McDonagh v Mulholland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1931
• Date: 01 January 1931
• Court: Supreme Court (Irish Free State)

Supreme Court.

M'Donagh v. Mulholland

CHARLES M'DONAGH

Plaintiff

and

MARION J. MULHOLLAND, Defendant (1)

Easement - Right of way - Sufficiency of evidence to establish - Door in boundary wall opening into private avenue - Implied grant - Severance of unity of ownership of tenements - Permissive user - Whether way necessary for reasonable enjoyment of tenement - Condition of sale as to permissive user - Estoppel.

Appeal by the defendant from the order of Meredith and Johnston JJ., made 30th November, 1928, affirming the decree of the Circuit Court Judge for the County of Dublin, made

20th December, 1927. The defendant applied for an order that the said order might be reversed on the grounds that there was no evidence to support the findings of fact as to the existence of any apparent path or way, or of the continuous user of any way as of right, or otherwise than by permission of the owner of the alleged servient tenement; that the said findings of fact were against evidence and against the weight of evidence; and that the Circuit Court Judge and the Judges of the High Court misdirected themselves in fact and in law, and were wrong in holding that the plaintiff was entitled to any right of way over the defendant's property.

The action was commenced by plenary summons, endorsed with a claim for a declaration that the plaintiff, as the owner of the lands and tenements known as No. 25 Dunville Avenue, Ranelagh, in the County of Dublin, was entitled for himself, his servants, agents, and under tenants, at all times, to a right of way, with horses, carriages, wagons, and motor-cars, over the lands known as No. 26 Dunville Avenue, the property of the defendant, between the eastern entrance or gateway to No. 25 Dunville Avenue aforesaid and the front or avenue entrance of No. 26 Dunville Avenue aforesaid; for an order to restrain the defendant from obstructing the passage of the plaintiff, with or without horses, carriages, wagons, or motor-cars, over same; for an order perpetually restraining the defendant, her servants or agents, from doing any act whereby the plaintiff might be hindered or obstructed in the free use of the said passage on foot or by horses or carriages; for an order that the defendant should forthwith remove obstructions to the said passage; and for damages for said obstructions.

The action was transferred to the Circuit Court for the County of Dublin, and was heard by the Circuit Court Judge of that County (Judge Davitt), who decided in favour of the plaintiff, and, by his decree, dated 20th December. 1927, declared the plaintiff entitled to a right of way over the defendant's lands, but "only on foot for the purpose of bringing coal, manure, and his bicycle, according as it is necessary," and he granted the plaintiff ancillary relief in accordance with his claim. The defendant appealed to two Judges of the High Court, and the appeal was heard by Meredith and Johnston JJ., who, by their order, dated 30th November, 1928, agreed in affirming the decision of the Circuit Court Judge, but certified that their decision involved a question of law and fact of such importance as to be fit to be the subject of an appeal to the Supreme Court. The defendant thereupon appealed to the Supreme Court.

At the trial in the Circuit Court the defendant put in evidence a special condition of sale which had been attached to the conditions of the sale in 1919. This sale had comprised the premises of the plaintiff and of the defendant. and two other houses in the terrace to which the plaintiff's premises belonged, and the premises had been sold in four lots. The auctioneer who proved the special condition of sale was not clear as to which lot or lots it had been attached to. The condition ran:—

"The use of the avenue of lot 4 [the defendant's premises] as an exit from the rear of lots 2 and 3 [lot 3 being the plaintiff's premises] has been merely permissive, and the permission for such user has been recalled. Accordingly, lots 2 and 3 are sold without any right of exit, and the existing exits can be closed, and the purchaser of each of said lots respectively shall make no claim thereto or any objection to the closing thereof, nor obstruct in any way the purchaser of lot 4 from closing or building up said exits."

The further facts of the case and the evidence given at the trial have been summarised in the head-note, and appear sufficiently from the judgment of the Chief Justice.

A side door in the wall of the back garden of the plaintiff's premises opened into an avenue leading to the defendant's house. The plaintiff claimed a right of way from this door, along the avenue, to the avenue gates. The plaintiff's premises were the end house of a terrace of six similar houses, which formed the base of a triangle, in the apex of which stood the defendant's house. The avenue from the latter house ran alongside the garden wall of the plaintiff's house, and its gates opened on the same street as the front entrance of the terrace of houses. All seven houses had been built by the same person, and continued for some years in the ownership of members of his family. But, by the will of his daughter, who died in 1919, a severance of ownership as between the plaintiff's house and the defendant's house was created; and, subsequently, the plaintiff purchased the fee-simple of his house. He gave evidence that he had entered the premiser, in 1917 under an agreement for a twelve-months' letting, and continued as tenant until he acquired the fee-simple interest; and that he had used the door in the garden wall for the purpose of bringing in coal and manure, and of bringing bicycles in and out. Evidence was also given by the tenant of the premises from 1899 to 1907 that he received the key for the door or found it hanging in the premises, that he used the door for the purpose of getting in coal and for porters delivering goods, that his original landlord (who died in 1905) used to get a little path connecting the door with the avenue cindered, and that he gave up the key on the expiration of his tenancy; and evidence was given by the tenant from 1911 to 1916 that he used the door for bringing goods in and out and for getting in coal and manure. The plaintiff's tenancy agreement was not proved, nor was there evidence of any agreement as to a right of way or easement. Only one other house in the terrace of six houses had a back entrance, and this back entrance, which also opened into the defendant's premises, had become disused before action brought. There was no evidence as to its previous user, nor was there any evidence as to the origin of either back entrance.

Held (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting) that the plaintiff had failed to establish his claim:

Per Kennedy C.J.—No case for a way of necessity arose on the severance of the ownership of the premises in 1919, and the plaintiff had wholly failed to make a case for implying the grant of an apparent easement from the state and condition of the property and the requirements for reasonable enjoyment at the time of severance;

Per FitzGibbon J.—On the evidence, the occupier of the plaintiff's premises never had a right of way over the avenue leading to the defendant's premises.

Donnelly v. Adams, [1905] 1 I.R. 154, considered and distinguished.

Cur. adv. vult.

Kennedy C.J. :—

In the year 1864 the Wicklow and Wexford Railway Company conveyed to one, Peter Higgins, a triangular plot of ground, the eastern leg of which lay along the railway, and the base of the triangle along what is now known as Dunville Avenue, Ranelagh. Peter Higgins built a terrace of six houses, with their fronts to Dunville Avenue, along the base of the triangle from its western leg, leaving at the eastern side of the terrace a passage which ran from Dunville Avenue to the rear of the terrace of houses, and in the space between the rear of the terrace and the apex of the triangle he built a seventh house, known as "The Poplars." The houses in the terrace are numbered 20 to 25 consecutively, and "The Poplars" is numbered No. 26 Dunville Avenue. The passage to which I have referred was laid out as a private avenue for "The Poplars," with a double gate at the Dunville Avenue end, and thence passed along the eastern side wall of the house No. 25 round to the front entrance of "The Poplars." There is at present, and has been for many years (no one could say quite how long), a wicket-gate opening from the yard or garden at the back of No. 25 into the passage, which was referred to in the evidence as the "avenue of The Poplars." The question in issue in the action, and in this appeal, is simply the question whether there is a right of ingress and egress through the wicket-gate for the owner of No. 25 Dunville Avenue, the plaintiff in this action, over the avenue of "The Poplars" which at present belongs to the defendant in the action. The history of the matter is as follows:—

Peter Higgins, the original grantee from the railway company, lived in "The Poplars" from the time when he built the premises down to his death, which took place in the year 1906. He left a will, by which he gave the houses Nos. 20 and 21 to his son, Michael; Nos. 22 and 23 to his son, Joseph; Nos. 24 and 25 and "The Poplars" to his daughter, Anne, who afterwards became Mrs. Anne Gavagan, and was subsequently his sole executrix. Mrs. Gavagan resided in "The Poplars" until her death. in the year 1919, and she, by her will, gave the house No. 24 to her nephew, Joseph Higgins; the house No. 25 to her nephew, Geoffrey Stephen Higgins (then an infant under the age of twenty-one years), and "The Poplars" to her brother, Joseph Patrick Higgins, subject in each case to a life interest,

which she gave to her husband, John Gavagan; and she appointed her husband and her brother, Joseph Patrick Higgins, trustees and executors of her will. Joseph Patrick Higgins was already the owner of Nos. 22 and 23 under...