Daly v McMullan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Court: County Court (Ireland)

(C.C.)

Daly

and

McMullan

- Title - Adjacent properties - Root of title in both properties in Howth Estate - Lease - Ground rent - Fee simple reversion - When present occupiers of two properties took possession there was a pre-existing hazard - Whether liable for hazard caused to neighbouring property where neighbour on notice of the existence of the hazard when taking possession - Whether under a duty to ameliorate hazard to neighbouring property - Extent of duty.

The plaintiffs owned and resided in a house which was situated at the foot of an embankment in Howth, Co. Dublin. The defendant was the beneficial owner of that part of the embankment directly to the rear of the plaintiffs' property. The plaintiffs' house was over 100 years old. A wall at the base of the embankment marked the boundary between the respective properties of the parties. A number of falls of soil from the embankment had taken place since 1974. In August,1996, there occurred a further extensive spillage into the plaintiffs' back yard. By means of an equity civil bill issued on 1 November, 1996, the plaintiffs sought an order compelling the defendant to undertake works to render the embankment safe and to protect the plaintiffs from further spillage. It was claimed, inter alia, that the defendant was in breach of duty in allowing an incursion of soil onto the plaintiffs' property and failing to undertake works to remove the danger posed to the property and to abate the nuisance. The matter came on for hearing before his Honour Judge Buckley on 21 March, 1997. It was accepted in the engineering evidence tendered by both sides that the embankment was theoretically unstable and liable to give rise to future slippages. It was contended by the engineer giving evidence on behalf of the defendant that the presence of the embankment resulted from a site being cut into the side of the existing slope prior to the building of the plaintiffs' house. Evidence was given on behalf of the plaintiffs that the embankment could also have been a natural feature of the landscape. It was accepted that both the plaintiffs and the defendant derived the title to their respective properties from the Howth Estate. The plaintiffs submitted that the slippage onto their property constituted a natural nuisance for which the defendant, as beneficial owner of the property giving rise to the nuisance, was liable under the law of tort. It was submitted that the defendant, once aware of the existence of the...