Catherine Renée Connell v Coleman Porter

JurisdictionIreland
CourtSupreme Court
Judgment Date18 December 1972
Docket Number[S.C. No. 27 of 1968]
Date18 December 1972

1965 WJSC-SC 2635

THE SUPREME COURT

Ó Dálaigh C.J.

Walsh J.

Budd J.

(27-1968)
Connell v. Porter
CONNELL
v.
PORTER
1

18th day of December 1972 by An Priomh-Bhreitheamh.

I.
2

This case is concerned with the nature of the right- of way enjoyed by the plaintiff, Mrs. Catherine Renee Connell and her customers to enter the side door to the lounge bar of her licensed premises at No. 131 James Street, Dublin.

3

Entry to the side door is gained by passing under the archway and over the soil of the adjoining premises, No. 130 James Street, of which the defendant, Mr. Coleman Porter, is lessee. The passage-way in question is part of a laneway known as Nash's Court, which is nine feet wide and extends back for a distance of about 90 feet. and which is a cul-de-sac.

4

No. 131 is held under a 99 year lease granted in 1880 and the premises have been a licensed premises for many years, very probably since 1880, if not earlier. The lease contains no reference to a right-of-way to the side door. Mr. Porter in 1953 acquired the lesses's interest in No. 130 and in the premises at the rere thereof known as Nos. 1, 2 and 3 Nash's Court, and these premises purported to consist of inter alia,the soil of Nash's Court, without any reference to the existence of rights-of-way of any kind.

5

The plaintiff's premises are on the left-hand side as one goes down the Court, and the door opening into the lounge bar is situated just as one emerges from the archway, at a distance of 30 feet from the public street. Formarly,

6

/this

7

this door led to the bottling stores at the rere of the bar; but, in 1964 bottling stores were converted into a lounge bar. Bar and lounge bar open into each other and can, therefore, he entered either from the public street or from Nash's Court. It is conceded that, prior to 1964, the plaintiff's bar customers had for many years used the bottling stores entrance both for entering and leaving the licensed premises and that the plaintiff had thereby acquired a prescriptive right-of-way for her customers over the soil of the defendant's premises.

8

The plaintiff's premises extend along the entire of the left flank of Nash's Court; and further down than the entrance to the lounge bar there is another entrance into the rere of plaintiff's premises. The defendant's premises as it **???query?????? on James Street consists of a look-up shop. The defendant resides upstairs and the entrance to his dwelling is near the archway on the right-hand side. Further back, again on the right-hand side, there are other entrances to portions of the premises known as Nos. 1, 2 and 3 Nash's Court, let as residential accommodation. The cul-de-sac is closed off at the bottom by a gate, leading into a yard at the rere of the defendant's premises, where the defendant carries on his business as a motor engineer.

9

The defendant, in 1966, erected a large gate at the entrance to the archway, with the object of closing off Nash's Court to unauthorised persons. There is a wicket gate forming part of this large gate, and the defendant supplied the plaintiff with a key to this wicket gate for use by the plaintiff, her servants or agents. The erection by the defendant of the gate was an assertion by him of a claim to be the owner of the soil of Nash's Court subject to the plaintiff's rght-of-way and the right-of-way of

10

/other

11

other occupiers of premises in Nash's Court. Another factor in this case is a long history of the laneway being used as a urinal by members of the public late at night to the distress, annoyance and displeasure of the defendant and his family.

12

The plaintiff objected to the erection of the gate as constituting an obstruction to the entrance to Nash's Court and she moved for an injunction against the defendant on two grounds. First, on the ground that Nash's Court is a public highway; and, secondly, that, in any event, she had for herself, her servants, agents and customers a prescriptive right to pass and repass through Nash's Court without obstruction. Mr Justice Teevan upheld the plain-tff's claim on the first ground and also, in the alter-native, on the second ground. Mr. Porter has appealed to this Court against both findings.

II.
13

The first ground of appeal may be disposed of without many words. Mr. Peart for the appellant concedes that he cannot complain of the plaintiff's customers entering through Nash's Court without the obstruction of the large gate which his client has erected unless he can persuade this Court that the erection of a lounge bar by the plain-tiff is an alteration in the user of the dominant tenement, whereby the burden of the easement is materially increased; an intention to abandon the easement may be presumed in such case.

14

Originally, while (on the basis of the defendant's concession) the plaintiff and her predecessors in title were acquiring a right-of-way for themselves and their

15

/customers

16

customers, the business being carried on in the premises was the old-fashioned bar business. However, to maintain her trade and move with the times the plaintiff found it necessary to provide lounge bar accommodation in addition to the traditional bar accommodation. Mr. Peart's sub-mission is that this is an alteration in the user of the premises.

17

The lounge bar customer generically may be considered to be a bit better-off than the old-time bar customer; and more women, accompanied by their men folk, are to be expected in the lounge bar than in the other part of the premises. It is to...

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9 cases
  • Walker v Leonach
    • Ireland
    • High Court
    • 8 February 2012
    ...is not always necessary for that officer to be joined in proceedings. 30 30. In the Supreme Court judgment of Cornell v. Porter (1972) [2005] 3 I.R. 601, Ó Dálaigh C.J., himself a former Attorney General, dealt with the question of a public right of way in a decision in which no mention is......
  • Walsh v Sligo County Council
    • Ireland
    • High Court
    • 20 December 2010
    ...Coats v. Herefordshire County Council [1909] 2 Ch. 579. Collen v. Petters [2006] IEHC 205, [2007] 1 I.R. 790. Connell v. Porter (1972) [2005] 3 I.R. 601. Cumbernauld and Kilsyth District Council v. Dollar Land (Cumbernauld) Ltd. [1992] S.C. 357; [1992] S.L.T. 1035. Davies v. Stephens (1836)......
  • Thomas Condron v Galway Holding Company Ltd and Danmar Construction Ltd and Stephen Treacy and Maureen Treacy
    • Ireland
    • Court of Appeal (Ireland)
    • 30 July 2021
    ...acceptance by the public. 86 . At para. 79 the Supreme Court in Walsh reiterated the view of Ó Dálaigh C.J. in Connell v. Porter (1972) [2005] 3 I.R. 601 that expenditure of public money on the repair or maintenance of the road, coupled with evidence of user, is strong evidence from which d......
  • Edward Walsh and Another v County Council for County of Sligo
    • Ireland
    • Supreme Court
    • 11 November 2013
    ...of opposition from landowner - Admission of hearsay evidence - Bruen v Murphy (Unrep, McWilliams J, 11/3/1980); Connell v Porter (1972) [2005] 3 IR 601; Smeltzer v Fingal County Council [1998] 1 IR 279 ; Folkestone Corporation v Brockman [1914] AC 338 ; R (Godmanchester TC) v Environment ......
  • Request a trial to view additional results

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