High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neutral Citation no.  [1999] 1943	Ref:	MCCE2727
Judgment: approved by the Court for handing down	Delivered:	16/06/99
(subject to editorial corrections)

                                                                      

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                             QUEEN'S BENCH DIVISION

 

                                                               ------------

 

BETWEEN:

                                     SEAPORT INVESTMENTS LIMITED,

                        SEYMORE HENRY SWEENEY & CAROL SWEENEY

                                                                                                                             Plaintiffs;

 

 

                                                                    and

 

 

                ANDREW CAMERON MITCHELL BAILEY, JOHN CROOKS

                                        AND THE ATTORNEY-GENERAL

                                                                                                                         Defendants.

 

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McCOLLUM LJ

 

            The first-named plaintiff is the owner of a house and lands known as Runkerry House situated on the coast near the Giants Causeway in North Antrim.  No question as to its title arises but the second and third plaintiffs have been joined as also having a proprietary interest.

            The first, second and third-named defendants, of whom only the third has taken an active part in the proceedings, are local residents and the Attorney-General is joined as a representative of the public interest.

            The action is one of trespass and the issue is the existence or not of a public right of way over part of the plaintiffs' property.  In order to determine this question it is necessary to consider what is known of the history of the premises both in a period outside living memory and one in respect of which witnesses have been able to give evidence of their recollection.

            Runkerry House was built in or about the year 1883 for Lord MacNaghten.  Older maps show a building in the vicinity described as Runkerry House but this appears to have been at a slightly different location.  Lord MacNaghten was the scion of a family of extensive local landowners, part of whose holdings surrounded the site of both the old and the present Runkerry House.  The latter has been erected in a situation which is somewhat exposed to the sea.  Unlike the majority of stately houses in Ireland it is not surrounded by a demesne wall or guarded by entrance gates.  The avenue to it is a continuation of a public roadway and it appears that for many years there was no physical obstruction to prevent persons using the public road from continuing on and passing over the avenue.

            One issue between the parties is as to the point where the public road ceases to be public and becomes part of the private approach to the house.  There is also an issue as to whether an access leading from the avenue to what is now the North Antrim cliff path forms part of the public right of way allowing the public to traverse along the avenue and from there to the cliff path, or to make the return journey.

            It is difficult to describe the situation without reference to a map and for this purpose I have chosen one of the maps (Map 13) put in evidence by the plaintiff because it contains most of the relevant features in a compact way. 

            A road called Runkerry Road gives access to the premises.  This road forms a fork with the old road which ran from Bushmills towards the Giants Causeway which was replaced many years ago by another section of road.   A short distance from the fork, Runkerry Road turns sharply left and soon proceeds through a cluster of buildings called "the Clachan".

            Just before the bend to which I have referred a level crossing lay across the old tramway line to the Giants Causeway and enclosed by the fork of Runkerry Road and the old Bushmills/Giants Causeway road lay the old tramway terminus, which is now a carpark and toilet block.  The tramway ceased to carry the traffic for which it was intended many years ago but the land has been reserved by the County Council and current intentions are that the tramway should be re-opened.  The public have used the tramway as a pedestrian way and should the tramline be restored it will be part of the arrangement that a public pathway is created alongside it.

            Up until 1950 the Clachan consisted of farm buildings used in connection with the farming of the surrounding land, which belonged to the MacNaghten family, and dwelling houses occupied by employees of the family.  The most substantial house in the Clachan was occupied for many years by the land steward for the property.  It was called Blackrock House and it is apparent from the correspondence that it was intended to be used as a residence for the last of Lord MacNaghten's daughters in her later years but if she moved into it she only survived for a very short time. 

            The defendant, Mr Crooks, who by consent had the right to begin the action, gave evidence that from the Clachan at a point marked B on the plaintiffs' Map 13 to a point where it turns and gives a view of Runkerry House the roadway has been freely used by the public which has proceeded then to go through a well established gap in the escallonia hedge which bounds the roadway to the south and made its way down to a small river which abuts the grounds of the property and has crossed the river either onto Blackrock Strand or the sand dunes behind it.

            The third-named defendant's case rests on two grounds.  (1) That evidence from a grand jury presentment of 1816 shows that provision was made for repair by the public of a road which must have extended along the line of and at least to the point where he conceives that the road ceases to be public and (2) That a public user of the roadway and the path to the stream has been such that it is proper for the court to infer that the way has been dedicated to the public at some time by the owner of the premises.

            I heard a number of witnesses over the course of a 9 day hearing.  I would commend all of them for their honesty although in some cases their recollection may have been clouded or even a little distorted by the passage of time. 

            It is clear Runkerry House was occupied up until the year 1950 by daughters of Lord MacNaghten. 

            I am satisfied from the evidence that the premises were run as a substantial estate with a number of employees constantly engaged in looking after the property.            To the north of the disputed part of the carriageway, the extensive walled garden must have produced more than was necessary for domestic consumption in Runkerry House; some of the surplus was taken to Bushmills to be sold and some was sold on the premises.

            In addition a salmon fishery existed at the slipway to the south of Runkerry House in which some fishermen were involved who were also employed by the MacNaghten family.  Nets were laid in the sea and the fishermen came daily from Portballintrae to empty the nets and bring the fish back to Portballintrae for cold storage.  Normally they came by boat but if the winds or tide were unfavourable they walked along Blackrock Strand to the stream already referred to and made their way to the slipway by a path.

            I am satisfied that that path originally existed to provide access by employees of the family to the hydraulic rams which provided a water supply to the house from the stream and also for the collection of fresh drinking water from a well which lay on the opposite side of the stream.

            In 1951 the building and grounds were conveyed to the Ministry of Finance which leased them to Antrim County Council and from that time until 1974 Runkerry House was used as an old people's home.  During much of that time the number of residents was in the region of 50-60 and there was a staff of 15.  There was also a gardener.  About half of the residents were ambulant and walked freely in the grounds and indeed outside them and the home received a normal complement of visitors. 

            In or about 1974 a new home was being constructed and Runkerry House was no longer needed as an old people's residence and it was subsequently leased to Rathgael and Whiteabbey School and was used thereafter as an outdoor pursuit centre for inmates of the young offenders centre.  This usage stopped in 1994 and the premises were subsequently sold to the plaintiffs.

            This brief review of the facts will be augmented during the course of my review of the evidence of the various witnesses.

            The third defendant, Mr Crooks, lives presently at 20 Runkerry Road and has done since 1986.  His date of birth is 21 November 1952 so that he can never have known the premises when members of the MacNaghten family still resided there.  Prior to 1986 he lived at Causeway Road, Bushmills and he gave evidence that when he was a boy he visited Runkerry for fishing when he was between the ages of 12 and 14.

            He fished at Blackrock near the slipway.  To get there he came by way of Runkerry Road, the disputed carriageway, through the hole in the escallonia hedge and along the path towards the slipway.  He said at that time there was no gate at any point on the carriageway, the surface of which was tarmac.  He said he still fishes up to the present time, but only goes when it is calm which he said is not very often at Runkerry.

            In addition in his teenage years he and friends would meet some of the girls who worked at Runkerry House and they would walk along the North Antrim cliff path. 

            When he was a boy he said he crossed the stream by using stepping stones.  He identified a bridge which presently crosses the stream which he said was of recent origin, but there had been an older bridge a little up stream.  The stepping stones he said were between the location of the two bridges, neither of which existed in earlier days.

            The National Trust had put up the bridges and they maintained steps up towards the North Antrim cliff path from a point at the end of the older bridge.  Those steps led straight up to Runkerry Road and one could make a left turn for the North Antrim cliff path or a right turn into Runkerry Road.

            There had also been a path up the slope with foot holds following a different route than that of the steps, although close to them.  The gates were erected after the use of the premises changed to that of a young offenders centre.  A gate was erected at point number 2.  He did see the gates closed on occasions and there was a notice stating "Approved Vehicles Only".  The gates may have been closed once a year. 

            There was a space cut out of the hedge at the edge of the gate which could be walked around.  One could also get a bicycle or a pram through that gap but not a motorcar.  He had seen other people walking up and down more frequently at the weekends and at summer time.  He also saw people walking in the gardens.  He was never questioned about his own presence or asked to leave and he neither sought nor was offered any permission.  His access was never blocked.

            In October 1996 Mr Seymour Sweeney, one of the defendants, stopped him on the carriageway and told him that he was the new owner.  By that time a further set of gates had been erected and there were security guards to prevent people going along the carriageway, but he did not notice any change in the signs.

            To the right of the carriageway coming from Runkerry Road, there was a garden and a pursuit centre.  Mr Sweeney had asked him not to walk down the road again as it was private property.

            Mr Crooks does not remember the tramway ever having been in use, but people did walk along the route of the tramway which he regarded as a public right of way. He was referred to another way which ran from the  Old Bushmills/Giants Causeway Road through the sand dunes across the tramway and towards the beach which is called The Sandrodden.  Mr Crooks said he rarely used it because of its condition. 

            Dr Albert MacLaine was born in April 1914 and his family moved to Portballintrae in 1924 and became owner of what is now known as the Beach House Hotel.  That was his home until a period of service in the Royal Air Force from April 1940 until September 1945.  He had studied medicine at Queen's University from 1932-1938 and during that time had spent his vacations in Portballintrae.

            In the meantime he had married and after war service he returned to Queen's University for further studies which he completed in July 1947 when he received a DPh.  He and his wife moved to Garvagh in 1947 where he was a medical practitioner until 1967 when he returned to Portballintrae and has lived there ever since.

            Dr MacLaine said that in the 1930s it was possible to cross the stream, already referred to, which was strewn with stones and then to mount the grass bank between the stream and the carriageway using foot marks in the grass, then proceed up through the gap in the escallonia hedge and walk up the carriageway towards Runkerry Road.  He frequently made the walk with his fiance in the years 1938 and 1939 when he married.  He said he has a distinct memory on one occasion of sheltering with his fiancee in the escallonia hedge.  He does not think there was tarmacadam on the road at that time.  They walked along the road to the terminal of the electric tramway, which was open until 1949.  To return to Portballintrae they either retraced their steps or walked along the tram track, although the trams were still running.  They rarely used The Sandrodden which was used by horses and carts as it was a rough and rutted path and was not much better now.  The carriageway and Runkerry Road were "user friendly".

            There were no gates on the path in the 1930s.  He would have used it two or three times a week before and after the war.  During his time of medical practice in Garvagh he would regularly visit Portballintrae and use the path occasionally, possibly three or four times a year.  Since retiring to Portballintrae he has used the path very little.

            Other members of his family, which consisted of his parents, three sisters and two brothers, used the pathway, but he could not say to what extent.  It was also used by Hotel guests, the Hotel could accommodate up to 50 people or even more.  He worked in the Hotel as a boy and visitors looking for a comparatively short walk would be advised to follow the route described or to use the tramway.

            The Hotel went out of his family's ownership in about 1945 and he purchased it again in 1967 and ran it with Mr Brian McMillen for a period and ran it himself for  a further 10-12 years with the help of a manageress.  During that period he was meeting guests daily and would have recommended the same walk to them.  He was never aware of any challenge to Hotel guests using the carriageway.

            Mr Ian Alexander Coulter, an ordnance surveyor, gave evidence relating to interpretation of ordnance survey maps.  He also told the court that he had lived in Portballintrae since 1990 and had visited the area in dispute both when walking and running.  He said he had probably gone thirty times through the gap in the hedge and he had seen other members of the public enjoying it.  Use is more intense at weekends and during the summer time.  He had never been stopped or been given permission.  He had never seen any of the gates closed and had not noticed any private notice.  There has always been a footbridge there in his experience with wooden steps constructed up the slope to the gap in the hedge.  He had never believed himself to be a trespasser using that route.

            Mrs Annie Jolly was deputy matron at Runkerry from 1960 and matron from 1963 until 1976.  There were some 60 residents in the house.  This may have been reduced by 1970 to 50 and then to 40, waiting for an alternative home to be built in Ballycastle.  About 50% of the residents were mobile and some non-mobile people were brought out to the fresh air in wheelchairs.  She was not aware of any gates on any part of the road.  She described the walks used by the residents which included passing through the gap in the escallonia hedge.  In addition she said in the summertime people used the path quite frequently, hikers and other people.  Members of the public used the path as well as residents.  Mr Niblock who was head of the committee for the home never took any action about it.  She said she was not interested in the set‑up but simply in looking after the residents.  She never saw the gate at position G2 on the map.  It had only been a short time earlier that she had been asked to recollect its existence.

            The home employed a gardener but she had very little to do with that.  She said they never had cars parked on the avenue and if they were they would ask for them to be moved.  It was private to the residents.  Residents were able to walk round the gate through the opening in the hedge at the gate.  She said "We would be concerned about privacy but we had no objection to people walking down the road and going through the hole in the hedge".  She said she had the impression that the grounds were private, but she would permit people to use them.  They were doing it before she was there so she just let them continue on.  She never saw the public coming up to the house.  Mr Dallas was the gardener.  She would only ask a person to leave if she found him or her undesirable. 

            Mr McBride had taken photographs and made some helpful maps and drawings.  I shall be commenting on the maps and their implications at a later point in the judgment.

            Mr McKay was born on 22 June 1922.  He visited Runkerry House from around 7 or 8 years of age.  He went to the fishery with his father.  For generations his family had been involved in commercial salmon fishing.  His father when delivering his own salmon catch to Portballintrae would sometimes call at the fishery at Runkerry to discuss salmon landings.  He had a model T Ford in 1924.  He would drive it down Runkerry Road along the carriageway and up towards Runkerry House where he would turn left and park on the access down to the slipway.  In those circumstances he did not use the gap in the hedge.

            He recollected himself when a schoolboy sometimes calling either to get vegetables at Runkerry Gardens and also sometimes with his brother he would have gone down to the slipway possibly with messages for the foreman.  He said invariably there were quite a few people around who were strangers to him, possibly visitors to the area.  He would see them meandering along the road at their leisure.  He was quite familiar with the place up until about 1940 when he was 18. 

            A number of years after the war his visitations to the fishery were very rare.  He saw "any number" of people who were visitors walking or meandering down Runkerry Road.  He could not say if he encountered any past the hole in the hedge.  He was not aware of it in those days.  He had major surgery in 1980 and during his rehabilitation was advised to walk.  He walked along Runkerry Road and the railway track.  Occasionally he used the bridge and steps and from them onto Runkerry Road.  It never struck him that he was trespassing.  In better weather he walked at least once a week.  "Any number" of people enjoyed the walk as well.  He found little difference between using Runkerry Road and the tramline.  He was never challenged.  He never found the gates closed.

            Mr McKay named some of those who had worked at the fishery as Jim McMullan, Benny McMullan, John Maxwell, John Fane, Archie Fane and Jack Forbes, who was fishing manager succeeded by Dan Cochrane.  His father occasionally transported fish by road to Runkerry to Portballintrae.  The slipway was MacNaghten's private fishery.  The house was quite close to the sea, so much so that waves sometimes splashed the houses.  It was extremely exposed.  The witness himself is and was quite well known at Runkerry and local people would recognise him.  He said there is tolerance in the country and people are respectful and tolerant.  The tramway closed in 1947.  He said "I would certainly not make any attempt to trespass".

            From 1976-1980 he was a member of the Liaison Committee for the Young Offenders Centre.  They met in Runkerry House.  He has known Mr Busteed and his family for many years. 

            For the plaintiff the following witnesses gave evidence. 

Mr Bustard

            He had lived at Bushfoot House, Portballintrae since September 1975.  He came as director of Runkerry Centre, which was an outdoor pursuit centre for young offenders, in 1975.  The home was not occupied by them until April 1976.  A gardener and handyman were employed before they moved in.  Other staff operated from his house in Portballintrae.

            The coming of the Centre caused some concern in the area of Moyle District Council and also the Portballintrae Residents Association.  He and his associates considered that the best way to allay fears was to form a Liaison Committee with prominent local people.  It met once monthly for a period which reduced to quarterly meetings for about 3 years and finally wound up by agreement, having lasted something over 4 years.

            Des Milligan was general manager for the National Trust in the area, now deceased.  He was concerned that the gate on the driveway might be closed.  When the Centre was opened the Trust had been using access to the cliff along part of the driveway to the premises and there was a path all the way to the Giants Causeway.  People could use the hole in the hedge.  The witness was keen to clarify the position.  He had no doubt that Runkerry Estate was private.  He sought advice from Mr Wesley Pugh, who was an adviser to the NIO, and who saw the leasehold document.  Mr Pugh advised that the Centre could not prevent free access to the roadway (1) by employees of MacNaghten Estate, (2) by NIO employees and (3) by the National Trust and its members.  It was agreed that they be allowed access and that people who were not otherwise recognised should be asked if they were members of the National Trust, but in later years that became relaxed.

            The witness completed his duties in Runkerry Centre in March 1994.  He would not have understood that the public had a right of way to walk along the drive.  When he came there was a tarmac road surface up to the tramway which came as far as number 25, one of the houses in the Clachan.  There used to be a silver stud on the roadway at that point and the DOE Road Service men stopped at that point.  Further along the carriageway the road had been tarmacked in the  past but had begun to decay.  The witness had the carriageway re-surfaced from point C on the map to a point in line with the slip way.  It was completely re-surfaced with tarmacadam and became slightly wider.  This occurred about 1981.

            His authorities would not allow him to tarmac outside the gate and point B-C was left unrepaired.  There were two gates on the carriageway, one across the roadway, which was a continuation of Runkerry Road, and the other to the garden, which had a wooden gate.  Signs were put on the gate across the road.  A yellow sign saying "Approved Vehicles Only" and "Runkerry Centre, Private Road".  This was just on the "V" junction in the bank at point C.

            The gate was widened with the pillar being moved into the hedgerow and a double gate replaced the single gate.  For three weeks of Christmas the gates would have been chained and locked.  Four members of staff had keys.  At Christmas it was his duty to ensure the Centre remained intact and every day he checked it.

            From 1976-1981 or 1982 the premises were available to police cadets for ten weeks of each year and each night at 10.30 or 11.00 pm those gates were closed and locked and a young cadet guarded them. 

            A further set of gates was installed at a point much nearer to the house in 1988 or 1989.  He described the position of the rams, which were in a concrete block house.        The Centre took some land to the north of the garden area and constructed an assault course on it.  They had some difficulty with local children trespassing on it and as a result it was fenced off and two red signs were put up. 

            At the time he came to the Centre there was a wooden bridge, really two telegraph poles with cross members, and it was replaced two or three years after their arrival, that is 1978 or 1979.

            The resident young offenders were not allowed to go outside the boundary fence.  It had been in a poor condition, but was re-established by the Centre along the line indicated on the map.  It was erected along the boundary from the letter D to the hole in the hedge.  It turned inward across the face of a bunch of escallonia leaving the way open.  The steps up from the National Trust path were used by people who used the driveway.  So far as he was concerned they were not making a path for the public.  He would have felt very strongly that if he had so desired he could have challenged anyone using the carriageway.

            He would have liked to have welcomed visitors especially those who were influential in the area. 

            In cross-examination Mr Bustard said his earliest recollections of the premises was when he went to buy vegetables with his mother by bicycle in the early 1950s.  He had no recollection about gates but he understood that the area was private.

Mr Dan McConaghy

            He was born on 26 February 1919 and had looked after the farm cattle and animals for Mrs MacNaghten.  He had worked in the farmyard on Runkerry Road and his family lived in a house beside the head gardener in the Clachan.  His house was opposite to the land steward's.  He had lived there until about 18 years of age in 1936.  After service during the war he came back to live at 86 Causeway Road, Bushmills after the war.  His family had a shop at the Giants Causeway in which he worked for some time and it is now run by his son and daughter-in-law. 

            He had done a lot of work at Runkerry House.  He worked on the roofs.  He had repaired the hydraulic rams for the Misses MacNaghten who had left in 1950 or 1951.  After that he did no more work there but visited the old people's home until a time near to its closure.  Since then he had visited the grounds again and sometimes took friends down to see the house.

            From the tramway crossing to the land steward's house he remembered the road had a stone and dust surface but from there to Runkerry House the surface was limestone chippings from the Whiterocks at Portrush, which had been put down by MacNaghten workers.

            At point B on the map, a post was driven into the ground with a notice attached to it displaying the words "Private Road". 

            As a boy he played down in the meadow but would never have been allowed onto the driveway between the Clachan and the house.  The gardener called Hugh Beers "would put you off straight away".  There was no gate except the one into Runkerry Gardens.

            The hydraulic rams were serviced every six months or so.  The MacNaghten ladies "admired their privacy".  Their drinking water was carried from the spring across the stream from the rams to which access was by the path down to the rams, which was also for the maintenance of the rams.  A new path was made down through the hedge. 

            He saw very few members of the public.  An occasional person went down to fish.  The witness's father would take him and some others.  The men had rods up to 18 feet long, which were kept in the turnip house at the Clachan by permission of the land steward, John McConaghy. 

            The operation of the salmon nets was under the charge of John Weir.  He was assisted by McKeag, who lived further along the road from the witness's present house.  Others came across by boat from Portballintrae and the fish was brought back there.  The witness had no recollection of cars being parked along the drive or at the fishery.  The manager of the salmon fishery, Mr Forbes, had a car.  Sir Francis MacNaghten, a brother of the ladies, sometimes parked at the front entrance.  The witness saw Sir Francis tell people that the roadway was private. 

            From 1948 he visited the premises perhaps twice a week.  He saw no-one on the driveway and did not meet members of the public there.  He just saw gardeners cutting grass and hedges.  It was the MacNaghtens drive, there was no public right of way.  The bridge across the stream was built with poles and planks.  It was only used for some disabled children who came in summer.  The Sandrodden had a sandy surface with occasional potholes which were filled in with sand.  There was no path along the headland until the National Trust made one.  They also put up the bridges.

Samuel Ernest Sheils

            This witness was born in 1935.  His father had been a chauffeur and the family had lived in an apartment at the rear of Runkerry House.  In later years his mother was cook in the house.  He lived there from 1935 until 1949 or 1950 and then moved to Bushmills.  The house was vacated and his father's job ended.  He served in the Merchant Navy from 1956 until 1985 when he was injured.

            During the years from 1935 to 1950 the MacNaghtens owned the houses which made up the Clachan and the land on both sides of the roadway was owned by MacNaghtens.  The houses were occupied by people who worked for the MacNaghtens.  Some of the families had allotments in the field on the opposite side of the tramway. 

            He described the road from the tramline to the land steward's house as compressed earth and stones and from the steward's house to Runkerry House as limestone.  Both sections of road were maintained by MacNaghtens workers.  He said there was a sign on the left-hand side of the roadway, just past the Clachan, saying "Private".  There was a gate leading up to the gardens, but no gate on the driveway.  When he started school at Causeway School he either walked up the avenue or through the gardens to get to school.  As far as he was aware it was MacNaghtens drive.  Part of his father's job was to see people off the premises.  He had to send for the police once.  His father had a boat.  He used the slipway.  He took some of the younger generation of MacNaghtens out in it when they came over for holidays.  There was a house beside the slipway.  Mr McMullan lived there in a little house.  He was an employee of the MacNaghtens at their other house at Dunderal as was his father and two or three brothers.  He knew the fishermen who worked at the fishery.  The fishery manager, Mr Forbes, was followed by Mr Dan Cochrane.  The fishermen came out from Portballintrae to check the nets morning and evening.

            What is now the North Antrim Footpath was fenced off.  Sometimes fishermen walked over from Portballintrae and would have walked round to the slipway.  Sir Malcolm MacNaghten did this occasionally during the summer.  Some local people would have gone down to fish on the rocks.  They would be employees or friends of employees.

            The witness knew the MacNaghten ladies quite well.  Miss Beatrice took quite an interest in his family.  He described the MacNaghtens as landed gentry.  They were quite generous and took a great interest in the children of the workers.  At Christmas time there was a party for children from the area.  Their attitude to persons asking permission to use the premises would have been quite good.  To gain access to the hydraulic rams one could go through the hedge from the main avenue.  There was a passage through the hole in the hedge and a path which led to the ram and on down to the cliff path or Burn.

            The gardener fetched water from the rams twice a day in a bucket or can.  The gardens were well kept and the avenue was maintained to a high standard.  There were workers employed to do all this.  The pond to the side of the path was well kept, there was a little boat on it and his father fly-fished there for trout.  There was a sign on the sea side of the hedge pointing to the rams and up to the main avenue, it was a "Private" sign.  It was facing the Burn. 

            His father delivered vegetables to Portrush and people could walk into the garden to see the gardener.  When he came to the property between 1985 and 1996 he would park at the tramway terminal.  He would go down the tramline to the Sandrodden and go round to the Giants Causeway on the cliff path and back down the road again from Giant's Causeway to the car park.  He did not really meet anyone there.  On one occasion he met Mr Bustard and he permitted him to walk down the avenue and have a look around the castle again and rekindle old memories.  After that he parked at the farmyard on the road up to the pig house.  He took it that he had Mr Bustard's invitation.  He went down the main avenue right down to the slipway and then went round the coast and back to where the car was parked.  Sometimes he walked on the tramlines, it was usually just a Sunday walk.  He would see people using the avenue.  Mr Crooks did and so did Mr Kane and his wife, who had a severely handicapped son.  He did not always see people.  He did not see any total strangers.  He did not see the hole in the hedge being used.  He himself usually went on to the slipway.  In the 1980s there was a bridge over the Burn.  He used the bridge.  There had been none in the 1930s and 1940s.  In those days they crossed the Burn on foot by stepping or jumping over it.  There was never a public right of way in his time.

            Dr MacLaine was recalled and he indicated that he had no recollection of any sign near the hole in the hedge.

Mr Martin MacNaghten

            He is a member of the family which owned Runkerry House.  He was born on 23 September 1930.  Son of Mr Anthony MacNaghten.  His grandfather, Sir Malcolm, was a judge in London and his great grandfather was Lord MacNaghten who had Runkerry House built in 1883.  Mr MacNaghten was brought up in England but spent summer holidays at Runkerry and in later years visited his great aunts who still resided there. 

            In his various visits he had no recollection of seeing anyone using any part of the disputed way as a member of the public.  He described his great aunts as people who would have valued their privacy and that he would be surprised if there would have been any public right of way on the avenue.

            The parties agreed that the roadway is presently maintained at public expense as far as the former land steward's house and that the road from that point towards Runkerry House has never been maintained by the Department of the Environment and that there is an inference that the road is adopted to the point up to which it is presently being maintained.

            Mr Maudsley gave evidence that the former tram track is owned by Moyle District Council and is presently being leased for the purpose of reinstating the tramway.  However, a two metre public footpath is to be provided by the promoter of the new tramway for use as a public footpath.  The present tram track is not dedicated as a public right of way.

 

 

Mr William John Dallas

            He was born on 15 July 1932 and moved to one of the houses in the Clachan at age of 6 weeks.  This is the house presently occupied by Mr Crooks.  He lived there from 1932 until 1952 when his family moved to Runkerry House until 1956. 

            He described his recollection of the roadway as being of stone imbedded in quarry dust and packed tightly as far as the former land steward's house and had then changed to limestone. 

            He recalled the sign which stated "Private Road" at that point.  There were no gates on the avenue when he was growing up.  The laneway towards the tramline gave access to a field where there were three allotments.  There was no public right of way over the avenue.  He and his family were not allowed to use the driveway, they went down to the tramway.  Employees used the drive as did visitors, who came to purchase fruit and vegetables.  He would go to the slipway with friends, for example the Sheils, and went to their house.  His brother, Jim, worked as a gardener for MacNaghtens.

            Mr McCartney, who had served in the Department of Finance and Personnel since September 1974, produced the files relating to Runkerry and its acquisition by the Department. 

            Mr Hugh McClenaghan, who was born in 1922, started to work at Runkerry in 1955 as a handyman at the old people's home.  He remembered the road surface as tarmac all the way up to the house.  The gate at Point C, on Map 13, was erected by him helped by Mr Steele, now deceased.  He had been asked by Mr Niblock and Mr Shaw to erect it.  This was one or two years after he started work.  The purpose of the gate was to block off the avenue.  Cars sometimes parked on it and it was impossible for the old people to walk on it.  He had no instructions to permit members of the public to use the driveway.  They were not to go that way unless in a car going to visit the old people's home.  If he had any difficulty with a car driver he was to give the number of the car to the matron and she would contact Mr Niblock or Mr Shaw who would get in touch with the police.  The gates were supposed to be kept closed, but occasionally they were left open.  They were open to allow vehicles to pass.  Some people closed the gates after passing through and some did not.  New houses were built in the walled garden in about 1974.  More people used the driveway when the Sandrodden was closed for a few weeks.  The gap in the hedge was for access to the rams for a Mr Dallas.  The witness worked on the rams.  There was a small sign up at the hole in the hedge about two feet square facing a person coming from the rams showing that the avenue was private.  It just said "Private".  He did not recollect the bridge being built or steps up to the hole in the hedge.  Between 1965 and 1974 he did not recollect people freely using the driveway.

Mr McKendrick

            He was employed by the National Trust for some 15 years and based in Northern Ireland since March 1989. 

            The Causeway Coast path is not dedicated to the public.  The Trust's power is to give rights over land owned by it, but not over land not in its ownership.  The Trust permitted access by the public, but did not grant a right.  The question of excluding anyone has never arisen, but the power to exclude individuals still existed.  The Trust agreed to construct the bridge in September 1996 and to rectify and properly document the position.  The bridge was shifted to its present position and the old bridge was demolished.  The Trust accepted that the land where the former bridge stood was the plaintiff's land and that the Trust had no right to a bridge there.  The old bridge had a narrow plank structure.

            Mr David Hutchinson was born in 1918.  His family has lived at 6 Runkerry Road at the end of the Sandrodden for generations.  He lived at No 6 from 1918 to 1954 and then spent ten years in England and has now returned.  His father worked for the MacNaghten family and also as a guide.  His first job was at Runkerry House in 1932.  He brought water up to the house from the area of the ram.  Then he worked in the garden for a further two years.  The avenue formed a private road.  He had used it for a while, but one Sunday morning he met Miss Octavia MacNaghten while riding on his bicycle and she told him that she would prefer it if he went down the Sandrodden.  He was not at any time allowed to use the avenue nor were others allowed to use it.  He recollected the sign up at the hedge on the left-hand side of the road saying "Trespassers Prosecuted".

            He took produce from the garden to some of the shops in Bushmills.  The MacNaghtens also owned the Sandrodden and there was a sign on it to the effect of "Private Road".  There was no right of way along it.  Five local farmers were allowed to draw sand and seaweed from the shore, this was recorded on their deeds.  In the 50s there was a chain across the Sandrodden or gate but the farmers objected to it.  Apart from the five farmers others were allowed to use the Sandrodden on payment of dues.  The surface of the Sandrodden was not very good but the farmers had to keep it in repair. 

            Mr Dan Cochrane was agent for the MacNaghten Estate and fishing manager.  The MacNaghten family owned the fishery and the house on the rocks.  One of his uncles lived in the house with his family.  There was a sign on the avenue stating "Private Road".  The slipway was private and indeed the entire property was private.

            He said he had last seen the sign down at the hedge in or about 1934.  A track led to the hole in the hedge.  The other sign was up at the Clachan and he last saw it probably in the 1940s.

            The law in the creation of highways is set out in Halsbury's Laws of England 4^th Edition Volume 21 paragraph 62 as follows:

                        "A road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance that as user of the right by the public 'dedication' means that the owner of the soil has either said in so many words or so conducted himself as to lead the public to infer that he meant to say that he was willing that the public should have this right of passage."

                       

            Paragraph 63 declares:

 

                        "Dedication necessarily presupposes an intention to dedicate the intention may be expressed in words or writing but is more often a matter of inference."

                       

            Paragraph 65 states:

 

                        "An intention to dedicate land as a highway may only be inferred against a person who was at the material time in a position to make an effective dedication, that is, as a rule, a person who is absolute owner in fee simple and sui juris."

                       

            Paragraph 68 states:

           

                        "A lessee cannot dedicate land as the highway without the consent of the owner of the freehold and R -v- Eastmark Inhabitants 1848 11 QB 8 77 at 883 per Patteson J:

                       

                                    `If property is under lease of course there can be no dedication by the lessee to bind the freehold'."

                       

            Paragraph 69 states:

           

                        "Where land is in settlement then apart from an express power in the settlement or parts of the powers in the Settled Land Act 1925 there can be no valid dedication of any part of the land as a highway unless all parties interested under the settlement are sui juris and concur or can be presumed to have concurred."

                       

            These statements of the law have been accepted by the parties and the issue for me therefore is one of fact to decide whether there has been an express dedication of the way in question to the public or whether its use by the public has been such that dedication should be implied.

            I am satisfied on the evidence that during the lifetime of the MacNaghten sisters the public did not use the driveway between the Clachan and Runkerry House as a matter of right.

            No doubt there was a certain amount of traffic on the driveway from its use by tradesmen and workers employed by the MacNaghtens and their families, together with visitors not only to Runkerry House itself, but to the fishery.

            No doubt there was also a certain amount of innocent trespass, but I am satisfied that any reasonable member of the public would have recognised that the MacNaghten ladies maintained the right to deny passage to anyone they chose.

            I am satisfied that there was a sign just past the Clachan indicating that the road was private from that point and that the nature of the road surface and the change in surface at the Clachan clearly established to any user that the driveway was not part of the public thoroughfare.

            On behalf of the third named defendant, Mr Morgan QC submitted that consideration of 19th Century Grand Jury Presentments established that a public road had existed along a route which included part of the avenue to Runkerry House between the Clachan and the gap in the escallonia hedge.

            A number of presentments were considered and at the conclusion of the evidence the defendant no longer relied upon the 1816 presentment.

He was also prepared to concede that the 1865 presentment did not contain an apt description of the roadway since its referred to a road from Ballycastle to Bushmills.

            That presentment was as follows:

                        "6.  To John McBride to repair 200 perches of road from Ballycastle to Bushmills between the leading road to Bushmills and the Blackrock in the townlands of Ballylinney and Ardihannon to be completed by 1 October 1865 with 50 tons of field or quarry stones broken".

 

            Mr Morgan conceded that the portion of driveway in dispute could not have been described as part of the road from Ballycastle to Bushmills.

            It is apparent therefore that the "Blackrock" cannot have referred to the precise location of the Blackrock as it is now known but must have been taken as a suitable description of a point inland from that point.

            Mr Morgan however does rely on an entry in the presentments for the Spring Assizes of 1875 in the following terms:

                        "124.  To Charles Colgan, half a year's payment to keep in repair for 3 years 370 perches of road from Bushmills to Blackrock, between Alexander Darragh's house and Blackrock, in the townland of Ardihannon - with 80 tons of stones - 1 man 1 day in week - see Schedule, No 22, Spring 1875."

 

            Unfortunately Schedule No 22 is not available.

            A rating list show that the house occupied for rating purposes by Alexander Darragh is described on the maps as Ballylinney House and Mr Morgan submits that the interpretation of the presentment must be that the road to be repaired ran from Ballylinney House to Blackrock, in the location presently so described.

            It is also shown that Alexander Darragh or Dorragh appears to have owned some houses in Ardihannon which were rented to individuals.

            A number of difficulties arise in relation to the interpretation advanced on behalf of the defendant.

            Mr McBride as engineer had made some measurements and calculations which establish that from Ballylinney House to Blackrock along the route propounded is a distance of 296 perches, a perch being 5½ linear yards, while the presentment specifies a distance of 370 perches.

            There is nothing to indicate that any roadway could have gone beyond Blackrock and it seems to say the least of it unlikely that a measurement would have been so much in error.

            Moreover, it appears that Ballylinney House is in the townland of Ballylinney and if one looks at the other entries including the 1865 one already referred to and numbers 123, 125, 126, 127, 129 and 130 on the pages photocopied of the presentments of 1875 it seems to be clear that where more than one townland is traversed by a roadway that fact is noted in the presentment.

            It would seem therefore to be odd if the house referred to was Ballylinney House in the townland of Ballylinney that the roadway referred to is described simply as "in the townland of Ardihannon".

            I am not satisfied therefore that it is probable that the presentment refers to a roadway extending from Ballylinney House to the present location of Blackrock.

            The presentment may refer to an entirely different section of road or it may be measured from a different point than the precise location of Alexander Darragh's house in which case if it follows the line of the county road which the Road Authority has been maintaining it is as likely to have terminated at the Clachan which for a considerable period of time has been the location of Blackrock House.

            I am not satisfied that any part of the roadway between the Clachan and Runkerry House was ever repaired or maintained at public expense.  In coming to that conclusion I also take into account the evidence that in the years prior to 1950 the driveway from the Clachan onwards consisted of limestone chippings and that the surface was of a different nature to the roadway on the other side of the Clachan and was much more typical of a private driveway.

            Mr Morgan recognised the legal difficulties which face him in making any allegation of dedication prior to 1950. 

            Up to his death in 1913, Lord MacNaghten would have been empowered to make such a dedication but it seems unlikely to say the least of it that a Lord of Appeal in Ordinary could have failed to make it less than clear if he had decided to dedicate part of his driveway to the public or that he would have permitted that result to have occurred through some unintended implication from his attitude or behaviour.

            There is certainly no evidence of any public use during Lord MacNaghten's lifetime and the lands having been made the subject of a settlement there was no individual between the date of Lord MacNaghten's death and 1950 empowered to dedicate the lands to public use.

            During the years up to 1950 I have no doubt that there was a certain amount of tolerance of user of the avenue.

            I am satisfied that the sign stating "Private Road" has existed at the Clachan for a considerable period of time and that this was to indicate that progress beyond that point was restricted.

            Nevertheless, many people would have had legitimate business either at Runkerry House or the slipway or to the garden where produce was sold.

            Moreover, family retainers and their children and their friends would not have been regarded as trespassers.

            It might therefore have been natural for neighbours to have felt at liberty to use the avenue but even if the MacNaghten ladies had the legal capacity to grant a public right of way, their tolerance of some public use would not in my view amount to such a dedication. 

            In 1950 the Ministry of Finance for Northern Ireland became legal owners of the property which was leased to the Welfare Committee of Antrim County Council.

            The use of the premises as an old person's home would also have involved a degree of traffic on the avenue.

            Tradesmen and visitors would have freely used it.

            No doubt also there would have been relatives of prospective occupiers and there was still rights of access to the fishery and garden produce was still being sold.

            It would not be surprising if members of the public felt free to roam within the property without any question of dedication arising.  In any case any permitted use by the Welfare Committee or its employees would not have bound the legal owners, the Ministry of Finance.

            In due course Antrim County Council's interest vested in the Ministry of Health and Social Services pursuant to Article 75 of the Health and Personal Social Services (Northern Ireland) Order 1972 and Ministries became departments in 1973.

            However, Ministries and departments are both bodies corporate with the power to acquire and hold land under Section 2(1) of the Ministries of Northern Ireland Act 1921.

            In 1976 the property became occupied by Rathgael and Whiteabbey Schools Management Board pursuant to an agreement between the Department of Finance and Personnel and the Northern Ireland Office. 

            Rent was paid in respect of the occupation.

            Again in my view landlord and tenant were separate legal entities and the Management Board did not have the capacity to dedicate the driveway to public use.

            In any case I am satisfied that no such intention was ever evinced.

            Gates were erected which were closed on occasions and particularly during the period when police cadets and prison officers used the premises.

            There would have been a certain amount of traffic regularly on the avenue.  The right of way to the fishery was recognised.

            I find nothing in the evidence of those who used the driveway and the way down from the gap in the escallonia hedge to the river to suggest anything other than neighbourly permissive use or a failure to challenge based on the fact that quite a variety of persons was entitled to access, not every incursion was noticed, and there was some uncertainty about the precise legal situation.

            This makes it unnecessary for me to decide whether the Welfare Committee of Antrim County Council or the Ministry of Health and Social Services or Rathgael and Whiteabbey Schools Management Board had the capacity independently of the Department of Finance and Personnel and its predecessor in title to dedicate a right of way over the property to the public since in my view the conduct of those various bodies did not at any time amount to such that there was either actual dedication or that dedication could be presumed.

            If it did fall to me to decide the issue I am of the view that the entities are entirely separate and distinct and that the respective tenants did not have the capacity to dedicate which remained at all times in the sole power of the Department of Finance and Personnel and its predecessors in title.  Even though different arms of Government may share common allegiance and interest nevertheless each has its own sphere of responsibility and the responsibility for the exercise of proprietorial right remained at all times with the Ministry and later the Department.

            From such records as exist it is clear that no intention to dedicate was ever formed although there was a willingness to recognise any right that may have properly existed. 

            Mr Bustard was unsure of the position and took advice which was to the effect that limited classes of individuals could not be refused access to the avenue but throughout his period of duty at the centre he was prepared to exercise what he understood to be his right to deny access to the avenue to anyone other than the groups entitled to access.

            In my view therefore there has not at anytime been a dedication to the public either expressly or by implication of any part of the avenue from the Clachan towards Runkerry House nor has any part of the way from the avenue to the river been so dedicated.

            The steps and pathway from the riverbank to the gap in the hedge are adequately explained by the usage of that way in the past by employees of the MacNaghten family, then by residents in the old people's home and later by those using the premises as an outward bound centre.

            Accordingly I make an order in the terms sought in the statement of claim.

 

 McCE2727 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

                                             QUEEN'S BENCH DIVISION

                                                               ------------

BETWEEN:

                                     SEAPORT INVESTMENTS LIMITED,

                        SEYMORE HENRY SWEENEY & CAROL SWEENEY

 

                                                                                                                             Plaintiffs;

 

 

                                                                    and

 

 

                ANDREW CAMERON MITCHELL BAILEY, JOHN CROOKS

                                        AND THE ATTORNEY-GENERAL

                                                                                                                         Defendants.

 

                                                               ------------

 

                                                           JUDGMENT

 

                                                                    OF

 

                                                        McCOLLUM LJ

 

                                                               ------------