Zopitar Ltd v Jacob

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 20 June 2017
• Neutral Citation: [2017] IECA 183
• Docket Number: [C.A. No. 633 of 2015],Record No. 2015/633
• Date: 20 June 2017

BETWEEN/

ZOPITAR LIMITED

PLAINTIFF / RESPONDENT

- AND -

HAROLD JACOB ADMINISTRATOR AD LITEM OF THE ESTATE OF THE LATE RUTH MCKINNEY

DEFENDANT / APPELLANT

[2017] IECA 183

Hogan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Record No. 2015/633

THE COURT OF APPEAL

Right of way – Precario – Easement – Appellant seeking to assert the existence of a right of way over factory premises – Whether appellant had established any right of way by prescription through the factory yard and premises

Facts: The plaintiff/respondent, Zopitar Ltd, is the holding company of Donegal Creameries Ltd. The defendant/appellant, Ms McKinney (now deceased), was the owner of and resided at Oatfield Bungalow, Ramelton Road, Letterkenny, Co. Donegal. The Bungalow and the factory premises immediately abut each other and there is no formal hedge or fence which demarcates the two properties. Ms McKinney asserted the existence of a right of way over the factory premises. The plaintiff then commenced proceedings seeking a declaration to the effect that there was no such right of way. The defendant filed a defence and counterclaim by which she positively asserted the existence of such a right of way. Ms McKinney died in 2013 at some point after her defence and counterclaim was delivered. On 21st November 2013, the High Court directed that the proceedings were reconstituted with her cousin, Mr Jacob, named as defendant in his capacity as administrator ad litem and executor of the estate of the late Ms McKinney. The defendant submitted that a landowner who permits the drivers of oil tankers and “ride on” lawnmowers and other visitors to traverse his land for the purposes of gaining convenient access to a neighbouring property for a period of twenty years thereby creates a right of way in favour of that neighbouring property. In the High Court Gilligan J rejected this contention on the particular facts of the case. The defendant appealed to the Court of Appeal against that decision. The essence of the appellant’s claim was that a right of way was acquired by prescription by reason of twenty years (or more) uninterrupted user under s. 2 of the Prescription Act 1832 between the date of the construction of the de Valera road in 1982 and 2011.

Held by Hogan J that since he was of the view that the user in the present case was at all times precario, the defendant accordingly could not establish that the user was as “of right” within the meaning of s. 2 of the 1832 Act. Hogan J held that Gilligan J was accordingly correct to hold that the defendant had not established any right of way by prescription through the factory yard and premises in favour of Oatfield Bungalow.

Hogan J held that the defendant’s appeal must be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of June 2017

1 This appeal raises a difficult issue concerning the scope of private rights of way. Does a landowner who permits the drivers of oil tankers and ‘ride on’ lawnmowers and other visitors to traverse his land for the purposes of gaining convenient access to a neighbouring property for a period of twenty years thereby create a right of way in favour of that neighbouring property? In the High Court Gilligan J. rejected this contention on the particular facts of this case: see Zopitar Ltd. v. Harold [2015] IEHC 790. The defendant (and counter-claimant) now appeals to this Court against that decision.

2 The plaintiff in these proceedings, Zopitar Ltd., (‘Zopitar’) is a limited liability company having its registered office at Donegal Creameries, Ballyraine, Letterkenny, Co. Donegal. Zopitar is the holding company of Donegal Creameries Ltd. The defendant and counter claimant, Ms. Ruth McKinney (now deceased), was formerly a director of William McKinney & Sons Ltd., and a substantial shareholder in that company. Ms. McKinney was the owner of and resided at Oatfield Bungalow, Ramelton Road, Letterkenny, Co. Donegal. That property had been conveyed to her in 1999 by her late father, Mr. Ira McKinney, who was in turn a son of Mr. William McKinney. As I shall presently recount in greater detail, the Bungalow and the factory premises immediately abut each other and there is, indeed, no formal hedge or fence which demarcates the two properties.

3 Unfortunately, however, Ms. McKinney died in 2013 at some point after her defence and counterclaim was delivered. On 21st November 2013, the High Court directed that the proceedings were reconstituted with her cousin, Mr. Harold Jacob, named as defendant in his capacity as administrator ad litem and executor of the estate of the late Ms. Ruth McKinney.

The background to the proceedings

4 Before, however, explaining any of the legal issues which arise in this appeal, it is necessary first to set out in some detail the facts as found by Gilligan J. in the High Court. At some stage in the 1950s Ms. Ruth McKinney's grandfather, a Mr. William McKinney, established William McKinney & Sons Ltd. At some stage in the early 1950s this company acquired certain property at the Ramelton Road (comprised and described in Folio 13490F of the Register of Freeholders for Co. Donegal) from Mr. Ira McKinney, the son of Mr. William McKinney. These lands comprised a well known sweet factory which produced products under the brand name, ‘Oatfield Sweets.’ In 1999 Zopitar became the registered landowner in respect of the factory premises following a share and purchase agreement involving Donegal Creameries plc. Zopitar is the holding company for Donegal Creameries.

5 At some stage in 2011, Zopitar was anxious to secure an agreement for the sale of the lands upon which the former sweet factory was situated, and the supermarket chain, Lidl (Ireland) Ltd. (‘Lidl’), emerged as a potential purchaser of the premises. Prior, however, to the formalisation of any final agreement, Lidl raised the issue as to whether a right of way ran from the factory premises into Oatfield Bungalow in which Ms. McKinney had resided during her lifetime with her father Mr. Ira McKinney. In the autumn and early winter of 2011 discussions took place at a number of Zopitar board meetings regarding this issue. The views of the board were expressed in a letter dated 11th October 2011 to the solicitors for Lidl:

‘Our client understands that two former substantial shareholders in the firm of William McKinney & Sons Ltd. who lived adjacent to the subject property walked to and fro from their dwellings to the factory premises through a gap in the boundary. However, when our client purchased the issue share capital of the said company in 1999 no easement or quasi-easement was sought or disclosed by the vendors and, as far as our client is concerned, none now exists.’

6 Correspondence ensued from the defendant's solicitor who maintained initially that there was a right of way across the site of the old factory premises to the bungalow and subsequently, two related rights of way. The assertion of this right of way was probably one of the reasons why Lidl did not proceed with the purchase.

7 Ms. McKinney continued nonetheless to assert the existence of a right of way over the factory premises. The plaintiff then commenced proceedings seeking a declaration to the effect that there was no such right of way. The defendant filed a defence and counterclaim by which she positively asserted the existence of such a right of way.

The background to the claim regarding the right of way

8 The Oatfield Bungalow and the factory premises are immediately contiguous to each other and as I have already noted, there is, in fact, no fence or other physical boundary between the two premises. There is, indeed, a paved roadway from the back of the Bungalow to the factory yard and given the absence of any physical barrier between the two premises, the causal observer might, as Gilligan J. observed, justifiably form the view that the two properties are really one single item of property. This reflects the fact that both properties were at one stage originally owned by Mr. William McKinney, as had acquired these properties in February 1930. At some stage in the 1950s the lands on which the factory is situate were transferred to William McKinney & Sons Ltd., the original factory owner.

9 Prior to 1982 both the Oatfield Bungalow and the factory premises each had a separate entrance onto the Ramelton Road. The new de Valera Road was, however, constructed in 1982. This new road provided a new wide entrance into the factory premises and the old Ramelton Road entrance fell into disuse.

10 The Oatfield Bungalow could still, of course, be entered from an entrance on the Ramelton Road but two practical difficulties arose. The first was that oil lorries, if they entered the small avenue lead to the bungalow premises, could not turn to get back down the avenue to the Ramelton Road. The second was that there would have been difficulty in gaining access to the rear gardens behind the bungalow with, for example, heavy gardening machinery or ride-on lawnmowers and the like.

11 In the High Court Gilligan J. found that Ms. McKinney often crossed the plaintiff factory's land, from the de Valera Road entrance, to gain access to the Oatfield Bungalow. This means of ingress to the Bungalow was also used in the years prior to Ms. McKinney's death in 2013 by psychiatric nurses and that this happened sometimes once a week. Gilligan J. also found that oil lorries used the same route in order to deliver oil to Ms. McKinney's house, and that this occurred twice or, at most, three times, a year. The judge accepted that the private avenue leading up to Ruth McKinney's house from the Ramelton Road was not wide enough to accommodate large oil lorries. Gilligan J. also accepted the evidence of Ms. Ruth McKinney's gardener, Mr. Paul McCormack. Mr. McCormack had stated that he had accessed Ruth McKinney's garden using...