Feehan v Leamy

• Jurisdiction: Ireland
• Judge: Finnegan J
• Judgment Date: 29 May 2000
• Neutral Citation: [2000] IEHC 118
• Docket Number: No.1224p/1978
• Court: High Court
• Date: 29 May 2000

FEEHAN v. LEAMY

BETWEEN

DONAL G. FEEHAN

PLAINTIFF

And

CHRISTOPHER LEAMY

DEFENDANT

AND BY ORDER TO PROCEED

FEEHAN v. LEAMY

BETWEEN

DONAL G. FEEHAN

PLAINTIFF

AND

PATRICK LEAMY (AS PERSONAL REPRESENTATIVE TO THE ESTATEOF CHRISTOPHER LEAMY DECEASED) AND ROGER LEAMY

DEFENDANTS

AND BY FURTHER ORDER TO PROCEED

FEEHAN v. LEAMY

BETWEEN

MICHAEL FEEHAN

PLAINTIFF

AND

PATRICK LEAMY (AS PERSONAL REPRESENTATIVE TO THE ESTATEOF CHRISTOPHER LEAMY DECEASED) AND ROGER LEAMY

DEFENDANTS

[2000] IEHC 118

No.1224p/1978

THE HIGH COURT

Synopsis:

Property

Land; adverse possession; plaintiff claims defendant wrongfully trespassed on his land; plaintiff claims damages and injunctive relief; defendant claims to have acquired title by adverse possession; onus on defendant to establish his claim that he acquired title to the land by adverse possession; whether plaintiff discontinued in his possession of the land; whether defendant dispossessed the plaintiff; whether defendant had necessary animus possidendi to dispossess the plaintiff.

Held: Defendant failed to establish adverse possession; injunctive relief granted to plaintiff

Feehan v. Leamy - High Court: Finnegan J. - 29/05/2000

The proceedings concerned a dispute over the ownership of lands. The plaintiff sought an injunction restraining the defendant from trespassing on certain lands. The defendant claimed to have occupied the lands exclusively and to have acquired title to the lands by reason of adverse possession. Finnegan J was satisfied that it had not been shown that the plaintiff had discontinued possession. The defendant did not have the necessary animus possidendi to dispossess the plaintiff. The injunctive relief sought by the plaintiff would be granted.

Citations:

GLEESON V FEEHAN 1993 2 IR 113

GLEESON V FEEHAN 1997 1 ILRM 522

MURPHY V MURPHY 1980 IR 183

BROWNE V FAHY UNREP KENNY 24.10.1975

LORD ADVOCATE V LORD LOVAT 1880 2 AC 173

SEAMUS DURACK MANUFACTURING LTD V CONSIDINE 1987 IR 677

BUCKINGHAMSHIRE CO COUNCIL V MORAN 1989 3 WLR 162

LEIGH V JACK 1879 5 EX D 264

1 Judgment of Finnegan Jdelivered the 29th day of May, 2000

2 The plenary summons in this matter issued on the 28th February, 1978 and as then constituted the Plaintiff was Donal G. Feehan and the Defendant was Christopher Leamy. The reliefs claimed were an injunction directing the Defendant to vacate and to cease to trespass on the lands in Folio 28973 County Tipperary ("the lands") and damages for trespass. On an application for interlocutory relief the Defendant field an Affidavit sworn by him on the 26th May, 1978 in which he deposed that he had vacated the lands and that he did not intend to go onto the lands pending determination of the proceedings. The Defendant did vacate the lands and the Statement of Claim delivered on the 18th April, 1981 claims damages for trespass without seeking any injunctive relief. The Defence delivered on the 30th August, 1985 while not claiming any title in the lands on behalf of the Defendant sought to put in issue the Plaintiff's tille. A Reply was delivered on the 7th January, 1986. By Order of the Court dated 28th January, 1988 the Original Defendant having died on the 4th January, 1987, the action was reconstituted with his personal representative, Patrick Leamy, being substituted as Defendant and the Second named Defendant, Roger Leamy, was added. An amended Statement of Claim was delivered on the 7th May, 1998 wherein it is pleaded that following the death of Christopher Leamy the Second named Defendant wrongfully trespassed upon the lands and kept cattle and sheep thereon: the Plaintiff claims damages and also injunctive relief against both Defendants restraining them from trespassing on the lands. An amended defence was delivered on the 9th October, 1988 in which the Second named Defendant claims to have gone into occupation of the lands in or about May 1981 and to have exclusively used the lands as his own from that date and upon that basis he claims to have acquired title to the lands by adverse possession and counterclaims for a declaration to that effect. By Order dated the 11th June, 1999 Donal G. Feehan having died and it appearing onAffidavit that the said Donal G. Feehan was trustee of the lands for Michael Feehan. Michael Feehan was substituted as Plaintiff in place of Donal G. Feehan.

3 The delay in bringing this matter to hearing is explained by other proceedings which are relevant to the issues which arise in this action. Edmond Dwyer was registered as owner of the lands on the 16th June, 1953. He died on 2nd October, 1971. Following his death Jimmy Dwyer, the illegitimate son of Edmond Dwyer's sister, remained in possession of the lands. In 1978 Jimmy Dwyer agreed to sell the lands to the Plaintiff. The purchase monies were paid on the 11th January, 1978 and the sale was completed by a Transfer to Donal G. Feehan dated 3rd March, 1981. The title of Donal G. Feehan was not registered until 12th March, 1997. The title of the Plaintiff was not registered until the 10th December, 1998. The title of Jimmy Dwyer was disputed by the next of kin of Edmond Dwyer who by their attorney, Francis P. Gleeson, issued proceedings against Donal G. Feehan in the Circuit Court by Civil Bill dated the 1st March, 1983. These proceedings were prosecuted as far as the Supreme Court: see 1993 2 I.R. 113 for judgment delivered on 20th June, 1991 and see 1997 1 IL.RM 522 for judgment delivered on 21st November, 1996. The effect of the latter decision of the Supreme Court was that Jimmy Dwyer had indeed title to the lands and as a consequence Donal G. Feehan and the Plaintiff acquired good title from him. Thereafter registration of the title of Donal G. Feehan and the Plaintiff took place as herein before mentioned. While these proceedings were pending disputing his title the Plaintiff took the view that he was unable to prosecute the presentaction.

4 To compete the background to the present claim it is necessary to look at the involvement of the Leamy family with the lands. Edmond Dwyer and Jimmy Dwyer were not particularly industrious farmers. From 1950 onwards the lands, together with other lands of the Dwyers, were rented to Christopher Leamy. In 1951 an arrangement was reached between the Dwyers and Christopher Leamy whereby in lieu of paying rent for the landsChristopher Leamy would pay rates on the lands and on other lands of the Dwyers. This situation continued until 1978 when Jimmy Dwyer sold the lands to the Plaintiff. The dispute as to the title of Jimmy Dwyer was in existence as early as the 9th March, 1978 as by letter of that date Christopher Leamy was requested by the next of kin of Edmond Dwyer to continue to graze the lands in their interest. As was cited above, Christopher Leamy and vacated the lands by the 26th May, 1978.

5 Where a person with good title brings an action for the recovery of lands and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder, the plaintiff, has been dispossessed or has discontinued his possession of the lands in question for the statutory period. The onus here accordingly is on the Second named Defendant to establish his claim that he has acquired title by adverse possession.

6 The Second named Defendant gave evidence as follows. His father, Christopher Leamy, had vacated the lands at the time he swore the Affidavit of 26th May, 1978. Thereafter the lands...