THE  HIGH  COURT

1999 No. 10135P

BETWEEN

JAMES  BATTELLE

AND

MARY  PAULINE BATTELLE

PLAINTIFFS

AND

PINEMEADOW LIMITED

DEFENDANT

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Finnegan delivered on the 9th day of May 2002

Folio 16979 County Dublin comprised a large area at Rathfarnham, County Dublin.  The lands in the Folio were developed principally as housing commencing in 1968 the development being substantially completed by 1971 although further intermittent development continued to take place thereafter.  Premises 101 Fairways, Rathfarnham (“the Plaintiffs’ premises”) was demised by lease dated 2nd December 1968 L.S.D. Limited to Stephen Ashworth Barcroft.  The lease is registered in the Land Registry in Folio 9139L County Dublin.  By agreement for sale dated 12th October 1977 the Plaintiffs agreed to purchase the Defendant’s premises and took a transfer of the same dated the 27th April 1978 and were duly registered as owners on Folio 9139L County Dublin.  The Plaintiffs’ premises front on to Fairways and is one of twelve semi-detached houses and to the rear of the rear[*2]   gardens of these houses is a plot of land of which the Defendant is now the registered owner.  This plot extends from the rear boundary wall of the houses on Fairways to the Owendower river.  While the plot slopes towards the river for some distance close to the edge of the river it falls away steeply.  Based on a survey carried out on behalf of the Defendant I find that the distance between the Plaintiffs’ garden wall to the top of the steep incline was as follows to the north nine metres and to the south eight metres and at turn of Plaintiffs’ rear wall five metres. I note that this survey was carried out after interference with the levels of the plot by the Defendant.  No earlier survey was made available to me.

The first named Plaintiff gave evidence that he his wife and four children moved into 101 Fairways in February 1978.  The area between his rear boundary and the river was overgrown and infested with rats.  At his request Dublin Corporation had laid poison for the rats on several occasions but the problem persisted.  He then endeavoured to find out the owner of the plot attending first at the Land Registry in November 1978 where he was unsuccessful.  He then wrote to Cranford Limited his ground landlords who were in fact the registered owners of the plot.  A representative of Cranford Limited called to his house and spoke with his wife.  The effect of the conversation as reported to him was that Cranford Limited did not know whether or not they owned the plot but as there was no access to it if they did own it they had no further use for it and no interest in it.  Immediately following on this the first named Plaintiff set about cleaning up the area to the rear of his garden and incorporating it into his garden.  He cleared away the briars and fenced the area completing this in the early 1980s.  He erected a two metre high fence along the northern and southern boundaries and a five foot high fence at the top of the bank along by the river.  He planted hundreds of plants and shrubs and completed three walkways inside the fenced area.  He laid on electricity and installed garden lighting.  He laid out garden furniture.  In the mid 1980s he completed a [*3]  water feature in granite comprising a waterfall and pond.  All this was completed by the mid 1980s.  On the evidence of the first named Plaintiff I am satisfied that the Plaintiffs had sole and exclusive possession of the plot incorporated by them into their garden from at the latest 1st January 1985 onwards.  The second named Plaintiff gave evidence as to her conversation with the representative of Cranford Limited.  She said they received the keys of the premises having completed the sale in November 1997 but did not move in until February 1978.  There was a problem with rats and Dublin Corporation laid poison several times.  In 1978 the Plaintiffs decided to find out who owned the land.  They wrote to Cranford Limited and some months later in late 1979 or early 1980 a representative of Cranford Limited called to see the land and she showed it to him.  He had no map.  He was unsure of the ownership of the land but said that Cranford Limited had no interest in the same as it was land locked.  So far as Cranford was concerned they could do what they liked with the land.

Both Plaintiffs were asked in cross examination if they had entered onto the land pursuant to permission from Cranford Limited and in each case they said that they had.  However on their evidence I am satisfied that this is not the case.  Cranford Limited could not say whether or not it owned the land and simply expressed their lack of interest in the same.  The effect of the conversation I am satisfied was that Cranford Limited did not know and did not care whether or not they owned the land because it was of nil value and for this reason was indifferent as to what happened to the land: while the agent signified that Cranford would have no objection to anything the Plaintiffs might do to the land in the circumstances this is not the same as the granting of permission.  I am satisfied on the evidence that the Plaintiffs did not enter on the land pursuant to the permission of Cranford Limited.  The foregoing is sufficient to compel me to find that by the 1st January 1997 the Plaintiffs had acquired title to the lands which they had incorporated into their garden.  The title acquired is title by[*4]   encroachment i.e. the right to possession of the premises in dispute against the fee simple owner for the unexpired portion of the term of their lease of the Plaintiffs’ premises 101 Fairways the freeholders’ entitlement to the land in reversion upon expiration of the lease remaining undisturbed.

The Defendant acquired the interest of Cranford Limited in the plot encroached upon by Transfer dated 20th April 1999.  On the 31st August 1999 the Defendant entered upon these lands with machinery and demolished the Plaintiffs’ garden.  Mr. Finbarr Kerrigan was the owner of a site on Butterfield Avenue which gave him access from Butterfield Avenue on to the entire strip of land to the rear of the Plaintiff’s garden and to the rear of other gardens of the houses on Fairways.  In his evidence he said he walked across these lands two or three times a year.  He never saw the garden as described by the Plaintiffs and indeed as exhibited in photographs and a video shown to me.  However he did see the path along the top of the bank by the river laid by the Plaintiff:  his evidence is that he saw this path in the late 1980s.  Immediately prior to the machinery entering on the lands encroached on by the Plaintiffs he had gained access to the plot incorporated into the Plaintiffs’ garden by stepping over a fallen fence through overgrowth which he cut away.

Mr. Brian Conroy is the promoter of the Defendant and it is clear from discovered correspondence that he was clearly aware of the position in April 1988.  By letter dated 7th April 1998 addressed to his solicitor he stated that he was negotiating the purchase of the entire plot adjoining the river.  The letter contains the following paragraph -

“(c)	Encroaching adjoining landowner.
 [*5] 
One of the neighbours appears to have encroached substantially into “our” riverbank site by extending their garden up to the river (this is usually very clear as the rear gardens of the estate houses are in a line except for the one who has lengthened his garden).

	How is this rectified, and can it be difficult?”

In the light of this I prefer the evidence of the Plaintiffs that the plot in question was in fact enclosed and clearly incorporated into their garden.  I do not accept the evidence of Mr. Kerrigan that he walked through the area in question.  Had he done so it is inconceivable in the light of the evidence before me that he would not have been aware that it was enclosed and that it had been cultivated as a garden.  Compelling in this regard is the fact that he is a forester and one must assume would have no difficulty distinguishing cultivated plants from ordinary wild riverbank vegetation.

In fairness to Mr. Kerrigan however his evidence is that at times when walking through the plot he walked in part at the top of the bank but where this was impassable he walked adjacent to the river bed at the bottom of the bank: having regard to the height of the bank some ten feet, it is possible that he passed by the plot encroached upon by the Plaintiffs without being aware of the cultivated nature of the same.

On the basis of the evidence I am satisfied that the Plaintiffs had the necessary animus posedendi.  I am further satisfied that the disputed plot was enclosed by them not later than the 1st January 1985.  Accordingly by the 1st January 1997 the Plaintiffs had acquired title by encroachment to the lands which they enclosed.  I have not been given an accurate survey of [*6]  the lands in question prior to their disturbance by the Defendants.  Doing the best I can on the evidence available I have set out the dimensions of the plot encroached upon above.  I direct that a map be prepared on the ordinance survey sheet bearing the dimensions which I have set out for the purposes of the same being annexed to the order declaring for the Plaintiffs’ title which I propose to make.  I will hear Counsel as to the precise terms of the declaration which should be made in this case.  

There remains to be determined the amount of damages to be awarded to the Plaintiffs in respect of the trespass by the Defendants upon the Plaintiffs’ lands and I propose fixing a date for a hearing of evidence in relation to the same.