Kavanagh and Others v Córas Iompair Éireann
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 09 October 2009 |
| Neutral Citation | [2009] IEHC 624 |
| Docket Number | [No. 5591P/2007] |
| Court | High Court |
| Date | 09 October 2009 |
BETWEEN
AND
[2009] IEHC 624
THE HIGH COURT
Property law - Conveyancing - Easement - Railway line - Accommodation way - Right of way - Level Crossing - Whether plaintiffs had a right of way over railway line
Facts: The plaintiffs acquired lands in 2006 and 2007 formerly part of the Flight Estate. The plaintiffs sought a declaration that they had a right of way over the defendant's railway line which dissected their lands. The question arose as to whether the accommodation way was included in the sale of the lands and the rights that the Flight Estate had had which passed to the plaintiffs, considering the location of the lands, their history and the acquisition of title.
Held by Laffoy J. that on the basis of the evidence that the plaintiffs were entitled to an accommodation way over the Level Crossing to access the land portion acquired from the Flight estate for the purpose of its use for agricultural purposes. The Level Crossing had to be upgraded to a state which would accommodate the type of traffic permitted. The Court would propose postponing making declaratory orders or granting injunctions until such time as the parties had had an opportunity to consider the judgment.
Reporter: E.F.
RAILWAY CLAUSES CONSOLIDATION ACT 1845 S68
REGISTRATION OF TITLE ACT 1964 S72
RAILWAY CLAUSES CONSOLIDATION ACT 1845 S75
MIDLAND RAILWAY CO v GRIBBLE 1895 2 CH 827
MIDLAND RAILWAY CO v GRIBBLE 1895 2 CH 129
GREAT NORTHERN RAILWAY CO v M'ALISTER 1897 1 IR 587
GREAT WESTERN RAILWAY CO v TALBOT 1902 2 CH 759
TAFF VALE RAILWAY CO v CANNING 1909 2 CH 48
WEST v GREAT NORTHERN RAILWAY (IRL) 1946 NI 55
BRITISH RAILWAYS BOARD v GLASS 1965 CH 538 1964 3 WLR 913 1964 3 AER 418
RPC HOLDINGS LTD v ROGERS 1953 1 AER 1029
In these proceedings, which were initiated by a plenary summons which issued on 25th July, 2007, the plaintiffs seek the following reliefs:
(a) a declaration that the plaintiffs have a right of way over the defendant's railway line which dissects their lands comprised in Folio 30552F, County Wicklow at and by way of a level crossing, which is commonly known as "Flights Level Crossing" but which the defendant denominates as level crossing XR062, and which I will hereafter refer to as "the Level Crossing";
(b) a declaration that the defendant is obliged to keep available for the benefit of the plaintiffs the use of the Level Crossing, subject only to all necessary safety precautions;
(c) an injunction restraining the defendant from obstructing the plaintiffs' use of the Level Crossing;
(d) an injunction compelling the defendant to restore the Level Crossing or update it or both in line with other level crossings; and
(e) damages for nuisance, trespass to land, negligence and breach of statutory duty.
Contemporaneously with the plenary summons the plaintiffs issued a notice of motion seeking interlocutory injunctive relief to enable the plaintiffs to use the Level Crossing pending the trial of the action. While a very considerable number of affidavits were filed by the parties in support of and in answer to the application for an interlocutory injunction, the plaintiffs' application was not determined at the interlocutory stage but was adjourned to the trial of the action.
Before considering the plaintiffs' case and the defendant's defence as pleaded, I propose outlining the location and early history of the Level Crossing, the location of the plaintiffs' lands in respect of which the right to use the Level Crossing is claimed and how the plaintiffs acquired title to those lands.
The Level Crossing is located on the Dublin to Wexford railway line on the Dublin side of Arklow. The history of the Level Crossing, which is not in dispute, was averred to in an affidavit sworn by Colin Hedderly, who is an Assistant Divisional Engineer (Track and Structures) of the defendant, on 30th July, 2007 on the interlocutory application. The Level Crossing was originally constructed at the time of the construction of the railway line. The Act under which the railway line was constructed was the Dublin Wicklow and Wexford Railway Act, which received Royal Assent on 15th May, 1860. The section of the line from Avoca to Enniscorthy was opened on 16th November, 1863. In these proceedings, the defendant has accepted that the origin of the Level Crossing is traceable to the laying down of the railway line and the fulfilment of the railway undertakers' obligations under s. 68 of the Railway Clauses Consolidation Act 1845 (the Act of 1845). Accordingly, the defendant has accepted that the Level Crossing came into existence as an accommodation way as provided by s. 68.
In 2006 and 2007 the plaintiffs acquired lands in the townland of Ballyraine Lower, Arkow, on foot of two separate acquisitions. The two acquisitions are now consolidated on Folio 30552F, on which the plaintiffs are now registered as full owners.
The Dublin to Wexford railway line passes through Ballyraine Lower in a south easterly direction. It is bounded on one side, which for simplicity, if not accurately, I will refer as the east side, by unbuilt-on land, which I will refer to as the "River Land". The River Land is bounded on the east in semi-circular fashion by the Avoca River. The railway line is bounded on the other side, which I will refer to as the west side, by land which is partly unbuilt-on, which I will refer to the "Vale Road Land", which in turn is bounded on its west by a public road known as Vale Road.
The plaintiffs' first acquisition comprised parts of the land registered on Folio 2275 of the Register of Freeholders, County Wicklow, being the land now registered at entry No. 1 on Folio 30552F. It is clear from the documentation put in evidence that the lands registered on Folio 2275 were originally part of the estate of the Earl of Carysfort, which was the subject of a vesting by the Land Commission under the Land Purchase Acts in 1908. In 1944 the lands registered on Folio 2275 were acquired by, and registered in the names of, James Flight and Susan Flight. James Flight died in 1986 having been predeceased by Susan Flight. The acquisition by the plaintiffs of portion of the lands registered on Folio 2275 was effected by a transfer dated 8th November, 2006 from John Kershaw and Elsie Kershaw, as legal personal representatives of James Flight deceased (the Flight Estate), to the second plaintiff, who purchased in trust for all of the plaintiffs and who ultimately vested the lands he so acquired in all of the plaintiffs. It is clear from the documents put in evidence that portions of the lands registered on Folio 2275 had been disposed of both prior to the death of James Flight and subsequent to his death, and also that part of the lands had been compulsorily acquired by Wicklow County Council in connection with the construction of the Arklow Bypass after his death.
At the time of the acquisition by the plaintiffs in 2006, the remainder of the lands registered on Folio 2275 which was still vested in the Flight Estate comprised a portion of the River Land and a portion of the Vale Road Land and straddled both sides of the railway line. The Vale Road Land portion had a frontage to and was accessed directly from Vale Road. The only access to the River Land portion was from Vale Road over the Vale Road Land portion, then across the Level Crossing and through a portion of land which was part of the second acquisition, which I will call "Plot 15". Although, as regards the plaintiffs' current title, it is immaterial because of the second acquisition, on the evidence, I am satisfied that James Flight and his successors had a right of way over Plot 15 from the Level Crossing to the River Land portion of the lands registered on Folio 2275, which, as a matter of probability, was a right created by prescription and was protected by s. 72 of the Registration of Title Act1964. On the basis of the evidence of Daphne Casey, a daughter of James Flight and one of the beneficiaries of his estate, and of John Cussen, the solicitor who acted for the Flight Estate in the sale to the plaintiffs, I am satisfied that the intention of the vendors on that sale was that the benefit of both the right of way over Plot 15 and the accommodation way over the Level Crossing was included in the sale. I am satisfied that whatever rights the Flight Estate had did pass to the plaintiffs.
The significant point for present purposes is that without access to and from Vale Road over the Level Crossing, the River Land portion, with the railway to the west and the Avoca River to the east, was effectively landlocked. The existence of an accommodation way over the railway line at the Level Crossing in favour of the Flight Estate was recognised by the defendant just over two years before the sale to the plaintiffs, as is evidenced by a letter of 29th January, 2004 from the defendant to Robert Cussen and Son, the solicitors acting for the Flight Estate, in which it was confirmed that "level crossing XR062 has now been restored" and the estate was invited to enter into negotiations "regarding the possible closure". When read in the context of the line of correspondence between the solicitors for the Flight Estate and the defendant, that letter is properly construed as an unequivocal acknowledgement of the entitlement to the estate to the accommodation way, not merely a representation as to the condition of the Level Crossing.
In 2006 the plaintiffs acquired from the estate of James Flight all of the River Land portion registered on Folio 2275. They acquired a small portion only of the Vale Road Land portion registered on Folio...
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