Dunne v Iarnród Éireann and Another

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date07 September 2007
Neutral Citation[2007] IEHC 314
CourtHigh Court
Date07 September 2007

[2007] IEHC 314

THE HIGH COURT

RECORD NO. No. 1837 P/2007
Dunne v Iarnrod Eireann & CIE
BETWEEN/
DENIS DUNNE
PLAINTIFF

AND

IARNRÓD ÉIREANN - IRISH RAIL AND CORAS IOMPAIR ÉIREANN
DEFNDANTS

GREAT SOUTHERN AND WESTERN RAILWAY (IRL) ACT 1844 (PRIVATE)

TRACEY ENTERPRISES MACADAM LTD v DRURY UNREP LAFFOY 24.11.2006 2006 IEHC 381

SEAMUS DURACK MANUFACTURING LTD v CONSIDINE 1987 IR 677

POWELL v MCFARLANE 1977 38 P & C R 452

MURPHY v MURPHY 1980 IR 183

DOYLE v O'NEILL UNREP O'HANLON 13.1.1995 1995/2/421

LORD ADVOCATE v LORD LOVAT 1880 5 AC 273

CORK CORPORATION v LYNCH UNREP LYNCH 26.07.85 1985/7/1878

LEIGH v JACK 5 EX D 264

CONVEY v REGAN 1952 IR 56

PERRY v WOODFARM HOMES LTD 1975 IR 104

LAND

Adverse possession

Nature of occupation - Whether requisite degree of possession - Whether person claiming adverse possession having requisite intention to dispossess owner - Whether claimant establishing that he was exclusive user of lands - Whether acts of claimant more in keeping with assertion of right of easement or profit-a-prendre than possession - Claim for adverse possession - Whether claimant establishing right to adverse possession - Convey v Regan [1952] IR 56 followed; Tracy Enterprises Macadam Limited v Drury [2006] IEHC 381 (Unrep, Laffoy J, 24/11/2006), Murphy v Murphy [1980] IR 183 and Powell v McFarlane [1979] 38 P&CR 452 considered; Cork Corporation v Lynch (Unrep, Egan J, 26/7/1985) distinguished - Claim dismissed (2007/1837P - Clarke J - 7/9/2007) [2007] IEHC 314

Dunne v Irish Rail

The plaintiff claimed that he had acquired title to land adjacent to a railway station by adverse possession. The plaintiff had built a series of stables for grazing animals. The issue arose as to whether CIE owned the land or not.

Held by Clarke J. that the onus lay on the plaintiff to establish adverse possession with the requisite intent. The plaintiff had not established a sufficient level of possession. CIE had established good paper title to the property. The plaintiff had made reasonable use of the land and had carried out works but the use was insufficient to prove the appropriate level of possession.

Reporter: E.F.

1. Introduction
2

2 1.1 The 1840s were a time of great expansion in the building of railways in which Ireland was to the forefront. In the mid-1840s a Private Act was passed by the then Parliament of the United Kingdom of Great Britain and Ireland which was described as being "for making and maintaining a railway from the city of Dublin to the town of Cashel, with a branch to the town of Carlow". That Act was passed in 1844 ("the 1844 Act").

3

3 1.2 As a result, the Great Southern and Western Railway Company was established and had, under the terms of the 1844 Act, compulsory purchase powers to enable it to acquire the land necessary to construct the relevant railway. The project went ahead, the railway was constructed, and remains in use to this day. While the identity of the corporation owning the land and operating the railway has changed from time to time, it is not disputed but that the defendants ("CIE") have succeeded to whatever interest the Great Southern and Western Railway acquired in the 1840s.

4

4 1.3 Included in the lands acquired for the purposes of the railway at that time was a portion of the track located at Clondalkin which involved a station and station house. Adjacent to the station house there is a significant triangular piece of land which was not directly part of the railway itself but which may have been used in conjunction with the railway, at least in the earlier stages of its operation. It is the ownership of that piece of land that is in dispute in these proceedings.

5

5 1.4 The principal claim maintained by the plaintiff ("Mr. Dunne") is that he has acquired title to the land in question by adverse possession. However, it showed also be noted that Mr. Dunne did not accept that CIE had established its title to the land on paper and that question also remains in issue. While complaint is made by Mr. Dunne as to the manner in which CIE began, immediately prior to the issue of these proceedings, to occupy the disputed lands as part of works associated with a significant upgrade in the railway line, it does not seem to me that those questions have any legal relevance. Either CIE owns the land or it does not. That turns a question whether CIE has a proper title and, if so, whether Mr. Dunne has extinguished that title by adverse possession. It seems appropriate, therefore, to turn first to the title of CIE to the lands in question.

2. CIE's title
2

2 2.1 The 1844 Act gave the Great Southern and Western Railway Company compulsory purchase powers in respect of land which was defined by reference to a map which, in the events which have happened, is now deposited in the Houses of Parliament at Westminster. Evidence was given that a recent inspection of the original of the map shows that it conforms with various plans and maps which were produced in evidence before me. It was, of course, the case that the 1844 Act did not directly transfer any lands to the railway company but simply gave to that company power to compulsorily acquire the land required. The 1844 Act also put in place mechanisms to enable such acquisition to be carried out in an effective manner.

3

3 2.2 CIE led evidence from Mr. Colin Keane, an experienced conveyancing solicitor who practises in the firm of McCann Fitzgerald. Mr. Keane was shown a series of title deeds from the latter half of the 1840s, each of which conveyed property at Neilstown, Cappagh and Ballynagigan to the railway company which, while not containing a map, specified the land being conveyed by reference to numbered portions of a map which was typically described as being "deposited with the Clerk of the Peace for the said County of Dublin". In addition, Mr. Keane was shown a land survey done in the year 1848 on behalf of the railway company which seems to show the property actually acquired. On the basis of the deeds produced in evidence by Mr. Keane and, indeed, his own expert opinion on same, I am satisfied that they amount to prima facie evidence that all of the land shown in the 1848 survey was in fact acquired, at that time, by the railway company. Those lands included the triangular piece of land which is in dispute in these proceedings.

4

4 2.3 One issue of some small difficulty arose in relation to the original acquisition of the land which was referred to in the course of the evidence. It is clear that the triangular piece of land which is in dispute in these proceedings was not needed for the construction of the railway line itself. There are, however, two bases upon which the land might nonetheless have been acquired by the railway company at that time. Firstly, the 1844 Act places an obligation on the railway company to acquire, if requested, any portions of land cut off by the construction of the railway from other lands being acquired for the construction of the line itself. Where, therefore, the formal acquisition of a portion of lands for the construction of the line itself, left a portion of the relevant land owner's holding on, as it were, the wrong side of the tracts, that land owner could require the railway company to purchase the lands concerned.

5

5 2.4 Secondly, the 1844 Act empowers the railway company to acquire additional lands which were needed for ancillary purposes. It may well have been the case that the lands concerned, being adjacent to Clondalkin station, were required, at that time, for the purposes of housing cattle which were about to be shipped through Clondalkin station on the railway. There was evidence that such a practice was common, at least in the 18th Century, although no direct evidence that the practice was carried out at Clondalkin.

6

6 2.5 For either, or both, of these reasons it could reasonably have been expected that the railway company might have acquired lands additional to those strictly speaking needed for the construction of the line itself.

7

7 2.6 Be that as it may, the title position deriving from the 1840s is, in my view, immeasurably strengthened by the fact that there was evidence of a significant number of lettings of the land concerned dating from the 1930s up to the 1960s. Those lettings are consistent only with CIE being the owner of the lands in question. Furthermore, there was evidence that CIE has, at all material times, been the rateable occupier of the lands concerned. While this latter point may not be of any particular relevance to the adverse possession issue which arises in these proceedings, it is also consistent with the fact of CIE being the holders of the paper title.

8

8 2.7 On the basis of all of the above evidence I am satisfied that Mr. Keane's opinion to the effect that the documents on file proffered amount to a good paper title to the lands concerned is correct. I am, therefore, satisfied that CIE are, prima facie, the owners of the land subject to the claim for adverse possession made by Mr. Dunne. I now turn to that claim.

3. The claim in adverse possession
2

2 3.1 It will be necessary to return to the facts concerning possession in some more detail when I have identified the legal principles by reference to which those facts need to be considered. Some of the facts are in dispute. However, at a general level it is accepted that from some time in the latter part of 1977, Mr. Dunne made at least some use of the disputed lands for the purposes of grazing horses. This practice would seem to have originated from a coal and allied delivery business run by Mr. Dunne's family in which deliveries were made in the area, originally by horse and cart. While there are disputes as to the extent of the use made by Mr. Dunne of the lands over the years and, indeed, the extent to which...

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9 cases
  • Dooley v Flaherty
    • Ireland
    • High Court
    • 18 November 2014
    ...is extinguished in that manner then "no subsequent act of possession…would be sufficient to re-instate it" Dunne v. Iarnród Éireann [2007] IEHC 314, per Clarke J. 25 25. The condition of the premises is likewise largely irrelevant to these issues. There is no doubt but that for the entirety......
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    • 28 July 2016
    ...Uachtarach The Supreme Court Charleton J. Laffoy J. High Court record number: 2007 No. 1837P Supreme Court appeal number: 295, 2007 [2007] IEHC 314 [2016] IESC 000 [Appeal No. 2007/295] Laffoy J Charleton J O'Malley J Between Dennis Dunne Plaintiff/Appellant - and - Iarnród Éireann/Irish Ra......
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    ...- Durack Manufacturing v Considine (Unrep, Barron J, 27/5/1987), Gleeson v Feehan (Unrep, Finnegan P, 29/5/2001), Dunne v Iarnrod Eireann 2007 IEHC 314, (Unrep, Clarke J, 7/9/2007), Murphy v Murphy [1980] IR 183, Wallis's Holiday Camp v Shell-Max [1975] QB 94, Trelor v Nute [1976] 1 WLR 12......
  • Request a trial to view additional results
1 books & journal articles
  • The Law of Adverse Possession in Ireland: Is the Doctrine in Need of Radical Reform?
    • Ireland
    • Hibernian Law Journal No. 12-2013, January 2013
    • 1 January 2013
    ...Paper Owner? A Moral or Public Policy Objective? – A Comparative Analysis” (2008) 13(2) C.P.L.J. 33, p.36 111 Dunne v Iarnród Eireann [2007] I.E.H.C. 314 03 O'Sullivan 2.indd 56 11/06/2013 10:26 The Law of Adverse Possession in Ireland 57 The relevance of the future intentions of the owner ......

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