White v Callan
| Jurisdiction | Ireland |
| Judgment Date | 30 November 2005 |
| Date | 30 November 2005 |
| Docket Number | RECORD NO. 31E/02 |
| Court | Circuit Court |
AN CHUIRT CHUARDA
(THE CIRCUIT COURT)
RECORD NO. 31E/02
Land law - Right of way - Excessive user of right of way - Injunction
Facts: The plaintiff claimed that he had rights of way to property which he is owned. The defendant stated that even though the plaintiff had various rights of way that he was entitled to take unilateral action because the plaintiff excessively used the rights of way.
Held by the Circuit Court (His Honour Judge McMahon) in granting an injunction restraining the defendant from obstructing the rights of way that there was no evidence of excessive user before the courts.
Reporter: R.W.
Judgment of His Honour Judge Bryan McMahon delivered on the 30th of November, 2005
Access to the rear of Nos. 40, 41, 42 and 43 Park Street, Dundalk is by of an arched passage that runs along the side of No. 40. This passage is approximately 12-14 feet wide and is of a kind that is not unusual in provincial towns in Ireland. The head room is about ten feet and the evidence is that it is wide enough to take a car and a trailer. This passage leads to the backs of houses in question and was intended originally to facilitate access to the rear of these houses, principally in many cases to service the domestic needs of the houses only, but occasionally, to facilitate commerce where the premises were trade or business premises or where a workshop was located at the rear of the houses. For the most part, however, the entrance passage was used mainly to service the domestic needs of the premises and to facilitate coal and turf deliveries, and building and maintenance requirements as well as the removal of rubbish, waste and ashes.
The present configuration was somewhat unusual in that not only did the passage lead to the rear of the houses, but it also opened up into a yard where previously several business and trades were carried on. In particular there was evidence that the yard accommodated in previous times, though long since gone, a forge, a furniture manufacturing shop, a busy bicycle shop and a paint store. When these were operating all access was also through the arched passage by No. 40. These businesses are all gone now, but it is worth noting that when they were in operation, the amount of people using the passage was much greater than in recent years.
The defendant in these proceedings owns what were formerly Nos. 40 and 41. The Plaintiff now owns Nos. 43 and No. 44. No. 42 is owned by persons who are not party to these proceedings. No. 44 was, and still is, a licensed premises and since he acquired it, the plaintiff has refurbished and extended it considerably. In addition No. 43, which was at one time a small shop, has now become part of the licensed premises, so that although it still retains a separate entrance at the front and rear, it has been incorporated into the licensed business of No. 44. No. 43’s footprint covers only the original shop, but now it can be accessed from the larger pub in No. 44 of which it forms a part.
The plaintiff takes these proceedings alleging that, since 2002, the defendant has locked the gate at the end of the passage which leads from the street at the front of the houses, so that the defendant cannot now access the rear of No. 43 or other pieces of property he owns near the yard. The plaintiff asked for a key for the gate but was refused and so is forced to take these proceedings to restore his access.
The plaintiff in his civil bill claimed that in addition to the right of way he has to rear of No. 43, he also has independent rights of way to a shed (“Mackin’s shed”)
and to what was formerly an ash-pit, apparently servicing all four houses when fires were the principal method of domestic heating used at that time.
Although the defendant denied in the pleadings that the plaintiff had the rights of way claimed in the civil bill, at the opening of the case counsel for the defendant conceded the existence of such rights of way and ran the case on the basis that the plaintiff excessively exercised any rights of way he might have and argued that this justified the defendant in totally obstructing the plaintiffs’ rights of way to the rear of his premises.
This then is the nub of the case: The defendant states that even though the plaintiff has various rights of way through the passage in question, the defendant was entitled to take the unilateral action he did because the plaintiff excessively used the right of way to the rear of No. 43 in particular. This a bold assertion and to succeed the defendant must show (i) that the plaintiff has in fact so exercised his rights in such an excessive way that he has effectively lost them and (ii) that the legal consequences of this “excessive user” entitled the defendant to take unilateral action by locking the gate and refusing the plaintiff a key so that the plaintiff cannot gain entry.
Counsel for the defendant argues that where a right of way exists by virtue of a grant then the nature, scope and extent of the right of way is to be determined by the wording of the grant, and furthermore, that in construing the grant one must take into account the context in which it was granted. I have no difficulty accepting this as an accurate statement of the law. InCannon v. Villars [1877 C. 490]; [1878] 8 Ch D 415, Jessel, M.R. stated the law in the following way:-
“Prima facia the grant of right of way is the grant of a right of way having regard to the nature of the road over which it is granted and the purpose for which it is intended to be used; and both those circumstances may
be legitimately called in aid in determining whether it is a general right of way, or a right of way restricted to foot passengers, or restricted to foot passengers and horsemen or cattle, which is generally called a drift way, or a general right of way for carts, horses, carriages and everything else” (at p.421).
In essence, counsel for the defendant argues that if the right of way, for example, was for pedestrians only, the user clearly would not be entitled to use it for carriages or vehicles, such user being clearly excessive, in the sense of being a user that has not been permitted by the grant. Similarly, in this case, he argues that No. 43 has now been incorporated and swallowed up by No. 44, and now is in effect part of a “super-pub”, so that any right of way for purposes which were appropriate in 1927, when first granted, for No. 43, no longer exist, and the right of way is in effect lost due to the conduct of the plaintiff himself.
In fact, the plaintiff has three rights of way, through the passage and past the relevant gate. The grants in two of...
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Smyth v Fenelon and Another
...ground. The decisions of Shanley J. in Redfont Ltd v Custom House Dock Management Ltd., [1998] IEHC 206 and McMahon J in White v Callan [2006] 2 ILRM 92 are two examples of common sense and practical realities informing the court's interpretation of express grants of interests in land. Inde......