McCoy and McCoy v McGill and Roe

• Jurisdiction: Ireland
• Judge: Mr. Justice John Hedigan
• Judgment Date: 07 October 2008
• Neutral Citation: [2008] IEHC 301
• Docket Number: [2007 No.
• Court: High Court
• Date: 06 October 2008

[2008] IEHC 301

THE HIGH COURT

[No. 3511P/2007]

McCoy v McGill & Roe

BETWEEN

PATRICK McCOY AND TERRI McCOY

PLAINTIFFS

AND

MICHAEL McGILL AND TIMOTHY ROE

DEFENDANTS

ALAN WIBBERLEY BUILDING LTD v INSLEY 1999 1 WLR 894

O'DONNELL v RYAN 1856 4 ICLR 44

TOPLIS v GREEN 1992 EGCS 20

SEECKTS v DERWENT 2004 EWCA CIV 393

BOYD GIBBINS LTD v HOCKHAM 1966 199 EG 229

KENNY v LA BARTE 1902 2 IR 63

COOK v JD WETHERSPOON PLC 2006 2 P & CR 18

Land Law

Adverse possession

Boundary dispute - Adjoining landowners - Trespass - Nuisance - Principles applicable in relation to determining boundaries - Rules of construction of a deed - Role of map - Whether any evidence adduced in relation to adverse possession - Wibberley Building Limited v Insley [1999] 1 WLR 894, O'Donnell v Ryan 4 ICLR 44, Topliss v Green [1992] EGCS 20, Boyd Gibbins Ltd v Hockham [1966] 199 EG 229, Kenny v La Barte [1902] 2 IR 63 and Cook v JD Wetherspoon plc [2006] 2 P & CR 18 considered - Plaintiff's claim dismissed (2007/3511P- Hedigan J- 6/10/2008) [2008] IEHC 301

McCoy v McGill

Facts: The plaintiffs and defendants lived in adjoining coastal properties. The plaintiffs claimed that the defendants had commenced building works that removed a quantity of rock, which was alleged to be a trespass and constituted nuisance. The plaintiffs claimed, inter alia, that they were the legal and beneficial owners of the area and that they were entitled to damages for trespass and nuisance and an injunction restraining the defendants for further trespass and an order restoring the natural rock cliff face. The defendants claimed that they owned the disputed area, pursuant to the title documents.

Held by Hedigan J. that no evidence had been adduced to support the claim for possessory title. A special condition as to the uncertainty of the boundary precluded a claim in adverse possession. No evidence had been established as to any damage. The claim for trespass in respect of parking overnight was not an issue and no finding as to trespass would be made. The plaintiffs' claim would be dismissed.

Reporter: E.F.

1 Mr. Justice John Hedigandelivered the 6th day of October. 2008.

2 1. The plaintiffs are husband and wife and reside at 21 Dundela Park, Sandycove, County Dublin. They are the registered owners of the property known as Redan House, Ardbrugh Road, Dalkey, County Dublin. The defendants are both architects and are the owners of the property known as 5, Ardbrugh Villas which adjoins Redan House. Redan House is to the east of Ardbrugh Villas.

3 2. The plaintiffs claim that the two above properties are divided by a natural cliff face. They claim that on or about the 17 ^th April, 2007, the defendants commenced building work in the course of which they removed a substantial quantity of rock from the natural cliff face bounding the two properties. This they claim was a trespass and constituted a nuisance. Furthermore, the plaintiffs alleged that the work of rock breaking had a weakening effect on the remaining cliff face and upon the structure of Redan House itself. The plaintiffs' claim for trespass is based upon their claim to own the land upon which the rock breaking and removal took place, (the disputedarea). In the alternative they claim to have obtained a possessory title to the disputed area by occupation thereof since 1952.

4 The plaintiffs claim;-

5 (1) A declaration they are the legal and beneficial owners of the disputed area,

6 (2) Damages for trespass and nuisance,

7 (3) An injunction restraining the defendants from further trespassing in particular by carrying out works thereon,

8 (4) An order restoring the natural rock cliff face.

9 3. The defendants claim they own the disputed area. They deny the boundary is the cliff face and argue that the natural cliff face from the front to the rear of their property is within their property. They admit they did the works alleged but claim that it was loose rock that was removed. They did this pursuant to a planning permission which they had previously obtained. They therefore deny any trespass and further deny any damage to the structural integrity of either Redan House or the natural cliff face. They claim that the plaintiffs are in fact trying to claim a part of their property, firstly by claiming the disputed area under their title document and subsequently by claiming by way of adverse possession. The defendants claim the title documents clearly show they are the owners of the disputed area. As to adverse possession, the defendants deny the same and rely upon the uncertainty of Redan House's western boundaries which was notified to the plaintiffs by Special Condition 5 of the contract for sale whereby they purchased Redan House and the indenture of assignment dated 29th June, 1910, by which the disputed land was assigned to the then owners of the 5, Ardbrugh Villas by then the owners of Redan House.

The background

10 4. The two properties adjoin each other and neither are occupied by their respective owners. A number of applications have been made by the plaintiffs to demolish Redan House. The defendants received planning permission to remove part of the cliff face and do other works on their premises at 5, Ardbrugh Road. It was these works they were commencing when these proceedings were brought. The plaintiffs were of the view that the defendants were trespassing on their land whilst the defendants maintained the work they were doing was on property owned by them. The defendants admitted that there had been an inadvertent trespass of their rock breaker on the plaintiffs' property. It had been parked thereon overnight; they apologised and offered to remedy any damage caused by the machines heavy tread. This was before these proceedings were issued. The defendants suggested a meeting on site to clarify where the boundaries lay between the two properties. The plaintiffs did not take them up on this offer but applied to the High Court for injunctive relief. Ultimately the defendants gave an undertaking not to continue with the works.

11 5. The issue in this case resolves itself to the question of how to interpret the assignment of 1910. It was agreed by the plaintiffs herein at the hearing that this deed of assignment was the key to the case. The key issue is whether that deed assigned 7 feet from the then boundary of 5, Ardbrugh Villas to the eastern edge of a pier drawn thereon as a square and described therein as a pier and whether that pier was one and the same as the pier that was inspected by Denis Cogan, Architect, on 18 ^th April, shortly after the works had commenced and whilst discussions were continuing between the parties.

12 The plaintiffs claim the existing pier is not the pier referred to on the 1910 map. They claim there must have been another pier since demolished and either the one existing in April, 2007 was a twin of that pier or else was constructed after the pier they alleged existed in 1910.

13 The defendants claim the pier existing in April, 2007 was one and the same as that shown on the map and described in the deed of 1910.

14 6. In this case I have had the benefit of reading the pleadings and affidavits sworn herein by the parties, by Eric Graham, Engineer of Fahy Fitzpatrick Consulting Engineers, Martin Hamm, Engineer of M.T. Hamm Limited, Consulting Engineers, Gerry Kestell, Managing Director of Lambe Surveys, Bernie Coleman, Solicitor of O'Rourke Reid, Solicitors, Frank O'Rourke of 3, Ardbrugh Villas, Thomas Mulreid, Chartered Land Surveyor of Apex Surveys Limited and David M. Turner, Solicitor for the plaintiffs. In evidence I heard Frank O'Rourke, Gerry Kestell, Eric Graham, Denis Cogan, Thomas Mulreid and Neil Vard.

15 7. I have been referred to a number of cases and have found the following the most apt and helpful;

16 Wibberley Building Limited v. Insley, [1999] 1 W.L.R. 894, Lord Hoffman at pp. 895 to 896:-

"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army. It is therefore important that the law on boundaries should be as clear as possible.

The first resort in...