Walker v Leonach
|Mr. Justice John MacMenamin
|08 February 2012
| IEHC 24
|[2008 No. 7738 P]
|08 February 2012
 IEHC 24
THE HIGH COURT
Proceedings seeking declaration that land not subject to public right of way -Whether necessary to obtain fiat from Attorney General - Establishment of public right of way - Distinction between rights acquired by prescription and dedication - Whether user as of right referable to toleration or dedication - Test of âÇÿknowledge' - Whether actual dedication - Whether act of public acceptance - Evidence of public user - Relevance of documents -Whether evidence of public user âÇÿas of right' - Whether evidence linked or connected with acts of public expenditure on land - Whether user long, continuous and uninterrupted - Whether evidence of user referable to acquiescence - Whether evidence of public user connected with requisite degree of knowledge - Period of time public user took place - Steps taken by landowner to counteract user - Whether steps taken proportionate to acts of trespass - State of mind - Jurisdiction for negative declaration - Whether plaintiff entitled to judgment in rem - Walsh v Sligo County Council  IEHC 437, ; Collen v Petters IEHC 205, ; Attorney General v Open Door Counselling Ltd ; Connell v Porter (1972) ; Smeltzer v Fingal County Council ; White v Porter (Unrep, Dixon J, 23/3/1956); Regina v Oxfordshire County Council  3 WLR 160; Folkstone Corporation v Brockman  AC 338; Mills v Silver  Ch 271; Bruen v Murphy (Unrep, McWilliam J, 11/3/1980); Simpson v Attorney General  AC 476; Attorney General v Antrobus  2 Ch 188; Williams-Ellis v Cobb  1 KB 310; Boswell v Rathmines and Pembroke Joint Hospital Board  1 IR 165; Szabo v Esat Digifone ; Minister for Arts, Heritage, the Gaeltacht and the Islands v Kennedy ; Shaw v Sloan ; Castrique v Imrie  LR 4 HL 414; D v C ; Henderson v Henderson (1843) 3 Hare 100 and Ahmed v Medical Council considered - Declaration granted (2008/7738P - MacMenamin J - 8/2/2012)  IEHC 24
Walker v Leonach
1. For more than a decade prior to the hearing of this action, the plaintiff and the defendants have been engaged in a dispute as to the existence of a public right of way over the plaintiff's land at Annacrivey, Enniskerry, County Wicklow. That question is the central issue in this case.
2. The plaintiff's property is depicted as "J. Walker's land", it is coloured in blue on the map to be found at Appendix A to this judgment. In broad terms, the route may be described as starting at the boundary of the plaintiff's land at "point F" on the map, at the base of Annacrivey Wood. Thereafter it travels southward, and then westward, through points E, D, and C to point B where it meets Hughes' Lane. The features found on the route will be described later in greater detail..
3. The two defendants are both members of an informal group of people who, in 2004, ultimately coalesced into the Enniskerry Walking Association. Some individuals from this group had been active before that year, in furtherance of the aim of facilitating hill walking in the North Wicklow/South Dublin area. This issue had caused controversy for many years. The evidence revealed that there had been other such disputes before the one dealt with here. There are many undercurrents in issues of this kind. But in this one, in the year 2002, two of their number, Mr. Kevin Warner and Mr. Albert Smyth, published a pamphlet on the subject of Ten Walks in the District of Enniskerry. In the pamphlet they identified a number of routes as public rights of way. The route in question was one of those described.
4. The plaintiff's father, the late Norman Walker died in 1980. The plaintiff then inherited the land subject to a life interest in favour of his mother. He became full owner in 2005, upon his mother's death. Both mother and son had objected to what was said in the pamphlet in 2002. They said that there was no public right of way over the land. The plaintiff attended at the launch of the publication and threatened the two authors with legal proceedings for slander of title.
5. Between 2003 and 2005, conciliation talks took place, some under the aegis of the Wicklow Uplands Association, an organisation of the various groups who go and who live there; farmers and hill walkers, and those interested in the area's natural integrity. In other meetings, the plaintiff and the defendants themselves were involved. Unfortunately, the negotiations did not prove fruitful. The dispute escalated; some objectors resorted to intimidation tactics. The defendants were not involved in these activities. Early in 2004, over 100 trees which the plaintiff had planted in a commercial forest on his property were destroyed.
6. But in contrast to these unlawful actions, the defendants and their associates organised protest walks, some of which attracted substantial media coverage. In two of these, the plaintiff barred their entry and forcibly halted hill walkers seeking to cross the land. In the same year, 2004, the Enniskerry Walking Association was formally established. The first named plaintiff, who is a teacher, was Chairman; the second named defendant who is a retired bus driver was Secretary of the organisation.
7. One such walk was arranged for 19 th September, 2004. The plaintiff claims as many as 300 people were involved. The organisers had intended to go first to land owned by a Mr. Peter Collen, with whom they were also in dispute; but he obtained an injunction, and the protest then diverted to the subject property. The walkers came down a laneway to the plaintiff's land at "point F" and made to enter. To stop them, it is said he employed security men who used walkie-talkies and video cameras.
8. The plaintiff claimed that, on another such walk on 20 th February, 2005, the first named defendant assaulted him. This claim was not pursued in the case.
9. At that time, and afterwards, the plaintiff thought it necessary to erect reinforced fences and barriers around his property; he put up warning notices to the effect that there was no right of way. One such notice, some distance from the plaintiff's house, was shot full of bullet holes. On other walks there were incidents on the plaintiff's land which stopped short of outright violence.
10. In 2004, Peter Collen initiated proceedings in the Wicklow Circuit Court against Janni Petters, one of the campaigners; he also named the first named defendant herein, Niall Lenoach as a defendant. Mr. Collen alleged that the defendants there, including Niall Lenoach, had published an article wrongfully claiming there was a public right of way across his land. A report of the Collen case from the 'Irish Times' Law Reports (11 th June, 2005), indicated that the Circuit Judge observed that the case had become "somewhat politicised", and that it had been the subject of considerable press comment. Mr. Collen failed in his application in the Circuit Court. On appeal to the High Court, this decision was reversed by O'Leary J. (Collen v. Petters).
11. However, the legal determination in the Collen case did not end the dispute between Joseph Walker and these defendants. This entire case conveys the impression of being the culmination of a dispute where the parties were misguided; where matters got out of hand on both sides. The litigation has broken up long standing friendships in what I am sure is a close knit community. The parties' lawyers are not to blame; the plaintiff and the defendants should have seen the light of day well before now.
12. As this is rather a lengthy judgment, I pause here to make a number of other observations. This case lasted 11 days. It was brought in the High Court; the very similar Collen case was heard in the Circuit Court, although thereafter appealed. Even that appeal lasted only three days. The defendants in this case did not apply to have the case remitted to the Circuit Court so as to save costs. The case moved inexorably onto full hearing. Neither side was prepared to back down. It was necessary for this Court to engage in case management while the case was at hearing; this should have been done months before. But for case management, the case could have lasted twice as long. The potential cost exposure to any unsuccessful party could be ruinous, perhaps running into six figures. The Court repeatedly suggested that the parties should try to resolve their differences and save costs. Mediation was proposed; more than once. Yet the parties could not or would not compromise.
13. The words "compromise" and "toleration" lie at the heart of this case. To an outside observer, the possible terms of a compromise might have been written on two or three lines on one sheet of paper; the landowner could have given permission to the Walking Association to cross his land on a number of occasions each year; the Association might have acknowledged that this was subject to his permission. But this might have been seen as an acknowledgment that there was no public right of way. There was a sense that the litigants were like some figures in a 19 th century novel who were engaged in an interminable case they could not or would not control; in fact the possibility of control was always in their hands; but that often means compromise.
14. The defendants took on the task of asserting the route was a public right of way. I point out here that in fact local authorities, and the State itself...
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