Orwell Park Management Ltd v Henihan

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 14 May 2004
• Neutral Citation: [2004] IEHC 87
• Docket Number: HC 186/04
• Court: High Court
• Date: 14 May 2004

THE HIGH COURT

HC 186/04

[2001 No. 135 C.A.]

BETWEEN

ORWELL PARK MANAGEMENT LIMITED

PLAINTIFF

AND

MARTIN HENIHAN AND RACHEL HENIHAN

DEFENDANT

Abstract:

Land law - Easements and rights of way - Prescription - Doctrine of lost modern grant - Whether use of right of way sufficient to warrant implication of lost modern grant - Whether right of way should be inferred - Whether presumption rebuttable - Abandonment - Non-use of right of way for number of years - Abandonment not lightly inferred - Whether right of way abandoned by dominant tenement - Prescription Act 1832, sections 1, 2 and 4 - Prescription (Ireland) Act 1858.

the plaintiff, inter alia, sought a declaration that it was entitled to a right of way over a lane which was on the defendants’ servient property and an injunction restraining the defendants from preventing them from obstructing the said right of way on the basis of a lost modern grant and/or under the Prescription Act 1832, as applied in this jurisdiction through the Prescription (Ireland) Act 1858, following an unresolved dispute in relation thereto whereby the defendants had prevented the plaintiff from bringing vehicles over it to repair pipes going to its property. The defendants alleged that no such easement had been created and/or that if it had, that there was an abandonment in relation thereto by the plaintiff, its predecessors in title.

Held by Herbert J in declaring that the plaintiff was entitled to a right of way over the lane, but not for all purposes and permanently restraining the defendants from obstructing such right of way that to establish an easement of way by prescription, the party claiming that right, whether by virtue of section 2 of the Prescription Act 1832 or under the doctrine of the lost modern grant, had to provide evidence of continuous use of the way for the prescription period. In that context, continuous use was not to be equated with incessant use but such use as would clearly indicate to a servient owner that a continuous right to do what would otherwise amount to a trespass was being asserted. Where there had been an open, uninterrupted and continuous use of land as a right of way, the court should presume that the servient owner of the land was aware of that use and acquiesced in it. Because a private right of way was a very valuable property right, the courts would not lightly find that such a right had been released or abandoned. Mere non-use of a non-continuous easement, while it could be evidence of an intention to abandon or release the easement, was never, in itself, sufficient evidence for that purpose.

Reporter: P.W.

NOTICE: The page breaks of this judgment may not correspond with the hard copy. These will be introduced later

1 Judgment of Mr. Justice Herbert delivered the 14th day of May, 2004.

2 I find from a review of the Title Documents discovered by the parties and admitted into evidence that the area over which the plaintiff now claims a right of way, was in 1883, or thereabouts, expressly set aside by the fee farm grantor for the purpose of forming a private service lane or passage leading from Orwell Road to the rere of the houses then being built adjoining Orwell Park Road with a private footway extension leading to the passage, (probably public) running parallel to the River Dodder. I can, I am satisfied, infer as a matter of probability, from the Terms of and the Maps annexed to the Fee-Farm Grant William Carvill to William Todd, made 18th August, 1863; the Fee-Farm Grant, William Todd to the Trustees of Christ Church, Rathgar, made 10th March, 1879 and the Fee-Farm Grant Trustees of the Will of William Todd, deceased, to Trustees of Christ Church, Rathgar made 31st October, 1884, that Orwell Bank, the dwelling house which formerly occupied the site of the development of 18 houses of which the plaintiff is the Management Company, was built as a manse and became occupied as such between 18th August, 1863 and 10th March, 1879.

3 The house known as No. 63 Orwell Park Road, was built pursuant to the terms of a Building Lease made 17th August, 1883, between the Trustees of the Will of William Todd, deceased and John Henry Elvery, on a site which adjoined Orwell Bank on the West. The Parcels demised by this Building Lease are therein described as:

4 “All that part of the lands of Rathgar, bounded on the North by Orwell Park Road on the South by a lane or passage, on the East partly by a holding called Orwell Bank and partly by a lane or passage … together with a right

5 of way from the rere of the said demised premises by a footway to be made by the said John Henry Elvery, his executors, administrators and assigns in and leading to the passage running parallel with the River Dodder …”.

6 This Building Lease contained the following covenant on the part of the lessee to be observed and performed:

7 “And also shall and within the like period of twelve months construct a footway leading from the rere of the said demised premises into the passage running parallel to the River Dodder and which footway to be formed is marked P to R on the annexed maps same to be of an uniform width of six [interpolated in handwriting] feet throughout and the side of the said footway next the grounds of Rialto Cottage to be fenced in with a wooden pailing and to be closed by a suitable gate or door such pailing and gate to be approved by the said Trustees and the said John Henry Elvery, his executors, administrators and assigns shall at all times hereafter maintain in proper order and condition and keep locked such gate or door and also the gate or door to be erected by the said Trustees at the end of the lane to be formed leading out into Orwell Road and marked on the said maps by the “X”.”

8 This Building Lease further contained a covenant on the part of the Lessors with the Lessee, his executors, administrators and assigns that they would, “when and so soon as the lane or passage leading into Orwell Road shall be formed [to] erect a gate at the extremity thereof where the same shall join the said road.” Though this Building Lease grants an express right of way to the Lessee of No. 63 Orwell Park Road, and his successors over the footway to be constructed from the rere of that dwelling house to the passage running parallel to the River Dodder, no express grant of a right of way to the plaintiff or the defendants or either of their predecessors in title over the intended lane or passage was proved in evidence.

9 The maps proved in evidence indicate that in August, 1883 a gateway existed immediately to the North of Rialto Cottage, leading into a green-field area of 9 acres 1 rood 25 perches, statute measure on, part of which Orwell Bank was built prior to March, 1879. The immediately adjoining house No. 63 Orwell Park Road, was not built until August, 1883 or later. It is clear in my view, from the map annexed to the Fee-Farm Grant made 10th March, 1879, the map annexed to a Deed of Indemnity and Apportionment dated 10th February, 1883, and, the Ordinance Survey Sheet of 1882 that while this area of 9 acres 1 rood and 25 perches, statute measure, was intended to be sub-divided into separate lots and dwelling houses built on those lots, Orwell Bank was built as a single stand alone unit and was completed and was in use as manse for a least four years before the building of the adjoining house, No. 63 Orwell Park Road, was commenced. The maps show the line of the western boundary of Orwell Bank and I find on the evidence that the relevant portion of the present west boundary wall of Orwell Bank corresponds with the boundary as shown on these maps.

10 Mr. William Maguire, Architect, a former President of the Royal Institute of Architects in Ireland, told the court that he had carried out the surveys of and, had prepared the plans for the re-development of Orwell Bank. He said and his evidence was not challenged in this regard, that he had carried out a detailed survey of this boundary wall for development and planning purposes. He described the wall, - photographs of which were proved in evidence by other witnesses and were available to the court, - as a substantial capped random masonry wall. From his knowledge of building methods, materials and styles, particularly in the Dublin area, he gave it as his opinion, - and this was not challenged, - that the Coach House and Stables Buildings at the rere of No. 63 Orwell Park Road immediately adjoining this wall and the original door surround through this wall giving access from the lane into Orwell Bank were both constructed in or about 1883. The evidence also established that this very substantial Coach House and Stables Building, the remaining part of which, though considerably altered and refurbished, is the dwelling house of the defendants, was constructed leaving an extraordinarily small gap of 20.32 centimetres or 8 inches between it and the face of the boundary wall.

11 It is clear, particularly from the map annexed to the Deed of Indemnity and Apportionment made 10th February, 1883, that when Orwell Bank was built no other building plots had been laid out in its vicinity so that for at least four years it was separated by the western boundary wall from a large open field containing 6 areas 1 rood and 26 perches, statute measure. The Building Lease of 17th August, 1883, though it refers to the demised area on which No. 63 Orwell Park Road, was covenanted to be built as bounded on the east by a holding called Orwell Bank, is silent as to the nature, ownership of or the

12 obligation to repair this actual boundary. No evidence was given that the defendants, or the present or previous owners of any part of No. 63 Orwell Park Road, had at any time exercised any rights over or assumed any responsibility for the maintenance or upkeep of this boundary wall.

13 Mr. David P. O’Sullivan, (whose late...