Convey v Regan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1952
• Date: 01 January 1952
• Court: High Court

Convey v. Regan

JOHN CONVEY

and

JOHN REGAN and JOHN REGAN

Junior.

Registered lands - Title - Possession - Limitation - Profit à prendre - Long continued cutting and taking of turf - Whether ownership of soil established - Equivocal acts of dominant owner - Whether evidence of animus possidendi or of profit à prendre only - Servient owner entitled to benefit of doubt.

Appeal from the Circuit Court.

The plaintiff, John Convey, was the owner of the lands the subject of Folio No. 12298, on the Register of Free-holders, County of Mayo, and for upwards of thirty years he had had sole exclusive and uninterrupted occupation and possession of a specified part of certain adjoining lands, marked 6A on the Land Registry map of the lands the subject of Folio No. 27648, County of Mayo, the property of John Regan, the first-named defendant. The said defendant, claiming to be entitled to the said part, attempted to interrupt the plaintiff's use and enjoyment thereof. The plaintiff thereupon commenced proceedings by equity civil bill in which he claimed a declaration that he had acquired a fee simple interest in the said part of the lands and an order directing rectification of the register. Subsequent to the issuing of the said civil bill, the plaintiff became aware that the first-named defendant had transferred the lands in question to John Regan, Junior, and by consent of both parties the civil bill was amended by joining the said John Regan, Junior, as co-defendant. The said defendant by his defence denied that the plaintiff had had such occupation, and averred that he, the said defendant, had never been out of possession or occupation. At the hearing before the Circuit Court (Judge Conroy) at Ballina, in the County of Mayo, on the 31st January, 1950, the Circuit Court Judge dismissed the equity civil bill, holding that the plaintiff was entitled only to the right to cut and remove turf on the said part marked 6A for use on the lands the subject of Folio No. 12298. The plaintiff appealed to the High Court on Circuit (Mr. Justice Black). The appeal was heard at Castlebar and was adjourned for argument to Dublin.

Long continued cutting and taking of turf from the bog of another party, being an equivocal act failing to indicate animus possidendi, is not sufficient to establish a title to the soil in favour of the dominant owner.

So held by Black J.

Held further that where the evidence is equivocal as to whether acts done in relation to land are done with intention of asserting a claim to the ownership of the soil or merely to an easment or profit à prendre, the benefit of the doubt should be given to the servient owner.

Black J. :—

The plaintiff here has brought an equity civil bill against the defendant, claiming a declaration that he has acquired the fee simple interest in that part of the lands described in Folio No. 27648 of the Register of Freeholders, County of Mayo, marked 6A on the Land Registry map, by virtue of his long possession thereof. As the first-named defendant is the registered owner of the patch of land in question, about an acre in extent and mostly bog, the plaintiff also seeks an order, pursuant to s. 52 of the Local Registration of Title (Ireland) Act, 1891, directing that the said Folio be rectified by the deletion therefrom of the said parcel of land and that the same be registered as on Folio No. 12298, that is, as the land of the plaintiff. Since the equity civil bill was issued against the first-named defendant, the plaintiff discovered that that defendant had transferred the land in question to the second-named defendant, John Regan, Junior, and...