Supreme Court allows appeal on public right of way, awarding partial costs to appellants for three of four routes.

THE SUPREME COURT

[Appeal No: 089/2011]

Denham C.J.

Murray J.

Fennelly J.

McKechnie J.

MacMenamin J.

BETWEEN:

EDWARD WALSH and CONSTANCE CASSIDY

Plaintiffs/Appellants

- and –

THE COUNTY COUNCIL FOR THE COUNTY OF SLIGO

Defendant/Respondent

Ruling on Costs by the Court delivered by Denham C.J. on the 2nd day of April, 2014

1. Arising out of its judgment delivered on 11th November 2013, counsel for the appellants and for the respondents have addressed

the Court on the question of costs and on the terms of the order to be made by the Court.

2. The appellants submitted that the Court should make a declaration that their lands at Lissadell, County Sligo are not subject to any

public rights of way save for one on a route from point F on the map attached to the judgment to a point on the coast corresponding

to the location of the former Lissadell House which they designate as G. They also submitted that the action should be remitted to

the High Court for further consideration of the question of the damages to which they are entitled against the respondent. Finally,

they submitted that they should be awarded the costs of the proceedings both in the High Court and in this Court. On further

consideration, during the hearing of the matter, the appellants withdrew their application to have the action remitted to the High

Court.

3. The respondent submitted that:

1. The Court has not determined whether there is a public right of way over that part of route B-E called the Burrows

referred to in the judgment and that the Court should now declare that there is a public right of way over that part of

route B-E;

2. That the Court was in error in finding that there was no evidence of the existence prior to 1885 of another part of

route, called Farm Avenue, and that it should reconsider that finding;

3. That the Court was in error in finding that the part of route B-E called the Burrows was not part of the former or old

coastal route, that it is in fact part of that route, and that it should now declare that there is a public right of way over

that route.

4. The Court has considered the submissions of the parties on these issues and rules as follows.

5. The Court is satisfied that it follows from the judgment of 11th November, 2013, that the public right of way from point F should

run west for a distance of 263 metres to a point where the former Lissadell House was situated along the coast. That is point F as

indicated on the map submitted by the appellants and attached to this Ruling. The declaration should be in those terms. The parties

should endeavour to agree on the location of that point. There will be liberty to apply in the event of inability to agree.

6. The Court is satisfied that its judgment of 11th November, 2013, made no distinction between different parts of route B-E and it so

rules. All references to route B-E were intended to and did in fact relate to the entire of route B-E, including the part called the

Burrows.

7. The High Court judgment made no specific findings with regard to the origins of the Farm Avenue. The judgment of the 11th

November concluded that there was no evidence of the existence of the Farm Avenue prior to the appearance of the Ordinance

Survey Map of 1885, noting that it did not appear on the Ordinance Survey Map of 1837. Nor was it shown on the Admiralty Chart of

1852, with corrections to 1859. The respondent called no evidence as to the date of construction of the Farm Avenue. Its expert

historical witness gave no evidence regarding the period after 1840. Nor did the respondent adduce or refer the Court to any

evidence tending to show that the original coastal route had been diverted on to the Farm Avenue, a matter considered and dealt

with in the judgment. The references made by the respondent to the opening of the case by counsel in the High Court and an answer

of the first-name appellant in cross-examination cannot displace the findings of the Court.

8. The respondent has not referred to any evidence that the Burrows corresponds to the old coastal route or to any diversion of the

old coastal route onto that route. Since there is no public right of way over the Farm Avenue, there could not, in any event, be any

public right of way over the Burrows: there would be no terminus ad quem. Unlike route F-G, it would not lead to a place of natural

beauty. The only public user of the Burrows route was found by the learned trial judge to be limited and, in any event, to be largely

by licence. That, being the only public user of that route as found by the High Court, was held by this Court, to be insufficient to

sustain an inference of dedication.

9. For these reasons, the Court rejects the submissions of the respondent regarding the terms of the order. It will make an order

allowing the appeal insofar as the High Court made declarations that there are public rights of way over routes B-C; B-D; B-E and

that part of route A-B which is not the property of the appellants. In substitution for the order of the High Court, it will make an order

that there is a public right of way over the route designated with the letters F-G on the same map, a copy of which is attached to

this Ruling.

10. With regard to costs, the Court notes that the appellants sought four distinct and separate remedies in respect of four distinct

and separate routes over their lands, that is to say, a separate declaration in respect of each of the four routes, that none of them

were subject to a public right of way. As set out in the preceding paragraph, the appellants have succeeded in relation to three of

the four declarations sought and failed in relation to part of the fourth, where the Court has found that there is a public right of way

over some of their lands. Taking all the circumstances of this case into account, the Court will award to the appellants three quarters

of their costs both in the High Court and the Supreme Court.