Peter Collen (plaintiff) v Yanny Peters, Niall Lenoach and North Wicklow Times Ltd (defendants)
Land law - Claim of right of way over plaintiff's land - Whether right of way public or otherwise exists - Creation of right of way - Alteration in original right of way -Common law right to deviate - Expenditure of public money as evidence of dedication to public use - Conduct of landowner.
The Circuit Court (before Judge McMahon): judgment delivered June 8th, 2005.
The only methods by which a public right of way can be established are by showing use from time immemorial, by relying on creation by statute or by proving dedication to the use of the public and acceptance of such use by the public. Expenditure of public money on the right of way in question is evidence from which the animus dedicandi (the intent) can be presumed.
Judge Mc Mahon of the Circuit Court so held in dismissing the plaintiff's claim and in granting the second-named defendant the declaration sought that a public right of way existed over specified property.
Peter Bland BL for the plaintiff; Anthony McBride BL for the second-named defendant).
Judge McMahon commenced by outlining the background to the proceedings. The proceedings were commenced by Equity Civil Bill dated September 9th, 2004, in which it was alleged that the first defendant was the author and the third defendant the publisher of an article which wrongfully claimed that there was a right of way, public or otherwise, across the plaintiff's land in Co Wicklow. The second defendant also asserted the existence of such a right and attempted to exercise that right before and after the commencement of proceedings. Mr Lenoach's claim was supported by the publication of a pamphlet which listed the walk across the plaintiff's land as being one of the public walkways in the district of Enniskerry.
The proceedings became somewhat politicised and had been the subject of considerable press comment and various interim orders and undertakings. The authors of the pamphlet had recanted and had signed an agreement altering their original claim and the plaintiff had accepted this. The proceedings against the first and third defendant were not pressed, but the second defendant filed a defence and counterclaim, in which he claimed the existence of a public right of way and sought a declaration to that effect. The single issue for initial determination was whether the public right of way claimed existed over the plaintiff's lands.
Judge McMahon referred to the judgment of O'Dhalaigh C.J. in Connell v Porter , (unreported, S.C., December 8th, 1972), at p.5 which sets out how a public right of way can be established in law:
"Apart from statute, no highway can be created except by the dedication, express or presumed, by the owner of land, of a right of passage over it to the public at large and the acceptance of that right by the public.
"Where there is no direct evidence as to the intention of the owner, animus dedicandi may be presumed either from the fact of public use without interruption, or from the fact that the way has been maintained and repaired by the local authority."
Judge McMahon then cited McWilliams J in Bruen v Murphy (unreported, H.C. March 11th, 1980), at pp. 4 -5, to the effect that a public right of way can be established by showing use from time immemorial, by relying on creation by statute or by proving dedication to public use and acceptance of such use by the public.
McWilliams J. said that the right cannot be acquired by prescription, and that use need not be for any particular length of time, but must such as to imply the assertion of the right with the knowledge and acquiescence of the owner. In the more recent case of Murphy v Wicklow County Council 1 EHC 225 (March 19th, 1999) (the "Glen of the Downs" case), Kearns J. in the High Court cited with approval Bland's Law of Easements and Profits a Pendre (1997), at p 64, as to how a public right of way can be created:
"It is established by showing use from time immemorial, by relying on creation by statute or by proving express or implied dedication to the public of the way by owners of the underlying soil and an acceptance of such use by the public.
"A public right of way is not acquired by prescription, but the same evidence of user may prove sufficient evidence to support a presumption of dedication.
"The user need not be for any particular length of time, but as dedication is a matter of intention, the user must be such as to imply the assertion of the right with the knowledge and acquiescence of the owner of the fee."
Specifically referring to establishment by dedication Costello J. in Smeltzer v. Fingal County Council IR 279, stated at p.287:
"To establish a public right of way what has to be proved is an intent on the part of the owner to dedicate his land to the public, an actual dedication, and acceptance by the public of the dedication."
Judge McMahon said that in many cases there may be no express dedication and the dedication will be inferred from evidence of public use over a period of time, to which use there was no objection. The user must be nec vi, nec clam, nec precario to warrant an inference of dedication. If the use is by force, in secret or with limited permission, no such inference may be justified. Although no specific length of time is necessary, the longer the use the easier it is to infer animus dedicandi.
In the case before the court, the second defendant offered no evidence of express dedication.
Instead, he led evidence from many witnesses of open use for many years, as well as evidence from ordnance survey maps as far back as 1835. He also produced correspondence of an assertion of a public right of way and the failure of the plaintiff's father (and predecessor in title) to deny such a claim.
Mr Lenoach said he lives in the area and was first introduced to the walk in 1981. He indicated that at that time there was a well-worn track that was easy to follow. When it was put to him that the authors of the pamphlet which asserted the right of way had withdrawn their claim, he said he believed they were intimidated by the prospect of legal action and costs.
Ms Barradell gave evidence of using the laneway in the late 1940s and early 1950s, and that many children used to use the lane to go to school. She was never stopped or challenged over the years by anyone.
Mr Barradell was born in 1939. When he was at school from 1946 to 1953 he used the lane twice a day, and later, as a forestry worker, he used the lane to get to work, to church and to visit friends. He acknowledged that when gates were erected on the laneway no one protested, but they did not prevent pedestrians using the laneway.
Another witness, Mr Barry, conceded that it was difficult to find the entrance to the laneway from the road, and that the right of way was not listed in a candidate list of possible rights of way that Wicklow County Council was at one time compiling.
A number of other witnesses gave evidence of use of the laneway over many years.
Mr Bonar-Law, an expert and well-known author on Irish maps, gave evidence in relation to a number of maps produced to the court. He said that although a track corresponding to the route claimed to be a public right of way could be seen on two of the maps, one could not conclude from this that it was indeed a public right of way. He explained that surveyors at the time were more concerned with recording acreage and marking boundaries for tax purposes than with identifying public highways.
In many cases, pathways were omitted unless they led to a particular house. In later maps pathways were left out for fear of initiating legal disputes.
A number of witnesses were also called by the plaintiff. Mr Quinn, who lived in the area until 1971, was of the view that the route over the laneway was for the benefit of locals only.
Mr Kavanagh, who is familiar with literature on hill-walking in Ireland, had never seen any reference to the laneway until the publication of the pamphlet in 2002.
He indicated he had seen hikers on the laneway who he considered strangers. Mr Gantly's land is the first piece of land on the laneway as one leaves the road. He gave evidence that he saw very little usage by anyone of the lane during his occupancy. Mr Clear bought land adjoining Mr Gantly's in 1967. He indicated that no public right of way was registered as a burden on his folio, but as a solicitor, he conceded that that did not determine the matter. He accepted there was an identifiable lane with a walkable surface, but which was not suitable for vehicular traffic.
The essence of the plaintiff's own evidence was that since 1973 he had seen no great numbers of the public using the lane. If asked, he or his father would consent to locals using the route. The plaintiff also expressed concern for the consequence of a declaration that a public right of way exists, the use of his property would be restricted, especially his hobby of clay pigeon shooting, his privacy would be compromised and there would be a need for greater security as well as liability insurance.
Judge McMahon said he had no difficulty in accepting as accurate and truthful the evidence for the most part of all the witnesses in this case. Strange as it may seem, there wasn't a huge conflict between the evidence given by witness for the two sides.
The main evidence given by witnesses for the plaintiff however related primarily to the period after 1967. Looking at the totality of the oral evidence, Judge McMahon said he had come to the conclusion that there was ample evidence that there was a defined right of way as claimed by the second defendant.
The fact that in the maps of 1835 and 1910 a defined track was also recorded clearly indicated that such a track existed on the ground from a much earlier date.
In his view, Judge McMahon said the evidence overwhelmingly established that the owners of the land over which the laneway ran dedicated the way to the public long before the late 1940s and that the public accepted it as a public pedestrian right of way as claimed by the second named defendant.
Judge McMahon said he did not agree with the plaintiff's view that his late father did not dedicate such a public right of way.
When the old footbridge was removed, the Glencree Society wrote to the plaintiff's father to object and in his response, the late Mr Collen wrote that he would replace the footbridge further downstream, that he had checked his insurance and that his public liability policy would cover any claims against him, and that he would put a notice on the bridge saying that "one must use it at one's own risk".
Judge McMahon said that the significance of the 1981 correspondence was that it clearly indicated that a reputable body claimed and asserted in writing a public right of way, and in response, the late Mr Collen did not deny the existence of such a claim, but rather proposed to reinstate the footbridge.
Judge McMahon said that this read as a clear acknowledgement that the right existed, and that Mr Collen had wrongfully interfered with it and wished to rectify the wrong to the public by offering an alternative route to facilitate the continued use over another part of his own land.
Finally, Judge McMahon said the evidence given by several witnesses called for the plaintiff seemed to reflect the view that if a public right of way was declared to exist, it would be regrettable insofar as the tranquillity of the area would be disturbed, the environment would be threatened and security issues would arise.
Judge McMahon said that the court is not concerned with such matters. The court is only concerned with determining a factual issue, and could not, in the instant case, allow its judgment to be influenced by the effects of its determination.
In his defence, the second defendant carefully limited his pleadings to allegations which pertained only to the plaintiff's land and, strictly speaking, the court's determination was confined to holding that there was a public right of way over the plaintiff's land so that when the defendant was using it he was not committing any wrong.
It was clear from the evidence, however, that the new public right of way, varying the old right of way commenced on the public road at the entrance to the laneway, passes down past Mr Gantley's holding, past Mr Clear's land, crosses a stream, proceeds down to Mr Collen's house and then goes to the left down a defined way as far as the newly constructed bridge. Judge McMahon said it was clear that the new footbridge was erected and has always been maintained by Coillte. Such expenditure of public money on the route in question was evidence from which the animus dedicandi can be presumed (Connell v. Porter, supra). Further, whether the action of the plaintiff's father, in submitting to the new route necessitated by his own wrongful conduct, was described as mere variation of the existing highway which the members of the public subsequently accepted, or was clear evidence of a dedication by him of a new public right of way, was immaterial for this case. There was legal authority which could support either model. Moreover, there was a common law "right to deviate" in such circumstances which could equally be relied on to support the public's right over the new route to the reconstructed bridge. In Dawes v Hawkins 8 CB (NS) 848, Erle C.J. made the following comment which was relevant to the case before the court. He indicated that resorting to "the right to deviate" argument might not be required in cases like those before the court, that is, (at p.854): "where the owner of the soil of a highway shuts it up, and sets out a substituted highway over his own land in lieu thereof, which may be express evidence of an intention to give the public some right either absolute or qualified, over the substituted way".
In conclusion, Judge McMahon made an order dismissing the plaintiff's claim, and a declaration that the second defendant as a member of the public, and jointly with all other persons, is entitled as of right to the beneficial use, exercise and enjoyment of a common public highway to go, pass and repass on foot at all times insofar as the said highway traverses the lands comprised in folios 7072 and/or 9330F of the Register of Freeholders, County Wicklow, the route of which was more particularly shown in the map annexed to the defence and counterclaim.
[This case is under appeal]
Solicitors: Augustus Cullen & Son ( Wicklow) for the Plaintiff; Ken J. Byrne & Co.( Dublin ) for the second named defendant.
P.J.Breen, barrister.