The onus of proof lies on the plaintiff to establish adverse possession with the requisite intent

Irish Times, Mon, Oct 22, 2007

Denis Dunne (plaintiff) v Iarnrod Eireann - Irish Rail and Coras Iompair Eireann (defendants)

Land law - Adverse possession - Whether defendants had proper title to land - Whether that title extinguished by adverse possession - principles to be applied.

The High Court (Mr Justice Clarke); judgment delivered on September 7th, 2007

The owner of the land is deemed to be in possession of the land. The party claiming adverse possession must establish a sufficient degree of both factual possession and intention to possess. 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. Factors such as the future intended use of the land is not a matter properly taken into account but might be a factor in determining whether the necessary intention present in the party claiming adverse possession. A continuous possession of the land for a period of twelve years must be established. Minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. A dispossessor will need to establish possession akin to that which an owner making full use of the property could be expected to make. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time.

The High Court so held in finding that the plaintiff had not established a claim in adverse possession.

Seamas O'Tuathail, SC, and Martin Collins, BL, for the plaintiff; George Brady, SC, and Stephen Dodd, BL, for the defendants

Mr Justice Clarke commenced his judgment by stating that, in 1844 a Private Act was passed by the then parliament leading to the establishment of the Great Southern and Western Railway Company which had compulsory purchase powers to enable it to acquire land necessary to construct the relevant railway. Included in the lands acquired for the purposes of the railway by the defendants (the successors of the company) at that time was a portion of the track located at Clondalkin which involved a station and station house. Adjacent to the station house there is a significant triangular piece of land which was not directly part of the railway itself but which may have been used in conjunction with the railway, at least in the earlier stages of its operation. It was the ownership of that piece of land that was in dispute in the proceedings.

Mr Justice Clarke said that the principal claim maintained by the plaintiff was that he had acquired title to the land in question by adverse possession. The plaintiff did not accept that the defendants had established its title to the land on paper. Mr Justice Clarke said that the issue was whether the defendants had a proper title and, if so, whether the plaintiff had extinguished that title by adverse possession. The 1844 Act gave the company compulsory purchase powers in respect of land which was defined by reference to a map now deposited in the Houses of Parliament at Westminister. Evidence led by an experienced conveyancing solicitor who had been retained by the defendants satisfied Mr Justice Clarke that the lands, the subject of the dispute, had been acquired by the railway company. The title position deriving from the 1840s was immeasurably strengthened by the fact that there was evidence of a significant number of lettings of the land concerned dating from the 1930s up to the 1960s. Those lettings were consistent only with the defendants being the owner of the lands in question. Thus, Mr Justice Clarke was satisfied that the defendants were the owners of the land subject to the claim for adverse possession made by the plaintiff.

Mr Justice Clarke then turned to the claim for adverse possession. At a general level it was accepted that from some time in the latter part of 1977, the plaintiff made at least some use of the disputed lands for the purposes of grazing horses. This practice would seem to have originated from a coal and allied delivery business run by the plaintiff's family in which deliveries were made in the area, originally by horse and cart. While there were disputes as to the extent of the use made by the plaintiff of the lands over the years and, indeed, the extent to which any such use may have been exclusive, it did appear that, at a minimum, he at least made some use of the disputed lands at all times since 1977 and that, in general terms, that use intensified in more recent years. It was common case that at least some structures on the land were constructed by the plaintiff. The extent and timing of those constructions was the subject of at least some dispute. Furthermore, whether all of the structures concerned were actually on the disputed lands was, in itself, a matter of some dispute and was a subsidiary issue to which Mr Justice Clarke returned later in his judgment.

Mr Justice Clarke examined the legal principles by reference to which a claim in adverse possession must be judged. In Tracy Enterprises Macadam Ltd v Thomas Drury IEHC 381 (High Court, November 24th, 2006, unreported) Laffoy J. conducted a review of the relevant authorities. The dicta of Barron J. in Seamus Durack Manufacturing Ltd v. Considine IR 677 (which, in turn, derived from the judgment of Kenny J. speaking for the Supreme Court in Murphy v. Murphy IR 183, was noted to the following effect:

"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 addition, the practical application of the general principles was noted by Laffoy J. as being in accordance with a passage from the judgment of O'Hanlon J. in Doyle v. O'Neill (High Court, January 13th, 1995, O'Hanlon J. unreported) in which the following was 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."

The general principles seemed to Mr Justice Clarke to be well summed up in a passage from the judgment of Slade L.J. in Powell v. McFarlane 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."

Mr Justice Clarke stated that it seemed to him, therefore, 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. It had been suggested that there were two lines of authority in relation to adverse possession in this jurisdiction. One was said to derive from the judgment of Egan J. in Cork Corporation v. Lynch (High Court, July 26th, 1985, Egan J. unreported) in which the English case of Leigh v. Jack 5 Ex. D. 264 was followed. On that basis, the fact that a statutory body had a future intention to use lands which had been compulsorily acquired for the purposes of a public undertaking was held to defeat the possibility of adverse possession given that the statutory body concerned had no immediate use for the lands until such time as the statutory undertaking was to take place. However, Mr Justice Clarke preferred the reasoning of Barron J. in Durack Manufacturing in which he accepted that factors such as the future intended use of the property by the party with paper title might be a factor in determining whether the necessary intention was present in the party claiming adverse possession but was not otherwise a matter properly taken into account. Mr Justice Clarke said that the judgment of Barron J. was to the effect that it might be inferred that a person, knowing that the paper title owner had no present use for the land but had a future use for it, might occupy it, not for the purposes of possessing it absolutely, but rather for the purposes of making temporary use of it until such time as the future purpose came on stream. In those circumstances the possessing party might not have a sufficient intention to dispossess the owner. In fairness, counsel for the defendants agreed that, on the facts of this case, there was no evidence that the defendants had, for much of the relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch in any event.

Mr Justice Clarke was, therefore, satisfied that he must approach the facts of the case on the basis of there being an onus on the plaintiff to establish a sufficient degree of possession of the land with the requisite intent. Those matters were to be objectively considered. Two other legal issues were of relevance. Firstly it was common case that in order for adverse possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. In Powell v. McFarlane Slade L.J. noted, at p. 472, 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."

Mr Justice Clarke said that it is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It was not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there were any acts of possession by the owner, then adverse possession could not run at the relevant time. This was of relevance because there were a number of actions taken by the defendants which were said to amount to acts of possession. It was necessary to assess whether those acts amounted to possession having regard to the low threshold identified in the authorities. If they did, however, those acts would prevent time running during the period at which they occurred. On the other hand it was common case that once title was extinguished it could be reactivated or reinstated by means of a minimal act of possession. The real question which the court needed to ask, therefore, was as to whether the plaintiff could establish a single continuous 12-year period during the last 30 years in which he was in exclusive possession of the lands in question to such a degree as would be reasonable having regard to the standard of an owner making normal and usual use of lands of the type in question and during which 12-year period no act of possession, however slight, occurred by or on behalf of the defendants. If the plaintiff could do that, then at the end of that 12-year period the defendants' title would have been extinguished and no subsequent act of possession on the part of them would be sufficient to reinstate it. Finally it was also necessary to touch on a line of authorities relied on behalf of CIE which were, perhaps, best noted in Convey v. Regan IR 56 where Black J. said the following:

"The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner's lands, he must show that those acts were done with animus possidendi, and he must show this unequivocally. It is not, in my view, enough that, the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or a profit-à-prendre. When the acts are equivocal - when they may have been done equally with either intention - who should get the benefit of doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner."

Mr Justice Clarke was satisfied that, where the extent of use of lands in respect of which adverse possession was claimed were consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it was appropriate to infer the lesser rather than the greater entitlement.

Mr Justice Clarke said that, having regard to all of those principles, the questions in the case were:

(1) Was there a continuous period of 12 years during which the plaintiff was in exclusive possession of the lands in question to an extent sufficient to establish an intention to possess the land itself rather than to exercise grazing rights or the like over it?;

(2) Was any contended for period of possession broken by an act of possession by the defendants?. If so, time would only commence to run again when that act of possession by the defendants terminated.

Mr Justice Clarke looked first to the alleged acts of possession on the part of the defendants for if they were established, those acts define with some precision the periods during which the plaintiff might, in principle, be able to attempt to establish 12 years continuous possession. The first such question concerns work carried out in renovating Clondalkin Station, which continued for a period of approximately a year and a half in 1993 to 1995. It was clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. Mr Justice Clarke said that he was satisfied that it must necessarily have been the case that, at that time a portion of the lands which were part of the triangular area must have been occupied and used by the defendants for the purposes of the station works. Secondly there was evidence concerning complaints made by a neighbouring land owner who was concerned with the adequacy of the fencing between his lands and the disputed lands. As a result of one of those complaints made to the defendants in 2001, it was common case that the defendants sent out a contractor who repaired the fences in or around that time. Having regard to the very low threshold which, on the authorities, the court was required to apply to acts of possession by the paper title owner, Mr Justice Clarke came to the view that both of the matters amounted to a sufficient act of possession on the part of defendants of the lands in question to negative adverse possession at the relevant times. On that basis it was clear that no adverse possession claim could be maintained in respect of any period subsequent to a time in or about 1993.

If, therefore, the plaintiff was to succeed, he must establish adverse possession sufficient to have extinguished the defendants' title prior to 1993. There was a dispute on the evidence as to the extent of the plaintiff's occupation up to that time. The court accepted that he built a small structure at the top of the land which lasted for approximately one year before it was destroyed by fire, but it seemed clear that all other structures post date 1993. The court was not satisfied that anything more than a small number of horses were on the land in the period up 1993. Such a number of animals being present was at least as consistent with the exercise of grazing rights as with ownership in particular where no significant buildings have been constructed or were in use. Mr Justice Clarke accepted the plaintiff's evidence that he engaged from time to time in putting up some fencing but the court was not satisfied that significant work was done in that regard prior to 1993. While the plaintiff may well have been the predominant user of the lands at all material times the court was not satisfied that he was the exclusive user until the late 1990s.

For all of those reasons, Mr Justice Clarke was not satisfied that the nature and type of occupation exercised by the plaintiff in the period up to 1993 was sufficient to establish adverse possession and it followed that his claim must fail.

Solicitors: Laurence Tierney (Dublin) for the plaintiff; Coras Iompair Eireann for the defendants.

Kieran O'Callaghan, barrister

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