Supreme Court dismisses adverse possession appeal where legal owner's construction acts prevented limitation period from running.

THE SUPREME COURT

[Appeal No. 2007/295]

Laffoy J.

Charleton J.

O’Malley J.

BETWEEN

DENNIS DUNNE

PLAINTIFF/APPELLANT

AND

IARNRÓD ÉIREANN/IRISH RAIL AND

CÓRAS IOMPAIR ÉIREANN

DEFENDANTS/RESPONDENTS

Judgment of Ms. Justice Laffoy delivered on the 28th day of July, 2016

Focus of judgment

1. In a report published by the Law Reform Commission in 1989 entitled “Report on Land Law and Conveyancing Law: (1) General

Proposals”, LRC 30 – 1989 (Dublin, 1989) it was stated (at para. 52):

“The doctrine of adverse possession has been said to be one of the most controversial features of modern land law. The

modern doctrine of adverse possession is provided for in the Statute of Limitations 1957.”

In the report certain amendments to the Statute of Limitations 1957 (the Act of 1957) were proposed. The operation of the doctrine

of adverse possession was reviewed again by the Law Reform Commission thirteen years later and the resultant report entitled

“Report on Title by Adverse Possession of Land”, LRC 67 – 2002 (Dublin, 2002) recommended further changes to be implemented by

statute. Three years later in the report entitled “Reform and Modernisation of Land Law and Conveyancing Law”, LRC 74 – 2005

(Dublin, 2005), the changes which had been recommended in 1989 and 2002 were incorporated in the draft Land and Conveyancing

Bill published in the report. In due course, most of the provisions in the draft Bill were enacted into law in the Land and Conveyancing

Law Reform Act 2009 (the Act of 2009), which came into effect on 1st December, 2009. However, the provisions of the draft Bill

which had been proposed in 1989 and in 2002 to implement the recommendations made in relation to limitations of actions and

adverse possession were not included in the Act of 2009 and since then have not been enacted into law. Accordingly, the legal

principles which apply to the issues which arise on this appeal have not changed since the judgment of the High Court in these

proceedings was delivered on 7th September, 2007 by Clarke J. (the trial judge) ([2007] IEHC 314).

2. Around the time the trial judge delivered judgment, almost nine years ago, there was a considerable amount of academic and

practitioner comment on the then state of the law on adverse possession in this jurisdiction, to some extent, it would seem, fuelled

by concerns arising from proceedings in the European Court of Human Rights in J.A. Pye (Oxford) Limited v. United Kingdom. The

judgment in that case was given by the Grand Chamber on 30th August, 2007 ((2008) 46 E.H.R.R. 45). The Grand Chamber ruled that

the doctrine of adverse possession as then applied in the United Kingdom did not infringe the European Convention on Human Rights.

3. While the appellant on the appeal, who was the plaintiff in the High Court proceedings, was legally represented by solicitors and

counsel in the proceedings in the High Court, he filed the notice of appeal against the judgment and order of the High Court in person

and he appeared in person on the hearing of the appeal. The appellant filed written submissions in this Court on 29th January, 2016.

Having regard to the format and content of those submissions, it is reasonable to assume that the appellant did not have the benefit

of professional legal advice in preparing them. One element of the written submissions has been interpreted by counsel for the

respondents (sometimes hereafter collectively referred to as CIÉ) in the written submissions filed on behalf of the respondents on

16th March, 2016 as possibly being a challenge to the legal principles applied by the trial judge in his judgment. It is that matter,

which will be outlined later, which is the focus of this judgment.

4. As regards the other issues which arise on this appeal, I am in agreement with the judgment to be delivered by Charleton J. I am

also grateful to be in a position to be able to rely on his outline of the factual background and the legal and factual context underlying

all of the issues in the case, so that this judgment should be read in the light of that outline.

5. To put in context the matter on which the judgment focuses, I propose first outlining the legal principles applied by the trial judge

and summarising the manner in which he applied them to the facts.

Legal principles and their application to the facts

6. In section 4 of his judgment the trial judge outlined the relevant legal principles and in section 5 he applied the law to the facts of

the case.

7. The trial judge (at para. 4.3) stated that the general principles seemed to him to be well summed up in a passage from the

judgment of Slade J. (as he then was) in Powell v. McFarland [1979] 38 P & C.R. 452 at p. 470. The trial judge then quoted three of

the four principles outlined by Slade J. when delivering judgment in the Chancery Division of the English High Court, which were in the

following terms:

“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of

the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe

possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be

shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession,

though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a

person intruding on that land cannot both be in possession of the land at the same time. The question what acts

constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of

the land and the manner in which land of that nature is commonly used or enjoyed.”

The trial judge then quoted, and suggested as being to like effect, the passage from the judgment of Lord O’Hagan in Lord Advocate

v. Lord Lovat (1880) 5 App Cas 273 at p. 288 quoted by Charleton J. at para. 10 in his judgment. He then summarised the position (at

para. 4.5) as follows:

“It seems to me, therefore, that the nature of the possession which must be established is one which must be objectively

viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to

put those lands to.”

In my view, that statement is indisputable.

8. Having addressed a controversy arising from a conflict between two authorities in this jurisdiction dating from the 1980s, to which I

will return, Clarke J. stated (at para. 4.9) that it was common case on the proceedings before him that, in order for adverse

possession entitlements to accrue, a continuous possession of the land for a period of twelve years must be established. He then

quoted the following passage from the judgment of Slade J. in Powell v. McFarlane (at p. 472), which was addressing the concept of

animus possidendi. Slade J. stated:

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to

possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an

owner in possession will be found to negative discontinuance of possession.”

Although not quoted by the trial judge, Slade J. went on to state that such position is quite different from a case where the question

is whether a trespasser has acquired possession.

9. Substituting the expression “minimal acts” for “slightest acts” used by Slade J., the trial judge continued (at para. 4.8):

“It is, therefore, important to emphasis that minimal acts of possession by the owner of the paper title will be sufficient to

establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not

one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same

basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish

possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its

characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of

the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by

the owner, then adverse possession cannot run at the relevant time.”

The trial judge then identified the relevance of the foregoing as arising from the respondents’ contention that a number of actions

taken by CIÉ amounted to acts of possession. He identified his task as assessing whether those acts did amount to possession having

regard to the low threshold identified in the authorities, so that, if they did, they would “prevent time running during the period in

which they occurred”, that is to say, running in favour of the appellant and against the respondents.

10. In the next paragraph (para. 4.9), the trial judge made the following observation:

“On the other hand it is common case that once title is extinguished it cannot be reactivated or reinstated by means of a

minimal act of possession.”

However, later in his judgment, the trial judge concluded that the title of the respondents was not extinguished, so that statement,

on the facts of the case, is theoretical.

11. Returning to the controversy referred to earlier, the trial judge stated (at para. 4.6) that it had been suggested that there were

two lines of authority in relation to adverse possession in this jurisdiction: one derived from the judgment of Egan J. in the High Court

in Cork Corporation v. Lynch, which was delivered in the High Court on 26th July, 1985 and was subsequently reported as [1995] 2

I.L.R.M. 598; and the other derived from the judgment of Barron J. in the High Court in Durack Manufacturing Limited v. Considine

[1987] I.R. 677. In a nutshell, the distinction between the two authorities related to the approach to be adopted to a situation where

the legal owner was making no use of the lands when the person claiming adverse possession entered the lands but had future plans

for the use of the lands. The trial judge stated (at para. 4.7) that he preferred the reasoning of Barron J. –

“. . . in which he accepted that factors such as the future intended use of the property by the party with paper title

might be a factor in determining whether the necessary intention was present in the party claiming adverse possession

but was not otherwise a matter properly taken into account.”

While he elaborated on his understanding of the reasoning of Barron J., he concluded his observations on the controversy by stating

(at para. 4.7):

“In fairness, counsel for CIE agreed that, on the facts of this case, there was no evidence that CIE had, for much of the

relevant period, an identified future purpose for the lands that could have allowed reliance on Cork Corporation v. Lynch

in any event.”

That being the case, as is pointed out by Charleton J. in his judgment (at para. 12), the controversial issue does not arise for decision

on this appeal.

12. The final legal principle considered by the trial judge was addressed by reference to the passage from the judgment of Black J. in

Convey v. Regan [1952] I.R. 56, which, as the trial judge noted, was followed by the Chancery Division of the English High Court in

Powell v. McFarlane (at p. 479), and which is quoted by Charleton J. in his judgment at para. 16. The trial judge went on to state (at

para. 4.11):

“I am, therefore, satisfied that, where the extent of use of lands in respect of which adverse possession is claimed are

consistent equally with establishing an easement or profit-à-prendre as with full ownership, then it is appropriate to infer

the lesser rather than the greater entitlement.”

That principle, in my view, is well established and cannot be disputed.

13. Turning to the application of the legal principles to the facts before him, the trial judge first considered what he referred to as the

“alleged acts of possession on the part of CIE” and he found (at para. 5.4) that they amounted “to a sufficient act of possession on

the part of CIE of the lands in question to negative adverse possession at the relevant times”. He expressly did so having regard to

what he described as “the very low threshold” which, on the authorities, he was required to apply to acts of possession by the paper

title owner. He followed that finding by the following passage (at para. 5.5), which is quoted in the appellant’s written submissions:

“I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one

end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so

that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me

that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times.”

That passage is introduced in the appellant’s written submissions by the words:

“Clarke J. seemed to state that these acts were still ‘minimal’ . . .”

14. Following on from what is quoted in the preceding paragraph, the trial judge concluded (at para. 5.5) that no adverse possession

claim could be maintained in respect of any period subsequent in time to in or about 1993 when the acts, which he was satisfied

amounted to a sufficient act of possession on the part of CIÉ, commenced. The trial judge then considered whether the appellant had

established adverse possession sufficient to have extinguished CIÉ’s title prior to 1993. On his analysis of the evidence which was

before him, he concluded (at para. 5.11) that he was not satisfied that that the nature and type of occupation exercised by the

appellant in the period up to 1993 was sufficient to establish adverse possession. It was on that basis that he found that the

appellant’s claim must fail.

15. It is against that background that I will now consider the matter raised in the appellant’s written submissions which is the focus of

this judgment and the respondents’ counsel response to it.

Matter raised by appellant and respondents’ response

16. Once again, it is important to emphasise that the appellant did not have legal representation on the appeal. In the written

submissions filed in this Court, he addressed certain matters under the heading “Title”, which related to the respondents’ paper title,

and under the heading “Adverse Possession”. He then set out certain provisions of the Railway Act 1844. Next, he quoted the

passage from the judgment of the trial judge at para. 5.5 which I have quoted above and introduced it in the manner indicated earlier,

by suggesting that the trial judge seemed to state that the acts of the respondents were still “minimal”. Thereafter the following was

stated:

“In conclusion, Clarke J.’s judgment represents on the one hand a most welcome clarification of the law on establishing

adverse possession. On the other hand, the test for ‘ceasing adverse possession’, if the author’s view is correct, would

appear to be a novel formulation hitherto unexplored. There is a strong legal foundation for the approach, because of the

presumption that the paper owner intends to take possession. However, should the same test be applied for re-

possession, once possession has been lost or abandoned? Or is it right that minimal or coincidental acts that look like

possession or an intention to possess are enough to stop time running, even though an intention to re-possess might not

exist?

With the threshold for re-possession so low, and the test so favourable to paper-owners, it is difficult to see how a possessor can

win, short of the paper-owner being unaware of his title, or being abroad, or having absolutely no interest over the land. Perhaps,

however, this is the correct scope for the doctrine. Perhaps if this had been the law in the U.K., the human rights dimension would

never have been in question.”

On reading that statement, it was reasonable to surmise that, in making it, the appellant was quoting observations by a legal

practitioner or an academic on the judgment of the trial judge. Although the source was not identified by the appellant in the written

submissions, fortunately it has been possible to identify the source as an article by Nicholas McNicholas, B.L. entitled “Recent

Developments in Adverse Possession” published in the Bar Review (Volume 12, Issue 6, December 2007).

17. In addressing the appellant’s submission on that point, counsel for the respondents noted that the trial judge had stated in his

judgment (at para. 3.5):

“In fairness to counsel on both sides, there was no significant dispute between them as to the principles which I should

apply.”

Nonetheless, counsel for the respondents addressed the references in the appellant’s submission to “ceasing adverse possession” and

to “a novel formulation” allegedly applied by the trial judge and to the questions raised in relation to the test to be applied “for re-

possession, once possession has been lost or abandoned”. Counsel for the respondents submitted that the appellant’s submission is

misconceived, pointing out that legal possession is not lost or abandoned until a person claiming to be in adverse possession can

demonstrate twelve years of exclusive possession with the necessary intent and, until that point is reached, a person claiming to be

in adverse possession remains a trespasser. Further, it was submitted that the question of “intention to re-possess” by the owner

does not arise, “as such person is already in legal possession insofar as they have title to the lands”.

18. From the perspective of this Court on the appeal, there is a proper practical approach to the questions raised in the appellant’s

submission in relation to the test to be applied “for re-possession, once possession has been lost or abandoned”. It is that, as no

issue arises on the appeal as to the test to be applied for re-possession, because of the findings of the trial judge, with which I

agree, that the appellant had not established adverse possession by 1993 and that from 1993 onwards the actions of the

respondents were sufficient to negative adverse possession. Accordingly, it is unnecessary for this Court to comment on the relevant

test.

19. It is only fair to record that counsel for the respondents, reading the thrust of the appellant’s submission as being to challenge

the statement of the trial judge that certain minimal acts of the legal owner are enough to stop time running, submitted that this is

not a novel formulation and that it is well supported by existing authority, giving as an example, inter alia, the reference to “slightest

acts” in the judgment of Slade J. in Powell v. McFarlane. Reference was also made to the fact that the judgment of the trial judge

has been applied or cited with approval in subsequent High Court judgments in this jurisdiction, referring, in particular, to the judgment

of Hogan J. in Dooley v. Flaherty [2014] IEHC 528. It was also pointed out that it was also cited in the judgment of Horner J. in the

Chancery Division of the Northern Ireland High Court in McCann v. McCann [2013] N I Ch. 7, in which Horner J. quoted the passage at

para. 4.9 quoted earlier (at para. 9).

20. Although the trial judge undoubtedly concluded that the respondents had only to meet a very low threshold to establish continued

possession and that the acts of possession relied on by the respondents fell into the “minimal” class, the crucial factor is the nature

of such acts. Those acts were of a different nature to the acts which in Feehan v. Leamy [2001] IEHC 23, a decision of the High

Court (Finnegan J.) which has been controversial on this point, were found to be adequate to stop the limitation period running. There

the acts of possession merely involved the legal owner visiting the land in issue on a number of occasions each year, and, having

parked his car, looking over the hedge or the gate into the lands in issue. The acts of the respondents in this case, on the other

hand, involved, in the course of the renovation and modernisation of Clondalkin railway station, incorporating a portion of the land in

dispute in the railway station and building new fences and the like, to the extent that it was accepted by the appellant in evidence

that the workers on behalf of the respondents were on the disputed land for a year and a half from 1993 to 1995. Subsequently, a

contractor retained by the respondents entered on the disputed land in 2001 to repair fences in response to a complaint from an

adjoining owner.

21. It is not beyond the bounds of possibility that in some future case a different view may be taken of the effect of the legal owner

of land merely gazing over a wall or fence on to the land several times in a year and that such action may not be found to be

sufficient to prevent a trespasser on the land being in adverse possession. However, it is not for this Court to speculate on whether

that may happen, nor whether there may be other types of action on the part of a legal owner of a more minimalist nature than the

actions by the respondents in this case, which could give rise to a similar finding. For present purposes, the determining feature is

that the finding of the trial judge on the application of the relevant legal principle to the actions of the respondents from 1993

onwards is a correct finding.

Outcome of the appeal

22. The appellant has not established that the trial judge did not apply correct legal principles to the resolution of his claim against

the respondents that he has acquired title by adverse possession to the lands in dispute, nor has he established that the application

by the trial judge of the relevant legal principles to the factual situation was erroneous. Accordingly, the appropriate order is an order

dismissing the appeal.

23. Having said that, although none of the aspects of the law which have given rise to controversy in the past have had a bearing on

the outcome of this appeal, it must be acknowledged that the appeal illustrates that the law on the doctrine of adverse possession is

probably still as controversial as it was in 1989. There would seem to be a need for a review of the recommendations made by the

Law Reform Commission in 1989, 2002 and 2005 with a view to bringing clarity to the law in this area.