Walker v Leonach

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 15 May 2018
• Neutral Citation: [2018] IECA 132
• Date: 15 May 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 132 Record Number 2014/621

[2018] IECA 132

THE COURT OF APPEAL

Whelan J.

Peart J.

Whelan J.

Gilligan J.

Neutral Citation Number: [2018] IECA 132

Record Number 2014/621

BETWEEN/

JOSEPH WALKER

PLAINTIFF/RESPONDENT

- AND -

NIALL LEONACH

AND

NOEL BARRY

DEFENDANTS/APPELLANTS

Public right of way – Lands – Evidence – Appellants seeking to appeal against High Court declaration in personam that the lands of the respondent are not subject to any public right of way – Whether the evidence established that the disputed way is a public right of way

Facts: The appellants, Mr Leonach and Mr Barry, appealed to the Court of Appeal against the judgment of 8th February 2012 and consequent orders of MacMenamin J delivered in the High Court granting, inter alia, a declaration in personam as against the appellants that the lands of the respondent, Mr Walker, comprised in Folio 6913 and 48.5 acres of adjoining unregistered land at Annacrivey, Enniskerry, Co. Wicklow are not subject to any public right of way. The appellants identified the following as the key net issues for determination in this appeal: (i) Is the respondent, a private landowner, entitled to obtain an in personam negative declaration that the disputed route is not a public right of way? (ii) If yes, does the evidence establish that the disputed way is a public right of way?

Held by Whelan J that the appellants failed to establish as a matter of law that a public right of way subsisted along the route shown on the judgment map and marked with the letters A – K inclusive. Whelan J noted that the appellants had contended that the path constituted a public right of way but did not appear to have asserted or adduced evidence that it ever constituted a public highway. Whelan J held that the appellants did not address adequately in their evidence the adverse legal inferences to be drawn from the construction of a permanent structure described as "Canavan's Cottage" across the route of the right of way which appeared on maps including a map adduced in evidence by the respondent being the Powerscourt Estate map of 1816. Whelan J held that the appellants failed to properly prove at the hearing of the action potentially significant evidence including a survey carried out by Wicklow County Council in relation to public rights of way in the county. Whelan J noted that the County Council was not joined as a party to the proceedings or as a notice party, nor was a third party application brought, and relevant witnesses from the County Council were not called and evidence was not sought to be taken on commission in regard to same. Whelan J also noted that freehold owners of a significant portion of the disputed path way were not joined as parties or made notice parties to the counterclaim; this circumscribed the capacity of the trial judge to make any declarations or orders affecting their freehold ownership. Whelan J held that the appellants failed to establish that they were entitled to go on the respondent's lands as of right for the purposes of the exercise and enjoyment of a public right of way. Whelan J was satisfied that the trial judge did have discretion to make a negative declaration in personam in the circumstances, however the terms of same required modification.

Whelan J held that, subject to modification to the declaratory order made by the trial judge, the appeal should be dismissed on all grounds.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 15th day of May 2018

1 This is an appeal against the judgment of 8th February 2012 and consequent orders of MacMenamin J. delivered in the High Court granting, inter alia, a declaration in personam as against the appellants that the respondent's lands comprised in Folio 6913 and 48.5 acres of adjoining unregistered land at Annacrivey, Enniskerry, Co. Wicklow ('the lands') are not subject to any public right of way.

Background History

2 The respondent's father purchased the said lands as part of a larger holding in the year 1950. The respondent became beneficially entitled to the lands, subject to certain rights in favour of his mother, in 1980. The lands are situate in an area of great scenic beauty in Co. Wicklow. The respondent's holding adjoins Annacrivey Wood which is managed and controlled by Coillte. The area has long been popular with hill walkers including an informal umbrella group known as Enniskerry Walking Association. It was contended by members of the association that the respondent's lands were subject to a public right of way. The respondent denied this claim. The route of the disputed way is shown on the map annexed to the High Court judgment. For ease of reference a copy of said map is appended to this judgment (hereinafter the judgment map).

3 The dispute appears to have escalated significantly following the publication of a booklet of hill walks by Albert Smith and Kevin Warner in 2002 which identified the contested route as a public right of way. The second named appellant, Noel Barry, who resides in Enniskerry and is secretary to the Enniskerry Walking Association, wrote to the respondent in 2004 seeking to discuss the ongoing dispute regarding the existence of a public right of way over the respondent's lands. A meeting took place in August of 2005 at which Noel Barry furnished to the respondent copies of a Jacob Nevill map of 1760 and an A.R. Nevill map of 1798, documents which were heavily relied on by the appellants at the trial of the action, as depicting the route of the public right of way contended for.

4 Subsequently, on 30th January 2006 Noel Barry sent to the respondent a letter with details of evidence and attaching documentation which had been gathered by Enniskerry Walking Association in support of their claim. He suggested that the respondent should examine this evidence carefully;

'It is taken from Wright's Guide to Co. Wicklow. The first edition was published in 1822, the second in 1827. Copies are available in the National Library. This guide was on sale to the general public, was widely sold and used and clearly describes the old road running through your property as "tolerably good".'

5 The letter identified various pieces of evidence which the author suggested supported the claim of Enniskerry Walking Association that the disputed way:

(a) was and is a public road in use since ancient times;

(b) has been in continuous use as a pedestrian route by a wide variety of people and

(c) had never been extinguished.

6 The letter goes on to state;

'I would further refer you to Patrick Power, one of Ireland's leading authorities on maps. Power states in his essay 'A Survey of Some Wicklow Maps 1500 – 1888' ('Wicklow History and Society');

'Many of the errors in 'Jacob Nevill's 1760 map were corrected by his nephew Arthur Richard Nevill, City Surveyor of Dublin in his 'map of the said County Wicklow'. This last is the reference to the 1798 map which I have given to you.'

The letter concludes;

'As one who has known you for many years and always regarded you as a friend, I would like to offer you the opportunity to meet with me again to see if a solution can be agreed between us without recourse to the courts. I make this offer in an effort to find a solution which does not lead to humiliation for either yourself or those who regard this route as sacrosanct. I am sure you can see the sense in reaching an agreement which will not enrich our friends in the Law Library. I still hope that reason can prevail. However, matters are rapidly reaching the point of no return as far as legal action is concerned. The present impasse and continuous harassment cannot continue.'

Ex Parte injunction

7 An affidavit was sworn by the respondent on 19th September 2008 in support of an ex parte application moved before Clarke J. to the High Court for an interim injunction restraining the appellants, their servants or agents from entering onto the lands without lawful authority. However, this affidavit omitted to make any reference to the said evidence including maps, material and information which had by then been in the possession of the respondent for a number of years.

8 Upon securing an injunction ex parte the respondent was granted liberty to erect a notice of the making of the injunction at a suitable location on the property. The inter partes interlocutory application was made returnable before the High Court for 24th September 2008.

9 On the latter date the interlocutory application did not proceed to a hearing. Instead an undertaking was given by the appellants through their counsel not to enter upon the respondent's lands pending the trial. As such, the interim order did not continue in operation beyond 24th September 2008. The said undertaking of the appellants continued to be operative throughout the intervening years up to the conclusion of the trial of the action in 2012.

The Pleadings

10 A plenary summons issued on 19th September 2008. The statement of claim delivered on 1st December 2008, pleaded the respondent's ownership of the lands. The respondent sought a declaration in rem that his said lands were not subject to any public right of way together with certain injunctive orders restraining the appellants, their servants or agents, from entering onto the said lands without lawful authority or from wrongfully asserting that same were subject to a public right of way or otherwise slandering his title.

11 On 9th December 2008, a defence by way of traverse was delivered.

Amended Defence

12 On 20th January 2010, a week after the commencement of the hearing in the High Court, the appellants delivered an amended defence. A public right of way was referred to in the following manner;

'The lands where the walks took place ('the lands') are about half way between Enniskerry and Glencree and the route is marked as a road on maps of the area for the last 250 years. The route existed there before the Military Road was...