Supreme Court dismisses adverse possession case brought against the State’s public transport corporation
A man claimed to have been in possession of a 3-acre field beside Clondalkin Railway Station from 1977 to 2007, however the Supreme Court held that use of the land was both sporadic and lacking in exclusivity, and that repairs carried out by the State corporation amounted to assertion of the original title.
Rail and Córas Iompair Éireann (CIÉ) claim ownership of the field and counterclaimed in support of their rights, asserting that there had been no possession by Mr Dennis Dunne adverse to their rights as owner. In turn, Mr Dunne disputed their title to the land.
On appeal to the Supreme Court, Mr Dunne pleaded his own case - asserting that the trial judge legally and factually misconstrued his claim for adverse possession, and had ignored the fact that he was in “unhindered possession” of the property for 30 years while “maintaining and securing” the property without objection. Given that the limitation period on actions to recover land is 12 years, the Court stated that this should have been ample time to prove adverse possession.
Mr Dunne claimed to have started occupation of the 3-acre field in question in 1977, and his claim of adverse possession was first made to CIÉ in September 2006. Shortly thereafter, proceedings were issued by Mr Dunne and the counterclaim by CIÉ followed.
On legal analysis of adverse possession, the Court explored the extent of usage required for possession – recognising “the character and the range of uses to which land may be put that determines if a possession is adverse to the rights of the original owner”.
Counsel for CIÉ claimed that a sign should have been erected outside the field asserting ownership by Mr Dunne – rejecting this argument the Court stated that this kind of “dramatic manifestation” might be required for adverse possession in other jurisdictions, however there was no such requirement in Ireland.
That being said, it could not suffice for adverse possession merely to occasionally visit or to sporadically use the land or premises in question. Use inconsistent with the title-holder was required, involving “an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired” as per Murphy v Murphy IR 183; Hughes v Griffin 1 WLR. 23.
In evidence at the trial in the High Court, Mr Dunne claimed to have made use of the field through the grazing and training of horses, the keeping of chickens, ducks and dogs, and the building of stabling and sheds amounting to adverse possession and not mere casual or occasional or limited occupation – however his testimony was criticised for being ambiguous. It was stated that given his alleged use of the land for the grazing of animals, it was inconsistent with possession of this land that he allowed the nearby caretaker of a CIÉ cottage to enter the land and to shut the well because of the danger posed to his children.
Additional evidence was also taken into consideration, including that of Seán Kavenagh, a neighbouring landowner, who confirmed that children also kept horses on the disputed land, notwithstanding Mr Dunne being there more regularly than most.
A pivotal point was the fact that fencing was put up by CIÉ on a short strip near the railway station between 1993 and 1995, to stop the trespass of land by people living in a nearby housing estate, who cut through the land as a shortcut to Clondalkin railway station.
Consequently, the Court was satisfied that if a claim of adverse possession had not succeeded in the 16-year period up to 1993, it was impossible on the facts before the trial judge in the 13 year period that followed:
In June 2001, Mr Kavenagh had complained by way of a solicitor’s letter to CIÉ that the “inadequacy of the fencing” on their lands has to some of the horses kept on the land being “caught up and badly injured on the wire fencing” around the property. Shortly following this letter, CIÉ employees went into the field and repaired the fencing.
The Court stated that whether Mr Dunne was present for this or not, this action was an assertion of ownership by the owner of title to the land. Hence, unless title had been established through the efflux of time up to 2001, time had begun to run again thereafter as to any claim of adverse possession – as any action demonstrative of the assertion of the original title, however minimal, will stop time running as per Powell v. McFarlane 38 P&CR 452
Regarding Mr Dunne’s dispute to CIÉ’s title to the land, the Court found that CIÉ’s title was clear – CIÉ were at all material times the rateable occupiers of the land; and expert evidence identified the title documents as good paper title, far better than what would typically be accepted given that the documents in question were at least 100 years older than most titles conveyancing solicitors would normally see.
The Court was satisfied that the legal and factual reality was that Mr Dunne did not make sufficient use of the 3-acre field belonging to CIÉ over an uninterrupted period of 12 years so as to be able to establish adverse
For the first 16 years, his use of the land was both sporadic and lacking in exclusivity. Where CIÉ asserted rights to property through repairing fencing in 2001 and, earlier in 1993, removing a wall, culling portions of the land and establishing modern fencing to protect a railway, time thereby ceased to run in favour of the person attempting to establish adverse possession and the clock started again.
Exclusive possession amounting to occupation of this land was never established on the evidence, and since 2007, the field had been taken possession of by CIÉ.