High Court of Ireland Decisions

1. This is an application by James Mulhern the registered owner of Folio 3726, County Longford to be registered as full owner of the lands in Folio 2070F, County Longford claiming possessory title against John Brady the registered owner. The application was refused by the Registrar of Title on the 13th of July, 1999 and comes to the High Court on appeal under Section 19(1) of the Registration of Title Act, 1964.

2. The lands in Folio 2070F comprise 0.786 acres and were carved out of lands comprised in Folio 3726 which originally comprised 135 acres 20 perches. It is a site which was sold by the previous registered owner, Dan Kieran Farrell. It is surrounded on three sides by the lands in Folio 3726 and on the fourth side by the public road. Mr. Farrell sold the site to Mr. Brady in 1979 and the new Folio 2070F was opened on 28th February, 1980. Mr. Farrell also sold two other sites out of Folio 3726 on which houses were built. These were Folio 2491F opened in February, 1981 containing .0690 acres and Folio 2492F containing 1.265 acres opened in June, 1981.

3. In or about 1982 Mr. Farrell exchanged the remaining lands in Folio 3726 (with other lands) with Mr. Mulhern the Applicant for other lands owned by Mr. Mulhern. The exchange document is dated 7th February, 1984 and Mr. Mulhern was registered as owner of Folio 3726 on 12th April, 1985. Mr. Mulhern said he went into possession of the lands exchanged in 1982. He claims he also went into possession of the lands in Folio 2070F at the same time. In his Affidavit sworn on 9th June, 2000 he said the lands in Folio 2070F were surrounded by the lands in Folio 3726 and he said there were no fences dividing the same. This is not so.

4. It is clear from the maps and photographs produced by Mr. Peter Flanagan, engineer (witness for Mr. Mulhern), that the plot of land in Folio 2070F has clearly defined old boundaries (ditch and hedge) with a number of gaps. One long gap of 24 feet on the west side has a post and wire fence. There is a cattle pen on Mr. Mulhern's land adjoining the north-west corner. A gate was erected by Mr. Mulhern from the pen into the disputed lands in the weeks proceeding the hearing. This replaced a fence. There are four ten foot gaps and the rest of the gaps are smaller and broken through by animals. The gap in the north-east corner near the road adjacent to the gate from Mr. Mulhern's lands to the public road did have wire across it six or seven years previously according to Mr. Victor Kiernan, the auctioneer acting for Mr. Brady. There are now two to three strands of wire there. There was also evidence of a v-shaped lay-by on the road at the north-east boundary between the lands in Folio 2070F and Folio 3726. From this v-shaped lay-by it was possible to gain entrance to the disputed lands in former years. Mr. Brady said he could enter the site in 1984 by that route. Mr. Victor Kiernan said it was possible to park a car there up to a few months ago. Mr. Flanagan (recalled) said there is now no entrance from the road but at sometime in the past perhaps there was.

5. There is a conflict of evidence about the fencing. Mr. Mulhern said that he fenced the plot. He put wire along the road and put wire up on the 24 foot gap. Mr. Dan Kieran Farrell (called by Mr. Mulhern) said he never saw any fence erected and the condition of the boundary was the same three weeks previously as it ever was for the last 45 years. His father had put in the wire. He saw no timber or wire fence. The gaps were there as long as he remembered. Mr. Brady said he fenced the 24 foot gap by post and wire fencing. When he bought it he fenced it to make it safe from trespass. I accept that Mr. Brady did fencing when he bought the land. However he does not say that he did any fencing in the years since 1979-1980. It is possible that animals breaking in knocked down this fencing. If Mr. Mulhern put up fencing between the lands in Folio 2070F and the lands in Folio 3726 he was merely fencing his own lands. The matter does not turn on fencing.

6. Mr. Mulhern claims that he had exclusive use and possession of the disputed plot either by using it himself or by receiving rent for it. He said he went into possession of the plot in late 1982 at the same time as he took possession of the exchanged lands, because there were entrances to it. He allowed Mr. Farrell to graze the after grass. In 1983-1984 he rented the whole farm to Henry Moorehead. In 1986 he rented the lands back to Dan Kieran Farrell for one year and then for twenty years from the 1st of March, 1987 to the 1st of March, 2007 at £5,000 per annum. Mr. Farrell's cattle were seized in 1992. Mr. Mulhern said that he and Dan Farrell got hay off the plot in 1993. At the end of 1993 and 1994 he said he made an eleven month letting to Gerard Costello although Dan Farrell also paid him rent. He said Mr. Farrell put cattle back with Gerard Costello up to 1996. Mr. Farrell denied that he ever shared with Mr. Costello. After 1996 Mr. Mulhern said the lands were rented out to various people.

7. Asked if he knew about the site which was sold to Mr. Brady he said George Maloney, Solicitor, who acted for both for him and Mr. Farrell at the time of the exchange, mentioned that three sites were sold off the entire farm. Asked if he had an interest to establish what parts were held by him he said not really; he left it up to his Solicitor. He could not recall Mr. Farrell saying he had sold the plot in question. When it was put to him that Mr. Brady spoke to Mr. Moorehead about cattle trespass he could not recall anything about Mr. Moorehead.

8. He said the first time he was aware of another owner was when a planning permission notice was displayed in 1997/98. Prior to that he had no knowledge. He did not see any “for sale” sign on the site over a period of months. He was not aware planning permission was granted in 1986 and he was not aware of a sale to Mr. Conway in 1998.

9. When asked about the 133 acres mentioned in the 20 year lease he said he calculated it from the outline on the Folio map. He did not include any land outside the outline. Mr. Farrell got a lease back of the land he had exchanged.

10. Mr. Dan Kieran Farrell said he sold the site for £3,000 in 1979. He said the lease back to him did not include the lands in Folio 2070F. He visited the farm everyday when he had cattle on it and from time to time he saw cattle on the disputed land. He let his cattle break in through the gaps. He was not claiming entitlement to the land.

11. A neighbour, Edward Dervan, who has lands on the opposite side of the road said he saw horses, cattle and sheep on the disputed lands from time to time. They got in and out of the field through the gaps. He also said he saw a sign for sale.

12. Mr. John Brady, the Respondent and registered owner, lives about four miles away from the site. He said he came four or five times a year and went on site. On one occasion in the mid-eighties he saw cattle on the land. He told Mr. Moorehead he was trespassing. Mr. Moorehead apologised and removed the cattle.

13. He bought the site to build a house but did not build because he inherited another house. He got planning permission in 1980 and again in 1986 when it was advertised in the newspaper. He said he put a notice on the site. He sold the site to a Mr. Conway in 1998 who got planning permission in that year, but the sale fell through. He then sold recently to another purchaser, Mr. Donohoe. The plot was too small for renting. He was not aware of any machinery being brought onto the land. He only saw cattle there once with Mr. Moorehead and he never saw Mr. Mulhern before seeing him in Court.

14. Mr. Victor Kiernan, an auctioneer acting for Mr. Brady was familiar with the site and visited it ten or twelve times. He never saw cattle there. He put a “For Sale” sign up (2 feet x 2 feet) which could be seen for thirty yards. This was six or seven years ago when Mr. Brady wanted to sell. He said it was up for six months to a year.

15. In my opinion based on that evidence, there was no abandonment by Mr. Brady. He visited the plot four or five times a year and only once saw cattle trespass which he dealt with. He advertised for planning permission in 1986 in local newspapers and his auctioneer erected a For Sale sign for six months to a year. Mr. Mulhern’s version is that he exchanged the lands with Mr. Farrell which did not include the plot in Folio 2070F but he thought it did because he did not bother to find out what plots were sold out of the farm. I find it hard to believe a farmer would not bother to find out exactly what land he was getting. When he rented to Mr. Moorehead, Mr. Moorehead must have been under the impression that the plot in question was part of the lands rented but he removed his cattle when Mr. Brady told him he was trespassing.

16. When Mr. Mulhern leased the farm back to Mr. Farrell for £5,000 per annum for twenty years he only leased back what he got in exchange. Mr. Farrell knew that the plot in question had already been sold by him to Mr. Brady and was under no illusion that it formed part of the 133 acres comprised in the lease. No rent was paid in respect of the plot to Mr. Mulhern. Mr. Farrell allowed his cattle to trespass on Mr. Brady's land from time to time knowing it to be Mr. Brady's land and without any intention of ousting him.

17. Mr. Mulhern fails in his claim as he cannot establish twelve years continuous occupation and possession to the exclusion of the registered owner. There was no open assertion of title as evidence of intent to extinguish the title of the registered owner. He relied on the acts of his tenants, Mr. Moorehead and Mr. Farrell, between 1983 and 1996. But Mr. Moorehead removed his cattle when asked by Mr. Brady and Mr. Farrell who allowed his cattle to trespass from time to time had no animus possidendi . User of the land after Mr. Mulhern vacated it as immaterial. The law on adverse possession has been very succinctly summarised by O'Hanlon J. in Doyle -v- O'Neill & Anor (Unreported) 13th January, 1995.

18. He said at page 20:-

19. In this case I am quite satisfied that Mr. Mulhern has not established twelve years adverse possession and occupation to the exclusion of the registered owner. Accordingly, he fails in his application.