| NICh 2||Ref:||KEE10910|
|Judgment: approved by the Court for handing down||Delivered:||02/04/2019|
|(subject to editorial corrections)*|
(i) An invoice from Bio-Friendly Ltd dated 3 December 2015 for €425. This was to fix the slurry tank system. At the exchange rate applied at the County Court the sum amounted to £372.80 which is largely the same rate as today.
(ii) An invoice from Hamilton Contracts dated 4 December 2017 in the sum of £2,610 for the remedial work over the appellant’'s lands after the damage to the pipe.
(iii) An invoice from Northern Ireland Water dated 19 December 2016 in the sum of £95.
(iv) A quotation from Hamilton Contracts dated 30 November 2017 in the sum of £570 including VAT to cover grass seeding which was then required to the land disturbed by the repair works and which was to be carried out in spring 2018. This additional work was put on hold as the appellant lodged an appeal and there is an issue as to whether it is now necessary which I will discuss later in this judgment.
(v) General damages. The County Court awarded £750 to reflect the distress, inconvenience, trespass and interference inflicted upon the respondents in their family home for almost 12 months during which period the pipework in respect of the easement was damaged and the appellant sought to interfere with that system.
Brief history of proceedings
Folio no: 26087
Registered owner Leo Fox and Pauline McCaughey
Subject folio nos: 36747 and 35943 County Tyrone
Registered owner: Joseph John Toner and Carmel Rose Toner
We Leo Fox and Pauline McCaughey the above registered owners of the land comprised in 26087 County Tyrone in consideration of £500 (receipt acknowledged) do hereby grant unto John Joseph Toner and Carmel Rose Toner their heirs, executors and assigns the owners and occupiers for the time being of the lands comprised in 36747 and 35943 County Tyrone the following right:
(1) The right to install, connect into, maintain, use and when necessary replace the pipe which is shown coloured red on the map attached and the free running of water in and through the said pipe.
(2) The right to enter folio 26087 County Tyrone at all reasonable times with or without servants, agents or workman and all necessary machinery for the purposes of inspecting, maintaining, repairing, cleaning and renewing the said pipe provided always that the said John Joseph Toner and Carmel Rose Toner their heirs, executors, administrators, successors and assigns the owners for the time being of folios 36747 and 35943 County Tyrone shall maintain the said pipe in good repair and condition and in the inspection maintaining, repairing, cleaning and renewing thereof to do as little damage as may be practicable to the lands contained in folio 26087 County Tyrone and restore the surface of the said lands without reasonable delay.”"
(i) The evidence of the first named respondent and his witnesses was wholly more compelling than that of the appellant and her daughter. I accept that the respondents have endured extreme difficulties due to the behaviour of the appellant. I also accept that Mr Toner was on good terms with the Fox brothers and not in dispute with them as suggested by the appellant. I accept that the builders, Hamilton Contracts, had to do the remedial work. This was supported by the evidence of the engineer Mr Shields.
(ii) I accept the evidence of the NIEA witnesses that there was no evidence of harmful pollution despite the constant complaints of the appellant and her daughter. This position was clearly established in the oral evidence and verified by the detailed correspondence sent by NIEA to Mrs McCaughey which makes the position plain.
(iii) By contrast the appellant did not present as reliable or convincing to me in any respect. It was clear to me that she and her daughter harbour an animosity towards the Toners. They have therefore embarked upon a campaign against them illustrated by the many complaints made to NIEA and the blocking of the pipe.
(iv) When the express grant was signed the Toners owned the relevant lands. The grant attaches to the land in folios 36747, 35943 and against the servient tenement 26087. The agreement was made with the Toners and their heirs’' executors and assigns. The terms of the grant at (1) specifically covers the respondents connecting into the pipe which runs over the appellant’'s lands. Part of the land was then hived off the dominant tenement into a new folio comprising the site. Therefore, the site had the benefit of the easements which attach to the dominant tenement. It is clear from the correspondence that Mrs McCaughey and Mr Fox knew about the site and so there can be no valid argument made about change of user. The Land Registry documents signed by PA Duffy formalise the position of the site and do not substantiate the defendant’'s claim that there is no easement in favour of the Toners.
(v) I find the appellant’'s evidence totally incredible in relation to her having received money from the new site owner Mr Bloomer for an easement and not having received the £500 from the Toners. There is no evidence of this and the assertion is contradicted by the correspondence I have seen, the grant itself which refers to receipt, and Mrs McCaughey’'s own affidavit.
(vi) The behaviour of the appellant and her daughter blocking the pipe with cement was absolutely reprehensible. Even if the appellant had some valid point this was not the way to resolve it. Neither the appellant nor her daughter displayed any insight into their actions. The daughter of the appellant also presented in a highly aggressive manner when giving evidence.
(vii) I accept that some issues were raised about the map but these have been clarified to my satisfaction during these proceedings. In particular I note correspondence to Mrs McCaughey from Land Registry stating that a map was provided. Mr McNamee was also able to confirm the position after contact was made with the Land Registry. I am satisfied that a map was attached. I am also satisfied that the route of this easement over the appellant’'s land is clear. I therefore reject the appellant’'s case on this point.
(viii) I am satisfied that the respondents are entitled to the benefit of this positive easement over the neighbouring land. That has been the position for many years, formalised in the grant of 22 June 2006. Mrs McCaughey did not dispute that she signed the grant with the Toners. After that the two properties used the discharge pipe for around 9 years without issue. I therefore cannot accept the implication that the express grant was intended to cut off the Toners discharge route and replace it with a discharge route for the site alone.
(ix) The easement is registered in relation to 50A Sessiagh Scott Road and also 50 Sessiagh Scott Road as that property is contained in folios 36747 and 35943. It is also registered as a burden on Mrs McCaughey’'s lands contained in folio 26087.