Dunne v Iarnródéireann

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy,Mr Justice Peter Charleton
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IESC 47
• Docket Number: [S.C. No. 295 of 2007],High Court record number: 2007 No. 1837P Supreme Court appeal number: 295, 2007 [2007] IEHC 314 [2016] IESC 000 [Appeal No. 2007/295]
• Court: Supreme Court
• Date: 28 July 2016

[2016] IESC 47

An Chuirt 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 Rail

and

Córas Iompair Éireann

Defendants/Respondents

Land law – Adverse possession – Title – Appellant seeking adverse possession – Whether trial judge legally and factually misconstrued the appellant?s claim for adverse possession

Facts: The plaintiff/appellant, Mr Dunne, claimed to have been in possession of a 3-acre field beside Clondalkin Railway Station from 1977 to 2007. The defendants/respondents, Irish Rail and Córas Iompair Éireann, claimed ownership of the field and counterclaimed in support of their rights. They asserted that there had been no possession by Mr Dunne which is adverse to their rights as owner. In turn, Mr Dunne disputed their title to the land. In the five day trial in the High Court before Clarke J, judgment of 7th September 2007 ([2007] IEHC 314), Mr Dunne was represented but lost his case, while Irish Rail succeeded on the counterclaim. On appeal to the Supreme Court, however, he pleaded his own case and asserted that the trial judge legally and factually misconstrued his claim for adverse possession, ignoring the fact that he was in ?unhindered possession? of the property for 30 years while ?maintaining and securing? the property without objection.

Held by Laffoy J that, having concurred with Charleton J and referred to Powell v McFarland [1979] 38 P & CR 452, the appellant had not established that the trial judge did not apply correct legal principles to the resolution of his claim against the respondents that he has acquired title by adverse possession to the lands in dispute, nor had he established that the application by the trial judge of the relevant legal principles to the factual situation was erroneous.

Laffoy J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton , delivered on Thursday 28th July 2016

1 Dennis Dunne, the plaintiff/appellant, claims to have been in possession of a 3-acre field beside Clondalkin Railway Station from 1977 to 2007. Given that the limitation period on actions to recover land is 12 years, this should be ample from the point of view of the efflux of time to assert adverse possession. The defendants/respondents, Irish Rail and Córas Iompair Éireann, commonly called CIÉ, claim ownership of the field and have counterclaimed in support of their rights. They assert that there has been no possession by Dennis Dunne which is adverse to their rights as owner. In turn, Dennis Dunne has disputed their title to the land. In the 5 day trial in the High Court before Clarke J, judgment of 7th September 2007, [2007] IEHC 314, Dennis Dunne was represented but lost his case on both grounds, while Irish Rail succeeded on the counterclaim. On this appeal, however, he pleaded his own case and has asserted that the trial judge legally and factually misconstrued his claim for adverse possession, ignoring the fact that he was in ?unhindered possession? of the property for 30 years while ?maintaining and securing? the property without objection. The circumstances of adverse possession being many and varied, more extensive reference to the facts is required than is usual on an appeal. This judgment concurs with that of Laffoy J.

2 That said, while the owner of land bears the burden of proof on a claimant or counterclaimant who asserts ownership of land through possession, the process of appeal is not one of rebalancing evidence. Instead, it is about the scrutiny of the findings of the trial judge to ensure that any fact upon which the judgment depends was based on evidence. Henchy J in Northern Bank Finance Corporation Limited v Charlton [1979] IR 149 at 194, discussing the limited circumstances in which a finding of fact made by a trial judge may be overturned, noted that an appellate court ?can but reject [the trial judge's] conclusions when they are shown to be incorrect by reference to the totality of the evidence?. Any such finding on appeal will necessarily be rare, as it is not part of the function of an appellate court to weigh evidence in the balance as if in substitution for the function of the trial judge in determining what degree of credit and impact should be given to particular aspects of testimony. The function of an appellate court is not the imaginative recreation of the trial but, rather, the reposing of trust in the trial judge whose findings are not to be upset once these are supported by evidence; although more evidence may seem in certain circumstances to support an alternative conclusion. As McCarthy J remarked in Hay v O'Grady [1992] 1 IR 210 at 217, the ?truth is not the monopoly of any majority.? This case is one where it may fairly be said that there was some evidence on both sides on the adverse possession issue, while on the title issue raised against CIÉ by Dennis Dunne, there was uncontradicted evidence as to ownership by the national transport corporation.

The title issue

3 This matter may be dealt with briefly. CIÉ have been at all material times the rateable occupiers of this land. A series of letting agreements were made of the land by CIÉ, in the context of farming and grazing, between the 1930s and the 1960s. A private Act was passed in the Westminster Parliament, then engaging jurisdiction over this country, in 1844 ?for making and maintaining a Railway from the City of Dublin to the Town of Cashel, with a branch to the Town of Carlow?. It was under that Act that the predecessors of CIÉ, the Great Southern and Western Railway, acted to acquire land: a form of compulsory purchase limited strictly to a particular breadth. Under the Act of 1844, no land was actually conveyed to the predecessors of CIÉ. Rather, the company was capitalised under s.2 of the Act and was given a power to compulsorily acquire land necessary for the completion of the railway. At trial, title deeds were produced before the High Court showing that among the lands acquired for building the railway line were parcels at Neilstown and the adjoining townlands of Cappagh and Ballynagigan. A land survey referenced in evidence from 1848 demonstrates ownership in the railway company of this particular field. A deed from 25th December 1845 demonstrates not only how hard people were then expected to work, but also that ?portions of land in the townland of Neilstown situate in the parish of Clondalkin in the county of Dublin, containing in the whole 2 roods and 7 [perches], Irish plantation measure? was conveyed. Correspondence was demonstrated between the plots filed and one of the plots then purchased. This was shown as being near Clondalkin Station. As to whether this exhibited good title, a conveyancing solicitor was called, Colin Keane, who gave his expert opinion that the documents were:

[A] good paper title in the form of these conveyances. And as long as one can be satisfied that the book or book of reference which is referred to in the deeds is that book of reference there, then you have good title vesting in the Great Southern and Western Railway. And from my knowledge of other titles, I know by various statutes how it has devolved down to CIÉ and Iarnród Éireann? I think it is a far better title than one would normally be accepting. It is at least 100 years older than most titles we see.

The trial judge was content to accept that evidence:

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 Another point was also raised by the appellant in addition to title. It was that the predecessor of CIÉ did not have capacity to acquire title originally. In the notice of appeal, it is also pleaded that ?an incorporated entity such as the Respondent, is precluded from gaining title by adverse possession?. The capacity point requires decision first. The Act of 1844 enabled the predecessor of CIÉ to acquire land for railways and for ancillary purposes, one example being s. 230 which afforded the company a wide power ?for the Purchase of any Land adjoining or near to the Railway? for the varied purposes of constructing ?additional Stations, Yards, Wharfs and Places for the Accommodation of Passengers, and for receiving, depositing, and loading or unloading Goods or Cattle to be conveyed upon the Railway?. In addition, the railway company, in laying out the line, could be compelled by a landowner whose property it bisected to purchase the slice of land cut off from the main holding: ?land which shall be so cut through and divided by the railway works? as s. 196 puts it. While there is no evidence that this happened, there was evidence that in the days when cattle were conveyed by train, fields near railway stations were commonly acquired to be used for casual grazing or as a secure pound pending transportation. Frank Masterson, assistant group property manager for CIÉ, referenced what he knew about the land holding pattern at other stations before the High Court:

There would have been extensive freight traffic on the lines ? Well, the freight would have consisted of various differencing in agriculture product but also a large element in those days and until fairly well into this century was livestock, so cattle in particular? At a number of locations, most of the locations, for example, that are shown on here there is wide expansive land in addition to the land that the station sits on, which we generally...