Seamus Durack Manufacturing Ltd v Considine

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 27 May 1987
• Neutral Citation: 1987 WJSC-HC 1623
• Docket Number: [1986 No. 74],No. 74/1986
• Court: High Court
• Date: 27 May 1987

1987 WJSC-HC 1623

THE HIGH COURT

(Circuit Court)

(County of blase)

No. 74/1986

DURACK MANUFACTURING v. CONSIDINE

DURACK MANUFACTURING

.V.

CONSIDINE

Citations:

LEIGH V JACK 5 EX 264

LITTLEDALE V LIVERPOOL COLLEGE 1901 1 CH 19

CONVEY V REGAN 1952 IR 56

MCDONNELL V MCKINTY

SMITH V LLOYD 1854 9 EX 562

CORK CORPORATION V LYNCH UNREP LYNCH 26.07.85 1985/7/1878

WALLIS'S CAYTON BAY HOLIDAY CAMP LTD V SHELL-MEX & BP LTD 1974 3 AER 575, 1975 QB 94

TRELOAR V NUTE 1977 1 AER 230

MURPHY V MURPHY 1980 IR 183

Synopsis:

LIMITATION OF ACTIONS

Land

Adverse possession - Trespasser - Owner - Intention - Relevance - The defendant was the owner of a 12 acre holding - In 1951 the defendant's sister bought 26 acres of the adjoining lands - The defendant took a lease from his sister of two fields, of which the smaller adjoined the defendant's holding - The lease terminated in 1971 when the plaintiff's sister sold the two fields to a purchaser who intended to build factory premises on them - The purchaser built a factory on the larger of the two fields, but he did not build on, or use, the small field which adjoined the defendant's holding - The defendant's sister had reserved the right to use two sheds on the small field and she allowed the defendant to use the two sheds - After the sale the defendant continued to use the small field and the two sheds - The presence of the defendant in the small field was known to the purchaser before the 1971 sale - The defendant used the small field from 1972 onwards - A dispute arose between the plaintiffs (the purchaser's successors in title) and the defendant concerning the right of the latter to use the small field - Counsel for the plaintiffs submitted that possession of the small field by the defendant could not be adverse, within the meaning of s.18 of the Statute of 1957, unless that possession was inconsistent with the purpose for which the owner intended to use the small field, and counsel cited ~Leigh v. Jack~ (1879) 5 Ex. D. 264 - Held that the defendant had used the small field from 1972 exclusively for the purpose of grazing his cattle - Held that there was no evidence to show that the defendant had intended to use the small field on a temporary basis or merely to prevent it lying idle until the owner was in a position to use it for a purpose of which the defendant was unaware - Held that the defendant had been in adverse possession of the small field (other than the two sheds) since 1972 - Held that the defendant had used the two sheds as licensee of his sister until her death in 1984 - Statute of Limitations, 1957, s.18 - (Ct. App. - Barron J. - 27/5/87)

|Durack Manufacturing v. Considine|

REAL PROPERTY

Land

Possession - Evidence - Trespasser - Adverse possession - Owner's intention for future use of the land - Relevance - ~See~ Limitation of Actions, land - (Ct. App. - Barron J. - 27/5/87)

|Durack Manufacturing v. Considine|

1 Judgment of Mr. Justice Barron delivered on the 27th day of May 1987.

2 The Defendant is a farmer who at all material times had a holding of 12 acres adjoining the field in dispute. In or about the year 1950, the Defendant's sister purchased the adjoining 26 acres including this field. The Defendant leased this property from her until the year 1971. In that year, she sold 4½ acres of her holding immediately adjoining the Defendant's holding. This 4½ acres comprised two fields, upon the smaller of which being the field nearest to the Defendant's holding there were two sheds. These sheds were used by the Defendant to bottle milk which he sold in the town.

3 The fields were bought with the intention of building two factory premises on them. A factory was built on the larger field, but nothing was ever built on the smaller one. The Defendant's sister reserved to herself for her life the right to use the two sheds on the smaller of the two fields. This she did for the benefit of her brother. Following the sale, the Defendant used the sheds and continued to use the smaller field as before. He also put up a post and wire fence over portion of the boundary between the two fields where such was necessary. He appears to have done this to prevent his cattle from straying onto the factory premises.

4 The presence of the Defendant in this field was known to the purchaser in 1971 before the completion of the purchase. There is a dispute as to whether or not the Defendant left the property before completion. Whether he did or not, I am satisfied that as and from the time he erected the fence to which I have referred, which at the latest must have been sometime in 1972, the field has been used by him exclusively for the purpose of grazing his cattle.

5 Notwithstanding this finding, the Plaintiff submits that such possession is not adverse possession for the purpose of the Statute of Limitations. He submits that possession cannot be adverse unless it is inconsistent with the purpose for which the owner of the land intended to use it. He relies upon Leigh .v. Jack 5 Ex. D.264. In that case the Defendant was entitled to two plots of ground on either side of an intended street under two conveyances made by the Plaintiff's predecessors in title. No part of the intended street was conveyed by either conveyance and the area so reserved was never dedicated to the public as a highway. The Defendant used this land as a storage area for scrap metal in such a way as to make it impassable save to persons on foot. Having done so for the statutory period he claimed a statutory title to it. This claim was rejected by the Court on the ground that the Plaintiff and his predecessors in title had never been dispossessed. Passages from the judgments indicate the reasons for the decision. At page 271 Cockburn L.C. said:

"I do not think that any of the defendant's acts were done with the view of defeating the purpose of the parties to the conveyances; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another's right. The defendant simply used the land until the time should come for carrying out the object originally contemplated. If a man does not use his land, either by himself or by some person claiming through him, he does not necessarily discontinue possession of it. I think that the title of the plaintiff is not barred by the Statute of Limitations."

6 Bramwell L.J. said at page 273:

"I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes."

7 Cotton L.J. said at page 274:

"In deciding whether...