Bruen, K. and Others v Murphy, G. and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 11 March 1980
• Neutral Citation: 1980 WJSC-HC 677
• Docket Number: No. 5085P/1978
• Court: High Court
• Date: 11 March 1980

1980 WJSC-HC 677

THE HIGH COURT

No. 5085P/1978

BRUEN, K. & ORS. v. MURPHY, G. & ORS.

KEVIN BRUEN &OTHERS.

v.

GERRY MURRHY &OTHERS.

1 Judgment delivered 11th March 1980 by Mr. Justice McWilliam

2 This case concerns a claim by the Defendants that there is a public right of way over a plot of ground (hereinafter described as the disputed plot) behind the gardens of houses which front on Templeville Drive and between them and the gardens of houses which front on Fortfield Drive, near Templeogue, Co. Dublin. Two gardens in Hyde park also adjoin the disputed plot but this case does not concern either of these two houses or their occupants.

3 Fortfield Drive was built in or about the time of the war. For some time after it was built, there was open country with fields behind the gardens of the houses to the south of Fortfield Drive without any roads or buildings between Fortfield Drive and the back of Templeogue village. Between Nos. 39 and. 41, Fortfield Drive a passage had been left through which access could be gained to the disputed plot, which was then a small field with a couple of small ponds in it, on which the Electricity Supply Board (the E.S.B.) had erected a transformer station. No witness from the E.S.B. gave evidence, but I am satisfied that there was, at all times during the occupation by the E.S.B. and subsequently, a gate at this entrance to this passage from Fortfield Drive. The houses in Templeville Road were built about ten years later. when the houses in Templeville Road were built a passage was left into the disputed plot from Templeville Road. Before these houses were built, there was a high estate-type wall between what are now the gardens of the two houses in Hyde park and the disputed plot and this wall continued alongside the ground which became the passage from Templeville Road to the disputed lot, across what is now Templeville Road and on down to the back of Templeogue village where it appears to have become sufficiently broken down for people to be able to cross it without too much difficulty. In the disputed plot, close to the entrance to the passage from the plot to Templevills Road, was a mound which is supposed to have enclosed an ice house. This mound was demolished and used to fill or level the ponds which had existed on the disputed plot.

4 From the documents before me, it would appear that, in 1953, Reginald A. Harrison and the Reverend Canon John W. Armstrong were the owners in fee of the disputed plot and the land to the west of the wall to which I have already referred. This included the land on which the western part of Templeville Road and its houses were subsequently built. On 27th July, 1953, they made a lease of these lands for a term of 999 years from 1st December, 1952, to Catherwood Estates Limited. It would appear that this lease did not include the disputed plot, and I assume that this was because the E.S.B. had, at that time, some interest in the disputed plot although the lease is not before me and I have not got any document before me showing what was the interest of the E.S.B. Nor have I been given any evidence as to its interest.

5 There is no evidence before me as to how the leasehold interest in the plots on which the several houses were built was dealt with but it is clear that Catherwood Estates Limited continued to hold the disputed plot for the unexpired residue of the term of 999 years until the year 1956 when it was assigned to Henry J. Catherwood. It is unlikely that either Catherwood Estates Limited or Henry J. Catherwood were interested in or paid any attention to the disputed plot until Henry J. Catherwood assigned it to Patrick Burke in February, 1969, for the residue then unexpired of the term of 999 years. Patrick Burke took the assignment as trustee for the members of the residents” association and he assigned it to other trustees on 2nd...