Victory & Leavy v Galhoy Inns Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 16 December 2010
• Neutral Citation: [2010] IEHC 459
• Court: High Court
• Date: 16 December 2010

[2010] IEHC 459

THE HIGH COURT

[No. 3590 P/2005]

Victory & Leavy v Galhoy Inns Ltd

BETWEEN

JAMES VICTORY AND YVONNE LEAVY

PLAINTIFFS

AND

GALHOY INNS LIMITED

DEFENDANT

HARRIS v FLOWER & SONS 1905 74 LJ CH 127

GALE EASEMENTS 18ED 9-31

BLAND EASEMENTS 2ED PARA 2.22

PEACOCK & ANOR v CUSTINS & ANOR 2002 1 WLR 1815

MACEPARK (WHITTLEBURY) LTD v SARGEANT 2003 2 PCR 12

BLAND EASEMENTS 2ED 281

SHAW & ANOR v APPLEGATE 1977 1 WLR 970

RICHARDS v REVITT 1877 7 CH D 224

OSBORNE v BRADLEY 1903 2 CH 446

WILMOT v BARBER 1880 15 CH D 96

ELECTROLUX LTD v ELECTRIX LTD 1954 71 RPC 23

SOLOMON v RED BANK RESTAURANT LTD 1938 IR 793

BRACEWELL & ANOR v APPLEBY 1975 1 AER 993

WROTHAM PARK ESTATE COMPANY 1974 2 AER 321 1974 1 WLR 798

CONNERAN & O'REILLY v CORBETT & SONS LTD & RADICAL PROPERTIES LTD UNREP LAFFOY 31.5.2006 2006/12/2283 2006 IEHC 254

MCGREGOR DAMAGES 17ED PARA 22-049

LAND LAW

Right of way

Nightclub and licensed premises - Plaintiff's land used to make deliveries - Easement - Declaratory relief - Whether right of way over servient tenement extended to property other than dominant tenement when part of dominant tenement by transfer absorbed into larger unit of property - Nature of user permitted - Nuisance - Trespass - Whether acquiescence by plaintiffs to such extent as to deprive them of remedy - Whether damages appropriate - Quantification of damages - Harris v Flower (1904) 74 LJCh 127, CA; Peacock v Custins [2002] 1 WLR 1815; Macepark (Whittlebury) Ltd v Sargeant [2003] 1 WLR 2284; Shaw v Applegate [1977] 1 WLR 970; Solomon v Red Bank Restaurant Ltd [1938] IR 793; Bracewell v Appleby [1975] 1 All ER 993; Wrothman Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; Conneran v Corbett & Sons Ltd [2006] IEHC 254 (Unrep, Laffoy J, 31/05/2006) considered - Damages awarded (2005/3590P - McMahon J - 16/12/2010) [2010] IEHC 459

Victory v Galhoy Inns Ltd

Facts The plaintiffs sought a declaration that the defendant did not have a right of way over the plaintiffs' land to make deliveries to a licensed premises owned by the defendant. The plaintiffs also sought an injunction in respect of same and damages for nuisance. The defendant owned a licensed premises, which he purchased in 2005. The plaintiffs' premises comprised of two shops at ground level, with two second floor overhead apartments which fronted onto Market Square. The prior owner of the defendant's property had purchased it in two lots, the licensed premises and Storehouse A, through which deliveries were made to the licensed premises using a right of way over the plaintiffs' premises. The vendor at that time also purported to convey an additional right of way which ran over the plaintiffs' property and directly into Storehouse A. The prior owner of the defendant's premises developed the site and some of the works were done on the plaintiffs' property without the permission of the plaintiff. It was not denied by the plaintiffs that a right of way existed through the archway on the plaintiffs' premises for the benefit of the defendant's predecessor. The issue was whether that right of way could be extended for the benefit of licensed premises in the manner claimed by the defendants. The defendant contended that the plaintiffs knew of the various alterations and changes taking place at the rear of their premises and therefore acquiesced in the developments to such an extent as the court should not give them any remedy.

Held by McMahon J. in awarding the plaintiffs the sum of €150,000 by way of damages: That the individual who sold the premises to the defendant's predecessor purported, without authority to grant an additional right of way over another small part of the plaintiffs' property that was not covered by the existing right of way. When the predecessor conveyed the property to the defendants herein, he could not in turn have passed on that right of way as it could not have been granted to him in the first place and also he did not own all the property over which the right of way ran. Before, the law will deprive a person of his prima facie entitlements due to acquiescence, the inaction of passivity of that person must amount to something approaching dishonesty or unconscionableness on their part. Having regard to the plaintiffs' limited knowledge or appreciation of what was occurring on their premises they should not be deprived of their remedy. Damages were an appropriate remedy in this case so the plaintiffs' application for an injunction was refused. The plaintiffs' interest in this case was to seek compensation for the intrusion to their property rather than to restore the status quo. Their interest in the property affected was purely commercial. Consequently, the plaintiffs could be adequately compensated by an award of damages which reflected the difference in value between their property with the benefit of the full right as compared with its value with the limited right as existed.

Reporter: L.O'S.

Introduction

1 1. The central issue in this case is whether the right of way over the servient tenement is extended to property other than the dominant tenement, when part of the dominant tenement is by transfer absorbed into a larger unit of property?

2 2. The defendant owns a nightclub/licensed premises in Longford town known as "P.V.'s". The front of the public house opens onto Ballymahon Street, and the premises stretches backwards in an east west direction. If one turns right on exiting P.V.'s frontage on Ballymahon Street, one soon comes to Market Square which meets Ballymahon Street at right angles. The properties involved in this dispute are broadly located to the rear of the corner formed by Ballymahon Street and Market Square. The defendants purchased P.V.'s from Thomas Kearns in 2005. Mr. Kearns had in turn purchased the property in two lots in 2000 and 2001 from Pat Fallon, and after extensive refurbishment sold it on to the defendants. The main lot of property consisted of a licensed premises, P.V.'s, which ran east to west from Ballymahon Street in the town. The second lot was a small piece of land on which a storehouse (storehouse A) stood, and which on the map presented as a small rectangle attached to, and dropping off the rear of the long east/west rectangle on which the nightclub and licensed premises stood. When Pat Fallon first developed P.V.'s licensed premises (then Clarke's pub) in 1972, he found that there were some difficulties in making deliveries to the pub through the front of the premises from Ballymahon Street. Storehouse A and a larger piece of property of which it was part, to the rear of P.V.'s, came on the market in 1986, and Mr. Fallon bought it because it meant, by breaking through the wall of Storehouse A, that deliveries could then be made to the pub through Storehouse A to the rear of P.V.'s premises. This was possible because the premises, of which the storehouse was part, enjoyed a right of way over the plaintiffs' premises which had access from the Market Square in the town which right of way is referred to as "A" "B" herein.

3 3. The plaintiffs' premises comprise of two shops at ground level, with two second floor overhead apartments which front onto the Market Square. As one faced the shops and looked northwards, there was an archway to the left of the shops which led into the plaintiffs' yard. The yard extended some metres beyond the archway and a door to the right allowed access to the plaintiffs' premises from the side. The plaintiffs' boundary was originally defined by a wall and a gate to the left.

4 4. The property to the left of the archway was owned by McCormacks at one time and stretched all the way from the Market Square back to the boundary wall of P.V.'s licensed premises, and included at its most northerly point Storehouse A. It is not disputed that by various grants commencing with a lease in 1918, there was a right of way for the benefit of the McCormack lands through the plaintiffs' archway, over their yard and turning left, through the gateway into McCormack's premises. This right of way is referred to as "A" "B" in the various title deeds and it is also not disputed that the McCormack's lands (including Storehouse A at the north end) was the dominant tenement, and the lands now in the ownership of the plaintiffs, were the servient tenement for this right of way.

5 5. When Pat Fallon, the owner of P.V.'s, purchased the McCormack lands in 1986, he made an opening from the newly acquired Storehouse "A" into the rear of P.V.'s yard and took all his deliveries for the licensed premises from then on through the plaintiffs' archway and through Storehouse A.

6 6. This continued to be the case until the year 2000, when Thomas Kearns bought the licensed premises from Pat Fallon. The sale was in two lots: the licensed premises known as P.V.'s and Storehouse A, through which deliveries were made to P.V.'s by using the "A" "B" right of way over the plaintiffs' premises. The second lot, storehouse A, was not purchased until 2001. In addition to transferring the storehouse at that time, Pat Fallon also purported to convey an additional right of way YY1 which ran over the plaintiffs' property, again from the archway entrance at Market Street, through the archway and yard of the plaintiffs, but instead of going left from the plaintiffs' yard, as the existing right of way "A" "B" did, YYI went directly north onto Pat Fallon's yard and directly into Storehouse A.

7 7. This did not appear as a problem initially as it was not possible to use this way because of the wall which encircled and the gate which defined the plaintiffs' yard. In or around 2004, or thereabouts, however, Thomas Kearns apparently knocked the plaintiffs' wall and gateway to the left of the plaintiffs' yard, without permission, thereby opening up the plaintiffs'...