a place of recreation to walk, to saunter, to lounge, to chat, to meet their friends.
Dedication of a public right of way cannot I think be inferred from user of this kind; but our law has always recognised that the people of a district – a town, a parish, or a hamlet – are capable of acquiring by dedication or custom, certain rights over land which cannot be gained by the general public. Lord St. Leonards in the case of Dyce v Lady James Hay (1 Macqueen, H. of L. 305), pointed out the distinction, and illustrated it by village greens, and village playgrounds. Probably the young men and maidens of Fermoy have never at any period of their history danced round the maypole. Their sense of humour, if there was no other reason, has kept them from indulging in such ‘awful mirth.’ But legal principle does not require that rights of this nature should be limited to certain ancient pastimes. Popular amusement takes many shapes; and there is no outdoor recreation so general and perennial as the promenade. It may be asked how does this differ from a right of way. I think that it differs as much in legal conception as it certainly differs from it in point of fact. It implies that those who use the walk may wander over every portion of its surface, either in groups or in solitary meditation. It implies that the owner of the soil cannot encroach upon it in the manner contended for by the plaintiffs counsel. It implies, I should also think, that he could not convert it into a public road to be traversed by all kinds of vehicles; and that if he is at liberty to grant to individuals the right to pass over it with carriages, such grant must be subject to the condition that the use of it by the inhabitants of the town is not to be interfered with thereby. I believe that this was not the view of the Vice-Chancellor, as I gather from his judgment that he was of opinion that the lands were only subject to an ordinary public right of way on foot.
I think, therefore, that his judgment should be amended by declaring that the plaintiff is entitled as owner in fee to that part of the town of Fermoy called Barnane Walk, as far as the boundary of the Cliffe estate, subject to the right of the inhabitants of the town to use it for their recreation as a promenade. I am of opinion that this alteration has an important bearing upon the principal issue in controversy between the parties. I have already indicated my opinion as to what its effect will be; and as the result is to place the inhabitants of the town, whose battle has been fought by the defendants in a much better position than that contended for by the plaintiff or given them by the judgment, I think that the plaintiff is notentitled to the costs of either the action or the appeal. At the same time, as the injunction stands, and as the appeal was taken from the judgment as a whole, he ought not to be obliged to pay the defendants’ costs in either court. This determi nation renders it unnecessary to hear Mr. Ronan on the point which he asked to be left open.
Attorney-General v. McIlwaine
[1939] IR 437
High Court.
JOHNSTON J.:
I regard this case as one of very great importance, and my only regret is that the material before us for the purpose of a general discussion of the subject-matter in dispute is so meagre.
The actual question that the Court is called upon to decide is one as to the ownership of a small piece of foreshore in County Donegal, and the learned Circuit Court Judge has decided that it has been acquired, first, as against the Crown and, secondly, as against the State, by prescriptive enjoyment extending back for a certain number of years.
The narrow ribbon of property called the foreshore, extending laterally (roughly speaking) from low-to high-water mark, which encircles this country, is owned by the State, subject to the right of the public to go upon it for navigation purposes and also for purposes of fishery and to take such fish as may have been deposited thereon by the sea. It was established comparatively recently that, in addition to these rights which may be exercised by the public generally, an owner of lands bounded by the sea has a right of access thereto for the purpose of navigating and that right is not limited to the period when the sea is in contact with his lands, but includes a private right of access to the sea across the portion laid bare by the receding tide: Coppinger v. Sheehan (1).
But, subject to these rights, the public cannot interfere with the foreshore as owned by the State. Thus it has been held that the public have no right to go upon the foreshore for the purpose of holding public meetings or religious services there: Llandudno Urban District Council v.Woods (2); nor of going upon the foreshore for the purpose of bathing: Blundell v. Catterall (3); nor of going upon the foreshore for the purpose of placing and letting on hire chairs and seats on the land for profit: Ramsgate Corporation v. Debling and Others (4).
The foreshore is property of a very anomalous character. It cannot be said to be either sea or land, and at the same time it cannot be said to be neither the one nor the other; but its characteristics and uses are such that it must be guarded from encroachment on the part of the public.
The only methods by which a subject can acquire a title to a portion of the shore is by grant from the Crown or by prescription. There is no question here that the defendant is entitled to what he claims by grant, and the only question that arises is whether a title by prescription has been acquired.
But, before proceeding to discuss that question, I should like to refer to the judgment of the Court of King’s Bench in the case of Howe v. Stawell (1), which is a case of the highest authority. Jebb J. in delivering the judgment of the Court said (at p. 355): “The matter intended to be insisted on by the plea is that, of common right, all the King’s subjects are entitled, on the seashore, between high-water and low-water mark on the reflux of the tide, with servants, horses and carriages, to take and carry away whatever seaweed or oarweed may have been left on the shore by the flux and reflux of the tide. Now, we cannot find any authority or precedent for this, which is in effect a proposition amounting to this, that the right to enter upon the seashore, and to take seaweed thereon, is co-extensive with the right of fishing, when the shore is covered with water, or of entering on the shore when the water has left it, and taking fish that may have been left and remaining there. But there is not only no decision to this effect, but whatever is to be found upon the subject in books of authority seems against such a right. Lord Hale in the passage referred to, De Jure Maris, 27, states ‘that the constant and usual fetching gravel and seaweed and sea sand between high- and low-water mark, and the licensing others so to do’ is evidence of the King’s right being vested in a subject, in gross, by grant. Here he puts seaweed on the same footing as sand or gravel, and considers the using the seashore in that manner as evidence of the right to the soil (that is, the seashore itself) being in the King’s grantee . . . That the King has the soil of the shore from high- to low-water mark, as well as beyond that mark, is clear from the authority of Hale, as also from the charter of the Admiral of England.”
The decision in Howe v. Stawell (1), was followed and approved of in two Irish cases, which are of high authority, namely, Mulholland, v. Killen (2) and Daly v. Murray (3).
I can find nothing in the very sketchy evidence that was given on behalf of the defendant that would support the proposition that a title to this piece of foreshore had been acquired by prescription.
The high-water side of the foreshore is bounded by the wall of a country road which runs alongside the foreshore at this particular place and which divides it from the land of which the defendant appears to be in occupation. This road was made many years ago, probably by the Board of Works, and it appears to be one of the public roads of County Donegal, kept in repair by the County Council and used by the public. Separated by this public road from the foreshore, the land of which McIlwaine appears to have been in occupation cannot have been in a position to have gained what I may by analogy call riparian rights, and nothing that he did could possibly have had the effect of transferring from the Crown to him any title whatsoever to the foreshore.
Some reliance was attempted to be placed on the existence of the slipways which led from the road to the foreshore, but that is an impossible contention. It is impossible to thinkin fact it is absurd to suggestthat the Board of Works, the authority which appears to have made this road probably in the early part of the nineteenth century, deliberately made these slipways for the purpose of facilitating the neighbouring farmers in trespassing upon the foreshore and thus flying in the face of the rule that was so authoritatively laid down in the case of Howe v. Stawell (1) in 1833. It is plain that they were built for the purpose of allowing per sons to get from this public road to the foreshore in order to use the foreshore for the only purposes that it could legally be used for, namely, navigation and the exercise of piscary rights.
The defects in the evidence which has been given on behalf of the defendant are numerous, and they cannot be supplied by any assumption or theories against the State, which has the absolute ownership in this foreshore. For instance, no evidence whatever was given of the title of the defendant to the lands of which he is in occupation; but in the course of the evidence there are references to the lands as a “farm” and as a “holding,” and there is at least one reference to “the Barton Estate.” I think it must be assumed in this case that the defendant’s interest is merely a leasehold or chattel interest; but, if he has acquired this piece of foreshore, he has acquired it for the benefit of his landlord’s estate. It can scarcely be regarded as a right in gross which will continue in him after his interest in his farm has ceased. We know nothing of the title of the owner in fee of these lands or of the relationship between that owner and the Crown or the State. All these matters ought to have been cleared up, and I am of opinion that for the purpose of the success of the defendant’s claim the owner in fee ought to have been a
party to the proceedings, or, at any rate, there ought to have been evidence that he assented to the claim that has been put forward by the defendant.
The matter is put very clearly in the following passage from the judgment of Chatterton V.C. in the case of Hamilton v. Attorney-General (1) at p. 576: “I have already shown that the defendants cannot claim a right by custom to take seaweed, sand or gravel, or any other portion of the freehold, whether it be in the Crown or in a grantee of the Crown. Neither can such a right be claimed by the defendants by prescription. Prescription for profits a prendre must be in the que estate, that is to say, it must be laid in the party claiming the right and those whose estate he holds. It cannot be claimed by the inhabitants of a town, village or district as such, but only in right of the particular tenement which the party claiming holds; and with the exception of the customary tenants of a manor, which case has no application here, it must be laid in the name of the owner in fee, and claimed in his right.” This case is an a fortiori case against the defendant, because here the defendant claims not merely a profit a prendre, but the whole estate in fee. An appeal (2)was taken by the defendant and the decision of the Vice-Chancellor was unanimously upheld by May C.J., Deasy and FitzGibbon L.JJ., all these Judges (particularly the Chief Justice at p. 281) expressing their approval of the reasoning of the Vice-Chancellor.
This question of recondite law is very fully explained and made very plain by Blackstone (Dublin edition, 1769, vol. 2, at p. 264); but in view of the Vice-Chancellor’s decision it is unnecessary for me to quote the passage in Blackstone.
But apart from all these considerations, which, in my opinion, are conclusive in regard to this case, it appears to me that no evidence was adduced before the learned Circuit Court Judge which justified a decision, on the law and the facts, that the defendant had acquired by prescription an estate in fee in this foreshore. Apart from the testimony that was given as to the defendant’s belief in his own mind that he owned the foreshore (which for 80 or 90 years at least has been separated from his holding by a public road) the evidence amounts to no more than a statement that a few cart-loads of seaweed had been taken by Patterson (his predecessor in this holding) and himself, and a few cart-loads of stones, over a period of thirty or forty years, and nothing more. The seaweed
that was taken was mainly, if not entirely, seaweed that was cut from the rocks on the shore, and my own common sense suggests to me that there must have been long intervals between the cutting of one crop of seaweed and the growth of another. So far as the taking of stones for ballast is concerned, that may well have been done with the consent of an authorised agent of the Crown as a facility in regard to navigation; but whether that be so or not, there is no evidence that such ballast was required in recent years. If any payment was made in the past to Patterson or to the defendant by the masters of ships in regard to the ballasting of their vessels, it is much more likely that that payment was made for work and labour done than as the price of the stones.
I know of only two cases in which prescriptive claims to the foreshore were successfully made by the owners of adjoining lands.
In Vandeleur v. Glynn (1) the plaintiff was able to establish such a right by proving that his ancestors had built a pier and a Custom House shed on the foreshore at Kilrush, in County Clare, and had used and occupied those erections as the owner. The Master of the Rolls and the Court of Appeal held that that act was evidence upon which the Court could hold that the foreshore passed under, and was part of, the property included in a Crown grant of a manor upon the sea coast.
The other case to which I wish to refer is that of Chadv. Tilsed (2) where the act of occupation by a person who claimed the foreshore was the running of an embankment across a small bay for the purpose of reclaiming sea mud.
In Vandeleur v. Glynn (1) Porter M.R. said that the occupation of the foreshore must be “consistent and complete” by the person claiming; and on appeal (3),Palles L.C.B. said that the user, to be effective, must be”open and notorious.” At p. 516 he says: “I believe that the user of those parts of the foreshore must have been so open and notorious that it is impossible that it could not have been known to those representing the Crown and responsible for the protection of its rights.”
In the case of In re Belfast Dock Act (4) Walsh M.R. at p. 142 says: “There has been much criticism on the character of the acts of ownership relied on. It is quite true that in a case of this nature the title of the Crown is not to be displaced by acts which are ambiguous or obscure or which may be referred to the claim of an igh Court.
easement or privilege, or do not necessarily involve the title to the shore itself.”
There is one other matter that emerged in the course of the evidence given on behalf of the defendant, and that is the fact that many of the people of the district utilised this piece of foreshore for their various purposes. Thus it would appear that at least one of the witnesses called on behalf of the defendant had himself cut seaweed on the shore at this place. There is also evidence that persons were in the habit of coming there to bathe, and certain farmers took their horses and carts down to the shore for the purpose of washing them. These are all matters that are entirely inconsistent with the defendant’s claim.
I have devoted more time than perhaps was necessary in regard to this case; but I regard it as a case of great importance in its implications. If the claim of the defendant were to succeed on the scanty evidence that has been adduced here, I am satisfied, knowing the country and its sea coast as I do, that scarcely a mile of foreshore would or could be regarded as remaining in the hands of the State authorities for the public purposes for which it was always intended, namely, navigation and the right of the public to fish. Those rights cannot be filched away by a neighbouring farmer going down to the shore and taking away a cart-load of seaweed at uncertain intervals, due to the exigencies of his farming operations, whenever manure was required for a particular field or a particular croptaking it away when there was no servant or agent of the State present to stop him.
There is one other matter of some importance that remains. The defendant made some suggestion at the hearing of the appeal before us that, if we were against him in regard to the claim that he had made by his counterclaim, we should amend the counterclaim by permitting him to put forward a claim for a profit a prendre.This would be an amendment of an almost phenomenal character. It is true that the general principle is that an amendment should always be allowed whenever it is necessary to terminate all controversy between the parties if the party against whom the amendment is made can be safeguarded in the matter of costs; but as a rule an amendment will not be allowed to be made after the evidence on both sides is closed: Edevain v. Cohen (1); James v. Smith (2): and the reason for that rule is obvious. Further, it has been held that where an amendment was not asked for in the Court below, it will rarely be granted in the Court of Appeal: Hipgrave v. Case (1); Cropper v.Smith (2).
Here the plaintiff came into Court prepared to resist a claim by the defendant that he had acquired the ownership of this piece of foreshore, and the Attorney-General has successfully resisted that claim, which must be dismissed. If the defendant now wishes to put forward a different claim and make a different case, in my opinion he can only do so by indemnifying the plaintiff in respect of the costs down to date. I think that that is reasonable and usual.
A claim for the establishment of a profit a prendre is one of an essentially different character from a claim in respect of the ownership of the fee, both in regard to the way in which it may be acquired and the consequences when it is acquired; and the plaintiff is entitled to know how that claim is put forward and the nature of the evidence that will be relied upon.
In my opinion we could not permit the defendant to shoot his bolt a second time without permitting the plaintiff some time for a consideration of his position. An ordinary member of the public would be allowed such time for consideration, and, much more, the Attorney-General, who is defending State rights and the general rights of the public.
Accordingly, in my opinion, the order that we should make is this. The order of the Court below should be reversed and in its place an order should be made declaring the State entitled to this foreshore and dismissing the defendant’s counterclaim as it stands at present. As the corollary to that judgment the defendant will be ordered to pay to the plaintiff his taxed costs both in the Court below and in this Court, with such witnesses’ expenses as the plaintiff can claim, and execution for such costs, when taxed, will issue in the ordinary way. We will give the defendant liberty to amend his counterclaim by setting out properly and fully his claim in respect of a profit a prendre upon the foreshore, and we allow him one calendar month from this date (December 21st, 1938) in which to make that amendment and serve a copy upon the plaintiff. Liberty will then be given to the plaintiff to file and serve a reply to that amended counterclaim within one calendar month from the date of service of the amended counterclaim. There will then be a further order that the defendant shall be at liberty to enter the amended counterclaim and the reply before the Circuit Court Judge for hearing, and he must give notice to the plaintiff of such entry.
GAVAN DUFFY J. :
This is a suit by the Attorney-General for a declaration of title on behalf of the State to a small piece of the foreshore at Milford in County TÃr Chonaill. The defendant counterclaims for a declaration that the property is vested in him, and the learned Circuit Court Judge found on the evidence that the defendant had proved his case under the Nullum Tempus Acts, having by himself and his predecessor exercised acts of ownership for more than 60 years.
In my opinion sufficient attention was not given to Art. 11 of the Constitution of Saorstat Eireann , for the 60 years had not elapsed when that Constitution came into force. That Article declares that all the lands and waters hitherto vested in the State or held for the public use or benefit shall from and after the date of the coming into operation of the Constitution (6th December, 1922) belong to the Irish Free State, subject to any valid private interest therein, and shall be controlled by the Oireachtas, but the same shall not, nor shall any part thereof, be alienated, but may in the public interest be granted by way of lease or licence, to be worked or enjoyed under the authority and subject to the control of the Oireachtas, for a term, not made renewable, and not exceeding 99 years.
On 6th December, 1922, the defendant had no valid private interest in the land (1); all he had was the prospect of such an interest at the expiry of the 60 years. Therefore this land vested in the State from and after that date and could never be alienated. In my opinion, the Nullum Tempus Acts cannot prevail against the emphatic assertion of inalienable State ownership contained in Art. 11. Consequently the defendant cannot be entitled to this property.
I agree with the effect of Mr. Justice Johnston’s judgment as to the proposed amendment by the defendant to obtain a profit a prendre. That is a claim to take from the foreshore in question stones, stone wrack and growing seaweed. It would be premature to decide whether such a claim may be open to any similar constitutional objection; that question is not likely to arise, since the defendant, if he proves this right on the facts, will probably prove that it existed as a valid private interest long before 1922, to judge by the evidence already given.
The defendant appealed to the Supreme Court (2) pursuant to leave given.
Supreme Court.
SULLIVAN C. J. :
The issue raised on the pleadings in this action is whether or not the defendant had acquired a title by prescription to a part of the foreshore opposite the defendant’s holding at Urbalshinney, County Donegal.
The Circuit Court Judge was satisfied on the evidence given before him that the defendant had acquired such a title; but, on appeal, the High Court reversed the decision of the Circuit Court Judge and held that the part of the foreshore in question was owned by the State.
From that decision the defendant has brought this appeal.
In the course of the argument in the High Court counsel on behalf of the defendant applied for leave to amend the defendant’s counterclaim by adding a claimin the alternativethat the defendant was entitled as a profit a prendre to gather seaweed on the foreshore in question. The learned Judges of the High Court were of opinion that they should not allow that claim to be raised on the appeal which was then before them, but they gave liberty to the defendant to amend his counterclaim by claiming such a right, and to the plaintiff to serve a reply to the amended counterclaim, with further liberty to the defendant to enter the amended counterclaim for hearing in the Circuit Court. Mr. Kelly has asked us to hear and determine that claim on the present appeal, but in my opinion the Judges of the High Court were right in dealing with the case as it stood on the pleadings and as it was presented in the Circuit Court, and in leaving the question of the defendant’s right to a profit a prendre to be litigated in other proceedings.
That being so, the question we have to decide is whether the evidence in this case established a title in the defendant to the part of the foreshore which he claims. I am satisfied that that question must be answered in the negative for the reasons stated by Johnston J. in his considered judgment with which I am in entire agreement. Gavan Duffy J. based his judgment on Art. 11 of the Constitution of Saorstat Eireann , the effect of which, in his opinion, was that a title could not be acquired under the Prescription Acts to any land that vested in the State under that Article. If it was necessary to decide that question in the present case, I should require to hear it fully argued, but, as it is not, I express no opinion upon it. I am of opinion that this appeal should be dismissed.
MURNAGHAN J. :
I agree, for the reasons given by the Chief Justice.
While it has been proved that loads of seaweed were taken by the defendant or his predecessors over a number of years, there is no evidence that they were taken in exercise of a right of ownership. The evidence is quite consistent with the view that they were takenas happens in many parts of the countrynot in exercise of any right of ownership.
MEREDITH J. :
I entirely concur with the judgment of the Chief Justice and have nothing to add.
GEOGHEGAN J. :
I agree.
Daly and Others v Cullen
Circuit Court.
13 May 1957
[1958] 92 I.L.T.R 127
Judge Deale
Judge Deale:
I am of opinion that this action fails.
The plaintiffs claim a right of way by custom over a laneway on the defendant’s lands at Cullenstown, in the parish of Bannow, Co. Wexford, leading from the public road to the foreshore, or river bank as some call it, at a place called Yellow Hole. This place on the foreshore is a deep water portion of an unnamed river which runs into the sea at Ballyteige Bay from east to west. The right of way runs north to south.
As pleaded, the claim is that all inhabitants of the parish of Bannow who carry on the trade of fishermen have the right to pass and repass over this laneway on foot with horses, carts and other vehicles carrying their gear implements and catches of fish, and that this right has arisen from custom, the way being in the nature of a public right of way for the benefit of the said inhabitants who are fishermen by trade. The legal requirements to prove such a way are not in dispute, and it appears to me to be well settled law that in order to succeed the plaintiffs must show three things:—
(1) That the custom in question has existed without interruption from time immemorial. In modern times this requirement is satisfied by showing twenty years uninterrupted use prior to action brought, and in the absence of contrary evidence it is then presumed that the custom existed since time immemorial.
(2) That the custom is reasonable, and
(3) That the way is certain.
The evidence in support of the claim, in my opinion, falls short of establishing any of these requirements.
As to the first, various witnesses, including the five plaintiffs, proved that for a number of years they and others were in the habit, some since as far back as 1912, of using this way on foot, with bicycles, with horse-drawn vehicles, and even, in recent years, with motor cars. The way in question was the lane, with two gates on it, one at the public road end and one halfway down, and at the end of the lane the way was continued by a detour to the west along the end of a field the property of the predecessor in title of and now of the defendant. This detour led directly to the foreshore and was a necessary part of the route thereto for vehicles because there is a fall of about three feet from the grass verge at the end of the lane to the gravel of the foreshore, making it impossible to bring vehicles down. When vehicles detoured in the way described they got on to the foreshore by means of a small jetty made of stones and clay by those using this route. This jetty has now virtually been washed away.
Now, this way, consisting of the lane and the detour, does not exist any longer. It ceased to exist when in 1949 or 1950 the defendant closed the foreshore end of the lane by erecting a paling and stile there, and closed the detour by continuing the same paling along the line of the detour. When *130 this occurred vehicles could no longer go down to the foreshore; the paling and stile prevented them and the old detour cannot be made by pedestrians. In order to make a detour in the same direction as formerly pedestrians must now cross the stile and traverse the defendant’s field outside the paling. The alternative is to commit an undoubted act of trespass by leaving the way before reaching the stile and traversing the field on the inside of the paling and then crossing the paling when the convenient part of the grass margin leading to the former jetty is reached.
It is, therefore, plain, as Mr Maguire (defendant’s counsel), has submitted that if there was a right of way for vehicles it has ceased to exist since 1950, and further, as the evidence shows, this destruction of the way was not objected to by anybody and was, in my opinion, acquiesced in ever since, if acquiescence is the right word where the right, as I hold, did not exist at all.
On this view, therefore, the position appears to me to be that the plaintiffs can only sustain a claim to a user on part of the actual lane itself, and the right to cross the stile at the foreshore end. There being no right to use vehicles on the way, it follows that there can be no right to bring vehicles into the lane and leave them at the stile end of the lane—or anywhere else on it while the owners are on the foreshore engaged in their fishing. By leaving the vehicles there, the users of the lane are, in my opinion, trespassing.
But I do not think the plaintiffs have established a custom to use the way on foot for the business of fishing. It has been proved, and I accept, that as far back as 1912 people did use this lane for going up and down to fish. But this alleged custom is a privilege which could be exercised and could in the past have been exercised by all who are parishioners of Bannow and fish as a trade. It appears to me that there is force in Mr. Maguire’s submission that such a custom would be notorious and universal in character and so could be proved by some parishioners other than the plaintiffs themselves. I would expect that a number of perhaps elderly parishioners could have proved this notoriety and would have done so Only the five plaintiffs have proved the user and I do not think that that evidence is sufficient No doubt the former owner of the land may have allowed persons to go up and down the lane at times, but that appears to me a very different matter from the proof of a notorious custom.
Assuming, however, that a custom has been proved and has given a right to the use of this lane on foot and with vehicles, and that, as Mr McDonald submits, the interruption of that right since 1950 has not extinguished it, I am of opinion that it is an unreasonable custom.
The defendant is a farmer; his fields are situated on each side of the lane and are only partly fenced, being in several places open to the lane His cattle can and do get on to the lane He threshes each year in a haggard adjoining the lane and has always allowed the chaff and straw to go out on to the lane, where it forms an undoubted obstruction; he has gates and stiles on the lane in two places—at the road end and halfway down. The free use of the lane is indispensable to him in the working of his farm.
If this right exists, the plaintiffs and any other parishioners of Bannow who is now a fisherman, or who might become a fisherman in the future, have the right to go up and down the lane at any time of the day—or night—with vehicles, on foot, with gear, boats, or any other of the trappings fishermen must use, and Mr. Cullen is powerless to prevent them. They can leave their vehicles in the lane—anywhere in the lane as I see it, though in practice probably the sea end only would be so used—and go up and down it when they choose. Suppose that a shoal of fish were to come to the Yellow Hole and that many Bannow fishermen decided that they wanted to fish there?—the lane could become blocked and unusable for a time by the owner. Or suppose that other fishing grounds used by Bannow fishermen became barren and that Ballvteige Bay became a good fishing grounds? the same thing would happen. Mr Cullen could not prevent interference with his farming operations and the ordinary use of his property. These events may be improbable, or extreme examples, I do not know But they are examples which must be considered in testing the reasonableness of the custom.
Even if the right were for foot traffic only, in my opinion it would still be unreasonable because of the nature of the lane. If the lane were an open lane, at say, the extremity of the defendant’s farm, without gates and fenced off from the fields by hedges or otherwise, the test for reasonableness might differ But this lane runs through the heart of the farm and, in my opinion that fact is crucial.
Accordingly, I am of opinion that for the reasons indicated the plaintiffs have failed to *131 show that they have the right claimed, and I therefore dismiss the action with costs.
I have already allowed the amendments of the Civil Bill set out in the plaintiff’s notice of the 19th February, 1957, and it is unnecessary to make any order with regard to costs of this amendment.
Modern Cases
Walsh v Sligo County Council
Reported In: [2013] 4 IR 417, [2013] 11 JIC 1101, [2014] 2 ILRM 161
Neutral Citation: [2013] IESC 48
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: Mr Justice Fennelly, Mr Justice McKechnie and Mr Justice MacMenamin.
The Law relating to Public Rights of Way
50
As the learned trial judge explained, a distinction must be made between a public road and a public right of way. The latter may exist over any particular route, but it is not a public road unless and until it is taken in charge by a local authority pursuant to statute. Sections 24 and 25 of the Roads Act 1925, referred to by the trial judge, were repealed by the Roads Act 1993. The obligation of maintenance by the local authority as road authority appears to be contained in s. 11 of that Act.
51
It is important therefore, for the purposes of the present appeal, to note that s. 73(11) of the Roads Act 1993 provides:
“It shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area.”
52
A public right of way is not the same as a public road, but the common law treats it as a highway. It is a right available to any member of the public. A public right of way can arise in a number of ways: it may be shown to arise from use from time immemorial or may be created by statute. Finally, a public right of way may be established by proof of long user by the public as of right, leading to express or implied dedication by the owner of the ground over which it passes and acceptance of such dedication by the public. This case, as pleaded in the counterclaim, is concerned with a claim of dedication to be inferred from long public user. It is not the same as prescription from which a private right of way may be established. It is also not the same as the Scottish rule, referred to in some of the authorities, whereby a public right of way may arise by prescription. Nor is it the same as the similar situation adopted in England in 1932. A highway is a public road where it is taken in charge by the road authority which is obliged by statute to maintain and repair it.
53
Ó Dálaigh C.J. succinctly stated the law regarding public rights of way in his judgment in Connell v Porter in December 1972. The case was not reported until it appeared in [2005] 3 I.R. 601. At page 605, the then Chief Justice, with whom Walsh and Budd JJ agreed, restated the law on how public rights of way are established:
“When there is no direct evidence as to the intention of the owner, an animus dedicandi may be presumed either, from the fact of the public user without interruption, or from the fact that the way has been maintained and repaired by the local authority.” (emphasis added)
54
The interests involved, where these principles are applied, are, on the one hand, the rights of the public to continue to use without obstruction a way or road over which there are established public rights and, on the other, those of the owner of the land, over which the public wish to pass, to the uninterrupted enjoyment of his or her property. The law must provide a fair balance between these competing and equally legitimate interests.
55
As Costello J. said in his judgment in Smeltzer v Fingal County Council [1998] 1 I.R. 279 at page 287: “The law relating to highways and the creation of public rights of way is a very ancient one and the relevant principles are well-established.” The most complete consideration of the law regarding public rights of way is to be found in the House of Lords decision in Folkestone Corporation v Brocbnan [1914] A.C. 338, to which reference will be made to later.
56
However, English law regarding public rights of way was radically changed, commencing in 1932, with the clear purpose of reversing the common law. As Lord Scott of Foscote said in R(Godmanchester Town Council) v Secretary of State for the Environment [2007] 3 W.L.R. 85 at page 106, section 1(1) of the (English) Rights of Way Act, 1932 “set itself firmly to reverse Folkestone Corporation v Broekman.” No equivalent statutory change has been made in Ireland. Folkestone Corporation v Broekman continues to represent the essence of the law regarding public rights of way in this jurisdiction.
57
Cases decided as far back as the early years of the nineteenth century, cited by the parties on the hearing of the appeal, lay down the essential requirements. The first step is proof of the use, as of right, by the public of the way over the owner’s land. The second step is that, depending on the duration, frequency, or intensity, of that user, an inference may be drawn that the landowner has dedicated the way. Such an inference, sometimes called a presumption, can be drawn only after consideration of all the facts. The third step is that it may be concluded that the public has accepted the dedication.
58
These basic principles have been applied by the Irish courts, particularly the High Court, in a number of cases in recent years. The law of Scotland is different: there a public right of way arises as the result of prescription, without any consideration of dedication.
59
It is necessary to discuss a number of closely related elements. These constitute the basic rule concerning the inference of dedication from evidence of user, the nature of qualifying user, the time at which dedication is deemed to take place and the effect of the land not being in the possesssion of the fee-simple owner.
60
The seminal statement, cited and discussed in many later cases, is contained in the very short judgment of Parke B in Poole v Huskinson (1843) 11 M &W 827:
“In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate-there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.”
61
Mann v Brodie (1885) 10 App. Cas. 378 was a Scottish case which went to the House of Lords. Lord Blackburn explained the differences between English and Scots law, pointing out, at page 385: that in “both countries a right of public way may be acquired by prescription.” He added, however, that “in England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since A.D. 1189.” We are not here concerned with prescription in that sense. Lord Blackburn next emphasised the distinction between the rules for the establishment of private and public rights:
“And sometimes, by legal fictions of presumed grants, and, in part, by legislation, the period reqired for prescription as to private rights has, in many cases, been practically cut down to a much shorter period……But this has never been done in the case of a public right of way. And it has not been required, though the way in which the evil of the period of prescription being too long has been avoided, an opposite evil of establishing public rights of way on a very short usurpation has sometimes been incurred.”
62
Having cited the dictum of Parke B. in Poole v Huskinson, Lord Blackburn continued, in a passage at page 386, which has become the point of reference for discussion of the relationship between proof of user and dedication:
“But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was. It is therefore, I may say, in England never practically necessary to rely on prescription to establish a public way.”
63
Thus, in one sense, a particular prescriptive period of user was not sufficient in English law. Dedication to the public by the owner had to be inferred. In another, it was not necessary. As appears from other cases (see Queen v Petrie, below), quite a short period of user may suffice, depending on the circumstances.
64
House of Lords in their several speeches, particularly of Lord Kinnear, Lord Atkinson and Lord Dunedin in Folkestone Corporation v Broekman [1914] A.C. 338 examined the essential question of the effect of evidence of long user and, in particular, the test to be applied in deciding whether dedication has taken place. Poole v Huskinson, was described as laying down a doctrine (Lord Kinnear) or a principle (Lord Atkinson). Mann v Brodie was also discussed. It is a constant theme that whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence.
65
Lord Kinnear said that the points to be noted were “firstly, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and the acquiescence of the owner of the fee.” At page 354 of the report, he distinguished the use of inference in cases of public rights of way from cases where a presumption of law comes to be applied.
66
The burden of proof of dedication lies on the person alleging it. The matter cannot be decided without consideration of the whole body of evidence. Lord Atkinson, following extensive citation of authority, stated at page 367 that he had been unable to “find any case, in which there was even a suggestion that, when the evidence of user is of the strongest kind and is not rebutted, the judge is entitled to direct the jury to find a verdict in favour of dedication.” He continued:
“The crucial matter being the existence in the mind of the owner of an intention to dedicate, the inference of that fact, if drawn at all must be drawn by the judge as a fact.”
67
Lord Dunedin, at page 375, made the same point:
“User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no one can see into a man’s mind, and therefore a dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts.”
68
The crucial point which emerges from all these statements of the law is that what has to be proved is that the landowner had the intention to dedicate, or, as Ó Dalaigh C.J. put it, the animus dedicandi. That intention can be inferred or presumed from evidence of long uninterrupted user as of right. Prescription is not enough. Lord Hoffmann, in his speech delivered more than fifty years after the change of the law of England in R(Godmanchester Town Council) v Secretary of State for the Environment [2007] 3 W.L.R. 85, already cited, explained the former law as follows:
“In the case of a public right of way, a lawful origin had to be found in dedication by the land-owner at some unknown date in the past. Such dedication was analogous to the lost modern grant of a private easement. Juries were told that they could find such a dedication on evidence of user openly and as of right by members of the public and were often encouraged to do so. The reason for juries and judges being willing to make and accept findings that there had been a dedication or a lost modern grant was of course the unfairness of disturbing rights which had been exercised without objection for a long time. In Scottish law, this policy was given effect by the more logical method of allowing such user to create the rights. But in England the policy of the law was not openly acknowledged. Instead, juries were told that in order to uphold the public right, they had to find as a fact that there had been an act of dedication accompanied the necessary animus dedicandi on the part of the landowner: see Poole v Huskinson …1843) 11 M&W 827 .”
69
An important point in that passage is the statement that Scottish law, which was based on prescription, allowed the “user to create the rights. “In the law of England prior to 1932, which remains the law in Ireland, user alone does not create a public right of way.
70
There is one decision, namely Farquhar v Newbury Rural District Council [1909] 1 Ch. 12 which arguably runs counter to the trend of these authorities. There an estate was held by tenant for life, who, on the unusual facts of the case, was not resident on the property. The remainderman, who was in possession, with what was held to be the knowledge of the tenant for life, laid out a new road which was suitable for and was in fact used for vehicular traffic for some sixty years. The landowner unsuccessfully argued that there could not be dedication, because the land was held in settlement. This was the main point of the case and, in that context, Fletcher Moulton L.J. held, at page 18, that the landowner had to “shew that it was impossible that dedication could have taken place, not that it was possible that it did not take place…” This passage decidedly does not mean that, upon proof of long user, a burden of proof is cast on the landowner to rebut a presumption of dedication. The impossibility relates only to a case where the landowner claims that dedication did not occur because there was no owner capable of dedication. At other points, however, both Fletcher Moulton L.J. and Cozens Hardy M.R. spoke of a “presumption of law” leading to dedication arising from long user, a view which is inconsistent with the other authorities.
71
It is necessary to note that none of these cases state that the inference of dedication from proof of long user is “almost irrestible.” That expression was used in the following context. Lord Cranworth in Young v Cuthbertson (1854) 1 Macq. 455, at page 460 criticised “looseness” in judges’ directions to juries. Referring to the suggestion in one case that “the jury ought to presume” dedication, he expressed the view that the judge was merely “pointing out what was an almost irrestible inference in point of fact,” (emphasis added) i.e., on the facts of the actual case. Lord Atkinson in Folkestone Corporation v Broekman, at page 358 cited this passage, but then immediately restated the proposition that “the application of the presumption in a particular case is a question of fact.” At no point did Lord Atkinson state that user when proved creates “an almost irresistible inference” of dedication, a view attributed to him by the learned trial judge (at paragraph 32 of his judgment: see also paragraphs 29, 317 and 321).
72
It follows from these authorities that, where there is evidence of long uninterrupted user as of right of a way by the public, the court, depending on the duration, frequency, and intensity, of the user, may infer that the owner dedicated the way to the public and that the public accepted that dedication. Whether there was dedication is a question of fact, though it is never necessary to point to any express act of dedication. The process is one of inference, drawn from the strength of the evidence of user, and the fact that the user was as of right. It is relevant to see whether the landowner took any steps, to use the language of Lord Blackburn, to “disabuse” the public of their belief that they had a right to use the way.
73
In many of the cases it is said that dedication will be “presumed”, but that does not mean that there is a presumption of law. It is always a question of fact, to be decided in the light of all the evidence. Many of the earlier cases deal with verdicts of juries and the directions given to them. In our courts, these matters are no longer decided by juries. The tribunal of fact will be a judge. Where a judge disregards preponderant evidence tending only in one direction, he or she may well be treated, in case of appeal, as having erred in law. If there is strong, clear and uncontradicted evidence of user as of right and no evidence or argument to suggest that the landowner could not or did not dedicate, it might be considered perverse of a court to decline to find dedication.
74
The principle of inference of dedication from sufficient evidence of user has been applied consistently in several High Court decisions. In Bruen v Murphy and others (unreported, High Court, 11 th March 1980) McWilliam J. considered a claim of a public right of way over a over a plot of ground behind the gardens of houses in Templeogue, Co. Dublin. He applied a statement of the law, which accords with the cases cited here. In particular, he pointed out that a public right of way could not be acquired by prescription:
“No question of user from time immemorial or creation by statute arises here. Therefore evidence of dedication is essential to establish this right of way. In this connection it must be emphasised that a public right of way cannot be acquired by prescription although user may prove sufficient evidence to support a presumption of dedication. The user need not be for any particular length of lime but it is only evidence of dedication and must be such as to imply the assertion of the right with the knowledge and acquiescence of the owner of the fee.”
75
In Collen v Fetters [2007] I.R. 760, an appeal from the Circuit Court, O’Leary J. regarded the “law in this area as very clear,” as set out by Costello P. in Smellier v Fingal County Council, cited above. He also cited the dictum, quoted earlier, of Ó Dálaigh C.J. in Conned v Porter.
76
Since the inquiry is into whether an intention to dedicate can be inferred, it follows therefore that the quality, duration, frequency, and intensity of the public user will be highly material. So also will the degree of awareness of the landowner and his or her attitude; in short all the surrounding circumstances.
77
Part of the evidence of dedication, in combination with user, may be the fact that public money has been spent, with the consent of the landowner, on the repair or mantenance of the route. As Ó Dalaigh C.J. said in Connell v Porter, already cited, at page 606:
“But expenditure of public money in repairing, cleansing or lighting is an important and in such case the landowner who has permitted the expenditure cannot be heard to say that a roadway on which he has allowed public money to be spent is a private road: per Farwell J. in Attorney General v Antrobus [1905] 2 Ch. 188 at p. 207. Coupled with evidence of user, such expenditure is strong evidence from which dedication may be inferred.”
78
The essentially evidence-based nature of the inquiry is demonstrated by the manner in which the then Chief Justice applied the foregoing principle to the facts of the case. Firstly, he re-stated the principle that the “presumption of dedication is a question of fact to be decided by the jury or the judge as the case may be.” He then proceeded:
“The evidence of user, in this instance, if it existed in isolation, I would consider weak and insufficient; but when taken in conjunction with the evidence of expenditure, for various purposes on Nash’s Court, a strong case is made out for the presumption of dedication.”
At page 608, Ó Dálaigh C.J. commented on the strength of the evidence of actual public expenditure on the maintenance of the way in the following passage:
“The maintenance of Nash’s Court by the corporation as a highway was such a notorious and obvious fact that it would require strong evidence on the part of the owner of the fee to displace the presumption that he must have been aware of it.”
Time of dedication
79
It will, in addition, be necessary in the present case to inquire as to when, as a matter of law, dedication takes place. On the facts of the present appeal, it is said that the dedication could not take place during periods when the estate was entailed. The learned trial judge found dedication to have taken place during an interval when it was not entailed. Moreover, some of the ways through the estate did not exist prior to approximately the 1830’s so that they could not have been dedicated at a time when they did not exist. Lord Blackburn said in Mann v Brodie that a claim of a public right of way by prescription would be defeated by proof that “the right claimed had originated within the time of legal memory, that is, since A.D. 1189.” Although the claims in the present case are based on dedication rather than prescription, corresponding logic would suggest that a landowner could not be deemed to have dedicated a public right over a way which did not exist at the time. Indeed, a fortiori, as will be discussed later, dedication can scarcely be presumed to have taken place at a time many years prior to commencement of the acts of user on which reliance is placed.
80
Two types of situation are then envisaged by the authorities. Firstly, user may be shown to have been exercised during the entire period of living memory. Secondly, as the case of The Queen v Petrie (1855) 119 ER 272 shows, user for a shorter period may, depending on the circumstances be sufficient. The ordinary rule was stated by the Privy Council in Turner v Walsh (1881) 6 App. Cas. 636, at page 642, namely that:
“The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and that presumption, if it can he made, then it is a complete dedication coëval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses.” (emphasis added).
81
As was explained by Romer J. in Stoney v Eastbourne Rural Council [1927] 1 Ch. 367 at 378, the expression, “coëval with the early user,” does not mean that the dedication is deemed to have taken place at the date at which the earliest act of user occurred. He considered that the Privy Council in Turner v Walsh had intended merely to indicate “that a dedication ought to be presumed to have been made at least as early as the first act of user.” He explained the importance of this, as being that, “it is dedication and not user that constitutes a highway.” In other words, since prescription is not the test, user alone does not create the right. Romer J. went on to say, at page 379:
“Where the only user shown is user over a period less than that covered by living memory, there may be good ground for coming to the conclusion that the dedication took place only just before the time at which the user began. But where, as here, the user took place over the whole period covered by living memory, such user is just as good evidence of a dedication made a hundred years before the first proved act of user as of one made contemporaneously with that act.”
82
That passage from the judgment of Romer J. received approval from the Court of Appeal and was considered by Lord Wright in Williams-Ellis v Cobb [1935] 1 K.B. 310 as relieving him of the need to discuss the matter further, when he said:
“If user is established over the period within living memory that raises a prima facie presumption of dedication, the date of which may be in a period beyond living memory. Such a date is not limited necessarily to the scope of living memory.”
83
While there is no comprehensive definition in law of the term, “living memory,” it must necessarily mean, in the context of user in support of a claim to a public right of way, that there is no living person who can recall when the user began. Thus, nobody can say that there was a time when the way was not used by the public. In both Stoney v Eastbourne Rural Council, and Williams-Ellis v Cobb, the evidence was of user for the entire period of living memory. In both those cases, the court held that it was not limited to finding that dedication had occurred at the commencement of the proved user. It was open to the court to find that dedication, as in Stoney, was “made a hundred years before the first proved act of user,” and in Williams-Ellis v Cobb, some eighty years before.
84
The logic of these cases is as follows. Where user is proved to have occurred over the entire period of living memory, it follows that it is not possible to show when it commenced, and it may be assumed that the way has been used by the public for an indefinitely long time in the past. Thus, dedication may have taken place at any time in the past, even the distant past. In each of those two cases, the court was confronted with an argument that there was no owner of the land who had the capacity to dedicate, because the land was held in strict setlement. The burden was therefore on the landowner who relies on incapacity, to prove that dedication was impossible at any time in each case and the court held, that it could have occurred at some former even far distant time, when the defence of incapacity was not available. This logic does not apply where the user proved has occurred in a specific time frame from an identifiable commencement time. In those cases, it is difficult, and may be impossible, to infer that dedication occurred at some time in the distant past. A court could not infer dedication of a public right of way by an owner by reference to user which did not commence until many years later. As Romer J said, in Stoney v Eastbourne Rural Council, there can be “goodground” for placing the inferred dedication no earlier than the commencement of the proved user. Where dedication is to be inferred, it is natural and logical to assume that it did not occur any earlier.
Incapacity on grounds of lack of title
85
It has, however, long been accepted that there cannot be dedication except by the owner in fee simple.
86
In Bruen v Murphy and others, cited above, McWilliam J emphasised the necessity for the owner of the fee simple “to dedicate the way or to have actual knowledge of it.” He was not, however, “prepared to hold that that the lessor of a lease for 999 years which was obviously made for the purpose of development with roads and other ways could possibly be held not to have authorised the creation of public rights of way if such were dedicated by the lessee.” This latter passage would have to be regarded as obiter, since the learned judge did not find any evidence of dedication by the lessee in that case. At any rate, it seems to be based on the particular fact that the lessor granted a lease for 999 years specifically for the purpose of a development which included the construction of roads and other ways.
87
Ó Dálaigh C.J. stated the proposition as follows in Connell v Porter, cited above, at page 607:
“…the general principle is that no one but the owner in fee can dedicate because the right given to the public is a right in perpetuity and persons entitled to the preceding estate and interest must concur. Here it would appear that the acts of user – and in this I include the several activities of the corporation – occurred during the occupation of lessees. The acquiescence of the lessees would not bind the owner of the land without proof of his also having been aware of it. But where, as here, the acts of user have gone on for a great length of time it may be presumed that the owner has been made aware of them…”
88
However, a landowner wishing to resist the inference of dedication carries the burden of proving that there was no owner in fee capable of dedicating to the public during the period during which dedication could otherwise be inferred. In The Queen v Petrie (1855) 4 EI &B., Crompton J. said:
“……the onus lies on the person who seeks to deny the inference from such user to shew negatively that the state of the title was such that that dedication was impossible, and that no one capable of dedicating existed.”
89
Stoney v Eastbourne Rural Council and Williams-Ellis v Cobb, already cited, are examples of the application of this rule. In Farquhar v Newbury Rural District Council, already cited, Fletcher Moulton L.J. held, at page 18, that the landowner seeking to resist the inference of dedication on grounds of incapacity had to “shew that it was impossible that dedication could have taken place, not that it was possible that it did not take place…”
Public user as of right
90
The user which can lead to the inference of dedication of a public right of way must be user as of right. It must be exercised nec vi (without force), nec clam (openly, i.e., not in secret), nec precario (not be based on permission). As was stated by Lord Kinnear in Folkestone Corporation v Broekman, at page 352:
“public user……………will be good for that purpose [proof of dedication] only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and the acquiescence of the owner of the fee.”
91
User as of right does not require that the users believe subjectively that they have a right to use the way. The test is objective. In Bright v Walker (1834) C.M. &R. 211, at page 219, Parke B. said that the right must be enjoyed “openly and in the manner that a person rightfully entitled would have used it.” Lord Hoffmann, in Reg. v Oxfordshire County Council, Ex p. Sunningwell Parish Council [2000] 1 A.C. 335, a case concerning whether a particular open space should be registered as a village green, traced the history of the nature of user as of right. Lord Scott of Foscote in R(Beresford) v Sunderland City Council [2004] 1 A.C, 889 at page 904 said that it is sufficient if the use is “apparently as of right.”
92
No particular period of user is necessary. In The Queen v Petrie, the period of alleged user was a mere eight years, but the facts were unusual. The way in question was over a junction between two public streets in the town of Rochdale, which had been laid out in 1827, and de facto used as a highway until 1836. The defendants obstructed passage from one street to the other at a point at the junction where they claimed title to a “yard and a half” of ground. In those special circumstances, the period of eight years sufficed. The period of user is, however, important. Combined with frequency and intensity, duration of user may be sufficient to persuade the tribunal of fact to draw the inference of dedication. It is unlikely in practice that user for a period as short as eight years, as in The Queen v Petrie, will be regarded as sufficient in the absence of some special element as in that case.
Toleration
93
User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis a vis his neighbours without being considered to be the exercise of a right. As Lord Hoffmann pointed out in his speech in Reg. v Oxfordshire County Council, Ex p. Sunningwell Parish Council, cited above, “in the case of public rights of way, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had. merely tolerated the use.” Lord Hoffmann was, as already noted, referring to the position at common law, i.e., before the coming into operation in England of the Rights of Way Act, 1932.
94
The cases concerning toleration contain several indications that owners should not be constrained to be “churlish” in the insistence of their own property rights. It would be undesirable and inconsistent with a policy of good neighbourliness if the law were so readily to infer dedication of public rights of way from acts of openness and tolerance that landowners were induced to adopt a fortress mentality. Bowen L.J., in a passage in his judgment in Blount v Layard [1891] 2 Ch. 681, (approved by Lord Macnaghten in Simpson v. Attorney General [1904] A.C. 476 at 493 and by Lord Atkinson in Folkestone Corporation v Broekman, at page 369), proclaimed that:
“…nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.”
95
Furthermore, Lord Dunedin at page 375 of the report in Folkestone said:
“But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. But from that house there leads another avenue to the north which connects with a public road different from that from which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up the one avenue and down the other – perhaps without actually calling at the house – raise a presumption that the landholder had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.”
96
In the same vein, Farwell J., in Attorney-General v Anlrobus [1905] 2 Ch. 188 at 199, in the context of a claim that there was a trust permitting public rights of access to Stonehenge, wrote of “the liberality with which landowners in this country have for years past allowed visitors free access to objects of interest on their property…” He added, at page 199, that:
“It would indeed be unfortunate if the Courts were to presume novel and unheard of trusts or statutes from acts of kindly courtesy, and thus drive landowners to close their gates in order to preserve their property.”
97
On the other hand, where there is clear and uncontradicted evidence of extensive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicatecl objection. Lord Blackburn in the passage from Mann v Brodie, cited above, implied that dedication would be inferred if the landowner “took no steps to disabuse [the public] of their belief” that the way had been dedicated. The decision of the House of Lords in R (Godmanchester Town Council) v Secretary of State for the Environment, cited above, concerned the registration of a public footpath on a public map, which depended on whether, under s. 31(1) of the (English) Highways Act 1980, there was “sufficient evidence that there was no intention during that [20 year] period to dedicate it.” This provision enables a public right of way to be established by twenty years of user, i.e., by prescription, and places the burden on the landowner to negative intention. Clearly, this statutory provision represented a radical shift from the position at common law. The burden was shifted to the landowner to produce positive evidence of a lack of intention to dedicate. Nonetheless, the statements of the Law Lords concerning the nature of the evidence which would satisfy the section are helpful. Lord Hoffmann was of the view, at page 96, that “the evidence must be inconsistent with an intention to dedicate.” Like Lord Hope, he referred to Mann v Brodie and the necessity to “disabuse” the public. So far as the section was concerned, Lord Hope noted, at page 101, that the common law had not “laid down fixed rules” but was of the view that “the landowner must communicate his intention to the public in some way…”
98
Whether the landowner has communicated his intention not to dedicate is a matter of fact. Looking at all the circumstances, it has to be determined objectively whether, in spite of the evidence of user, the landowner has shown he resisted the dedication. If he has acquiesced in the user, it will normally be inferred that he has dedicated. Action to the contrary effect may take many forms.
99
Some of the cases deal with the question of whether the user relied upon has been “as of right.” Lord Bingham, in R(Beresford) v Sunderland City Council, (cited above, at page 893) provided some examples of acts which a landowner might take to show that land is being used by permission, and not as of right. That case concerned a claim that a plot of land in a town had been used “as of right” for lawful sports or pastimes for a period of twenty years. It was a case of prescription, not dedication. The decision, however, turned on whether the admitted user of the land had been by virtue of an implied licence. Lord Bingham addressed that question as follows:
“I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants’ use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants’ use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.”
100
The learned trial judge at paragraph 92, stated that: “Where the presumption of dedication based on acquiescence is to be dislodged by a claim of permission, this must be done by actual proof of overt acts which communicate that what is involved is permission, whether express or implied.” That would not appear to be consistent with of the views of Lord Bingham. The learned judge no doubt had in mind the fact that, on the facts of the case, Lord Bingham did not accept that there was evidence of user other than as of right.
101
Lord President Hope in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1041, wrote in similar vein, saying:
“where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask (hat his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.”
102
As to proof of dedication, the focus is on the intention of the landowner. Parke B. said, in Poole v Haskinson, cited above, that “a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.” That may somewhat overstate the true position. Nonetheless, Lord Atkinson in Folkestone Corporation v Broekman said, at page 367, that the “crucial matter [is] the existence in the mind of the owner of an intention to dedicate……”
103
There is a debate as to whether any evidence of the landowner’s resistance to dedication must be published in the sense of being communicated to the members of the public using the way. In this context, the reference by Lord Blackburn in Mann v Brodie to a situation where “the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief…” That statement can not be taken as laying down any general rule to the effect that statements of the owner resisting or objecting to dedication must be public. Such a rule would be inconsistent with the underlying principle regarding proof of dedication. As already seen, that is that where the user is of sufficient duration and intensity to justify it, a court may infer that the owner has dedicated the way in question to the public. It would be quite inconsistent with such a process of inference to exclude entirely from consideration, as a matter of principle, evidence that the owner in fact objected to the public user. The weight to be attached to any such evidence would, no doubt, be very much affected by the degree, if any, to which it had been publicly communicated.
104
The extent to which open objection, or resistance to public user, affects the evaluation of whether dedication has taken place, was considered by the Court of Appeal in England in Wild v Secretary of State for Environment [2009] EWCA Civ 1406. That case concerned judicial review of a decision by a planning inspector with Dorset County Council under statutory powers to add a footpath as a right of way to a Definitive Map and Statement. The inspector found that there had been dedication at common law based on evidence of user for a period from 1978 to 1998, but also predating 1978. In that year, the landowner had made an objection at a public inquiry to an extent that the inspector accepted was sufficient to bring into question the public’s right to use the way, and that at least some of the users were made aware of that challenge at that time. Scott Baker L.J. held that the inspector had erred in finding dedication, when an objection had been raised publicly in 1978. In his view the question for the inspector was rather whether the owner had done anything to show the public at large that he had not intended to dedicate it for the public’s use.
105
In this connection, the judgment of Kearns J., as he then was, in Murphy v The County Council of the County of’ Wicklow (Unreported, High Court, 19 lh March 1999) is of particular interest. In that case, there was contemporaneous evidence from an Assistant Inspector with the Forestry Department, who had been present when the Minister for Lands, of the day, came to the Glen of the Downs in County Wicklow for the then purpose of opening a nature trail. The Assistant Inspector denied that there had been any intention to dedicate. Counsel for the plaintiffs had submitted that the court was not concerned with the intention of the Minister in 1970, but more with public thinking as to their rights of access and the rights to use certain pathways in the ensuing period. Kearns J. found on the evidence that the Minister for Lands had consented to user by the public as a nature trail, at least by way of licence. He found that the entire history of user of the nature trail from that time up to the present was consistent only with consent, at least by way of licence, having been furnished in accordance with the requirements of the State Property Act 1954. He distinguished the case from Smeltzer v Fingal County Council and ruled as follows:
“given the implications of creating a public right of way over lands, and given that I have evidence of the fact of an intention of the relevant Minister in 1970, I am satisfied on balance that the relevant intention was to licence access to these woodlands rather than to dedicate same in any formal way. Given that these are State lands to which the State Properly Act, 1954 applies, the Court should be slow to infer that the State would or could readily or lightly acquiesce in the creation of such rights.” (emphasis added)
He added at a later point:
“it would be ridiculous to apply an objective test in one direction if evidence from those who actually had the animus dedicandi was available to point towards some other intention.”
106
Murphy v The County Council of the County of Wicklow is concerned with the operation of a particular statutory regime. Nonetheless, the decision to admit actual evidence of intention to rebut a claim of implied dedication seems entirely logical and in accordance with principle. The learned trial judge commented as follows on that case (paragraph 99): “In the circumstances, where the Minister had opened a trail to the public, at a public ceremony, it is not surprising that Kearns J., as he then was, found that consent and not dedication is what was involved.” However, the fact of the Minister having opened the trail at a public ceremony was not the evidence on which Kearns J relied. It was the evidence, given by the officials, of the contemporaneous intention of the Minister.
107
The basic rule is that regard must be had to all of the evidence when considering proof of dedication. The private thoughts of the landowner not communicated to anybody would be insufficient to rebut the inference. However, the entire context must be taken into account. Regard should be had to the entire approach and behaviour of the landowner. In the case of Lissadell, the President of the High Court, exercising his important responsibilities during the wardship of Sir Michael Gore-Booth caused his views to be communicated to public bodies such as the County Council and Bórd Fáilte. There were meetings between Sir Josslyn (9th Baronet), and local representatives in which he spoke of good neighbourliness. All these matters should be taken into account.
108
In addition to the considerations concerning the law with regard to public rights of way, it will be necessary to consider who can bring suit to have such a claim established. This will be addressed at a later point, in the context of the issues which arise on the High Court judgment in this caase
High Court Judgment: Overview
166
The introductory passages in the judgment of the High Court contain a number of observations regarding the place of the “Big House” in Irish history and literature, referring, in particular, to the unique and extraordinary family history of the Gore-Booths.
167
The learned trial judge then outlined the history of the Lissadell Estate leading to the outbreak, in 2004, of the dispute which led to the present litigation, following the closure by the appellants of the main entrance gate.
168
At an early point in the judgment, paragraph 51, under the heading “jus spatiendi,” the learned judge referred to evidence of witnesses called for the respondent who had said that when they were young they used to wander all over the estate and into the woods and that young boys in particular seemed to use it as an adventure park, especially in the summertime. He made a clear statement that the claim was confined to rights of way, that is, rights to pass and return over identified ways, avenues or roads on the estate. He said that, apart from a claim to a right of access the beach at the Water Wall, the respondent was not claiming a right to wander over the estate and expressed his view that it would have no prospect of success had it chosen to do so. In this context, he cited a passage from the judgment of Kearns J. (as he then was) in Murphy v. Wicklow County Council (Unreported, High Court, 19th March, 1999), referred to earlier (see paragraph 105), where, having reviewed the authorities, he affirmed the common law saying:-
“Against this background of recent case law, it seems ius spatiendi can no longer be regarded as a right recognised by law in the absence of express grant.” (See p. 115) (See also Costello P. in Smeltzer v. Fingal County Council [1998] 1 I.R. 279 at 286)
169
It will be necessary to return to this issue when dealing with the rights of parking granted in the High Court.
170
Before embarking on a further analysis of the substance of the judgment regarding public rights of way, it is essential to consider the form of the action, in particular the capacity in which the respondent brought its counterclaim and the learned trial judge’s decision that it had been brought in personam only.
171
A public right of way is a right of the public at large. Normally, only the Attorney General may bring an action to enforce the public law or enforce public rights. Section 6(1) of the Ministers and Secretaries Act 1924 provides comprehensively for the powers vested in the Attorney General by succession from the former regime and otherwise, but vests in him or her specifically “with the representation of the Government of Saorstát Eireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively” (emphasis added).
172
Kennedy C.J. in Moore v Attorney General (No. 2) [1930] 1 I.R. 471, a case concerning fisheries, explained the history of the office and stated at page 497 the principle “that the Attorney-General is the only legal representative of the public in the Courts, and is exclusively entitled to assert or defend public interests.” In Incorporated Law Society v Carroll [1995] 3 IR 145, Blayney J., with whom Hamilton C.J. and Denham J. (as she then was) agreed, held that the Law Society did not have the power to seek an injunction to restrain unqualified persons from pretending to be solicitors, which was a matter concerning the protection of the public. He said, at page 174: “The only party who can bring civil proceedings to enforce [a public right was] the Attorney General.” It follows that no body, other than the Attorney General, not even an individual user of a claimed right of way, may-bring an action to have the public right declared.
173
When the Attorney General brings an action to enforce a public right such as a public right of way, and succeeds in obtaining a declaration, that declaration is good as against the whole world. It is a decision in rem.
174
There are two situations in which an individual is permitted to assert a public right of way. Each is a situation where the individual has concerns peculiar to himself. The first is where the individual claims to rely on damage special to him and greater than the general public (Boyd v Great Northern Railway Co. [1895] 2 I.R. 555; Smith v Wilson [1903] 2 I.R. 45). In Smith v Wilson, it was held in the face of a strong dissenting judgment that there was sufficient particular damage in having to use a longer and more circuitous route when going to to the market town. The second situation is where a user of the right is sued, for example, for trespass and raises the right as a defence. In either of these cases, any determination will affect private rights only. It will not sound in rem. Neither of these situations arises in the present case and they need not be further discussed.
175
In the absence of the sort of situations mentioned in the preceding paragraph, where an individual person or persons wish to bring a claim asserting a public right of way they must follow the well-established procedure of applying to the Attorney General for his or her consent to bring the action at the relation of the Attorney General. This is correctly called a relator action. It is to be distinguished from the former requirement for the fiat of the Attorney General declared unconstitutional McCauley v Minister for Posts and Telegraphs [1966] I.R. 345. The procedure is there to enable persons to bring appropriate proceedings to protect existing public rights of way. The Attorney General will not refuse without good reason. The costs are borne by the relator, not the Attorney General. A relator action will be an action in rem.
176
Finally, there is the situation which arises in the present case. Section 73(11) of the Roads Act 1993 (No 14 of 1993) provides that it “shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area.” A difference of opinion emerged between the parties at the appeal stage with regard to the true meaning of this provision. It is appropriate to set out the contending position of the parties.
177
The respondent says that s. 73(11) imposes on it a duty in its functional area to “protect” public rights only, and says that is in a position akin to that of a member of the public who has suffered damage, in that, in relation to certain aspects of the public rights of way, it has statutory functions. It says that it was in that context that it defended the proceedings brought by the appellants and that it brought the counterclaim. It says that s. 73(11) is limited to protection of user and that it does not confer any specific statutory function to assert public rights of way so as to establish their existence as a matter of law. It says that the appellants make an unreal distinction between defending the action for slander of title and the making of a counterclaim. It adds that its function under s. 73(11) cannot displace that of the Attorney General.
178
The appellants say that the respondent did not plead that it was asserting rights only on an in personam basis. The suggestion that the claim was being made in personam only was raised by the trial judge on day 50 of the trial, and adopted by the respondent’s counsel in closing submissions on day 54. They say, that, had the respondent indicated at any stage in pleadings or prior to closing submissions that it was asserting rights in personam only, it would have objected to the locus standi of the respondent.
179
The capacity in which the respondent has brought the counterclaim must now be addressed. It will also be necessary to consider it later in the very particular context of the declaration made by the learned trial judge relating to route A-B, from the Crushmore entrance, passing through the lands owned by a third party, Coillte (which have not formed part of the Lissadell Estate since 1968). The appellants objected – and object on this appeal – that an order could not and should not have been made affecting a person or body not party to the proceedings. The judge proposed that the matter could be resolved by treating the declaration as being made only in personam. Thus, it would affect only the appellants and the respondent and would not affect Coillte.
180
It is in the course of responding to the appellants’ submissions on the issue of the effect on Coillte, that the respondent has propounded the limited effect of s. 73(11) so far as it is concerned.
181
It should be noted that the learned trial judge at no point adverted to the possibility that the respondent was adopting such a limited role as is now suggested. In an extremely thorough, not to say exhaustive, judgment on the entire case in which he addressed many complex issues of law, and cited very many authorities, the judgment never at any point referred to s. 73(11). The judge noted, at paragraph 7, that the respondent in its counterclaim was asserting “rights of way over specified and identified roads on an annexed map, which it claims were dedicated to the public by the plaintiffs’ predecessors in title, and it is further claimed that the public accepted that dedication.” At paragraph 6, he applied the rule that “he who asserts must prove, [which] requires that the defendant should lead the evidence to establish its proposition before the plaintiffs bring their rebuttal evidence forward.”
182
According to the argument advanced by the respondent, it was not asserting or claiming that public rights of way existed over the estate, because it had no statutory power to do so or that, if it was, the result would not bind anyone except the parties. In other words, the declarations made would benefit the respondent, but not the people of the locality who luwe exercised acts of user over the various ways in the estate. Drawn to its logical conclusion, this would mean that the appellants continued, even after the pronouncement of the High Court judgment, to be entitled to exclude the public from using the ways through the estate. Because the members of the public, as distinction from the respondent, had not obtained any declaration of their right to use the ways through the estate at least the appellants could exclude them until such time as those individuals brought an action, which would have to be at the relation of the Attorney General.
183
If the declarations granted by the High Court operate only in personam, they have effect only as between the appellants and the respondent. Only the respondent has the right to use the public rights declared. Since the respondent is a body corporate, the rights of way could only be exercised by its servants or employees. It seems clear that such user would be confined to acts done in furtherance of their duties as servants of the local authority, not in their private capacity. It is not clear what those acts would be, since the ways have not been taken in charge by the respondent in its capacity as a road authority.
184
So far as the ordinary members of the public are concerned, including the many people who gave evidence at the trial in the High Court, the declarations made in personam in favour of the respondent would be worthless. Such a result would certainly come as a great surprise to the many local people who gave evidence in the High Court and, it seems very likely, to the learned trial judge.
185
It seems clear beyond any doubt that this action was defended by the respondent, and, more importantly, the counterclaim brought by that respondent, on the basis of the function conferred upon it by s. 73(11) of the Roads Act 1993 and that the claim was defended by the appellants on the assumption that the section empowered the respondent to claim formally in legal proceedings that public rights of way existed (see paragraphs 46 and 48 ante). As already noted, the Attorney General attached particular importance to the fect that the appellants were not challenging the locus standi to explain his decision not to permit the counterclaim to be brought as a relator action in his name.
186
The respondent states that s. 73(11) of the Roads Act 1993 merely obliges it to “protect” public rights of way. In fact it confers a function. It does not impose an obligation. The respondent states, correctly, that its function does not displace that of the Attorney General. Nonetheless, it has brought the counterclaim in the present case for declarations that public rights of way exist affecting the estate of Lissadell. It relied in correspondence and in its defence on s. 73(11).
187
For more than a century, the law of England and Wales has conferred functions on local authorities relating to the protection of public rights of way. Section 116(1) of the Highways Act 1871, as amended, provided:
“It shall be the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority……”
188
The English courts have had occasion to examine the limits of an authority’s discretion in deciding whether it would bring legal proceedings to protect public rights of way. In Reg. v Surrey County Council, Ex parte Send Parish Council (1979) 40 P &CR 390 (as cited by Stephenson L.J. in the course of his judgment in Reg. v Lancs. County Council, Ex Parte Guyer [1980] 1 W.L.R. 1024 at 1031) Geoffrey Lane L.J.expressed the following views about the function of a local authority (paragraph 396):
“The local authority must at all times act with the object of protecting the highway and of preventing or removing any obstruction, and more broadly speaking of promoting the interests of those who enjoy the highway or should be enjoying the right of the highway; and the county council must likewise operate against the interests of those who seek to interrupt such enjoyment of the highway.”
189
Stephenson L.J. also cited with approval the following statement, relating to the earlier provision of s. 26(1) of the Local Government Act 1894, of Neville J. in Holloway v Egham Urban District Council (1908) 72 J.P. 433 at 434:
“In my opinion the provisions of the Local Government Acts which give to local authorities the right impose and impose upon them the duty of maintaining public rights of road and way are of the greatest possible importance to the public, and were very much needed at the time when the acts were passed, because undoubtedly in parts of the country where the population was increasing and the value of land was growing, there was a very great danger of public rights being invaded by individual proprietors……”
190
While s. 73(11) confers a function on a road authority without imposing a duty, it is a public-law function. It confers a statutory power on the authority. In performing its function, the authority is not pursuing a private-law interest.
191
The notion that the respondent, as local authority, counterclaimed for declarations that public rights of way existed throughout the estate of Lissadell only in personam, i.e., in its own interest is a most surprising one. Long established authority, such as the cases already cited of Boyd v Great Northern Railway Co. [1895] 2 I.R. 555; Smith v Wilson [1903] 2 I.R. 45, show that no individual, which, for present purposes, must include the respondent, may maintain an action for a declaration of a public right of way in the absence of proof of special damage. The respondent has never claimed to have suffered special or individual damage. It has brought the counterclaim, to all intents and purposes, in order to establish rights in favour of the public. The action was conducted exactly as if it had been brought by the Attorney General or at his or her relation.
192
In these circumstances, it would be quite wrong and unjust to permit the respondent to take any other position at this stage. The counterclaim must be treated as having been brought by the respondent for the purpose of seeking declarations that public rights of way exist over the roadways in Lissadell. It cannot have been in the contemplation of anyone involved in the case that the respondent was seeking a declaration which would benefit it, and it alone.
193
Next it is necessary to consider the learned judge’s treatment of the law with regard to public rights of way. The learned judge summarised at considerable length and with great thoroughness the common law and the established authorities with regard to the creation of public rights of way. He commenced by acknowledging, on the authority of the decision of this Court in Connell v Porter [2005] 3 I.R. 601, that dedication “is a question of fact and can he either expressed or inferred.” From the very outset, however, he subjected this proposition of law to very significant qualification, saying:
“This ‘fact,’ however, as we shall see later can be based on a fiction.”
The word ‘fact’ was placed within quotation marks.
194
In the course of his comprehensive review of the established case law, the learned judge correctly explained that dedication is a question of fact, that the burden of establishing dedication rests on the person alleging it, and that a conclusion that dedication had taken place could be reached only following a consideration of all the evidence. He correctly explained the task of the court at paragraph 28 of the judgment:
“In proving such a claim, evidence of various kinds can be advanced, but the essential question for the court is to ask whether the cumulative effect of all the evidence in the specific circumstances of the case enables the court to conclude on the balance of probability that the owner had the intention to dedicate (animus dedicandi) and did dedicate a right of way to the public over his lands…………… …. The court’s quest, where public user is relied on, may be assisted by the availability of an inference, but in the final analysis, all the evidence placed before the court must be assessed against this single criterion: does the evidence advance or defeat the argument that the owner dedicated or must be assumed to have dedicated a right of way to the public.”
195
The judge substantially shifted the emphasis away from a consideration of the “cumulative effect of all the evidence,” when he stated, at paragraph 29(i), that user, “especially when it is long user over the period of living memory, is by far the most impressive evidence and in many cases will be irresistible,” This statement appears to be linked to his assertion, at paragraph 32, that the House of Lords, in Folkestone Corporation v. Broekman ( [1914] A.C. 338, 358), had “suggested that such user creates “an almost irresistible inference…” That statement, however, is based on a misunderstanding of what Lord Atkinson had said at page 358 of his speech. Lord Atkinson had cited a criticism by Lord Cranworth in Young v Cuthbertson (1854) 1 Macq. 455, at page 460, of what he termed “looseness” in judges’ directions to juries. Lord Cranworth expressed the view that a particular judge was merely “pointing out what was an almost irrestible inference in point of fact,” i.e., on the facts of the particular case. Lord Atkinson did not say that any particular evidence of user creates an “irrestible inference” of dedication. To the contrary, he reiterated that the presumption of dedication in a particular case was a “question of fact.”
196
The learned trial judge regarded it as having been laid down in the cases, as a matter of law, that the inference of dedication from long user is “almost irresistible.” The importance he attached to it reappears in the concluding passage in the judgment, paragraph 321, as follows:
“The conclusions that I have reached were justified in traditional terminology and were based on existing precedents which, on the evidence, mandated a finding of “fact” that the long user inferred dedication to such an extent that it had become an “irresistible inference.” (emphasis added)”
197
It is not the law that evidence of long user ever mandates or compels a court to find that dedication of a public right of way has taken place. It is inconsistent with the constant refrain of the authorities that evidence of long user may lead a court to make a finding of dedication but that, as stated, for example, by Lord Blackburn in Mann v Brodie, already cited, that “it [user] is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.” Lord Atkinson said in Folkestone Corporation v. Broekman that he had been unable to “find any case, in which there was even a suggestion that, when the evidence of user is of the strongest kind and is not rebutted, the judge is entitled to direct the jury to find a verdict in favour of dedication.”
198
The learned judge was in error in approaching the question of whether there had been dedication by assuming that the evidence of long user created an “irresistible inference.” That is not the law. The law is that whether dedication has taken place is a question of fact to be decided, as the learned judge himself said elsewhere at several points and, in particular, at paragraph 28, on a consideration of all the facts.
199
The learned judge also, in a specific section of his judgment, headed, “Burden on the Protester,” addressed himself to the position of the landowner once there is sufficient evidence from which it is possible to infer dedication at some point in the past. This is closely related to the question of inference of dedication. It places the focus, however, on actions or statements bearing directly on the intention of the landowner. Since the essence of the inquiry is whether there is sufficient evidence to infer that the Landowner intended to dedicate a right of way to the public, it necessarily follows that evidence may be produced on the landowner’s behalf tending to negative the existence of such an intention.
200
The learned judge referred to the dictum of Parke B. in Poole v Huskinson (1843) 11 M &W 827, approved by Lord Atkinson in Folkestone Corporation v Broekman to the effect that “a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.” The learned judge thought, quite reasonably, that this qualification “must be read with caution.” He continued, however:
“Certainly, if the landowner locks the gales on one day a year with a notice communicating his opposition, this “single act of interruption “may suffice to rebut the inference. Short of this, however, such single acts must be viewed in context; sometimes they may be no more than a token gesture of resignation.”
201
This is the section of the judgment in which the judge considers the circumstances in which the landowner may be able to successfully resist the inference of dedication by proving acts or statements inconsistent with an intention to dedicate. Apart from making the foregoing remarks, the learned judge in fact proceeded to cite a number of authorities (The Queen v. Petrie (1855) 4 E. &B. 737, 749; Williams- Ellis v. Cobb [1935] 1 K.B. 310; Farquhar v. Newbury Rural Council [1909] 1 Ch. 12; Coats v. Herefordshire County Council [1909] 2 Ch. 579) of attempted resistance to the inference of dedication, but these were cases in which the landowner relied on incapacity due to lack of sufficient title. What those cases in fact show is that, where there is evidence of user for the entire period of living memory, the landowner will not succeed in reliance on the incapacity of the occupier of the land unless, as it was put by Fletcher Moulton L.J. in Farquhar v. Newbury Rural Council [1909] 1 Ch. 12 at 18, he can:-
“…… show that it was impossible that dedication could have taken place, not that it was possible that it did not take place, and therefore no such answer as suggested would be sufficient.”
202
The learned judge correctly stated that these cases show “the strength of the inference or presumption [of dedication] where the person who wishes to challenge it relies on inadequate title.” (par. 45)
203
The cases there cited do not relate, however, to the strength of the presumption, or the consideration of the evidence, of dedication. They deal with a very specific situation, namely when a ground of opposition to dedication of a specific type is advanced. In cases where the evidence of user is such that it would justify an inference of dedication at any time, even a remote time in the past, a landowner, wishing to resist the inference on the ground that there was no occupier of the land with the title to dedicate, must show that at no time was there an owner with the legal capacity to dedicate. In that specific situation, the landowner undertakes the burden of negativing the possibility that there had ever, at any time in the past, been a person in possession with a sufficient title to be able to dedicate. It is to be recalled that Ó Dálaigh C.J. in Connell v Porter, restated “the general principle” that “that no one but the owner in fee can dedicate because the right given to the public is a right in perpetuity and persons entitled to the preceding estate and interest must concur.”
204
The learned trial judge, at a number of points in his judgment, expressed the view that the law with regard to dedication was based on a fiction. Dedication was, he said, “a question of fact which may be based on a legal fiction…” (paragraph 49.1). He gave preference to the rights of the public over those of the landowner, but describing user itself as “right-creating.” In a notable passage (paragraph 313), he summed up his views as follows:
“When the law infers dedication from long user it is consciously engaging in a fiction…… Nevertheless, the law is willing to indulge in this pretence because, to put it bluntly, it wishes to recognise the public’s right arising out of long user “as of right”. Behind the fiction is a deeper recognition that such long user should be right-creating and if the language of precedent requires this conclusion to be paraded as dedication, the courts have little hesitation in doing so.” (emphasis added)
205
At a later point (paragraph 317), he said:
“Even where the true attitude of the landowner, that he has no intention of dedicating, may be identified from private correspondence, etc., the law will ignore this and persist with a finding of dedication ft is clear (hat the courts, once presented with long user “as of right”, will not be deflected from recognising the right-creating force of this user and will still declare dedication to be the legal basis.”
206
In a number of ensuing passages, the learned judge spoke of:
· the need to bring “an end to dissembling;”
· how the “lawyers, whose business is to engage with the law, struggle to sustain the pretence;”
· the law engaging in the “three -card -trick -man “, and engaging in “sleight of hand;”
· parties being obliged to parties “to indulge in this façade, in a search for a “will-o-the wisp” notion.”
207
The judge, in support of the view that the law engages in a fiction cited at length from the speech of Lord Hoffmann in Regina (Godmanchester Town Council) v. Secretary of Stale for the Environment, Food and Rural Affairs [2007] 3 W.L.R. 85, citing in turn part of a statement of Scott L.J. in Jones v Bates [1938] 2 All E.R. 237, 244. However, the full context of the latter statement needs to be seen. Scott L.J. said (at pages 243-4):
“……the tribunal had solemnly to infer as an actual fact that somebody or other had in fact dedicated. It was often a pure legal fiction and yet put on the affirmant of the public right an artificial onus which was often fatal to his success. The practical result of the English rule of law was that in many cases, although a formidable body of evidence was available to demonstrate what I will call the Scottish premises, the public claimant failed on the additional English requisites.”
208
When thus seen, Scott L.J. did not say that the law engaged in a fiction in order to reach a conclusion of dedication when the facts did not support it; rather to the contrary, he was saying that the facts proved frequently did not lead to a finding of dedication. It is noteworthy that, in his judgment in the same case, Slesser L.J. at p. 239 restated the orthodox position as it had been in England prior to the statutory changes in 1932:
“Before the passing of the 1932 Act, when dedication had to be either proved or to be inferred, the mere proof of long, continuous and uninterrupted user of the way by the public, though it was evidence from which dedication might be inferred, did not create a presumption in favour of dedication. It was always a question of fact for the tribunal: (Folkestone v Broekman).”
209
It is, of course, the case that a number of judges have described the finding of dedication as involving an element of “legal fiction.” The intention of the Court was drawn, in the course of argument, to a statement of Lord Irvine of Lairg in the course of his speech in Director of Public Prosecutions v Jones [1999] 2 A.C. 240 at 256 to the following effect:
“Neither highway users nor the courts are in any position to ascertain what the landowner’s original intentions may have been, years or even centuries after the event. In many cases, where the intention to dedicate is merely inferred from the fact of user as of right, there will not even have been a subjective intention. Nor would it be sensible to hold that the extent of the public’s right of user should differ from highway to highway, as necessarily it would if actual subjective intention were the test. It is time to recognise that the so-called intention of the landowner is no more than a legal fiction imputed to the landowner by the court.”
210
The House of Lords was not, however, concerned, in that criminal case, with the question of whether a highway had been dedicated at all, but rather with the limits to the lawful use of a highway. The context was a charge of “trespassory assembly” under public order legislation. The assembly was peaceful. ft was held that it was not an unlawful use of the highway merely because the demonstrators were not exercising a right to pass and repass.
211
The occasional use of the expression “legal fiction,” when referring to the process of a finding of dedication, does not mean that the courts engage in pretence or subterfuge. A court does not need to find that the landowner ever expressly stated that he or she was dedicating the land to public use. In reality, no such finding of fact is ever made. The court infers or presumes dedication from the evidence of uninterrupted public user as of right; and, where, to cite again the dictum of Lord Blackburn in Mann v Brodie, “the public were acting under the belief that the way had been dedicated, and [the landowner] has taken no steps to disabuse them of that belief…” Even if there is an element of fiction in this process, it involves consideration both of the user and the response, or lack of it, on the part of the landowner.
212
The essence of the views of the learned judge appears to be that user as of right should be regarded as itself being “right-creating”, thus rendering unnecessary any finding of dedication by the landowner and, consequently, of any acceptance by the public. That would be correct, if prescription were the test. As Lord Hoffmann explained in R (Godmanchester Town Council) v Secretary of Stale for the Environment [2007] 3 WLR 85, already cited (at paragraph 68 above), Scottish law permits user to create the right. However, where the question is whether the landowner has dedicated the rights of way to the public, prescription is not enough. A major consequence of this approach is that the law ignores any evidence that the landowner did not intend to dedicate as well as any evidence of unwillingness of the landowner, opposition or resistance to public user of the right of way.
213
The learned trial judge separately examined the evidence which a landowner would have to produce to rebut or resist the inference of dedication of a public right of way from long and persistent public user.
214
As already noted at paragraph 317 of his judgment, he held that, the court will ignore even clear evidence of “the true attitude of the landowner, that he has no intention of dedicating” and “persist with a finding of dedication” where the evidence is found in what he terms “private correspondence, etc. “This appears to follow from his view regarding the “right-creating” effect of long user. He held, at paragraph 108:
“Resistance in this instance indicates opposition and objection to the user, which if effective, means the user is not as of right. The acts of resistance, however, as already noted, must be overt acts which are communicated to the user. Secret or private acts of resistance will not suffice… ….”
If the owner wishes to challenge the inference, he must also do so nec clam, that is in a manner that is externalised and communicated to the user. It does not suffice for the owner in the secrecy of his own heart to say to himself. “I am not dedicating a right of way to the members of the public who are traversing my land, however it may appear to the outside world. Neither is it sufficient to record his resolve (intention) in a private document which is only revealed many years afterwards.”
215
In sum, the judge was of the view that “if the owner is to rebut the inference of dedication, he must do so in an explicit, unambiguous and overt way.” He held that the law “demands that the challenge is made overtly and communicated to the public, so that the public, in turn, may challenge by way of reply or response, the owner’s opposition.” In support, he cited a statement of Lord President Hope in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd. 1992 SLT 1035, 1041. However, that was a Scottish case. Scots law regarding public rights of way does not depend on dedication but on prescription, i.e., the fact of user by the public as of right, continuously and without interruption for a period of twenty years. (Mann v Brodie, already cited, per Lord Watson at page 57). The public right of way was opposed on the basis that it should be attributed to tolerance. Lord Hope did not lay down any general rule that written communications opposing the public user had to be proclaimed to the general public.
216
In fact, it appears that the learned judge did not consider that even overt acts of opposition or resistance would necessarily suffice. While he accepted that “[w] hether the acts of resistance or interruption relied on by the owner are sufficient in law depends on the circumstances of the individual case, “the judge held that “for such acts of interruption to rebut (he presumption, the acts must be intended to prevent the users from coming onto the properly, and must be effective in achieving their aim.” He added that “a failed attempt to prevent access, may be construed as a Jailed challenge which favours the persons asserting the claim.” (paragraph 110)
217
In one particularly powerful passage, the learned judge placed a very heavy burden on a landowner if the inference of dedication is to be resisted. At paragraph 119, he said:
“When examining the legal effect of an occasional act of interruption, the clearest case is one where the owner erects a total obstruction (locks a gate, for example) and places a notice to the effect that the reason he is doing so for one day is to manifest his intention of interrupting the user to prevent an entitlement arising. To have such effect, however, the intention must be clear and the interruption must be total and effective. If the obstruction fails to prevent entry it will not be deemed to be sufficient. Likewise, if the intention to exclude the public is not clear and unambiguous, the inference that there was no animus dedicandi, may not be warranted.”
218
These statements seem to amount to the following far-reaching propositions. Firstly, although a court may, having found long user exercised apparently as of right, consider whether it should infer that a landowner has dedicated a public right of way over his land, it will not permit him to rebut that inference by reference to statements to the contrary negativing such an intention, unless they are explicit, unambiguous and publicly made. Secondly, even acts of resistance, apparently even acts of physical obstruction and resistance to public user, will be ineffective unless they are “effective in achieving their aim.” This appears to be to reverse the onus of proof and to require the landowner, in the case of verbal communications, to state explicitly and openly to all the public that he does not permit access to the way, and, in the case of physical obstruction, require him to block access totally and effectively.
219
It must be recalled that the user which will lead to the inference of dedication must be user of the way in dispute as of right. It must be open, and have the appearance that the users have the belief that they are lawfully passing along the way, and have the right to do so. It is common sense that acts or statements tending to show that the user is not enjoyed as of right but that the landowner objects to it may cast doubt on the lawfulness of the user and certainly tend to show that the landowner does not intend to dedicate the way to the public. There is no authority for the proposition that the user is itself “right-creating.” Such a proposition is inherently inconsistent with the oft-stated principle that the court must have regard to “all the evidence”. Whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence.
220
Where the inquiry is into whether the user was of such length, frequency or intensity as to give rise to an inference that the landowner dedicated a right of way to the public, it cannot be correct to exclude from consideration available evidence of the same landowner’s opposition to or resistance to the user, even if unsuccessful in preventing the public from continuing to use the way. We would not exclude from consideration cogent and credible evidence that the landowner did not accept that the public had the right to use the way, declarations to that effect, protests against the user or attempts to resist it. Naturally, the weight to be accorded to any particular statement may vary depending on circumstances. A secret statement, uncommunicated to anyone, may well be considered to have little or no weight. On the other hand, a considered statement, made between interested persons, may carry considerable weight. In particular, statements made by the President of the High Court in performance of his duty to the Ward to the effect that no rights should be granted to the public should not be ignored.
221
In the same context, the learned judge appeared to leave little if any room for the possible explanation for user being the result of tolerance or permission. This led him, for example, to reject notions of “tolerance” or “neighbourliness.” At paragraph 91, he said: “I do not find that the introduction of this additional concept facilitates clear analysis of the situation.” In his view, “one is either talking about permission or acquiescence and there is nothing in between.” He added, at paragraph 105 that in his view, “the precario required to undermine “user as of right” must be more specific than that, it must relate to a particular activity and be confined to a limited and identified group of people.”
222
In this context, it is worthy of note that the respondent’s historical expert witness, Mr Rob Goodbody, thought that, in the 18 th and 19 th centuries, a great number of demesnes were open to the public as a matter of course. He agreed that large landowners would, as a matter of course, allow people, with their implicit permission, to come in and look at their demesnes. Dr Vandra Costello gave similar evidence. As we have seen, Farwell J. in Attorney General v Antrobus [1905] 2 Ch. 188 deplored the prospect that building public rights on the foundation of the liberality of landowners might lead them “to close their gates in order to preserve their property.”
223
This judge’s approach to this entire issue led him, in the particular instance of the blockage of the Forge Avenue in 1993, to reject the suggestion that the acceptance by Sir Josslyn and Mr Prins of the removal of the obstacle by force was based on “courtesy and neighbourliness.” Rather, his interpretation was that the “owner capitulated when confronted.”
General Conclusion on Dedication
273
It is of crucial importance to note that the learned trial judge found dedication of the rights of way which he declared to exist over the estate at Lissadell in following terms:
a a. “I am prepared to infer that there was joint dedication; or, at the very least, that there could have been acquiescence to the user by both persons who had an interest in the property. Living in Lissadell House at the same time, it would be most unlikely that both did not have the same level of knowledge and appreciation as to what was happening on the lands at the time.” (emphasis added) (paragraph 265)
b b. “During the period 1857 to 1861 in the case before the court, I am prepared to say that dedication was not only possible, but on the facts I am prepared to presume that there was joint dedication during that period.”
274
The learned judge found that there had been a joint act of dedication. The life tenant, not being the fee simple owner, could not dedicate to the public in perpetuity. The judge cited the appellants’ argument that the life tenant could not dedicate to the public, unless there were special circumstances where it could be inferred that the life tenant and the remainderman both acquiesced to the dedication. Faced with this, the judge found as a fact that the father, Sir Robert, and his unmarried son, Newcomen, had been “living together (apparently in harmony) in the same house on lands over which the user is claimed to have occurred,” (paragraph 267)
275
In reaching that conclusion, the learned judge relied on Farquhar v. Newbury Rural District Council [1909] 1 Ch. 12, where there was a tenant for life with remainder to a tenant in fee simple. The remainderman had moved into possession, and the owner of the life estate (his elderly uncle) had ceased to live on the lands, and apparently never had knowledge of public user. Farwell L.J. stated (at pp. 18-19):-
“It is therefore a simple case of dedication, so far as title is concerned, by the owners of the fee. A man cannot dedicate that which is not his own, but there is nothing to prevent several owners who between them own the entire fee from dedicating.”
276
The learned trial judge next considered whether dedication could have taken place in the period from 1861 to 1894. At paragraph 270, he examined and ruled against this proposition as follows:
“By the disentailer made on the 12th March, 1894, between Sir Josslyn (the future 6th Baronet), his father, Sir Henry Gore-Booth (5th Baronet), and Mr. F.R.M. Crozier, the entail created by the will of 1861 was barred and the Lissadell Estate (now including Ballygilgan and Finned for the first time) were conveyed to Mr. F.R.M. Crozier subject to the power of appointment of Sir Henry William Gore-Booth and Sir Josslyn Gore-Booth. The next day the 13th March, 1894, Sir Henry and Josslyn exercised this power and the Lissadell Estate went to Sir Henry Gore-Booth, thereafter to Sir Josslyn Gore-Booth for his life without impeachment for waste with remainders in fee tail to the first and every other son of Sir Josslyn Gore-Booth successively in remainder one after the other, and with divers remainders over. Importantly, Sir Henry and Sir Josslyn in this resettlement document, expressly reserved to themselves powers which during their joint lives would have enabled them to dedicate if they so wished. Josslyn, later to become the 6th Baronet on the death of his father Sir Henry in 1900, was protector of the settlement. From this it can be seen that from 1894 to 1900 Sir Henry and Sir Josslyn (to become the 6th Baronet) had power to dedicate if they wished. There is no evidence that they exercised this power and I am not aware of circumstances, unlike the period from 1857 to 1861, that would enable me to presume that such power was likely to have been exercised. But it was legally possible to do so. From 1900, after his father Sir Henry died, Sir Josslyn was a life tenant in possession, with remainder to his sons successively in tail. As such he did not have power to dedicate during this period.”
277
Two points emerge from this passage. The first concerns the title. The judge found that, in the period from 1894 to 1900, Sir Henry was the life tenant and his son, Josslyn (later the 6th Baronet) was life tenant in remainder. Unlike Newcomen Gore-Booth, in the earlier period, Josslyn was not the fee simple owner in remainder. The deed of appointment of 13 th March, 1894, also granted remainders in fee tail for the first, and every other son, of Sir Josslyn Gore-Booth successively. Thus, unlike in the 1857-1861 period, the two living members of the family did not, in combination, have the fee simple. However, the judge observed that, under the deed of appointment, Sir Henry and Josslyn reserved powers which would have enabled them to dedicate if they so wished, but there was no evidence that they had exercised that power. The second point is more express than implied. The judge remarked that, unlike for the earlier period, he did not have evidence of circumstances which would have enabled him to presume that the power had been exercised. There were no circumstances such as had occurred in Farquhar v. Newbury Rural District Council, where, unusually, the owner of the fee simple in remainder was in possession. The life tenant apparently never lived there. Cozens-Hardy M.R., at page 15, thought that the court “ought to assume that that was done by the remainderman with the knowledge and approval of the tenant for life.”
278
Thus, it was not possible for dedication to take place in the period from 1894 to 1900. The only finding of dedication relates to the period from 1857 to 1861. We turn to consider that decision, which is the central conclusion in the entire case.
279
The entire principle of dedication of a way to the public is that it is reasonable to infer or presume that the landowner, being aware of open regular public user, exercised as of right for a long time over his land has dedicated those rights to the public. The requirement that the public user be open and as of right presumes that the landowner, to quote the language of Lord Blackburn in Mann v Brodie, already cited, “must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief…” Without proof that the landowner was aware of the user, there is no basis for attributing dedication to him.
280
Clearly, Sir Robert and Newcomen could not, in the period from 1857 to 1861, have been aware of user which was not contemporary and which was not in fact to occur until almost a century later. Equally clearly, the learned trial judge could not have meant that they were so aware, although he spoke of their ” knowledge and appreciation as to what was happening on the lands at the time.”
281
The learned judge can only have been acting on the principle that the user which he found to have taken place in the 1950s could be retrospectively deemed to have taken place back as far as 1857 to 1861. Such a process of reasoning can occur in cases of user during the entire period of living memory, where it may be necessary to presume dedication to have taken place at some even distant time in the past. The cases make a distinction between cases where user is shown to have taken place for the entire period of living memory and where the only user shown is user over a period less than that covered by living memory. As Romer J. put it in Stoney v Eastbourne Rural Council [1927] 1 Ch. 367 at 378, “where ……the user took place over the whole period covered by living memory, such user is just as good evidence of a dedication made a hundred years before the first proved act of user as of one made contemporaneously with that act.”
282
In the present case, the consistent evidence was of user commencing in the early 1950s, essentially during the decline of the estate following the death of Sir Josslyn (6th Baronet) and contemporaneously with the commencement of the wardship. There was clear evidence that, in the 1930s the gate to the Main Avenue was controlled by a gatekeeper and that only the family or servants and, presumably, visitors had access. That is not user for the entire period of living memory.
283
The law does not act, even in this area, on the basis of complete fiction. For example, it is common case and was accepted by the respondent that the right of way over particular avenues could not be presumed to have been dedicated at a time when those ways did not exist. The Main Avenue and the Forge Avenue did not exist before 1830.
284
For the same reason, it is not logical to apply retrospectively to 1857 to 1861 evidence of public user in the 1950s when it is clear, on the evidence, that the entire purpose and object of Sir Robert Gore-Booth in building the new mansion house, laying out the new avenues and extending the demesne lands by, in particular, purchasing the lands of Ballygilgan was to preserve the privacy and security of the house and its surrounds.
285
It is appropriate to note the circumstances prevailing on the estate in the period from 1857 to 1861. Not only did the evidence of public user not extend back to the middle of the nineteenth century, it is, as a matter of fact, highly improbable that such user would have been tolerated at that time. The learned judge took note of the appellants’ argument that it was “unlikely, given the whole raison d’être of the demesne and estate, that the owners would have dedicated to the public rights of way over the estate in such a manner that would have compromised the security and privacy aspects of the House.” He appears to have accepted this point, in a passage at paragraph 229 dealing with the actions of Sir Robert in 1836, when he “demolished the old house by the seafront and refocused the demesne around the new House.” He observed:
“This meant that a new network of avenues/roads was developed which was designed to service the work areas and to provide appropriate access to the House and its immediate environs and preserve, not only the privacy and security for those living in the House, but also to respect the imperatives of a landscape design which guaranteed minimum visual intrusion by those (servants and tradesmen mainly) whose business brought them within the vicinity of the House.”
286
There was no difference of opinion in evidence between the expert witness called by the respective parties on this issue. Mr Rob Goodbody, the respondent’s expert agreed, in cross-examination, that, those who built the new Lissadell House around 1833 would have been quite concerned to ensure that their privacy was respected, and that it appeared from the comments of the architect, Mr Goodwin, at that time that his principal concern was that the house and its surrounding gardens would remain completely undisturbed by traffic.
287
Thus, for two distinct reasons, we believe that the finding of dedication made by the learned trial judge as having taken place in 1857 to 1861 cannot be sustained. Firstly, as a matter of simple logic, user commencing in the 1950s cannot be used to infer that owners of the estate a century earlier intended to dedicate those way to the public; they could not have been aware of the user. Secondly, it is clear on the undisputed evidence that the owners in 1857 to 1861 would not have tolerated public user of the ways in the estate, which would have been inconsistent with the preservation of the privacy and tranquillity of the house and grounds, then recently developed and extended precisely to preserve those values.
288
For the two reasons given in the preceding paragraph, we are satisfied that the finding that dedication of all four of the public rights of way took place in the period 1857 to 1861 cannot stand and must be set aside.
Period of Wardship: implications
288
In addition, and for the sake of completeness, we have addressed separately the effects of the findings of user of all four ways from the early 1950s. As we have pointed out, this coincides in effect with the period of the wardship of Sir Michael commencing in 1944. Although the learned judge did not find dedication to have taken place during this period, we believe it was necessary, following the logic of the learned trial judge, to consider the circumstances of that user. We have concluded that dedication could not have been found to have taken place during that period, or at the beginning of that period, without attributing an intention to dedicate to the President of the High Court. For the reasons we have given, we are satisfied that such a finding would have been in the teeth of the expressed intention of the President that he would not dedicate.
289
Finally, it is necessary to consider the circumstances of the public user which indisputably continued following the entry into possession of Sir Josslyn as full owner in fee simple in 1982. As we have already decided, there could not have been dedication of public rights of way, as was found by the learned trial judge, by Sir Robert and his son, Newcommen, in the period from 1857 to 1861. No other basis of dedication was found by the High Court. However, even if an argument were to be advanced for dedication in the period from the early 1950s that case would fail by reason of the existence of the wardship in that period combined with the opposition of the President of the High Court.
Sir Josslyn Gore Booth; 1982 to 2003
291
From the early 1950s right up to the time when the appellants purchased the estate and to their decision to close it to the public in 2004 there was widespread, frequent and intensive user, to different degrees, of most or all of the ways through Lissadell. The learned trial judge’s findings of fact on those issues are not contested on this appeal. Nor could they be. In the ordinary way, such evidence would be likely to lead to the inference of dedication of public rights of way. However, in the period in question, apart altogether from the fact that Sir Michael was a ward of court, he did not hold the fee simple title to the estate. He was a tenant in tail. By virtue of long established principles of the common law, he was incapable of dedicating public rights of way. Faced with this problem, the learned trial judge found a dedication to have taken place in the period from 1857 to 1861. For reasons already given, that conclusion was not sustainable as a matter of law. Consequently, the undoubted fact of widespread, not to say universal, public user of the ways through the estate from the early 1950s did not give rise, as might normally be expected, to an inference of dedication.
292
The foregoing statement has important implications for the ensuing period from 1982, when Sir Josslyn was the owner in fee simple in possession. The public continued the user of the ways through the estate as if they were indeed public rights of way. It is obvious that, even if mistakenly, they believed that to be the case. There was no break. There was a continuum.
293
This leads us to address the consequences of that continued user from the commencement of Sir Josslyn’s title in 1982. We do this while bearing in mind that the High Court has made no finding of dedication during that period. At most, the learned trial judge found that Sir Josslyn made a number of admissions which became admissible as against the appellants.
294
It seems to us appropriate, in the first instance, to look at the circumstances of the admissions so found on the hypothesis that the user is being relied upon to establish the inference of dedication. It is a very striking fact that the learned judge fully accepted that, in 1993, the local people who were asserting the existence of a public right of way, including Councillor Leonard, made it clear that they intended to remove the obstruction placed on Forge Avenue “by force if necessary.” The judge found that the owner had “owner capitulated when confronted,”
295
The judge linked the second event of 2002 to that of 1993. He found that earlier experience had reassured those affected that the tree would be removed when requested.
296
The learned judge treated the response of the owner, Sir Josslyn, as amounting to acquiescence in the face of a direct challenge to his title. This, in our view, was an erroneous application of the law. It seems to flow from the judge’s view that public user is “right-creating” and that the law will ignore evidence of the owner’s opposition and will persist in making a finding of dedication. As already noted, he went as far as to say that for “acts of interruption to rebut the presumption, the acts must be intended to prevent the users from coming onto the property, and must be effective in achieving their aim.” (paragraph 110). By this process of reasoning, the judge was able to reject clear and obvious action by the owner in obstructing the claimed right of way and to prefer evidence of forcible removal of the obstruction.
297
This finding with regard to 1993 is crucial in view of the link the judge made between it and the later events of 2002, after a tree had fallen across the Main Avenue. We regret to say that the approach of the judge to these events was erroneous in law. There was no existing lawful public right of way when Sir Josslyn became owner in 1982. He and Mr Prins on his behalf exercised rights of ownership over the estate which were inconsistent with the existence of public rights of way. It is wrong to treat acts of opposition to the public right as amounting to admissions, most especially when those claiming the public right gave effect to their claim by force and with the threat of force. To treat the “capitulation” of the owner, if that is what it was, in the face of such action as an acknowledgement of the right is a reversal of the logic, whereby the public uses the way as of right and the owner, because he does nothing to object, is considered to have agreed to dedicate the way to the public.
298
We would not, given the circumstances in which they took place, regard the statements of Sir Josslyn in 1993 and 2002 as amounting to admissions of the existence of a public right of way. On neither occasion did the learned judge find that he had made any express admissions. At most, he said that he would speak to Mr Prins (in 1993) or see what he could do (in 2002). It is important to emphasise, in any event, that each of these claimed admissions relate to one avenue only: in 1993 to Forge Avenue; in 2002, to the Main Avenue. We have given separate reasons for holding that dedication of these avenues could not have taken place in 1857 to 1861, as found.
299
Furthermore, we do not consider these instances to constitute admissions capable of constituting evidence against the appellants. While the learned judge cited authority for the proposition that statements made by a person against interest are admissible against him and that, by extension, his silence when he might have been expected to answer (as in the case of the paternity suit), there is no warrant for an extension of that principle to making such evidence admissible against a successor in title who has no knowledge of the events. It would be a significant extension to the exception to the rule against hearsay to permit the silence of a predecessor in title during a private meeting leading to an inference of an admission that can be used in evidence against the successor, who was not privy to and never had any notice of the event. In the cases cited, the hearsay evidence seems invariably to have taken the form of a written document.
300
The learned judge entirely discounted the evidence that Sir Josslyn, in 2002 in particular, said that he did not want to fall out with his neighbours and that he had always had good relations with them. We have already pointed out that whether particular acts of user are to be treated as amounting to the exercise of a right requires account to be taken of all the circumstances. The fact that a landowner tolerates acts on his property by his neighbours does not mean that he always effectively creates a right. The law should not lean so heavily in favour of the creation of public rights that landowners will be deterred from being generous or tolerant of visitors in the words used in the cases, they should not be compelled to be “churlish” in the insistence on their rights.
301
We have come to the conclusion that the appeal must be allowed in respect of the routes marked B-C and B-D.
Route A-B-E
302
Separate consideration, however, is required in the case of route A-B and B-E.
303
Firstly, we address at the level of principle, the status of the coastal route generally. We have already reached the conclusion that the learned trial judge, having heard the evidence of the experts and, having carefully considered the maps and other historical evidence, came to a conclusion that the coastal route was the subject of a public right of way before 1819. This was an issue on which Mr Goodbody, the respondent’s expert, and Dr Costello, the appellants’ expert, had disagreed. The learned judge preferred the evidence of Mr Goodbody. In addition, the judge found as a fact that the presentment (no. 35) of 1814 related to expenditure on the Water Wall. This was at a location on the sea front practically adjoining the former Lissadell House. Clearly it was material to the protection of the existing road by preventing collapse and erosion from the activity of the sea. The learned judge was careful to hold that this evidence was not conclusive: it was evidence of reputation.
304
In our view, the learned judge was entitled to reach these conclusions. Nothing we have heard suggests that they were not soundly based in the evidence. This, however, does not resolve all issues regarding the status of the coastal route. As already stated, the former coastal route falls into three parts. Only that part running from the Bunbrenoige Bridge at the entrance to the Lissadell Estate as far west as the point B retains the line of the coastal route as shown on the Larkin Map.
305
We have referred to the difficulties concerning the Farm Avenue. It First appears on the Ordnance Survey map of 1885. There is no direct evidence concerning its creation. Unlike the Main Avenue and the Forge Avenue, it does not appear in the Ordnance Survey map of 1837. It will be recalled that Mr Clarkin thought the 1837 Ordnance Survey map to be the most detailed and described the 1885 map as a revision of it. Dr Costello referred to the Western Wood, which appears to be on the site of the former coastal road adjoining Johnsport was planted about 1827 to 1830. In simple terms, we have no evidence of when the Farm Avenue came into existence except the 1885 map. Counsel for the respondent, at the hearing of the appeal, argued that the maxim: “once a highway always a highway” should determine the matter. She argued that the Farm Avenue should be regarded as a diversion of the former coastal route and should, for that reason, be treated as a highway.
306
Counsel has referred to Smith v Wilson [1903] I.R. 45 and to Dawes v Hawkins (1860) 8 CB (NS) 848. Each of those cases turns on its own facts. In Smith v Wilson, a lessee had blocked an existing public right of way but substituted another with a bridge and a path. On the surrender of the lease, it was found that the lessor had acquiesced in and adopted the dedication of the public right of way as so altered (see Madden J. page 62). The judge continued:
“Now the rights of the public as against the owner of land who closes up or obstructs a highway have been clearly settled from an early date. In Dunscomb’s case 1 Cro. Car. 366 it was held that if the owner of a close over which there was a public highway obstructs the highway, he is bound. to leave a sufficient way over his close, and to maintain it at his own charge.”
307
Dawes v Hawkins is not a useful authority due to the unusual facts present in that case. There an adjoining owner who had obstructed the right of way. However, it was treated as good authority by Madden J. in Smith v Wilson for some statements of principle. Byles J. observed at page 1403:
“It is also an established maxim,-once a highway always a highway: for the public cannot release their rights, and there is no extinctive presumption or prescription.”
308
The High Court made a declaration that a public right of way exists over the Farm Avenue. The appellants say that there is no evidence of the existence of this avenue before 1885. That is when it first appears on the Ordnance Survey map. The respondent cannot dispute this fact. It says, however, that the Farm Avenue should be treated as a diversion of the historic right of way which the learned trial judge found to have existed along the coastal route prior to 1819.
309
In order to resolve this problem, the first point to be noted is that, as already stated, the learned trial judge’s finding of public user of the way was weak. He said that the “use of this road was limited and what traffic it generated was to a large extent generated by the fact that it was beside the football grounds at the west end of the estate.” We have already said that this finding would be insufficient to sustain an inference of dedication. It follows that the declaration made by the High Court is entirely dependant on whether this route can be treated as a diversion of the coastal route. On this issue, we have no evidence except the history of the maps. On that basis, there is no evidence at all of the existence of the Farm Avenue prior to 1885. The burden of proof on this issue lies on the respondent. It has failed to produce any evidence of when the Farm Avenue was created. It necessarily follows that it cannot produce evidence that it came into existence as a diversion of the old coastal route going west from point B on the map.
310
Moreover, if the Farm Avenue first came into existence contemporaneously with the Ordnance Survey map of 1885, it follows that it could not have been dedicated in 1857 to 1861.
311
For these reasons, the finding that there is a public right of way along route B-E cannot be upheld.
Route A-B: Coillte
312
Route A-B is shaded partly in yellow and partly in green on the map. As already explained, the part marked yellow was formerly part of the Lissadell Estate but, since 1968, it has been in the ownership of Coillte. It has never been owned by the appellants. Nonetheless, the High Court has made a declaration that a public right of way exists over that land.
313
Confronted with the objection by the appellants that he could not grant declarations of rights against either Coillte or the State, when neither was a party to the proceedings, the learned trial judge ruled that there was a simple solution. He said at paragraph 310:
“any decision in this case will only bind the parties to these proceedings, the findings of this court are binding inter partes only. The absence of other persons, such as Coillte or the State, does not prevent the court from determining the dispute between the protagonists here or from making a finding that the public have a right of way across Coillte land to the beach. Such determination or finding, however, is not a finding in rem, and either Coillte or the State may contest this Court’s determinations in such other proceedings they may wish to initiate.”
314
The learned judge drew attention to the fact that there was no dispute between the respondent and either Coillte or the State since neither of these bodies have sought to close down either the right of way along the Crushmore Avenue, or access to the Sea across the foreshore. This statement implies, of course, that Coillte accepts that a right of way exists, a proposition which is by no means clear.
315
The appellants submit that it is well established that all persons who have real interest in objecting to the grant of a declaration in legal proceedings should be joined in the action.
316
They refer to the evidence given in the course of the High Court hearing by Mr Tony Hennessy, Head of the Legal Department and Company Secretary of Coillte Teoranta. Mr Hennessy gave evidence that Coillte did not accept that a public right of way existed over the route claimed by the respondent to be subject to such a right and in respect of which the declaration was in fact made. Mr Hennessy said that Coillte’s view was that access to its land was based on its open-forest policy, which is permissive access. He said that Coillte would wish to resist any claim that there was a public right of way over its lands.
317
The respondent counters this reliance on Mr Hennessy’s evidence by saying that Mr Hennessy was not familiar with the lands at Ballygilgan, had never visited the area and had limited familiarity with the file. It says that Mr Hennessy’s evidence was of a very general nature and says that he could not comment on whether a public right of way existed. It does not accept that Mr Hennessy’s evidence consists of a denial on behalf of Coillte of the existence of a public right of way. It says that Coillte had not objected to the respondent’s resolution of l st December, 2008.
318
These points made by the respondent are entirely wide of the mark. Mr Hennessy’s familiarity with the case, the land or the file is not relevant to the key point. He gave evidence as secretary of Coillte. He stated Coillte’s policy and explained its interest. Several suggestions made by the respondent, like the argument made in the High Court, and accepted by the learned trial judge, that Coillte was not denying the existence of a right of way highlights the very real interest of Coillte in the subject-matter of the action. They tend to imply that a public right of way in fact exists.
319
The appellants cite the decision of the House of Lords in London Passenger Transport Board v Moscrop [1942] A.C. 332. An employee of the appellants was not permitted to be represented by his own trade union at a disciplinary hearing, whereas members of another union, the Transport Union, had that right. He sought a declaration that the condition in question was unlawful. Lord Maughan said at page 345:
“…the persons really interested were not before the court, for not a single member of the Transport Union, nor was that union itself joined as a defendant in the action. It is true that in their absence they were not strictly bound by the declaration, but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by a court in their absence, and that, except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise, before a declaration affecting their rights is made.”
320
The learned trial judge, at paragraph 310 of his judgment, said that res judicata would not apply to Coillte, which might contest the court’s determinations in any proceedings they might wish to initiate. In this context, he cited Hue v. Whiteley [1929] 1 Ch 440 and Jones v. Bates [1938] 2 All E.R. 237. However, neither case concerns whether the principle of res judicata is applicable when a declaration is made affecting the rights of someone not party to proceedings. In each of those cases, a defence of a public right of way was raised against a claim in trespass. In each case, the plaintiff was the owner of the land over which the right of way was claimed. Neither of those cases, therefore, decides that a claim of public right of way or any other public right may be maintained in personam over the lands of a third party.
321
In our view, it is contrary to fundamental principle for a court to grant a declaration of right, especially of a public right, over the property of a party not a party to the action. It is no answer to say that the declaration operates in personam only, i.e., as between the two parties to the action. That would be to say that A has established as against B that A has a public right of way over the property of C. Such a declaration would be worthless, as it would have no effect at all insofar as C was concerned.
322
Turning to the facts of the present case, it is all the more clear that the declaration should not have been granted. The respondent has effectively taken the stance that there is no issue about whether there is a right of way over the land of Coillte. It has either asserted or implied that such a right exists. When a witness from Coillte contested the claim, the respondent sought to discredit or diminish the value of his evidence. All of these points demonstrate the need for Coillte to be represented before any declaration could be made affecting its rights.
323
It does not follow from any of this that there is not a public right of way over the Coillte land. The appellants have sought, in reliance on evidence of substantial changes in the routes which now pass through the Coillte lands, to persuade the Court that there is no public right of way. For the reasons already given, the Court cannot pronounce on that question. It can only say that, in the absence of Coillte, no declaration should have been made affecting its lands.
324
The result is that the Court upholds the determination of the High Court that there is a public right of way along so much of the route A-B as is within the property of the appellants. The rule that there should be a terminus ad quem, so that public right of way ends in access to a public road, does not prevent the making of the declaration in this case. It is well established that there may be a public right of way leading to a place of natural beauty, such as the beach at Lissadell. Moreover, the doubtful status of the route through the Coillte lands would not dissuade the Court from granting such a declaration, when the facts as found by the learned trial judge are of overwhelming use of the route A-B, even if that is by reason of the open access policy operated by Coillte.
325
The result is that the Court should allow the appeal in respect in respect of routes B-C and B-D and B-E and in respect of that part of route A-B which is not part of the property of the appellants. I would dismiss the appeal in respect of that part of route A-B which lies within the appellants’ property as well as route B-E.
Right of Parking
326
A number of final questions of detail need also to be considered. Firstly, the appellants complain that a public right of way does not extend to include the right to park cars along the way. The decision of the learned trial judge on this point was as follows (paragraph 298):
“I accept the evidence of those witnesses who said that there was limited parking near the Water Wall over the years and I hold that such right to park for those visiting the Water Wall as a terminus, was also part of the dedication, but only to the extent that it does not obstruct passage on the roadway for other vehicles and particularly, but not exclusively, for vehicles used by the plaintiffs in servicing the Alpine Gardens or vehicles used by the plaintiffs’ tenants in connection with the Fish Farm. I am not, however, prepared to hold that the right to park at or near the Alpine Gardens should require any alteration or adjustment to the recent landscaping carried out by the plaintiffs in that area.”
327
The High Court order of 3 rd February, 2011, granted a declaration of a right of parking in the following terms:
“Parking near the Water Wall during daylight hours only and in respect of those visiting the Water Wall as a terminus only and provided vehicular passage of the roadway is not obstructed particularly but not exclusively in respect of vehicles used by [the appellants] in serving the Alpine Gardens or vehicles used by [the appellants’] tenants in connection with the Fish Farm..”
328
The appellants dispute the right of the High Court to declare a right of public parking as an adjunct to a public right of way. Such a right of parking is not known to the law. The learned trial judge did not provide any judicial analysis of the nature of the right.
329
The appellants submit that a public right to park in a defined space would leave the owner of the soil without any reasonable use of his land, and would render his ownership of land illusory: every member of the public would have the right in the area defined. It cannot be correct that a public car park can be created in the heart of private property.
330
The declaration made by the High Court is not related to any ordinary right of stopping temporarily during a journey along a public road. The terms of the declaration made by the High Court are limited to “right to park for those visiting the Water Wall as a terminus…” The qualification to the effect that those parking their cars should “not obstruct passage on the roadway for other vehicles” is no more than a statement of the general law. As the respondent points out in its written submissions, this is a matter governed by the law of nuisance.
331
The appellants say that a map prepared by the Respondent’s engineer John Owens not only shows parking on a two foot wall and a flower bed that is recorded as a feature since 1837, but also shows parking ‘off the road’, ‘blocking’ user of the avenue, and blocking the entrance to the cottage and to the Alpine Garden, and it shows parking on the appellants’ lands, which have been extensively restored and landscaped.
332
The appellants say that it is not possible to exercise this claimed right of parking without blocking the avenue, or trespassing on the appellants’ lands, either on the landscaped areas by the Alpine Garden, or on the cut grass verges, or on the two foot high stone wall border to the 19th century flower garden by the avenue, or on the driveway to the cottage by the Alpine Garden or the slipway.
333
The respondent counters the complaints made by the appellants regarding the grant of rights of parking by emphasising that under the ordinary law of nuisance, users of the highway are not entitled, for example, to park vehicles so as to obstruct the highway. This does not, of course, address the point that the declaration made in the present case involves the grant of a right to park cars not merely on the highway or public right of way as declared but on land owned by the adjoining proprietor.
334
In short, the declaration made by the High Court provides a right for the general public not merely to pass and repass along the route of the public right of way to park cars, not merely along the route of that way, but on adjoining land, which is the property of the appellants.
335
To deal with this point, it is appropriate to refer to the counterclaim made by the respondent. In the counterclaim itself, at paragraph 5 A., it claimed a declaration that the roadways were subject to “rights of way, together with the ancillary rights to stop and park, in favour of the public.” In its reply to a request for further particulars on 17 th December, 2009, it said that a map would be furnished showing “parking near the water wall.” It said that the claim was:
“The rights of the public to stop and park extends to all of the rights of way marked yellow on the map annexed to the Defence and Counterclaim and such user must not constitute an obstruction to the rights of way or an encroachment on the lands of the Plaintiffs not subject to the rights-of way.”(emphasis added)
336
It is clear, however, that, in the course of the hearing, the claim was extended to include “encroachment on the lands of the Plaintiffs.” Mr John Owens, an engineer with the respondent gave evidence and produced a map showing “parking just off the road.” (emphasis added).
337
It is clear, therefore, both from the terms of the High Court order and the evidence given by and on behalf of the respondent, that the public right of way has been granted so as to include an ancillary right to park on the adjoining lands of the appellants.
338
The learned trial judge found at paragraph 298, that the “right to park for those visiting the Water Wall as a terminus, was also part of the dedication…” The dedication he was speaking of was, of course, what he found to have taken place in the period from 1857 to 1861. We have already held that it was not possible to make a finding of dedication at that time, based on user commencing in the 1950s, a point which applies with even greater force to the notion the Sir Robert Gore-Booth and his son could have had in their contemplation the parking of motor cars, yet to be invented, on their land. There was no evidence, and no suggestion, that any corresponding activity took place in the period of the Larkin Map.
339
The grant of a right of parking off the route of a public right of way, including the public road, entails the creation of a public car park on private lands. No authority has been produced for the proposition that such a right can be made ancillary to a public right of way. It seems contrary to the principle that a public right of way does not extend to a jus spatiendi. Costello J., in Smeltzer v Fingal County Council [1998] 1 I.R. 279, already cited, said at page 286:
“But it is well established that there can he no common law right in the public or customary right in the inhabitants of a particular place to stray over an open space i.e. that is there is no jus spatiendi (see Halsbury’s Laws of England (4th ed.), vol. 34 para. 500, and Attorney General v. Antrobus [1905] 2 Ch. 188). I do not think that Giant’s Causeway Co. Ltd. v. Attorney General [1905 ] N.I.J.R. 301 is an authority to the contrary. In that case, the court expressly held that no jus spatiendi existed and decided, on the facts established before it, that a public right of way over a road to the Giant’s Causeway existed, and not over certain pathways.”
340
In our view, the grant of the additional ancillary to park motor cars off the route of the public right of way cannot stand and should also be set aside.
341
We have concluded that, for a number of reasons, the finding of dedication made by the learned trial judge in the period 1857 to 1861, during which time the estate was not entailed, cannot be sustained. The learned trial judge, however, also expressed the view that the law stating that there cannot be dedication during a period of entailment should not be followed. In the circumstances of the present case, for reasons already given, we are of the view that the evidence of user during the period from the early 1950s could not, in any event lead to an inference of dedication. In the period of wardship, we have given reasons for concluding that there was not dedication by the President of the High Court. Even though the learned judge did not find any separate act of dedication during Sir Josslyn’s occupation after 1982, we have, for the sake of completeness, addressed that issue and have concluded that the continued user during that time could not lead to an inference of dedication. For these reasons, it is not necessary to reconsider the long-established legal rule that only the fee simple owner can dedicate.
Conclusion
342
For the reasons given in this judgment, we propose that the Court allow the appeal insofar as the High Court granted declarations of public rights of way over routes: B-C; B-D; B-E and that part of A-B which is not the property of the appellants. We would dismiss the appeal in respect of the part of route A-B which runs from Bunbrenóige Bridge (which, in the interests of clarity we mark as point F) in a westerly direction to point B. In addition, we propose that the appeal be allowed against the grant of any right to park motor cars on the land of the appellants not subject to a public right of way.
Walker v Leonach
[2015] 4 IR 1, [2012] 2 JIC 0812
Docket Number: [2008 No. 7738 P]
Neutral Citation: [2012] IEHC 24
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice John MacMenamin
How is a public right of way established?
34
34. In Smeltzer, referred to earlier, Costello P. observed:-
“The law relating to highways and the creation of public rights of way is a very ancient one and the relevant principles are well established. A distinction is made between a permission granted by an owner of land to members of the public to walk on pathways on its land and dedication to the public of those pathways. To establish a public right way, what has to be proved is an intent on the part of the owner to dedicate its land to the public, an actual dedication, and acceptance to the public of the dedication.” (p, 283 of the Report)
35
35. In some cases there will be evidence of actual dedication, however, actual dedication may also be inferred. Here, the question of “user” is of fundamental importance. But as has been pointed out such an inference can only be drawn in “all the circumstances of the case”. Context is all important. The focus in this case is upon the question of whether dedication can be inferred. The defendants invite the court to infer dedication of the route as a public right of way; they have adduced evidence regarding long user from old travel guides and maps and other users of the route. However, they do not assert that at some specific time, some landowner’s action show a time and occasion from which dedication might be inferred. They do not point to any prior owner of the land holding a legal capacity to dedicate who might have actually done so. Capacity to dedicate hinges on whether the owner holds sufficient title to engage in an act of dedication; for example by holding the fee simple in the land. The defendants’ case is derived, rather, from historical sources and from a particular form of user, that is, effectively, by members of the public who are transient, who used the route in question as a shortcut or as a route for hill walking and from the old maps which they say show a public right of way.
36
36. In the absence of evidence of any act of “public” acceptance for example, by local authority expenditure or maintenance, the focus of their enquiry can only be as to the nature of the user evidence from which dedication is sought to be inferred. Is there evidence of public user? What was the nature of that use? Can such evidence give rise to an inference? This first requires some analysis of the authorities.
37
37. Prior to considering the case law, I pause to observe that the legal principles are long established; but there is an important policy dynamic in play in them. There are modern English authorities which are discussed in the Lissadell judgment which demonstrate a different judicial approach. Those authorities are not part of the ratio decidendi of that decision, however. In England, in certain circumstances, user may be inferred after twenty years (see the Right of Way Act 1932 and later legislation). Observations made by English judges must be seen in light of the fact that there is, evidently, a judicial policy at work which is to be seen in light of the intention evinced by the British Parliament in its legislation.
38
38. In this case, the defendants, in effect, invited the court to apply principles developed in modem English case and statute law. But our law does not support this approach. There has been no legislation in our State on the issue as to when a public right of way may be presumed. The question of acquisition of right of user can be an acutely sensitive one. The relationship between hill walkers and sightseers, on the one hand, and farmers, on the other, is sometimes troubled. The legal principles which apply as to “user” in this case involving a significant land-holding in North Wicklow, might also be applicable to the case of a small holding sheep farmer in West Cork, Kerry, Connemara, or in Co. Wicklow itself. Not all cases of this kind concern significant-sized properties, or big landowners.
39
39. Among the questions which emerge from the case law are, first; what is the extent and nature of the user which gives rise to inferred dedication, and second, what is the extent of toleration by a landowner, big or small? Was the toleration of such a degree that it may be inferred that the owner was “acquiescent” in public user so that dedication should be inferred? These are questions of fact to be determined in each case.
40
40. A court considering the issue of inferred dedication by long user often asks a threefold question about such user. Has the use been nec vi, nec clam, nec precario? These terms are derived from Roman law, then civil law; then old common law but each term is still relevant. Such shorthand is not always as helpful as might be thought. Nec vi necessitates asking whether the user as of right was “without force or violence”. The second, nec clam, puts a court on inquiry whether the user was “in secret or whether it was obvious”. The third is whether the use was nec precario; was there “permission or consent or toleration”? But “permission”, “consent” and “toleration” are not synonymous terms, and then difficulties can arise (see the discussion in “As of Right”; All in the Mind, Simpson [1998] 62 Conveyancer, November/December). See also Lawyers’ Latin: A Vade-mecum, New Ed 2006, (John Gray).
The distinction between rights acquired by prescription and dedication
41
41. The process of analysis is assisted by identifying the difference between rights acquired by prescription; (which do not apply here) and, by contrast, those acquired by dedication.
42
42. In the case of prescription, the focus is on the “right user”. He or she acquires the right by use, frequently long use; it becomes vested in the user by the elapse of time, and in circumstances where there has not been “force, secrecy or consent”. The common law developed a doctrine known as “lost modern grant” to overcome difficulties in establishing these proofs. A court could presume from long user, that at some time in the past, an easement had been granted by deed but that deed had been lost and could be produced. This may arise in the case of a private easement. (But see now the Land and Conveyancing Law Reform Act 2009).
43
43. But by way of distinction, a public right of way is created by the dedication of the way as a public way by a landowner. What did the landowner do? That act of dedication need not be formal. Sufficiently unequivocal conduct by an owner, evincing an attention to dedicate will suffice. There must also be acceptance of the dedication by the public, evidenced by their use of the path or way. Consequently, long user of a path, with an acquiescent owner standing by and taking no action may be seen as allowing an inference of dedication and acceptance. But such user must be nec vi, nec clam, nec precario. As a component part of these tests the court considers the notoriety of the user, or, to put it another way asks itself was the public user obvious, or should it have been so? The court will look to how the owner then acts or fails to act.
Was user as of right referable to toleration or dedication?
44
44. I observe earlier that the term “toleration” lies at the heart of this case. This is true in more than one sense. In Regina v. Oxfordshire County Council ex parte Sunningwell PC [1999] 3 WLR 160, Lord Hoffmann engaged in this short helpful historical analysis as to how the law evolved on this topic. It showed the fact that user “as of right” was not determinative; such user may be based on toleration rather than dedication and therefore not give rise to an inference of dedication. That judge observed:-
“… as one can see from the law of public rights of way before 1932, toleration is not inconsistent with user as of right; see also per Dillon L.J. in Mills v. Silver [1991] Ch. 271, 281. Where proof of a public right of way required a finding of actual dedication, the jury were entitled to find that such user was referable to toleration rather than dedication; Folkestone Corporation v. Brockman [1914] A.C. 338. But this did not mean that the user had not been as of right. It was a finding that there had been no dedication despite the user having been as of right. The purpose of the Act of 1932 was to make it rebutting evidence, to treat user as of right as sufficient to establish the public right.”
Earlier in the same judgment, the judge explained the “pre-statutory” English position in this way:-
“The difficulty in the case of public rights of way was that, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had merely tolerated such use: see Folkestone Corporation v. Brockman [1914] A.C. 338. On this point, the law on public rights of way differed not only from Scottish law, but also from that applicable to private easements. This made the outcome of cases on public rights of way very unpredictable and was one of the reasons for the passing of the Rights of Way Act 1932, which introduced a statutory presumption of dedication and way of rebutting deemed dedication.”
How obvious must the “user as of right” be?
45
45. While our law as to presumption now differs from English law, some examples from English cases may still help illustrate particular concepts. One of these is the nature of the user inconsistent with the landowner rights. Mills v. Silver [1991] Ch. 271 was in fact such a case. There, at p. 281, Dillon L.J. warned even in the context of English statutory “prescriptive” rights:-
“It is to be noted that a prescriptive right arises where there has been user as of right in which the servient owner has, with the requisite degree of knowledge, which is not an issue in the present case, acquiesced.” [Emphasis added]
46
46. The “knowledge” test therefore remains fundamental even in English jurisprudence. In Mills v. Silver the owner simply could not deny “knowledge”. What was in question was an actual track constructed across his land. This is, of course, very different from occasional sporadic or irregular entry. Here, the interlinkage of the nec clam with nec precario requirements is essential; the question of toleration or acquiescence imputed to a landowner must be linked to the degree to which the user of the land was obvious to the owner and the extent to which that use was inconsistent with the owner’s rights over the land.
The established legal authorities which apply to this case
47
47. The starting point for consideration of our law is Connell v. Porter (1972) [2005] reported at 3 I.R. 601, referred to earlier. It is a binding authority on this Court. As context is vital, the facts of this case are now outlined in more detail than would normally be necessary. The emphasis on what is seen as “weak” evidence and what is “strong” evidence is a key part of the analysis.
48
48. In Connell, the plaintiff owned licensed premises from which a side door opened onto his cut de sac laneway. The defendant was the lessee of the laneway and an adjoining property. The defendant conceded that as the plaintiff’s bar customers had used this side door for access to her premises for many years, the plaintiff had acquired a prescriptive right of way for her customers over the soil of the defendants’ property. In 1966, the defendant erected a gate on the entrance to the laneway and supplied the plaintiff with a key for use by the plaintiff together with the patrons of her public house. The bar owner brought proceedings to have the gate removed claiming that the laneway was a public highway and that her prescriptive right of way allowed her to pass and re-pass through the laneway without obstruction.
49
49. Having outlined the general principles by which a public highway could be created, the Chief Justice concluded that where there was no direct evidence as to the intention of the owner, an animas dedicandi (intention to dedicate) might be presumed, either from the fact of public user without interruption, or from the fact that the right of way had been maintained and repaired by the public authority. A landowner who had permitted the expenditure of public monies on his roadway could not be heard to say, if this was coupled with public user, that it remained a private road. The court noted that the extent of the public expenditure included a laying of concrete in 1931, road sweeping and cleaning, bin collection and public lighting up until 1962. Coupled with evidence of public user, the court concluded this was sufficient to support the trial judge’s finding that the laneway was a public highway. But the weight the court imputed to these two factors is fundamental to the test. The use by ordinary members of the public, while a factor; was not in itself determinative. At p. 604 of the report, the Chief Justice noted that the defendant had conceded that the plaintiff’s bar customers had used the right of way for entering and leaving the licenced premises and that the plaintiff thereby acquired a prescriptive right of way for her customers over the soil of the defendant’s premises. The laneway had also been used for anti-social purposes by members of the public late at night to the distress, annoyance and displeasure of the defendant.
50
50. But at p. 606, there is the following important observation:-
“… The evidence of user, in this instance, if it existed in isolation, I would consider weak and insufficient; but when taken in conjunction with the evidence of expenditure, for various purposes, of public monies on Nash’s Court, a strong case is made out for the presumption of dedication.” [Emphasis added]
51
51. This evidence of “ordinary” public user referred to customers in a bar who must have been frequent and numerous. But this evidence in isolation was weak and insufficient. What made the evidence conclusive was that this frequent customer user was to be seen in the context of expenditure of public monies on maintenance and repair on the lane.
52
52. On the final page of the judgment (p. 608 of the report), the Chief Justice observed that the maintenance of Nash’s Court by the corporation as a highway was such a notorious and obvious fact that it would require strong evidence on the part of the owner of the fee to displace the presumption that he must have been aware of it. Connell is a clear illustration as to the manner in which the principles should be applied and weighed. In my view it shows a conscious and deliberate calibration of the scales demonstrating a judicial policy which this Court must apply.
53
53. Bruen v. Murphy (Unreported, High Court, McWilliam .J., 11 th March, 1980) is to similar effect and illustrates the same emphasis.
54
54. The evidence there established that persons in the area of Templeville Drive and Fortfield Drive in Templeogue crossed, though without difficulty, several field boundaries and eventually clambered over the remains of a wall at the back of Templeogue Village. As Mc William J. pointed out, there was a complete absence of evidence as to the ownership of the fields between Templeogue Road and Templeogue Village or as to the use to which the fields were put or as to there being any identifiable track across the fields or along the wall of the village and no evidence was tendered to facts which could support a presumption that the owner or owners of the land had dedicated a way for the use of the public. What occurred was that the construction of houses on Templeville Road had led to two passages into, and out of, a disputed plot, creating a shortcut between Fortfield Drive and Templeogue Road.
55
55. The judge observed that during the ten years in question there had been undoubted use of the plot by many persons for many purposes, some of them objectionable, but equally certainly, a number of persons used the route as a shortcut. He concluded, however, that there was no actual dedication of the public right of way and he considered that he could not:-
“assume that the casual user by members of the public for dumping, rowdiness and occasional passing across it between the two roads was such that I should imply the assertion of a public right of way with a knowledge and acquiesce of the (then owners).”
Here, again, the user was considerable but in the absence of more the court could not infer dedication. The weight to be given to particular types of evidence is fundamental, public user by maintenance or expenditure is “strong” evidence; ordinary user by itself was weak or insufficient.
56
56. The same policy emphasis underlay the decision in Collen v. Petters, referred to earlier. Much of the long user evidence there was described by the judge as being merely a “neighbourly convenience” and therefore not giving rise to any assertion of rights inconsistent with those held by the owners. He concluded that the use of various paths from a house to a public road that conveyed for the purpose of convenience had nothing in common with a public right of way; such use would retrospectively convert a local convenience into a right for the public at large. He held also, that for a public right of way to be presumed, it must commence at a public place and terminate in a public place, although this was not necessary where the destination of the presumed right of way was to a place of natural beauty requiring access; and that the act of erecting a gate at an entrance to a public road thereby preventing all access, including pedestrian access, was wholly inconsistent with a public right of way.
Distinguishing aspects of the Lissadell case
57
57. As indicated earlier, the nature of the user evidence described in the very recent Lissadell case was very distinct from that which arises here. There, McMahon J. found the evidence showed the disputed land was used for regular recreational purposes; that there had been public expenditure by the local authority on the land on more than one occasion; that the property had figured in the County Development Plan published by the County Council; that Gabrielle Gore-Booth, of the family who owned the “big house” had made known in 1969 in letters to the President of the High Court, and to the President of Ireland, that her father had “opened up” the estate to the public as far back as 1900; and in her view that for “upwards of 60 years Lissadell has been a popular social meeting place”. The evidence established that Mr. Caffrey, the estate manager appointed in 1957 said in a letter to a solicitor for the Ward, Sir Michael Gore-Booth, that the level of public access enjoyed up to 1957, was such as to be a cause of concern to a previous solicitor for the Ward. The phraseology used in the letter was that:-
“… in plain words [the estate] was gone into a ‘Commons’.” (See para. 83 of McMahon J.’s judgment.)
The position here is fundamentally different. None of the factors just described are in play.
The ratio of the Lissadell judgment
58
58. However, the ratio of the Lissadell judgment was in fact based not only on obvious acknowledged long user, and obvious and public acceptance by expenditure, but also, vitally, by inference as to the identity and capacity of the dedicating landowners. At para. 267 of the judgment, McMahon J. stated:-
“During the period 1857 to 1861 in the case before the court, I am prepared to say that dedication was not only possible, but on the facts I am prepared to presume that there was joint dedication during that period. […] in our case the life tenant and the remainderman lived in the same house at the same time, so it is easier to infer dedication in these circumstances. Furthermore, it must be recalled that the same parties consented to the disentailment of the estate in November 1857, an act of much greater legal significance than dedication.”
59
59. Thus in addition to the other factors, there was a presumption of joint dedication by both the life tenant and the remainderman who, taken together, would have had the capacity to dedicate. This very important question did not arise in the instant case; it was not explored by the parties asserting the public right of way. Insofar as the defendants here have sought to characterise the ratio in Lissadell as being based simply and only on inference of dedication by virtue of long user, they were incorrect.
60
60. In our law therefore, (as distinct from the law now in the neighbouring jurisdiction) proof of long, continuous and uninterrupted user of a way by the public, though it is evidence from which dedication may be inferred, does not create a presumption of law and favour of a dedication, which unless rebutted must prevail (per Lord Atkinson Folkestone Corporation v. Brockman [1914] A.C. 338). This decision, to which I now refer in more detail, illustrates many of the principles which apply in the instant case.
What Folkestone Corporation v. Brockman established
61
61. In Lord Atkinson’s speech in Folkestone there is a passage which although couched in very old fashioned language is still relevant. At p. 369, he observed, quoting from observations in Simpson v. Attorney-General [1904] A.C. 476 at 493, that:-
“…nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.”
Here Lord Atkinson was quoting from observations of Lord Macnaghten in Simpson v. Attorney-General [1904] A.C. 476 at 493.
62
62. Lord Kinnear in his concurring speech in Folkestone, at p. 352, said of the justices who had come to the conclusion that there was no intention to dedicate that:-
“It is said that they should have come to a contrary conclusion in law, because user creates a præsumptio juris [ presumption in law] in favour of dedication. This proposition is too vague to be helpful in argument, since each of its terms is ambiguous. The nature of user, and consequently the weight to be given to it, varies indefinitely in different cases, and whether it will import a presumption of grant or dedication must depend upon the circumstances of the particular case…”
63
63. That judge continued:-
“The law is stated more exactly by Lord Blackburn in Mann v. Brodie [ 10 App. Cas. 378, at p. 386]. He begins by citing the doctrine laid down by Parke B. in Poole v. Huskinson [(1843) 11 M. & W. 827 at 830]: ‘In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate – there must be an animus dedicandi, of which the user by the public is evidence and no more.’ And then he adds more particularly with reference to the effect of user, that ‘ where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was.” [Emphasis added]
64
64. The speech of Lord Kinnear is helpful also, in that at p. 353, it clearly again distinguishes between the theory of dedication, on the one hand and on the other theory of acquisitive prescription which in 1914 was the law of Scotland but not England. A court may proceed therefore on the basis that the presumption of dedication from user is a probable inference from facts proved to be fact in issue, and it follows that in a particular case it is for the judge of fact to determine whether on the evidence adduced it can reasonably be drawn (per Lord Kinnear at p. 354). The other authorities deal with how factors such as local reputation and state of mind of the user may arise.
A summary of the questions derived from the decided authorities
65
65. In summary, then, a court may ask itself the following questions as to whether dedication may be inferred:-
· Was there any actual dedication? Here, and in the question of acquiescence, the owner’s state of mind is material.
· Was there any act of public acceptance?
· What is the evidence of public user?
· In these questions documents of title maps and other public and private records may be relevant.
· Is the evidence of public user “as of right”?
· Can that evidence be linked or connected with acts of public expenditure on the land?
· Is the evidence of user consistent with the three tests of nec vi, nec clam nec precario? Whether such user was long, continuous and uninterrupted are relevant considerations, but may not be determinative.
· Is the evidence of user referable to acquiescence or, alternatively, simply to toleration not amounting to acquiescence?
· Is there evidence of public user “as of right” and connected with a requisite degree of knowledge which can be imputed to the landowner such as to show acquiescence? Was some prior inconsistent user of the owner’s rights or public expenditure such a “notorious and obvious fact” that it can raise a presumption that a landowner must have been aware of it?
· Over what period of time did the public user take place?
· How intense, and on what occasions did such use take place?
· What steps did the landowner take to counteract such user?
· Were such steps proportionate to the acts of trespass in the sense that they were a commensurate action to prevent repetition of such acts?
· Is there evidence of local reputation of the disputed route being a public right of way?
· What was the user’s state of mind? (This last may be relevant in circumstances illustrated later in the judgment.
The court must address these questions having regard to all the circumstances of the case.
The plaintiff’s case
66
66. As described earlier, the plaintiff’s land is outlined in blue on the map which is Appendix A to this judgment. Was the route used nec vi, nec clam, nec precario? Was there public user as of right? It is necessary now to turn to the evidence on these questions. I return now to the history of the route itself. The general location of the land can be seen in the 1981 Ordnance Survey map of the Wicklow Way p. 17 Appendix B.
Topographical and historical background
67
67. The plaintiff now resides with his wife and family in the Old School house shown on the maps. The property lies north of the Military Road (now the R115) which was constructed very early in the nineteenth century. An original building, St. Kevin’s Roman Catholic Church adjoining the plaintiff’s garden, was built in 1824. It was replaced by the present building in the late nineteenth century. To the north of the church lies a graveyard, still in use. Beyond that are the subject lands, now largely in forest.
68
68. The land is located in the Wicklow Mountains west of the Powerscourt Estate, lying between Glencullen, Enniskerry and Glencree. A section of the Wicklow Way passes north/south relatively close to the west of the plaintiff’s land through Curtlestown Wood. To the east of the plaintiff’s property is Annacrivey Wood, now managed by Coillte. To the north again is an area known as Raven’s Rock, now in commonage, where the plaintiff enjoys shared rights.
69
69. The land in question was originally a Norman deer forest. From the 12 th century until near the end of the 16 th century, the area was under the dominion of the Wicklow clans who were then dispossessed by the Crown. In 1603, the Wingfield family were granted the lands around Powerscourt including the subject property. Ultimately, the Wingfields became the Viscounts Powerscourt. They were landlords who held vast estates, at one point measuring approximately 12,500 acres. The family retained these lands throughout the many regime changes of the seventeenth century. There was a large walled demesne just west of Enniskerry which contained ornamental gardens as well as a large house. This demesne covered the area where the plaintiff’s house and Annacrivey Wood are now situated.
70
70. To the north of the Military Road, the land rises quite steeply northwards through the church grounds, the graveyard, and up towards Annacrivey Wood. The terrain is rocky, and is unsuitable for much agricultural use. There are substantial rocky outcrops interspersed with bog or peat terrain. The plaintiff’s land, and Annacrivey Wood, as well as the territory around Raven’s Rock, were used by the Wingfields for hunting, and forestry plantation. A very detailed Powerscourt Estate map of 1816 shows how the land in the area was then apportioned; it identifies each tenant by name, and the size of each field to each acre, road, and perch. It is a remarkably precise document and an example of the surveyors’ discipline and the map makers’ art. (See Appendix B page 1).
71
71. In the latter part of the 18 th century, the Wicklow uplands were seen by the then administration as wild and sparsely populated. Neither the Crown nor its agents found it possible to build roads in the area until after the 1798 rising, and the ending of Michael Dwyer’s campaign in 1803. The Powerscourt Estate continued in being until the latter half of the nineteenth century. With the passing of the Land Acts, the estate was broken up by degrees, and a large amount of the land south of Annacrivey Wood was assigned to purchasers who sometimes in turn subleased the properties. The process was largely complete by 1897.
72
72. There is no evidence in the case as to the ownership of the land in the intervening period from 1897 until 1945. It follows, therefore, there can be no question of there being any person identified as capable of being fixed with even the capacity to form an animus dedicandi (intention to dedicate) during that later period, any more than during the earlier Powerscourt/Wingfield era which the defendants also did not explore in evidence although one of their witnesses Mr. Rob Goodbody carried out a thorough search in the Registry of Deeds.
1945: The Walker Family acquire the land
73
73. In 1945, the plaintiff’s father, Norman Walker purchased Annacrivey House next door to the Powerscourt demesne, and south of the Military Road (see map Appendix B, p. 7). About 250 acres of land then ran with the property. He later sold the house, along with approximately 80 acres. He unfortunately died in 1980 in a road traffic accident. The plaintiff, who is now an accountant in his early 60s, then came into the estate subject to his mother’s life interest. He converted the Old School House and commenced using it as a family dwelling. He has lived in the area most of his life except in periods when he attended university in Dublin and another period when he lived in Castlebar.
The property in Norman Walker’s time
74
74. During his lifetime, Norman Walker used the land as a farm. He herded dairy cattle, sheep, and later, wild ponies. Annacrivey Wood was and is separated from the plaintiff’s property by a stone wall. There is a similar wall in place along part of the disputed route between Butler’s Cottage at point F and Canavan’s Cottage at point E. (See Appendix A). As one proceeds from Hughes’ Lane to point B, and then towards point D, part of the route or path is walled on both sides. There are still part of it where the plaintiff goes about on a quad bike. The higher parts of the route are extremely rough, rocky, and boggy. As one proceeds along the line eastwards, and then northwards, the land is now heavily afforested. At some points, this forest is entirely impenetrable. From Canavan’s Cottage onwards, it is impossible to discern any route or pathway at all. At other points, south and closer to the old Military Road, at the walled portion, the track would be sufficiently broad to allow perhaps four people to walk abreast. Elsewhere, even the remnants of any track have been entirely obliterated by the forest planted by the plaintiff in 1988.
The plaintiff’s forestry plantation in 1988
75
75. In 1988, the plaintiff planted approximately 110 acres of spruce, and some broad leaf trees; the latter were quickly destroyed by deer. The southern section of the plaintiff’s land near the School House was not, however, planted. It remains open, although now much changed by the removal of earth for a large access road or track which the plaintiff decided to build recently; this crossed the path of the disputed route. The conifer trees flourished, at one time managed by a consultant company which subsequently became insolvent. The plaintiff erected forest fencing around the plantation, which was made up of sheep wire run between wooden posts with a strand of barbed wire running along the top. There were gates at both ends of the route. Again by reference to Appendix A; the plaintiff’s property ends at a point roughly midway between point F, and point G, that is to say between Butler’s Cottage and Burned House. Thereafter, there is then a clear track which inclines northwards to point K, ultimately joining Blackhouse Lane.
Non-joinder of adjoining landowners as parties to the counterclaim
76
76. Surprisingly, the defendants did not seek to adduce positive evidence as to whether or not any part of the neighbouring property to the north of the plaintiff or the track leading down to the plaintiff’s land is a public right of way. No application was brought to join Mr. Patrick Geoghegan, an adjoining property owner, or any other owner along that track to defend the counterclaim, brought by the defendants’ which sought to establish that the route through the plaintiff s property was part of an old public right of way, going as far as point K. through the adjoining land. The consequence of that decision is that the defendants are left asserting a “public right of way” which as it was put by the plaintiff’s counsel, is a “road to nowhere”. The failure to join Patrick Geoghegan and other landowners on the lane north of the plaintiff’s property is puzzling, as well as creating a fundamental procedural obstacle for the defendants.
The plaintiff’s own evidence
77
77. I turn then to the plaintiff’s testimony. In general, I considered him truthful in court. However, I think that he was also remiss in failing to apprise the court of the fact that he was actually going to build the new access track, though he did say in evidence that this was his intention.
78
78. The new track itself is now very unattractive. The work involved shifting a great deal of earth, now strewn at the side of the track. The track crosses the disputed route. The new entrance fronts onto the Military Road with a (presumably, temporary) unsightly gate with large warning signs prohibiting entry. Throughout the lands, there are other signs indicating that trespassers are unwelcome, and that there are dogs loose.
79
79. I think Mr. Walker’s judgment on some issues has been affected by the pressures of the Right of Way campaign. His wife also testified that she found the situation difficult. Neither side in this case has shown the degree of toleration you would normally expect. The actions on both sides have been totally disproportionate to the issues at stake.
80
80. The plaintiff testified that, after his father bought Annacrivey House, he kept dairy cattle on the lower pastures nearer the Military Road. Norman Walker later reduced his level of farming activity, and sold part of the land. The plaintiff recollected that Hughes’ Lane was used by tenants who lived in Canavan’s Cottage and also in Cottage 1 (See Appendix A). A cottage further to the west was once occupied by a family of Polish refugees.
81
81. I should comment here, that Canavan’s Cottage, and the land around it, stands directly across the route of the alleged right of way. A number of maps show a cottage at or adjacent to the same site for nearly two centuries. In fact, there is a cottage shown just there in the Powerscourt Estate map of 1815 (Appendix B, p. 1). The cottage is clearly shown in the Ordnance Survey map of 1885 (Appendix B, p. 5). A laneway leads up to the Canavan’s Cottage from Hughes’ Lane, but goes no further. It was a cul de sac even then.
82
82. When the plaintiff came into possession in 1980, both Cottage 1 and Canavan’s Cottage were in disrepair. The land around them had become overgrown with furze. The southern and western boundaries of his property were walled, and the remaining sides were fenced at the time when his father held the land. After Mr. Norman Walker died, his son disposed of the ponies, and later decided to plant the forest on the property which had otherwise been vacant.
83
83. The planting in 1988 took place over much of the area described in the map in Appendix A as “J. Walker’s Land”. It crossed much of the route between the points E and F. The only area on the Walker property not planted were the southern fields closer to the plaintiff’s house.
The plaintiff’s testimony on “public user”
84
84. The plaintiff’s earliest memories of persons walking along the route went back to the 1950s when he was nine or ten years old. He testified his father had become agitated about an article on hill walking written by the well known writer and hill walker of other years, J.B. Malone. This suggested there was a route northwards through the plaintiff’s lands up to Raven’s Rock. Mr. Norman Walker made a complaint about this suggestion. The plaintiff testified that, beyond his property, to the north and west of Annacrivey Wood there lay between points H and J (Appendix A) a private right of way giving neighbouring residents access to the wood. Mr. Norman Walker occasionally gave permission to boy scouts and others to enter the lands.
85
85. The plaintiff testified that in the 1950s, any hill walkers tended to come onto the subject land to the north in the region of Raven’s Rock. His father became quite upset at any incursions. The plaintiff said his father had no difficulty with local people entering on his land for business, for example to recover stray sheep. However, the late Norman Walker did not accept recreational use of the land with the exception of occasions when he gave permission. As well as the boy scouts, the only other person with permission to enter the land freely was a local doctor who used to enter the land to shoot. The plaintiff himself still allows school groups to camp on the property from time to time as well as allowing access to cycling groups and for game shooting. The plaintiff’s evidence was that, from his father’s time, there was a gate at Butler’s cottage, and a gate at Canavan’s cottage. There was barbed wire fence where the lands ran along Hughes’ lane.
86
86. On foot of the case management directions, the defendants had furnished proofs of evidence of their witnesses. The plaintiff did not dispute their evidence as to use of the disputed route. He had spent a lot of time on the land but never met any of the witnesses personally. He accepted the lands were not continuously policed, and it would have been easy for people to walk through unnoticed. As can be seen from the maps, the schoolhouse is perhaps 70 yards from the route, and perhaps 100 feet lower. Much of the track is hidden from the house (See Appendix B, p. 17).
87
87. The plaintiff said that, at one point, the land between Canavan’s Cottage and Butler’s Cottage had become so overgrown that it would have been necessary to make a significant diversion around those lands. He recalled a wall running along the track at point F to point G in a north easterly direction, at which point there were closed gates. He described the track after point F up to point G as being quite narrow although it widened after the boundary with what is described in the map as “Sold Land” that is land which was sold to his neighbour Mr. Geoghegan. At point G, the entrance to Annacrivey wood, there was a stone wall for access purposes. A stile there was sometimes used for indirect access to his farmland as it was less a climb from his house. The plaintiff denied that either he or his father expressed any intention to dedicate the route as a public right of way.
Did the plaintiff and his wife acknowledge the existence of a right of way?
88
88. I turn next to a question of admissibility of evidence. It was put to the plaintiff he had acknowledged the existence of a public right of way in 1990. He denied ever having a conversation either in that year or the year earlier with a person carrying out a survey on behalf of Wicklow County Council. He denied that he ever made such a concession or accepted that there was a public right of way. He stated that such a suggestion had no substance and was inaccurate.
89
89. It was put to the plaintiff in cross examination that the Wicklow County Council had actually recognised or designated the route as a public right of way in 1990. Two documents were put to him suggesting that he and his wife had acknowledged the existence of a right of way then, and that these documents were in fact part of a County Council survey. However, the documents were never proved in evidence, I comment later on this when dealing with Mr. Kevin Warner’s evidence. The plaintiff was not undermined in his evidence. It was not suggested that in other areas his evidence was so incredible as to render his testimony on this point suspect. Thus the Court must therefore accept his denial, and that of his wife.
The plaintiff’s actions when the claim was openly made
90
90. The plaintiff testified that, in 2002, he became aware that Mr. Kevin Warner and Mr. Albert Smyth had written a book called Ten Walks in the District, of Enniskerry. The book, asserted the route was a right of way. He strongly denied that there was any right of way through his lands and threatened to sue them. He did accept, however, that local residents had paid for the partial tarring of the lane north of his property near point K. This is passable by vehicles, but is not within his boundary.
91
91. He said there was an increasing number of people coming through his property particularly along the path marked A – G. When he met such people, he said he made clear to them that they were trespassing on private property, and asked them to leave, particularly any he encountered between points B and D.
92
92. The lands adjoin publicly owned forestry. The plaintiff estimated that quite a few hundred people would annually pass along the route, sometimes in groups of two or three, but on occasion in groups as large to thirty or even fifty. These were mainly strangers, although he came to know one or two. The fences which protected his property at Butler’s Cottage at the boundary to the “Sold Land” were pulled down and trampled on in various places. Another section of the route at the top of Hughes’ Lane at the other end of the route was tidied up and ferns were cut back so as to make it passable. A wire fence surrounding the forest set back from Hughes’ Lane was also cut up. He regularly installed new fences along the boundaries of his property. These were accompanied by notices stating “private property – keep out”. However, he found these did not last; they were cut down and the notices removed. He testified about the notice in an inaccessible location which was shot through with bullet holes. The plaintiff described two other incidents which took place from 2004 onwards. The first was where the trees were “barked”, or killed by cutting around the base of the tree and removing the bark. In a second incident, small fires were lit on the pathway, he thought with the intent to intimidate rather than actually place life at risk.
93
93. I would comment here, that both of these two actions, even if seen in isolation, demonstrate that the plaintiff had made entirely clear that he would not tolerate persons crossing his land. It must have been widely known. It is not suggested that the defendants engaged in these actions. The irony is that these unlawful and intimidatory actions were entirely counter-productive as in this case they negative acquiescence; they strongly support the plaintiff’s case that he objected to persons entering his land, and that this was obvious to anyone.
Conciliation efforts followed by escalation of the dispute in 2004
94
94. The plaintiff described the conciliation meetings. At one of these he was shown the “Liam Price Notebooks” which described the author walking a route on 18 th of December, 1932. This entry describes a line which I think is consistent with the disputed route. The plaintiff, however, did not feel in a position to accept this in light of the paucity of detail. As a matter of probability, however, I think there is little doubt on the matter. But the author is by no means an insignificant figure: Liam Price was a District Judge and a prominent and recognised antiquarian, archaeologist and authority on place names, He was a precise observer. Volume 1 of his “Notebooks” was published by Dúchas in 2002. This was part of the material Mr. Noel Barry the second named defendant showed to him in 2006, if not before. As a matter of probability, I find that this entry describes the author walking “the old road” above Curtlestown towards Kilmolin and refers to the route in question.
95
95. The plaintiff gave evidence regarding a walk which took place, he said, in June 2004. This was organised by the Enniskerry Walking Association, he erected a steel barrier between points F and G where his property on the north end met that of his neighbour Mr. Geoghegan. He said a number of people came up Blackhouse Lane, turned left at point K, crossed a locked gate at point H, before assembling at the barrier, and seeking to cross onto the plaintiff’s land. He described the first named defendant making a speech about “landlordism” to the crowd after which the march then dispersed. There was an exchange of words between himself and the first named defendant. This barrier was subsequently removed without his authorisation, as were fences.
The organised walk in 2005
96
96. The plaintiff described another organised walk on 20 th February, 2005. Then he encountered a group of people on his lands including the first named defendant and he claimed that he was knocked to the ground. These allegations were not put to the first named defendant in cross examination, and I expressly do not make any finding of fact on this point. The first named defendant is now entitled to be exonerated from this allegation.
97
97. The plaintiff accepted that, during 2005 and 2006, the Walking Association representatives referred him to a series of maps to which reference will be made later in the judgment. The dispute continued. It seems there were a number of other unpleasant incidents in the meantime. In September 2008, the defendants organised the walk which triggered the injunction.
Mrs. Anna Walker’s evidence
98
98. Mrs. Anna Walker married the plaintiff in 1977. She testified that her husband inherited the property in tragic circumstances when his father was killed in a road traffic accident. Subsequently, in another accident, his mother was seriously injured at the same location.
99
99. The witness said that in the late nineteen seventies, she went on walks on the property with her father in law. She described the route in question as being overgrown with ferns. Neither she nor her father in law traversed the whole route. Her evidence was that she never met anyone while out walking the route with her father in law. She felt that if Norman Walker had met anyone there, he would have told them they were on private property, although he would have drawn a distinction between local people and mountain walkers.
100
100. Mrs. Walker said that in the nineteen eighties, the area between Canavan’s Cottage and Butler’s Cottage was overgrown with gorse through which one could move with difficulty. Following the publication of the pamphlet in 2002, she found living in the area to be stressful and lonely. There was an increased number of walkers, damage to trees, some fires were set and other acts of petty vandalism and intimidation occurred.
Mr. Patrick Geoghegan’s evidence
101
101. Mr. Patrick Geoghegan, a pharmacist and neighbour of the plaintiff, came to live in the area in 1987. His land lies north of the plaintiff’s property bounded by Annacrivey Wood, (managed by Coillte) to the west, and by a Mr. Duggan to the north (Appendix A). The witness now owns the “Sold Land” which he bought from the plaintiff. Much of this witness’s evidence was not directly relevant to the subject route, but rather was focused on the route from J to H and H to G. But he did say there was a gate across the lane down to his house, near Burned House which was relocated some years before the events here. He identified a further gate at point H, and a wall across the laneway below Burned House. The witness was unaware of any public rights of way, though he accepted that when walks started in the late nineteen nineties, one was asserted at the entrance to Annacrivey Wood.
102
102. The witness described that his van had been hijacked as one of a series of intimidatory incidents which took place in the late nineteen eighties or early nineteen nineties. As I infer it, the witness was suggesting these events were in some way connected to a dispute as to access to his land.
103
103. Mr. Geoghegan testified that in the late nineteen eighties the laneway between point G and F had become completely overgrown with bushes and rocks. He cleared this in the early nineteen nineties to allow for traffic and cut stones were put down so as to afford access to the Burned House at point G. The witness accepted he had an interest in the outcome of the proceedings as he was concerned that the result could impinge on paths running across his property. Counsel for the defendants put to him a number of questions regarding another alleged dispute many years before between another neighbour and Wicklow County Council as to the existence of rights of way. No evidence was called to prove these allegations, they are not therefore evidence on which this Court can act.
Mr. Harry William’s evidence
104
104. Harry Williams is a farmer in his mid seventies from Ballybrew. (Appendix B, p. 17; south of the Glencullen River). His family have been there for six generations. He described there being a stone wall at Burned House. He described Norman Walker’s lands as having been an open meadow, where there were horses and sheep. He testified that, on occasions, his sheep would stray onto Norman Walker’s land when stone wall boundaries became dangerous. He described times when groups of three or four walkers might stray onto his or the Walker lands. From time to time he himself crossed the Walker lands to gain access to other land which he farmed. He did this as a shortcut and as part of a gentleman’s agreement between farmers. He denied that there had been continuous walking by strangers across the Walker lands. He testified that he had never in past times heard of any claim of there being a public right of way across the Walker lands.
105
105. I turn then to the defendants’ evidence on public user contained in the next section of the judgment.
The defendants’ case based on user and acquiescence
The defendants’ evidence
106
106. Ironically, the defendants’ evidence on user does not establish that the two defendants themselves were frequent users of the route at all. The first defendant, Mr. Nial Lenoach testified he walked along the route a number of times in the early 1980s and again in the early nineteen nineties. He stated he did not record any obstructions but described the road as being quite overgrown. His walks took place only after Norman Walker’s death. He accepted that he saw a gate at a point doing the route. He used the route to visit his mother in law, Mrs. Wrigley who lived locally. He did not remember gates but did remember the trees growing up in the nineteen nineties. Mr. Noel Barry, the second defendant testified that he ran along the route when he was training for marathon runs in the early nineteen eighties and part of the nineteen nineties. He was then friendly with the plaintiff. Mr. Barry’s involvement in a number of meetings with the plaintiff, in an effort to resolve the dispute, has been described earlier.
Ms. Marie McDonnell’s testimony
107
107. Ms. Marie McDonnell is a retired Civil Servant. She was not a local resident. She was for many years a director of An Óige. She was also an active member of the Legion of Mary which organised hill walks in the nineteen sixties. Her evidence was given in a very forthright manner. She testified that she has used the route while engaged in walking groups as far back as the time she was involved with the Legion of Mary and then in An Óige groups going to the youth hostel south of the plaintiff’s property. She never met anyone on the route who suggested to her she was not entitled to walk there. She never met any member of the Walker family. She took the view that she was entitled to walk there unless or until somebody told her otherwise. She did not give evidence of her basis for this belief. She recalled walking along the route at a time when she first heard it had been planted with forest. She was shocked to see the trees had been planted in what she regarded as a roadway. Initially, she concluded that there had been a mistake, and actually pulled up a number of trees which she found there. She had previously cut down furze. The witness testified that she had been through the route “loads of times” since the forestation. She denied that there had been any stone wall, but did remember a locked gate at one stage which was easy to get over.
108
108. I infer from her evidence that she accepted there was fencing at the Burned House and on the route, but did not recollect any fence on the Hughes’ Lane end. She remembered meeting a gate which was a bit shaky. She accepted that this gate had been locked. She described the land as having been ploughed or ripped up for the purposes of tree planting. She stated that in earlier times groups of up to 50 people may have been involved in the An Óige walks. She stated that walkers would enter the plaintiff’s property having traversed the lane down from point K as being part of a recognised route which she considered was a public right of way.
Mr. Séan Fox and Mrs. Vera Fox
109
109. Mr. Séan Fox and, his wife, Mrs. Vera Fox, testified that they walked the route from 1951 when as a sixteen year old, he joined An Óige. They were persons with local connections. He stated there was a wall near the Blackhouse end, but that there was a stile in the wall which presented no difficulty walking across it. He occasionally came across temporary gates made from pallets and branches. He did not consider that there were any significant obstructions along the route, however. He did remember livestock on the land. In the early nineteen sixties he became involved in walking the route, first as a member of the Irish German Society, and then as a member of the Irish Ramblers Club in 1964. Since approximately 1972, he walked the route with his wife as part of an organisation called Na Coisithe. Mrs. Fox’s parents bought a shop in the vicinity and they both spent a considerable amount of time in the area in the summer at weekends up until the nineteen eighties. Mr. Fox testified that on a number of occasions when he was walking the route, he met Mr. Norman Walker, who he stated, took “no attitude at all” to them being on the route, and did not prevent them from proceeding. However, he conceded that they did not meet him very often as, on most occasions they met nobody. Mr. Fox testified that it looked as if the late Mr. Walker recognised that the route was a right of way. He did not give any basis for this inference. Clearly Mr. Fox recognised Norman Walker, the question arises therefore whether Mr. Walker saw him as a local resident. Mrs. Vera Fox corroborated her husband’s evidence and stated that she was walking the route from the early nineteen forties onwards. She testified that occasionally they would meet Mr. Norman Walker although they never really got into conversation with him. While Mr. and Mrs. Fox actually lived in Glasnevin, they had local family connections in the area.
Mr. Kevin Warner’s evidence
110
110. Mr. Kevin Warner, a member of the Enniskerry Walking Association, sought to introduce the documents said to record the outcome of a survey as of land use carried out by Wicklow County Council in 1990. One of the purposes of this survey was apparently to identify public rights of way.
The documents not proved in evidence
111
111. But while Mr. Warner produced the documents said to come from this Wicklow County Council survey, these were never formally proved in evidence. He had no legal authority to prove them. The defendants were given ample opportunity to address this point. Documentary evidence of acknowledgment of a public right of way may be admissible evidence. But no matter how flexible a court may be, to render a document admissible there must be testimony as to its source or provenance (see the discussion on evidence in the Lissadell decision particularly at para 151 et seq.) The documents here purported to say the plaintiff and his wife had accepted there was a right of way along the route. But there was no evidence at all where the documents came from; or who prepared them, or for what purpose; or in what circumstances this acknowledgement was made. Even if the two pages had been admitted in evidence they would have been of little evidential weight, in the absence of these vital details as to context, purpose, and identity of their maker. It is not disputed that Wicklow County Council never designated the route as a public right of way which raises further questions as to status of the documents. To accept such material as evidence as to acknowledgment in the absence of any form of proof whatsoever would amount to allowing hearsay upon hearsay. What was in question here could have been very significant. But (unlike in Collen v. Petters) the two pages were not in the nature of a signed letter by the landowner. In Collen such letters were deemed significant although interpreted in two different ways at first instance and then on appeal which might have been quite different. The defendants said that a witness to prove the documents was seriously ill. It is difficult to see why other official witnesses could not have been subpoenaed from the County Council to prove the documents, if they emanated from it and were held in its custody. It was not even shown there had been such a survey or who conducted it. No application was made to hear evidence on commission from the witness who was ill.
Mr. Francis Wrigley
112
112. Mr. Francis Wrigley is the first named defendant’s brother in law. He was 73 years of age at the time he gave evidence and grew up in the area. He walked the route three times a year from a teenager. He never saw any obstructions save for a gate going into the wood. He never met Norman Walker on the route. He had not travelled the route for 40 years. In cross-examination, he admitted that Albert Smith (one of the pamphlet’s authors) typed up a statement for him. Mr. Smith helped him with the historical background for an affidavit which he swore. When he was ten years of age, he remembered a motorcycle rally passing over the route in 1948 or 1949. He never saw any stone wall. He went on the land as a teenager to hunt rabbits. None of his neighbours objected when he did this. He did odd jobs for Norman Walker when he was growing up, and Mr. Walker would have had no difficulty with him.
Mr. Lochlan Cameron
113
113. Mr. Lochlan Cameron walked with his children on the route in the early 1980s perhaps once a year. He never met Norman Walker, He remembered red metal farm gates. Sometimes he passed by the Polish refugees’ house. Sometimes he went up to Raven’s Rock, or around the hills, or wherever the fancy might take him. An affidavit was prepared for him to sign by somebody he did not identify. He is a member of the Countryside Hill Walkers Association most of his life, is a neighbour of Noel Barry. He could not remember the trees since they were knee high. I infer from this he had not been on the route for at least twenty years. He described the route as being a lane, not a field, with houses at various points, and could not therefore remember there being any stock on it. When pressed, he seemed to remember there may have been horses on other properties.
Mr. Pat Coogan
114
114. Mr. Coogan was 67 years of age and grew up in Ballybrew. He had relations in Blackhouse. He walked the route when he was six, seven or eight years of age to visit the Burtons who were school friends. He described Hughes’ Lane as Barnamire Lane. He remembered no significant obstructions and never met Norman Walker.
Mr. Patrick Cronin
115
115. Mr. Cronin grew up in Kilmolin and as a child played Cowboys and Indians on Hughes’ Lane, which he described as Barnamire Road or the old lane. He also went down Blackhouse Lane to collect sticks from the forest or to bring a log back on his back, but this did not appear to involve entering the plaintiffs lands. In 1967 he took up residence in “the middle cottage” by arrangement with Mr. Walker and lived there for four years. The disputed route was then grazed by sheep and goats. He had driven a motorcycle back up from the pub at night time. In good weather, in the summer, hikers from Johnny Fox’s would use the disputed route. The locals used it to go to play cards in different people’s houses and to visit their relations.
Mr. Eddie Swaine
116
116. Mr. Swaine was 58 years of age and grew up in Parknasilogue near Kilmolin from the age of nine in 1953. As a schoolboy, he sold Alpine Draw tickets to Mr. Tom Cullen at the far end of the route. He never met Mr. Norman Walker on the route although he knew him from elsewhere. In his earliest school days he could remember no obstructions. He described Mr. Walker’s sheep as being fenced in. He took part in the 2005 protest walk. He described an incident in a further protest walk between the plaintiff and Mr. Lenoach before the plaintiff made a charge at “one of the guys at the front of the walk”. He said Mr. Lenoach called the police but they did not come.
Mrs. Áine Redmond’s evidence
117
117. Mrs. Áine Redmond has been living in Kilkenny since she was a child but she was originally a local resident. In 1979 she wrote a letter to Wicklow County Council to complain about another owner, a Mr. Kennedy who lived in Blackhouse and was erecting a gate and a sign saying private property. Her evidence was unclear as to whether this was on Mr. Geoghegan’s property. It appears that the dispute took place in 1979. The witness made no subsequent complaint that Mr. Geoghegan had actually erected a gateway on the laneway leading to his house. She did remember a barbed wire fence at Hughes’ Lane which she said had fallen down. She remembered going up to the Polish Cottage many years ago. She accepted that Mr. Walker would have had no difficulty about her doing this.
Assessment of the defendants’ witnesses on use of the route
118
118. The defendants’ witnesses were generally credible. I accept their testimony. I consider that they came to court to tell the truth and that the Association members and their associates may well have believed that the route in question was a public right of way. I do not think that their views were purely fanciful. The defendants and the Association to which they belonged later carried out the research which they felt supported them in their views.
119
119. On one aspect of the user’s testimony, however, I prefer other evidence. This is not to say that anyone of the defendant witnesses was trying to mislead the court. But some of their testimony cast doubt on there having been fences and gates when referring to a time when this was a farm with livestock and ponies. Some went so far as to say there were no fences and gates or that they remembered none. As a matter of probability I find the lands were fenced and gated at this period and at all times afterwards. It is impossible to conceive that sheep and ponies were kept on the land over years without fencing and gates back to Norman Walker’s time. From that time onwards the plaintiff’s evidence on fencing and gates was simply not challenged in cross examination. Had the question been seriously in issue I have not doubt it would have been rigorously tested. This evidence from both sides must be taken in conjunction with the expert evidence adduced in the case set out in the next section of the judgment. The totality of the circumstances must be considered.
Dr. Vandra Costello’s evidence
120
120. Dr. Vandra Costello is a landscape historian. She holds a doctorate in that subject from the School of Architecture in University College Dublin as well as a masters degree in Landscape Architecture and a degree in Legal Science. She teaches courses in University College Dublin, Waterford Institute of Technology and the University of Ulster. She has published widely. She was retained by the plaintiff to prepare a report.
121
121. The witness was not aware that the defendants would confine their case to inferred dedication by user alone. Consequently, her researches went further, and considered whether there was any evidence of actual dedication from the time of the Powerscourt Estate onwards. She went to a number of sources including the Ordnance Survey reports, Boundary report books, and fair plans held in the National Archives; historical maps held at various libraries; the Powerscourt Estate papers held in the National Library; the leases held in relation to the area; travel guides and walking travel guides from the nineteenth century onwards available in the National Library, and the Price monograph. She also walked the route on a number of occasions so as to familiarise herself with it.
122
122. Her evidence was that by a “road” she meant a public road that would be under the charge of a Grand Jury. For this purpose, she considered the various Presentments to the Grand Juries under the Grand Jury Acts 1765 to 1865 and the Restriction of Public Roads Act 1796. Such Grand Juries were the precursors of the modern day local authorities although they were comprised mainly of local landowners. They were the bodies responsible for raising funds from local landowners for public works and road construction and maintenance. In order to comply with requirements such a road would have to be 21 ft wide and be serviced by drainage. The role of Grand Juries is described in the Lissadell judgment. (See paragraph 190 et seq.)
123
123. The witness testified there was no evidence that the route in question was a public highway as and from the eighteenth century. Indeed the indications were to the contrary in that there simply were no such highways in the Wicklow uplands at that time, although there are indications that there was a track or path either proposed or in existence along part of the route. (This can be seen by reference to the maps, the 1760 map of J. Nevill and the 1798 map of his nephew A.R. Nevill. (Appendix C, pp.1 & 3)
124
124. Dr. Costello considered the 1819 Grand Jury Presentments which identified a list of the roads under the supervision of the Grand Jury for the Barony of Rathdown (the relevant area). It is unnecessary to identify all the names on the list. The disputed route was not mentioned. However, apart from public roads there were internal estate avenues and service routes which would benefit the landowners and people who lived on particular estates such as the Powerscourt Estate. Such estate roads would not tend to be as large as public roads except in the case of a particularly a grand avenue.
125
125. The witness testified that there was no evidence that there ever existed an “old coach road” along the disputed route. The postal coaches served by postchaise in the eighteenth century which served Enniskerry would have taken the old road to the east passing through a Newtownmountkennedy, Kilmolin, Wicklow, Rathdrum and Arklow.
126
126. In addition to the postal communications there were also early stage coaches. There was no evidence at there was any coach road which served Glencree. Significantly, she testified that the references to an “Old Coach Road” was relatively recent in origin, and did not appear in any historical documents at all. The witness testified that given the relatively sparse population in the area as well as a fear of attack, it is unlikely there would have been any demand for a coach road. In total, the area had a total of nineteen people resident in Lower Curtlestown in 1841; and in 1851 there were nine. However, she accepted that these figures may not be reliable as the census figures may be confined to houses and not impermanent dwellings such as cabins.
127
127. She was cross examined in some detail on this issue and in particular whether or not the population of some hundreds in the upper Glencree Valley as shown in the mid nineteenth century census might have used the route as a mode of communication from Glencree to Glencullen or Enniskerry. She replied that this was not demonstrated by any historical evidence.
128
128. The witness testified that Curtlestown developed very slowly. The graveyard adjoining the Roman Catholic church was donated by the then Lord Powerscourt in the latter half of the nineteenth century. It post-dated the military road. The Roman Catholic church was erected in 1824, and then replaced by the present church in 1891. Moreover, she made the point that were one proceeding to or from Glencree, it would be more logical to proceed along the military road rather than across country from Butler’s Cottage to Canavan’s Cottage.
No challenge to Dr. Costello’s evidence on the Powerscourt Estate title records
129
129. In contrast to the findings in Lissadell it was not suggested that any Powerscourt Estate title documents (or any other documents) indicated that at any time during the nineteenth century, or subsequently, any owner of the land had engaged in any act which might be inferred as an act of dedication of the route. The defendants did not adduce any evidence in relation to the Powerscourt Estate documentation or relating to other previous owners. That documentary evidence was as available to the defendants as to the plaintiffs. Mr. Goodbody, the defendants’ consultant historian, meticulously carried out a similar search in the Registry of Deeds and found no evidence of a public right of way on any relevant title document. He did not find any evidence of public expenditure at any point either. The defendants here chose not to engage with this aspect of proof.
The mapping evidence
130
130. I preface consideration of the evidence on maps, by the following. First, it was accepted that the fact that a path, track or even avenue is illustrated on a map in the eighteenth or nineteenth centuries is not in itself evidence that such a route was a public right of way. One need only look at the maps of Jacob Nevill and A.R. Nevill of 1760 and 1790 (See Appendix C). The indication of the (obviously private) avenue up to Powerscourt House itself is a double line the same as the track, road, or lane, along the disputed route shown in the Nevill maps. Much of the Wicklow uplands was not perceived as comfortable terrain for the government of the day or any of its supporters.
131
131. Second, as Mr. Rob Goodbody, the defendants’ consultant, pointed out, pre-Ordnance Survey maps are not as reliable as their later, Ordnance Survey successors which were actually physically surveyed. As he very fairly testified, largescale maps produced for landowners were often extremely accurate, while smaller scale maps on sale to the public were less so.
132
132. Third, I think that mapping evidence may sometimes be subject to “over interpretation”. Maps seldom show the purposes for which a road, lane, avenue, or track was built. A sequence of maps may allow one to infer when a particular track or route was constructed; but old maps are silent as to whether the owner of lands on which there were tracks, paths or roads engaged in any act of actual dedication.
133
133. The evidence is that subsequent to the inception of the Ordnance Survey in 1837, maps are much more reliable guides as to what was found by the surveyors. Insofar as reference is made to maps prior to the Ordnance Survey, I take the view that on balance they are less likely to be accurate guides. But what is on a number of maps such as some adduced by the defendants may be significant and have evidential weight. So too are the Powerscourt Estate maps of 1816 and 1850 to which reference will be made. In my view, the source, purpose, and detail of these two estate maps make them powerful evidence as to what existed “on the ground” when they were made. These latter come within the category of “large scale reliable estate maps” as identified by Mr. Goodbody. Those maps, which are among those which form the basis of the plaintiff’s case are at Appendix B of this judgment. The maps upon which the defendants relied are at Appendix C. These maps show that the claimed termini of the route are located at Canavan’s Cottage; and Butler’s Cottage just south of the Annacrivey Wood.
134
134. There is good authority that old maps can be assistance to a court in case of this type (see Re McNeill’s Application, Barr J., High Court 14 th December, 2001, Unreported). But this does not justify a court engaging in speculation. Some of the evidence, and much of the cross examination by counsel for the defendants, while ingenious and creative, was entirely speculative. There is no evidence of the public actually using the route for at least a century prior to Liam Price in 1932.
135
135. Finally, I must make clear that I find and proceed on the generally accepted basis that on the Ordnance Survey maps a single line on a map will symbolise a wall; a double parallel line depicts a track, lane or third class roads; parallel dotted lines depict an unfenced road. A single line does not depict a track, lane or path. (See Appendix B, p. 21)
136
136. The focus therefore is on historically based evidence as made out by the maps. But it is simply not open to a court, in the absence of evidence to infer public use, or to make some form of “leap of faith” on the basis of speculation based on the possible movements of quite small numbers of people over a century ago without evidence. It was suggested that Glencree residents might, possibly, have travelled the route in question in the nineteenth century on their way to a well known hostelry in Glencullen; in fact, as a matter of probability, I consider if they wished to travel either to Glencullen or Enniskerry they are as likely to have taken a range of other routes, or more probably to have used the Military Road and then travelled onwards. There is no historical evidence of nineteenth century user; speculation is not evidence.
Mr. Michael Flynn:- the plaintiff’s mapping expert
137
137. Mr. Michael Flynn is a cartographer with over forty year’s experience. He worked for many years in the national army and afterwards in the Ordnance Survey office. He is clearly an expert in the discipline.
138
138. The witness prepared a book of maps which are both large scale and small scale at Appendix B. The first map in Appendix B is a composite map and extract from the Annacrivey town land drawn from the Powerscourt Estate map of 1816. I summarise my findings on the maps here – there is further discussion later in the judgment.
Appendix B
139
139. In summary, I find in relation to the plaintiff’s maps:-
(1) The Powerscourt Estate map of 1816 does not show any road or track between Canavan’s and Butler’s Cottages. I consider the solid single line between the cottages represents a stone wall boundary. At risk of repetition maps depict roads, tracks, and by-roads by double lines on the one hand; but they depict walls by single lines. A single line depicts a wall, not a track or path unless there is some indication to the contrary. A single pecked line running parallel to a continuous line shows a path or track.
(2) The extract from the 1837 Ordnance Survey fairplan, this again does not show a path or connection between Butler’s Cottage, Canavan’s Cottage, and the old road from Glencree to Enniskerry. The single solid line between the cottages illustrates a stone wall. There is no evidence of even a track.
(3) The 1838 Ordnance Survey six inch map again shows no track or lane between the base of Annacrivey Woods and the old road. What is shown is, simply, a stone wall boundary.
(4) The 1850 Powerscourt Estate map shows no road, track, or laneway between Butler’s Cottage and Canavan’s Cottage.
(5) The 1885 Ordnance Survey fairplan, again shows no connection between the old road from Glencree to Enniskerry to the by-road leading from point K to Butler’s Cottage. There is no laneway or path shown from Butler’s Cottage to Canavan’s Cottage.
(6) The extract from the Ordnance Survey twenty five inch map surveyed in 1909 shows a by-road from the north terminating at Butler’s Cottage. What is illustrated in that map between Butler’s Cottage and Canavan’s Cottage is a stone wall. Furthermore, the map shows that the track leading up to Canavan’s Cottage from Hughes’ Lane terminates at the gate of that property. It does not depict any track which leads from Canavan’s Cottage past Butler’s Cottage up to point K. Rather, it shows a stone wall from a home field of 0.258 acres beside Canavan’s Cottage. At the west side of Canavan’s Cottage there is a laneway leading up to the cottage from the old road. In my view, this presents particular difficulties for the defendants in that it places Canavan’s Cottage and two surrounding home fields squarely along the line of the route where it is suggested a public right of way existed. This is not reconcilable with a public right of way.
(7) An extract from the 1909 to 1937 Ordnance Survey – six inches to a mile – again shows no connection between Butler’s Cottage and the old road.
140
140. For completeness, Appendix B includes a number of the defendants’ maps which are also found in Appendix C. I deal with maps 8, 9, 10 and 12 in the context of the defendants’ case therefore. These maps (relied on by the defendants) are Jacob Nevill 1760, A.R. Nevill 1798, John Taylor 1816 and G.N. Wright 1822. I move now to p. 11, Appendix B.
(11) The next map for consideration in Appendix B is an extract from William Duncan’s 1821 map of Wicklow which clearly shows the route of the Military Road and its spur to Enniskerry. This shows a road which proceeds from Blackhouse through Curtlestown heading westwards to Glencree. But this road does not follow the disputed route. The road goes through Curltestown, not north of it through what is now the plaintiff’s land. This is not consistent with the defendants’ case.
(13) At p. 13 is found the 1857 Ordnance Survey map. I find this shows simply the old road from Glencree to Enniskerry, turning southeast and ending just north of Curtlestown National School. The by-road from Blackhouse lane ends at Annacrivey wood. There is no connection by road, lane, or pathway along the disputed route.
(14) I find the 1865 Ordnance Survey map again does not demonstrate any connection between the by-road from Blackhouse lane through to the old road from Glencree to Enniskerry.
(15) An extract from the 1898 white cover Ordnance Survey map. I think this is to be taken in conjunction with the red cover map.
(16) This shows the “red cover” 1899 Ordnance Survey map. I find these two maps show the existence of a track proceeding from the end of Annacrivey wood southwards then westwards. I do not read this track, however, as connecting with the old road or Hughes’ lane.
(17) The 1981 Ordnance Survey map of Wicklow way. This does not show any track or laneway rather, it shows a stone wall along the route.
(18) The 1987 Ordnance Survey Dublin district map. This again shows no connection across the route; rather it shows a stone wall.
(19) The 1990 Ordnance Survey Heritage Map again shows no connection, but rather a stone wall running along much of the route; although it does show an old road ending somewhat beyond Canavan’s Cottage.
(20) The 1994 Ordnance Survey map. This again does not show any track or laneway connecting the two points.
(21) Characteristic sheet 1.
(22) Characteristic sheet 2. These are self explanatory and clearly depict the symbol for a wall as a single line.
Mr. Goodbody’s evidence
141
141. The defendants’ expert witnesses were Mr. Robert Goodbody, an Historic Building Consultant who holds a degree in historical geography and local history and is a town planner and Mr. Andrew Bonar Law, undoubtedly also an expert, but whose expertise lies particularly in sourcing maps and identifying their provenance and authorship.
142
142. Mr. Goodbody thought that, prior to the construction of the Military Road, the disputed route led westward up the valley towards Glencree, and served simply as an access route to farmland. He relied on Powerscourt Estate maps as proof of this. The witness engaged in a most interesting comparison of relevant maps. There are two editions of the 1798 Arthur Neville map – both referred to. (See Appendix C, pp. 1, 3, 5, 7 and 9). But relying on the Jacob Neville (1760), A.R. Neville (1798), John Taylor (1816) and G.N. Wright (1822) publications together, Mr. Goodbody concluded that they corroborated each other in showing a road ran along the disputed route westwards to Glencree. Using the county boundary (see heavy line) as a reference point the witness made a striking comparison by way of a transparent overlay. In my view, this comparison demonstrates too close a correlation between these four maps to be dismissed out of hand. The resemblance in outline between the line of the paths or lanes is too close to be coincidence. How then is this to be reconciled with the 1816 Powerscourt Estate map? As I suggest later I think it is probable that the three later maps are derived from the A.R. Neville map in 1798.
143
143. The witness testified that the records for the Wicklow Grand Jury had been destroyed in the Four Courts fire in 1921. He suggested this is at least part of the reason as to why records could not be found of any dedication of a public right of way or as evidence that repairs have been carried out. His testimony was that Grand Jury Presentments were more commonly held locally than has since been the case. His view was that it was probable that the route had fallen into disuse as a result of the construction of the military road. It was likely that the construction of this road had the effect that local landowners who were on the Grand Jury were reluctant to expend monies in the repair and upkeep of the disputed route. He did not, however, accept that the route had been obliterated by Lord Powerscourt then or at any other time.
Mr. Andrew Bonar Law’s evidence
144
144. Mr. Bonar Law testified as to the background of the Taylor and the two Nevill maps. The thrust of his evidence, insofar as it differed from Mr. Flynn was that the absence of a pecked line in showing a single line only along the disputed route did not necessarily indicate that no such route existed. The defendants’ experts sought to add the fact that there is only a single line on the route for a century as not inconsistent with a path or lane. I disagree.
145
145. The witnesses suggested given the nature of the area, and of the maps themselves, it was not at all unusual that the “route” was not shown by a double line for the century after 1816.
146
146. But here the case is fundamentally flawed. It cannot satisfactorily account for what is shown in the preponderance of the maps, and in those which are most reliable. If the route is shown as a single line in my view, it is not probable at all that it is a lane or path; it is, rather, a stone wall. I have difficulty with any testimony to the effect that Ordnance Survey map makers were not “really interested” in the line of the disputed route because it was an estate route, or that the position of Canavan’s Cottage, and the absence of the route from the 1912 Ordnance Survey map were simply evidence that the route had fallen into disuse, and not that it had never existed as a public right of way. The proposition that it was an “estate route” undermines the defendants’ case. If it was an “estate route” it cannot have been a public highway. I do not think this satisfactorily explains the situation. Maps can either be taken as evidence as they stand or not. I do not think the single line stone walls shown on the nineteenth century Ordnance Survey maps lying directly on the route can be explained either as a mistake or a mis-observation by the surveyor. There are simply too many of them, and these corroborate the 1816 and 1850 Estate maps. The extraordinary and detailed 1816 Powerscourt Estate map, even in isolation, is an important piece of evidence on which the Court can place weight: so too is the estate map from 1850.
147
147. Mr. Bonar Law and Mr. Goodbody prepared a book of maps (Appendix C. The pagination is as in the book). These are numbered here as in the Book. The gaps in pagination numbers arises from opposite pages being blank. I now comment on these:-
(1) The Neville map of 1760. This map is strongly relied on by the defendants. It was one of the maps shown to the plaintiff in 2006. As can be seen, this does show a lane from Blackhouse southwards to Annacrivey. However, what is illustrated on this map is, I find, inconclusive. The illustrated laneway actually stops some hundreds of yards short of the Curtlestown Bann River. It does not show that the lane or path had any destination, or that it was a connection to any other road or population centre in the map. It is possible that in fact what is shown here is a projected road rather than an actual one. This is to be contrasted with the 1816 estate map referred to earlier.
2
(3-5) Two versions of the 1798 A.R. Nevill map. I find that this clearly shows a road proceeding from Kilmolin southwards to Annacrivey, and thereafter connecting to the military road. It is possible that what is being illustrated here was a projected roadway but what is shown is undeniable. It cannot be simply explained away especially in conjunction with other maps. I find this shows a road, or track, along the disputed route. My inferences as to what occurred are set out later.
(7) The 1816 John Taylor map of the environs of Dublin. I find this map, unusually, shows a by-road as parallel faint pecked lines extending westward from Blackhouse Lane across the valley to Loch Bray. This is again to be contrasted with the Powerscourt Estate map and the subsequent Ordnance Survey maps. The detail appears to be taken from A.R. Neville’s map. There is a milestone “10” depicted along the line of the route which Mr. Goodbody says would be unlikely on a private road.
(9) A map from G.N. Wright’s Guide to County Wicklow 1822. This has written commentary which reads:-
“From Lough Bray there is a tolerable good road through the vale of Glencree in front of the barrack and along the foot of Glasskenny Mountain to Enniskerry a distance of about four miles passing Black house Killmalin and Killganon and joining the high road at Enniskerry Bridge.”
This map is of some significance to the defendants’ case, in that it would appear to illustrate a route, referred to in the guide book, along a route which may be consistent with that illustrated in the two Neville maps of 1760 and 1798. However the commentary is too imprecise to raise any inference; it might equally refer to the Military Road as to any other road.
(11) The Ordnance Survey six inch map 1839. I do not at all accept the defendants’ experts’ evidence that the line of a road is or could be shown by a single line which might depict it as being “fenced on one side” or informal. In my view, it is more probable that this line is illustrative of a stone boundary wall. I consider that any proposition to the contrary would be inconsistent with the accepted norms. I find it impossible to believe that this, single line, could be intended to show a track, whereas other single lines on the map should be read as depicting boundary walls.
(13) The second edition of the 1885 Ordnance Survey six inch map again shows a single line; in my view, this demonstrates a boundary wall. What is significant, however, is that this 1885 map shows as does the 1816 estate map, that Canavan’s Cottage is actually on the line of the route. Therefore, the 1885 map shows a boundary wall proceeding from the southern point of Annacrivey wood southwards and then westwards to Canavan’s Cottage where it stops. I consider this is not at all consistent with the continuance of a track or lane to a terminus on the public road. Different considerations arise however with the following maps relied on by the defendants.
2
(15-17) The Ordnance Survey one inch maps of 1904 and 1909 do show a track or path running through the disputed section. However, they do not show a double continuous line along the route, but rather, one continuous line and one broken parallel line. This would suggest a pathway running beside the boundary wall. However, I consider that this is not supported by the Ordnance Survey twenty five inch map for 1909 which simply shows a stone boundary wall.
(19) In my view the Ordnance Survey half inch maps of 1917 and 1918 are supportive of the defendants’ case in that they undoubtedly show a double lined pathway along the disputed route.
(21) I would make a similar finding in relation to the Ordnance Survey half inch map of 1932.
(23) I find the Ordnance Survey half inch maps of 1945 and 1946, show a path or laneway along the route in question.
(25) The Ordnance Survey maps of 1948 – 1951 also show a path or laneway.
(27) Finally, the Ordnance Survey map of 1975 again shows the route as a double line leading from Blackhouse through Annacrivey to the Military Road at Curtlestown.
Conclusions on the expert evidence as a whole
148
148. In my view, the 1760 Neville map shows either a projected or actual route; but what is shown has no destination. It is not conclusive evidence of a right of way. The path of the route depicted does not traverse the entire of the disputed route. But the 1798 Nevill map does, as a matter of probability show a track, lane or road along that entire route. What was shown on this 1798 map (and on the Taylor and Wright maps) simply disappears on the 1816 estate map and all the Ordnance Survey maps to 1913. What inference should a court draw? In my view, this was not a simple situation of a road falling into disuse. On the basis of the many later maps beginning with the 1816 Powerscourt Estate map what once apparently existed, simply no longer existed. It is no longer a road at all. It is true, of course, that “once a highway always a highway”. But this dictum presumes that there was a highway from the beginning. The mapping evidence as a whole is in my view inconsistent with there actually having been a public highway. Had there been one, as a matter of high probability, it would have been identified in the Powerscourt title records or mentioned in Grand Jury Presentments, or in county or other local records. It appears in none of these. The fact that a path or road could actually “disappear” from maps for a century allows for only two possible conclusions; first; possibly it was a highway which was actually removed perhaps to assist in constructing the military road, or second, as I find more probable it was at all times an estate access track. Either of these conclusions is inconsistent with the defendants’ case. If there had been a highway there why was there no indication of any remnant of its existence or even its remnants in all of the Ordnance Survey maps of the nineteenth century? In the light of the preponderance of the evidence I think the milestone on the John Taylor map evidence is far too slim a thread on which to hang the theory of a public right of way.
149
149. I find it more probable the route was an estate track, it follows then that it was not a public highway. But even if this finding was incorrect, I do not think the defendants’ case advances as a result. It is true, of course, that a public right of way cannot generally be extinguished by simple abandonment as O’Hanlon J. pointed out in Carroll v. Sheridan [1984] 1 ILRM 451. The maxim is “once a highway always a highway”. There cannot be a presumption of extinction. But in Representative Church Body v. Barry [1918] 1 I.R. 402, where an alleged highway had been stopped, the public excluded for seventy years and a new road made, Dodd J. held that he could presume the necessary legal steps had been taken to extinguish the highway under the Grand Jury Ireland Act 1836. Even if the route had been shown on some reliable evidence to be a public highway, I would be prepared to make a similar presumption on the very strong evidence here. Almost one hundred years absence from the maps is a very long time indeed. It must be seen in the context of the building of the military road on a location very close to the route.
The 1816 Estate Map and the maps from 1816 to 1822
150
150. Taking the 1816 map as the more probably reliable, I infer that as and from 1816, (and very likely before then, from the inception of the Military Road), there was in fact no road or track along the route. I consider it more probable that the Taylor, Duncan and Wright maps were derived from the earlier Nevill maps (probably that of 1798) and consequently more probably did not show what was on the ground by 1816 if not well before. Taylor, Duncan and Wright were guide maps for travellers rather than estate survey maps. It is very improbable such a remarkably detailed estate map from 1816 would have failed to show a public road running through the Powerscourt Estate, if one then existed. It certainly showed every other detail. The Ordnance Survey maps following show a bare stone wall standing along the route for almost precisely one century thereafter. Not only this, but those maps show that Canavan’s Cottage or a predecessor to it was situated across the route. I find this also negatives the defendants’ case insofar as it is said that there existed a right of way during the remainder of the 19 th century. The route was simply blocked. It cannot have been a right of way therefore.
151
151. I find it probable that a track was again constructed at the beginning of the last century. It is clearly illustrated in the Ordnance Survey maps of 1912, 1917, 1918 up to 1950. Much later, during Norman Walker’s time it became covered at some points with furze nearer to Canavan’s Cottage.
152
152. The difficulty of all this, from the defendants’ point of view, is that there is no evidence from which it can be inferred that there was dedication, other than the fact that the lines showing a road path or lane were depicted on the Ordnance Survey maps later. When one goes to the Ordnance Survey map for 1981, eight years prior to the afforestation, there is no continuous connection shown between the termini, but rather, a single line depicting a stone wall. The track has again entirely disappeared. The 1987 1 inch to 1 mile Ordnance Survey Dublin District map; the 1990 Ordnance Survey Heritage Map of Wicklow; and the 1994 Ordnance Survey Map all show the same. If the route was an “old road”, it is surprising that the first reference to it in this way is in a map of Dublin and West Wicklow mountains published in 1990 by East West Mapping.
Findings on the evidence as a whole
Actual dedication
153
153. The following findings are summarised having regard to the legal criteria outlined earlier in this judgment in the discussion of legal principles.
154
154. The plaintiff as a matter of probability has negatived any act of actual dedication. The evidence was that there had been no such actual dedication at any point during the Powerscourt dominion over the lands or at any point subsequently. It was open to the defendants to seek to controvert this, but they did not do so.
Public acceptance
155
155. There is no evidence of public acceptance or public expenditure, a powerful consideration in itself ( Connell v. Porter).
156
156. I consider that the plaintiff has negatived the probability of inferred dedication up to the year 1950 when the defendants’ evidence of user begins.
157
157. Were there then any acts or inactions consistent with “inferred dedication” by Mr. Norman Walker or by the plaintiff? Have the defendants established that by virtue of long user, a court should infer dedication?
Evidence of public user
Tolerance of occasional trespass by Norman Walker
158
158. In the late Mr. Norman Walker’s time, the question of land use was by no means as sensitive as it subsequently became. Hill walkers were far less frequent. There was no friction of the kind that has arisen in the last three decades. Access to remote parts was less easily gained by public transport. Private cars were a rarity.
159
159. I consider the evidence establishes more probably that during Mr. Norman Walker’s time, he did not always raise significant opposition to any occasional groups as took a shortcut through his property. But the evidence did not in any way suggest that hill walkers or others camped on his land, or used it in any way other than as a shortcut down towards the Military Road; this was tolerance, not acquiescence. The evidence here is sporadic use by occasional hill walkers and local people, and certainly nothing in comparison to the situation from 2002 onwards. There is nothing in these events which posed an obvious challenge to his title.
160
160. There was no evidence that this route was used as a place of public recreation. Was the public user nec vi, nec clam, nec precario? Can mere tolerance by an owner of hill walkers crossing his or her land give rise to inferred dedication on its own? This question simply cannot be divorced from the nature of the user and the extent to which that user was obvious and “as of right” ( Folkestone Corporation v. Brockman).
161
161. In fact the facts in the case bear some resemblance to Bruen v. Murphy. In that case persons quite frequently used the disputed route as being a shortcut. Mc William J. did not consider that such user was sufficient. It will be recollected that he found that there was no actual dedication of a public way and that he could not assume that casual use by members of the public for dumping, rowdiness or occasional passing across it between the two roads was such that he should imply the assertion of a public right of way with the knowledge and acquiescence of the landowners.
162
162. As was pointed out in Lissadell, long user, or perhaps in certain circumstances, even quite short user (such as eight years), may be evidence from which an inference may be drawn. But this entirely hinges on the nature of the user. I would not wish it to be inferred that the basis of this Court’s finding is purely on the basis of some concept of “toleration”. That is simply too vague a test. The issue of toleration must be closely linked to that of the nature, intensity and frequency of the user. The true test is whether the user is not only nec precario (without permission), but whether it is nec clam (open or obvious); for a defendant to succeed; it must be obvious to the owner as being a direct assertion by the public of a user as of right. Paraphrasing the dicta of O’Leary J. in Collen much of the earlier use here, during Norman Walker’s time, might be seen as neighbourly convenience; not to be seen retrospectively as giving rise to a public right of way. Put another way, the level and nature of the user is insufficient; the level of toleration does not show acquiescence.
The owner’s state of mind
163
163. The evidence of occasional encounters with the late Mr. Norman Walker up to 1980 is in my view, sufficient only to demonstrate that on occasions, when hill walkers encountered him, he raised no objection either out of politeness or because it would have served little purpose because the incursions were so transient and insignificant. But that is not a basis for seeking to establish acquiescence or public user as of right based on long user. There is no evidence of challenge to the owner’s rights. There is no public expenditure or public involvement with the land as in Cornell v. Porter. The evidence simply does not go so far as to establish that Norman Walker was an acquiescent owner. In fact it established that he became “agitated” when it was suggested there was a public right of way across the land in 1948. Applying that “subjective test”, as to his state of mind, I consider that the evidence falls short of what is necessary to infer dedication also. The user here in any case was not of right. (See Folkestone v. Brockman cited earlier). As regards the state of mind of the users, any objective assessment of that evidence can only be consistent with the view that they were tolerated, not permitted (see Collen v. Petters).
164
164. As is indicated in Collen v. Petters, the state of mind of the user may sometimes be material evidence as to whether the users were taking advantage of permission. There is no evidence of implied or express permission. Insofar as that evidence relates to Norman Walker’s state of mind, I do not think it goes to establish that he was acquiescent in circumstances of brief encounters between himself and walkers on an occasional basis. The late Mr. Walker did not live at the Old School House, but rather, at Annacrivey House. There is nothing to suggest that there was any assertion of user as of right during Mr. Norman Walker’s time. It cannot be said that the use by the occasional hitchhiker was either “notorious” or “obvious” ( Connell v. Porter). Much of the user evidence has a strong “local” connection where witnesses obviously knew Norman Walker to see.
The plaintiff’s actions and attitude from 1980 onwards
165
165. The evidence regarding the plaintiff’s actions from 1980 is considerably stronger from his point of view. It establishes that he sought, on not one, but on many occasions, to re-establish boundary fences and that he erected signs indicating that trespassers should keep out. The signs were pulled down. So too, were the fences. Their meaning was clear to everyone, as shown by the hostile actions of other persons.
166
166. I do not think that the evidence in the first two decades of the plaintiff’s effective control (from 1980 onwards) is such as to establish any user which was “notorious”; it fell precisely within the same category as Bruen v. Murphy except here, there were hikers and hill walkers taking shortcuts through the land, rather than those categories described in that authority. It would be trite to observe that the witnesses are a rather close knit group with connections though friendship and through the Walking Association. The use was not continuous; it was occasional. It was not “obvious” in the sense of being a challenge to the owner. It was not “as of right”. When the plaintiff encountered walkers, he remonstrated with them.
The period after 2002
167
167. As and from 2002, the actions of the defendants or others was such that it must have been obvious to the plaintiff that use adverse to his title was asserted. In order to defeat the title of a landowner, such user should be of such a definite and positive character as could leave no doubt in the mind of a landowner alerted to his rights that use adverse to his title was taking place or being asserted. This was undoubtedly the case from the time when the pamphlet was first published in 2002 and then in 2004 when the walks began. But both these actions were met with opposition. A single act of interruption by a landowner is much more sought upon the question of enjoyment than many acts of enjoyment; per Park B; Poole v. Huskinson (1843) 11 M. & W. 823 at p. 830. In 2002, the plaintiff threatened to sue the authors of the pamphlet. From 2004 onwards, the plaintiff actively resisted and obstructed any entry on the land by hill walkers or members of the Enniskerry Walking Association. I have already dealt with the historical and mapping evidence.
168
168. Taking all the evidence together, and viewed in all the circumstances, I find the evidence and each part of it falls significantly short of inferred dedication and that that part of the counterclaim cannot succeed. Insofar as the plaintiff may have contended otherwise, I am not persuaded that the law states that a public right of way must necessarily lead to a public place ( Attorney General v. Antrobus [1905] 2 Ch. 188; Williams-Ellis v. Cobb [1935] 1 K.B. 310). There is no rule of law either that a public right of way must necessarily connect two other public highways. It may lead to a dead end or cul de sac or beauty spot. But this is by the way. The evidence here is that at one end, the claimed right of way is and was blocked by Canavan’s Cottage going back as far as 1816; at the other end, the route terminated at the boundary of Mr. Geoghegan’s land where there is a lane which has not been shown to be a public right of way. The existence of an effective cul de sac on both ends of the route renders the route effectively landlocked. This contraindicates a right of way. The failure to join other interested parties to the proceedings also prevents the Court making a finding in the defendants’ favour. The evidence did not go so far as to establish that the route held the local reputation of being a right of way. I do not think it is sufficient in any way to establish that a public right of way ever existed or should be inferred. Finally and most importantly I bear in mind the weight given to user evidence by the ordinary public as compared to public use, repair and maintenance in Connell v. Porter. The Court there specifically laid emphasis on expenditure, maintenance and repair; that is use by the public authorities. Other use by the bar owner and the bar customers was weak and insufficient. I find that the plaintiff succeeds on this aspect of the case.
169
169. I turn now to the other claims.
Trespass
170
170. Insofar as there is a claim for damages for trespass at all, it appears to me that such trespass occurred so long ago and was so limited and minimal so as not to give rise to any award for damages.
The wrongful interference with the land.
171
171. The claim for damages for wrongful interference with the plaintiff’s lands and for slander of title has been withdrawn.
Assault
172
172. There was never a claim for assault and consequently that does not arise.
The claim for injunctions
173
173. I do not consider that the evidence is sufficient to justify the granting of a quia timet injunction against the defendants either. There is no evidence of any proven risk of substantial danger or of repeated trespass. Such an order, generally to prohibit an intended act, or the repetition of wrongful acts, can only arise when there is a proven substantial risk of danger Szabo v Esat Digifone [1998] 2 I.L.R.M. 102 at 111; see also Attorney General (Boswell) v. Rathmines and Pembroke Joint Hospital Board [1904] 1 I.R. 165, in particular, the judgment of Charleton V.C. at first instance. The Szabo test has been subsequently approved and applied in other authorities ( Minister for Arts, Heritage, the Gaeltacht and the Islands v. Kennedy [2002] 1 ILRM 94). The expiry of time, and the absence of any repeated conduct are such here that there is no sufficient evidence now, that would warrant the making of any such order. Indeed, any act of trespass would have to be serious so as would warrant the granting of a quia timet injunction. I do not consider a basis for this has been established.
Jurisdiction for a negative declaration
174
174. However, the situation with regard to a declaration is distinct. The facts show that the defendants were officials of the Enniskerry Walking Association. They described themselves as such. The effect of a declaration is that it states, in negative terms, that the defendants and those engaged in the conduct and asserting the same interest have no right to cross the plaintiff’s land. There has been a clear challenge to the plaintiff’s assertion that no right of way existed. The acts of the defendants in crossing the plaintiff’s land without permission were acts of trespass. His title to the land having been challenged, the plaintiff was entitled to rebut that challenge in law. The declaration then can be seen as serving a useful purpose from the standpoint of clearing the plaintiff’s title.
Who will be bound by the decision?
175
175. The question arises as to who will be bound by the declaration. The defendants first sought to urge in their pleadings that they had no role in relation to other persons not joined or not named as notice parties. But later they sought to assert through their counsel that, even if the Court made a declaratory order, it could be binding only on the named defendants and no other parties. Passing over the question as to how counsel for the defendants might make a case for parties not joined in the proceedings (or why he would wish to do so), it is necessary to consider whether there may be other parties who were “privy” to the defendants’ case. The term requires some explanation. Privity means something more than being interested in the outcome. It must involve such interest as would enable the privy to have a voice or say in how the proceedings are, or will be concluded (per O’Donnell L.J.; Shaw v. Sloan [1982] N.I. 393 or 410 (C.A.)). On the evidence I am unable to establish whether any persons other than the defendants are de facto parties. Could other persons who were involved in the preparation, assertion and identification of the defendants’ case; whose interests coincide entirely with the defendants’ stance and who are on notice of the proceedings be bound by an order made against the defendants? On this, the following points might have been relevant. First, letters written prior to the proceedings clearly indicated that the first named defendant was the Chairman and the second named defendant was the Secretary of the Enniskerry Walking Association. Second, one letter, referred to earlier, specifically speaks of the evidence which “we”, that is, the Association, had gathered. Third; another affidavit sworn for the original interlocutory motion (but not then opened to the Court) from Mr. Albert Smith, (also a member of the Association). Mr. Smith and Mr. Kevin Warner (a witness in the plenary hearing) were the authors of the pamphlet to which reference has been made earlier. It is necessary to look precisely at the relief that is sought. The plaintiff seeks a declaration the defendants were not entitled to enter on his lands; an injunction restraining them or other persons having notice of the order from entering thereon, a similar order restraining the defendants or other such persons from asserting or claiming that the lands were subject to a right of way or from otherwise slandering the plaintiff’s title and damages against the defendants for trespass, wrongful interference with the lands and slander of title. Clearly, at all times, the defendants were acting in their capacity as officers of the Association. There is evidence that other members, Mr. Albert Smith and Mr. Kevin Warner were deeply involved in preparing the case. The evidence might be seen as showing at least prima facie evidence of privity of interest between the defendants and those other members of the Enniskerry Walking Association who were engaged in the preparation and advancement of the case.
176
176. But no other persons were joined as parties; the plaintiff never sought a representative order. On this basis, therefore, I do not consider an order under O. 15, r. 9 of the Rules of the Superior Courts can now be made making the declaration binding on other persons or joining other defendants. The relief being granted is simply a declaration; were a court to grant an injunction different considerations might arise; if third parties ignored a court order or procured or assisted a breach of that order it might be quite different again. But that is not the situation in this case. Were an application for contempt of court brought for assisting the breach of a court order other considerations might also arise. But what is granted in this judgment is a declaration simpliciter.
Is the plaintiff entitled to a judgment in rem?
177
177. The question then arises as to whether the plaintiff is entitled to a judgment in rem.
178
178. Such a judgment may be defined as a judgment of the court of competent jurisdiction when it determines the status of a person or thing as opposed to the particular interest that a party to the litigation has in it. (See Castrique v. Imrie [1870] LR 4 HL 414 at 427) (See generally Halsbury, 4 th Ed., (3) para. 162). A judgment in rem pronounced by a court of competent jurisdiction is conclusive, not only between the parties as in the case of a judgment in personam, but against the whole world (see Castrique v. Imrie). It will, in general, prevent a claimant from raising the same issue in the same cause of action. See D. v. C. (Costello J.) [1984] I.L.R.M. 173 at 192 and generally Res Judicata and Double Jeopardy; McDermott, Butterworths 1999.
179
179. Here, is it apposite to recollect the rule in Henderson v. Henderson [1843] 3 Hare 100 and also Ahmed v. Medical Council [2003] 4 I.R. 302. Repeated actions raising the same questions can be an abuse of court process, especially when the questions could have been raised in the first proceedings brought. Insofar as this case had a long duration, both sides had ample opportunity to raise and pursue any relevant evidential issue which they might have wished to contest, or to counterclaim. This judgment describes what matters were proved, and those which were not. Subject to entirely new evidence therefore, the outcome may, in addition to the issue between the parties themselves, possibly have a strong bearing on the situation of any person who might enjoy privity of interest with the defendants. But in the absence of any application as to joinder, I do not consider any such persons can be named or identified as parties in these proceedings; nor can they be ipso facto bound by the declaration granted by the effect of this judgment.
The declaration is not in rem
180
180. The question then arises as to whether an order in rem can be granted as the plaintiff seeks. 1 am not persuaded that it can be. The case is a lis inter partes. The rights which can be determined are only those between the parties and perhaps any person shown to be privy to the interests of the parties. An order in rem would be binding upon the whole world. The Attorney General granted permission for the matter to be litigated. But, just as in Lissadell, this will not give rise to a res judicata as a judgment binding on the public at large (see the authorities cited by McMahon J. para. 309 – 312). I do not interpret the Attorney General’s permission, therefore, as being tantamount to being a de facto relator. It is only the Attorney General who can act in the public interest and, consequently it is only in circumstances where the Attorney General granted a fiat or is a party that a judgment in rem properly so called can be granted.
Conclusion
181
181. For the reasons indicated earlier, the declaration to be granted to the plaintiff against the defendants is that the route in question is not a public right of way. I will hear counsel on the question of costs which arise from this judgment.