Ryan v Flattery and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 15 December 2023
• Neutral Citation: [2023] IECA 313
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/265

Between/

Thomas Ryan

Plaintiff/Respondent

and

Fergal Flattery, Citadel Homes Limited and Mulberry Properties Limited

Defendants/Appellants

[2023] IECA 313

Donnelly J.

Haughton J.

Allen J.

Record Number: 2022/265

High Court Record Number: 2016/11482P

THE COURT OF APPEAL

CIVIL

Adverse possession – Trespass – Nuisance – Respondent seeking injunctions restraining trespass/nuisance – Whether the trial judge was entitled to reject the defence of adverse possession

Facts: The appellants, Mr Flattery, Citadel Homes Ltd and Mulberry Properties Ltd, appealed to the Court of Appeal against the judgment of the High Court (Stewart J) delivered on 25 April 2022, and her consequential orders perfected on 22 November 2022. The respondent, Mr Ryan, was successful in the High Court in obtaining: (i) a declaration of ownership of lands at Bawnogues, Straffan, County Kildare (the Ryan lands) as shown on a map (the 1974 Deed map) annexed to an Indenture of Conveyance made the 26 October 1974 between Mr O’Hagan as grantor and the respondent as grantee (the 1974 Deed) and thereon marked with dimensions 190 feet by 190 feet; (ii) a declaration that the respondent enjoys an easement over portion of the appellant’s neighbouring land as shown on a survey map prepared by Mr Nyhof bearing date January 2017 for soakaway for the respondents septic tank; (iii) permanent injunctions restraining trespass/nuisance by the appellants on the Ryan lands; (iv) an order that the appellants remove “the post block wall and any and all other impediments from [the respondent’s] land forthwith”; (v) an order “that [the appellants] pay the [respondent] the cost including VAT of reinstatement of the [respondent’s] lands and property (i.e. in the sum of €118,400) to the condition they were in prior to 2nd December 2016 (to include removal of the block wall and the safe removal and replacement of the line of 64 leylandii cypress trees, the cost of which is to be assessed in accordance with the evidence of [Mr Buchanan] as being €350 to remove and €1500 to replace per tree”; (vi) damages for trespass and nuisance in the sum of €125,000; and (vii) costs. The grounds in the Notice of Appeal related to the adverse possession defence were the following: (1) the Judge erred in law and failed to take account of the fact that while the 1974 Deed was not contested, the action of the respondent in constructing a post/wire fence and leylandii trees inside his legal boundary and thereafter taking no steps to assert title to the lands outside the post/wire fence on leylandii trees was in issue; (3) the Judge failed to take account of the uncontroverted evidence in relation to the inaction of the plaintiff in relation to the lands outside the post/wire fence and leylandii trees; (4) the Judge failed to take into account the preponderance of evidence showing the plaintiff failed to take any steps in the intervening 40 years to assert title to the property at issue; (6) the Judge erred in law and in fact in failing to take account of the plaintiff's evidence that he took no steps to assert title; and (8) the Judge erred in law and in fact in holding that the plea of adverse possession failed.

Held by Haughton J that the respondent was deemed to be in possession upon and after execution of the 1974 Deed; no evidence to the contrary seemed to have been before the trial judge or brought to the attention of the Court. Haughton J held that there is no general obligation in law on a title owner to assert their title by pro-actively undertaking acts of possession in order to sustain their title over time. Addressing the question whether the trial judge was entitled to make the findings of fact that led her to conclude that the defence of adverse possession was not made out to her satisfaction, Haughton J concluded that there was ample credible evidence to support her findings, her preference for the evidence adduced on behalf of the respondent, and her conclusions. Haughton J held that the trial judge was fully entitled to reject the appellants’ defence of adverse possession and the appeal from that finding must fail.

Haughton J dismissed the appeal and affirmed the order of the trial judge save that he would substitute for the sum of €125,000 awarded for (general) damages for trespass and nuisance such sum as the parties had agreed (unless the parties had agreed some other order that implemented their settlement of that issue).

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Robert Haughton delivered on the 15th day of December, 2023

Introduction

1 . This is an appeal against the judgment of the High Court (Stewart J.) delivered on 25 April 2022, and her consequential orders perfected on 22 November 2022.

2 . The action sounds in trespass and nuisance and relates to the respondent's lands at Bawnogues, Straffan, County Kildare (“the Ryan land”, which term I shall use to include certain segments of the Ryan lands which I refer to as “the disputed lands”). The respondent was successful in the High Court in obtaining –

The appellants were granted a stay, on certain terms, in event of an appeal.

• i. A declaration of ownership of the Ryan lands as shown on a map (“the 1974 Deed map”) annexed to an Indenture of Conveyance made the 26 October 1974 between James Patrick O'Hagan as grantor and Thomas Ryan (the respondent) as grantee (“the 1974 Deed”) and thereon marked with dimensions 190 feet by 190 feet;

• ii. A declaration that the respondent enjoys an easement over portion of the appellant's neighbouring land as shown on a survey map prepared by Edward Nyhof bearing date January 2017 for soakaway for the respondents septic tank;

• iii. Permanent injunctions restraining trespass/nuisance by the appellants on the Ryan lands;

• iv. An order that the appellants remove “ the post block wall and any and all other impediments from [the respondent's] land forthwith”;

• v. An order “ that [the appellants] pay the [respondent] the cost including VAT of reinstatement of the [respondent's] lands and property (i.e. in the sum of €118,400.00) to the condition they were in prior to 2nd December 2016 (to include removal of the block wall and the safe removal and replacement of the line of 64 leylandii cypress trees, the cost of which is to be assessed in accordance with the evidence of Mr. Stephen Buchanan as being €350 to remove and €1500 to replace per tree”;

• vi. Damages for trespass and nuisance in the sum of €125,000;

• vii. Costs.

3 . By Agreement for Sale dated 15 September 2016 the appellants purchased from members of the O'Hagan family Lot 1 at Bawnogues comprising 5.24 hectares, and Lot 2 at Bawnogues being part of the lands described in Folio 3130 of the Register County Kildare and comprising 2.06 hectares, comprising in total some 7.3 hectares. I will refer to this, as did the trial judge, as “the Citadel land” as, pursuant to the contract for sale, it was conveyed to the second named appellant Citadel Homes Limited, on 10 November 2016.

4 . The Ryan land on the northern and eastern sides has a common boundary with Lot 1 of the Citadel land. Soon after the 2016 sale was completed a boundary dispute arose between the parties in relation to overlapping segments of the Ryan land and Lot 1 of the Citadel land, which I shall refer to as “the disputed land”. The essence of this appeal is that the appellants assert that the trial judge erred in failing to find the respondent's claim to have been statute barred in relation to the disputed land insofar as it lies outside fencing erected by the appellants, along with planting of trees, in the mid-1970's and within, they say, the land sold to them.

5 . The action was heard over some twenty-four days between 9 May 2018 and 12 April 2019, and during the hearing the trial judge visited and inspected the disputed lands. A significant part of the evidence in the High Court related to (alleged) trespass damage, specifically tree damage, and is only marginally relevant to this appeal. While some of the evidence was disputed much of the background to the action is not in dispute.

Further background

6 . Under an Indenture of Conveyance made on 13 August 1956 James Patrick O'Hagan (“J.P. O'Hagan”) acquired lands at Bawnogues, Straffan, County Kildare which included Lot 1 of the Citadel lands and the Ryan land. J.P. O'Hagan farmed these lands along with the lands in Lot 2 which he acquired in 1981, all of which lands were accessed along a public lane. The lands in Lot 2 are appurtenant to those in Lot 1 but have no relevance to these proceedings other than that they form part of the Citadel lands.

7 . The respondent married Mary O'Hagan, daughter of J.P. O'Hagan, and in 1974 J.P. O'Hagan granted to the respondent a plot of land carved out of the land comprised in Lot 1 on which to build their house. Accordingly by the 1974 Deed J.P. O'Hagan in consideration of natural love and affection granted to the respondent:

“ ALL THAT AND THOSE part of the townland of Bawnoges in the barony of North Salt in the County of Kildare comprising 2 roods or thereabouts Statute Measure and being more particularly described and delineated in red on the map annexed hereto TO HOLD the same unto and to the use of the ‘Grantee’ his heirs and assigns in fee simple …”

8 . The critical 1974 Deed map shows this plot with dimensions of 190 feet x 190 feet, fronting onto the public lane. While it is roughly square, it is in fact a parallelogram, bounded on the south by the public lane, on the west by third party lands (later owned by James Hayde, an important witness in the High Court), and on the north and east by land retained by J.P. O'Hagan. On the north side, the retained land is part of a narrow field several hundred metres in length, at times described in the evidence in the High Court as “the long field” or “the lawn field” (the description adopted in this judgment), running...