Zopitar Ltd v Jacob

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 29 July 2015
• Neutral Citation: [2015] IEHC 790
• Docket Number: [2011 No. 10180 P]
• Court: High Court
• Date: 29 July 2015

BETWEEN

ZOPITAR LIMITED

PLAINTIFF

AND

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

DEFENDANT

[2015] IEHC 790

[2011 No. 10180 P]

THE HIGH COURT

Tort – Damages & Restitution – Trespasss – Right of way – The Prescription Act, 1832 – Continuous and uninterrupted use – nec vi, nec clam, nec precario – acquiescence.

Facts: The plaintiff sought a declaration that the defendant (now deceased) did not have a legal right of way over the plaintiff's land on which the residence of the defendant was situated. The defendant being the executor of the estate of the deceased claimed that for 30 years, the deceased and her predecessor in-title as occupiers of the residence used and enjoyed the right-of-way without any interruption, permission and such easement would amount to acquiescence.

Mr. Justice Gilligan refused to grant the declaration and other ancillary relief to the plaintiff. The Court held that in order to establish an easement by way of Prescription, the dominant tenement must provide evidence of continuous use of way for the Prescription period without any permission and that such use was dependent upon tolerance of the servient owner amounting to acquiescence. The Court found that the nature of the arrangements between the plaintiff and the deceased defendant were such that a right-of-way was neither alleged nor asserted by the defendant and the alleged use was based on the mutual co-operation and tolerance between the parties.

JUDGMENT of Mr. Justice Gilligan delivered on 29th day of July, 2015

1 The plaintiff in these proceedings is a limited liability company having its registered office at Donegal Creameries, Ballyraine, Letterkenny, in the County of Donegal. The defendant and counter claimant, Ruth McKinney (now deceased), was formerly a director of William McKinney & Sons Ltd, and a substantial shareholder, and was the owner of and resided at Oatfield Bungalow, Ramelton Road, Letterkenny in the County of Donegal.

2 Unfortunately, subsequent to the delivery of the defendant's defence and counterclaim, the defendant passed away and by order of this Court of 21st November, 2013, the proceedings were reconstituted with Harold Jacob named as defendant in his capacity as executor of the estate of the late Ruth McKinney.

3 At all material times, the plaintiff, and its predecessor in title, William McKinney & Sons Ltd, were the full owner of lands comprised and described in Folio 13490F of the Register of Freeholders in the County of Donegal, upon which lands were situated a well known sweet factory which produced a product with the brand name, ‘Oatfield Sweets.’

4 In or about the earlier part of 2011, William McKinney & Sons Ltd were desirous of securing an agreement for the sale of the lands upon which the former sweet factory was situated, and the supermarket chain, Lidl, emerged as a potential purchaser for a sum of €1.9m.

5 Prior to the formalisation of any final agreement, Lidl raised an issue as regards a right of way running from the factory premises into Oatfield Bungalow in which the defendant resided during her lifetime with her father Ira McKinney.

6 A discussion took place at a number of board meetings of the plaintiff company and correspondence ensued from the defendant's solicitor who maintained that initially there was a right of way across the site of the old factory premises to the bungalow and subsequently, two rights of way.

7 Lidl did not proceed ahead with the purchase of the factory premises and the defendant, despite being requested on the plaintiff's behalf to desist from making adverse claims against the plaintiff's lands, failed and/or refused to do so and in these circumstances the claim of the plaintiff is:-

‘1. A declaration that the defendant does not enjoy any right of way over the plaintiff's lands comprised and described in folio 13490F of the Register of Freeholders in the County of Donegal and all that and those (unregistered) lands comprising a factory and premises which said registered and unregistered lands are shown on the map annexed to the plenary summons herein and thereon surrounded with a green line verge.

2. An injunction restraining the defendant whether by herself, her servants or agents, from trespassing upon any part of the said registered and unregistered lands shown on the map annexed to the plenary summons herein and thereon surrounded with a green line verge.

3. An order restraining the defendant whether by herself, her servants or agents, from making any adverse claim in respect of the plaintiff's said lands or from acting so as to prejudice the proposed sale of such lands.

4. Damages for trespass.

5. If appropriate, damages for slander of title arising from the loss of the sale of the said lands.

6. Interest pursuant to statute.

7. Further and other relief.

8. The costs of these proceedings.’

8. The defendant, in her defence, denies that she wrongfully claimed a right of way over the plaintiff's lands as alleged or at all and further denies that she jeopardised the sale of the said lands in any way, and she counterclaims alleging that she was a director of the company known as William McKinney & Sons Limited and that her directorship ended with the sale of her total shareholding in the company to Donegal Creameries Plc of which the plaintiff is a subsidiary company. She averred that in relation to this sale, there were no enquiries at all concerning any rights of way across the company property of William McKinney & Sons Limited. The defendant further sets out that by indenture of conveyance dated 2nd March, 1999, and made between the late, Ira James McKinney, her father, and herself, she became the owner of Oatfield Bungalow, Ramelton Road, Letterkenny and that there is appurtenant to the defendant's said property, a full right and liberty at all times and for all purposes on foot and with or without vehicles to pass and re-pass through and over the lands owned by the plaintiffs which said lands are comprised partly in Folio 13490F over the Register of Freeholders, County of Donegal, add those parts of the plaintiff's lands that are on register, and that these rights of way lead from the public road, being the DeValera Road, through the plaintiff's lands, to the defendant's lands and avenue. The defendant claims that Ruth McKinney had, for upwards of 30 years, until her death in 2011, exercised regular use and enjoyed the said rights of way and exercised same without secrecy, without permission and without interruption, without force and as of right, and at all material times, it was the defendant's intention to use the said rights of way for the purpose of gaining access to her property from the DeValera Road.

9. In particular, as set out in para. 9 of the defendant's defence, she refers to the fact that either she and/or her servants or agents, licensees, and invitees, have exercised the rights of way across the factory yard to and from the DeValera Road entrance and she instances examples of the delivery of oil, gardeners, persons generally coming to see her, members of her family, her invitees, having passed and re-passed across the yard of the factory premises for upwards of 30 years without any difficulty.

10. In particular, the defendant alleges that at no time prior to the proposed sale of the shares in William McKinney & Sons Limited in early 1999, was it ever indicated to the defendant that there was no such right of way across the factory yard nor did anyone ever seek to attempt to stop, challenge or query either the defendant, or any of her relatives, licensees, or invitees in their use of either of the two rights of way that the defendant says she has enjoyed over the factory premises.

11. The defendant accordingly counterclaims for a declaration that she is entitled to the said rights of way at all times and for all purposes on foot and with or without vehicles, to pass and re-pass through or over the factory premises and the defendant seeks further relief to register the rights of way as a burden on Folio 13490F.

12. The proceedings are easily modulised in that the first part of the proceedings which this judgment deals with has simply one objective and that is to determine as to whether or not the defendant enjoyed the benefit of the two rights of way over the plaintiff's lands constituting the factory premises.

Background facts.

13 The plaintiff's factory premises and the defendant's house are situated side by side and prior to and in or about 1982, the situation was that Oatfield Bungalow had an entrance onto the Ramelton Road and likewise the factory premises was entered from a gate further down also on the Ramelton Road. In 1982, the new DeValera Road was constructed which provided a new entrance into the factory premises and the old Ramelton Road entrance fell into disuse. Oatfield Bungalow could be entered from an entrance on the Ramelton Road but two practical difficulties arose, one being that oil lorries, if they entered the bungalow premises, could not turn to get back down the avenue to the Ramelton Road, and 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.

14 I am satisfied, based on the evidence given to the Court, that from 1999, when the Oatfield Bungalow was conveyed unto Ruth McKinney by her father, Ira, until Ruth McKinney's death in 2013, she often crossed the plaintiff factory's land, from the De Valera Road entrance, to gain access to her adjoining house, Oatfield Bungalow. I am satisfied that, particularly in Ruth's later years, psychiatric nurses, including a Ms. Fiona Graham who gave evidence to the Court, drove across the plaintiff's premises in order to gain access to the said property, and that this happened sometimes...