Gannon v Ni Ghruagain
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 02 March 2010 |
| Neutral Citation | [2010] IEHC 359 |
| Date | 02 March 2010 |
| Court | High Court |
| Docket Number | [2006 No. 2340P] |
[2010] IEHC 359
THE HIGH COURT
BETWEEN
AND
REGISTRATION OF TITLE ACT 1964 S85
MCALLISTER REGISTRATION OF TITLE IN IRELAND 2005 59
GILLESPIE v HOGG 1947 13 IJ 51
LOCAL REGISTRATION OF TITLE (IRL) ACT 1891
BLAND LAW OF EASEMENTS 2ED 2009 CHAP 5 S2
FISHER v WINCH 1939 1 KB 666 1939 2 AER 144
GALE & ORS GALE ON EASEMENTS 16ED 1997 PARA 11.53
LAND LAW
Registered land
Boundary - Contiguous lands - Ditch - Fence - Property Registration Authority maps - Status of maps - Common law presumption - Whether maps conclusive in case of substantial discrepancy - Gillespie v Hogg [1947] Ir Jur Rep 51 followed; Fisher v Winch [1939] 1 KB 666 distinguished - Registration of Title Act 1964 (No 16), s 85 - Relief granted (2006/2340P - Laffoy J - 2/3/2010) [2010] IEHC 359
Gannon v Ní Ghruagain
Judgment of Miss Justice Laffoy delivered on the 2nd day of March, 2010.
1. These proceedings have a long history. They were initiated by an equity civil bill which issued on 11 th November, 2002 in the Circuit Court, Dublin Circuit. In the endorsement of claim on the equity civil bill the plaintiff pleaded that he is, and has at all material times been, the owner of the lands registered on Folio 10073IF, County Dublin, which adjoin the defendant's dwelling house. The plaintiff alleged that in or about the year 1997 the defendant, without the consent or permission of the plaintiff, had taken down and removed part of the then existing boundary comprising trees, hedging and fencing between her property and the plaintiff's lands and encroached on the plaintiff's lands. It was further pleaded that the defendant had enclosed the plaintiff's lands with post and wire mesh fencing. The kernel of the plaintiff's claim is that, by her actions, the defendant has trespassed on the plaintiff's lands and is continuing to do so, despite having been requested in writing to remove the posts and wire mesh fencing and to yield up possession to the plaintiff.
2. The reliefs claimed in the equity civil bill include:
(1) an order for possession of one parcel of the lands registered on Folio 10073IF, which is outlined in red on the map annexed to the equity civil bill, which I will refer to as the "disputed lands";
(2) an injunction restraining the defendant from trespassing on the disputed lands;
(3) an injunction requiring the defendant to remove the post and wire mesh fencing and to restore the disputed lands to their former condition; and
(4) damages for trespass and nuisance.
3. By order of the Circuit Court made on 16 th July, 2003 the plaintiff was granted judgment in default of appearance and an order for possession was granted to the plaintiff together with certain injunctive relief. That order was set aside by a further order of the Circuit Court dated 15 th December, 2005. On the same day, by order of the Circuit Court, it was ordered that the proceedings be transferred to the High Court.
4. By order of the Master of the High Court dated 25 th May, 2006 it was ordered, by consent, that the proceedings be adopted and proceeded with in this Court as if the action had been commenced in this Court. It was at that stage that the proceedings were assigned Record No. 2006/2340P.
5. The defendant, who is a personal litigant, delivered her defence in these proceedings on 27 th November, 2006. In her defence she referred to other proceedings dating from 1996 which are pending in this Court, to which I will refer later. In her defence she pleaded that she is not trespassing on any lands owned by the plaintiff. Specifically she pleaded as follows:
"The defendant purchased her property in 1992, and at the purchase it was surrounded on the South from the Road (Jugback Lane) beside and behind the house by a heavily coppiced section of very mature trees for some 140 feet or so. This continued to a heavy hedgerow of 17-25 feet in width and some 30-40 feet in height on the South, across to a mid-point on the West and down to a corner, continuing on the North by the road (Jugback Lane), the hedgerow surrounded on the outside by a broad ditch on all sides."
The defendant also denied that she had changed the position of any fencing. She also asserted that the plaintiff was not entitled to the relief claimed or any relief.
6. The position, accordingly, when these proceedings came on for hearing on 23 rd February, 2010, was that they had been in existence for seven and a quarter years.
7. The 1996 proceedings referred to in the defendant's defence are proceedings originally entitled "The High Court, between Treasa Ni Ghruagain, plaintiff and Sapporo Woods Ltd., Liffey Developments Ltd., Gannon Homes Ltd., Matthew Duff, Joseph Duff and Alicia Duff, defendants (Record No. 1996/3633P) (the 1996 proceedings). Subsequently, in 2001, the 1996 proceedings were dismissed as against the fourth, fifth and sixth defendants.
8. On 23 rd November, 2009, the defendant brought a motion before this Court seeking to consolidate the 1996 proceedings with these proceedings. The Court refused that application on the basis that these proceedings deal with the discrete issue as to the ownership and possession of a narrow strip of land, the disputed lands. The Court held that the issues in these proceedings are unrelated to the issues raised in the 1996 proceedings. It was also considered that consolidation would only serve to increase costs all round to consolidate the two actions.
9. The disputed lands comprise a narrow sliver of land measuring approximately 4.2 metres in width and approximately 40 metres in length stretching westward from Jugback Lane, with the defendant's property lying to the north thereof. At the hearing of the action an official of the Land Registry appeared on foot of a subpoena issued by the plaintiff and produced the following documentation:
(1) a certified copy of Folio 10073IF of the Register of Freeholders County Dublin with the Property Registration Authority (PRA) map relevant to that folio created on 22 nd February, 2010 attached; and
(2) a certified copy of Folio 12141 of the Register of Freeholders County Dublin, with the relevant PRA map created on 22 nd February, 2010 attached.
10. The lands registered on Folio 10073IF comprise various parcels of lands at Broadmeadow near Swords, County Dublin. The disputed lands, which are at a distance from the balance of the lands registered on the folio, are designated A2DXE on the PRA map. The area thereof is not stated. The plaintiff was registered as full owner with absolute title of the disputed lands on Folio 10073IF on 27 th June, 1994. The PRA map is based on the Ordnance Survey map and is drawn on the scale of 1:2500.
11. Folio 12141 relates to part of the townland of Broadmeadow. The defendant is the registered owner of all of the lands registered on Folio 12141, the area of which is not stated either on the folio or on the map, which the defendant believes to be approximately half an acre. The lands comprise her home with a garden in front to Jugback Lane and a field at the rear. She was registered on the folio on 7 th May, 1993 as full owner with absolute title in succession to James Ennis. The house was originally a vested cottage, which would appear to have been vested under the Labourers Act 1936 in her predecessor, Mr. Ennis. The PRA map is based on the Ordnance Survey map and is drawn on a scale of 1:1000.
12. Even though the map attached to Folio 10073IF is drawn on a different scale to the map attached to Folio 12141, what is quite clear is that, on a visual assessment of both maps, the disputed lands, i.e. plot A2DXE, of which the plaintiff claims to be, and is registered as, owner, are to the south of and contiguous with the lands registered on Folio 12141, of which the defendant is owner. The entirety of the southern boundary of the defendant's property from east to west (including its boundary with the disputed lands which extends roughly half of the length of the boundary) forms a straight line on the maps.
13. Therefore, purely on the basis of the comparison of the two PRA maps, nobody would doubt that the plaintiff is the owner of the disputed lands.
14. The current position on the ground is depicted on a drawing prepared by Paul Corcoran & Associates, designated "Boundary Check Applewood" and dated 19 th June, 2008 (the boundary drawing), which was put in evidence by Patrick Moran, the surveyor who drew it. It shows the disputed lands outlined in red as per the PRA map in relation to Folio 10073IF. It also shows the outline of the defendant's adjoining property as per a land survey carried out in July/August 1995 by Land Surveys. Thomas Nesbitt, a surveyor with Land Surveys, also testified and he put in evidence a drawing (the survey drawing) showing the portion of the topographical survey carried out by Land Surveys in 1995 of a large area at Broadmeadow which depicted, inter alia, the disputed lands and the defendant's property. The outline of the defendant's property, as depicted by blue lines, was digitally reproduced from the Ordnance Survey map. Two physical features, which on the defence were of significance, were surveyed on the ground in 1995 and are depicted on the survey drawing. The first is a ditch, represented by a dashed line, surrounding the defendant's property on three sides, excluding the road side, which ditch is entirely outside the boundary of the defendant's property as depicted by the blue lines and which Mr. Nesbitt estimated would have been about three metres in width. The second is a hedge, represented...
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