Browne v Fahy

• Jurisdiction: Ireland
• Judge: KENNY J.:
• Judgment Date: 24 October 1975
• Neutral Citation: 1965 WJSC-HC 2272
• Court: High Court
• Date: 24 October 1975

1965 WJSC-HC 2272

HIGH COURT ON CIRCUIT

STERN CIRCUIT

COUNTY OF GALWAY

Browne v. Fahy

BETWEEN/

MARY BROWNE

Plaintiff

and

NORA FAHY

Defendant

AND BY ORDER TO PROCEED

MARY BROWNE

Plaintiff

and

BRIDGET FAHY

Defendant

KENNY J.:

1 In the civil bill which was issued in this matter on the 2nd of March 1971 the plaintiff, Hary Browne, claimed to be the owner in foe simple and the occupier of parts of the lands of Lemonfield near Oughtorard, County Galway and pleaded that the original defendant, the late Nora Fahy, trespassed on these lands in September **???query??? and claimed an injunction to prevent this. In her defence the original defendant denied that the plaintiff was the owner or occupier of these lands and relied on the Maintenance and Embracery Act 1634 (10 Charles I, Sess. 5 Cap 15 commonly miscalled the Pretenced titles Act 1634). She pleaded that she and her predecessors in title had for 20 years been in occupation and possession of the lands without giving any admission of title to anybody.

2 The Circuit Court Judge gave judgment in favour of the plaintiff on the 1st of February 1972 and the defendant appealed to this Court. I heard the case in Galway on the 13th of March 1972 and as the defendant's counsel stated that he was relying on the Maintenance and Embracery Act 1634 ("the Act of 1634") but did not refer to the text of that statute or any of the many cases decided on it and on the corresponding Act in England (32 Henry VIII Cap 9) and as a copy of the Act of 1634 was not available in Galway, I reserved judgment. The defendant died shortly afterwards and it therefore became impossible to give judgment until probate of her will had been granted to someone. This grant did not issue until the 19th of May 1975 when Bridget Fahy, a daughter of the original defendant obtained it: it was not banded into Court until July 1975. There will accordingly be an order that Bridget Fahy be made a party to this action as personal representative of the original defendant, and that she be substituted as defendant in that capacity and that the action do proceed against her.

3 On the 21st of June 1938 the Irish Land Commission sold lands at Oughterard, which were on the foreshore of Lough Corrib, to Miss Simonds. She Miss Simonds built a bungalow on the lands some distance in from the road and it was approached by an avenue from the road. The lands granted to her included the lands north and south of this avenue which runs from the east to the west to the public road. The lands to the north of the avenue contain 0.70 acres and those to the south 0.41 acres. They are of the poorest quality, are not arable, are covered with rough overgrowth and are fit only for the grazing of a few cattle. The dispute in this case relates to the lands on the north of the avenue which are bounded on the north by other lands owned by Commandant Burgess. By a deed made on the 8th of February 1945 Miss Simonds conveyed all the lands granted to her by the Irish land Commission in 1935 with the bungalow thereon called Ballyowen and the lands on the north and south of the avenue to Oswald Browne, the husband of the plaintiff. Oswald Browne died on the 18th of October 1959 and by his will left all his estate to the plaintiff. Emocution of this will by him was proved by a witness in this case. On the 23rd of July 1960 the plaintiff sold the small part of the lands which were north of the avenue to Mr. and Mrs. Wilson Wright for £300. They had a residence on the other side of the public road and there is a small frontage of the lands in dispute to this road. Barbley Fahy, who died in November 1967 and who was the husband of the late Nora Fahy the original defendant, was grazing the lands in dispute since 1938. It had been employed by Miss Simonds as a gardener and when Oswald Browne acquired the lands in 1945, Bartley Fahy asked Mr. Browne for permission to graze a few cattle on these lands. When Oswald Browne died, the plaintiff continued this arrangement as she was on friendly terms with the Fahys and neither her husband nor she had any cattle and did not wish to use the lands in any way. On the 25th of July 1961 the solicitors acting for Mr. & Mrs. Wilson Wright wrote to Bartley Fahy and as the terms of the letter are of importance and I must set it out.

4 "We have been consulted by Mr. & Mrs. Wilson Wright, Coclin, Oughtorard, regarding the lands owned by them on the opposite side of the road from their residence. One of these portions was purchased by our clients from Mr. O'Connor in 1959 and the other from Mrs. Browne in 1960.

5 Our clients advise us you have, at times, been permitting your stock to graze upon each of these portions of the land. Actually they do not themselves grazo the lands but they do with us to advise you that you must, if requested, by them, stop grazing your stock upon same and further to advise you that you have, of course, no right or title or interest of any sort in or to same.

6 Mrs. & Mrs. Wilson Wright have no desire to have any unpleasant relations with you as we understand you have always been on friendly terms but it is correct that we should place on record in this letter the fact that any grazing by you of the said lands is as a permissive occupant only and that you must desist from same when and if our clients ask you to do no."

7 There was no reply to this letter. On the 6th of May 1970 Mr. & Mrs. Wilson Wright sold the lands in dispute, to the plaintiff for £10 and the deed contained a covenant against building. Execution of these deeds of the 23rd of July 1960 and the 6th of May 1970 was proved by a witness in this action the three deeds of February 1945, July 1960 and May 1970 included the lands in dispute. The late Bartley Fahy and the late Nora Fahy objected strongly to the sale in 1960 to Mr. and Mrs. Wilson Wright and at some date before the execution of the deed of July 1960 the original defendant had offered to buy the lands from the plaintiff.

8 In 1957 Bartley Fahy had planted a row of trees on the lands running from the north to the south; this was done to give shelter to the cattle which he ground on the lands. In 1958 he constructed a fence on that part of the land which fronted on to the public road and in 1971 he put stakes and wire on the place where the lands fronted on the avenue so that the cattle would not escape from the lands on to the avenue and from there on to the public read because there was no gate at the place where the avenue runs into the public road. **???query?????? the main **???query?????? ???query?????? put ???query?????? on the lands and drained part of them and his widow and he had allowed persons to camp on the lands and collected money when they granted this privilege. Mr. Wilson Wright occasionally walked over the lands and made constant complaints to the...