McMahon v Kerry County Council

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1981
• Neutral Citation: 1976 WJSC-HC 1015
• Docket Number: No. 2597P/1974
• Court: High Court
• Date: 01 January 1981

1976 WJSC-HC 1015

THE HIGH COURT

No. 2597P/1974

McMAHON v. KERRY COUNTY COUNCIL

BETWEEN

JOHN J. McMAHON AND BRIGID McMAHON

Plaintiffs

and

THE COUNTY COUNCIL OF THE COUNTY OF KERRY

Defendants

1 Judgment Finlay P. delivered the 28th day of July 1976

2 This is a claim brought by the plaintiffs to recover possession against the defendants of a plot of land containing 1 rood and 3 perches approximately registered on folio number 3095 of the Register of Freeholders in the County of Kerry which is situated just outside the village of Causeway in Kerry.

3 The facts out of which it arises are as follows.

4 In the year 1950 the defendants acquired from a family named O'Driscoll 4 acres and 2 roods of land immediately outside the village of Causeway in the County of Kerry for the purpose of building houses. Fifteen houses were then built on this plot of land being completed in about March of 1953 and subsequently on another portion of it a dispensary was built. Part of the land was made available as open space for this small housing scheme and the entire was surrounded on three sides by a wall, the fourth side being open to the public road.

5 At that time the plaintiffs who are husband and wife were living in the village of Ballyheigue in Kerry, the first named plaintiff being an insurance official and his wife, the second named plaintiff being a secondary school teacher and teaching a school in the village of Causeway. This school was conducted in a temporary rented building which was not entirely suitable and by 1960 when both the housing scheme of 15 houses and the dispensary was well built and established it occurred to the second named plaintiff that if the County Council were prepared to sell to her the plot to the extreme south of the holding which was then a piece of unused open ground that this would be the most suitable place to build a secondary school as a private venture.

6 She accordingly corresponded with the Kerry County Council to that intent and after considerable correspondence in which she stressed the importance from the point of view of the village of Causeway of a properly constructed and run secondary school the Council agreed in principle to the project and achieved the transfer to Mrs. McMahon, having regard to their statutory obligations, by retransferring one rood and three perches back to the O'Driscoll family from whom the lands had originally been compulsorily acquired who in turn assured the County Council that it was their intention to transfer it to Mrs. McMahon. In fact the O'Driscoll family transferred this plot of land to Mr. and Mrs. McMahon in consideration of approximately £40 and they were registered as owners of it in 1964.

7 At that time it was in no way fenced off from the remainder of the lands, the property of the County Council, but was enclosed within the general curtilage of the wall round the housing scheme and on one side was divided from as separated plot on which the dispensary stood by one of the fences attached to the dispensary.

8 Upon becoming the owner of this plot the plaintiffs took no action with regard to it neither fencing it off nor in any way dealing with it or doing any work on it. Probably by 1964 and certainly by 1965 Mrs. McMahon had, I am satisfied on the evidence, reached a genuine conclusion that having regard to the changes which were occurring in the programme for State education that it was no longer feasible to run a secondary school in Causeway and in 1965 she ceased to teach in the Causeway school and took up a post which she still holds in a secondary school in Tralee. From that time onwards, again I am satisfied on the evidence, neither of the plaintiffs had, except on very rare occasions, any necessity or reason to visit the village of Causeway nor in particular were they travelling on the road on which this plot of ground was situated during that period.

9 In 1968 the first named plaintiff, Mr. McMahon, did have occasion to pass by the plot and saw working on it a number of men who appeared to be clearing it up. He enquired from them by whom they were employed and what their purpose was and his understanding, I am satisfied, was that they said they were making preparatory work to the extension of the dispensary. Mr. McMahon immediately went and interviewed the District engineer in Tralee, a Mr. Joyce, who was not concerned with the housing programme but who was a representative of course of the County Council and pointed out to him that the work that was being carried out was being carried out of his, Mr. McMahon's plot. Mr. Joyce assured him that a mistake must have occurred with regard to the maps and that he need not worry and that the work would cease. Mr. McMahon shortly thereafter paid one more visit to the site, saw that the men had ceased to work on it and apparently took no further step. It is probable on the evidence given to me by the defendants, which I accept, that what was being done on this, occasion was associated with a sewerage scheme and not with any extension of the dispensary though the dispensary was extended but not over or on to this plot, at a much later date.

10 Both the plaintiffs gave me evidence that notwithstanding the fact that they made no use of this plot and took no steps to protect or fence it that they considered it as an asset and as being a building plot which might be of use to them or their family. In particular they assured me that they intended it to become the property of one of their sons who had emigrated to America and who might like to return to Ireland and build a house in Kerry.

11 In 1972 the Kerry County Council decided to build further houses at Causeway and work was commenced in August of 1972 on the construction of five additional two-storey houses. Two of these were placed in fact on the plot which had been purchased by the plaintiffs, the other three being on another portion of the lands originally acquired by the County Council. Evidence was given to me which I accept that had the officials who designed the position of these houses been aware of the transfer back of the lands to O'Driscoll and the consequent transfer to the Plaintiffs that it would have been, from an architectural or engineering point of view, quite simple to have built these five additional houses without encroaching on the plot in dispute. Work continued on the building of these houses between August of 1972 and December of 1973 when probably for the first time since 1968 the plaintiffs passed by the plot of ground outside the village of Causeway. By them the houses were practically though not entirely completed and the plaintiffs observing the situation as it was immediately protested to the County Council, instructed a solicitor and after some delay when they changed their solicitor these proceedings were instituted. Between December of 1973 and the present time the County Council have put tenants in occupation in each of the two houses which are on the plot of ground possession of which is sought by the plaintiffs.

12 I am satisfied on the evidence that whilst the plaintiffs took no or practically no steps be either to supervise,...