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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dunne -v- Iarnroid Eireann - Irish Rail & Anor [2007] IEHC 314 (07 September 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H314.html Cite as: [2007] IEHC 314 |
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Judgment Title: Dunne -v- Iarnroid Eireann - Irish Rail & Anor Composition of Court: Clarke J. Judgment by: Clarke J. Status of Judgment: Approved |
Neutral Citation Number [2007] IEHC 314 THE HIGH COURT RECORD NO. 2007 No. 1837 P BETWEEN/DENIS DUNNE PLAINTIFF AND IARNRÓD ÉIREANN – IRISH RAIL AND CORAS IOMPAIR ÉIREANN DEFNDANTS Judgment of Mr. Justice Clarke delivered the 7th of September, 2007.1. Introduction 1.1 The 1840s were a time of great expansion in the building of railways in which Ireland was to the forefront. In the mid-1840s a Private Act was passed by the then Parliament of the United Kingdom of Great Britain and Ireland which was described as being “for making and maintaining a railway from the city of Dublin to the town of Cashel, with a branch to the town of Carlow”. That Act was passed in 1844 (“the 1844 Act”). 1.2 As a result, the Great Southern and Western Railway Company was established and had, under the terms of the 1844 Act, compulsory purchase powers to enable it to acquire the land necessary to construct the relevant railway. The project went ahead, the railway was constructed, and remains in use to this day. While the identity of the corporation owning the land and operating the railway has changed from time to time, it is not disputed but that the defendants (“CIE”) have succeeded to whatever interest the Great Southern and Western Railway acquired in the 1840s. 1.3 Included in the lands acquired for the purposes of the railway at that time was a portion of the track located at Clondalkin which involved a station and station house. Adjacent to the station house there is a significant triangular piece of land which was not directly part of the railway itself but which may have been used in conjunction with the railway, at least in the earlier stages of its operation. It is the ownership of that piece of land that is in dispute in these proceedings. 1.4 The principal claim maintained by the plaintiff (“Mr. Dunne”) is that he has acquired title to the land in question by adverse possession. However, it showed also be noted that Mr. Dunne did not accept that CIE had established its title to the land on paper and that question also remains in issue. While complaint is made by Mr. Dunne as to the manner in which CIE began, immediately prior to the issue of these proceedings, to occupy the disputed lands as part of works associated with a significant upgrade in the railway line, it does not seem to me that those questions have any legal relevance. Either CIE owns the land or it does not. That turns a question whether CIE has a proper title and, if so, whether Mr. Dunne has extinguished that title by adverse possession. It seems appropriate, therefore, to turn first to the title of CIE to the lands in question. 2. CIE’s title 2.1 The 1844 Act gave the Great Southern and Western Railway Company compulsory purchase powers in respect of land which was defined by reference to a map which, in the events which have happened, is now deposited in the Houses of Parliament at Westminster. Evidence was given that a recent inspection of the original of the map shows that it conforms with various plans and maps which were produced in evidence before me. It was, of course, the case that the 1844 Act did not directly transfer any lands to the railway company but simply gave to that company power to compulsorily acquire the land required. The 1844 Act also put in place mechanisms to enable such acquisition to be carried out in an effective manner. 2.2 CIE led evidence from Mr. Colin Keane, an experienced conveyancing solicitor who practises in the firm of McCann Fitzgerald. Mr. Keane was shown a series of title deeds from the latter half of the 1840s, each of which conveyed property at Neilstown, Cappagh and Ballynagigan to the railway company which, while not containing a map, specified the land being conveyed by reference to numbered portions of a map which was typically described as being “deposited with the Clerk of the Peace for the said County of Dublin”. In addition, Mr. Keane was shown a land survey done in the year 1848 on behalf of the railway company which seems to show the property actually acquired. 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. 2.3 One issue of some small difficulty arose in relation to the original acquisition of the land which was referred to in the course of the evidence. It is clear that the triangular piece of land which is in dispute in these proceedings was not needed for the construction of the railway line itself. There are, however, two bases upon which the land might nonetheless have been acquired by the railway company at that time. Firstly, the 1844 Act places an obligation on the railway company to acquire, if requested, any portions of land cut off by the construction of the railway from other lands being acquired for the construction of the line itself. Where, therefore, the formal acquisition of a portion of lands for the construction of the line itself, left a portion of the relevant land owner’s holding on, as it were, the wrong side of the tracts, that land owner could require the railway company to purchase the lands concerned. 2.4 Secondly, the 1844 Act empowers the railway company to acquire additional lands which were needed for ancillary purposes. It may well have been the case that the lands concerned, being adjacent to Clondalkin station, were required, at that time, for the purposes of housing cattle which were about to be shipped through Clondalkin station on the railway. There was evidence that such a practice was common, at least in the 18th Century, although no direct evidence that the practice was carried out at Clondalkin. 2.5 For either, or both, of these reasons it could reasonably have been expected that the railway company might have acquired lands additional to those strictly speaking needed for the construction of the line itself. 2.6 Be that as it may, the title position deriving from the 1840s is, in my view, immeasurably strengthened by the fact that there was evidence of a significant number of lettings of the land concerned dating from the 1930s up to the 1960s. Those lettings are consistent only with CIE being the owner of the lands in question. Furthermore, there was evidence that CIE has, at all material times, been the rateable occupier of the lands concerned. While this latter point may not be of any particular relevance to the adverse possession issue which arises in these proceedings, it is also consistent with the fact of CIE being the holders of the paper title. 2.7 On the basis of all of the above evidence I am satisfied that Mr. Keane’s opinion to the effect that the documents on file proffered amount to a good paper title to the lands concerned is correct. I am, therefore, satisfied that CIE are, prima facie, the owners of the land subject to the claim for adverse possession made by Mr. Dunne. I now turn to that claim. 3. The claim in adverse possession 3.1 It will be necessary to return to the facts concerning possession in some more detail when I have identified the legal principles by reference to which those facts need to be considered. Some of the facts are in dispute. However, at a general level it is accepted that from some time in the latter part of 1977, Mr. Dunne made at least some use of the disputed lands for the purposes of grazing horses. This practice would seem to have originated from a coal and allied delivery business run by Mr. Dunne’s family in which deliveries were made in the area, originally by horse and cart. While there are disputes as to the extent of the use made by Mr. Dunne of the lands over the years and, indeed, the extent to which any such use may have been exclusive, it does appear that, at a minimum, he at least made some use of the disputed lands at all times since 1977 and that, in general terms, that use intensified in more recent years. 3.2 It will be recalled that there were a number of lettings made by CIE of the lands in question up to the 1960’s. There is no evidence of any lettings thereafter and I am satisfied that no significant use was made of the lands by CIE thereafter leaving the lands open to being used, in practice, by whoever might wish. It should also be noted that the lettings of which evidence was given seem to have been for grazing purposes. 3.3 Returning to Mr. Dunne’s use of the lands, it is again common case that at least some structures were constructed by Mr. Dunne. The extent and timing of those constructions are the subject of at least some dispute. Furthermore, whether all of the structures concerned were actually on the disputed lands is, in itself, a matter of some dispute. As indicated earlier, the lands in question adjoin Clondalkin station and the station house built beside it. That station house had a garden. Between the garden and the near corner of the triangular piece of land in dispute there was, certainly in the 1970s and 1980s, a significant growth of trees and large shrubs. The preponderance of the structures built were in or around that growth of trees. The formal boundary between the triangular piece of land and the land attached to the station house appears to have been the townland boundary, but, it has to be said, on all the evidence, it is difficult to see that there was any formal demarcation of the precise boundary on the ground. The area of trees was, for many years, quite significant in width and it does not appear that there was any formal identification of precisely where the boundary between the station house garden and the triangular field could be said to lie. This question is of some relevance as the station house was initially held under a caretaker’s agreement by a former member of the staff of CIE and, after his death, by his son, on foot of a formal tenancy agreement. The station house would undoubtedly have included its garden and, therefore, any possession adverse to the interests of the tenant would, it is common case, operate only against the interest of the tenant which has since expired. This is, therefore, a subsidiary issue to which I will have to return. 3.4 Finally it should be noted, that while the need for horses in the delivery business disappeared, Mr. Dunne continued to rear horses which he used, for among other things breeding and trotting. The precise extend of the number of horses kept at the lands at various times is, at least to some extent, also in dispute. 3.5 Against the background of that general description of the facts it is necessary to turn first to the legal principles by reference to which a claim in adverse possession must be judged. In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should apply. 4. The Law 4.1 In Tracy Enterprises Macadam Limited v. Thomas Drury [2006] IEHC 381 (Unreported, High Court, Laffoy J., 24th November, 2006) Laffoy J. conducted a recent review of the relevant authorities. The dicta of Barron J. in Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 (which in turn derived from the judgment of Kenny J. speaking for the Supreme Court in Murphy v. Murphy [1980] I.R. 183, was noted to the following effect:-
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.”
4.6 It has been suggested that there are two lines of authority in relation to adverse possession in this jurisdiction. One is said to derive from the judgment of Egan J. in Cork Corporation v. Lynch (Unreported, High Court, 26th July, 1985, Egan J.) in which the English case of Leigh v. Jack [1879] 5 Ex. D. 264 was followed. On that basis, the fact that a statutory body had a future intention to use lands which had been compulsorily acquired for the purposes of a public undertaking was held to defeat the possibility of adverse possession given that the statutory body concerned had no immediate use for the lands until such time as the statutory undertaking was to take place. 4.7 However, I prefer the reasoning of Barron J. in Durack Manufacturing 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. As I understand the judgment of Barron J. it is to the effect that it might be inferred that a person, knowing that the paper title owner had no present use for the land but had a future use for it, might occupy it, not for the purposes of possessing it absolutely, but rather for the purposes of making temporary use of it until such time as the future purpose came on stream. In those circumstances the possessing party might not have a sufficient intention to dispossess the owner. 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. 4.8 I am, therefore, satisfied that I must approach the facts of this case on the basis of there being an onus on Mr. Dunne to establish a sufficient degree of possession of the land with the requisite intent. Those matters are to be objectively considered. 4.9 Two other legal issues are of relevance. Firstly it is common case that in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. 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 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. This is of relevance because there are a number of actions taken by CIE which are said to amount to acts of possession. It will be necessary to assess whether those acts do amount to possession having regard to the low threshold identified in the authorities. If they do, however, those acts will prevent time running during the period at which they occurred. 4.9 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. The real question which I need to ask, therefore, is as to whether Mr. Dunne can establish a single continuous twelve year period during the last 30 years in which he was in exclusive possession of the lands in question to such a degree as would be reasonable having regard to the standard of an owner making normal and usual use of lands of the type in question and during which twelve year period no act of possession, however slight, occurred by or on behalf of CIE. If Mr. Dunne can do that, then at the end of that twelve year period CIE’s title will have been extinguished and no subsequent act of possession on the part of CIE would be sufficient to reinstate it. 4.10 Finally it is also necessary to touch on a line of authorities relied on behalf of CIE which are, perhaps, best noted in Convey v. Regan [1952] I.R. 56 where Black J. said the following:-
4.12 Having regard to all of those principles it seems to me that the questions which I must ask on the facts of this case are as follows:- 1. Is there a continuous period of twelve years during which Mr. Dunne was in exclusive possession of the lands in question to an extent sufficient to establish an intention to possess the land itself rather than to exercise grazing rights or the like over it. 2. Is any contended for period of possession broken by an act of possession by CIE. If so time will only commence to run again when that act of possession by CIE terminates. 5. Application to the facts of this case. 5.1 It seems to me that I must look, firstly, to the alleged acts of possession on the part of CIE for if they are established, those acts define with some precision the periods during which Mr. Dunne might, in principle, be able to attempt to establish twelve years continuous possession. 5.2 The first such question concerns work carried out in renovating Clondalkin Station, which continued for a period of approximately a year and a half in 1993 to 1995. 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. 5.3 Secondly there was evidence concerning complaints made by a neighbouring land owner, Mr. Kavanagh, who was concerned with the adequacy of the fencing between his lands and the disputed lands. At times those complaints were raised by solicitors acting on behalf of Mr. Kavanagh. As a result of one of those complaints made to CIE in 2001, it is common case that CIE sent out a contractor who repaired the fences between Mr. Kavanagh’s lands and the disputed lands in or around that time. 5.4 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, I have come to the view that both of the matters to which I have referred, amount to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times. 5.5 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. On that basis it seems to me clear that no adverse possession claim can be maintained in respect of any period subsequent to a time in or about 1993 for there is not a continuous twelve year period subsequent to that time during which it can be said that CIE were entirely out of possession. 5.6 Some lands or properties may, in theory, be capable of being possessed in respect of different portions of different persons. Point 3 from the passage from Powell v. McFarlane, quoted at para. 4.3 above, notes that an owner and an intruder cannot be in possession at the same time. I fully agree. But where the land or buildings concerned are capable, by their nature, of separate exclusive occupation as to different parts, then it may be that the owner can be in possession of one part and the intruder another. For this to be so the properly in question would need to be such that its natural occupation (by virtue of, for example, clear and obvious divisions, well maintained, separate access and the like) was capable of being separately considered as to the different parts. This is not the case here. There were no subdivisions of the disputed lands at any material time. 5.7 If, therefore, Mr. Dunne is to succeed, it seems to me that he must establish adverse possession sufficient to have extinguished CIE’s title prior to 1993. There is a dispute on the evidence as to the extent of Mr. Dunne’s occupation up to that time. Firstly it seems to me that, on the balance of the evidence, and having regard, in particular, to the aerial photographs produced, there was little or no construction on the land by Mr. Dunne up to 1993. I accept his evidence that he built a small structure at the top apex of the land which lasted for approximately one year before it was destroyed by fire, but it seems clear that all other structures post date 1993. 5.8 Secondly there is a dispute as to the number of animals which may have been present on the lands. While I accept Mr. Dunne’s evidence that in recent years more significant numbers of horses may have been present, I am not satisfied (having regard to all the evidence and, in particular the aerial photographs) that anything more than a small number (perhaps two or at most, on occasion, four) were present in the period up 1993. Such a number of animals being present is, in my view, at least as consistent with the exercise of grazing rights as with ownership in particular where no significant buildings have been constructed or are in use. 5.9 In addition the aerial photographs, and most particularly the earlier of them, which date from in or around the time 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. 5.10 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 1980’s. 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 1990’s. 5.11 For all of those reasons I am not satisfied that the nature and type of occupation exercised by Mr. Dunne in the period up to 1993 was sufficient to establish adverse possession and it follows that his claim must fail. 5.12 Before concluding I should deal with a number of other issues which arose lest I be wrong in my overall conclusion. 6. Some other issues 6.1 I am satisfied on the evidence that Mr. Dunne built a significant series of relatively rough and ready, but effective, stabling and the like for his horses. By the mid 1990s the evidence establishes that Mr. Dunne had engaged in effective fencing works which led to the virtual elimination of informal pathways by 1997. It should, of course, be noted that some of that fencing was carried out on behalf of CIE as well. In addition Mr. Dunne would appear to have cleared, again in the later 1990’s, a significant portion of the trees between the lands in question and the station house. 6.2 I accept that Perry v. Woodfarm Homes [1975] I.R. 105 is clear authority for the proposition that adverse possession runs only against a leasehold rather than a freehold owner where the lands in question are subject to a lease or tenancy. There is some doubt as to whether the buildings concerned were constructed on the lands that were let as part of the station house. I am not satisfied that there was any identifiable boundary on the ground to establish the precise take which would have gone with the station house. The boundary was somewhere in the area of a large volume of trees which were progressively cleared, from his side, by Mr. Dunne with buildings being built, at least in some cases, on what would, on the ground, have appeared to have been his side. However it does not seem to me that the position as of twelve years prior to the commencement of these proceedings was one where building, at least on lands not clearly part of the station house plot, had reached any advanced stage. In particular the aerial photograph taken in October, 1997 shows a number of buildings, all of which are clearly on the station house side of the remaining narrow band of trees. 6.3 Finally I should note that I am not satisfied that the fact that the caretaker for CIE did, by common agreement, come onto the lands on a few occasions in each year amounts to a material factor to be taken into account. It does not seem to me that his actions were any different from those which a neighbouring owner might take in checking on children who might be playing on an open patch of land close to their home. 7. Conclusions 7.1 However, all in all, I am not satisfied that Mr. Dunne would have established, in any event, a sufficient level of possession of the lands to give rise to a conclusion that he intended to possess the lands, rather than use same purely for grazing purposes, until the latter part of the 1990s. Therefore, even if it had not been the case that I was satisfied that CIE could avail of acts of possession in the mid 1990s, and also in 2001, I would not have been satisfied that Mr. Dunne had a sufficient period during which he exercised a sufficient degree of possession to substantiate a claim in adverse possession. 7.2 Having been satisfied that CIE had, for the reasons which I indicated, established a good paper title to the property and not being satisfied that Mr. Dunne has established a claim in adverse possession, it follows that Mr. Dunne’s claim must fail. 7.3 I should note, however, that I have some significant sympathy with Mr. Dunne’s position. There is no doubt that he made some reasonable use of the land in question over a period of time when it had, effectively, been abandoned by CIE and also that he carried out works on the lands. During that time it would appear that CIE had not use for the lands and had effectively allowed same to go unused by them or anyone on their behalf, to a very large extent, from the 1960s onwards. It would, in those circumstances, seem to me to be reasonable for CIE to see if they could come to some modest accommodation with Mr. Dunne in all the circumstances of the case. I would emphasis that these latter comments do not form part of my judgment on the legal issues which arise in these proceedings. As a matter of law, Mr. Dunne’s claim has failed and that, so far as the legal entitlements of any parties are concerned, is the end of the matter. The comments amount merely to a recommendation that CIE might exercise some generosity with Mr. Dunne in all the circumstances of the case. They are not to be construed as implying any legal obligation on CIE so to do. |
