Collen v Petters

JurisdictionIreland
CourtHigh Court
JudgeO'Leary J
Judgment Date19 June 2006
Neutral Citation[2006] IEHC 205
Docket Number[2006 No. 24 CA]
Date19 June 2006

[2006] IEHC 205

HIGH COURT ON CIRCUIT

[No. 24 CA/2006]
COLLEN v PETTERS & ORS
EASTERN CIRCUIT COUNTY OF WICKLOW

BETWEEN

PETER NEIL COLLEN
Plaintiff

And

YANNY PETTERS

And

NIALL LEONACH

And

NORTH WICKLOW TIMES LIMITED
And by Order
THE ATTORNEY GENERAL AT THE RELATION OF THE SECOND NAMED DEFENDANT
Defendants

SMELTZER v FINGAL CO COUNCIL 1998 1 IR 279

CONNELL v PORTER UNREP O'DALAIGH 18.12.1972

O'CONNOR v SLIGO CORPORATION 1901 NIJR 116

CONNOLLY, RE 1871 5 ILTR 28

GIANTS CAUSEWAY LTD v AG 1898 5 NILJ 301

EASEMENTS

Right of way

Creation of public right of way - Whether right of way public or otherwise existed - Whether evidence of dedication by landowner and acceptance by public - Whether expenditure of public monies evidence of dedication to public use - Alteration to original right of way - Use by members of public - Use as local convenience - Whether right of way commenced and terminated at public place - Plaintiff's appeal allowed (2006/24CA -O'Leary J - 19/6/2006) [2006] IEHC 205; [2007] 1 IR 790- Collen v Petters

Facts: The plaintiff claimed a declaration concerning the status of a property of which he was the owner in the context of a claim by the defendants and others that a public right of way existed over the property. The issue resolved itself before the court as to whether a public right of way existed.

Held by O'Leary J. in finding that the right of way did not exist that the claim that a public right of way could be found to exist without express dedication in the absence of both termini was a proposition with no prospect of success. The public right of way would consist of an inaccessible island of land in a sea of private property.

Per curiam What should be clear from this action was that the use of the concept of public rights of way as a mechanism or creating new or reviving old rights for walkers was unlikely to lead to a satisfactory overall solution.

Reporter. R. W.

1

O'Leary J delivered on 19th day of June 2006 at Wicklow Courthouse

2

This action commenced by Civil Bill of 9th September 2004. In the action the plaintiff claim a declaration concerning the status of a property of which he is the owner in the context of a claim by the defendants and others that a public right-of-way existed over the plaintiff property at folio 7072 Co Wicklow.

3

Various affidavits and motions not relevant to the issue to be herein decided passed between the parties and in due course the proceedings against the first and third named defendants were terminated leaving only the second named defendant as the sole remaining defendant. This defendant took issue with the plaintiff over the existence of a public right-of-way over the plaintiff's property and filed a defence and counterclaim seeking the court's ruling on his right-of-way claim. As the matter had now in effect resolved itself into the one issue i.e. of the existence or not of a public right-of-way the Circuit court had previously ordered the notification of the Attorney General in accordance with normal practice. As is usual in such cases the Attorney General did not seek representation and the matter falls to be decided by the court on the pleadings and evidence of the parties.

4

Despite the complicated nature of the pleadings and the multiplicity of the parties the issue resolved itself before the Circuit Court as to whether a public right-of-way existed. That Court decided that a right-of-way had existed and made consequential orders (by agreement moving the right-of-way from its traditional route, as found, to a more practical nearby existing route) including cost orders against the plaintiff. Against these findings the plaintiff (now if effect the defendant to the counterclaim) appeals.

Claim
5

The right-of-way claimed needs to be identified with some precision in view of the nature of the decision to be made herein. In that regard reference is made to a map of the area produced and entered into evidence by the plaintiff's cartographer Michael Flynn (identified by plot reference no 346907 1 2) a copy of which has been placed on the court file. The right-of-way claimed is part of a pathway marked out therein. From point A (at the entrance to the path known as Lambe's Lane) the way proceeds to point B passing over the property of a Mr Clear and Mr Gantly (both of whom though not parties to the action gave evidence at the hearing). It then proceeds to point C using a long-established route (herein referred to later as the “old road”). This “old road” includes all the way between A and C through B. At point C (or at a point immediately to the west of C) the “old road” goes in a north-westerly direction and diverges from the right-of-way claimed that continues westward to the site of an old footbridge at point D (now no longer in existence though substituted by a different structure by agreement of the relevant parties). The claim is for the declaration of a public right-of-way from B to C to D. While C to D is no longer in use (having been moved from C to E by agreement) all parties agree and the court accepts that the right-of-way west of C stands or falls on the status of the original C to D route and not on the C to E substitute route.

6

There is no claim or concession of a right-of-way between A and B nor is there any claim or concession of a right-of-way from Point D westwards. The effect of these limitations will be further considered later in this judgment.

Evidence
7

Evidence can be divided into a number of categories. First there was the evidence of the cartographers secondly the evidence of the users, many of whom were long-term local residents. Lastly the plaintiff and the second named defendant also gave evidence.

8

Mr Andrew Bonar Law produced a number of maps which were of considerable assistance to the Court. These included an 1838 Ordnance Survey map of the area and a further similar map of 1888 both to the scale of 6 inches to the mile. He also produced and proved a composite map from 1909/1910 survey at a scale of 25.344 inches to the mile. Finally he produced from the old estate maps of the Powerscourt Estate a number of maps showing the road structure in the relevant area in 1816.

9

The evidence of Mr Michael Flynn cartographer did not in any material way contradict Mr Bonar Law.

10

From the evidence of both cartographers the court concludes as follows.

11

1. The Lambe's Lane entrance and pathway is the same pathway as shown in the maps as produced and was in the earliest of these maps described as the “Old Road”.

12

2. It is clear this “Old Road” commenced at a public right-of-way. What is not clear from either the estate maps or the Ordnance maps is whether it joined another public right-of-way at the other extremity. A number of the estate maps produced do not cover the relevant area while the earliest Ordnance map has the road noted as unfenced at its north-western extremity. In later maps the area previously indicated as “unfenced road” appears to have been incorporated in the surrounding land. One Estate map dated 1816 shows the “Old Road” ending at “rocky heathy pasture” which rough area in turn appears to stretch to the public road.

13

3. There is no evidence of the existence of any track (not to mention a private or public right-of-way) from point C to point D though this area is covered in some of the maps and in particular in the 1816 estate map.

14

The Court also heard evidence from a number of witnesses with particular knowledge (mostly as users) of the area. The following is a summary of some of the relevant evidence. The fact that an individual's evidence is not mentioned in this judgment does not mean that it has not been given appropriate weight

15

Ms Dorothy O'Rourke (nee Barradell) lived in the area for some 54 years. She used Lamb's Lane to go to school. She crossed the land now occupied by Coillte by using a path also used by others in the valley. She crossed the river at point D using a bridge which consisted of 3 to 4 timber logs. She saw visitors use the way the “odd time”. The bridge was repaired from time to time by locals. The bridge was missing for about a year in 1980/1 and was re-erected in its present position by Coillte. A gate was erected at point D in 1967/8 by the plaintiff's predecessor in title (Mr Collen's father) and no objection was made to its erection.

16

Mr M. Tinsley was secretary of the Glencree Society in 1980. In that capacity he wrote to Mr Collen Snr the then land owner protesting at the removal of the old bridge and demanding its restoration. Two other pieces of information were included in that letter, the description of the pathway as a public right-of-way and the suggestion that it had been placed there by “the forestry”. It is clear that the second suggestion was incorrect as other evidence established that the three logged bridge was put there and maintained by local people. When questioned, Mr Tinsley was unable to enlighten the court as to the basis of his description of the bridge as part of a public right-of-way. Mr Tinsley's letter prompted a flurry of activity culminating in a letter dated 16th December 1980 from Mr Collen to the Forestry and Wildlife Service (which was the predecessor of Coillte). The legal consequences of this correspondence will be explored later in this judgment. Mr Tinsley, in evidence, confirmed that to his knowledge boys under the aegis of his body staying in a hostel across the valley used the route in question in the early years to access the hostel from the main road and later as part of a walking pattern during their weekend stay. Of some significance was his evidence that the Glencree society which owned some of the land between Coillte and the public road itself erected a locked gate at its entrance forcing those who...

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