Judgment of Ms. Justice Laffoy delivered on the 28th day of July, 2016
Focus of judgment
1. In a report published by the Law Reform Commission in 1989 entitled “Report on Land Law and Conveyancing Law: (1) General Proposals”, LRC 30 - 1989 (Dublin, 1989) it was stated (at para. 52):
“The doctrine of adverse possession has been said to be one of the most controversial features of modern land law. The modern doctrine of adverse possession is provided for in the Statute of Limitations 1957.”
In the report certain amendments to the Statute of Limitations 1957 (the Act of 1957) were proposed. The operation of the doctrine of adverse possession was reviewed again by the Law Reform Commission thirteen years later and the resultant report entitled “Report on Title by Adverse Possession of Land”, LRC 67 - 2002 (Dublin, 2002) recommended further changes to be implemented by statute. Three years later in the report entitled “Reform and Modernisation of Land Law and Conveyancing Law”, LRC 74 - 2005 (Dublin, 2005), the changes which had been recommended in 1989 and 2002 were incorporated in the draft Land and Conveyancing Bill published in the report. In due course, most of the provisions in the draft Bill were enacted into law in the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), which came into effect on 1st December, 2009. However, the provisions of the draft Bill which had been proposed in 1989 and in 2002 to implement the recommendations made in relation to limitations of actions and adverse possession were not included in the Act of 2009 and since then have not been enacted into law. Accordingly, the legal principles which apply to the issues which arise on this appeal have not changed since the judgment of the High Court in these proceedings was delivered on 7th September, 2007 by Clarke J. (the trial judge) ([2007] IEHC 314).
2. Around the time the trial judge delivered judgment, almost nine years ago, there was a considerable amount of academic and practitioner comment on the then state of the law on adverse possession in this jurisdiction, to some extent, it would seem, fuelled by concerns arising from proceedings in the European Court of Human Rights in J.A. Pye (Oxford) Limited v. United Kingdom. The judgment in that case was given by the Grand Chamber on 30th August, 2007 ((2008) 46 EHRR 45). The Grand Chamber ruled that the doctrine of adverse possession as then applied in the United Kingdom did not infringe the European Convention on Human Rights.
3. While the appellant on the appeal, who was the plaintiff in the High Court proceedings, was legally represented by solicitors and counsel in the proceedings in the High Court, he filed the notice of appeal against the judgment and order of the High Court in person and he appeared in person on the hearing of the appeal. The appellant filed written submissions in this Court on 29th January, 2016. Having regard to the format and content of those submissions, it is reasonable to assume that the appellant did not have the benefit of professional legal advice in preparing them. One element of the written submissions has been interpreted by counsel for the respondents (sometimes hereafter collectively referred to as CIÉ) in the written submissions filed on behalf of the respondents on 16th March, 2016 as possibly being a challenge to the legal principles applied by the trial judge in his judgment. It is that matter, which will be outlined later, which is the focus of this judgment.
4. As regards the other issues which arise on this appeal, I am in agreement with the judgment to be delivered by Charleton J. I am also grateful to be in a position to be able to rely on his outline of the factual background and the legal and factual context underlying all of the issues in the case, so that this judgment should be read in the light of that outline.
5. To put in context the matter on which the judgment focuses, I propose first outlining the legal principles applied by the trial judge and summarising the manner in which he applied them to the facts.
Legal principles and their application to the facts
6. In section 4 of his judgment the trial judge outlined the relevant legal principles and in section 5 he applied the law to the facts of the case.
7. The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the following terms:
“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at para. 4.5) as follows:
“It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to.”
In my view, that statement is indisputable.
8. Having addressed a controversy arising from a conflict between two authorities in this jurisdiction dating from the 1980s, to which I will return, Clarke J. stated (at para. 4.9) that it was common case on the proceedings before him that, in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. He then quoted the following passage from the judgment of Slade J. in Powell v. McFarlane (at p. 472), which was addressing the concept of animus possidendi. Slade J. stated:
“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”
Although not quoted by the trial judge, Slade J. went on to state that such position is quite different from a case where the question is whether a trespasser has acquired possession.
9. Substituting the expression “minimal acts” for “slightest acts” used by Slade J., the trial judge continued (at para. 4.8):
“It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.”
The trial judge then identified the relevance of the foregoing as arising from the respondents’ contention that a number of actions taken by CIÉ amounted to acts of possession. He identified his task as assessing whether those acts did amount to possession having regard to the low threshold identified in the authorities, so that, if they did, they would “prevent time running during the period in which they occurred”, that is to say, running in favour of the appellant and against the respondents.
10. In the next paragraph (para. 4.9), the trial judge made the following observation:
“On the other hand it is common case that once title is extinguished it cannot be reactivated or reinstated by means of a minimal act of possession.”
However, later in his judgment, the trial judge concluded that the title of the respondents was not extinguished, so that statement, on the facts of the case, is theoretical.
11. Returning to the controversy referred to earlier, the trial judge stated (at para. 4.6) that it had been suggested that there were two lines of authority in relation to adverse possession in this jurisdiction: one derived from the judgment of Egan J. in the High Court in Cork Corporation v. Lynch, which was delivered in the High Court on 26th July, 1985 and was subsequently reported as [1995] 2 I.L.R.M. 598; and the other derived from the judgment of Barron J. in the High Court in Durack Manufacturing Limited v. Considine [1987] I.R. 677. In a nutshell, the distinction between the two authorities related to the approach to be adopted to a situation where the legal owner was making no use of the lands when the person claiming adverse possession entered the lands but had future plans for the use of the lands. The trial judge stated (at para. 4.7) that he preferred the reasoning of Barron J. -
“. . . in which he accepted that factors such as the future intended use of the property by the party with paper title might be a factor in determining whether the necessary intention was present in the party claiming adverse possession but was not otherwise a matter properly taken into account.”
While he elaborated on his understanding of the reasoning of Barron J., he concluded his observations on the controversy by stating (at para. 4.7):
“In fairness, counsel for CIE agreed that, on the facts of this case, there was no evidence that CIE had, for much of the relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch in any event.”
That being the case, as is pointed out by Charleton J. in his judgment (at para. 12), the controversial issue does not arise for decision on this appeal.
12. The final legal principle considered by the trial judge was addressed by reference to the passage from the judgment of Black J. in Convey v. Regan [1952] I.R. 56, which, as the trial judge noted, was followed by the Chancery Division of the English High Court in Powell v. McFarlane (at p. 479), and which is quoted by Charleton J. in his judgment at para. 16. The trial judge went on to state (at para. 4.11):
“I am, therefore, satisfied that, where the extent of use of lands in respect of which adverse possession is claimed are consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it is appropriate to infer the lesser rather than the greater entitlement.”
That principle, in my view, is well established and cannot be disputed.
13. Turning to the application of the legal principles to the facts before him, the trial judge first considered what he referred to as the “alleged acts of possession on the part of CIE” and he found (at para. 5.4) that they amounted “to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times”. He expressly did so having regard to what he described as “the very low threshold” which, on the authorities, he was required to apply to acts of possession by the paper title owner. He followed that finding by the following passage (at para. 5.5), which is quoted in the appellant’s written submissions:
“I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times.”
That passage is introduced in the appellant’s written submissions by the words:
“Clarke J. seemed to state that these acts were still ‘minimal’ . . .”
14. Following on from what is quoted in the preceding paragraph, the trial judge concluded (at para. 5.5) that no adverse possession claim could be maintained in respect of any period subsequent in time to in or about 1993 when the acts, which he was satisfied amounted to a sufficient act of possession on the part of CIÉ, commenced. The trial judge then considered whether the appellant had established adverse possession sufficient to have extinguished CIÉ’s title prior to 1993. On his analysis of the evidence which was before him, he concluded (at para. 5.11) that he was not satisfied that that the nature and type of occupation exercised by the appellant in the period up to 1993 was sufficient to establish adverse possession. It was on that basis that he found that the appellant’s claim must fail.
15. It is against that background that I will now consider the matter raised in the appellant’s written submissions which is the focus of this judgment and the respondents’ counsel response to it.
Matter raised by appellant and respondents’ response
16. Once again, it is important to emphasise that the appellant did not have legal representation on the appeal. In the written submissions filed in this Court, he addressed certain matters under the heading “Title”, which related to the respondents’ paper title, and under the heading “Adverse Possession”. He then set out certain provisions of the Railway Act 1844. Next, he quoted the passage from the judgment of the trial judge at para. 5.5 which I have quoted above and introduced it in the manner indicated earlier, by suggesting that the trial judge seemed to state that the acts of the respondents were still “minimal”. Thereafter the following was stated:
“In conclusion, Clarke J.’s judgment represents on the one hand a most welcome clarification of the law on establishing adverse possession. On the other hand, the test for ‘ceasing adverse possession’, if the author’s view is correct, would appear to be a novel formulation hitherto unexplored. There is a strong legal foundation for the approach, because of the presumption that the paper owner intends to take possession. However, should the same test be applied for re-possession, once possession has been lost or abandoned? Or is it right that minimal or coincidental acts that look like possession or an intention to possess are enough to stop time running, even though an intention to re-possess might not exist?
With the threshold for re-possession so low, and the test so favourable to paper-owners, it is difficult to see how a possessor can win, short of the paper-owner being unaware of his title, or being abroad, or having absolutely no interest over the land. Perhaps, however, this is the correct scope for the doctrine. Perhaps if this had been the law in the U.K., the human rights dimension would never have been in question.”
On reading that statement, it was reasonable to surmise that, in making it, the appellant was quoting observations by a legal practitioner or an academic on the judgment of the trial judge. Although the source was not identified by the appellant in the written submissions, fortunately it has been possible to identify the source as an article by Nicholas McNicholas, B.L. entitled “Recent Developments in Adverse Possession” published in the Bar Review (Volume 12, Issue 6, December 2007).
17. In addressing the appellant’s submission on that point, counsel for the respondents noted that the trial judge had stated in his judgment (at para. 3.5):
“In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should apply.”
Nonetheless, counsel for the respondents addressed the references in the appellant’s submission to “ceasing adverse possession” and to “a novel formulation” allegedly applied by the trial judge and to the questions raised in relation to the test to be applied “for re-possession, once possession has been lost or abandoned”. Counsel for the respondents submitted that the appellant’s submission is misconceived, pointing out that legal possession is not lost or abandoned until a person claiming to be in adverse possession can demonstrate twelve years of exclusive possession with the necessary intent and, until that point is reached, a person claiming to be in adverse possession remains a trespasser. Further, it was submitted that the question of “intention to re-possess” by the owner does not arise, “as such person is already in legal possession insofar as they have title to the lands”.
18. From the perspective of this Court on the appeal, there is a proper practical approach to the questions raised in the appellant’s submission in relation to the test to be applied “for re-possession, once possession has been lost or abandoned”. It is that, as no issue arises on the appeal as to the test to be applied for re-possession, because of the findings of the trial judge, with which I agree, that the appellant had not established adverse possession by 1993 and that from 1993 onwards the actions of the respondents were sufficient to negative adverse possession. Accordingly, it is unnecessary for this Court to comment on the relevant test.
19. It is only fair to record that counsel for the respondents, reading the thrust of the appellant’s submission as being to challenge the statement of the trial judge that certain minimal acts of the legal owner are enough to stop time running, submitted that this is not a novel formulation and that it is well supported by existing authority, giving as an example, inter alia, the reference to “slightest acts” in the judgment of Slade J. in Powell v. McFarlane. Reference was also made to the fact that the judgment of the trial judge has been applied or cited with approval in subsequent High Court judgments in this jurisdiction, referring, in particular, to the judgment of Hogan J. in Dooley v. Flaherty [2014] IEHC 528. It was also pointed out that it was also cited in the judgment of Horner J. in the Chancery Division of the Northern Ireland High Court in McCann v. McCann [2013] N I Ch 7, in which Horner J. quoted the passage at para. 4.9 quoted earlier (at para. 9).
20. Although the trial judge undoubtedly concluded that the respondents had only to meet a very low threshold to establish continued possession and that the acts of possession relied on by the respondents fell into the “minimal” class, the crucial factor is the nature of such acts. Those acts were of a different nature to the acts which in Feehan v. Leamy [2001] IEHC 23, a decision of the High Court (Finnegan J.) which has been controversial on this point, were found to be adequate to stop the limitation period running. There the acts of possession merely involved the legal owner visiting the land in issue on a number of occasions each year, and, having parked his car, looking over the hedge or the gate into the lands in issue. The acts of the respondents in this case, on the other hand, involved, in the course of the renovation and modernisation of Clondalkin railway station, incorporating a portion of the land in dispute in the railway station and building new fences and the like, to the extent that it was accepted by the appellant in evidence that the workers on behalf of the respondents were on the disputed land for a year and a half from 1993 to 1995. Subsequently, a contractor retained by the respondents entered on the disputed land in 2001 to repair fences in response to a complaint from an adjoining owner.
21. It is not beyond the bounds of possibility that in some future case a different view may be taken of the effect of the legal owner of land merely gazing over a wall or fence on to the land several times in a year and that such action may not be found to be sufficient to prevent a trespasser on the land being in adverse possession. However, it is not for this Court to speculate on whether that may happen, nor whether there may be other types of action on the part of a legal owner of a more minimalist nature than the actions by the respondents in this case, which could give rise to a similar finding. For present purposes, the determining feature is that the finding of the trial judge on the application of the relevant legal principle to the actions of the respondents from 1993 onwards is a correct finding.
Outcome of the appeal
22. The appellant has not established that the trial judge did not apply correct legal principles to the resolution of his claim against the respondents that he has acquired title by adverse possession to the lands in dispute, nor has he established that the application by the trial judge of the relevant legal principles to the factual situation was erroneous. Accordingly, the appropriate order is an order dismissing the appeal.
23. Having said that, although none of the aspects of the law which have given rise to controversy in the past have had a bearing on the outcome of this appeal, it must be acknowledged that the appeal illustrates that the law on the doctrine of adverse possession is probably still as controversial as it was in 1989. There would seem to be a need for a review of the recommendations made by the Law Reform Commission in 1989, 2002 and 2005 with a view to bringing clarity to the law in this area.
Judgment of Mr Justice Peter Charleton, delivered on Thursday 28th July 2016
1. Dennis Dunne, the plaintiff/appellant, claims to have been in possession of a 3-acre field beside Clondalkin Railway Station from 1977 to 2007. Given that the limitation period on actions to recover land is 12 years, this should be ample from the point of view of the efflux of time to assert adverse possession. The defendants/respondents, Irish Rail and Córas Iompair Éireann, commonly called CIÉ, claim ownership of the field and have counterclaimed in support of their rights. They assert that there has been no possession by Dennis Dunne which is adverse to their rights as owner. In turn, Dennis Dunne has disputed their title to the land. In the 5 day trial in the High Court before Clarke J, judgment of 7th September 2007, [2007] IEHC 314, Dennis Dunne was represented but lost his case on both grounds, while Irish Rail succeeded on the counterclaim. On this appeal, however, he pleaded his own case and has asserted that the trial judge legally and factually misconstrued his claim for adverse possession, ignoring the fact that he was in “unhindered possession” of the property for 30 years while “maintaining and securing” the property without objection. The circumstances of adverse possession being many and varied, more extensive reference to the facts is required than is usual on an appeal. This judgment concurs with that of Laffoy J.
2. That said, while the owner of land bears the burden of proof on a claimant or counterclaimant who asserts ownership of land through possession, the process of appeal is not one of rebalancing evidence. Instead, it is about the scrutiny of the findings of the trial judge to ensure that any fact upon which the judgment depends was based on evidence. Henchy J in Northern Bank Finance Corporation Limited v Charlton [1979] IR 149 at 194, discussing the limited circumstances in which a finding of fact made by a trial judge may be overturned, noted that an appellate court “can but reject [the trial judge’s] conclusions when they are shown to be incorrect by reference to the totality of the evidence”. Any such finding on appeal will necessarily be rare, as it is not part of the function of an appellate court to weigh evidence in the balance as if in substitution for the function of the trial judge in determining what degree of credit and impact should be given to particular aspects of testimony. The function of an appellate court is not the imaginative recreation of the trial but, rather, the reposing of trust in the trial judge whose findings are not to be upset once these are supported by evidence; although more evidence may seem in certain circumstances to support an alternative conclusion. As McCarthy J remarked in Hay v O’Grady [1992] 1 IR 210 at 217, the “truth is not the monopoly of any majority.” This case is one where it may fairly be said that there was some evidence on both sides on the adverse possession issue, while on the title issue raised against CIÉ by Dennis Dunne, there was uncontradicted evidence as to ownership by the national transport corporation.
The title issue
3. This matter may be dealt with briefly. CIÉ have been at all material times the rateable occupiers of this land. A series of letting agreements were made of the land by CIÉ, in the context of farming and grazing, between the 1930s and the 1960s. A private Act was passed in the Westminster Parliament, then engaging jurisdiction over this country, in 1844 “for making and maintaining a Railway from the City of Dublin to the Town of Cashel, with a branch to the Town of Carlow”. It was under that Act that the predecessors of CIÉ, the Great Southern and Western Railway, acted to acquire land: a form of compulsory purchase limited strictly to a particular breadth. Under the Act of 1844, no land was actually conveyed to the predecessors of CIÉ. Rather, the company was capitalised under s.2 of the Act and was given a power to compulsorily acquire land necessary for the completion of the railway. At trial, title deeds were produced before the High Court showing that among the lands acquired for building the railway line were parcels at Neilstown and the adjoining townlands of Cappagh and Ballynagigan. A land survey referenced in evidence from 1848 demonstrates ownership in the railway company of this particular field. A deed from 25th December 1845 demonstrates not only how hard people were then expected to work, but also that “portions of land in the townland of Neilstown situate in the parish of Clondalkin in the county of Dublin, containing in the whole 2 roods and 7 [perches], Irish plantation measure” was conveyed. Correspondence was demonstrated between the plots filed and one of the plots then purchased. This was shown as being near Clondalkin Station. As to whether this exhibited good title, a conveyancing solicitor was called, Colin Keane, who gave his expert opinion that the documents were:
[A] good paper title in the form of these conveyances. And as long as one can be satisfied that the book or book of reference which is referred to in the deeds is that book of reference there, then you have good title vesting in the Great Southern and Western Railway. And from my knowledge of other titles, I know by various statutes how it has devolved down to CIÉ and Iarnród Éireann… I think it is a far better title than one would normally be accepting. It is at least 100 years older than most titles we see.
The trial judge was content to accept that evidence:
On the basis of the deeds produced in evidence by Mr. Keane and, indeed, his own expert opinion on same, I am satisfied that they amount to prima facie evidence that all of the land shown in the 1848 survey was in fact acquired, at that time, by the railway company. Those lands included the triangular piece of land which is in dispute in these proceedings.
4. Another point was also raised by the appellant in addition to title. It was that the predecessor of CIÉ did not have capacity to acquire title originally. In the notice of appeal, it is also pleaded that “an incorporated entity such as the Respondent, is precluded from gaining title by adverse possession”. The capacity point requires decision first. The Act of 1844 enabled the predecessor of CIÉ to acquire land for railways and for ancillary purposes, one example being s. 230 which afforded the company a wide power “for the Purchase of any Land adjoining or near to the Railway” for the varied purposes of constructing “additional Stations, Yards, Wharfs and Places for the Accommodation of Passengers, and for receiving, depositing, and loading or unloading Goods or Cattle to be conveyed upon the Railway”. In addition, the railway company, in laying out the line, could be compelled by a landowner whose property it bisected to purchase the slice of land cut off from the main holding: “land which shall be so cut through and divided by the railway works” as s. 196 puts it. While there is no evidence that this happened, there was evidence that in the days when cattle were conveyed by train, fields near railway stations were commonly acquired to be used for casual grazing or as a secure pound pending transportation. Frank Masterson, assistant group property manager for CIÉ, referenced what he knew about the land holding pattern at other stations before the High Court:
There would have been extensive freight traffic on the lines … Well, the freight would have consisted of various differencing in agriculture product but also a large element in those days and until fairly well into this century was livestock, so cattle in particular… At a number of locations, most of the locations, for example, that are shown on here there is wide expansive land in addition to the land that the station sits on, which we generally use to, I suppose, staging or storage areas for the cattle until such time was that they were put on trains. You remember obviously that Clondalkin is quite built up now, but at that stage it was well into the countryside.
This evidence was correctly accepted by the trial judge. While a hearsay point was mentioned in argument in the High Court, it was not pursued on this appeal. Reliance on experience of the interpretation of maps which are neutral as to their effect, dating from a time well before any dispute could even have been thought of, does not engage the hearsay rule. Consequently, no issue arises as to corporations and title by long possession.
Adverse possession
5. The field in question is of rough grazing and scrub land, in triangular shape, bounded by old hedges with intermittent fencing, and runs northwards from Clondalkin Station to lands of about the same acreage and a house owned by Seán Kavenagh on the northwest. Beyond this house is a suburban housing estate called Moorfield, while on the north-eastern side there is an extensive business called Cummin’s scrapyard. Since 2007, the field has been taken possession of by CIÉ and the then existing two track system has been expanded on the field to a four track system. Dennis Dunne claims to have made use of the field through the grazing and training of horses, the keeping of chickens, ducks and dogs and the building of stabling and sheds. All this was claimed in the High Court to evidence an intention to displace the title-holder to the land and was asserted to be a sufficient occupation of the field to amply meet the requirement that full usage of the land is required for adverse possession and not mere casual or occasional or limited occupation.
6. Section 13(2) of the Statute of Limitations 1957 fixes the time period for the recovery of land that is adversely possessed as against the holder of the title:
The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority, whichever period first expires.
Here, although CIÉ is a State corporation, it has not been argued that anything other than the ordinary limitation period of 12 years applies. Section 18 requires that for a right of action to accrue to the holder of the title to land, there must be possession adverse to that by some other person:
(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where—
(a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and
(b) no person is in adverse possession of the land on that date,
the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.
(3) Where a right of action to recover land has accrued and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession.
(4) For the purposes of this section—
(a) possession of any land subject to a rentcharge by a person (other than the person entitled to the rentcharge) who does not pay the rentcharge shall be deemed to be adverse possession of the rentcharge, and
(b) receipt of the conventional rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be deemed to be adverse possession of the land.
As amended by the Registration of Title Act 1964, s. 24 sets out the consequences of adverse possession for the full limitation period:
Subject to section 25 of this Act and to section 49 of the Registration of Title Act, 1964, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.
7. To summarise: s. 13(2)(a) of the Statute of 1957 bars the title holder from recovery of land after the elapse of twelve years from “the date on which the right of action accrued to the person bringing it”; while s. 18(1) provides that no “right of action to recover land shall be deemed to accrue unless the land is in the possession … of some person in whose favour the limitation period can run”; while s.18(2)(b) provides that a “right of action” does not accrue “unless and until adverse possession is taken of the land”; but where there is such possession adverse to the title holder, s. 24 provides that “at the expiration of the period fixed … the title of that person to the land shall be extinguished.” In construing the relevant legal concepts, Clarke J drew in his judgment on the analysis of Laffoy J in Tracy Enterprises Macadam Limited v. Thomas Drury [2006] IEHC 381 (Unreported, High Court, Laffoy J, 24th November, 2006)..
8. The extent of usage required for possession adverse to the holder of the title deeds might first usefully be considered. Buildings and lands and vary markedly as to character and potential use. It is that character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner. For instance, a bridge needs to be supported at each end of its span by the ground on which it rests. It is difficult to conceive of situations where the land needed to support, inspect, repair and maintain a bridge could be adversely possessed. The curtilage of land around the bridge is for a particular purpose which is ancillary and necessary for the structure. Thus in Dundalk UDC v Conway [1987] IEHC 3 land beside and under a bridge which was dedicated to support and maintenance was held not to have been adversely possessed. Where land is not supporting structures, the first point of analysis should be the nature of that land, be it agricultural, tillage, grazing, forestry, bog or limestone karst. It is the ordinary use to which such land may be put that assists in determining whether possession has been taken of it. A residential dwelling is defined by the fact that people live in it. Possession is taken of a flat or a house by moving in to it and living in it as if the place belonged to the possessor. Of course, the majority of such cases are concerned with overholding after the right of the landlord to rent has been responded to by non-payment by the tenant. As to when such a right of action accrues to the landlord, when time begins to run adversely, is not for decision now. Where what is involved is a flat within an apartment complex, ordinarily the squatter or the overholding tenant will occupy one particular dwelling. Adverse possession rights to an entire complex do not accrue by taking possession of a particular defined unit. Thus the character of the intrusion onto another’s land ,premises, or structure, the extent of any continued use by the holder of title, the nature of the ordinary occupation that would be expected and whether there are defined boundaries marking the extent of any claimed possession are all factors that require consideration.
9. It cannot suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. What is required is a use inconsistent with the title-holder. Relevant, therefore, is the extent of the land or premises, the character of the realty and the ordinary use to which same would be put. In a series of cases, it has been consistently held that a particular analysis of the individual circumstances of possession must be made by the trial judge. In Murphy v Murphy [1980] IR 183 at 202, Kenny J explained the nature of possession which is adverse thus:
In s. 18 of the Act of 1957, adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v Griffin [[1969] 1 WLR. 23.]
10. While an ouster of the title-holder is not required, in the sense of acts to physically dispossess that person, such user as the character of the land or premises ordinarily and reasonably suggests is required in order for possession to be adverse. Quoted with approval in Bula Ltd (in receivership) v Crowley (No 3) [2003] 1 IR 396 at 425 per Denham J, is a classic statement to that effect by Lord O’Hagan in Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at 288:
As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.
11. The cases set out in Canny - Limitation of Actions (Dublin, 2010) at 67-70 are also illustrative of the individual analysis that such cases demand. In argument, counsel for CIÉ claimed that some kind of sign should have been erected outside this field asserting ownership by Dennis Dunne. While there may be some suggestions from cases in other jurisdictions illustrating how possession may be rendered adverse by this kind of dramatic manifestation, any such requirement does not exist in this jurisdiction. Nor could such a suggestion be elevated to a rule of law. It might merely be an instance of how possession adverse to the title holder might be taken. In Powell v McFarlane [1969] 38 P&CR 452 at 478 suggests “ploughing up and cultivation of agricultural land”, “enclosure of land by a newly constructed fence”, and “a notice on land warning intruders to keep out” as instances of positive activities that speak loudly of possession. These may be examples relevant to particular cases. Individual analysis of circumstances is required, however, in all these cases. What is required is possession of an unequivocal character that there is a person occupying adversely to the title holder. As Slade J put the matter in the Chancery Division of the England and Wales High Court, and as Clarke J accepted in his judgment, what is necessary to show adverse possession is “an appropriate degree of physical control”. O’Hanlon J put the matter thus in Doyle v O’Neill (Unreported, High Court O’Hanlon J, 13 January 1995), cited in this case by Clarke J in the High Court, at 20:
In order to defeat the title of the original landowner, I am of the 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 alerted 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.
12. While in some cases the title holder’s intention for future use has defeated what might ordinarily seem a complete form of occupation by the party claiming adverse possession, this is not determinative and may be no more than a factor; see Leigh v Jack (1879) 5 Ex D 264, Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94, Cork Corporation v Lynch [1995] ILRM 598, and to the contrary Seamus Durack Manufacturing Limited v Considine [1987] IR 677. The matter does not now arise for decision. While Clarke J preferred the latter case, counsel for CIÉ conceded that for much of the decades past, CIÉ had no particular plan for this field. Hence, no ruling is made as to future intended use on this appeal. Clarke J correctly identified that mere occupation is not enough to ground a claim of adverse possession and that what is also required is that the ostensible adverse occupier of the land does so with the intention of excluding the original owner. The matter is put thus in Halsbury’s Laws of England, volume 68 at para. 1080 of the 5th edition:
For there to be adverse possession the person claiming possession should have the necessary intention, that is, an intention to possess the land to the exclusion of all other persons including the owner with the paper title so far as is reasonable and so far as the process of the law will allow. An intention to use the land merely until prevented from doing so does not amount to the requisite intention.
13. Intention to possess may be proven by direct testimony but, given the tendency towards mistakes of memory and exaggeration in such cases, is perhaps more reliably established as an inference from the particular circumstances of a given case; in other words, intention to exclude the owner is best judged from the facts on the ground. That will be a matter for the trial judge. Where no, or minimal, use is made of land, it may be a simple matter not to draw an inference that there was an intention to exclude the title holder; an instance being Seamus Durack Manufacturing Limited v. Considine. An example of the absence of an intention to possess is Feehan v Leamy (Unreported, High Court, Finnegan J, 29th May 2000) where the claimant had asserted that a farm, of which he later claimed occupation, was in fact owned by someone in America. The circumstances constituting possession will inevitably be various, but fundamental is that the new possessor takes occupation of the land or premises, or a defined portion thereof, with a view to the exclusion of all others. Such possession must not be by force, deception or with the permission of the owner of the legal title; nec vi, nec clam, nec precario. Hence, lands that are overheld but where there is a mortgage of the land to another party are a particular circumstance; Ulster Bank Limited v Rockrohan Estate Limited [2015] IESC 17. Licensees are another special case. Thus, permission to occupy removes the adverse element from the use of land; Murphy v Murphy [1980] IR 183 at 195.
14. As between the person claiming to adversely possess land and the original owner, the balance tends towards the latter in that any action demonstrative of the assertion of the original title will stop time running. Such acts may be minimal. At paragraph 4.9 of his judgment in the High Court, Clarke J thus correctly encapsulated the relevant principle:
In Powell v. McFarlane Slade L.J. noted, at p. 472, that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.” It is, therefore, important to emphasise that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.
15. Halsbury at para. 1081 puts the principle in a similar way:
Where, having taken adverse possession of unregistered land, a trespasser expressly or impliedly acknowledges the title of the owner, time will start to run afresh against the owner from the date of the acknowledgment. However, an acknowledgment of title made after the expiry of the limitation period will not suffice to revive the owner’s title. There is no similar provision in the case of registered land.
At para. 1082 of Halsbury, the law is stated to be that the discontinuance of possession must be by the party entitled to the possession. Trespassers coming in and making a nuisance are not asserting the right of either the title-holder or of the party claiming possession adverse to the original owner. One of the acts of entitlements of a landowner is to allow others to enter, cross, use or to otherwise enjoy land according to whatever permission is given. Adverse possession is the taking of land to the exclusion of the title-holder and to the exclusion of others. It can be evidence that land was not taken possession of to the extent that its character would ordinarily and reasonably suggest that paths were not blocked off, that prior users continued in their activities on the land and that shortcuts through the land continued to be asserted to gain access to a public utility. There is a very big difference, for instance, between inviting people onto a property for the showing or exercising of horses and those same people asserting a user as if the land in question was just general waste or unused land that might be resorted to by anybody. That difference may be summed up in stating that control over land is a fundamental aspect of occupation.
16. The case Convey v. Regan [1952] IR 56 is authority for the proposition that where the actions of the new occupier are equivocal as to the dispossession of the title-holder, as for instance where a bare grazing right is exercised instead of an occupation of the land, circumstances may suggest a failure to achieve adverse possession. In that case, the principle was put by Black J thus at 59:
The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner’s lands, he must show that those acts were done with animus possidendi, and he must show this unequivocally. It is not, in my view, enough that, the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or to a profit à prendre. When the acts are equivocal - when they may have been done equally with either intention - who should get the benefit of doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.
17. Individual circumstances will vary from case to case, however. It may be better to acknowledge that land which is in reality capable only in its ordinary character of being used for rough grazing, may be fully occupied by placing animals on that land and managing it for that purpose for the entirety of the limitation period. There may be circumstances where it is reasonable to infer only the assertion of an incorporeal use and it may be that the facts only support such a use. What is clear, however, is that the analysis of the relevant law by the trial judge on all of the principles which are relevant to this case was unimpeachable. Hence, no errors of law have been identified on this appeal. The particular circumstances of occupation must now be turned to.
Facts from 1977 to 1993
18. In evidence at the trial in the High Court, Dennis Dunne claimed to have started occupation of this 3-acre field in 1977. His testimony in that regard, however, could best be regarded as equivocal. Working, as he then did, on buildings and delivering coal and other fuel to houses in the area by way of horse and cart during the winter, and owning at that point in time one or two horses, he used to keep them on a green near his home. This was about two miles away. He accepted that what he was then looking for was a place to give them “a bit of feed and shelter”. During that time, there was a well on the property from which water could be drawn. Given that the watering of animals is a serious task for anyone keeping livestock, it is therefore inconsistent with possession of this land that Dennis Dunne allowed the nearby caretaker of a CIÉ cottage to enter the land and to shut the well because of the danger posed to his children. While the evidence is equivocal regarding where the well was situated, possibly outside of the boundary now claimed, the experience of Seán Kavenagh of buying and attempting to restore Coolevan house across the hedge to the northwest in 1990 is more instructive as to the degree of control then being exercised by Dennis Dunne. At that stage, Seán Kavenagh describes “one or two” horses being present in the field. When asked as to whether children appear to have horses in the CIÉ field, he answered: “All the time. It was absolutely a nightmare for the first couple of years I was there.” Dennis Dunne was described as being there “more regularly than most.” Other people would, however, have horses and children “would be chasing the horses around the field.” This required him to “go down and get over the fence” because “animals were being chased around the field with ropes hanging out of them.” Seán Kavenagh attempted to solve this problem by approaching CIÉ with an offer to buy the field. Another circumstance relevant to occupation was that people living in Moorfield housing estate who used the railway to commute would take a path across the Kavenagh land and through this field to access Clondalkin station. While Seán Kavenagh’s descriptions of the problems in attempting to stop this trespass on his land, where there were similar problems, does not necessarily lead to an inference that the same things were happening on the disputed land, the reality is that there is a straight line between the housing estate and the station going through both fields. In addition, Clarke J examined a series of aerial photographs which have also been produced in evidence before this Court. They show a set of informal pathways which traversed the land. Further, is clear from the sequence of photographs that the level of usage as a casual shortcut is more apparent from the time prior to the purchase of Coolevan and also becomes less when fencing was put up by CIÉ on a short strip near the railway station from 1993 on. Before this Court, the complaint was made that a veterinary surgeon who attended to Dennis Dunne’s horses was not called to give evidence before the High Court. Ultimately, any such decision is a matter for the client in consultation with his solicitor and no appellate court can second-guess why a witness was not called as consultations in aid of litigation are privileged.
19. It may also be commented that further evidence against the adverse possession by Dennis Dunne of the field was provided by the nearby caretaker for CIÉ, who seems to have been, or who was at one stage, a CIÉ employee and whose son gained ready access to the field and simply walked around it. The evidence went so far as to describe local children corralling in horses by using makeshift defences of pallets. If this was an activity encouraged or permitted by Dennis Dunne, depending on the precise circumstances, it might not be fatal to an adverse possession claim. However, there was no evidence that this was with his express approval but, rather, that the balance of the evidence seems suggest that he could do nothing to prevent it. In addition, aerial photographs did not show the building of stabling and while there is a dispute as to what was burnt out in a malicious fire and as to what replaced it, the reality is that some improvised stabling was provided for up to two horses and this may previously have been a pigeon loft. Clarke J held that there had been no fencing off of a particular area or any sufficient demarcation whereby it might be said that - while exclusive occupation had not been taken by Dennis Dunne of the entire field - some portion of it might have been under his sole control. Clarke J held that he built “a small structure of the top apex of the land” prior to 1993 “which lasted for approximately one year before it was destroyed by fire” but that all the other structures, of which photographs have been shown to this Court on appeal, post-dated 1993.
20. Clarke J further held that there were very few horses on the land up to that year; “perhaps or at most, on occasion, four”. On the question of the paths through the field, he held at paragraph 5.9 that the aerial photographs for the period in question:
…seem to show that there were a significant number of informal pathways through the lands with breaks in the boundary consistent only with the fact that the lands were used by local people as a means of gaining access across the lands from the neighbouring housing estate to the area of the station house. I accept Mr. Dunne’s evidence that he engaged from time to time in putting up some fencing but I am not satisfied that significant work was done in that regard prior to 1993. If Mr. Dunne had maintained a strict attitude to building and maintaining significant fencing, then it seems unlikely that the informal pathways to which I have referred could have been in existence. The fact that those pathways seem largely to disappear during the latter 1990s (from the evidence of the same aerial photographs) suggests that significant fencing only occurred at or around that time rather than earlier.
21. The trial judge also made a definite finding of fact, at paragraph 5.10, as between the evidence of Dennis Dunne and those witnesses supporting his case, and the assertion by CIÉ that there had been insufficient occupation of the land up to 1993 and that this had not been exclusive:
There was also conflicting evidence as to the extent that others, particularly local children, kept ponies and horses on the lands, at least during some of the relevant period. There were other lands adjoining the disputed lands which were, at least until more recent times, largely unoccupied but which were progressively brought into use as a scrap yard. Those lands were, on all the evidence, frequently used by local children for keeping horses. I am also satisfied that, on the balance of the evidence, some use was made by such children of the lands in dispute at least up to the late 1980s. It is clear from the aerial photographs that the boundary between the various lands was quite porous up to that time. While Mr. Dunne may well have been the predominant user of the lands at all material times I am not satisfied that he was the exclusive user (that is to say that he had excluded the local children entirely) until the late 1990s.
22. In consequence of a review of the evidence relevant to these findings of primary fact, there is nothing to suggest that an entirely unreasonable analysis was made of the evidence by the trial judge. On the contrary, in some respects a view quite favourable was taken towards Dennis Dunne’s case but, in all the circumstances, even taking his case at its strongest, it was insufficient to establish adverse possession as against CIÉ.
Possession between 1993 and 2006
23. A claim was first made to CIÉ, by letter dated 29th September 2006, from Dennis Dunne and another individual, that they jointly owned the land by means of adverse possession. Shortly thereafter, proceedings were issued in the sole name of Dennis Dunne and the counterclaim by CIÉ followed. If a claim of adverse possession had not succeeded in the 16 year period up to 1993, it was impossible on the facts before the trial judge in the 13 year period that followed. Seán Kavenagh, as a neighbouring land owner, had complained by way of a solicitor’s letter to CIÉ dated 18th June 2001 that the caretaker at the station house had “permitted a number of horses onto your lands and furthermore the owners of the said horses have now commenced to construct a shared/stable on the lands for the purposes associated with the keeping of these horses.” The gravamen of the complaint was “the inadequacy of the fencing on your lands which has led to some of these horses being caught up and badly injured on the wire fencing around your property.” While the claim that a stallion had got “very badly cut in his attempts to make his way” through wire fencing, the issue of whether Dennis Dunne owned the horse or not being irrelevant, the reality is that, shortly following this letter, CIÉ employees went into the field, perhaps fearing incursion by animals onto the railway line, and repaired the fencing. Whether Dennis Dunne was present for this or not, this action was an assertion of ownership by the owner of title to the land. Hence, unless title had been established through the efflux of time up to that point, time had begun to run again thereafter as to any claim of adverse possession. Clarke J referenced this incident in his judgment at para. 5.3 and correctly analysed its effect. In addition, there was also the period of approximately a year and a half from 1993 to 1995 when renovation of Clondalkin railway station was taking place. This involved an incursion onto the land by CIÉ at the southern boundary with the railway tracks, as the trial judge made clear at paragraph 5.2:
It is clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. I am satisfied from the relevant maps and photographs that it must necessarily have been the case that, at that time, at least a portion of the lands which were part of the triangular area must have been occupied and used by CIE for the purposes of the station works. Mr. Dunne accepted in evidence that workers on behalf of CIE were in the field at that time and up to 1995.
24. Clarke J held, at paragraph 5.4, that having “regard to the very low threshold which, on the authorities, I am required to apply to acts of possession by the paper title owner” the repairing of the fencing, perhaps only at one boundary, the construction of a new footbridge, the extension of the station platform and the replacement of a stone and brick wall with security fencing at the southern end of the property together amounted to sufficient acts “of possession … of the lands in question to negative adverse possession at the relevant times.”
25. All of the findings of fact made by the trial judge were supported by evidence and could not be construed as being an unreasonable or perverse analysis. Rather, the run of the evidence was entirely in accordance with Clarke J’s findings.
Result
26. The legal and factual reality is that Dennis Dunne did not make sufficient use of this 3-acre field belonging to CIÉ over an uninterrupted period of 12 years so as to be able to establish adverse possession. For the first 16 years, his use of the land was both sporadic and lacking in exclusivity. Other people were bringing horses onto the field. Additionally, the caretaker for CIÉ, who was occupying the station cottage in Clondalkin, felt it was his right to simply wander around in it as he saw fit. While this might have been explained in the context of the friendship between Dennis Dunne and this gentleman and his family, what could not be explained were clear physical signs - as shown on aerial photographs - of habitual incursion by local residents who used the field as a shortcut to Clondalkin railway station. Other people apart from Dennis Dunne were also using the field. While CIÉ had no particular plans for this land, the recent expansion of Dublin and its commuter belt has seen at least some of the land being adopted in the context of the expansion of the westwards rail system from 2 tracks to 4. The year 1993 is, in that regard, a watershed in the sense that 23 years ago the rail system was already under pressure and this involved CÍE working at the southern end of the field, taking part of it to extend the station platform, building a pedestrian bridge and replacing the relevant boundary with secure fencing. These actions are dated as between 1993 and 1995. While the reason for not then asserting a claim of adverse possession, after alleged possession for 16 years, was that Dennis Dunne felt that “no one can stop progress” , as he told the Court on this appeal, this failure to assert a claim then could cast considerable doubt as to whether there was ever an intention up to that time to displace the title-holder. What was certainly missing was occupation through sufficient acts of possession to unequivocally indicate that he was taking possession of the land. An owner’s rights remain until such time as title is established by adverse possession through 12 years of use and occupation. That is simply not present in this case. Where the owner asserts rights to property through, as in this case CIÉ did, repairing fencing in 2001 and, earlier in 1993, removing a wall, culling portions of the land and establishing modern fencing to protect a railway, time thereby has ceased to run in favour of the person attempting to establish adverse possession and the clock must be started again.
27. Exclusive possession amounting to occupation of this land was never established on the evidence. The title of CIÉ to the land is, on the other hand, clear. While this result is disappointing for Dennis Dunne, he and his family can console themselves that the land which this Court is now firmly of the view that they do not own, was treated with respect by them and that many gained enjoyment from the horses and other animals which they owned and sometimes kept there.
