Kelleher v Botany Weaving Mills Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Maureen H. Clark
• Judgment Date: 10 December 2008
• Neutral Citation: [2008] IEHC 417
• Docket Number: 2007 155 CA
• Court: High Court
• Date: 10 December 2008

Kelleher v Botany Weaving Mills Ltd

Dublin Circuit

County of the City of Dublin

ANTHONY KELLEHER

Plaintiff/Appellant

V.

BOTANY WEAVING MILLS LIMITED

Defendant/Respondent

[2008] IEHC 417

2007 155 CA

Record number 3276/2006

THE CIRCUIT COURT

LAND LAW

Adverse possession

Action for recovery of land - Whether defendant in exclusive occupation of lands in excess of 12 years - Whether title of plaintiff extinguished - Statute of Limitations - Animus possidendi - Possessory title - Applicable legal principles - Fact of possession - Nature of land - Nature of occupation - Whether minimal acts of possession by owner of paper title sufficient to establish no dispossession - Durack Manufacturing v Considine (Unrep, Barron J, 27/5/1987), Gleeson v Feehan (Unrep, Finnegan P, 29/5/2001), Dunne v Iarnrod Eireann 2007 IEHC 314, (Unrep, Clarke J, 7/9/2007), Murphy v Murphy [1980] IR 183, Wallis's Holiday Camp v Shell-Max [1975] QB 94, Trelor v Nute [1976] 1 WLR 1295, Lord Advocate v Lovat (1880) 5 App Cas 273, Keelgrove Properties Ltd v Shelbourne Development Ltd [2005] IEHC 238, [2007] 3 IR 1, Doyle v O'Neill (Unrep, O'Hanlon J, 13/1/1995) , Griffin v Bleithin [1999] 2 ILRM 182, Powell v McFarlane [1979] 38 P&CR 452 and Williams v Usherwood (1983) 45 P. & C.R. 235 considered; Tracey Enterprises Macadum Ltd v Drury [2006] IEHC 381, (Unrep, Laffoy J, 24/11/2006) approved; Statute of Limitations Act 1957 (No 6), ss 13(2), 18(1) and 24 - Plaintiff declared to be owner of land (2006/3276 - Clark J - 10/12/2008) [2008] IEHC 417

Kelleher v Botany Weaving Mills Ltd

SEAMUS DURACK MANUFACTURING LTD v CONSIDINE 1987 IR 677 1987/6/1623

FEEHAN v LEAMY UNREP FINNEGAN 29.5.2000 2000/9/3404

TRACEY ENTERPRISES MACADAM LTD v DRURY UNREP LAFFOY 24.11.2006 2006/56/11884 2006 IEHC 381

DUNNE v IARNROD EIREANN & CORAS IOMPAIR EIREANN UNREP CLARKE 7.9.2007 2007/16/3349 2007 IEHC 314

STATUTE OF LIMITATIONS 1957 S13(2)

STATUTE OF LIMITATIONS 1957 S18(1)

STATUTE OF LIMITATIONS 1957 S24

STATUTE OF LIMITATIONS 1957 S18

WALLIS'S CAYTON BAY HOLIDAY CAMP LTD v SHELL-MEX & BP LTD 1975 QB 94 1974 3 WLR 387

TRELOAR v NUTE 1976 1 WLR 1295 1977 33 P & CR 41

MURPHY v MURPHY 1980 IR 183

THE LORD ADVOCATE v LORD LOVAT 1879-80 LR 5 APP CAS 273

KEELGROVE PROPERTIES LTD v SHELBOURNE DEVELOPMENT LTD UNREP GILLIGAN 8.7.2005 2005/33/6923 2005 IEHC 238

DOYLE v O'NEILL UNREP O'HANLON 13.1.1995 1995/2/421

GRIFFIN v BLEITHIN 1999 2 ILRM 182 2000/20/7681

POWELL v MCFARLANE 1979 38 P & CR 452

WILLIAMS & ANOR v USHERWOOD & ANOR 1983 45 P & CR 235

Ms. Justice Maureen H. Clark

1 This action comes before the court as an appeal from the Circuit Court and concerns the ownership of a small plot of leasehold land in the heart of the City of Dublin. The plot of land is adjacent to 32 Emerald Square in the Coombe in Dublin 8 and measures 31 feet in length and 11 feet in width. It comprises a lock up garage to the front part with an open area of 12 to 13 feet in length to the rear. There is no discernible boundary between the land at the rear of the garage and a large area of open ground attached to a factory owned by the Defendant. The dispute between the parties came about in September, 2005 when the Plaintiff, Anthony Kelleher who had purchased an assignment of the plot of land, sought to extend the garage by knocking out the rear wall so as to provide the length necessary to park his truck and trailer. He was prevented from carrying out these works by the Defendants who claimed that he was trespassing on their property. The original application to the Court was brought by the Plaintiff for injunctive relief but at the close of pleadings the case effectively became a claim for adverse possession.

2 The Defendant denies the Plaintiff's title and claims that it has been in exclusive occupation of the lands for a period in excess of 12 years and has extinguished the title of the Plaintiff to the lands by adverse possession.

3 Where a person with good title brings an action for the recovery of land and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder has been dispossessed or has continued his possession of the lands in question for the statutory period. This is the principle to be applied to the evidence called.

4 Mr. Peter Lawlor a son of the late John Lawlor was born and brought up in Emerald Square next door to where his father was reared and where is grandmother lived. His grandmother's back garden was adjacent to and overlapped to some degree the yard attached to the garage used by his father. When the garage was used the family had no reason to go into the yard at the back of the garage apart from rare occasions when repairs were carried out to the galvanised sheeting of the garage roof. This usually happened when children in the neighbourhood had climbed up on to the roof and jumped on it or tried to gain entry or if the galvanised sheets had lifted in a storm. Peter Lawlor particularly remembered that his mother died in 1998 and his father died in 2002 and between that period, he and his brother Frank, carried out repairs to the roof. In order to do this they had to first climb up onto the front portion of the roof using a ladder, carry the ladder across the roof and then lean it on the ground in the back yard which is the subject of these proceedings. He had no reason to take much notice of the yard but on each occasion when he was there, he noticed that it was in its usual bad unkempt condition. He moved out of Emerald Square in 1986 to get married but before that he used the garage every day to store his motorbike. During the period that he lived at home in Emerald Square, his mother had always paid rates on the premises. The back yard was not visible from his parents' house or from the garage and the only way he could see it was from the roof of the garage. He believed that the window at the back of the garage had long ago been blocked up to prevent break ins. While he used the garage on a regular basis when living in Emerald Square, he had no reason to go into the back yard.

5 Frank Lawlor, brother of Peter Lawlor was also raised in Emerald Square and left when he married in 1986. He described himself as the DIY person in the family and recalled how his father was able to buy the lock up garage from a neighbour Mr. McLoughlin who suffered a stroke. As he had no further use for the garage he sold it to his father. He recalled several occasions when the roof had to be repaired because of kinds jumping on the corrugated iron. On each occasion, he climbed onto the roof from the front and put down a ladder at the back where the roof was lower. His understanding was that the land behind was attached to the garage and formed part of the plot purchased from Mr. McLoughlin and that he had a right to be there. It never occurred to him to seek the permission of anyone to gain access to the roof or to place his ladder on the land behind. On the last occasions when he was on the roof he noted nothing different about the land at the back of the garage; it was neglected as it always was. He too recalled fixing the roof between the dates of his mother's and his father's deaths. He always carried out the repairs when notified by neighbours of its condition as his understanding was that if anybody fell through the roof that they would be liable and he saw it as his responsibility to keep the roof in repair. His impression was that there was no lawn in the yard at the back when he saw it between 1998 and 2002 and he particularly noted that when they were putting down the ladder the place was thoroughly unpleasant, being strewn with rubbish including human excrement. His recollection is that the roof was fixed on two to four occasions. He denied that landscaping had extended into this area when he last was on the roof. He identified the map attached to the assignment from Dublin Corporation to Thomas McLoughlin and the assignment from Mary McLoughlin as administratrix of the estate of Thomas McLoughlin to his father John Lawlor. The maps attached to the assignment show that land at the back of the garage is part of the plot of land originally assigned.

6 Anthony Kelleher, the assignee and Plaintiff explained that he bought the garage in September 2005 for €18,000 so that he could safely park his long truck and trailer close to where he lived in The Coombe and that his only interest in buying the property was the length of the plot on the map. He never inspected the plot at the back as he was told that it was included in the take and he relied on the map attached to the title deeds. In September 2005, he broke down the wall of the back of the garage with the intention of extending the structure to facilitate the storage of his truck and trailer but was immediately challenged by Botany Weaving. A skip was then placed by the Defendant on the plot of land to prevent him from carrying out building works and his trailer was pushed back into the garage. He has been unable to use the garage and plot for the purpose for which he purchased the property.

7 Jonathan Hackett on behalf of the Defendant gave evidence that he was a director of the company Botany Weaving Mill Ltd. that bought the lands in 1988 identified on a map handed into court. At the time of purchase, the factory was in a derelict condition, the roof had caved in and the surrounding lands were full of boulders and rubbish and constituted a dumping ground. The map of the defendant property indicates a very extensive ground area on two sides of the factory with the plot in question in the extreme south western corner. Following the purchase he restored the buildings and refurbished the grounds by having the rubble and rubbish cleared, bringing in topsoil and landscaping part of the area for parking. The entire area was laid in grass...