Court backs owner of home that 'disappeared'

 

A MAN whose Tory Island holiday home “disappeared” while he was abroad is entitled to a new house or the equivalent market value of one, a High Court judge has ruled.

Filmmaker Neville Presho (61), from Hollywood, Co Down, had claimed his house on Tory Island, off the Donegal coast, was demolished and used as a car park by an adjoining hotel. He sued the hotel, Ostán Thoraigh Comhlacht Teoranta, and its owner Patrick Doohan, for trespass and physical damage to the 19th-century stone house.

Mr Presho bought the house in 1982 and left for New Zealand in 1988. He returned in 1994 and said he was “astounded” to find a car park for the hotel where his house once stood.

Mr Justice Roderick Murphy yesterday ruled that Mr Presho was entitled to damages for trespass and interference with his property. Mr Justice Murphy accepted the house was a building of strong and durable nature and said Mr Doohan’s claim the property “simply collapsed” a year after a fire due to stormy conditions or by unknown persons removing stones “lacked credibility”.

He ruled there was trespass in relation to the use of a septic tank on the property for the hotel. Whatever the cause of the destruction of the house, Mr Presho was entitled to rebuild the house and the use of the septic tank, the judge said.

An equitable remedy would not be the reinstatement of the original house but the provision of “a comparable dwelling” on Tory Island or the open market value of a comparable dwelling, the judge said. He adjourned to October the issue of which of those options should be chosen.

The court heard Mr Presho’s house was damaged by fire in unexplained circumstances on January 14th, 1993. It was gradually removed in the following nine months and when Mr Presho returned from New Zealand in July 1994, there was no trace of it.

Mr Justice Murphy said photographic evidence of the site pointed to the used of levelling equipment rather than storm collapse, as did photos of rubble from it. The only person on the island with a JCB was Mr Doohan, the judge said.

Mr Presho claimed Mr Doohan had workmen living in the house in 1992 and 1993 even though no permission had been given for this, the judge noted. He found it was not possible to make any finding of fact on claims Mr Doohan had offered a builder IR£1,000 to demolish the house, which was denied by Mr Doohan.

While accepting Mr Doohan’s evidence that he had nothing to do with the fire, the judge found, on the balance of probability, that the fire had been started maliciously and was exacerbated by the presence of combustibles which the builder had placed in the house.

The judge also found there was no evidence to warrant a prosecution by gardaí in relation to the destruction of the house. The absence of statements from island inhabitants “regarding what should have been obvious to all” was significant, he added.

There was no evidence the house was demolished overnight although it was common case that Mr Doohan had accidentally reversed his JCB into the roofless house and later cleared away rubble on the roadway between the hotel and the house on behalf of Donegal County Council, the judge said.

While there was a lack of direct evidence and a lack of co-operation with the Garda investigation into the matter, the removal of the house was gradual and it “did not disappear in an instant”.