Fox v Sweeney

 
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1998 WJSC-CC 7318

THE CIRCUIT COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

FOX v. SWEENEY

BETWEEN:

EDWARD FOX
PLAINTIFF:
-and-
FRANCIS SWEENEY AND CECELIA SWEENEY
DEFENDANTS.

Citations:

MURPHY V MURPHY 1980 IR 183

BROWNE V FAHY UNREP KENNY 24.10.75

LORD ADVOCATE V LORD LOVAT 1880 5 AC 273

STATUTE OF LIMITATIONS 1957 S13(2)

STATUTE OF LIMITATIONS 1957 S14

STATUTE OF LIMITATIONS 1957 S14(1)

SALMOND ON THE LAW OF TORTS 20ED 51

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 428

WYLIE IRISH CONVEYANCING LAW CH 11

Words & Phrases:

CEF

Subject Headings:

*

JUDGEMENT OF JUDGE McGUINNESSDelivered the 28 day of July 1994
JUDGE McGUINNESS
1

These proceedings concern a small area of unregistered land in South County Dublin bounded by the Edmondstown Road on the west and a curve of what appears from the Ordnance Survey Map to be the Owendoher River or a branch thereof on the east. This land borders on the registered lands comprised in Folio 2386 of the Register of Freeholders of County Dublin and also on the registered lands comprised in Folio No. 19925 of the Register of Freeholders County Dublin. The river, which is apparently the townland boundary, forms part of the boundary of the land registered in the two Folios mentioned above.

2

The Plaintiff, Edward Fox, is the registered owner of the lands in Folio 2386, an area of 26.294 hectares and the Defendants, Francis and Cecelia Sweeney are the registered owners of the lands in Folio 19925, an area of .218 hectares.

3

During the course of the lengthy hearing before me on 19 and 21 July 1994, both Counsel for convenience of reference referred to the small portion of unregistered land between the river and the Edmonds town Road as "the island" and I propose, again for the sake of convenience, to adopt this term.

4

In his Civil Bill, the Plaintiff claims that he and his predecessors in title had a possessory title to the entire of the "island" and that the Defendants have trespassed on these lands. He seeks an injunction restraining the Defendants from trespassing on the lands, an order directing the Defendants to remove plants or other things placed on the lands, and to remove any fences or ditches erected by them on the lands, an order directing the County Registrar to include the lands on the Plaintiff's Folio No. 2386 and damages for trespass. In their Defence, the Defendants claim that possession of the strip of land was discontinued by the Plaintiff's predecessors in title in or about 1973 and that they have been in occupation of the land for more than 12 years. In their counterclaim, they seek a declaration that the interest (if any) of the Plaintiff in the strip of land has been extinguished by the adverse possession of the said lands by the Defendants for upwards of 12 years prior to the institution of the proceedings.

5

During the course of the hearing, a considerable number of witnesses gave oral evidence with regard to the history of the lands in question and a number of maps and photographs were handed in in evidence. From the maps provided, both by the Plaintiff and by Mr. Clifford, the engineer who gave evidence for the Defendants, it became clear that the land which is actually in issue in these proceedings is not the entire of the "island" but roughly the southern third of it which is the portion which lies between the lands in Folio 19925 (the Defendants“ lands) and the Edmondstown Road. It is acknowledged by both parties that the Defendants have no claim over the remainder of the "island" and that it is probable that the Plaintiff has at least a possessory title to this northern portion.

6

It also became clear from the evidence given before me that the background to the present dispute lies in the fact that the Plaintiff wishes to use part of his lands to establish a burial ground. For this purpose he requires to create a new entrance from the Edmondstown Road across the "island" of unregistered land on to his registered lands. While he did not at the time require planning permission for the burial ground itself, he needed planning permission for the entrance and car park. With the assistance of two retired County Council officials, Mr. Cunningham and Mr. Dooley, who gave evidence before me, the Plaintiff appealed to An Bord Pleanala and negotiated further with the County Council during 1990 and 1991 in regard to this entrance. Owing to the narrowness of the Edmondstown Road, the County Council required a wide entrance to the burial ground and in order to meet with the requirements of the County Council, the Plaintiff would need to utilize a small triangle of the southern portion of the "island" which is in issue in these proceedings.

7

The Defendants have apparently been objectors to the setting up of the Plaintiff's proposed burial ground throughout the entire planning permission process, as they had of course a statutory right to be.

8

Thus it appears to me that it is this dispute in regard to the burial ground that lies behind the present proceedings and it is this dispute which has prevented any settlement of the matter. Put bluntly, if the Plaintiff can establish his case, he will enabled to proceed with the burial ground; if the Defendants succeed, they will at least create very considerable further difficulties in the setting up of the burial ground and possibly prevent it altogether.

9

In addition to the oral evidence, a number of pieces of documentary evidence in regard to the title to the lands have been submitted in evidence. These include:

10

Land Registry Folio 2386 Register of Freehold Land County Dublin.

11

Land Registry Folio 19925 Register of Freehold Land County Dublin.

12

Certified copy Land Registry Dealing No. R1192/73 in regard to Folio No. 2386.

13

Original Contract dated" 12 April 1972 made between John McGrane and Messrs. McKeever & Sons, Solicitors (In trust) for the sale of part of the lands in Folio 2386.

14

So far as can be ascertained from the documentary and oral evidence, the history of the lands is as follows:

15

Mr. John McGrane, farmer, became the registered owner of the lands then comprised in Folio 2386 on 24 July 1940. Mr. Fox said in oral evidence that Mr. McGrane, who was his uncle, inherited these lands from a family called Jenkins who had been there for many years. Mr. McGrane, who was unmarried and had no children, died in or about 1974. Mr. Fox said in evidence, and I have no reason to doubt him, that Mr. McGrane had a possessory title to the strip of unregistered land referred to as the "island". Mr. Fox also said that he was Mr. McGrane's favourite nephew, and as such inherited his land. No will or other documentary evidence was produced to show this devolution of title to Mr. Fox. However, Mr. Fox was registered as owner of the lands then contained in Folio 2386 on 30 May 1983, some nine years after Mr. McGrane's death.

16

In or about early 1972 Mr. McGrane agreed to sell a site from the lands. On 12 April 1972 he entered into a contract for the sale of this site to Messrs. McKeever & Sons, Solicitors, (in trust) for the sum of £1,500. The purchaser was in fact the well-known Dr. Percy Griffith Patton. In the contract, the particulars of the property are set out as being ""part of the lands of Kilmashogue Rathfarnham in the Barony of Rathdown and County of Dublin and being part of the lands comprised in Folio 2386 Freeholders Land Registry County Dublin and as to its area and measurements and extent is more particularly described on the map attached hereto and thereon edged with a green line". The map attached to the contract clearly shows the lands edged with the green line as including not only the lands now registered in Folio 19925, but also the southern portion of the unregistered lands - the "island". This would give the site a frontage onto the Edmondstown Road. Along the south west border of the site a laneway runs out to Edmondstown Road and when a house was subsequently built on the site, an entrance was made on to this laneway. The laneway does not, and never did, form part of the lands in Folio 2386; it is in fact a right of way on lands at present owned by Dublin County Council. The Plaintiff denied in evidence that he ever claimed ownership of this laneway, but I would accept the evidence of the Defendant Mr. Sweeney and of his predecessor in title, Mr. O'Donoghue, that in fact Mr. Fox claimed on quite a number of occasions to both of them that he owned the...

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