Lynagh v Mackin

• Jurisdiction: Ireland
• Judgment Date: 23 April 1970
• Date: 23 April 1970
• Docket Number: [1967. No. 2678 P.]
• Court: Supreme Court

Lynagh v. Mackin

MARY LYNAGH

Plaintiff

and

MICHAEL MACKIN

Defendant.

[1967. No. 2678 P.]

Supreme Court

Practice - Appeal - Evidence - Whether further evidence should be allowed at hearing of appeal to the Supreme Court - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 58, r. 8.

The plaintiff and the defendant were owners in severalty of adjoining parcels of land. The plaintiff claimed a right of way along a lane on the defendant's lands. Free passage along the lane had been obstructed by the construction of a silage pit in the lane. In 1966 the plaintiff brought an action in which she pleaded that the defendant had constructed the pit, and she claimed an injunction to restrain him from continuing to obstruct her right of way. The defendant pleaded that, if there had been such right of way, the right had been abandoned and extinguished before the action was instituted. The defendant sought and obtained particulars of the alleged right of way, but the plaintiff did not ask for particulars of the alleged abandonment. At the trial of the action in the High Court, the plaintiff gave evidence of user of the lane; and the defendant in his evidence said that he had constructed the silage pit in 1946 to the knowledge of the plaintiff's husband (who was the plaintiff's immediate predecessor in title) and that he had acquiesced in the obstruction caused by the pit. Neither the plaintiff nor her husband, who had died in 1951, had resided on the plaintiff's parcel of land.

The trial judge gave judgment for the defendant on the basis that there had been acquiescence in the obstruction of such duration as to amount to an abandonment of any right of way that had existed. The plaintiff appealed and sought either judgment in her favour or a new trial; but she conceded that the decision of the trial judge was unchallengeable in the absence of further evidence. The plaintiff sought leave to adduce further evidence, which she had obtained since the trial, consisting of the testimony of witnesses who had worked at the construction of the silage pit and who asserted that the pit was constructed in 1951, which was the year in which the plaintiff's husband had died. The plaintiff contended that, as her husband had been confined to his home for several months prior to his death, it could be established that it was extremely unlikely, at least, that her husband had ever known of, or consented to, the construction of the pit; and she submitted that, accordingly, the entire basis of the decision of the trial judge could be shown to rest on inaccurate evidence.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.), in dismissing the appeal, 1, that, in order to obtain leave to adduce further evidence at the hearing of an appeal, an appellant was required normally to satisfy three requirements which were, first, to show that the further evidence could not have been obtained with reasonable diligence for use at the trial; secondly, to show that the further evidence was such as would probably have an important influence on the result of the case; and, thirdly, to show that such evidence was apparently credible.

Ladd v. Marshall [1954] 1 W.L.R. 1489 approved.

2. (Walsh J. dissenting) That, as the defendant had conceded that the second and third requirements were satisfied, it was necessary to consider the first requirement only.

3. That the plaintiff had failed to satisfy the first requirement.

Motion on Notice.

The plaintiff instituted her action on the 14th September, 1966, by issuing a civil bill in the Circuit Court (Eastern Circuit—County of Meath). Paragraph 5 of the civil bill was in the following terms:—

"5. The defendant wrongfully obstructed the said way by erecting a silo pit and ramp on same and when, in 1965, plaintiff complained of his obstruction, he has further obstructed the right of way in the following manner:—

• (a) He has put a lock and chain on the gate leading to the said right of way from the public road, thereby blocking the plaintiff's entry.

• (b) The right of way is blocked by the said silo pit and also by a heap of clay erected beside the silo pit for the purpose of obstruction.

• (c) He has removed a gate where the right of way enters the lands.

• (d) He has ripped up a bridge which was erected across a culvert where the right of way enters plaintiff's lands."

The defendant lodged a defence dated the 13th December of which paragraph 8 was as follows:—

"8. If (which is not admitted) the plaintiff was at any time entitled to the alleged right of way, the same had been abandoned, and had become extinguished before the commencement of this action, or the commission of the acts herein complained of."

On the 24th January, 1967, the defendant requested particulars of the right of way claimed by the plaintiff—including the periods for which, the persons by whom, and the manner in which the plaintiff alleged that the right of way had been used. The plaintiff answered the request for particulars on the 29th March. The action was transferred to the High Court by order of that court dated the 4th October, it was tried before Teevan J. on the 18th and 19th December and judgment for the defendant was delivered on the 20th December, 1967. The plaintiff appealed to the Supreme Court, from the judgment and order of the High Court, by motion on notice dated the 14th February, 1968.

Order 58, r. 1, of the Rules of the Superior Courts, 1962, provides that all appeals to the Supreme Court shall be by way of rehearing.

Order 58, r. 8, of the Rules of the Superior Courts, 1962, provides as follows:—

"8. The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme Court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just."

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

The plaintiff and defendant are owners of adjoining lands at Harlinstown in the barony of Slane Upper in the County of Meath. The plaintiff's action was for an injunction to restrain the defendant from obstructing a right of way which the plaintiff claims over the lands of the defendant from the public road to her lands and back again, for herself and her servants, on foot and with horses,

vehicles and cattle at all times of the year. The alleged right of way is identified as Springer's lane; it is a laneway which runs to a field known as Springer's field, which forms part of plaintiff's holding.

The plaintiff is the widow of the late Frank Lynagh. They married in 1941 but they lived, not on the holding, but in Slane which is some 3 or 4 miles away. Frank Lynagh died1 in 1951. Mrs. Lynagh, having arranged to put her children into a boarding school, went to England. That was in 1955; she returned ten or eleven years later. These proceedings were commenced by civil bill on the 14th September, 1966, after her return. On the hearing in the Circuit Court it was, however, discovered that the rateable valuation of the servient tenement exceeded £60 and the action was transferred, by consent, to the High Court. The history of the plaintiff's holding is this. It was first vested in 1924; the registered owner being Mrs. Eliza Lynagh, mother of Frank Lynagh. She died in 1932 and her son, Frank Lynagh, then took over and worked the lands until his death in 1951.

It is conceded at the bar that there was sufficient evidence of user before Mr. Justice Teevan in the High Court to warrant a finding that Frank Lynagh enjoyed the right of way in question under the doctrine of lost grant. Mr. Justice Teevan, however, did not so find expressly. He had evidence from the defendant that the main obstruction complained of, viz. a concrete silo which was built across the right of way, was erected to the knowledge, and with the acquiescence, of the late Frank Lynagh. His Lordship found that the silo was erected some time in 1946, 1947, 1948 or 1949, and he accepted the defendant's evidence that it was erected with the acquiescence of the late Frank Lynagh. This he regarded as the critical point in the case, and his judgment rests on it. He said:—". . . I must hold that there was a sufficient physical interruption, acquiesced in by the late Mr. Lynagh, to put an end to whatever right then existed, if right there was." He, therefore, dismissed the plaintiff's claim.

Subsequent to the dismissal of her claim, the plaintiff discovered several witnesses who say that they were associated with the building of the silo and that the silo was built not in 1946, as the defendant and his wife said at...