Carroll v Sheridan

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Hanlon
• Judgment Date: 01 January 1984
• Neutral Citation: 1984 WJSC-HC 126
• Court: High Court
• Date: 01 January 1984

1984 WJSC-HC 126

THE HIGH COURT ON CIRCUIT

(CIRCUIT COURT APPEALS)

CARROLL v. SHERIDAN & SHEEHAN

COUNTY OF LOUTH

EASTERN CIRCUIT

BETWEEN:-

GERARD CARROLL AND JAMES CARROLL

PLAINTIFFS (APPELLANTS)

-and-

JAMS SHERIDAN AND RAYMOND SHEEHAN

DEFENDANTS (RESPONDENTS)

Subject Headings:

EASEMENT: right of way

PRACTICE: pleading

1 Judgment delivered by Mr. Justice O'Hanlon the 28th day of October, 1983 .

2 This is a right-of-way case, but one which differs in many important respects from the conventional action of that type. The conventional action concerns the assertion by the owner of one parcel of land of a right to use a means of access thereto over a more or less clearly defined path running through the adjoining lands of another landowner. In the present case the path over which the right-of-way is claimed traverses the the lands of several different landowners, each of whom is part-owner of the soil of the path, and it forms a link between the main Dublin/Dundalk road and a road leading from Dundalk to Blackrock. Old maps were put in evidence on which the path was marked; one of them dating back to 1777 was produced from the custody of the local authority. The ancient name of the path was "An Bothar Maol" and two of the witnesses referred to a local tradition which suggested that Queen Maeve traversed it in the course of her legendary cattle-raid on nearby Cooley.

3 The path or lane appears to be about one mile in length and is bounded on each side by agricultural holdings, some of which have now been appropriated to other uses. The Plaintiffs have purchased a holding of about 14 acres to the south of the path, and closer to the Dublin Road than to the Blackrock end. This holding formed part of a larger holding in the ownership of a family named McGeough. Before the holding was divided there was an opening for a gate leading from it onto the pathway in question, and a small parcel of land including this gateway was sold off by the McGeoughs to Dundalk Golf Club before they sold the remainder of the holding to the Plaintiffs.

4 Within living memory an old house referred to as "Cook's House" abutted onto the pathway on the north side, not far from the Dublin Road end, and the lane became known as Cook's Lane. The only other dwellinghouse which abutted on the lane up to recent times was a house provided for the Defendant, James Sheridan, by the Irish Land Commission, in or about the year 1919, on the south side of the path and close to the Blackrock end of the way. With that house the said Defendant (who is now aged 77) obtained a holding of land which includes a large tract abutting onto the lane, and this he has proceeded to develop by selling off building sites to various individuals in the last ten or twelve years. There are now about seven attractive bungalow-type residences erected at that end of the lane. There are a few other gate openings or what appear to be the remains of such openings leading onto the lane from each side at different points along its length.

5 The present state of the lane is that it has been opened up and properly paved and widened for about one-third of its length from the Blackrock end, to accommodate all the building development which has been carried out on the first-named Defendant's lands. Beyond that point it appears to be well-nigh impassable by reason of the fact that over the years it has been little-used, and bushes and briars and other vegetation have taken over what was in former times a clear passage.

6 There was a good deal of conflict of evidence as to what use was made of the lane, and when, within living memory. The Plaintiffs claim to have a right of way by prescription from the lands now owned by them, along the path or lane in each direction until it reaches the main highways already referred to at each end. In addition to the evidence already referred to, the most salient parts of the evidence given by or on behalf of the disputing parties were as follows:-

7 1. Mr. Osborne, Engineer, testified that the way, in its original form, was about 16 feet wide on average, bounded on each side by a stone wall with a hawthorn hedge set against the stone. On making test holes in the surface of the lane at three points he found evidence of "a considerable degree of metalling - could be described as having a road surface". He indicated the marking in of the way on the 1907 Ordnance Survey map, and on the 1831 edition as revised in 1870, suggesting the existence of what he described as "a substantial way". He said the path could be overgrown by the hedges on each side in the course of a single season.

8 2. John McGuinness, County Councillor, gave evidence of an application in 1980 by the Defendant, James Sheridan, on behalf of himself and the other residents in the lane, to have it taken in charge by the local authority as a public way; that the local authority had listed it for this purpose, but that the application had since been withdrawn.

9 3. Gerard Carroll, Plaintiff, said that since acquiring the McGeough lands in 1980 he and his co-Plaintiff had cleared the lane satisfactorily up as far as an obstruction consisting of a mound of freshly-dug earth at the Blackrock end of the lane, adjoining the Defendants' holdings. He said that it was possible to walk through the lane in 1980 and that in the mid or late-sixties he had driven through the lane by car from the Dublin Road end as far as the Golf Club property (about half-way down the lane).

10 4. Michael McGeough, one of the former owners of the Plaintiffs' land, gave evidence of driving 25 or 30 cattle along the lane from one end to the other as far back as 1917 or 1918. He remembered the Cook family living in the house which is now in ruins and said they had access to it from either end of the way. He said they (the McGeoughs) had two gates from their own land onto the lane. He acquired the land in 1947 and three or four years later drove cattle and sheep through the lane from the Blackrock end to the land. "A lot of people used to walk up and down the lane." The sheep broke out often and the lane had to be used to drive them back.

11 5. James Murphy, born 1914, said he remembered travelling by pony and cart up the way from the Blackrock end to Cook's house, and the usual farm machinery came up by the same route. His brother owned "Coffey's field" (opposite the Plaintiffs' holding) from about 1943 until he died in 1958 and used the lane to bring cattle and farm machinery from the Dublin Road end, and at times used the access from the Blackrock end also, without obstruction. His son took "The Cock Field" (about half-way down the path) for three years from 1975 and the lane was used as the means of access to it from the Blackrock side. "I understood down the years it was a right-of-way from the Dublin Road out onto the Rock Road ... I thought no one could stop me. It was a right-of-way down the years with no objection from anyone."

12 6. Patrick O'Neill, a teacher, born 1931, said his family always had a field on the lane. His father bought the Cock Field in 1955, and used it for 2½ years for mixed farming, bringing tractors up from the Blackrock end of the way. He remembered people walking along the way and had traversed the full length himself on three occasions, in 1947, 1951 and 1953.

13 7. Joe Farrell, said he went home from school by the lane as a boy - pre-World-War 1. Four or five could walk abreast, and they would meet horses and carts. It was a short cut to Blackrock. The surface was made of stones. It continued to be used in the 1920's and 1930's, after which the hedges closed in on it but the road still remained solid.

14 8. Patsy Matthews, said he was in the lane in the late 1920's and thereafter. It was used by horses and carts - there were wheel-marks and it was trampled down in the centre. He said the first-named Defendant told him the tradition about Queen Maeve using the lane. In 1974 he bought the Cock Field, which was sold by the auctioneer as having a 300 yards frontage onto "The Ball Moor" (another name used locally for the lane). There was no problem about gaining access from the Blackrock end. He let it in conacre in 1975 and the first-named Defendant attended the auction and stated that there was no entry from the Ball Moor but only from the back of the field. The auctioneer thereupon sent out a digger and put up a new gate onto the Ball Moor where a gap already existed, and this opening and the access to it along the lane was used ever since, until he sold the field in 1979. No further effort was made by the Defendant to dispute the right of access to the land. (This evidence was confirmed by Mr. Sheridan, the auctioneer responsible for dealing with the land at the time).

15 9. Mrs. Murphy said her husband bought Coffey's field (on the Dublin side of The Cock Field) in November, 1958, and they retained it until Summer 1980. In 1980 the Defendants asked her for a subscription for the maintenance of the road, and she paid £100 around that time. They used the tractor and combine coming in from the Blackrock end. "Up to 1977 we came down from the Dublin end with cattle and sheep and I drove my Volkswagen car down. My husband drove the combine and tractor in, and no problem. Up to Summer 1980 the lane was in use all the time and not overgrown. It was overgrown between our field and the Cock Field."

16 10. Padraic Hare, teacher, living at the Blackrock end of the lane from October, 1970, said he used the lane frequently, mostly to visit neighbours and going into the Golf Club and coming home from it. In 1981 he fell over one of the mounds of earth which had been erected during the Summer of that year.

17 11. Mrs. Cook, (a witness for the Defence), granddaughter of the Cooks who once lived in the house abutting onto the lane, acquired the Cook lands, with her brother in 1947. Access for working the land was from...