High Court of Ireland Decisions

1. These proceedings were commenced by way of Ejectment Civil Bill on the title brought in the name of James Doyle, now deceased, in the Circuit Court, claiming possession of part of the lands of Busherstown containing 0.374 acres, situate in the County of Carlow, with the dwelling thereon, as shown on the map annexed to the Civil Bill and thereon edged in red.

The claim was unsuccessful in the Circuit Court and on the 1 February 1989, an Order was made by the learned Circuit Court Judge dismissing the Plaintiff's claim and ordering that the Defendants be entitled to be registered as full owners of the lands the subject of the proceedings. From this decision an appeal was taken by the then Plaintiff, James Doyle, who subsequently died on the 26 day of September 1991, and the conduct of the appeal has been taken over by his widow, Mary Doyle, as administratrix ad litem.

The property in question is a small plot of land with some derelict buildings thereon, triangular in shape and having a road frontage of about 300 feet. The other two sides of the triangle give onto extensive farmlands owned by the the Doyle family on one side, and on the other onto a site close to one acre in area on which stands the dwellinghouse of the Defendants and also two very extensive outhouses used for storage and for work on machinery and vehicles.

Photographs put in evidence show the disputed plot as being something of a wilderness and indicate that it must have been left uncleared, untilled and uncultivated for many years past.

It was accepted for the purpose of the case that the title to the property was formerly vested in James Doyle and his predecessors in title, and the Defendants undertook the onus of establishing that the Doyle title to the lands had become barred by long possession on the part of the Defendants.

The first-named Defendant, Thomas O'Neill, (hereinafter, for convenience, referred to as "the Defendant"), said that he had lived on the adjoining site, where his dwellinghouse now stands, all his life from his birth, in April, 1938. When he was growing up there were two small cottages under a common roof on the disputed plot and these were occupied by tenants until the early-1960s, when the tenants were re-housed by the local authority and the cottages were then left vacant and gradually became derelict. There was also a third building on the plot, used as a garage for repair work by one of the occupiers of the cottages named Hutton and the Defendant said that in the 1960s he worked in the shed with Mr Hutton, who gave him a key of the door.

The gable wall of the garage building ran along the boundary between the Defendant's homestead and the disputed plot, and the Defendant said that he removed the gable wall in the 1960s to give easier access from his own site into the shed. He also obtained planning permission to build a new house on his own site in the 1960s and erected it fronting onto the road in close proximity to the disputed plot. He took in part of the disputed plot at that time to give a wider driveway into his own home, without objection on the part of the Doyle family.

The matter is complicated somewhat by the fact that while all this was going on, the said Defendant was working for James Doyle on drainage and excavation work, driving an excavator for him, and this would have involved bringing the excavator onto the disputed plot, as well as piping and other materials needed for the purpose of the work. From 1964 to 1966 the Defendant said that he worked on his own, and then put in another two years working for James Doyle from 1966 to 1968.

Around that period James Doyle bought a new excavator and it was agreed that the Defendant would drive it, pay the labour involved in the drainage work, and receive payment himself from James Doyle on a piece-work basis, measured by the number of perches involved.

This arrangement continued up to the early 1970s, at which stage James Doyle fell ill, and the Defendant bought the machine from him in or about the month of September, 1972, and branched out on his own. He said that he did a lot of drainage work from 1972 until the 1980s, with no further contact with James Doyle save when the latter came to the Defendant's wedding in 1974. Some of the evidence suggested that friendly relations between the two families were broken off around that time.

The disputed plot had been used for storage purposes for the excavator and drainage pipes during the Defendant's period working for James Doyle and continued to be used for such purpose, to some extent, after the Defendant set up on his own. The area used, on which some hard core had been laid down, was between the main road and the front of the cottages, which were located on that part of the plot nearest to the Defendant's own homestead. The Defendant said there was a low-loader regularly in that area; he also claimed that he removed part of the fence dividing the disputed plot from his own land at the back of the houses, and would sometimes drive a lorry into that area.

On a date in May, 1988 he came home and saw that the hedge had been pulled out along a length of about 20 yards at the back of the two houses. He went to his solicitor and started proceedings. No claim had been made up to then. A short time before, James Doyle or his son had said he shouldn't have machinery there. He claimed: "I said I have always had it there".

In response to cross-examination the Defendant said he never knew James Doyle owned the disputed plot -- he thought it was derelict. He described the garage as "good enough" and said he stored cars in it. He also kept a welder and tools in there, but it was now derelict and the roof was gone. he denied that in 1982 he asked Desmond Broderick who ws then cutting hedges for James Doyle, not to cut the hedge between the cottages and the road. He agreed that while he was working for James Doyle up to 1971/72, materials were stored on the land for his employer.

James Doyle said to him at some stage, with reference to the disputed plot: "You have your mother and sister, and should build a bungalow over there". He agreed that he had stored extensive quantities of materials and machinery on County Council lands on the far side of the road from his dwellinghouse. It was put to him that he was asked to remove it in 1982, and then asked John Doyle, (son of James), for permission to park on the disputed plot and was given permission, but he denied that he had sought permission.

He said he had constructed a drain from the disputed plot to his own lands to drain a bad area down in front of his house, and the piping was discoverable about 15" below the ground surface. Sometimes thousands of pipes were loaded and stored in front of the cottage.

The presence of the drain on the land in the 1988/89 period was confirmed by the evidence of Patrick Buckley, Engineer, but he was unable to say for what purpose it had been installed.

Patrick Dooley, who has worked with the Defendant off and on since 1969, said part of the old shed on the lands adjoining the cottages had been used for a time as a garage and the gable end had been removed. He remembered a car being resprayed there. It was about 20' wide and over 20' long. A van was kept there for carrying pipes and an engine was installed in it while in the garage. Some other repair work was also done there, using an extension cable from Mr O'Neill's house for welding and other work. He said: "We would come to the plot to get pipes, all things to do with land drainage. They were always on the plot -- on the way in to the cottages. The roof eventually blew off the shed." Referring to the scrap metal lying around on part of the disputed plot, he said: "Mr O'Neill could never throw away anything."

In cross-examination he said he did not spend much time on the O'Neill property or the land in dispute from 1969 onwards. The buildings on the plot were always derelict. In the 1969/70 period cars were backed in from the gable end of the shed and repair work was done.

The big sheds on the O'Neill property were built in the 1970s and had electricity installed, and repair work was done in them. He said he never went down to the narrow end of the disputed plot, and only operated in front of the cottages. For land drainage it was necessary to store pipes in reserve and they had "vast numbers" in front of the cottages. He was asked why they were not stored on Mr O'Neill's own land but was unable to give an explanation. The Defendant also stored materials in the County Council land across the road, over the years.

Working parts for the machinery were kept in the Defenant's own yard, and what was left on the disputed plot was only scrap.

Peter Lawlor has also worked for the Defendant from 1973 down to the present time. he remembered unloading pipes in front of the cottages in large numbers in the 1973-74 period. A jib for road drainage, about 30'/35' in length, was left in the area behind the cottages. He remembered some use being made of the shed for changing oil or repairs to vans. Scrap materials on the disputed plot included planks, buckets and pieces of iron.

John Byrne worked for the Defendant in the 1974-'79 period, but never worked on the disputed plot. Sometimes a lorry would be run into the open shed to keep frost off the glass. Materials would sometimes be brought in and left in front of the old cottages. On one occasion he saw a complete Ready-Mix plant in the area. It was not operational but was being stored there, and remained there maybe two years. He said that the Doyles stored pipes on the plot in the 1970s, in the open area in front of the two cottages.

Jimmy Lawlor worked as fitter-mechanic for the Defendant from 1981 and 1988. He worked in the big sheds behind the Defendant's house but would sometimes go onto the disputed plot in search of pieces of scrap metal or machine parts.

There were pipes kept there also and people would come in occasionally for pipes or for parts to remove from a disused lorry. Some weeks no one would come, some weeks three or four might come.

The evidence for the Plaintiff was as follows:-

John Doyle, son of James Doyle deceased, is now 31 years of age. He said his father was in ill-health since the late 1960s, and from 1981 he and his brothers were running the farm for their father. His grandmother lived across the road from the disputed plot and they would cross the disputed plot to visit her until they took to travelling on bicycles. He said he was always on good terms with the Defendant and bought parts for plant-hire machinery from him from time to time.

In 1982 he took part in cutting the hedge on the road frontage of the family farm, from his home which was about a 1/2-mile from the disputed plot and all the way down to the area where the Defendant lived. He said they were about to cut back the hedge dividing the disputed plot from the road when the Defendant asked him would they mind leaving it untouched, in order to hide the bad look of the derelict cottages, and he agreed. At that time, in the 1981/82 period, he said he saw no use being made of the plot, and there was no machinery on it. Shortly after the encounter about the hedge, he said the Defendant asked him could he throw some iron onto the plot, from a big demolition job in Carlow, and the witness again agreed.

There was not much at the start but it built up as time progressed. In the early 1970s his own family used the plot for storage of pipes. Around 1988 his father wanted the place cleaned up, and wanted to incorporate the plot in their field which adjoined it. This field was in grass and they wanted to erect a permanent fence for cattle around the entire field, including the plot.

He had a conversation with the Defendant after they started to remove the hedge. The Defendant said it was his property -- "that my father gave him the property -- told him he could build a bungalow". A couple of days later when he called on the Defendant the Defendant said he was claiming squatter's rights, and said he offered to buy it from James Doyle before he claimed squatter's rights. He said the Defendant used often say to him: "Tell your father I want to buy some land from him."

He would not agree that there were materials stored on the disputed plot prior to 1981, save materials belonging to his father. He said that the practice for those engaged on drainage contracts was to have delivery of pipes and other materials made directly to the site where the work was to be done.

He referred to the closure of a Carlow Steel Mill in 1981 and said the Defendant came into the field to ask him could he leave some steel he had purchased in front of the cottages while waiting for prices to rise again. The witness said that he agreed.

Michael Carroll was resident in one of the cottages on the disputed plot from birth in 1950 until 1958, and returned there again in 1964, since which time he had been in the employment of the Doyle family. Some pipes for the Doyle drainage contracts were stored on the disputed plot from time to time, in front of the cottages, but not in large quantities. The witness backed in a truck onto the site and took pipes out when needed. The cottages were vacated by the tenants when they were re-housed in 1963/64. He was back in 1978, searching for his mother's wedding ring, which had been lost when the family moved out, and at that time there were only a few pipes on the site. The roof was gone off the shed and he saw no machinery stored there. He had been in to the Defendant's yard on different occasions from 1980, for machinery parts and so forth, and saw no work in progress on the disputed plot, and no storage of pipes in large quantities. He said he travelled the road often and would have seen this if it were taking place. There was stuff building up on the plot from 1980 onwards.

He said he helped to clear out the Doyles' materials from the site in or about the year 1979.

John Brown was engaged on cutting back the hedge along the road frontage in 1982, along with John Doyle, and when reaching the disputed plot he recalled an approach being made by the Defendant to John Doyle. He was informed at the time by John Doyle that the Defendant had asked that the hedge between the road and the disputed plot be left untouched, to cover up the look of the houses on the plot, and they left it intact. The conversation between the two men appeared to be friendly.

John Holmes worked for the Defendant in the 1970-1980 period, as driver of plant-hire vehicles and on up to 1983. He also did some work round the Defendant's yard giving a hand to mechanics, about three days per month. He said he had never gone in on the disputed plot but could see into it when going in and out around the yard. He saw no pipes stored there, and said if there were pipes there in large quantities he would have seen them. He also said he had never seen a low-loader on the area of the disputed plot. He did see what he described as "some rubbish" thrown in on the disputed plot. The shed was roofless and in ruins. It was not possible to get in to the shed as there was a tremendous amount of rubbish in front of it, on the Defendant's own property. He never saw a lorry on the plot.

Desmond Broderick carried out work for the Doyle family as hedge-cutter from 1979 onwards. He lived in the vicinity. In 1981 he was dealing with the hedge between the Doyle field and the disputed plot, which had grown out of control, and cut it back completely from the plot side near the houses and lowered the level. In Autumn 1982 he was with John Doyle and John Brown cutting the front hedge between the road and the Doyle lands when the Defendant came out and spoke to John Doyle. The witness said the Defendant then asked John would he leave the hedge to covers up the old ruins of the house and John agreed. (It seems likely that in giving this evidence he was narrating what he was told by John Doyle, rather than a conversation he had heard in person, as the witness at the time was driving a digger).

He said that he passed that way often and never saw large vehicles or pipes on the disputed plot, or people working there.

Maurice Nolan, a lorry-driver who worked with the Defendant until losing his job in 1981, said he never remembered any work being carried out on the disputed plot. Nor was there much use made of the Defendant's own yard, where only two machines were kept. The roof and gable were gone from the shed on the disputed plot. Most of the pipes for the Defendant's drainage work went directly to the drainage sites, or across the road to the County Council land adjoining the Defendant's holding. He had helped in putting down hard core on the County Council land to accommodate heavy vehicles. He said he never went in on the disputed plot, and never saw others in there.

Martin Healy worked for the Plaintiff's family and later for the Defendant on land reclamation from 1974 to 1981, with some breaks in his employment. He said he was constantly in the Defendant's yard during that period, doing maintenance work, but was never in the disputed plot, nor did he see others working there. He helped to unload drainage pipes for the Defendant -- some came to his land and were kept in the yard, or on Council property, but never in front of the cottages. He said if the plot had been available it would have been used, and he was aware that it belonged to the Doyles. There was no access in his time from the Defendant's property into the disputed plot nor was there a very wide opening from the road onto the plot, as exists at present. As regards the shed on the disputed plot he said, "I just remember a ruin when I came there". He said that nothing was stored in the shed, and there was no gap to get from the Defendant's yard into the plot. He said he never saw anything on the site of the plot.

Myles Carroll, is a young man whose father worked for a time for the Doyle family as general handyman. He said that around the 1977-'78 period he accompanied his father when he was sent by James Doyle to take some slates off the derelict cottages on the disputed plot, for use in repairing some of the Doyle outhouses, and they did remove and take away a number of the slates.

Similar evidence was give by John Archbold, also employed by James Doyle to carry out building work. He said he was on the plot about twice around the 1979 period, having been sent by James Doyle to get roofing slates for yard outhouses. He went on such errands on two occasions with about six months intervening and met no one on either occasion.

Larry Doyle, another 'son of James Doyle deceased, said that the Defendant kept junction pipes on that part of the disputed plot known as "Hutton's Garden" in the late 1970s -- he could recollect getting into trouble for breaking some of the pipes. He said that there was no machinery there, save a tractor and trailer brought in on the plot while the Defendant was working for the late James Doyle. He said there was nothing on the plot when he went off to College in 1982, but loads of stuff there in the following year on his return, and it was increasing every time he came home. By 1988 it was very overgrown and there were heaps of scrap, and a gap leading onto the Defendant's property for some years prior to that date.

When decision was taken to incorporate the disputed plot into the adjoining field, the witness said that he went up to the Defendant one morning and asked him to remove the scrap which was on the plot. "I said -- (we) are going to take down those houses, get lads to take away those bits and pieces." Then I noticed the chain link fence erected. I asked the Defendant: "What's all this about?" He replied: "That's my property -- can't go near that. Your father gave that garden to me years and years ago".

The witness said: "By 1988 he had a substantial amount of gear on the plot -- no question about that." He agreed that by 1988 it was obvious that the Defendant was using it exclusively, but not before.

I make the following findings of fact at the conclusion of this review of the salient evidence in the case.

The proceedings refer to a small field comprising 0.374 of an acre at one end of which stood two small labourers' cottages. These were vacated and the tenants re-housed some time in the mid-1960 and after that time the cottages and adjoining shed lay derelict and became ruinous with the passage of the years. The open ground on the plot became neglected and overgrown and the only evidence of user of the plot from that time forward related to the derelict cottages, the area between the cottages and the road, and the area behind the cottages adjoining the lands of the Plaintiff on one side and the Defendant's holding on the other side.

At one corner fronting onto the main road and near the Defendant's homestead, the Defendant took in a piece of the disputed plot for the purpose of widening the entrance into his dwellinghouse, and put a good surface down and built a wall dividing off his entrance drive from the disputed plot. His entitlement to retain this small area of ground is not in dispute as he has exercised undisputed rights of ownership over it for many years past and the Doyle family claim that their father, James Doyle, freely consented to the small encroachment on the disputed plot which was involved in this exercise.

The original entrance into the disputed plot which originally served only the labourers' cottages, was opened up and widened after the cottages were vacated and from that time forward some use was made of the disputed plot for depositing drainage materials until required -- initially on behalf of James Doyle while the Defendant was engaged on contract work for him, and later by the defendant when he set up in business on his own.

I also accept the Defendant's evidence that he removed the gable wall of the old shed adjoining the cottages and made some use of the building for storage or casual work on vehicles, until the roof was blown away and the place became completely ruinous. At a later stage it appears that the Defendant also made an opening in the hedge separating his own land from the disputed plot in the area behind the cottages and old vehicles which were no longer roadworthy as well as other items of scrap metal were dumped on the disputed plot from time to time.

There was a conflict of evidence as to the extent to which the Defendant made use of the plot for these purposes, however. The Defendant himself said that thousands of drainage pipes were regularly stored in the area between the cottages and the road, but other witnesses who were regularly in the vicinity said that they saw little or no use being made by anyone of the disputed plot for any purpose whatever from the time the cottages were vacated.

Evidence was given, which was not disputed by the Defendant, that the Defendant made extensive use of County Council lands on the far side of the road from his dwellinghouse, for the storage of drainage pipes, and the Defendant also constructed two massive structures on the land behind his dwellinghouse which were suitable for storage and the carrying out of work on vehicles and machinery.

Little was done by the Doyle family during the relevant period to assert title to the disputed plot, but there was evidence that on three occasions in the late 1970's workmen employed by James Doyle were sent in to remove slates from the cottages for use in repairing roofs of outhouses on the Doyle farm. There was the further evidence, which I am prepared to accept (although disputed by the Defendant) that in or about the year 1982 when the hedge-cutting was in progress along the road frontage of the Doyle property, the Defendant asked that the hedge between the disputed plot and the road should be left in its overgrown condition to cut off the view from the road of the derelict cottages on the site.

I accept as accurate the evidence given by John Doyle that when the Defendant purchased large quantities of scrap material on the closure of the steel mills in Carlow in or about the year 1982 the Defendant asked him would it be alright to "throw some iron from the demolition on the plot" and that he agreed to allow him to do so.

I am also prepared to accept that the late James Doyle did, in all probability, make the remark to the Defendant to the effect that the Defendant had a mother and sister to provide for and should consider building a bungalow for them on the disputed plot, but I regard the remark as ambiguous and would not construe it in the manner suggested by the Defendant as an indication to him that he was free to do whatever he liked with the disputed plot.

The Defendant's claim to title is based on the assertion that over a continuous period of 12 years and upwards between 1972 and 1988 he effectively took over the disputed plot for his own exclusive use and benefit and retained it for his own use and excluded the former owner therefrom, nec vi, nec clam, nec precario.

During that time it was effectively a piece of waste ground with open access from the public highway; most of it overgrown, and on a large proportion thereof neither the Doyle family nor the Defendant, nor the servants or agents of either of them, ever appear to have set foot -- nor would there be any reason for them to do so.

The Defendant very clearly and openly took possession of the strip of ground he needed for widening the entrance into his dwellinghouse, and put down a hard surface on it, and cut it off by a boundary wall from the rest of the disputed plot. These acts I would regard as an open assertion of title to that piece of ground and as evidence of intent to extinguish the title of any other person claiming rights to ownership.

No such positive step was taken in relation to the remainder of the disputed plot, however. It continued to be used as it had been used while the Defendant was working for James Doyle, for the occasional piling up of drainage pipes on a temporary basis until required for use in drainage contracts. Vehicles came and went occasionally, and various types of scrap metal were dumped around the place. Some use, but not very much, was made of the shed adjoining the cottages until its roof blew away, and when that happened no one thought it worth their while to put up a new roof, and the shed fell into ruin as, did also the cottages.

I have had the benefit of carefully-prepared legal argument from Mr O'Brolchain representing the Defendant and Ms Clarke representing the Plaintiff and have been referred, inter alia, to the following texts and authorities:-

Murphy v Murphy, [1980] IR

Plant v Oakes, [1991] IR 185

Dundalk UDC v Conway, (High Court, Blayney J, unreported 15 December 1987)

Kilduff v Keeneghan, (High Court, O'Hanlon J, unreported 6 November 1992)

Powell v McFarlane, (Property and Compensation Reports [1977] p 452)

Nolan v Noone, (High Court, Carroll J, unrep 16 June 1989)

Wilson v Martin, (1993) 1 EGLR 178 -- Real Property and Conveyancing.

Wallis v Shell-Mex, [1975] QB 94

Buckinghamshire Co Council v Moran, [1989] 2 All ER 225

I have come to a conclusion in relation to the legal principles to be applied in the present case which I believe is fortified by the decisions in the cases referred to above.

It appears to me that the Defendants' claim to have acquired a title to the lands in question by adverse possession is not sustainable and I base my decision on two different and diverse grounds.

In the first place, I take the view that the evidence of user over the period of twelve years and upwards leading up to the year 1988 was not of such a character as can support a claim to have acquired a title by long adverse possession. The plot of ground was open onto the highway and nothing was done by the Defendants in relation to the boundary fencing save for the purpose of cutting off a small corner for incorporation into their entrance drive and the breaking of a gap between the Defendants' lands and the disputed plot at a rather late stage in the day. Conversely, the Doyles did work on the hedges and ditches and were only deterred from cutting the hedge to the front of the plot in the 1982 period by a request made by the Defendant.

The acts of use and enjoyment relied on by the Defendant were merely of dumping and temporary storage on what was little more than waste ground on his own door-step, and it would have appeared very unneighbourly had the Doyle family made an issue of it during a period when they had no use themselves for the disputed plot or any part thereof. This sporadic use by the Defendant did not extend over the whole of the plot but only over a limited area. I regard it as being of no greater significance than the dumping and storage which he has carried out on nearby lands of the County Council, with no proposal to assert a claim to have acquired a title to the Council lands.

In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.

In Leigh v Jack, (1879) 5 Ex D 264, Cockburn CJ said (p 271):

"I do not think that any of the Defendant's acts were done with the view of defeating the purpose of the parties to the conveyance; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another's right. The Defendant simply used the land until the time should come for carrying out the object originally contemplated (by the plaintiff)".

Lord Denning MR, in Wallis v Shell-Mex [1975] QB 94 stated the law as follows (at p 103 of the report):

"Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor.

When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials; or for some seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years or more . . . The reason is not because the user does not amount to actual possession. The line between acts of user and acts of possession is too fine for words. The reason behind the decisions is because it does not lie in that other person's mouth to assert that he used the land of his own wrong as a trespasser. Rather his user is to be ascribed to the licence or permission of the true owner. By using the land, knowing that it does not belong to him, he impliedly assumes that the owner will permit it; and the owner, by not turning him off, impliedly gives permission".

That decision was followed by Goulding J in Gray v Wykeham-Martin, (Unreported, 17 January 1977,) when he said:

"Let me try to apply that principle to the facts of the present case. What do I find? A small piece, certainly not more than half an acre, on a farm of about 140 acres, useless in its existing condition, except as a shelter for stock in bad weather and as a covert for game. The use of the disputed land by the Plaintiff as a poultry run and other things she did on it in no way interferred with the present utility of the disputed land or with the possible future improvement of the farm by throwing the disputed land into the larger adjoining fields. Thus, consistently with the reasoning in the Wallis case, as I understand it, I ought in my judgment to dismiss the action, and so I do".

His decision and his interpretation and application of the Wallis case [1975] QB 94 was later upheld by the Court of Appeal. Slade J said, in Powell v McFarlane, (1979) P & CR 452:

"In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him".

I think the very clear and positive steps taken by the Defendant in acquiring possession of the small area of ground he required for the widening of his entrance drive, and in erecting a dividing wall to separate it from the remainder of the disputed plot, highlight the very casual, sporadic and inconclusive nature of the acts of user in the open area of the disputed plot and illustrate the distinction between acts of adverse possession and acts of user insufficient to found a claim to a possessory title.

The second ground upon which, in my opinion, the Defendant's claim must also fail, is based on the episodes already enumerated, when, as I have already held, the Defendant during the relevant period when he now contends the Statute was running in his favour, expressly acknowledged the Doyle ownership of the disputed plot, for example, by asking permission to store the Carlow steel thereon on a temporary basis, and by addressing a request (rather than a command) to John Doyle to leave intact the hedge fronting onto the road along the boundary of the disputed plot when the remainder of the perimeter hedges on the Doyle lands were being cut back in or about the year 1982.

For these reasons I propose to allow the appeal; set aside the order made in the Circuit Court, and give a decree for possession against the Defendants, as sought in the Ejectment Civil Bill on the Title, it being understood, however, that the Defendants are entitled to retain possession of the small triangular section which has been incorporated into the entrance drive giving access from the main road to the front of the Plaintiff's dwellinghouse and the lands enjoyed therewith.