High Court of Ireland Decisions

1. This action commenced by Equity Civil Bill dated the 16th May, 1994. The property in question is in Skerries in County Dublin. A stream runs from an old mill towards and under the bridge on Holm Patrick Road, Skerries and proceeds to the sea. At one time it was tidal but, in recent years, because of alterations made, it is no longer tidal.

2. An aunt of the Plaintiff had lived in premises called Cosy Cottage on the northern side of the stream since about 1928. The Plaintiff acquired the property from his aunt in 1968. Between the old Cosy Cottage and the stream he constructed a house for himself and his family in 1969. The Plaintiff built a modern house to his own design and erected it. He made the rooms look out towards the stream. The bank on the far side of the stream rises up some feet and then levels out. This had all been the property of Shenick Lodge which passed through various hands and eventually the land facing Holm Patrick Road were sold in two lots. The Defendants purchased the holding beside the Plaintiff. The Defendants' predecessors in title undoubtedly owned from the middle of the stream. However, the Plaintiff alleged that there had been a fence through part of the trees opposite his premises at a level, more or less with the field on which the Defendants had constructed their house. The Plaintiff's firm had been employed as the architects to prepare maps. The Plaintiff on the map showed a boundary fence. This was well back from the stream. The Plaintiff then sought permission to mend the fence but instead erected a completely new entire fence along the line he had inserted as architect on the plans prepared by him. He had asked permission to repair an existing fence but instead had built a very strong clearly discernible fence. It was not exactly in place of the existing fence in many places. It was not a repair job but a new structure. The Defendants went back to the vendors who agreed that they owned down to the centre of the stream and that the map on the transfer was inaccurate. They then entered into a deed of rectification showing the Defendants property going to the centre of the stream. The Plaintiff realised from the paper title they were not permitted to develop the southern bank of the stream opposite their dwelling. However, they claimed to have acquired a squatters title. This was the kernel of the case which came before the Circuit Court and subsequently on appeal to this Court. The Plaintiff alleges that there was a very clear boundary insitu, namely, a fence which had been erected prior to his acquisition of the property by the Defendants' predecessor in title, a Mr. Malone, now deceased. He says that the stream instead of being a boundary as is suggested now by the Defendants, was in fact a feature incorporated into his garden with a waterfall, a fountain and other similar adornments installed by the Plaintiff.

3. He has maintained and cleaned the stream and the areas around it. The Defendants proceeded to remove the new fence. Application was made to the Circuit Court for an injunction and on the 17th May, 1994 His Honour Judge Devally granted an interlocutory injunction restraining the Defendants from remaining on or carrying out any further works or otherwise trespassing on the lands enhanced in green in the Equity Civil Bill and the Plaintiff got permission to reinstate the boundary fence pending the hearing of the action. Costs were reserved. An application was brought to the High Court for a stay on the Order of the Circuit Court when Counsel on behalf of both parties, undertook not to take any steps to interfere with the disputed area. The High Court on the 25th July, 1994, put a stay on the execution of the said Circuit Court Order pending the final determination of the Defendants' appeal. Once again the question of costs was reserved. On the 19th December, 1994 the Defendants filed a defence and counterclaim. The Plaintiff has alleged that he has been in possession of the lands in question in excess of 25 years. The defence is a traverse, the counterclaim reads as follows:-

4. The Defendants want a declaration defining that the boundary between their respective properties and an injunction to prevent trespass and damages for trespass and costs.

5. The first question is where is the boundary between these two holdings? Secondly, if the boundary is as the Plaintiff asserts, was that the correct one delineated by the fence erected in 1993. Obviously it is not as it does not replace the original partial fence but is a foot or more on the southern side of it.

6. His aunt had owned Cosy Cottage on the grounds of which the Plaintiff wanted to build his own house in 1969. The main rooms face the river. The land on the other side belonged to a Mr. Malone of Shenick Lodge which was an orchard. He had young children. The river could be quite dangerous as it was tidal with a screen of trees along his side. There was fencing, oak steaks and lathes. The Plaintiff's family moved in in December 1970. Photographs were produced which show part of the fence between trees. The fence was originally horizontal but the present fence is vertical and higher. The Plaintiff stated that the portion of the bank which he used was two feet to seven feet wide. His family planted bulbs, they built a bridge and put in a children's playhouse. No-one else used the bank. The Plaintiff produced photographs purporting to show he was the user of the bank of the stream. Many of the photographs were taken in the mid and late 80's.

7. The Plaintiff objected to changes in the Defendants' planning permission. His firm had drawn the map in the original transfer with the Defendants dated the 12/4/91 where he shows a timber fence. An Bord Pleanala upheld the permission but with conditions to preserve trees and not to interfere with the privacy of neighbours. In 1991 he asked permission to repair the fence on the Defendants side. The Defendants agreed and he replaced the entire fence between alleged holdings. The work was done in about four or five days and the Plaintiff gave a hand in its construction. The Defendants' house was built after the Plaintiff rebuilt the fence with the Defendants' permission. It was only when he got home he found that part of the fence had been taken down and the Defendant said he had seen his solicitor and continued to knock it. Later photographs were taken in 1992 and 1993. The Plaintiff agreed that Cosy Cottage still stands and that it should have been knocked under his planning permission. He contends that a line on the map shows the fence as a thin line. He made a new map in July of 1989 based on the ordinance survey and he inserted the word "fence" which is not on the ordinance survey. There was an indenture on the 30th December, 1989 from McCormick to McInerney and Hopkins. The map on this deed was original and was not drafted by the Plaintiff. However, McInerney and Hopkins sold part of their take to the Defendants and the map on that deed was prepared by the Plaintiff. This plan in October 1990 was the same as that done by the Plaintiff in July 1989 with the word "fence" being inserted. The two sites on Holm Patrick Road were sold to Dalton and Jenkinson respectively. If one added these together there is a shortfall in favour of the Plaintiff as a result of the alteration of the boundary in the maps drawn by him. However, fraud was not pleaded. On the 30th September, 1993 there was a deed made between McInerney and Hopkins and the Defendants which referred to a principal indenture of conveyance dated the 12th April, 1991 between the same parties. It was recited that there was a mistake common to the parties to the principal deed. That the map or plan (drawn by the Plaintiff) annexed thereto purporting to designate the premises thereby assured was incorrect. This was a deed of rectification and would include in the Defendants' holding the northern bank of the stream being part of the property assured by a deed of conveyance dated the 13th December, 1989 between Colm McCormick of the one part and the vendors, McInerney and Hopkins, of the other part. This deed deals with the piece of land between the stream and a timber fence. The timber fence, as we have seen, was erected by the Plaintiff on the 28th February, 1993 as shown on the plans prepared by the Plaintiff as "timber fence" and runs the entire length of the site. The Plaintiff states that his claim is for adverse possession and that they started the adverse possession in 1970 based on the fence which was continuous opposite his house. He says the fence was raised in 1969/70 and it was present when he arrived on the site. He did not know that it was erected to protect children until the Circuit Court. He says there is a gap in a dangerous part of the fence. He may have discussed trees with Mr. McCormick and perhaps agreed to trim them. He does not recall a joint exercise to trim or prune trees in 1983. They were brushing by his house but he does not remember asking permission from Mr. McCormick but probably did. The bridge in photograph 6 was modified from time to time. Children use to play on it. It was a moveable feature. He had no photographs of the "dens". There were no tree houses after 1990. The fence and the lights were taken down in May of 1994. The lights were there for twelve to fourteen months. The waterfall existed a year earlier and the rocks also were a year earlier. All these features were started about 1987. The new fence we see in photograph 18 he said was erected between 1991 and 1992 but earlier he had said it was erected on the 28th February, 1993. He agrees that he asked the Defendants' permission to repair the fence from their side but he did not ask to replace it.

8. Mrs. Fanning stated that the Plaintiff and herself were married in October 1964 and lived in Cosy Cottage. They started their new house in 1969 and moved in in 1970. There were trees and shrubs and a fence along the bank. It ran from the bridge down to the shed at the end of the Plaintiff's site. There were no gaps in it. It was solid. They cut down weeds and shot rats on both sides of the river. They have three children born respectively 1965, 1968 and 1972. She says they started planting in 1971 and every year thereafter. Their children were in the stream and on the bank. Mr. Malone was their neighbour initially. He had teenage children. She never saw them on the bank. She thought Malone moved in 1973 and that the new owners lived in Belfast and they let it to a cult and then to a pilot neither of whom were on her side of the fence. My children had "hiding" holes and huts built about 1973 and do not know how long they were used. In 1978 you could not see through the timber fence save where a knot on the tree fell over. Mr. McCormick was there to 1989. Children could not get through the fence. They went out gates and in the entrance. On Mr. McCormick's side of the fence there was a lawn and she thought a glass house. He had ponies there for six months or a year. They were tethered and as a result they pulled down part of the fence. In 1984 her husband, her son and a nephew of Mr. McCormick, Patrick O'Connor, repaired it. In 1979 and 1980 the river used to flood and came up to the arches in the bridge on Holm Patrick Road. The husband and sons helped to repair it. When Mr. McCormick left the fence was deteriorating. The successor in title had small children. Between 1989 and 1991 they had nailed up the odd plank. They trimmed trees and planted them. The Plaintiff brought stones onto to the far side in 1989 and the waterfall started about 1985 and its form varied over the years. In 1992/1993 they had some trees lopped on both sides of the river and they got permission. They could not get tree cuts as they were no longer produced and so put up a new fence. Lights were first put down in 1986/1987 and were rearranged thereafter. She alleges that the new fences were in the same place as the old fence. In the view of the Court this is not correct. In 1984 because of works of the County Council the stream had become non-tidal. The last big flood was 1983. She insists lights were there since 1986. She swore there was no gap in the fence near the bridge. The stream was cleaned by the local authority. Peter Ferguson, an architect for the Plaintiff, had given evidence about the amount of bank which it is alleged is the Plaintiff's by virtue of adverse possession. Darragh Fanning, the son of the Plaintiff, gave evidence that if he wanted to swim with permission in the swimming pool in Shenick Lodge he had to go out onto the main road then onto the main avenue to get to the swimming pool as it was not possible to get through the bank from their house. There was a gap further down stream where the McCormick children came through.

9. After the Plaintiff's case an application was made for a direction on the grounds that the Plaintiff was bad on dates and that he differed fundamentally from his wife. He had no paper title and that paper title only entitled him to claim to the centre of the stream. Two of the maps were drawn by the Plaintiff to the Plaintiff's benefit and these alternations are in many of the photographs taken before the Defendants commenced building. They had watched the planning procedure very closely and appealed always on the last day against any decision in favour of the Defendants. Mr. Allen for the Plaintiff stated that from 1970 the house was finished and the bank was used by his clients. He agreed that work on the bank was pivotal to the Plaintiff's case. The Court refused to grant a direction. The Defendants went into evidence. Firstly, Mr. Malone gave evidence. His father was the owner of Shenick Lodge. He held the freehold on the 26th December, 1971 but previously had held under lease up to December 1951. This witness was born in 1954. His father's property was sold to a company called Shenick Lodge Limited on the 20th December, 1973. He states that his father owned from Holm Patrick Road to the sea and the river on the north was the boundary. He remembered bushes and rusty fences. They were not there when he was very young. He stated that in 1964 his father put up the fence in sections along the river in between trees and shrubs. When he was about fourteen his father got trees lopped on the south side of the river. His family were in charge of the south side and they looked after the trees. No-one else dealt with the south bank up to 1973. He was unaware of anyone working there. He did not see lights or waterfalls. There was no continuous fencing in the Plaintiff's property. It was shrubbery and fencing. He remembers trees, shrubs and a part of a fence. The fencing was erected about 1976 but he didn't know why it was built. Mr. Colm McCormick purchased Shenick from Shenick Limited on the 4th December, 1978. He was born in 1945 and remembers being on the property in 1955. There were some small wires between trees and bushes but no fences at that time. In the early 70's fencing was erected by Mr. Malone Senior. They were bark tree fences. It was less than 50% and was intermittent. He had access to the river through hedges. He bought it in 1978 and when he purchased it there was a gap between the wall on the Holm Patrick Road and the beginning of the fence. In 1984 the Plaintiff (whom he described as a good neighbour) said the trees were too big and could he top them. They were opposite his house on Mr. McCormick's side of the river. Mr. McCormick said his cousin, Patrick O'Connor, would do the trees and he got Darragh Fanning and Patrick O'Connor to top the trees. At that time also Mr. Fanning asked could he repair the fence and said that he could get the fencing material. According to this witness Mr. Fanning said "would we repair it?". "If you can get hold of bark we can do it together". He let the property to "the Way" cult on the 4/9/81 to September 1981. When he sold it to Hopkins and McInerney there was no-one in adverse possession of the river bank and there was no evidence of lights and waterfalls. The fence was intermittent and was never continuous. He was very familiar with the property for over thirty years although he only owned it himself for eleven years. He presumed that the fencing was to prevent children from falling into the river. He cleared weeds on the south bank of the river occasionally about two or three times a year. They came through the gap near the road into the bank. He owned the lands from the road to the beach. His cousin cleared the bank regularly and he did it two or three times.

10. The next witness was Mr. John Hopkins who with Mr. McInerney on the 30th December, 1989 bought the undivided property. He and his family resides in Shenick Lodge. He owns out to the stream and still does. He was last on the south bank in 1990. It was nothing but a derelict site with old cans. He never saw any cultivation there. The area facing Holm Patrick Road was divided into two sites. The avenue up to his house was maintained. His house was on the seaward side of the property. He sold to the Jenkinsons out to the centre of the stream. He did not realise that the Plaintiff as architect had drawn the map showing the boundary of the timber fence. They executed a deed of rectification on 13th September, 1993. In the deed of the 13th December, 1989 from Colm McCormick to John McInerney and Ronald Hopkins the stream is undoubtedly the boundary. There were bits of fences and trees which were not continuous during his occupation. He had gone in with his daughter to the gap near the bridge and stated that visually or otherwise the bank was not part of the Plaintiff's garden.

11. Mr. Vincent Murphy was an architect retained by the Defendants to apply for and get planning permission. In May 1991, he surveyed the site and had been there first in September 1990 and went through the gap near the bridge and noted the tree sizes for 1-2 hours. He did the full bank. It was overgrown but relatively easy to traverse. The bank was rough and unattended and slopped. Near the bridge it is relatively flat, then it gets narrow. He walked directly in front of the Plaintiff's house. He saw no waterfall or lights or sculpture. He saw a weir about 20 yards from the bridge. It was an engineering feature. The fence was fairly rough and broken in places and was a bit haphazard. He compared the maps of 1970 and 1990 and there was a shortfall of roughly 10% of the whole site. On the basis of the line being the timber fence, he had assumed that his clients had only bought as far as that. The Defendants had altered their plans so as to minimise the interference with the privacy of the Plaintiff. The Plaintiff was reasonable. The witness agreed that Mr. Fanning's house faces the stream and has feature windows looking on to it. The 1973 Ordinance Survey is the most recent and it does show a line, fence or a wall running the full length opposite the Plaintiff's holding.

12. The next witness was Patrick Costello who has retired from the Dublin County Council. He was in the Drainage Section and lived about a quarter of a mile upstream, the area in dispute. He was the Ganger and later the Foreman from 1974 to 1991. He went into the stream and cleaned it from the railway bridge down to the beach. They put silt on the banks and carried away in lorries. He said the banks were very slanted with grass and weeds. He never noticed anything in the stream. He never saw huts or dens on the banks between 1974 and 1991. He never saw rockeries or a waterfall. The existing weir was a County Council sluice and was intended for engineering and not architectural benefit. It was built in the early years of this century. He never saw lights or cables and would be very concerned by cables or pipes in the stream. He always walked along the bank opposite Fannings. He got into it up at the "Maltings" and got under the bridge. The Fannings side was nicely kept and was rough opposite.

13. Mr. Patrick O'Connor was a cousin and godson of Mr. McCormick and lived in Shenick from 1980 to 1989 intermittently. He was born in 1969. He knew the Fanning children and he was often in their house. He knew the bank and he used to clean it of weeds and he was in and out of the stream mainly during the summer. He used the scythe in the stream and on the bridge and upon the bank. Often he was in the stream. There was no dens, rockeries, waterfalls, pumps or lights. There was fencing of part of the bushes opposite Fannings but it was not continuous. Photographs 1 and 2 which showed a very young boy (son of the Plaintiff) in front of a fencing described by this witness as not like the fencing that he saw. Indeed, it does not look like the fencing in other photographs. He did work on both sides of this intermittent fence on behalf of Mr. McCormick but never on behalf of Mr. Fanning. He did fill gaps with Mr. Fanning to the knowledge of Mr. McCormick. Even after that there were small gaps all along. Back in 1984, in his hearing, the Plaintiff asked Mr. McCromick to be allowed to cut trees on the southern side as they were hitting against his windows. This witness was party to the cutting of those trees. He cleaned the whole stream every three or four weeks in the summer. He used long handled scythes or bill hooks.

14. The Defendant, Mr. David Jenkinson knew the property for a considerable time. He lives nearby. He knew there was intermittent fencing when he bought the site. He had trouble getting planning permission. He was doing 90 hours a week trying to preserve his business that eventually failed. The planning authority had opposed planning permission. When the Plaintiff contacted the Defendants requesting permission to do some repairs, the Defendants gave permission as a conciliatory gesture. A lot of the existing fencing was between trees and was not beside him. When the fence, instead of being repaired, was in fact renewed, no trees were left on Mr. Jenkinson's side. He immediately contacted the vendors and there was a deed of rectification. When he studied the plans showing the timber fence he assumed that Mr. Hopkins sold the bank to Mr. Fanning and the vendor, Mr. Hopkins thought Mr. Jenkinson had sold the bank to Mr. Fanning. However, the discussion at Shenick is they both discovered that this was untrue and agreed to a deed of rectification. He saw ornamental lights after the fence was removed and they had put in pumps and lights. He disconnected these because they were on his property without his consent.

15. In their submissions to me, the Plaintiff had tried to make a case of equitable estoppel. However, it is pointed out by Mr. McGovern, S.C. for the Defendants that although the Civil Bill had been amended there was no mention of estoppel and that it was only at the very last moment they sought to introduce it. This Court held that the matter of estoppel did not arise.

16. The limitation period for land is twelve years. In the present case the Plaintiff claims title by adverse possession. He admits that on paper he has no title to the bank on the far side of the river. The onus is on the Plaintiff to show that he dispossessed the true owner or that the true owner discontinued his possession and also that he has been in adverse possession. The mere abandonment or leaving land vacant is not enough because until someone else goes into adverse possession, the owner has no right of action against anyone. The Defendants claim that the land is theirs. On paper it certainly is. While the current limitation period was established in the 1833 Act it is now incorporated in the 1957 Limitation Act at S.13(2)(a). The date from which the limitation period begins to run may be postponed because of the existence of a disability or fraud. The Plaintiff in this case was employed by the vendor and by the Defendants to prepare the map on the transfer deed. Indeed he did two maps in which he showed the fence he himself had constructed as being the boundary. While it is hinted that there was fraud, the case was not pleaded or any serious effort made in cross-examining the Plaintiff to suggest there was any ground for such allegation. The Defendants say that the map that was drawn was a mistake. They rectified it by a subsequent deed.

17. There is a very strong conflict of evidence in this case. The Plaintiff is confused about some of his dates and differs from his wife's evidence. The evidence for the Defendants was much clearer. It covered a longer period. The Court is not satisfied that the Plaintiff established exclusive adverse possession for twelve or more years. Indeed the Plaintiff himself agrees that features such as the lights and the waterfall and the rocks started about 1987. Proceedings were commenced on the 16th May, 1994. In the circumstances the Court up holds the decision of the learned trial Judge and dismisses the claim