RIGHT OF WAY:MR JUSTICE McMahon examined a number of incidents which Edward Walsh and Constance Cassidy said indicated there was no right of way on the avenues in Lissadell prior to their purchase of the house and estate in 2003.
In 1993 estate manager Nicholas Prins wanted to insure some “new age travellers” camped on a public road towards the sea did not trespass and he dumped rubble at the Forge entrance. Locals objected and gathered with shovels to remove the obstruction, but councillor Joe Leonard intervened and phoned the owner, Sir Josslyn Gore-Booth, in England. His evidence was that Sir Josslyn said he would “speak to Nicholas” and the rubble was removed.
A large tree fell on to the main avenue in 2002 and remained there for many months. However, Mr Leonard said people were able to drive around it, and it did not prevent access. He and another local met Sir Josslyn, who was resident in the house at the time, and he said he would “see what he could do”. The tree was removed shortly afterwards.
Mr Justice McMahon said neither of these events supported the plaintiffs’ case, rather they were supportive of the defendant’s claim that rights of way existed and these were acknowledged. Rights of way were explicitly claimed in both cases and Sir Josslyn did not challenge the claims in either case, something which one would have expected him to have done if he believed that no such rights existed.
The statutory declaration given by Sir Josslyn at the closing of the sale to the plaintiffs was carefully crafted by his lawyers, “and cannot be interpreted under any circumstances as a clean bill of health”.
Mr Justice McMahon also examined the 1967 Sligo draft development plan, which included the preservation of the right of way to the beach at Lissadell. The plaintiffs’ predecessors in title did not seek to appeal this, he said.
Mr Justice McMahon expressed concern that the law relating to rights of way was such as to require a “legal fiction” inferring “dedication” by the land-owner of such a right. The time had come to find that where there was strong evidence of long use, a public right of way is created.