COURT REPORT:THE PUBLIC has a right of way on the avenues on Lissadell Estate in Co Sligo, the High Court has ruled.
Mr Justice Bryan McMahon rejected a claim by its owners, barristers Edward Walsh and his wife Constance Cassidy, that no such right of way existed.
Sligo County Council affirmed the existence of rights of way in opposition to the couple’s claim.
Mr Walsh and Ms Cassidy brought the claim following local objections to the erection of gates on the entrances to the estate.
They sued Sligo County Council, which had passed a resolution in December 2008 supporting the existence of a right of way, claiming slander to their title to Lissadell, and improper interference with their business interests.
Mr Justice McMahon said a right of way can be created by use from time immemorial, by statute, or by dedication by the full owner of the land. This case concerned a claim of public rights of way.
The onus lay with the defendant in this case to show that the previous owner of the lands dedicated a right of way across his lands to the public.
The council called 25 witnesses to give evidence as “users as of right”.
Most of them were from the townlands immediately surrounding Lissadell and many had strong family connections to the estate.
All of them were adamant that gates to the estate, when they existed previously, were never closed and never prevented them accessing or traversing the avenues, except for specific occasions.
“The picture that emerges from the evidence of these witnesses was that since the early 1950s at least, many people, who had no specific business or other reason to be there, entered and exited the estate through all four entrances,” Mr Justice McMahon said.
Some used the avenues as through roads, others to walk or cycle around them, and many came to the estate to access the beach at the Water Wall.
The former manager of the estate, Nicholas Prins, admitted this and said some people parked their cars at or near the Water Wall, which he said he did not mind as long as they did not cause an obstruction. The witnesses gave evidence they saw many other people using the avenues in similar fashion in daylight hours.
Many of these witnesses said they knew the former owners, the Gore-Booths, to see and never experienced any unpleasantness or resentment from them or their estate managers at the time.
“I have no hesitation in concluding that this acceptance by successive managers amounted to acquiescence on behalf of the owners,” Mr Justice McMahon said.
Mr Prins was the main witness for the plaintiffs, and he gave evidence of finding the estate very run down when he took over in 1987.
He felled trees, installed cattle grids, erected piers on the perimeters of the estate, put up gates at two locations, blocked one entrance with rubble in 1993, and put a chain across the slipway and along the sides of the house. He gave evidence of closing the gates during woodcock shoots and tree-felling.
“It is very significant that in explaining these interventions he never suggested that their purpose was to prevent the public from coming on to the estate or to interrupt the clear user that was established,” Mr Justice McMahon said.
He said that the evidence showed the right of way involved passing and re-passing on foot, on bicycles and in motor vehicles, not with large agricultural or commercial vehicles, and in daylight hours.
He ruled that the rights of way were available to the public only during daylight hours, and that vehicular traffic should observe speeds which were reasonable in the circumstances.
In particular, the right of way never extended to “boy racers”, whose presence was a matter for complaint by the Gore-Booths in earlier years.