Attorney General (at the relation of Sligo Corporation) v Gilbride

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date16 Apr 1929

Supreme Court.

Sligo Corporation v. Gilbride and Attorney-General v. Gilbride
SLIGO CORPORATION
Plaintiffs
and
JOHN GILBRIDE
Defendant
and
ATTORNEY-GENERAL (at the relation of SLIGO CORPORATION)
Plaintiff
and
JOHN GILBRIDE
Defendant.

Practice - Transfer of action - Transfer from High Court to Circuit Court - Jurisdiction of Circuit Court - Action for injunction - Action to establish public right of way - Criterion of jurisdiction - Civil Bill Courts (Ireland) Act, 1874 (37 & 38 Vict. c. 66), sect. 1 - County Officers and Courts (Ireland) Act, 1877 (40 & 41 Vict. c. 56), sect. 33 (l) - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 25, 48, 51, 56, 57.

Two Motions to transfer two actions to the Circuit Court, which were heard together.

In the first action the Mayor, Aldermen, and Burgesses of the Borough of Sligo were the plaintiffs, and John Gilbride, a garage proprietor, carrying on business at Bridge Street, in the Borough of Sligo, was the defendant. The statement of claim was as follows:—

"1. By virtue of the Municipal Corporations (Ir.) Act, 1840 (3 & 4 Vict. c. 108), and the Sligo Borough Improvement Act, 1869 (32 and 33 Vict. ch. cxlvii), and all other Acts amending or extending the same, the powers, authorities, rights, privileges and duties in said Acts contained, in relation to all public streets, roads, passages, footways and bridges within the Borough of Sligo are vested in the plaintiffs.

2. In the months of August, 1928, and September, 1928, the defendant by himself, his servants and agents wrongfully pulled down and demolished a certain boundary wall seventy feet or thereabouts in length. The said wall was erected upon the public street, known as Bridge Street aforesaid, as a fence or boundary wall between the said thoroughfare or street and the River Garavogue, which flows through the said Borough. The defendant, by himself, his servants, or agents removed and converted to his own use the stones and other materials of the said wall. The said wall and public street were at the dates of the wrongful acts hereinbefore complained of and are still in charge of and repairable exclusively by the plaintiffs, by virtue of the statutes herein mentioned.

3. The said boundary wall and public street are repairable by the plaintiffs exclusively and out of the Borough Fund of the Borough of Sligo pursuant to the statute in that behalf made and provided.

4. The plaintiffs are under a statutory liability to provide funds for the preservation and repair of the said wall, and for the provision of stones and other materials necessary for the preservation and repair of the said wall, and by reason of the said wrongful acts of the defendant as in paragraph 2 complained of, the plaintiffs have suffered much loss and damage.

5. The defendant, although requested by the plaintiffs' solicitor, on behalf of the plaintiffs, by letter, dated the 5th September, 1928, before action brought, to cease interfering with the said wall, nevertheless by himself, his servants and agents continued to pull down and demolish the said wall and remove the materials thereof, and completed the pulling down and demolition of the said wall and removal of the said materials after action brought.

6. The defendant has ever since continued to trespass, and still trespasses, upon the said wall and upon the site thereof, and has continued to retain, and still retains, wrongful possession of the said stones and materials of the said wall, and has refused to rebuild the said wall or restore the said stones and materials.

7. The plaintiffs have suffered damage and have been obstructed and interfered with in the execution of their statutory duties by the wrongful acts of the defendant, his servants and agents hereinbefore complained of."

The plaintiffs claimed:—

"1. An injunction restraining the defendant, his servants and agents from taking down and removing the said wall, or any part thereof.

2. A mandatory injunction that the defendant do forthwith restore the said wall as the said wall stood prior to the commencement of the demolishing and taking down and removing of said wall.

3. Damages for the wrongful acts aforesaid."

In their plenary summons, in this action, the plaintiffs had sought, in addition to the relief claimed in their statement of claim (as set out above), a declaration that the wall was their property, and that the defendant had no right, title, or interest to or in the wall.

The defendant, in his defence, denied the facts set out in the statement of claim. Alternatively, the defendant pleaded permission from the plaintiffs to remove and demolish the wall.

In the second action, the Attorney-General of Saorstát Éireann éireann, at the relation of the Mayor, Aldermen, and Burgesses of the Borough of Sligo, was the plaintiff, and the said John Gilbride, the defendant, the material portions of the statement of claim being as follows:—

"2. At and prior to the wrongful acts by the defendant hereinafter complained of there existed as of right a common and well defined public highway, leading down by stone steps from a point in Bridge Street, in the Borough of Sligo aforesaid, to the bed or foreshore of the River Garavogue, which is a river flowing through the said Borough, for all persons to go and return on foot at all times of the year at their free will and pleasure and for all purposes.

3. The said public footway from Bridge Street aforesaid to the bed or foreshore of the said River Garavogue from time immemorial has been constantly and continuously used by the public openly and without obstruction as a means of access from Bridge Street aforesaid to the bed or foreshore of the said river.

4. Alternatively, the said public footway was dedicated to the use of the public by the predecessors in title of the present owner in fee-simple of the lands over which the said footway runs, and the use of the said footway was accepted by the public, and has been used by them as a public footway to the knowledge and with the acquiescence of the said present owner in fee-simple and his predecessors in title.

5. The local management of the Borough of Sligo is vested in the Mayor, Aldermen, and Burgesses of the Borough of Sligo, the relators named in the title hereof (hereinafter called the Sligo Corporation). The said Bridge Street is a public street in charge of the Sligo Corporation, and, pursuant to the provisions of the Sligo Borough Improvement Act, 1869, is repairable by the said Corporation exclusively and out of the Borough Fund. The said public footway, which leads from Bridge Street to the bed or foreshore of the said River Garavogue is also in charge of, and is like.wise repairable by, the said Corporation exclusively and out of the Borough Fund pursuant to the provisions of the said statute.

6. The defendant in the months of May, June, July, August, September, and October, 1928, by himself, his servants and agents wrongfully obstructed the said public footway by erecting a wall in the bed or foreshore of the said River Garavogue and by placing stones, rubble, concrete and other matters on or near the said footway between the said newly erected wall and Bridge Street aforesaid thereby blocking up completely the said footway as aforesaid.

7. The defendant has ever since continued and maintained, and intends to continue and maintain, the said obstruction to the public user of the said footway as aforesaid."

The plaintiff (the Attorney-General) claimed:—

1. An injunction restraining the defendant, his servants and agents from placing, keeping, or allowing to remain any stones, rubble, concrete, or other matters in, on, or near the said public footway leading by stone steps from Bridge Street to the bed or foreshore of the River Garavogue, thereby blocking up completely the said footway, to the hindrance and obstruction of the public in the use of the said footway as a means of access from the said Bridge Street to the bed or foreshore of the said river.

2. A mandatory injunction ordering the defendant to carry away and remove the said stones, rubble, concrete, and other obstructions to the user of the said footway, and restore the said footway for use by the public.

In his defence the defendant denied the existence as of right of a common or well-defined public highway leading from Bridge Street to the bed or foreshore of the River Garavogue, and also denied the other facts set out in the statement of claim. The defendant further pleaded that, to the knowledge of the plaintiffs, he was at all material times willing to permit the user of the footway and to remove any obstruction therefrom.

In the case of the first action, the plaintiffs applied to Meredith J. for an interim injunction, and, in support of that application, affidavits were made by John Shea, the Town Clerk of Sligo, and by John P. Quinn, the Borough Surveyor, and the material portions of these affidavits are referred to in the judgments.

The further facts are fully set out in the judgment of the Chief Justice. The defendant moved to have the actions transferred to the Circuit Court at Sligo.

The plaintiffs appealed to the Supreme Court (1).

The plaintiffs brought an action claiming an injunction to restrain the defendant from removing a certain wall, or any part thereof, and a mandatory injunction to compel him to restore the wall, and they also claimed damages for wrongful acts done in connection with the removal of the wall. In another action against the same defendant, the Attorney-General, at the relation of the plaintiffs, sought an injunction to restrain the defendant from interfering with an alleged public right of way. The defendant applied to have both actions transferred to the Circuit Court.

Held by the Supreme Court, affirming Meredith J., that both causes of action were within the jurisdiction of the Circuit Court, and, having regard to the facts, that both actions should be transferred to that Court.

Held...

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