High Court dismisses adverse possession claim where defendant's maintenance acts lacked intent to dispossess true owner.

Neutral Citation Number: [2008] IEHC 417

THE HIGH COURT

2007 155 CA

ANTHONY KELLEHER

PLAINTIFF

AND

BOTANY WEAVING MILLS LIMITED

DEFENDANT

Judgment of Ms. Justice Maureen H. Clark delivered on the 10th day of December 2008.

1. This action comes before the court as an appeal from the Circuit Court and concerns the ownership of a small plot of leasehold land

in the heart of the City of Dublin. The plot of land is adjacent to 33 Emerald Square in the Coombe in Dublin 8 and measures 31 feet in

length and 11 feet in width. It comprises a lock up garage to the front part with an open area of 12 to 13 feet in length to the rear.

There is no discernible boundary between the land at the rear of the garage and a large area of open ground attached to a factory

owned by the Defendant. The dispute between the parties came about in September, 2005 when the Plaintiff, Anthony Kelleher who

had purchased an assignment of the plot of land, sought to extend the garage by knocking out the rear wall so as to provide the

length necessary to park his truck and trailer. He was prevented from carrying out these works by the Defendants who claimed that

he was trespassing on their property. The original application to the Court was brought by the Plaintiff for injunctive relief but at the

close of pleadings the case effectively became a claim for adverse possession.

2. The Defendant denies the Plaintiff’s title and claims that it has been in exclusive occupation of the lands for a period in excess of

12 years and has extinguished the title of the Plaintiff to the lands by adverse possession.

3. Where a person with good title brings an action for the recovery of land and the Statute of Limitations is pleaded as a defence, the

defendant must prove that the title holder has been dispossessed or has continued his possession of the lands in question for the

statutory period. This is the principle to be applied to the evidence called.

The evidence

4. Mr. Peter Lawlor a son of the late John Lawlor was born and brought up in Emerald Square next door to where his father was reared

and where his grandmother lived. His grandmother’s back garden was adjacent to and overlapped to some degree the yard attached

to the garage used by his father. When the garage was used the family had no reason to go into the yard at the back of the garage

apart from rare occasions when repairs were carried out to the galvanised sheeting of the garage roof. This usually happened when

children in the neighbourhood had climbed up on to the roof and jumped on it or tried to gain entry or if the galvanised sheets had

lifted in a storm. Peter Lawlor particularly remembered that his mother died in 1998 and his father died in 2002 and between that

period, he and his brother Frank, carried out repairs to the roof. In order to do this they had to first climb up onto the front portion of

the roof using a ladder, carry the ladder across the roof and then lean it on the ground in the back yard which is the subject of these

proceedings. He had no reason to take much notice of the yard but on each occasion when he was there, he noticed that it was in

its usual bad unkempt condition. He moved out of Emerald Square in 1986 to get married but before that he used the garage every

day to store his motorbike. During the period that he lived at home in Emerald Square, his mother had always paid rates on the

premises. The back yard was not visible from his parents’ house or from the garage and the only way he could see it was from the

roof of the garage. He believed that the window at the back of the garage had long ago been blocked up to prevent break ins. While

he used the garage on a regular basis when living in Emerald Square, he had no reason to go into the back yard.

5. Frank Lawlor, brother of Peter Lawlor was also raised in Emerald Square and left when he married in 1986. He described himself as

the DIY person in the family and recalled how his father was able to buy the lock up garage from a neighbour Mr. McLoughlin who

suffered a stroke. As he had no further use for the garage he sold it to his father. He recalled several occasions when the roof had to

be repaired because of kids jumping on the corrugated iron. On each occasion, he climbed onto the roof from the front and put down

a ladder at the back where the roof was lower. His understanding was that the land behind was attached to the garage and formed

part of the plot purchased from Mr. McLoughlin and that he had a right to be there. It never occurred to him to seek the permission of

anyone to gain access to the roof or to place his ladder on the land behind. On the last occasions when he was on the roof he noted

nothing different about the land at the back of the garage; it was neglected as it always was. He too recalled fixing the roof between

the dates of his mother’s and his father’s deaths. He always carried out the repairs when notified by neighbours of its condition as his

understanding was that if anybody fell through the roof that they would be liable and he saw it as his responsibility to keep the roof in

repair. His impression was that there was no lawn in the yard at the back when he saw it between 1998 and 2002 and he particularly

noted that when they were putting down the ladder the place was thoroughly unpleasant, being strewn with rubbish including human

excrement. His recollection is that the roof was fixed on two to four occasions. He denied that landscaping had extended into this

area when he last was on the roof. He identified the map attached to the assignment from Dublin Corporation to Thomas McLoughlin

and the assignment from Mary McLoughlin as administratrix of the estate of Thomas McLoughlin to his father John Lawlor. The maps

attached to the assignment show that land at the back of the garage is part of the plot of land originally assigned.

6. Anthony Kelleher, the assignee and Plaintiff explained that he bought the garage in September 2005 for €18,000 so that he could

safely park his long truck and trailer close to where he lived in The Coombe and that his only interest in buying the property was the

length of the plot on the map. He never inspected the plot at the back as he was told that it was included in the take and he relied

on the map attached to the title deeds. In September 2005, he broke down the wall of the back of the garage with the intention of

extending the structure to facilitate the storage of his truck and trailer but was immediately challenged by Botany Weaving. A skip

was then placed by the Defendant on the plot of land to prevent him from carrying out building works and his trailer was pushed back

into the garage. He has been unable to use the garage and plot for the purpose for which he purchased the property.

7. Jonathan Hackett on behalf of the Defendant gave evidence that he was a director of the company Botany Weaving Mill Ltd. that

bought the lands in 1988 identified on a map handed into court. At the time of purchase, the factory was in a derelict condition, the

roof had caved in and the surrounding lands were full of boulders and rubbish and constituted a dumping ground. The map of the

defendant property indicates a very extensive ground area on two sides of the factory with the plot in question in the extreme south

western corner. Following the purchase he restored the buildings and refurbished the grounds by having the rubble and rubbish

cleared, bringing in topsoil and landscaping part of the area for parking. The entire area was laid in grass within a year of the sale in

or about 1989. He had always assumed that the company owned the entire yard up to the wall at the back of Emerald Square. He

had never seen the Lawlor leasehold agreement or the deed of assignment with the map attached to it and was unaware that the

plot was attached to the garage. When he purchased approximately 45,000 square feet from the liquidator of Malboro Menswear, the

owners of the former factory premises, he did not at any time consider the ownership of the miniscule area comprising the disputed

plot. He understood that he owned everything within the boundaries of the factory and he rejected the idea that there was ever any

discernable difference between the appearance of the parcel of land over which Mr. Kelleher lays claim and the area which the

factory maintained. In particular, he rejected any suggestion that damp marks rising several feet on the boundary walls were left by

recently removed earth and rubbish. He said that the area had been cleaned up long ago as the staff looked out on it at lunch time

and had objected to its derelict state. He first became aware of the claim by Mr. Kelleher in September 2005 as prior to the

attempted building works he had no idea that anyone claimed ownership to that land or that anyone had carried out any repairs to

the roof. He had never seen or been made aware that any persons had been on the plot of land or had placed ladders there.

8. Photographs were produced by Mr. Hackett showing the current state of the premises with well maintained landscaping around an

extensive parking area to the front of the factory grounds. The area in dispute is at the very end of an area laid in mowed rough lawn

which is outside the landscaped parking area. There was evidence of some graffiti on the boundary walls with the garage. There were

large areas of dark staining on the boundary wall with one of the Emerald Square houses and to a lesser extent at the bottom end of

the wall at the back of the garage. There was also an area of rough mortar plastering at the foot of the boundary wall. No evidence

was called as to who cleared the rubbish from the plot in dispute and when this work was carried out apart from the testimony of

Jonathan Hackett that the lands were cleared and seeded in or around 1989.

Findings

9. On the evidence called, there is clearly a dispute as to when the plot of land at the back of the garage was cleared of rubble then

seeded with grass and incorporated into the curtilage of the factory premises. The staining on the walls could be consistent with

relatively recently removed earth. The rough mortar could be consistent with efforts to strengthen the base of the wall following

removal of a bank of earth. No explanation was provided for this staining or of when the concrete was applied.

10. Maps produced in court by both parties show the area in dispute as forming the natural contours of the plot on which the garage

was built and which is contiguous to the garden walls of 32 and 33 of Emerald Square. In other words, the area squares up with the

Emerald Square back gardens. However, an ordinance survey urban place map of Emerald Square noted to have been surveyed in

1973 and revised in 1999, depicts the garage as a structure but does not delineate the yard or exclude it from the factory premises

confirming that there was never a boundary wall between the garage and the factory.

11. On the basis of this evidence I make the following findings: on the day in September 2005 when Anthony Kelleher attempted to

extend the garage at the side of 33 Emerald Square, Botany Weaving Mill Ltd was in occupation of all the land at the front of their

factory including the plot in question. It is clear that the only use Mr. Kelleher’s predecessors in title ever made of the plot in question

was for necessary access to maintain the garage and that this did not occur frequently the last times being on two to four occasions

between 1998 and 2002. It was also clear that unless they were carrying out repairs, they had no view of the plot of land.

12. The issues which I have to decide is whether the acts of Botany Weaving in clearing the rubbish from the disputed plot and

maintaining it in grass amounted to exclusive occupation, adverse to the owners of the land and if so, can adverse possession occur

in circumstances where they were unaware that the lands belonged to someone else. In other words was Botany Weaving’s erroneous

belief that the lands were theirs sufficient to amount to an animus possidendi or intention to possess to establish adverse possession

bearing in mind that the burden is on the person claiming such title? If animus possidendi is established have they established 12

years continuous exclusive occupation such as to defeat the title of Peter and Frank Lawlor and thus the Plaintiff?

The law

13 The parties furnished the court with a quantity of recent law on the issue of adverse possession being Durack Manufacturing v.

Considine 27/05/1987 Unreported Barron J., Gleeson v. Feehan 2000 IEHR 118 29/05/2000 Finnegan P., Tracey Enterprises Macadam

Ltd. V. Drury Unreported 24/11/2006 Laffoy J., Dunne v. Iarnrod Eireann IEHC 7/9/2007 Clarke J.

14. The law in relation to possessory title and the extinguishment of paper title by the operation of the provisions of the Statute of

Limitations, 1957 has been extensively explored in two of the cases furnished. The pertinent sections of the Statute of Limitations

Act 1957 to this type of action are sections 13(2), 18(1) and 24:

S.13(2) which provides that no action to recover land shall be brought by any person, other than a State authority, after

the expiration of twelve years from the date on which the right of action accrued to that person.

Section 18(1) which deals with when the right of action to recover land accrues and provides that no right of action to

recover land shall be deemed to accrue unless the land is in the adverse possession of some person in whose favour the

period of limitation can run.

Section 24 which provides that at the expiration of the period fixed for a person to bring an action to recover land, the

title of that person to the land shall be extinguished.

15. Laffoy J. examined all relevant judgments on these provisions in Tracey Enterprises Ltd Macadam v. Drury and I adopt her

analysis in quoting from her examination of the existing law.

16. “The meaning of “adverse possession” in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy

[1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:

“Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute

of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with

recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse

possession was abolished by the Real Property Limitation Act, 1833, in which the words ‘adverse possession’ were not

used …. The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse

possession which existed before 1833. In section 18 of the Act of 1957 adverse possession means possession of land

which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the

true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession

requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a

licensee or a person in possession as a servant or caretaker or a beneficiary under a trust …”

Later in his judgment Kenny J. referred to the decisions of the English Court of Appeal in Wallis’s Holiday Camp v. Shell-Mex [1975]

Q.B. 94 and Treloar v. Nute [1976] 1 W.L.R. 1295, commenting that in each of those cases the question was whether the person in

possession of lands had been in adverse possession. He then observed that this is ultimately a question of fact.

In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 Barron J., having referred to the judgment of Kenny J. in

Murphy v. Murphy, stated that each case must be decided on its own facts and continued (at p. 683):

“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of

mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends

to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only

insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”

In relation to the type of acts of use and enjoyment which will amount to possession, the following passage from the judgment of

Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 has been cited frequently by this Court with

approval in recent years (for example, by Costello J. at first instance in Murphy v. Murphy, at p. 193, and by Gilligan J. in Keelgrove

Properties Limited v. Shelbourne Development Limited in his unreported judgment delivered on 8th July, 2005):

“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying

possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the

suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow

with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to

be taken into account in determining the sufficiency of a possession.”

The practical application of the principle stated in that quotation may be observed in Doyle v. O’Neill (the High Court, Unreported,

13th January, 1995) in which O’Hanlon J. stated:

“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and

positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation

adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being

worthless or valueless for the purposes of the original owner.”

17. It is quite clear from this analysis of the authorities going back over 120 years that in every case where adverse possession is in

issue, the fact of possession requires an examination of the nature of the land and the nature of the occupation before possessory

title can be established. Application of the same legal principles can lead to differing outcomes as occurred for example, in Doyle v.

O’Neill 13.01.95 and in Griffin v. Bleithin [1999] 2 ILRM 182 where similar types of occupation brought differing results depending on

their own special facts.

18. The authorities relating to adverse possession were again examined and applied by Clarke J in Dunne v. Iarnrod Eireann IEHC

7/9/2007 where he found that the general principles were best summed up in a passage from the judgment of Slade L.J. in Powell v

McFarlane [1979] 38 P&CR 452 at 470 where the following is set out:-

“1. In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of

the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe

possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.

2. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be

shown to have both factual possession and the requisite intention to possess (“animus possidendi”).

3. Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession,

though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a

person intruding on that land cannot both be in possession of the land at the same time. The question what Acts

constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature

of the land and the manner in which land of that nature is commonly used or enjoyed.”

19. Clarke J in Dunne v. Iarnrod Eireann concluded that the authorities indicate that “the nature of the possession which must be

established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might

reasonably expect a typical owner to put those lands to” and that the correct approach should be on the basis that the onus is on

the person asserting possessory title “to establish a sufficient degree of possession of the land with the requisite intent”.

20. He accepted the following as a correct statement of the law the dictum of Slade LJ in Power v. McFarlane at p472 that “an

owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless

the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be

found to negative discontinuance of possession.”

21. The recent decision in Gleeson v. Feehan (29/05/2001 unreported) Finnegan P. confirms that quite minimal acts of possession by

the owner of the paper title will be sufficient to establish that he was not dispossessed.

22. Coming then to the facts of this case where the managing director of the Defendant company was firmly of the belief that his

company was the paper title owner of the plot in question and whether this misplaced belief affected animus possidendi. There is a

paucity of Irish law on relevant law regarding such mistaken belief and the proposition that a person can be in adverse possession

while believing that that he is the owner. In Williams and Anor. V. Usherwood Court of Appeal 1983. Cumming-Bruce LJ stated that:

“Enclosure has always been regarded as strong evidence supporting animus possidendi, and the fact that the adverse

possessor's belief of ownership is founded on a mistaken premise does not help the paper owner.”

Halsbury’s Laws of England quotes this decision as an authority that adverse possession can occur even though the possessor was

the legal owner. However, an examination of the details of Williams v. Usherwood exposes facts quite different to those in this

current case and raises doubt as to the validity of the proposition. In that case both the original owners who were neighbours and

their successors in title acted on the mistaken belief that one neighbour owned all of what in their title deeds was a shared driveway

to their respective houses in a residential estate. Each party erroneously believed that the adjoining property owner merely enjoyed a

right of access over the driveway to maintain and repair their residence, gutters, eaves and drains. The first neighbour had built a

garage on the shared driveway, caused it to be expensively paved, had parked two or three family cars there for upwards of forty

years and most important, had enclosed the driveway. The issue of the mistaken belief paled into insignificance when viewed against

these acts and the abandonment by the other parties of any use of the once shared entrance. It is interesting that the law lords of

the Appeal Chamber relied on the dictum of Lord O’Hagan in the decision of Lord Advocate v. Lord Lovat in deciding on the special

facts of the case in favour of the neighbour who had enclosed the driveway and in refusing relief to the Plaintiff who had relied on the

Defendant’s erroneous belief. I do not believe therefore that Williams v. Usherwood is any authority for the principle that animus

possidendi can coexist with a belief in ownership. Logically, if a person in occupation believes that he is rightfully there, he cannot

have the intent to dispossess.

Conclusion

23. On the basis of these authorities and applying the principles to the facts of this case, I am not persuaded that the use of the

disputed plot by the defendant company when viewed objectively, constituted adverse possession or possession which was

inconsistent with the title of the true owner. The clearing and tidying up which was carried out by the Defendant Company was

without doubt for its own visual benefit in providing continuity to the lawned area and to abate and minimise the dumping nuisance to

their own land. I do not accept that the works were carried out to defeat the title of the true owners any more than the mowing and

maintaining of common areas or roadside verges is carried out with intent to acquire title. In my view the grassing and tidying was not

of such a nature as could leave “no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was

taking place.” Doyle v. O’Neill

24. On the particular facts of this case, the tiny plot of land had never been marked off from the rest of the factory premises. There

was no wall or other boundary to demarcate the plot from the other open ground. Thus, when the derelict factory premises were

purchased in 1988 with grounds described as a “dump”, that state also extended to the plot. The plot itself had not been used other

than to provide necessary access for repairs to the garage. The nature of the particular urban area with its risks of vandalism and

theft meant that the garage was built with minimal access. It was however possible to develop the plot by extending the garage

without encroaching onto the defendant lands as the walls of any extended structure would form a new boundary. I have therefore

asked myself if the acts relied on by the defendant as acts of exclusive possession, were in all the circumstances inconsistent with

the enjoyment of the land by the plaintiff’s predecessors in title. If the area had been cleared of urban detritus, flattened and sown in

grass during the period 1998 and 2002, would the Lawlor brothers standing on the plot while repairing the roof necessarily conclude

that the improved state of the plot indicated that some person was in adverse occupation of their plot? I am not convinced that they

would. In any event, I am not satisfied that the Defendant has established continuous exclusive occupation for a period in excess of

12 years as during that time the Plaintiff’s predecessors continued with their normal sporadic use of the plot to service the repairs to

the garage.

25. I will make an order that the Plaintiff is the lawful owner of the plot at the rear of the garage at 33 Emerald Square in the terms of

the Plaintiff’s Civil Bill. The Plaintiff is entitled to his costs.