Walsh v Sligo County Council

• Jurisdiction: Ireland
• Judgment Date: 20 December 2010
• Date: 20 December 2010
• Docket Number: [2009 No. 262 P]
• Court: High Court

[2010] IEHC 437,

High Court

[2009 No. 262 P]

Walsh v. Sligo County Council

Edward Walsh and Constance Cassidy

Plaintiffs

and

Sligo County Council

Defendant

Cases mentioned in this report:-

Albert v. Tremblay (1963) 49 M.P.R. 407.

Attorney-General v. Esher Linoleum Co. Ltd. [1901] 2 Ch. 647; [1900-3] All E.R. Rep 743.

Attorney-General and Newton Abbot Rural District Council v. Dyer [1947] 1 Ch. 67; [1946] 2 All E.R. 252.

Barraclough v. Johnson (1838) 8 Ad. & E. 99; 112 E.R. 773; [1835-42] All E.R. Rep. 606.

Bord na gCon v. Murphy [1970] I.R. 301; (1970) 105 I.L.T.R. 77.

Bruen v. Murphy (Unreported, High Court, McWilliams J., 11th March, 1980).

Capital Trust Co. v. Fowler (1921) 64 D.L.R. 289.

Carroll v. Sheridan and Sheehan [1984] I.L.R.M. 451.

Cleeland v. M'Cune (1908) 42 I.L.T.R. 201.

Coats v. Herefordshire County Council [1909] 2 Ch. 579.

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Davies v. Stephens (1836) 7 Car. & P. 570; 173 E.R. 251.

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Deeble v. Linehan (1860) 12 I.C.L.R. 1.

Eyre v. New Forrest Highway Board (1892) 56 J.P. 517; (1892) 8 T.L.R. 648.

Evans v. Merthyr Tydfil Urban District Council[1899] 1 Ch. 241.

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Land - Easements - Public rights of way - Dedication - Ingredients necessary to establish public right of way - Whether public right of way existing - Inferred historical dedication - Whether dedication presumed - Whether evidence of dedication by landowner - User - Evidence as to user by members of public - Whether user as of right - Applicable legal principles - Presumption or inference of dedication - Permission - Acquiescence - Obstructions - Acts of interruption - Admissions - Whether acquiescence of predecessors bound owner in fee - Capacity to dedicate - Whether there could be dedication when the estate is held in fee tail or mortgaged - Nature and extent of right of way.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of McMahon J., infra.

By plenary summons dated the 14th January, 2009, the plaintiffs sought a declaration that their lands at Lissadell, County Sligo were not subject to any public rights of way and claimed that the defendant's resolution seeking to amend the Sligo county development plan amounted to a slander on their title to Lissadell and an improper interference with their business interests, or alternatively amounted to an injurious falsehood.

The matter came on for hearing before the High Court (McMahon J.) on the 20th and 21st October, 2009. On the second day of the trial, at the request of the plaintiffs the case was adjourned. The hearing resumed on the 19th January, 2010 and continued for 55 days between then and the 18th June, 2010.

The plaintiffs instituted proceedings seeking, inter alia, a declaration that their lands were not subject to any public rights of way. The defendant, by way of counterclaim, asserted rights of way over specified and identified roads, which it claimed were dedicated to the public by the plaintiffs' predecessors in title. The defendant claimed that by reason of long user and enjoyment as of right, throughout the period of living memory, the plaintiffs' lands were subject to a public right of way by way of inferred dedication.

The plaintiffs argued that both the facts and the documentary evidence did not disclose any historical dedication to the public of rights of way over their property. They argued that their immediate predecessor in title never supported the existence of any public rights of way over the land, and that there was evidence that efforts had been made to secure the estate. The defendant never itself paid for the maintenance of the roads at anytime from 1900 onwards and it was only in 2008 that it erected road signs at the entrance to the property suggesting the existence of public rights of way over the estate. The plaintiffs further submitted that any entrants to the estate were there by permission and that there had been no acquiescence. The plaintiffs further relied on occasional closures of gates to show that the owners were denying the right of the public to pass and repass at will. This, according to the plaintiffs, was sufficient action on the part of the owner to show that there was noanimus dedicandi. They cited the common law practice of closing a road one day a year as a recognised method frequently used by landowners to prevent the acquisition by the public of a right of way. The plaintiffs also argued that dedication could not have taken place because there was no one who had the proper legal title to dedicate during the relevant period because the estate was always held in fee tail and was subject to mortgages for long periods during the nineteenth and twentieth centuries. Thus there was no one capable of dedicating.

The defendant argued that there was significant evidence which supported an inference of dedication. Many people entered and exited the estate through all four entrances and were never prevented from traversing the avenues. They never experienced objections from the plaintiffs' predecessors in title or from the managers. The defendant's witnesses testified consistently that their user was not based on express or implied permission. The defendant argued that once it had established long user during the course of living memory, it would be presumed or inferred at law that there was dedication by an owner capable of dedicating and that it was not necessary for the defendant to identify when the dedication took place. It further argued that there was no evidence of any actual interruption of the public user at any time, that there was expenditure of public funds on the roadways in question and that, significantly, there was direct evidence of the assertion of public rights of way made explicitly to the plaintiffs' predecessors in title...