High Court of Ireland Decisions

1. The plenary summons in this matter issued on the 28th February, 1978 and as then constituted the Plaintiff was Donal G. Feehan and the Defendant was Christopher Leamy. The reliefs claimed were an injunction directing the Defendant to vacate and to cease to trespass on the lands in Folio 28973 County Tipperary (“the lands”) and damages for trespass. On an application for interlocutory relief the Defendant filed an Affidavit sworn by him on the 26th May, 1978 in which he deposed that he had vacated the lands and that he did not intend to go onto the lands pending determination of the proceedings. The Defendant did vacate the lands and the Statement of Claim delivered on the 18th April, 1981 claims damages for trespass without seeking any injunctive relief. The Defence delivered on the 30th August, 1985 while not claiming any title in the lands on behalf of the Defendant sought to put in issue the Plaintiff’s title. A Reply was delivered on the 7th January, 1986. By Order of the Court dated 28th January, 1998 the original Defendant having died on the 4th January, 1987, the action was reconstituted with his personal representative, Patrick Leamy, being substituted as Defendant and the Second named Defendant, Roger Leamy, was added. An amended Statement of Claim was delivered on the 7th May, 1998 wherein it is pleaded that following the death of Christopher Leamy the Second named Defendant wrongfully trespassed upon the lands and kept cattle and sheep thereon: the Plaintiff claims damages and also injunctive relief against both Defendants restraining them from trespassing on the lands. An amended defence was delivered on the 9th October, 1998 in which the Second named Defendant claims to have gone into occupation of the lands in or about May 1981 and to have exclusively used the lands as his own from that date and upon that basis he claims to have acquired title to the lands by adverse possession and counterclaims for a declaration to that effect. By Order dated the 11th June, 1999 Donal G. Feehan having died and it appearing on Affidavit that the said Donal G. Feehan was a trustee of the lands for Michael Feehan. Michael Feehan was substituted as Plaintiff in place of Donal G. Feehan.

2. The delay in bringing this matter to hearing is explained by other proceedings which are relevant to the issues which arise in this action. Edmond Dwyer was registered as owner of the lands on the 16th June, 1953. He died on 2nd October, 1971. Following his death Jimmy Dwyer, the illegitimate son of Edmond Dwyer’s sister, remained in possession of the lands. In 1978 Jimmy Dwyer agreed to sell the lands to the Plaintiff. The purchase monies were paid on the 11th January, 1978 and the sale was completed by a Transfer to Donal G. Feehan dated 3rd March, 1981. The title of Donal G. Feehan was not registered until 12th March, 1997. The title of the Plaintiff was not registered until the 10th December, 1998. The title of Jimmy Dwyer was disputed by the next of kin of Edmond Dwyer who by their attorney, Francis P. Gleeson, issued proceedings against Donal G. Feehan in the Circuit Court by Civil Bill dated the 1st March, 1983. These proceedings were prosecuted as far as the Supreme Court: see 1993 2 I.R. 113 for judgment delivered on 20th June, 1991 and see 1997 1 ILRM 522 for judgment delivered on 21st November, 1996. The effect of the latter decision of the Supreme Court was that Jimmy Dwyer had indeed title to the lands and as a consequence Donal G. Feehan and the Plaintiff acquired good title from him. Thereafter registration of the title of Donal G. Feehan and the Plaintiff took place as hereinbefore mentioned. While these proceedings were pending disputing his title the Plaintiff took the view that he was unable to prosecute the present action.

3. To complete the background to the present claim it is necessary to look at the involvement of the Leamy family with the lands. Edmond Dwyer and Jimmy Dwyer were not particularly industrious farmers. From 1950 onwards the lands, together with other lands of the Dwyers, were rented to Christopher Leamy. In 1951 an arrangement was reached between the Dwyers and Christopher Leamy whereby in lieu of paying rent for the lands Christopher Leamy would pay rates on the lands and on other lands of the Dwyers. This situation continued until 1978 when Jimmy Dwyer sold the lands to the Plaintiff. The dispute as to the title of Jimmy Dwyer was in existence as early as the 9th March, 1978 as by letter of that date Christopher Leamy was requested by the next of kin of Edmond Dwyer to continue to graze the lands in their interest. As was cited above, Christopher Leamy and vacated the lands by the 26th May, 1978.

4. Where a person with good title brings an action for the recovery of lands and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder, the plaintiff, has been dispossessed or has discontinued his possession of the lands in question for the statutory period. The onus here accordingly is on the Second named Defendant to establish his claim that he has acquired title by adverse possession.

5. The Second named Defendant gave evidence as follows. His father, Christopher Leamy, had vacated the lands at the time he swore the Affidavit of 26th May, 1978. Thereafter the lands remained unoccupied until December 1981. In the period December 1981 to March 1982 he, the Second named Defendant, kept some twenty to thirty cattle on the lands and provided fodder for them there. The lands were vacant from April 1982 to December 1982 as Christopher Leamy was growing corn on his own lands which adjoined the lands to the East and to the West and as the fences were in poor condition it was not possible to keep cattle on these lands. In the period December 1982 to April 1983, December 1983 to April 1984 and December 1984 to April 1985 he again kept cattle on the lands. In 1985 he took over the family farm from his father, Christopher Leamy and laid out the adjoining lands to the East and to the West of the lands in grass and accordingly he was able to keep cattle on the lands throughout the summer of 1985: on reflection he thought it might have been in 1984 that he first kept cattle on the lands throughout the summer. From the Second named Defendant’s title deeds it appears that he acquired lands to the East of the lands by transfer dated 2nd April, 1984 and lands to the West of the lands by transfer dated 30th January, 1985 and in the light of the dates of these Transfers I find on the balance of probability that the first year during which the Second named Defendant kept cattle on the land throughout the entire year was 1985. In 1985 he manured the lands. From 1985 onwards he kept cattle and sheep on the lands. He used the lands continuously and no-one else used them. In the late 1980’s or early 1990’s he provided a water system on the lands and erected an electric fence. From 1981 onwards he treated the lands as his own and no-one ever complained to him and or said that he should not be there. The first objection to his being on the lands was in 1997 and 1998 when people came to fence the lands on behalf of Donal G. Feehan. In the late 1980’s or early 1990’s he had applied to the Department for Agriculture for area aid in respect of the lands and in so doing had described himself as owner. He was aware of the litigation between the next of kin of Edmond Dwyer and Donal G. Feehan and he swore an Affidavit in aid of the Plaintiff therein, attended a consultation and attended at Court to give evidence both in the Circuit Court and in the High Court in Dublin.

6. Edward Hally, an agricultural contractor gave evidence on behalf of the Second named Defendant. He acted as agricultural contractor for Christopher Leamy in the Autumn of 1984 and saw the lands. The grass was high and it was clear that there was no trespass of cattle onto the lands and that no use was being made of the same. The evidence of Mr. Hally suggests that the first year in which the Second named Defendant used the lands throughout the entire year was 1985.

7. Thomas Prendergast, an agricultural contractor, gave evidence on behalf of the Second named Defendant. From 1984 onwards there were cattle on the Leamy lands to the East and West of the lands and as the fences were bad cattle could roam onto the lands. Up to 1984 the grass was long on these lands and it was clear that they were not being grazed.

8. The Plaintiff gave evidence. He acquired the lands in 1978. He left matters in the hands of his brother, Donal G. Feehan. He went to see the lands after they were purchased. When he was there Christopher Leamy came down and threatened him and every time anyone went there on his behalf they were threatened by Christopher Leamy. Over the years he himself would visit the lands some six times per year until he had an accident some three years ago, after which he had not travelled to the lands. Throughout the time that he travelled to the lands their condition was the same: they were neglected and unused. He never saw any animals on the land. When he went to the lands he would look in at the same from the road and by going up to the gate but did not enter upon the lands proper.

9. Jim Hewitt, an agricultural contractor, gave evidence that he went to the lands on the 29th October, 1998 to fence the boundaries. He was ordered off the lands by the Second named Defendant. He telephoned the Gardai and he was there when they arrived. The Second named Defendant in his presence told the Gardai that the lands belonged to a man in America.

10. Garda Ryan gave evidence that he was a Garda stationed at Cashel and that he was called to the lands on the 29th October, 1998 where he met Mr. Hewitt who had a worker with him and the Second named Defendant. The Second named Defendant told him that the lands were owned by people in America.

11. In an unreported judgment, Browne -v- Fahy , Kenny J, 24th October, 1975, a passage from Lord Advocate -v- Lord Lovat , (1880) 2 App. Cas. 173 was cited with approval:-

12. On the evidence before me clearly it cannot be said that the Plaintiff discontinued his possession. Having acquired the lands he enforced his entitlement to possession by seeking and obtaining interlocutory relief against the then Defendant in this action, Christopher Leamy. Thereafter he was involved in litigation in which his title was ultimately vindicated by the Supreme Court on the 21st November, 1996. The Plaintiff in evidence said that he could not prosecute his claim against the Defendants in this action until the question of his title should be resolved. It is therefore necessary to see if the Second named Defendant can be said to have dispossessed the Plaintiff. As to dispossession, the comments in Leigh -v- Jack , (1879) 5 Ex. D. 264 have been misunderstood: see Murphy -v- Murphy , (1980) I.R. 183 and Seamus Durack Manufacturing Limited -v- Considine , (1987) I.R. 677. As properly understood they indicate what is required for dispossession. The Plaintiff here at no time had any cattle or other animals on the land and did not require the same for grazing. The only use to which he put the land was to visit it on a number of occasions each year when he would park his car and standing on the road or in the gateway look over the hedge or the gate into the same. He was never prevented from doing this by the Second named Defendant. Insofar as the Plaintiff’s title is concerned the presumption is that it extends to the centre of the road and so when standing at the gate looking into the lands the Plaintiff was in fact standing on his own lands. This he did from the evidence several times a year throughout the period in which the Second named Defendant claiming to have been in adverse possession. As I understand his evidence, the Plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands pending the determination of litigators. I find as a matter of fact that he was not dispossessed.

13. Further, I find that the Second named Defendant did not have the necessary animus possidendi to dispossess the Plaintiff. The Defendant’s position was analogous to that of the Defendant in Leigh -v- Jack of whom Cockburn CJ said at p. 271:-

14. I find on the balance of probability that the Second named Defendant’s state of mind was that litigation was pending and dragging on in relation to the lands which were lying idle and ungrazed. The Second named Defendant was a witness for the next of kin of Edmond Dwyer and to some extent must have been aware of the progress of the proceedings. When the events occurred to which the Gardai were called on the 29th October, 1998 the Second named Defendant told Garda Ryan in the presence of Mr. Hewitt that the lands belonged to a man in America. This answer indicates to me the absence of the necessary animus possidendi - an intention to preclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.

15. In summary then the Second named Defendant has failed to satisfy me on the evidence that he has dispossessed the Plaintiff and also, insofar as he was in possession of the lands, that he was in possession of the same with the necessary animus possidendi. Accordingly, I propose granting the injunctive relief sought by the Plaintiff.