THE HIGH COURT
IN THE MATTER OF:
FOLIO 15054 OF THE REGISTER OF FREEHOLDERS COUNTY DUBLIN
AND IN THE MATTER OF:
SECTION 19 OF THE REGISTRATION OF TITLE ACT 1964
AND IN THE MATTER OF:
THOMAS NOONE, THE DECEASED REGISTERED OWNER OF SAID FOLIO, AND CATHERINE NOONE, THE PERSONAL REPRESENTATIVE OF THE SAID THOMAS NOONE, DECEASED
AND IN THE MATTER OF:
AN APPLICATION BY PATRICK J NOLAN AND MARY CARMEL NOLAN
CATHERINE NOONE (LEGAL PERSONAL REPRESENTATIVE OF THOMAS NOONE, DECEASED)
PATRICK J MONAGHAN
TRANSCRIPT OF JUDGMENT DELIVERED BY THE HONOURABLE MISS JUSTICE MELLA CARROLL ON 16TH JUNE 1989
An unusual feature of this case is that the person who is entitled as personal representative of the registered owner, Mrs Catherine Noone (the first-named Respondent) has opted not to take part in these proceedings. Mrs Noone was the person against whom adverse possession was claimed during most of the twelve-year period. She has not put in any affidavit contradicting the Applicants' averments and she made no statutory declaration as to possession and occupation of the disputed triangular plot when it was sold to the Respondent. As in any other claim of. adverse possession, the facts of the case are extremely important.
Mr Braun, who came back from South Africa to give evidence, said that he was the first purchaser of a site from Mr Noone, the registered owner, on this small estate of five houses. At the time he bought the site the land surrounding it was a wilderness. Mr Braun said that when he met Mr Noone on site for the purpose of indicating the boundary, Mr Noone stood where the gate post is and put a pole in the ground and pointed across to the nursery on the opposite side of what is now the road, thus including the triangle, and then said that he needed space for storage and brought the line of the boundary around to exclude the disputed triangle. Mr Braun said he thought because the triangular plot abutted his site that it would form part of his property when the building was completed.
The triangular plot was used by Mr Noone for his building operation. He stored on site builders' materials such as blocks, bricks, timber and so on, depending on what stage of the building operation he was at, and he had a builder's but on it.
Once Mr Noone had indicated the site to Mr Braun, Mr Braun and his father-in-law, Mr Donaldson, planted over one hundred trees. This was in 1967. Mr Braun said that he planted the trees within-the boundary indicated to him by Mr Noone. He said there was no and never was a fence between the triangle and the Braun site. The trees were not planted as a boundary; they were not planted in a straight line but were staggered. It was possible to walk through the trees to the triangular plot.
I accept that, even when Mr Noone was carrying on his building work, Mr Braun kept the area clear on the triangle side near to the trees which he had planted. When the building operations were over - this was in 1971 - Mr Braun asked Mr Noone to remove from the site the builder's hut and the building materials, and he had to ask several times before this was done. The builder's hut and the materials were removed, apart from some steel girders which were left lying in a ditch alongside the hedge which formed the boundary with the second-named Respondent's property. Not all the rubble was removed despite Mr Noone being asked to remove it so Mr Braun removed it himself by hand and took it by car to the local tip. That was early in 1972. Mr Braun then commenced tending the area.
As to his state of mind, Mr Braun said he assumed he had a right to the disputed triangle. He understood that it was the remainder of the sub-division. Each site was about one acre. He said that the triangular plot was a natural abutment to his property, that if Mr Noone had come back to the triangular plot in 1974 he (Mr Braun) would have objected as he felt that the plot was part of his property. Mr Noone had obviously lopped the disputed triangle off for a particular purpose and never appeared on it again after he moved off in 1972.
I completely accept Mr Braun's account. Particularly in the absence of any claim to the contrary by Mrs Noone, I consider that the only inference to be drawn is that Mr Noone, having originally intended to include the triangle as part of Mr Braun's site, decided to exclude it for the purpose of using it as a site office. Once the building operation was completed, Mr Noone had no further intended use for the plot and he discontinued possession. I do not consider that leaving the steel girders lying in the ditch indicated that Mr Noone intended to come back. The very fact that the girders are there today indicates to me that the cost and trouble of removing them was more than they were worth and they were also effectively abandoned. As far as Mr Braun was concerned, he had the animus possidendi. Mr Braun considered that the place was his as an accretion to his garden once the building operations were over and once Mr Noone moved out. I accept the evidence that from early in 1972 Mr Braun tended the triangular plot and kept it as part of his property. I do not accept the evidence of the Respondent's witnesses that the disputed plot was not tended until the 1980's and I resolve this conflict of evidence entirely in favour of the Applicants.
When the Nolans came to inspect the property before buying it, the plot looked as if it formed part of and was incorporated into the garden. The absence of a boundary fence beside the road is not extraordinary. One often sees American-style open-plan gardens where the gardens are beside the road with no obvious fence or boundaries. The Braun site was itself triangular and this small triangular plot was a natural tip of the triangle. There was no boundary fence at all from the gate post along the side of the triangle, the trees were staggered and there was a path through the trees.
Mr Braun said that he did not specifically mention the triangular plot to the Nolans because he had got so used to treating it as his own.
As to the Nolans, Mr Nolan said that he saw this plot as part of the entire site, that it was in just as good a condition as the rest of the site. Mr Nolan believed that Mr Braun owned the plot and understood it to be part of the sale. He said that he did not examine the maps closely. It was not until the planning permission issue arose about 1986 that M r Nolan realised there was another claim to the triangular plot. Mr Nolan thought the disputed plot was his and he treated it as such. The Golden Leanders were planted in the triangle in the belief that it formed part of the garden.
There was a lot of time devoted to these trees but there is no dispute that Mrs Ryan purchased them for the Nolans. It does not matter one whit whether Mr O'Connor planted three of them or not. They all belonged to the Nolans and were planted for them on what they believed to be their ground. So the position was that until the planning permission issue arose the Nolans thought they owned the triangular plot. The Nolans had bought the house thinking that the plot was included in the sale and Mr Braun thought that he owned it.
The disputed plot was not included in the Deed of Transfer because nobody adverted to the title to it, but the Deed of Rectification which was subsequently executed vested Mr Braun's interest in the Nolans.
I do not consider that the letter written by Mrs Nolan in relation to the planning appeal casts doubt on these facts. The letter was written after the Nolans had discovered that Mr Noone was, in fact, still the registered owner of the plot and before they had gone to their solicitor for advice. As long as their state of mind during the twelve-year period was that they owned the triangular plot, the animus possidendi was present and I am completely satisfied that they had the necessary state of mind.
I am also satisfied that neither Mr or Mrs Noone gave authority to Mr Ryan to instruct Matheson, Ormsby & Prentice to make an offer to purchase the plot. I am also satisfied that none of the neighbours made any use of the site and that the comings and goings across the plot that were described by Mr O'Connor were non-existent.
There is no question here of the Nolans or Mr Braun using the property for a temporary or seasonal purpose until the time should come for carrying out a special purpose contemplated by the owned. There was no such purpose once the building was completed.
The registered owner abandoned this small plot which had originally been intended as part of site No.5. It was then factually incorporated into the garden of site No.5. Furthermore, it cannot be said that it was a plot which was incapable of use and enjoyment. It became absorbed into the garden as a natural completion of the site and was occupied exclusively by Mr Braun and then by the Nolans. Following discontinuance of possession by the registered owner, the occupants of site No.5 enjoyed exclusive use of the plot and to their knowledge no one else made any use of it.
On those facts I am satisfied that the Nolans are entitled to be registered as full owners of the triangular plot.
There was one further argument which I must deal with: that because the Deed of Rectification was not before the Registrar the Nolans cannot now produce it or rely on it. There is no merit in this argument. The appeal before me is one in which new evidence could be adduced and both parties have made full use of this facility by swearing further affidavits. I wanted to hear all relevant evidence and the Deed of Rectification is relevant.