Judgment
Title: | Walsh & anor -v- Sligo County Council |
Neutral Citation: | [2013] IESC 48 |
Supreme Court Record Number: | 89/2011 |
High Court Record Number: | 2009 262 P |
Date of Delivery: | 11/11/2013 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Murray J., Fennelly J., McKechnie J., MacMenamin J. |
Judgment by: | Fennelly J., McKechnie J., MacMenamin J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | Fennelly J., McKechnie J., MacMenamin J. | | Denham C.J., Murray J. | |
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THE SUPREME COURTAppeal No. 089/2011
Denham C.J.
Murray J.
Fennelly J.
McKechnie J.
MacMenamin J.
EDWARD WALSH and CONSTANCE CASSIDY
Plaintiffs/Appellants
- and –
THE COUNTY COUNCIL FOR THE COUNTY OF SLIGO
Defendant/Respondent
Judgment, delivered the 11th day of November 2013, by Mr Justice Fennelly, Mr Justice McKechnie and Mr Justice MacMenamin.
Introduction
1. A public right of way is a highway. The general public has the right to pass and repass at all times across the land over which the way runs.
2. The way may be claimed to run over the avenues of a great landed estate, such as Lissadell. It may also pass over the fields of a farm, large or small; over a suburban garden (see Bruen v Murphy and others (High Court unreported 11th March 1980)); or along a passage-way leading into a public house (see Connell v Porter [2005] 3 I.R. 601).
3. Even if it is not maintained by the public road authority, a public right of way is in law a highway. It confers the unrestricted right of the general public to pass and repass at all times of the day or night, and at all seasons without notice to, or permission from, the landowner over whose land the way runs.
4. The landowner must yield to and respect the rights of the public and must accept any consequent invasion of his right to undisturbed privacy and the enjoyment of his property.
5. The law of public rights of way is of ancient origin. Except where it can be shown to have existed from time immemorial, or is created by statute, a public right of way is established by proof that the landowner dedicated the way to the public. Dedication may be inferred from a consideration of all the circumstances. In Scotland, a public right of way, like a private right of way in our law, may be created by prescription alone. Dedication is not necessary (see paragraphs 68 and 69 below). In England, prescription has been introduced by statute since 1932. In that jurisdiction there has been much modern legislation providing for public rights of access to private paths and lands.
6. The common law of dedication continues in force in Ireland. It requires consideration of all the facts: the duration, extent, nature and context of public user, and the possibility of inferring or presuming that the landowner has dedicated the way to the public. Mere proof of public user does not suffice to create the right.
7. These legal principles ensure that an appropriate balance is struck between public and private rights. Depending on the circumstances, user may provide compelling evidence of dedication to the public, or may more properly be ascribed to tolerance or liberality of the landowner. The landowner will not, by respecting a tradition of generosity and openness be deemed to have encumbered his land with public rights. The law does not convert such acts into legal obligations.
8. In the present case, the respondent, as the County Council for the County of Sligo, claims that public rights of way affect all the avenues in the Lissadell Estate. The High Court trial proceeded over some 57 days. The Court heard evidence of a large number of witnesses of fact, as well as expert witnesses, regarding the history of the estate and of its former owners, the Gore-Booth family and the use by the public of the ways through the estate.
9. The learned trial judge, McMahon J., delivered an impressively comprehensive judgment. The history is complex. Each of the routes through the estate has its own particular history. The judgment provides such a complete statement of the facts that this Court is enabled to rely on it without question, though, in a number of important respects, it draws its own inferences. It contains comprehensive consideration of the law regarding public rights of way. The learned judge also expresses his own views of the law, often trenchantly stated.
10. A map was appended to the High Court judgment. The same map, as referenced therein, is used in this judgment. This map illustrates each of the routes under discussion. Out of deference to the meticulous and detailed judgment under appeal, this judgment is necessarily very lengthy. It will deal with the following issues:
a. The history of the estate;
b. The law regarding public rights of way, including:
i. The time at which dedication takes place;
ii. Incapacity to dedicate on the grounds of lack of title;
iii. The nature of public user as of right;
iv. Who may maintain a claim for a public right of way.
c. The history of each of the four routes through the estate:
i. The general evidence regarding all the routes:
ii. The history of route A-B from Crushmore through the Coillte lands;
iii. Route B-C, the Main Avenue;
iv. Route B-D, Forge Avenue;
v. Route B-E, Farm Avenue;
vi. The coastal route: the maps and the Grand Jury presentments;
(See map for illustration of each of the routes.)
d. An overview of the High Court judgment:
i. The capacity in which the respondent made its counterclaim;
ii. Treatment of the law regarding dedication;
iii. Treatment of acts of opposition from the landowner;
iv. Admission of hearsay evidence.
e. The period of wardship of Sir Michael Gore-Booth;
f. The period of occupation by Sir Josslyn after 1982.
g. The finding of dedication by Sir Robert and Newcomen Gore-Booth in 1857 to 1861;
h. Treatment of Sir Robert’s intentions regarding privacy of the demesne;
i. Whether a declaration, by the High Court, should have been made affecting Coillte lands;
j. Whether a declaration, by the High Court, should have been made granting a right of parking on the appellants’ lands.
History of Lissadell Estate
11. Lissadell was one of the major Anglo-Irish landed estates. Its history can be traced to Elizabethan times. It was, prior to its purchase by the plaintiffs, the home for centuries of the Gore-Booth family. At its greatest extent, the estate comprised some 32,000 acres of land comprising of the great house and demesne as well as tenanted lands. For large parts of its history, the title to the estate was entailed and held under strict settlements. Save for some short identifiable periods, during the entire period from 1800 until 1982, the owner in possession for the time being was a tenant in tail male.
12. The present case is concerned with the claim by the respondent, the County Council of the County of Sligo, that the public enjoys rights of way to traverse all the roads through the demesne lands which remain after the disposal, in two stages, of the great bulk of the estate under the Land Acts.
13. Lissadell is on the coast overlooking the sea between the town of Sligo and Raghley Head to the west. It is within view of Ben Bulben and less than five kilometres from Drumcliff.
14. The Gore-Booth family originally lived in Ardtermon Castle to the west of the lands involved in the present case. The original mansion house at Lissadell was built by the 1st Baronet, whose name was actually Sir Booth Gore, between 1750 and 1760 on the seafront near the site of what are now known as the Alpine Gardens. That house was demolished in turn about 1840.
15. A number of expansions and improvements were undertaken in the early years of the nineteenth century, partially during the tenure of Sir Robert Newcomen Gore-Booth, the 3rd Baronet, but more significantly during that of Sir Robert Gore-Booth, the 4th Baronet, who was born in 1805. Sir Robert was chairman of the Grand Jury, (predecessor of the local authority), a position which made it possible for him to influence changes to roads affecting the estate. Changes to roads and avenues are described later. A material issue in the case was a Grand Jury presentment in 1814 for work to be done at the Water Wall within the demesne.
16. Sir Robert demolished the first Lissadell House and erected the present mansion house of Lissadell. It was built about 700 metres back from the sea and on higher ground to permit views of the sea. Its great windows, in the words of the poet, were “open to the south.” Associated landscaping works were undertaken. The construction work took place between 1830 and 1833. In addition, the learned High Court judge found: “From the 1830s onwards several other features in addition to roads were constructed within the demesne, including a sea wall, farmhouses and a slipway; a new network of internal avenues was also laid out.” These new avenues included the main avenue to the new Lissadell House and an avenue now known as the Forge Avenue. The Western Wood was planted between 1827 and 1830. The dates and details of these features will be discussed later.
17. Sir Robert engaged Francis Goodwin to be the architect of the new house. Sir Robert’s attitudes, which he conveyed to his architect, were characteristic of the aristocracy of his time. Dr Vandra Costello, an expert in landscape history and theory, gave evidence on behalf of the appellants to the effect that Sir Robert’s principal concern, as conveyed to Mr Goodwin, was that the house and its surrounding gardens would remain completely undisturbed by traffic or even by the visible presence of servants. The plans for the servants’ quarters were deliberately designed, according to Dr Costello, so that the servants were “removed, if not from all, at least from the greater part of the house, and their removal in some degree from observation.” A servants’ tunnel and estate offices were designed specifically to render “an unobstructed view” from “every front of the house, and also that the pleasure grounds may be continued quite round it, without interruption from out-buildings, carts etc.,” whereby “the lawn and pleasure grounds will be quite private.”
18. The improvements included the building of a “ha-ha” or retaining wall running for several hundred metres along the bottom of the south lawn, which physically separated the lawn area from the park and providing unbroken views of the sea.
19. The learned trial judge, basing himself on the evidence of Mr John Clarkin from the Ordnance Survey Office, Dr Vandra Costello, and Mr Rob Goodbody, respectively the experts called on behalf of the plaintiffs (now appellants) and the defendant (now respondents), found (at paragraph 229 of the judgment) as follows:
“Sir Robert (4th Baronet), after the new House was built in 1836, demolished the old house by the seafront and refocused the demesne around the new House. This meant that a new network of avenues/roads was developed which was designed to service the work areas and to provide appropriate access to the House and its immediate environs and preserve, not only the privacy and security for those living in the House, but also to respect the imperatives of a landscape design which guaranteed minimum visual intrusion by those (servants and tradesmen mainly) whose business brought them within the vicinity of the House. This is borne out by the elevated site on which the new House was built, by the servants’ access tunnel to the House itself and by the “ha-ha wall” to the south of the House which ensured an unimpeded view to the sea.”
20. Sir Robert contemporaneously embarked on the enlargement of the estate in an easterly direction by acquiring some 555 acres of land at Ballygilgan in 1838. He caused 120 families to be evicted and paid their passage to Canada. In evidence to the Devon Commission, Sir Robert said that the “the intention was not to make a large farm but to increase the domain.” The learned trial judge described this as “an exercise in aggrandisement befitting the new mansion,” the purpose being “to aggrandise the demesne when the new mansion was built…” The word, “demesne” in this context means the lands surrounding the manor house for the enjoyment of the owners and not granted out in tenancy. It should be added that Sir Robert later acquired some further land at Ballygilgan which had the effect of re-routing the main surrounding or Ballinaphull Road somewhat to the east. This road is the modern R347, which goes from Carney in the east, loops north around the estate. To the west this road joins with the western boundary of the estate as it travels past Maugherow south to the beach to the Burrows. The learned trial judge found that “the demesne wall” on the eastern side of the demesne was most probably built at the same time as the R347, i.e. between 1818 and 1828, and marked the boundary of the demesne as it then was.
21. The learned trial judge gave credit to Sir Robert for certain philanthropic actions including leadership of the co-operative movement in Sligo. The Times of London of March 7th, 1881 recorded that Sir Robert had spent £40,000 in feeding the starving populace at the time of the Great Famine.
22. However, over time, as the learned trial judge noted, “the position of the Anglo-Irish families occupying these historic houses became more precarious.” Dr Costello gave evidence that Sir Henry Gore Booth drew up a scheme “for the protection of the lives and property of loyalists in Ireland.” He received a letter about 1880, containing a death threat from “Captain Moonlight.”
23. By indenture of disentailment on the 5th November, 1857, between Sir Robert Gore-Booth (4th Baronet), his son, Robert Newcomen Gore-Booth (both of whom lived at Lissadell House at the time) and Thomas Mostyn, the trustee, the estate was disentailed. Robert Newcomen Gore-Booth was the remainderman under the terms of the deed. While he is said to have served in the Crimean War, that war ended in February 1856. He lived at Lissadell at least for some time with his father but died in 1861, as the learned trial judge found, in a boating accident, without inheriting. Sir Robert died in 1876. The title then passed to his brother Sir Henry (5th Baronet, 1843-1900).
24. From 1861, the estate was held by Sir Robert (4th Baronet) for life, then to his brother, Sir Henry (5th Baronet) for his life, with remainder to Sir Henry’s first and other sons successively in tail male with divers remainders over. By a further disentailing deed of 12th March, 1894, made between Josslyn Gore-Booth (the future 6th Baronet), his father, Sir Henry Gore-Booth (5th Baronet), and Mr F.R.M. Crozier, the entail created by the will of Sir Robert of 1861 was barred. The estate was conveyed to Mr F.R.M. Crozier, subject to the power of appointment of Sir Henry William Gore-Booth and Sir Josslyn Gore-Booth. On the following day, the 13th March, 1894, the power of appointment was exercised. The estate was once more entailed. Sir Henry was the tenant for life with remainder to Sir Josslyn Gore-Booth for his life without impeachment for waste, with remainders in fee tail to the first and every other son of Sir Josslyn Gore-Booth successively.
25. The 6th Baronet, Sir Josslyn Gore Booth was the life tenant in possession from 1900. In 1904, he transferred 28,000 of the 32,000 acres of the estate to the Land Commission, under the Land Purchase (Ireland) Act 1903 (Wyndham’s Act), reducing its size to some 3,000 acres.
26. Sir Josslyn developed new enterprises on the reduced estate. The learned trial judge found that the property “was a vibrant commercial operation for much of the early half of the twentieth century, employing as many as two hundred people at its height in the early nineteen hundreds.” Dr Costello says in her report that Lissadell was, prior to the First World War, one of the largest agricultural and horticultural farms in what was then the United Kingdom of Great Britain and Ireland. All of this took place during the tenure of Sir Josslyn (6th Bt.). The learned trial judge continued:
“The reduced estate of approximately 3,000 acres around the house was run efficiently for much of the early part of the twentieth century with much industrial activity evident within its grounds, including a commercial tree plantation, a sawmill and timber business, various horticultural industries, poultry, dairy and livestock farming, an oyster farm, a school of needlework, private allotments, and a shop where the coach house is now located. By 1900 the estate employed two hundred staff.”
27. The allotments here referred to were let out in the Upper Garden. Dr Costello says that allotment holders were given permission to use avenues necessary to carry out their enterprises. There was even a munitions factory at Lissadell during the First World War. While the learned judge remarks on the contemporaneous political and social activities of Sir Josslyn’s sisters, Constance (Markievicz) and Eva Gore Booth, they play no part in the history of the present case. The learned trial judge quoted from the memoirs of Thomas Kilgallon, who started as a cabin boy to Sir Henry Gore-Booth, and ended as a private butler in Lissadell. He wrote circa 1900 about the roads and avenues on the estate:
“The grounds, carriageways, avenues, and walks were beautifully kept. There were no carts allowed on the avenues, or in the woods. All timber cut had to be carried out of (sic) men’s shoulders to the carriageway. All around the house and glens were cut by the garden men with scythes. There were no lawnmowers then. The grounds, as now, were open to the public.”
28. Referring to the period of responsibility of Sir Josslyn in the first half of the twentieth century, the learned judge summarised the position (paragraph 103):
“There can be little doubt, especially during the high point of the commercial activity on the estate at the beginning of twentieth century and until the death of Sir Josslyn (6th Baronet) in 1944 when approximately two hundred people were employed, that many people were on the property on lawful business. Tenants, employees, customers and other persons with business interests were not only permitted onto the property, but were invited to be there in furtherance of the owner’s economic interests.”
29. The Land Commission inspected the estate at approximately ten-year intervals. As was usual, there were local people interested in acquiring farm holdings. Sir Josslyn registered his opposition to these inspections in 1926, pointing out that he was working the lands. He gave the number of employees as 136.
30. But a Land Commission inspection report of 19th November, 1951, twenty five years later and some six years after Sir Josslyn’s death, noted:
“Passing through the lands one meets constant traffic of horses and carts with some tractors etc., all busy on farm work. The gardens are extensive and systematically managed, concentrating on the production of seedlings - trees, shrubs and flowers - which are grown from seed, to produce the yearling plants which are passed on to commercial nurserymen…… Furthermore, there are roads through the Estate (possibly as much as 5 miles in all) maintained by the owners, over which the public appear to have free access for all kinds of traffic.”
The inspector, being of the opinion that the estate continued “to be managed so efficiently and to give such substantial employment,” recommended against acquisition.
31. Sir Josslyn had four sons, two of whom died during the Second World War. On his death on 14th March, 1944, the estate passed to his son, Sir Michael (7th Baronet.), with remainder to his brother, Angus Gore-Booth, who had suffered shell-shock during the War. Sir Michael was, due to incapacity, incapable of administering the estate. He was made a ward of court on 21st July, 1944. The estate remained in wardship, managed by successive Committees under the supervision of the President of the High Court, until 1982.
32. The period of wardship coincided with the decline of the estate. A further Land Commission report of 23 September, 1962, recorded a situation sharply different from that of a mere eleven years before. It said that the estate was “generally rundown, buildings… in poor repair and in need of rehabilitation.” The number of employees was as low as 18 and only two of them were fit to work the land. The learned trial judge found (paragraph 11 of the judgment): “From the 1940s onwards, however, and probably for some time before, as was the case with many stately homes, the estate went into decline.”
33. The sisters of the Ward, Gabrielle and Aideen Gore-Booth and their brother Angus continued to live in Lissadell, though in progressively difficult and reduced circumstances. Angus had two sons, including Josslyn, the last Gore-Booth owner of Lissadell.
34. Gabrielle Gore-Booth was appointed by the Committee of the Ward to be manager of the estate. Mr Gerald Maguire took over as Committee in 1952 and expressed serious concern at the financial losses being incurred. There were very serious disputes between Mr Maguire and Miss Gore-Booth. In February 1956, she locked and chained the gates in protest at the appointment of a new manager. In due course, she was replaced as manager in 1956 by Mr Charles Caffrey, who remained in position until 1969. The two sisters and their brother continued to live in Lissadell. As the learned trial judge put it, they were reduced to living “initially in some discomfort, but progressing over the years to penury.”
35. For some years, there were negotiations between the Committee of the Ward on the one hand, and the Land Commission on the other, for the sale of the estate, or parts of it. The Forestry Commission was intended to take the greater portion. In 1967 the President of the High Court granted permission to the Committee of the Ward to sell much of the Lissadell Estate, pursuant to the Settled Land Acts 1882–1890. On 22nd October, 1968, some 2,630 acres were sold to the Land Commission. All that then remained of Lissadell was the house, and the immediate surrounding demesne lands of 410 acres. The lands sold included the lands of Ballygilgan to the east of the estate. Thenceforth, the eastern boundary at the seaward end was at the Bunbrenoige River. The route at that point is generally described as Sea Avenue or the ‘coastal route.’ The land sold also included lands to the north west of the estate. Their sale had the effect that the previously internal road called Church Avenue became an external public road. Henceforth, the entrance to the estate at that point was at what is known as the Forge Avenue. It leads past the stables on one side and the kitchen garden on the other.
36. In the same year, 1968, the house was opened to the public who were allowed access on payment of a fee. The proceeds of the public opening were permitted to be retained by the surviving family members, who agreed to pay the rates.
37. Miss Gabrielle Gore-Booth continued to live in Lissadell until her death in 1973 with the latter years being “marked by the rapid decline of the estate…”
38. On 28th July, 1978, the President of the High Court made an order authorising the Committee in the name and on behalf of the Ward to consent, with the consent of Josslyn, Angus and Aideen Gore Booth, to dedication so that “certain roadways in the estate be declared public and to execute such Deed or Deeds of Dedication or other instruments as [might] be required…” Sir Josslyn expressed himself willing to declare some of the estate roads public. He required that they be maintained by the County Council and made any dedication subject to agreement to that effect. Although there was correspondence between Sir Josslyn and the respondent, no such deeds were ever executed and no such dedication ever took place. The roads were never taken in charge of by the County Council in its capacity as road authority.
39. In July, 1978, the President of the High Court made an order providing for the barring of the entail. Rights of residence were to be granted to Aideen and Angus, with the fee simple being vested in Sir Josslyn Gore-Booth, although due to tax complications the conveyance did not take place until 1982, when, by order of the High Court the estate was conveyed to Sir Josslyn. In 1982, the President of the High Court gave approval for the conveyance of the estate by the Committee, on behalf of the Ward, to Sir Josslyn Gore-Booth (later the 9th Baronet).
40. Sir Michael died in 1987. Upon Sir Michael’s death, Angus, Sir Michael’s brother, became the 8th Baronet. Angus lived all his life in Lissadell and died there in 1996.
41. Sir Josslyn, 9th Baronet, son of Angus Gore Booth was the fee simple owner in possession from 1982. He lived principally in England. He visited Lissadell mainly during the summer months. In 1987 Sir Josslyn appointed a manager, Mr Nicholas Prins, who held that position until 2001. Evidence regarding this period will be considered separately.
42. Sir Josslyn announced his intention to sell the remainder of Lissadell in 2003. A Lissadell Action Group campaigned without success to have the estate purchased by the State. The appellants, both of whom are practising barristers, bought Lissadell house and 410 acres in December, 2003. They have invested large sums of their own money in improvements in the house, the gardens and on the estate generally. They kept the house open for visitors.
43. However, they did not accept that they had purchased subject to any public rights of way. When, in April 2004, they discovered that such claims were being made they locked the gates on the Main Avenue.
44. A number of people objected to the closure of the gate on the Main Avenue. A meeting of a small number of people took place at the Grange Sports Complex. This led to a second public meeting attended by up to one hundred people. The latter led to the signing of a protest paper demanding the removal of “the obstruction to the public right-of-way through the main entrance to Lissadell Estate to the Seafront.”
45. There followed a public campaign in the locality. Public meetings were organised; a petition was signed. Councillor Joe Leonard was particularly active. A deputation met the appellants on 15th May, 2004, at which Mr Edward Walsh made it clear that, in his view, there were no public rights of way over Lissadell. He said that he had a statutory declaration from Sir Josslyn Gore-Booth to that effect. The respondent, Sligo County Council, became the focus of the campaign. Evidence was presented to the council in September, 2005. The county manager assigned one of his staff to deal with the matter. Councillor Leonard tabled various resolutions on the issue. On 1st December, 2008, a resolution was passed by the elected members as follows:
“That Sligo County Council in accordance with section 14 of the Planning and Development Act, 2000, amend the current County Development Plan to include in it a provision for the preservation of the public rights of way along the routes outlined on the map attached hereto and marked A.B., B.C., B.D., B.E.”
46. By letter dated 19th December 2008, addressed to the appellants’ solicitors, the Sligo County Manager wrote:
“the Council has been advised by Senior Counsel that based on the evidence which has been made available to it there is a prima facie case that certain of the roads through your client’s lands are subject to public rights of way and it is conscious of its duties under Section 73(11) of the Roads Act, 1993.”
47. By plenary summons dated 14th January, 2009, the appellants commenced the present proceedings. In their statement of claim, they seek a declaration that their lands at Lissadell are not subject to any public right of way, an order restraining the respondent from wrongfully asserting that there are such rights of way and damages for slander of title, negligence, breach of duty and intentional and/or unlawful interference with the appellants’ economic interests.
48. The respondent pleads in its defence that the resolution of 1st December, 2008, and its other statements in the matter were “made bona fide and/or in pursuance of the statutory obligations of the Defendant including the obligations of the Defendant pursuant to section 73 of the Roads Act, 1993.” By its counterclaim, delivered on 5th May, 2009, it pleads that that rights of passage over the roads or ways identified in the pleadings have been dedicated to the public by the owner or owners of the soil, being the predecessors in title of the appellants, and that the public has accepted that dedication. It is expressly pleaded that:
“the said dedication and acceptance of it may be inferred from long user as of right by members of the public throughout living memory, from the construction and/or repair of the said ways at public expense since at least 1814, from the reputation of the said ways as being ones dedicated to the use of the public (including the reputation to be inferred from maps of the area), and from the nature of the locality in which the ways are situate and in particular by reason of the fact that they lead to an area of great natural beauty, being the beach known as Lissadell Beach.”
49. On 11th June, 2009, the respondent applied to the Attorney General for his consent to the bringing of a relator action in the terms of the counterclaim. By a letter of 27th July, 2009, the Attorney General declined the request to be joined as relator. The letter noted that “Sligo County Council has acted on the basis that it was entitled to assert public rights of way having regard to its various statutory powers and obligations.” It also noted that the plaintiffs, in their reply and defence to the counterclaim had not put in issue the locus standi of the respondent to claim a declaration in relation to public rights of way. Thus, the Attorney General communicated his refusal to act as relator as, he asserted, it was unnecessary.
The Law relating to Public Rights of Way
50. As the learned trial judge explained, a distinction must be made between a public road and a public right of way. The latter may exist over any particular route, but it is not a public road unless and until it is taken in charge by a local authority pursuant to statute. Sections 24 and 25 of the Roads Act 1925, referred to by the trial judge, were repealed by the Roads Act 1993. The obligation of maintenance by the local authority as road authority appears to be contained in s. 11 of that Act.
51. It is important therefore, for the purposes of the present appeal, to note that s. 73(11) of the Roads Act 1993 provides:
“It shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area.”
52. A public right of way is not the same as a public road, but the common law treats it as a highway. It is a right available to any member of the public. A public right of way can arise in a number of ways: it may be shown to arise from use from time immemorial or may be created by statute. Finally, a public right of way may be established by proof of long user by the public as of right, leading to express or implied dedication by the owner of the ground over which it passes and acceptance of such dedication by the public. This case, as pleaded in the counterclaim, is concerned with a claim of dedication to be inferred from long public user. It is not the same as prescription from which a private right of way may be established. It is also not the same as the Scottish rule, referred to in some of the authorities, whereby a public right of way may arise by prescription. Nor is it the same as the similar situation adopted in England in 1932. A highway is a public road where it is taken in charge by the road authority which is obliged by statute to maintain and repair it.
53. Ó Dálaigh C.J. succinctly stated the law regarding public rights of way in his judgment in Connell v Porter in December 1972. The case was not reported until it appeared in [2005] 3 I.R. 601. At page 605, the then Chief Justice, with whom Walsh and Budd JJ agreed, restated the law on how public rights of way are established:
"When there is no direct evidence as to the intention of the owner, an animus dedicandi may be presumed either, from the fact of the public user without interruption, or from the fact that the way has been maintained and repaired by the local authority." (emphasis added)
54. The interests involved, where these principles are applied, are, on the one hand, the rights of the public to continue to use without obstruction a way or road over which there are established public rights and, on the other, those of the owner of the land, over which the public wish to pass, to the uninterrupted enjoyment of his or her property. The law must provide a fair balance between these competing and equally legitimate interests.
55. As Costello J. said in his judgment in Smeltzer v Fingal County Council [1998] 1 I.R. 279 at page 287: “The law relating to highways and the creation of public rights of way is a very ancient one and the relevant principles are well-established.” The most complete consideration of the law regarding public rights of way is to be found in the House of Lords decision in Folkestone Corporation v Brockman [1914] A.C. 338, to which reference will be made to later.
56. However, English law regarding public rights of way was radically changed, commencing in 1932, with the clear purpose of reversing the common law. As Lord Scott of Foscote said in R(Godmanchester Town Council) v Secretary of State for the Environment [2007] 3 W.L.R. 85 at page 106, section 1(1) of the (English) Rights of Way Act, 1932 “set itself firmly to reverse Folkestone Corporation v Brockman .” No equivalent statutory change has been made in Ireland. Folkestone Corporation v Brockman continues to represent the essence of the law regarding public rights of way in this jurisdiction.
57. Cases decided as far back as the early years of the nineteenth century, cited by the parties on the hearing of the appeal, lay down the essential requirements. The first step is proof of the use, as of right, by the public of the way over the owner’s land. The second step is that, depending on the duration, frequency, or intensity, of that user, an inference may be drawn that the landowner has dedicated the way. Such an inference, sometimes called a presumption, can be drawn only after consideration of all the facts. The third step is that it may be concluded that the public has accepted the dedication.
58. These basic principles have been applied by the Irish courts, particularly the High Court, in a number of cases in recent years. The law of Scotland is different: there a public right of way arises as the result of prescription, without any consideration of dedication.
59. It is necessary to discuss a number of closely related elements. These constitute the basic rule concerning the inference of dedication from evidence of user, the nature of qualifying user, the time at which dedication is deemed to take place and the effect of the land not being in the possesssion of the fee-simple owner.
60. The seminal statement, cited and discussed in many later cases, is contained in the very short judgment of Parke B in Poole v Huskinson (1843) 11 M & W 827:
“In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate—there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.”
61. Mann v Brodie (1885) 10 App. Cas. 378 was a Scottish case which went to the House of Lords. Lord Blackburn explained the differences between English and Scots law, pointing out, at page 385: that in “both countries a right of public way may be acquired by prescription.” He added, however, that “ in England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since A.D. 1189.” We are not here concerned with prescription in that sense. Lord Blackburn next emphasised the distinction between the rules for the establishment of private and public rights:
“And sometimes, by legal fictions of presumed grants, and, in part, by legislation, the period reqired for prescription as to private rights has, in many cases, been practically cut down to a much shorter period……But this has never been done in the case of a public right of way. And it has not been required, though the way in which the evil of the period of prescription being too long has been avoided, an opposite evil of establishing public rights of way on a very short usurpation has sometimes been incurred.”
62. Having cited the dictum of Parke B. in Poole v Huskinson, Lord Blackburn continued, in a passage at page 386, which has become the point of reference for discussion of the relationship between proof of user and dedication:
“But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was. It is therefore, I may say, in England never practically necessary to rely on prescription to establish a public way.”
63. Thus, in one sense, a particular prescriptive period of user was not sufficient in English law. Dedication to the public by the owner had to be inferred. In another, it was not necessary. As appears from other cases (see Queen v Petrie, below), quite a short period of user may suffice, depending on the circumstances.
64. The House of Lords in their several speeches, particularly of Lord Kinnear, Lord Atkinson and Lord Dunedin in Folkestone Corporation v Brockman [1914] A.C. 338 examined the essential question of the effect of evidence of long user and, in particular, the test to be applied in deciding whether dedication has taken place. Poole v Huskinson, was described as laying down a doctrine (Lord Kinnear) or a principle (Lord Atkinson). Mann v Brodie was also discussed. It is a constant theme that whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence.
65. Lord Kinnear said that the points to be noted were “ firstly, that the thing to be proved is intention to dedicate, and secondly, that while public user may be evidence tending to instruct dedication, it will be good for that purpose only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and the acquiescence of the owner of the fee.” At page 354 of the report, he distinguished the use of inference in cases of public rights of way from cases where a presumption of law comes to be applied.
66. The burden of proof of dedication lies on the person alleging it. The matter cannot be decided without consideration of the whole body of evidence. Lord Atkinson, following extensive citation of authority, stated at page 367 that he had been unable to “find any case, in which there was even a suggestion that, when the evidence of user is of the strongest kind and is not rebutted, the judge is entitled to direct the jury to find a verdict in favour of dedication.” He continued:
“The crucial matter being the existence in the mind of the owner of an intention to dedicate, the inference of that fact, if drawn at all must be drawn by the judge as a fact.”
67. Lord Dunedin, at page 375, made the same point:
“User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no one can see into a man's mind, and therefore a dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts.”
68. The crucial point which emerges from all these statements of the law is that what has to be proved is that the landowner had the intention to dedicate, or, as Ó Dálaigh C.J. put it, the animus dedicandi. That intention can be inferred or presumed from evidence of long uninterrupted user as of right. Prescription is not enough. Lord Hoffmann, in his speech delivered more than fifty years after the change of the law of England in R(Godmanchester Town Council) v Secretary of State for the Environment [2007] 3 W.L.R. 85, already cited, explained the former law as follows:
“In the case of a public right of way, a lawful origin had to be found in dedication by the land-owner at some unknown date in the past. Such dedication was analogous to the lost modern grant of a private easement. Juries were told that they could find such a dedication on evidence of user openly and as of right by members of the public and were often encouraged to do so. The reason for juries and judges being willing to make and accept findings that there had been a dedication or a lost modern grant was of course the unfairness of disturbing rights which had been exercised without objection for a long time. In Scottish law, this policy was given effect by the more logical method of allowing such user to create the rights. But in England the policy of the law was not openly acknowledged. Instead, juries were told that in order to uphold the public right, they had to find as a fact that there had been an act of dedication accompanied the necessary animus dedicandi on the part of the land-owner: see Poole v Huskinson ...1843) 11 M&W 827.”
69. An important point in that passage is the statement that Scottish law, which was based on prescription, allowed the “user to create the rights.” In the law of England prior to 1932, which remains the law in Ireland, user alone does not create a public right of way.
70. There is one decision, namely Farquhar v Newbury Rural District Council [1909] 1 Ch.12 which arguably runs counter to the trend of these authorities. There an estate was held by tenant for life, who, on the unusual facts of the case, was not resident on the property. The remainderman, who was in possession, with what was held to be the knowledge of the tenant for life, laid out a new road which was suitable for and was in fact used for vehicular traffic for some sixty years. The landowner unsuccessfully argued that there could not be dedication, because the land was held in settlement. This was the main point of the case and, in that context, Fletcher Moulton L.J. held, at page 18, that the landowner had to “shew that it was impossible that dedication could have taken place, not that it was possible that it did not take place…” This passage decidedly does not mean that, upon proof of long user, a burden of proof is cast on the landowner to rebut a presumption of dedication. The impossibility relates only to a case where the landowner claims that dedication did not occur because there was no owner capable of dedication. At other points, however, both Fletcher Moulton L.J. and Cozens Hardy M.R. spoke of a “presumption of law” leading to dedication arising from long user, a view which is inconsistent with the other authorities.
71. It is necessary to note that none of these cases state that the inference of dedication from proof of long user is “almost irrestible.” That expression was used in the following context. Lord Cranworth in Young v Cuthbertson (1854) 1 Macq. 455, at page 460 criticised “looseness” in judges’ directions to juries. Referring to the suggestion in one case that “the jury ought to presume” dedication, he expressed the view that the judge was merely “pointing out what was an almost irrestible inference in point of fact,” (emphasis added) i.e., on the facts of the actual case. Lord Atkinson in Folkestone Corporation v Brockman, at page 358 cited this passage, but then immediately restated the proposition that “the application of the presumption in a particular case is a question of fact.” At no point did Lord Atkinson state that user when proved creates “an almost irresistible inference” of dedication, a view attributed to him by the learned trial judge (at paragraph 32 of his judgment: see also paragraphs 29, 317 and 321).
72. It follows from these authorities that, where there is evidence of long uninterrupted user as of right of a way by the public, the court, depending on the duration, frequency, and intensity, of the user, may infer that the owner dedicated the way to the public and that the public accepted that dedication. Whether there was dedication is a question of fact, though it is never necessary to point to any express act of dedication. The process is one of inference, drawn from the strength of the evidence of user, and the fact that the user was as of right. It is relevant to see whether the landowner took any steps, to use the language of Lord Blackburn, to “disabuse” the public of their belief that they had a right to use the way.
73. In many of the cases it is said that dedication will be “presumed”, but that does not mean that there is a presumption of law. It is always a question of fact, to be decided in the light of all the evidence. Many of the earlier cases deal with verdicts of juries and the directions given to them. In our courts, these matters are no longer decided by juries. The tribunal of fact will be a judge. Where a judge disregards preponderant evidence tending only in one direction, he or she may well be treated, in case of appeal, as having erred in law. If there is strong, clear and uncontradicted evidence of user as of right and no evidence or argument to suggest that the landowner could not or did not dedicate, it might be considered perverse of a court to decline to find dedication.
74. The principle of inference of dedication from sufficient evidence of user has been applied consistently in several High Court decisions. In Bruen v Murphy and others (unreported, High Court, 11th March 1980) McWilliam J. considered a claim of a public right of way over a over a plot of ground behind the gardens of houses in Templeogue, Co. Dublin. He applied a statement of the law, which accords with the cases cited here. In particular, he pointed out that a public right of way could not be acquired by prescription:
“No question of user from time immemorial or creation by statute arises here. Therefore evidence of dedication is essential to establish this right of way. In this connection it must be emphasised that a public right of way cannot be acquired by prescription although user may prove sufficient evidence to support a presumption of dedication. The user need not be for any particular length of time but it is only evidence of dedication and must be such as to imply the assertion of the right with the knowledge and acquiescence of the owner of the fee.”
75. In Collen v Petters [2007] I.R. 760, an appeal from the Circuit Court, O’Leary J. regarded the “law in this area as very clear,” as set out by Costello P. in Smeltzer v Fingal County Council, cited above. He also cited the dictum, quoted earlier, of Ó Dálaigh C.J. in Connell v Porter.
76. Since the inquiry is into whether an intention to dedicate can be inferred, it follows therefore that the quality, duration, frequency, and intensity of the public user will be highly material. So also will the degree of awareness of the landowner and his or her attitude; in short all the surrounding circumstances.
77. Part of the evidence of dedication, in combination with user, may be the fact that public money has been spent, with the consent of the landowner, on the repair or mantenance of the route. As Ó Dálaigh C.J. said in Connell v Porter, already cited, at page 606:
“But expenditure of public money in repairing, cleansing or lighting is an important and in such case the landowner who has permitted the expenditure cannot be heard to say that a roadway on which he has allowed public money to be spent is a private road: per Farwell J. in Attorney General v Antrobus [1905] 2 Ch. 188 at p. 207. Coupled with evidence of user, such expenditure is strong evidence from which dedication may be inferred.”
78. The essentially evidence-based nature of the inquiry is demonstrated by the manner in which the then Chief Justice applied the foregoing principle to the facts of the case. Firstly, he re-stated the principle that the “presumption of dedication is a question of fact to be decided by the jury or the judge as the case may be.” He then proceeded:
“The evidence of user, in this instance, if it existed in isolation, I would consider weak and insufficient; but when taken in conjunction with the evidence of expenditure, for various purposes on Nash’s Court, a strong case is made out for the presumption of dedication.”
At page 608, Ó Dálaigh C.J. commented on the strength of the evidence of actual public expenditure on the maintenance of the way in the following passage:
“The maintenance of Nash’s Court by the corporation as a highway was such a notorious and obvious fact that it would require strong evidence on the part of the owner of the fee to displace the presumption that he must have been aware of it.”
Time of dedication
79. It will, in addition, be necessary in the present case to inquire as to when, as a matter of law, dedication takes place. On the facts of the present appeal, it is said that the dedication could not take place during periods when the estate was entailed. The learned trial judge found dedication to have taken place during an interval when it was not entailed. Moreover, some of the ways through the estate did not exist prior to approximately the 1830’s so that they could not have been dedicated at a time when they did not exist. Lord Blackburn said in Mann v Brodie that a claim of a public right of way by prescription would be defeated by proof that “the right claimed had originated within the time of legal memory, that is, since A.D. 1189.” Although the claims in the present case are based on dedication rather than prescription, corresponding logic would suggest that a landowner could not be deemed to have dedicated a public right over a way which did not exist at the time. Indeed, a fortiori, as will be discussed later, dedication can scarcely be presumed to have taken place at a time many years prior to commencement of the acts of user on which reliance is placed.
80. Two types of situation are then envisaged by the authorities. Firstly, user may be shown to have been exercised during the entire period of living memory. Secondly, as the case of The Queen v Petrie (1855) 119 ER 272 shows, user for a shorter period may, depending on the circumstances be sufficient. The ordinary rule was stated by the Privy Council in Turner v Walsh (1881) 6 App. Cas. 636, at page 642, namely that:
“The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and that presumption, if it can be made, then it is a complete dedication coëval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses.” (emphasis added).
81. As was explained by Romer J. in Stoney v Eastbourne Rural Council [1927] 1 Ch. 367 at 378, the expression, “coëval with the early user,” does not mean that the dedication is deemed to have taken place at the date at which the earliest act of user occurred. He considered that the Privy Council in Turner v Walsh had intended merely to indicate “that a dedication ought to be presumed to have been made at least as early as the first act of user.” He explained the importance of this, as being that, “it is dedication and not user that constitutes a highway.” In other words, since prescription is not the test, user alone does not create the right. Romer J. went on to say, at page 379:
“Where the only user shown is user over a period less than that covered by living memory, there may be good ground for coming to the conclusion that the dedication took place only just before the time at which the user began. But where, as here, the user took place over the whole period covered by living memory, such user is just as good evidence of a dedication made a hundred years before the first proved act of user as of one made contemporaneously with that act.”
82. That passage from the judgment of Romer J. received approval from the Court of Appeal and was considered by Lord Wright in Williams-Ellis v Cobb [1935] 1 K.B. 310 as relieving him of the need to discuss the matter further, when he said:
“If user is established over the period within living memory that raises a prima facie presumption of dedication, the date of which may be in a period beyond living memory. Such a date is not limited necessarily to the scope of living memory.”
83. While there is no comprehensive definition in law of the term, “living memory,” it must necessarily mean, in the context of user in support of a claim to a public right of way, that there is no living person who can recall when the user began. Thus, nobody can say that there was a time when the way was not used by the public. In both Stoney v Eastbourne Rural Council, and Williams-Ellis v Cobb, the evidence was of user for the entire period of living memory. In both those cases, the court held that it was not limited to finding that dedication had occurred at the commencement of the proved user. It was open to the court to find that dedication, as in Stoney, was “made a hundred years before the first proved act of user,” and in Williams-Ellis v Cobb, some eighty years before.
84. The logic of these cases is as follows. Where user is proved to have occurred over the entire period of living memory, it follows that it is not possible to show when it commenced, and it may be assumed that the way has been used by the public for an indefinitely long time in the past. Thus, dedication may have taken place at any time in the past, even the distant past. In each of those two cases, the court was confronted with an argument that there was no owner of the land who had the capacity to dedicate, because the land was held in strict setlement.The burden was therefore on the landowner who relies on incapacity, to prove that dedication was impossible at any time in each case and the court held, that it could have occurred at some former even far distant time, when the defence of incapacity was not available. This logic does not apply where the user proved has occurred in a specific time frame from an identifiable commencement time. In those cases, it is difficult, and may be impossible, to infer that dedication occurred at some time in the distant past. A court could not infer dedication of a public right of way by an owner by reference to user which did not commence until many years later. As Romer J said, in Stoney v Eastbourne Rural Council, there can be “good ground” for placing the inferred dedication no earlier than the commencement of the proved user. Where dedication is to be inferred, it is natural and logical to assume that it did not occur any earlier.
Incapacity on grounds of lack of title
85. It has, however, long been accepted that there cannot be dedication except by the owner in fee simple.
86. In Bruen v Murphy and others, cited above, McWilliam J emphasised the necessity for the owner of the fee simple “to dedicate the way or to have actual knowledge of it.” He was not, however, “prepared to hold that that the lessor of a lease for 999 years which was obviously made for the purpose of development with roads and other ways could possibly be held not to have authorised the creation of public rights of way if such were dedicated by the lessee.” This latter passage would have to be regarded as obiter, since the learned judge did not find any evidence of dedication by the lessee in that case. At any rate, it seems to be based on the particular fact that the lessor granted a lease for 999 years specifically for the purpose of a development which included the construction of roads and other ways.
87. Ó Dálaigh C.J. stated the proposition as follows in Connell v Porter, cited above, at page 607:
“…the general principle is that no one but the owner in fee can dedicate because the right given to the public is a right in perpetuity and persons entitled to the preceding estate and interest must concur. Here it would appear that the acts of user - and in this I include the several activities of the corporation - occurred during the occupation of lessees. The acquiescence of the lessees would not bind the owner of the land without proof of his also having been aware of it. But where, as here, the acts of user have gone on for a great length of time it may be presumed that the owner has been made aware of them…”
88. However, a landowner wishing to resist the inference of dedication carries the burden of proving that there was no owner in fee capable of dedicating to the public during the period during which dedication could otherwise be inferred. In The Queen v Petrie (1855) 4 El & B., Crompton J. said:
“……the onus lies on the person who seeks to deny the inference from such user to shew negatively that the state of the title was such that that dedication was impossible, and that no one capable of dedicating existed.”
89. Stoney v Eastbourne Rural Council and Williams-Ellis v Cobb, already cited, are examples of the application of this rule. In Farquhar v Newbury Rural District Council, already cited, Fletcher Moulton L.J. held, at page 18, that the landowner seeking to resist the inference of dedication on grounds of incapacity had to “shew that it was impossible that dedication could have taken place, not that it was possible that it did not take place…”
Public user as of right
90. The user which can lead to the inference of dedication of a public right of way must be user as of right. It must be exercised nec vi (without force), nec clam (openly, i.e., not in secret), nec precario (not be based on permission). As was stated by Lord Kinnear in Folkestone Corporation v Brockman, at page 352:
“public user……………will be good for that purpose [proof of dedication] only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and the acquiescence of the owner of the fee.”
91. User as of right does not require that the users believe subjectively that they have a right to use the way. The test is objective. In Bright v Walker (1834) C.M. & R. 211, at page 219, Parke B. said that the right must be enjoyed “openly and in the manner that a person rightfully entitled would have used it.” Lord Hoffmann, in Reg. v Oxfordshire County Council, Ex p. Sunningwell Parish Council [2000] 1 A.C. 335, a case concerning whether a particular open space should be registered as a village green, traced the history of the nature of user as of right. Lord Scott of Foscote in R(Beresford) v Sunderland City Council [2004] 1 A.C., 889 at page 904 said that it is sufficient if the use is “apparently as of right.”
92. No particular period of user is necessary. In The Queen v Petrie, the period of alleged user was a mere eight years, but the facts were unusual. The way in question was over a junction between two public streets in the town of Rochdale, which had been laid out in 1827, and de facto used as a highway until 1836. The defendants obstructed passage from one street to the other at a point at the junction where they claimed title to a “yard and a half” of ground. In those special circumstances, the period of eight years sufficed. The period of user is, however, important. Combined with frequency and intensity, duration of user may be sufficient to persuade the tribunal of fact to draw the inference of dedication. It is unlikely in practice that user for a period as short as eight years, as in The Queen v Petrie, will be regarded as sufficient in the absence of some special element as in that case.
Toleration
93. User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis à vis his neighbours without being considered to be the exercise of a right. As Lord Hoffmann pointed out in his speech in Reg. v Oxfordshire County Council, Ex p. Sunningwell Parish Council, cited above, “in the case of public rights of way, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had merely tolerated the use.” Lord Hoffmann was, as already noted, referring to the position at common law, i.e., before the coming into operation in England of the Rights of Way Act, 1932.
94. The cases concerning toleration contain several indications that owners should not be constrained to be “churlish” in the insistence of their own property rights. It would be undesirable and inconsistent with a policy of good neighbourliness if the law were so readily to infer dedication of public rights of way from acts of openness and tolerance that landowners were induced to adopt a fortress mentality. Bowen L.J., in a passage in his judgment in Blount v Layard [1891] 2 Ch. 681, (approved by Lord Macnaghten in Simpson v. Attorney General [1904] A.C. 476 at 493 and by Lord Atkinson in Folkestone Corporation v Brockman, at page 369), proclaimed that:
“…nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood."
95. Furthermore, Lord Dunedin at page 375 of the report in Folkestone said:
“But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. But from that house there leads another avenue to the north which connects with a public road different from that from which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up the one avenue and down the other - perhaps without actually calling at the house - raise a presumption that the landholder had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.”
96. In the same vein, Farwell J., in Attorney-General v Antrobus [1905] 2 Ch. 188 at 199, in the context of a claim that there was a trust permitting public rights of access to Stonehenge, wrote of “the liberality with which landowners in this country have for years past allowed visitors free access to objects of interest on their property…” He added, at page 199, that:
“It would indeed be unfortunate if the Courts were to presume novel and unheard of trusts or statutes from acts of kindly courtesy, and thus drive landowners to close their gates in order to preserve their property.”
97. On the other hand, where there is clear and uncontradicted evidence of extensive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicated objection. Lord Blackburn in the passage from Mann v Brodie, cited above, implied that dedication would be inferred if the landowner “took no steps to disabuse [the public] of their belief” that the way had been dedicated. The decision of the House of Lords in R (Godmanchester Town Council) v Secretary of State for the Environment, cited above, concerned the registration of a public footpath on a public map, which depended on whether, under s. 31(1) of the (English) Highways Act 1980, there was “sufficient evidence that there was no intention during that [20 year] period to dedicate it.” This provision enables a public right of way to be established by twenty years of user, i.e., by prescription, and places the burden on the landowner to negative intention. Clearly, this statutory provision represented a radical shift from the position at common law. The burden was shifted to the landowner to produce positive evidence of a lack of intention to dedicate. Nonetheless, the statements of the Law Lords concerning the nature of the evidence which would satisfy the section are helpful. Lord Hoffmann was of the view, at page 96, that “the evidence must be inconsistent with an intention to dedicate.” Like Lord Hope, he referred to Mann v Brodie and the necessity to “disabuse” the public. So far as the section was concerned, Lord Hope noted, at page 101, that the common law had not “laid down fixed rules” but was of the view that “the landowner must communicate his intention to the public in some way…”
98. Whether the landowner has communicated his intention not to dedicate is a matter of fact. Looking at all the circumstances, it has to be determined objectively whether, in spite of the evidence of user, the landowner has shown he resisted the dedication. If he has acquiesced in the user, it will normally be inferred that he has dedicated. Action to the contrary effect may take many forms.
99. Some of the cases deal with the question of whether the user relied upon has been “as of right.” Lord Bingham, in R(Beresford) v Sunderland City Council, (cited above, at page 893) provided some examples of acts which a landowner might take to show that land is being used by permission, and not as of right. That case concerned a claim that a plot of land in a town had been used “as of right” for lawful sports or pastimes for a period of twenty years. It was a case of prescription, not dedication. The decision, however, turned on whether the admitted user of the land had been by virtue of an implied licence. Lord Bingham addressed that question as follows:
“I can see no objection in principle to the implication of a licence where the facts warrant such an implication. To deny this possibility would, I think, be unduly old-fashioned, formalistic and restrictive. A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants' use of the land is pursuant to his permission. This may be done, for example, by excluding the inhabitants when the landowner wishes to use the land for his own purposes, or by excluding the inhabitants on occasional days: the landowner in this way asserts his right to exclude, and so makes plain that the inhabitants' use on other occasions occurs because he does not choose on those occasions to exercise his right to exclude and so permits such use.”
100. The learned trial judge at paragraph 92, stated that: “Where the presumption of dedication based on acquiescence is to be dislodged by a claim of permission, this must be done by actual proof of overt acts which communicate that what is involved is permission, whether express or implied.” That would not appear to be consistent with of the views of Lord Bingham. The learned judge no doubt had in mind the fact that, on the facts of the case, Lord Bingham did not accept that there was evidence of user other than as of right.
101. Lord President Hope in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035, 1041, wrote in similar vein, saying:
"where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.”
102. As to proof of dedication, the focus is on the intention of the landowner. Parke B. said, in Poole v Huskinson, cited above, that “a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.” That may somewhat overstate the true position. Nonetheless, Lord Atkinson in Folkestone Corporation v Brockman said, at page 367, that the “crucial matter [is] the existence in the mind of the owner of an intention to dedicate……”
103. There is a debate as to whether any evidence of the landowner’s resistance to dedication must be published in the sense of being communicated to the members of the public using the way. In this context, the reference by Lord Blackburn in Mann v Brodie to a situation where “the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief,…” That statement can not be taken as laying down any general rule to the effect that statements of the owner resisting or objecting to dedication must be public. Such a rule would be inconsistent with the underlying principle regarding proof of dedication. As already seen, that is that where the user is of sufficient duration and intensity to justify it, a court may infer that the owner has dedicated the way in question to the public. It would be quite inconsistent with such a process of inference to exclude entirely from consideration, as a matter of principle, evidence that the owner in fact objected to the public user. The weight to be attached to any such evidence would, no doubt, be very much affected by the degree, if any, to which it had been publicly communicated.
104. The extent to which open objection, or resistance to public user, affects the evaluation of whether dedication has taken place, was considered by the Court of Appeal in England in Wild v Secretary of State for Environment [2009] EWCA Civ 1406. That case concerned judicial review of a decision by a planning inspector with Dorset County Council under statutory powers to add a footpath as a right of way to a Definitive Map and Statement. The inspector found that there had been dedication at common law based on evidence of user for a period from 1978 to 1998, but also predating 1978. In that year, the landowner had made an objection at a public inquiry to an extent that the inspector accepted was sufficient to bring into question the public's right to use the way, and that at least some of the users were made aware of that challenge at that time. Scott Baker L.J. held that the inspector had erred in finding dedication, when an objection had been raised publicly in 1978. In his view the question for the inspector was rather whether the owner had done anything to show the public at large that he had not intended to dedicate it for the public’s use.
105. In this connection, the judgment of Kearns J., as he then was, in Murphy v The County Council of the County of Wicklow (Unreported, High Court, 19th March 1999) is of particular interest. In that case, there was contemporaneous evidence from an Assistant Inspector with the Forestry Department, who had been present when the Minister for Lands, of the day, came to the Glen of the Downs in County Wicklow for the then purpose of opening a nature trail. The Assistant Inspector denied that there had been any intention to dedicate. Counsel for the plaintiffs had submitted that the court was not concerned with the intention of the Minister in 1970, but more with public thinking as to their rights of access and the rights to use certain pathways in the ensuing period. Kearns J. found on the evidence that the Minister for Lands had consented to user by the public as a nature trail, at least by way of licence. He found that the entire history of user of the nature trail from that time up to the present was consistent only with consent, at least by way of licence, having been furnished in accordance with the requirements of the State Property Act 1954. He distinguished the case from Smeltzer v Fingal County Council and ruled as follows:
“ given the implications of creating a public right of way over lands, and given that I have evidence of the fact of an intention of the relevant Minister in 1970, I am satisfied on balance that the relevant intention was to licence access to these woodlands rather than to dedicate same in any formal way. Given that these are State lands to which the State Property Act, 1954 applies, the Court should be slow to infer that the State would or could readily or lightly acquiesce in the creation of such rights.” (emphasis added)
He added at a later point:
“it would be ridiculous to apply an objective test in one direction if evidence from those who actually had the animus dedicandi was available to point towards some other intention.”
106. Murphy v The County Council of the County of Wicklow is concerned with the operation of a particular statutory regime. Nonetheless, the decision to admit actual evidence of intention to rebut a claim of implied dedication seems entirely logical and in accordance with principle. The learned trial judge commented as follows on that case (paragraph 99): “In the circumstances, where the Minister had opened a trail to the public, at a public ceremony, it is not surprising that Kearns J., as he then was, found that consent and not dedication is what was involved.” However, the fact of the Minister having opened the trail at a public ceremony was not the evidence on which Kearns J relied. It was the evidence, given by the officials, of the contemporaneous intention of the Minister.
107. The basic rule is that regard must be had to all of the evidence when considering proof of dedication. The private thoughts of the landowner not communicated to anybody would be insufficient to rebut the inference. However, the entire context must be taken into account. Regard should be had to the entire approach and behaviour of the landowner. In the case of Lissadell, the President of the High Court, exercising his important responsibilities during the wardship of Sir Michael Gore-Booth caused his views to be communicated to public bodies such as the County Council and Bórd Fáilte. There were meetings between Sir Josslyn (9th Baronet), and local representatives in which he spoke of good neighbourliness. All these matters should be taken into account.
108. In addition to the considerations concerning the law with regard to public rights of way, it will be necessary to consider who can bring suit to have such a claim established. This will be addressed at a later point, in the context of the issues which arise on the High Court judgment in this case.
History of the four routes
109. It is now necessary to address the history of the several ways in issue. This will be done again by reference to the map of the estate appended to the High Court judgment. The learned trial judge granted declarations to the respondent as against the appellants that “the roadways A-B (shaded yellow and green) and B-C, B-D and B-E (shaded green) on the map annexed to this judgment are subject to rights of way in favour of the public.”
110. A-B is now partly within the Lissadell Estate and partly outside. It starts at a point A to the east of and outside the estate at a point on the public road R347. The part marked yellow on the map is not and never was owned by the appellants. It was, of course, formerly part of the estate but, since 1968, has been in the ownership of the State, now Coillte Teoranta: these are the Ballygilgan lands acquired in 1838 by Sir Robert Gore-Booth. The remaining part of A-B (coloured green) extends into the estate along the seafront; point B is approximately at the point of the old Lissadell House along the coast.
111. Route B-C runs north through the grounds around to the west of the house and then along the Main Avenue to the main entrance gate at the point where there is a gate lodge.
112. Route B-D runs north west between the stables and the kitchen garden, at which point it is called the Forge Avenue; it joins the public road at what was called Church Avenue before the 1968 acquisition by the Land Commission. The sawmill, established by Sir Josslyn (6th Baronet) in the early twentieth century, has been outside the estate since the sale in 1968.
113. Route B-E runs west from point B, first along the coast, curving north ( at first as part of routes B-C and B-D) but branching at right angles west along Farm Avenue past the fish farm leaving the estate at Johnsport.
114. It should be added at this point that routes A-B and B-E will need separate consideration to the extent that they form part of or represent an old coastal route shown on early maps.
115. This section of the judgment will, therefore, deal, first, with the general findings and, thereafter, sequentially with each of the routes, starting from A-B in the east, through to B-E in the west.
116. The trial judge made certain findings of fact based on the evidence. The judge found that each of the witnesses was telling the truth as they recollected it. Any small discrepancies in the evidence were, he found, due to effects of the passing of time. This is not a case, therefore, where the judge’s perception of the demeanour, conduct or credibility of the witnesses is in issue. While the judge’s findings of fact are binding, and cannot be reviewed by this Court, so far as inferences were drawn from the facts, and as to the circumstances of the case, this Court may be in a position to reach its own conclusions. As will be seen, the evidence of some witnesses covers a number of entrance and exit points.
General findings on all the routes
117. The judge found evidence of user as of right regarding all the routes, that is, user nec vi, nec clam, nec precario, and that this existed from the early 1950s at least. From this finding on each route, he concluded that an inference of dedication to the public over: A to B; B to C; B to D; and B to E was “clearly warranted”. He accepted that the inference might be stronger in respect of some of the routes rather than others; and also that such inference was no more than one piece of evidence, although in his opinion very strong evidence, which the Court had to take into account in considering whether there was dedication. The learned trial judge made his key findings of public user of each of the ways in paragraphs 56 to 85 of his judgment. He refers to witnesses called by both parties. His findings were principally based on the evidence of the respondent’s twenty five witnesses. Some of the witnesses were in their eighties, “while the vast majority were in their fifties and sixties.” None of these latter witnesses could thus give evidence of matters occurring before the 1950s at the earliest. This, as we shall see, coincides well with the findings made by the learned judge. For example, he found at paragraph 59:
“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 – that is the entrances at Crushmore, the Burrows, the forge and the main entrance. Local people from the area tended to come in at the entrance nearest to where they lived and, depending on their destination or the purpose of their visit, used whatever exit suited them. Some came to use the avenues as through roads, others came to walk or cycle around the avenues in a loop, while others choose the internal roads as opposed to the main 347 road when going to Carney or Sligo, simply to enjoy the natural beauty and tranquillity which the internal routes offered.”
118. The learned judge provided an important summary of his conclusions on user at paragraph 80 as follows:
“From a close examination of the evidence given by the many witnesses, I have come to the following conclusions on the facts:
i. There was a gate at the main entrance prior to 1944 which may have been regularly closed at that time. There was no evidence that it was regularly locked, however. This entrance, before 1944, was principally for members of the family and for servants and invited guests. From the 1950s onwards, the gates were rarely locked and members of the public, especially persons who lived to the north of the main entrance, but not exclusively this group, accessed the estate freely, to cross the estate and also to go to the beach at the Water Wall. Mr. Prins reinstated a gate inside the lodge on the Main Avenue in or around 1987 when he arrived. This remained increasingly open and was closed only occasionally for specific purposes after that. Mr. Barton S.C., gave evidence that when he was attending Lissadell for a shoot in 1996 or thereabouts he found that the gate at the main entrance was locked and there was a notice directing them to use the Crushmore entrance. He vividly recalled it as it made him late for the shoot and he had friends travelling in different cars and had no phone with him. This coincided with Mr. Prins’ evidence that very occasionally the main gate would be closed during the woodcock shoots, but that the other entrances would remain open on those occasions.
ii. Although there was a gate at one time at the Crushmore entrance (as well as a lodge), there was none there in recent decades. Although one witness testified that it was closed on one occasion in the early 1940s, there was no evidence that it was locked and since the mid 1940s there was little evidence of any gate being there. There was overwhelming evidence that the public had access at this point, first to the car park area (which subsequently became the Coillte car park), second to the Water Wall, and third to the forge entrance. There was also evidence that some witnesses exited after visiting the Water Wall at the main gate and to a lesser extent through the Burrows out to Johnsport.
iii. I find that there was no gate at the forge, prior to that which was erected by Mr. Prins in or around 1987/89. After that the gate was rarely, if ever, closed and never locked. Members of the public accessed and exited the estate freely at this point for many decades since 1940 and probably before that.
iv. There was some evidence that there was a wooden farm type gate at the end of the Burrows before the arrival of Mr. Prins in 1987. This gate was never locked, however, and it never prevented people passing over and back through the estate from that point. The use of this road was limited and what traffic it generated was to a large extent generated by the fact that it was beside the football grounds at the west end of the estate. The football grounds were used under licence from the Gore-Booths. Nevertheless, there was evidence that it was also used as a way to access or leave the estate by some witnesses. In more recent times, the surface being sand based, this avenue presented difficulties for motor vehicles. There was also evidence of a gate near the farm buildings (more recently the fish farm) which again could always be opened. When Mr. Prins fenced the Burrows’ football field in 1987–1989, he put the fence on the landside of the roadway leaving the passage over the Burrows clear for traffic. The need for the farm gate at the entrance lessened after this fence was erected, and in recent times it disappeared.”
119. At paragraph 81, the judge found that the “user existed from the early 1950s at least.” At paragraph 83, he added that he was “able to reach the above conclusions on the oral evidence given by the witnesses in this case as it tends to show open, consistent user by the public at large for the entire period of living memory.” In fact, however, the finding was made in respect of the period from the early 1950’s, which is not necessarily the entire period of living memory.
120. Only a few witnesses could give evidence of events prior to the early 1950’s. While the learned judge referred to witnesses who were in their eighties, he certainly intended to include those able to describe events of the 1930’s. Principal among these was Ms Florence Moffatt, who gave evidence on commission, and to whom the judge made several references. At paragraph 79, the learned judge summarised her evidence as follows:
“Ms. Moffatt who was born in 1930 gave evidence on commission. She said that in her younger days the Main Avenue was mainly closed and was only used by the staff and servants. It was never open to the public. She used the Crushmore entrance which was seldom closed. When she was a teenager, with her friends, people entered that way if they wanted to go to the beach and they might exit the same way on out by the Church Avenue (at the Forge) to the west. She recalled with warmth the dances at the Water Wall. Although, not as sure, she said that people probably came in by the Burrows also. She said the ladies gave up on the estate in the 1950s and the decline of the estate was due to bad management. After that there was a change “because there was no one to look after it or do anything”. She never heard people talking about rights of way in the 1940s or 50s. At that time as far as she was concerned the estate was “closed” and was tightly controlled. It was quite clear from this witness that since the “fifties” at least there was little control.”
121. Insofar as the judge made reference to the absence of evidence of the gate being regularly locked, it seems worth noting some points from Ms Moffatt’s evidence. She said that the gate on the Main Avenue was never open and that, though she was a local, she never went in that way; the gate was closed; it was only open for the staff to come in and out; it was opened by the man living in the gatehouse, Frank McElroy. Speaking more generally, Ms Moffatt said that, “unless you had business in Lissadell, you would not go into Lissadell.” She said that “unless you were buying something, you wouldn’t be going into Lissadell, in around the house at all, not even near their house…” This was a reference to the sale of vegetables by the estate. She did say that people could come in the Crushmore entrance, “and go back that way or else they could go way up and out at the church.” They would but would “only go down as far as the sea, [and] never went in around by the house.” In her youth, she said that Lissadell was “a closed estate.”
122. Mrs Nancy Farrell, who was born in 1931, also gave evidence on commission. In her childhood, she said that Lissadell was regarded as a private working estate. In her young days, the gate to the Main Avenue was kept closed. Her family called it the “family gate.”
123. A fair reading of this evidence is that the Main Avenue was used only for members of the family and for servants prior to the 1950’s. No significance can be attached to the absence of express evidence as to whether it was locked. The gate was controlled and supervised.
124. Ms Moffatt referred to “the dances at the Water Wall.” She described them as “the dancing board.” The dances were organised by Aideen and Gabrielle Gore-Booth. Sir Josslyn had earlier provided land for football to be played at the Burrows at the western end of the lands. As the learned trial judge found, the “football grounds were used under licence from the Gore-Booths.”
125. The learned trial judge was very consistent in his findings that the relevant period of user commenced with the 1950’s as is confirmed by the following quotations: “since the early 1950s at least”(paragraph 59); “the evidence is that this user existed from the early 1950s at least”(paragraph 81); “from the 1950s onwards, the gates were rarely locked and members of the public, especially persons who lived to the north of the main entrance, but not exclusively this group, accessed the estate freely”(paragraph 80(i)); “the failure by the defendant’s witnesses to notice these gates is, in my view, explained by the fact that for many decades, perhaps from the late 1950s, what gates were there were rarely closed”(paragraph 115); “the fact that these gates were rarely closed since the 1950s and perhaps earlier”(paragraph 116); “my conclusion on this aspect of the case, therefore, is that while historically, there were gates at some of the entrances to the estate, since the late 1950s at least, many of these no longer exist”(paragraph 124); “given the evidence from many witnesses, however, of the user throughout the 1950s up to 2003, it would seem that these notices had little effect.” (paragraph 131).
126. The findings of fact as so made prompt two important observations. Firstly, on the preponderance of all the evidence, the open general public user from the early 1950’s coincided with what many witnesses regarded as the decline of Lissadell. While, as the learned judge noted, the estate had been “run efficiently for much of the early part of the twentieth century with much industrial activity evident within its grounds,” he also believed that “[f]rom the 1940s onwards, however, and probably for some time before, as was the case with many stately homes, the estate went into decline.” Mrs Farrell thought it was going downhill all the time. The learned judge recorded (paragraph 83(ii)) the words of Mr Gerard Maguire, the General Solicitor for Wards of Court to the effect that, in 1957 “…in plain words [the estate] was gone into a “commons”.” Secondly, and most importantly, these events were largely contemporaneous with the period following the death of Sir Josslyn (6th Baronet) and the succession of Sir Michael Gore-Booth in 1944, whose incapacity led him to be taken into wardship.
127. It is important also to recall that Sir Josslyn, the 6th Baronet, was the tenant in tail in possession for the entire period from 1900 until his death in 1944 and the succession of Sir Michael. The condition of the estate during this time contrasts sharply with the ensuing period of decline. As already noted, the learned judge found that the estate had been “run efficiently for much of the early part of the twentieth century with much industrial activity evident within its grounds…” Dr Vandra Costello described Sir Josslyn as a “very meticulous, almost pernickety man.” By his direction, carting was to take place only over specific routes, and at the direction of his men, and only so far as was necessary to run the business. Dr Costello documented via solicitors’ records from 1913 to 1933 more than fifty cases of action taken against various kinds of trespass, poaching, hunting, cutting trees or the like, on his estates, including Lissadell. She said that there were other records going back as far as 1944. One form of action taken at Sir Josslyn’s behest was to ensure that the miscreants wrote letters of apology.
128. The respondent countered this evidence by establishing that none of the documented cases concerned trespass simpliciter: there was always an element of poaching or taking from the lands. These did not, it was said, show that Sir Josslyn had objected to people simply being present on the estate, in particular, using rights of way.
129. The learned trial judge took the point made by the respondent. At paragraph 132, in a passage dealing with the notices put up in the `1950’s he remarked:
“Moreover, it is significant to mention that Dr. Costello, who researched exhaustively the papers relating to Lissadell and who gave evidence of the many legal threats and actions taken on behalf of the owners against the tenants and other people during the course of the nineteenth century, failed to find one single example of an action brought for simple trespass during that entire period.”
130. This statement is, of course, a correct statement of the facts, save that the findings of Dr Costello related to the twentieth, not the nineteenth century. The facts are significant, however, only if there was user of the ways during the relevant years, which could have formed the subject-matter of a trespass action. The question is what inference should be drawn from the fact that a landowner who was demonstrably careful and, as Dr Costello said, “meticulous, almost pernickety,” in the protection of the property of the estate brought no actions for trespass on the avenues. There was, in fact, no evidence of extensive, or, indeed, any public user of the ways through the estate during the tenure of Sir Josslyn. The more natural inference from the absence of complaints of pure trespass among the many complaints of poaching and the like is that Sir Josslyn had no reason to make such complaints.
131. This picture of the history of user has a crucial bearing on the case. The learned judge quite correctly made no finding of public user leading to an inference of dedication prior to the succession of Sir Michael. The evidence, especially of Ms Moffatt, showed that the decline of the estate and the generalised public use of all the avenues coincided with the succession of Sir Michael and his wardship. Thus, in substance, the entire user of the rights of way which the learned trial judge found to have occurred, took place at a time when the owner of the estate was incapacitated. Sir Michael’s affairs were under the control of the Office of Wards of Court and his property vested in the President of the High Court. Apart altogether from any question of the effects of the entailment of the estate, it is clear that any dedication would have to be attributed to the President of the High Court.
132. Of course, the greater part of that route, marked A-B and coloured green on the map, is on lands owned by Coillte. It is no longer part of the Lissadell Estate. This matter will require further consideration at a later point.
133. At paragraph 83 of his judgment, the learned judge also made reference to what he called “the comfort of contemporaneous documentary records of user during this period.” Firstly, he recalled one of a number of statements made by Miss Gabrielle Gore-Booth to the effect that: “For upwards of 60 years Lissadell has been a popular social meeting place.” She also suggested that her father, Sir Josslyn had more or less opened the entire estate to the public. We do not believe much, if any, weight can be attributed to this evidence. On all the evidence, the estate was run as a business under the guidance of Sir Josslyn (6th Baronet), in the early years of the twentieth century. As the judge acknowledged, this meant that “many people were on the property on lawful business” and “were not only permitted onto the property, but were invited to be there in furtherance of the owner’s economic interests.” The evidence of Sir Josslyn’s meticulousness in pursuit of intruders such as poachers suggests that he was far from welcoming the public generally onto the estate. Moreover, the picture painted by Gabrielle Gore-Booth in her affidavit of 1966 is quite inconsistent with the evidence of Ms Moffatt and the general findings of the judge regarding the commencement of heavy public user as from the 1950s.
134. It is of interest to recall the views of the Reverend Noel Regan who said, in evidence, that he had difficulty in accepting as fact a statement attributed to Gabrielle Gore-Booth, in a letter of 1969, that “the avenues had been open to the public since 1900.” He said the ladies were in a difficult position and were reluctant to challenge what was happening, as they did not in his opinion want to antagonise the locals. In his words, they were naïve and did not think people would abuse them. On the other hand, as the learned judge records at paragraph 76 of the judgment, the Crushmore entrance was different as people “took liberties”
135. It is proposed to consider the learned judge’s findings in the order in which he set them out at paragraph 80 of his judgment. Paragraph 80(i) deals with the Main Avenue, route B-C; paragraph 80(ii) deals with the route A-B from the Crushmore entrance through the Coillte lands, going into Lissadell as far as the site of the old mansion house; paragraph 80(iii) deals with route B-D, the Forge Avenue, running north-west to exit onto what used to be the Church Avenue; paragraph 80(iv) deals with route B-E, the Farm Avenue, running west from point B to exit at the Burrows.
Route B-C: the Main Avenue
136. On the judge’s own findings that, prior to 1944, this route, the Main Avenue, was “principally for members of the family and for servants and invited guests,” there can be no question of finding any sufficient public user to justify a finding of dedication of a public right of way prior to the period of the wardship, or as the judge put it, the 1950s. Separate consideration needs to be given to the period of wardship from 1944 to 1982, when dedication was not legally possible, save by the consent of the President of the High Court. The learned judge did not find dedication during the period subsequent to Sir Josslyn becoming the fee simple owner in possession in 1982. However, it is significant that the main gate was closed and locked at least on the occasion of shoots on the estate. This was accepted by the learned judge. Mr Bernard Barton, Senior Counsel, gave evidence as a witness, that when he was attending Lissadell for a shoot in or about 1996, he found that the gate at the main entrance was locked. There was a notice directing the public to use the Crushmore entrance. Mr Barton vividly recalled it as it made him late for the shoot and he had friends travelling in different cars and had no phone with him. This coincides with the evidence of Mr Prins to the effect that he closed the main gate on occasion, especially during the woodcock shoots and tree felling. These are acts of ownership inconsistent with the existence of a public right of way. The learned judge found it significant that Mr Prins, when explaining these actions, did not suggest that their purpose was to prevent the public from coming onto the estate. That is not necessary. The very act of closing the gate showed that rights of ownership were being exercised.
Route A-B from the Crushmore entrance through the Coillte lands
137. The learned judge found “overwhelming evidence that the public had access at this point, first to the car park area (which subsequently became the Coillte car park), second to the Water Wall, and third to the forge entrance.” Ms Moffatt, for example, recalled that the entrance at Crushmore was seldom closed. The principal force of the evidence was that the public had freely entered for many years at the Crushmore entrance and had used the beach, gaining access principally at the car park. The judge found: “The most popular area in the summer, however, was near the Coillte car park which had easy access to the beach.” The heavy preponderance of this evidence is that the user was for the purpose of access to the sea. Although there was some use of the sea from Lissadell, the beach was less accessible from there. Apart from a slipway, there is a wall, two feet in height on the land side, with a seven foot drop on the beach side, between the road and the beach. It is also material that much of the use on the Lissadell side was for attendance at the dances at the Water Wall which were organised by the Gore-Booths. Attendance for those was obviously by licence. The fact that some people exited via the main entrance cannot alter the main thrust of the evidence regarding that route.
Route B-D; Forge Avenue
138. This route was, prior to 1968, part of what was then known as Church Avenue, which became a public road following on the Land Commission acquisition of that year. Church Avenue is that portion of the R347 road, taken in charge in 1980, which runs from the crossroads designated 6, 7, 8, 9 to point D. Forge Avenue remains internal to the estate. It came into existence in the 1830s, contemporaneously with the building of the new mansion house and the Main Avenue. It passes between the stables and the kitchen garden. The learned judge remarks that the 1885 Ordnance Survey map shows that the only avenue with heavy use within the demesne lands is a third avenue that leading from the Church crossroads. This route led to the coach house and stables, the kitchen garden, and the by then greatly enlarged saw mill, which was on land sold to the Land Commission in 1968. It was part of the demesne and was subject to Sir Robert’s policy of privacy and security. In the active period following the succession of Sir Josslyn (6th Baronet) in 1900, it was extensively used for the businesses of the estate. The learned judge also found, at paragraph 101, that: “Permission was given for buses to travel down on the Forge avenue to the sawmills with employees for a trial period of one year in the 1940s. This permission was revoked after one year as Sir Josslyn concluded that the wear and tear on the avenue was too great.” Such an act of permission and revocation, occurring only shortly before the period of wardship, tends strongly to negative any notion that there was uncontrolled public user in those years. We have also seen that Sir Josslyn, during his tenure, jealously guarded and protected the property of the estate.
Route B-E; Farm Avenue to Burrows entrance
139. The findings of the learned judge in respect of this route are significantly weaker than in the case of the other routes. He found at paragraph 80 (iv): “The use of this road was limited and what traffic it generated was to a large extent generated by the fact that it was beside the football grounds at the west end of the estate.” The playing of football was, of course, as the judge found, licensed by the estate. While the judge added that “some witnesses” had given evidence of having used this route “as a way to access or leave the estate”, he also mentioned that it had become impassable for motor vehicles. Overall, this evidence falls a good way short of what would be required for the purpose of establishing a public right of way. Consideration will also need to be given to the fact that this route first appeared in the Ordnance Survey map of 1885. There was also some argument to the effect that this route represented a diversion of an old right of way along the coast, the route itself came into existence only contemporaneously with the farm buildings.
The coastal route
140. The total route A-B and B-E has been variously called the coastal route or the Sea Avenue. Since at least the mid-nineteenth century, it has been composed of three parts. Starting from the east, the first part, from A, enters the Coillte land at the Crushmore entrance. It runs through the Coillte land to a point where there is a car park at a point giving access to the beach. It continues and enters Lissadell at or about the Bunbrenoige Bridge. It follows the coast to a point at the Water Wall, where there is somewhat difficult access, with a steep drop to the beach. It then continues past the Alpine Garden before turning north. It then branches left in a right angle turn. It there branches away from the route going north towards the Main Avenue and Forge Avenue. Route B-E passes along Farm Avenue before leaving the estate at Johnsport. Thus, the first part is on Coillte land. The second part is in Lissadell and, at first, follows the line of the coast. The third part goes past the fish farm and is away from the coast.
141. The history of this route is complex and varied. The reason for separate consideration of it is that, because of its distinct history, it may provide a basis for establishing a public right of way independently of the modern evidence of user upon which the learned trial judge principally relied. The maps show that, in the nineteenth century, some roads were constructed, and that some old ones disappeared in whole or in part. The High Court considered a number of historic maps as well as Grand Jury presentments. First, it is necessary to examine the maps.
142. Some of the maps predated the first Ordnance Survey map of 1837. The Ordnance Survey maps were considered much more reliable and scientific. Dr Vandra Costello described them as “the gold standard.” Mr Clarkin, the witness from the Ordnance Survey, testified that the original Ordnance map of 1837 was the most detailed, that the map that would “stand out.”. The map of 1885 was a revision. The most relevant maps were:
a. The Down Survey map, which was produced in 1655 under the direction of Sir William Petty at the time of the Cromwellian Settlement. However, there was an agreement between the parties excluding reliance on any documents created prior to 1775. The learned judge said that he did not rely on this map;
b. The Larkin Map of 1819. William Larkin was an eminent surveyor in the early nineteenth century. He prepared maps for post roads for the use of mail coaches then under consideration. He produced maps in County Sligo from about 1813. This is the principal source of the original line of the coastal route;
c. A survey map of Drumcliff Bay produced by Alexander Nimmo in 1821. He was contracted by the Commissioners of the Port of Sligo to carry out a survey of Sligo Bay. Although his principal concerns were maritime, some features on the shoreline were considered relevant enough to be depicted.
d. A sketch or boundary map of 1829, which was preparatory to the first Ordnance Survey of 1837; its principal function was to draw boundaries between townlands and baronies;
e. An Ordnance Survey Fair Plan of 10th February, 1837;
f. The first Ordnance Survey map of 1837;
g. The Ordnance Survey map of 1885.
143. The Larkin Map of 1821, based on that map’s own key, shows what is clearly a public road, running along the line of the coast originating to the east of Carney (from the direction of Sligo), and actually touching the coast at Ballygilgan. Immediately after Ballygilgan, a road, the Larkin Road, still marked as a public road, branches diagonally north west. That road intersects at right angles with a north-south route passing just to the east of the old Lissadell House. The coastal route continues west from where the Larkin Road branches off at Ballygilgan. It passes between the old Lissadell House and the sea. Its marking shows that part as a “byroad” or “pathway.” A symbol indicates the site of a Roman Catholic chapel beside, and just east, of the old Lissadell House. The road continues west to Johnsport. At that point, it appears to stop, but it joins a road going north, which joins and intersects with the Larkin Road. The Down Survey map of 1655 had indicated a road east of Ardtarmon towards Lissadell, which does not appear on the Larkin Map; but the learned trial judge did not rely on it, because of the agreement between the parties. The Larkin Map shows no continuation of the coastal route, i.e., the byroad or pathway, further west than Johnsport.
144. The coastal road, therefore, was a byroad. It followed the line of the coast, being close to or slightly away from it. It was considered by Mr Rob Goodbody, the expert in historical geography called by the respondent, that the coastal road was a public road. i.e., that it was open to the public. He explained that the coastal road avoided high ground, whereas the Larkin Road, being further inland, traversed two high ridges. The appellants’ expert, Dr Vandra Costello, was of a different opinion. In her view, this coastal road or pathway was not public: it was a private avenue serving Lissadell House, the farmhouse and Johnsport.
145. The learned trial judge, without placing reliance on the Down Survey of 1655, found that the “wider historical context” suggested that the Coast Road existed prior to the Larkin Map of 1819. He made the following points:
Ardtarmon, which lies to the west of Johnsport and, therefore, of the old Lissadell House was known as a major medieval settlement: in his will of 1801, Sir Booth-Gore is described as being “of Ardtarmon;”
Later maps showed that there was a substantial castle on the coast between Ardtarmon and Lissadell which predated any of the Gore-Booths houses;
Johnsport, a substantial development was also located on the coast between Ardtarmon and the Water Wall at Lissadell;
He quoted extracts from notes made by persons involved in the preparation of the Ordnance Survey maps of 1837, which referred to the Bunbrenoige chapel as follows:
“There was about 80 or 90 years ago a Mass House i.e. Chapel – Teach Aifrinn – at Bunbreunoige, on the site of which stables belonging to Sir Robert Gore now stand, hence the saying Poball Bunbreanoige. The congregation of Bunbreanoige is still common among the people, preserving the name (Bunbreanoige) whilst it (the saying), be remembered. When the ancestor of the present Robert got his estate there, he banished the congregation and pulled down the chapel.”
The learned judge concluded that the chapel had been there from at least as early as 1750. He found this significant because, “although some of the routes may have only come into existence when the present Lissadell House was constructed in 1833–1836, the Coast Road clearly predates this.”
He therefore concluded:
“Given the existence of this functioning chapel, it is highly likely that there was public access on the Coast Road to it. Such churches are referred to in Irish as Teach an Phobail (literally House of the Public) and the right of public access to such churches was well known in the law.”
The judge cited in some detail from the evidence of Mr Goodbody. Since this is very pertinent to the question of the status of the coastal route, it is worthy of citation here also (paragraphs 214-215):
“Where there were places that would generate any type of traffic, there generally were roads to serve them. This was not always the case…in the case of Lissadell, it is evident that there would have been a road leading from Sligo town to the area around Ardtarmon and Lissadell from the medieval or early modern period, given the existence of a fortified house at Ardtarmon and a castle at Lissadell, together with the fishing community at Raghly. The logical alignment for this road is driven by the topography as the area around Lissadell has a strong series of north – south ridges and valleys. Of the two roads known to have existed leading from Ballygilgan to Ardtarmon in the early years of the 19th century, shown on Larkin’s map of 1819, the coastal route is the more likely to have been the original and this is confirmed by the Down survey map…”
“The conclusion drawn from this is that the natural route from Carney to Ardtarmon is the one that runs close to the shore. It would appear that the most likely reasons the construction of the more northerly route would be to encourage traffic away from the original Big House on the shoreline at Lissadell, as this would be a more direct route to Maugherow Church and the settlements at Cloughboley and Kilmacannon for those that could manage the steep hill. The need for a public road along the shoreline is also demonstrated by the various occupiers of land along the route.”
146. As is apparent from these passages, the learned judge preferred the evidence of Mr Goodbody to Dr Costello. The maps and the wider historical context, including the contour of the coast, and the former existence of a chapel, showed that the coastal route was public. This is the first significant point concerning the status of the coastal route.
147. There was very detailed evidence in the High Court regarding the history of presentments. The respondent claimed that significant public money had been spent in maintaining, repairing and building the roadway from Carney by way of Ballygilgan and Lissadell to Johnsport.
148. A statutory system for the purpose of having roads constructed, repaired and maintained commenced with the Presentment for Roads Act 1765. Subsequent amending statutes followed: Highways Acts of 1817 and 1818, the Grand Jury (Ireland) Act 1836. A presentment was made to the Grand Jury, which was composed of local landowners. Sir Robert Gore-Booth, 4th Baronet, born in 1805, and thus not of the age of majority until 1826, was Chairman of the Grand Jury. The Act of George III 1796, 36 George III c.55, provides the legal basis for these presentments. The Act is entitled:- “An Act for the Amendment of Public Roads, for directing the Power of Grand Juries respecting Presentments, and for repealing several Laws heretofore made for those purposes.”
149. The learned trial judge, at paragraph 191 of his judgment described the system as follows:
”Presentment sessions were held in spring (Lent) and summer each year and were responsible, inter alia, for road construction, maintenance and bridge building. A person wishing to repair or construct a road was required to have a survey carried out by two engineers and have an affidavit sworn before a Justice of the Peace in the prescribed form. The affidavit required the road to be identified as being: “the road from … to …between … and … all in the barony or half barony of…”, the spaces being filled in by the applicant. If the work was approved, payment was made only after another affidavit of completion was sworn, again before a Justice of the Peace. The grand jury also, of its own motion, could present a road for repair or construction, subject to similar affidavits being sworn.”
150. The learned trial judge also quoted the provisions of s. 46 of the same Act for the closure or stopping of roads:
“it shall be lawful for any Grand Jury… to present any old road to be stopped up…if it shall appear to them that the said road is no longer necessary to be kept open, for the convenience of travellers, or that a new road has been made, which answers all the purposes of the old one, to every which Presentment it shall be lawful for any person to enter a traverse…and if such traverse shall not be tried within a year…the Presentment shall stand good and valid, to all intents and purposes.”
151. The question of presentments was a highly contentious issue in the High Court. However, the learned judge, following a meticulous examination of the records and the expert evidence, found in favour of the respondent only in respect of one presentment. He found that there was a presentment in 1814 for the expenditure of money for the building of a battery wall. This was Presentment No. 3 1814, No. 35, Assizes. The record was:
Grantee: Sir Robert G Booth, Abraham Martin and John Jones, “to build a battery wall on the sea side of the road leading from Sligo by Farnicarney to the sea between Farnicarney and Lissadill. £84.17.4. granted.”
152. There was much dispute as where the expenditure related to this presentment took place. There were no maps accompanying the presentments. The appellants contended that, because of the description, “between Farnicarney and Lissadill,” it could not have been in Lissadell. There was extensive argument and evidence concerning whether the principal land feature at the Water Wall, a semi-circular protuberance of land into the sea, had existed in 1814. The learned judge carefully examined the map evidence and the evidence of the expert witnesses. He found it probable that the presentment, No. 35, referred to expenditure at what is now the Water Wall on the appellants’ property. That adjoins the Alpine Garden so that it was very close to the site of the old Lissadell House. The appellants, while criticising this finding in their written submissions, did not do so at the hearing. The finding was based on a careful examination of the evidence, including the oral evidence, and cannot be disturbed. The learned trial judge, however, declined to find that any of the other presentments mentioned in the evidence, applied to any part of the property now owned by the plaintiffs.
153. It is important to note that the learned judge emphasised that, while the fact of public expenditure on the maintenance of a way supports an inference that it is a public right of way, it is not of conclusive effect. As he explained, a record of a presentment does not create a highway: it is merely evidence which may support the existence of a highway. He cited Holmes L.J. in Giants Causeway Co. Ltd. v A.G. (1898) 5 N.I.J.R 301, 320, to the effect that the value of a presentment might be great or small depending on the circumstances.
154. In summary, the position regarding the coastal route is that the learned trial judge found that it had existed as a public right of way prior to the Larkin Map of 1819, and that public money had been expended in building the Water Wall pursuant to a presentment of 1814.
155. The appellants argue that this finding is irrelevant, since the judge found dedication to have taken place in respect of all of the routes between 1857 and 1861, and that, therefore, this is not an independent basis for establishing the public right of way. It is true that the learned judge found that dedication had taken place in respect of all routes in the period 1857 to 1861. However, insofar as he had already determined that there was a public right of way along the coastal route by reference to the Larkin and other maps, it was unnecessary for him to find dedication at a later date. His findings based on the Larkin Map and the 1814 presentment are capable of standing on their own.
156. That, however, by no means terminates the issue regarding the coastal route. The fact is that only part of the ‘coastal route,’ as depicted in the Larkin Map, now exists. That is the part which runs from the Bunbrenoige Bridge at the eastern boundary of Lissadell in a westerly direction past the Alpine gardens to the point B, whence it turns north, before branching off west at right angles towards Johnsport. Separate considerations arise, respectively, concerning the part of the route A-B which runs through Coillte lands and the more westerly part which is called the Farm Avenue.
157. The Farm Avenue should first be considered. The appellants claim that this avenue was not in existence in the period 1857 to 1861. Thus, it could not have been dedicated in that period. They point out that it first appeared in the Ordnance Survey map of 1885. Unlike the Main Avenue and what is now the Forge Avenue, it does not appear on the 1837 Ordnance Survey map. Nor does it appear on an Admiralty Chart of 1852, with corrections to 1859. The respondent responds that the appellants had produced no evidence positively supporting a post-1861 construction, and that the evidence of Dr Costello suggested that all major reconfiguration works were carried out around the same time.
158. It is appropriate to revert to the evidence of the maps. The old coastal route, going more or less directly west of the former Lissadell House follows a line at, or near, the coast until it reaches Johnsport. It appears this way on the Larkin Map of 1819, the Nimmo Map of 1821 and indeed all intervening maps up to and including the 1837 Ordnance Survey map. In the intervening years before that 1837 map, the new Lissadell House had been constructed and the two new avenues, the Main Avenue and what is now called the Forge Avenue were laid out. It is interesting to note that both of these last-named avenues appear for the first time on the 1837 map, but the coastal road remains unchanged. What is now called the Farm Avenue does not appear at all. It first appears on any of the maps on the 1885 Ordnance Survey map.
159. The appellants lay emphasis on the Admiralty Chart of 1852 with corrections to 1859. That map shows the coastal route still unaltered, although it shows the new configuration of avenues around the new Lissadell House.
160. The learned trial judge does not advert specifically to the Farm Avenue or suggest that it represents a replacement, in part, of the old coastal route. At paragraph 148, he distinguishes between “the Coast Road and the other internal ways on the estate.” He says that “the latter were only laid out in or around 1833 to 1837 when the present Lissadell House was constructed, whereas the Coast Road dates from a much earlier period.” He then concludes:
“It is clear from this that it is not possible to presume or infer dedication in respect of the internal avenues prior to 1833/1837, since the avenues as a historical fact did not exist prior to that date. The same, however, cannot be said about the Coast Road, which I have found predates the new House.”
161. At paragraph 268, the learned judge states that the “other avenues in dispute in this case only came into existence in or around 1830–1833 or thereabouts when the new house was erected and the paths were laid out.” It is unclear, taking these two passages together, whether the learned judge treated the Farm Avenue as part of the coastal route or as one of the “other avenues in dispute,” which came into existence around 1830-1833. If the latter, he would not appear to have addressed at all the argument based on the maps that the Farm Avenue first appeared in 1885, thus rendering dedication in 1857 to 1861 impossible. If the former, he would appear to have overlooked the fact that the coastal route has disappeared at this point. On that hypothesis, he would have had to decide whether, as the respondent claims, the Farm Avenue should be treated as a diversion from, or substitution for, the coastal route. It will be necessary to consider how this issue should be resolved.
162. Insofar as concerns the eastern part of the coastal route or former coastal route is concerned, the history is quite complex. The first thing to be said, however, is that the entire of that route lying east of the Bunbrenoige River, or boundary of Lissadell, lies outside the lands of the appellants. It is owned by Coillte, which is not a party to the proceedings. At this point, however, it is necessary to refer briefly to the various changes which have taken place in that route since its depiction as a more or less continuous route on the Larkin Map of 1819.
163. Several quite major changes can be shown to have taken place by reference to the maps. Firstly, as early as the Nimmo Map of 1821, part of the coastal route passing through Ballygilgan, west of the point where the Larkin Map showed the Larkin Road to branch away from the coastal route, has disappeared. Instead, there is a link going south west off the Larkin Road joining the coastal road. Secondly, as found by the trial judge (paragraph 210), the part of the coastal route towards Carney, apparently stopped in 1813 by a presentment and does not appear in the later maps. Thirdly, in or about this time, the Larkin Road was closed by presentment. Fourthly, a new road, now called the Ballinaphull Road, R347, was constructed going north and looping round the Lissadell Estate. Fifthly, the rest of the old road from Carney to Ballygilgan was removed between 1834 and 1840 by Sir Robert Gore-Booth who paid more than £3,000 for the new road which replaced it. Sixthly, when Sir Robert Gore-Booth had acquired additional land in Ballygilgan, the line of the road was changed in an easterly direction and the existing entrance at Crushmore was correspondingly extended a small distance further east.
164. In the result, by the time of the 1837 Ordnance Survey, the Larkin Road has disappeared. The new Ballinaphull Road runs from about Carney and loops to the west around the estate. The learned trial judge found “that “the demesne wall” on the eastern side of the demesne……was most probably built at the same time as the present main R347 road was constructed, i.e. between 1818 and 1828, and marked the boundary of the demesne as it then was.” As Dr Costello put it, the route from Carney along the coast was closed and the new road was “pushed upward.”
165. Whatever the legal consequences of these several complex changes, it is an undoubted fact that the combination of the coastal route and the Larkin Road had drastically changed by 1837.
High Court Judgment: Overview
166. The introductory passages in the judgment of the High Court contain a number of observations regarding the place of the "Big House" in Irish history and literature, referring, in particular, to the unique and extraordinary family history of the Gore-Booths.
167. The learned trial judge then outlined the history of the Lissadell Estate leading to the outbreak, in 2004, of the dispute which led to the present litigation, following the closure by the appellants of the main entrance gate.
168. At an early point in the judgment, paragraph 51, under the heading “jus spatiendi,” the learned judge referred to evidence of witnesses called for the respondent who had said that when they were young they used to wander all over the estate and into the woods and that young boys in particular seemed to use it as an adventure park, especially in the summertime. He made a clear statement that the claim was confined to rights of way, that is, rights to pass and return over identified ways, avenues or roads on the estate. He said that, apart from a claim to a right of access the beach at the Water Wall, the respondent was not claiming a right to wander over the estate and expressed his view that it would have no prospect of success had it chosen to do so. In this context, he cited a passage from the judgment of Kearns J. (as he then was) in Murphy v. Wicklow County Council (Unreported, High Court, 19th March, 1999), referred to earlier (see paragraph 105), where, having reviewed the authorities, he affirmed the common law saying:-
“Against this background of recent case law, it seems ius spatiendi can no longer be regarded as a right recognised by law in the absence of express grant.” (See p. 115) (See also Costello P. in Smeltzer v. Fingal County Council [1998] 1 I.R. 279 at 286)
169. It will be necessary to return to this issue when dealing with the rights of parking granted in the High Court.
170. Before embarking on a further analysis of the substance of the judgment regarding public rights of way, it is essential to consider the form of the action, in particular the capacity in which the respondent brought its counterclaim and the learned trial judge’s decision that it had been brought in personam only.
171. A public right of way is a right of the public at large. Normally, only the Attorney General may bring an action to enforce the public law or enforce public rights. Section 6(1) of the Ministers and Secretaries Act 1924 provides comprehensively for the powers vested in the Attorney General by succession from the former regime and otherwise, but vests in him or her specifically “with the representation of the Government of Saorstát Eireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively……” (emphasis added).
172. Kennedy C.J. in Moore v Attorney General (No. 2) [1930] 1 I.R. 471, a case concerning fisheries, explained the history of the office and stated at page 497 the principle “that the Attorney-General is the only legal representative of the public in the Courts, and is exclusively entitled to assert or defend public interests.” In Incorporated Law Society v Carroll [1995] 3 IR 145, Blayney J., with whom Hamilton C.J. and Denham J. (as she then was) agreed, held that the Law Society did not have the power to seek an injunction to restrain unqualified persons from pretending to be solicitors, which was a matter concerning the protection of the public. He said, at page 174: “The only party who can bring civil proceedings to enforce [a public right was] the Attorney General.” It follows that no body, other than the Attorney General, not even an individual user of a claimed right of way, may bring an action to have the public right declared.
173. When the Attorney General brings an action to enforce a public right such as a public right of way, and succeeds in obtaining a declaration, that declaration is good as against the whole world. It is a decision in rem.
174. There are two situations in which an individual is permitted to assert a public right of way. Each is a situation where the individual has concerns peculiar to himself. The first is where the individual claims to rely on damage special to him and greater than the general public (Boyd v Great Northern Railway Co. [1895] 2 I.R. 555; Smith v Wilson [1903] 2 I.R. 45). In Smith v Wilson, it was held in the face of a strong dissenting judgment that there was sufficient particular damage in having to use a longer and more circuitous route when going to to the market town. The second situation is where a user of the right is sued, for example, for trespass and raises the right as a defence. In either of these cases, any determination will affect private rights only. It will not sound in rem. Neither of these situations arises in the present case and they need not be further discussed.
175. In the absence of the sort of situations mentioned in the preceding paragraph, where an individual person or persons wish to bring a claim asserting a public right of way they must follow the well-established procedure of applying to the Attorney General for his or her consent to bring the action at the relation of the Attorney General. This is correctly called a relator action. It is to be distinguished from the former requirement for the fiat of the Attorney General declared unconstitutional McCauley v Minister for Posts and Telegraphs [1966] I.R. 345. The procedure is there to enable persons to bring appropriate proceedings to protect existing public rights of way. The Attorney General will not refuse without good reason. The costs are borne by the relator, not the Attorney General. A relator action will be an action in rem.
176. Finally, there is the situation which arises in the present case. Section 73(11) of the Roads Act 1993 (No 14 of 1993) provides that it “shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area.” A difference of opinion emerged between the parties at the appeal stage with regard to the true meaning of this provision. It is appropriate to set out the contending position of the parties.
177. The respondent says that s. 73(11) imposes on it a duty in its functional area to “protect” public rights only, and says that is in a position akin to that of a member of the public who has suffered damage, in that, in relation to certain aspects of the public rights of way, it has statutory functions. It says that it was in that context that it defended the proceedings brought by the appellants and that it brought the counterclaim. It says that s. 73(11) is limited to protection of user and that it does not confer any specific statutory function to assert public rights of way so as to establish their existence as a matter of law. It says that the appellants make an unreal distinction between defending the action for slander of title and the making of a counterclaim. It adds that its function under s. 73(11) cannot displace that of the Attorney General.
178. The appellants say that the respondent did not plead that it was asserting rights only on an in personam basis. The suggestion that the claim was being made in personam only was raised by the trial judge on day 50 of the trial, and adopted by the respondent’s counsel in closing submissions on day 54. They say, that, had the respondent indicated at any stage in pleadings or prior to closing submissions that it was asserting rights in personam only, it would have objected to the locus standi of the respondent.
179. The capacity in which the respondent has brought the counterclaim must now be addressed. It will also be necessary to consider it later in the very particular context of the declaration made by the learned trial judge relating to route A-B, from the Crushmore entrance, passing through the lands owned by a third party, Coillte (which have not formed part of the Lissadell Estate since 1968). The appellants objected — and object on this appeal — that an order could not and should not have been made affecting a person or body not party to the proceedings. The judge proposed that the matter could be resolved by treating the declaration as being made only in personam. Thus, it would affect only the appellants and the respondent and would not affect Coillte.
180. It is in the course of responding to the appellants’ submissions on the issue of the effect on Coillte, that the respondent has propounded the limited effect of s. 73(11) so far as it is concerned.
181. It should be noted that the learned trial judge at no point adverted to the possibility that the respondent was adopting such a limited role as is now suggested. In an extremely thorough, not to say exhaustive, judgment on the entire case in which he addressed many complex issues of law, and cited very many authorities, the judgment never at any point referred to s. 73(11). The judge noted, at paragraph 7, that the respondent in its counterclaim was asserting “rights of way over specified and identified roads on an annexed map, which it claims were dedicated to the public by the plaintiffs’ predecessors in title, and it is further claimed that the public accepted that dedication.” At paragraph 6, he applied the rule that “he who asserts must prove, [which] requires that the defendant should lead the evidence to establish its proposition before the plaintiffs bring their rebuttal evidence forward.”
182. According to the argument advanced by the respondent, it was not asserting or claiming that public rights of way existed over the estate, because it had no statutory power to do so or that, if it was, the result would not bind anyone except the parties. In other words, the declarations made would benefit the respondent, but not the people of the locality who have exercised acts of user over the various ways in the estate. Drawn to its logical conclusion, this would mean that the appellants continued, even after the pronouncement of the High Court judgment, to be entitled to exclude the public from using the ways through the estate. Because the members of the public, as distinction from the respondent, had not obtained any declaration of their right to use the ways through the estate at least the appellants could exclude them until such time as those individuals brought an action, which would have to be at the relation of the Attorney General.
183. If the declarations granted by the High Court operate only in personam, they have effect only as between the appellants and the respondent. Only the respondent has the right to use the public rights declared. Since the respondent is a body corporate, the rights of way could only be exercised by its servants or employees. It seems clear that such user would be confined to acts done in furtherance of their duties as servants of the local authority, not in their private capacity. It is not clear what those acts would be, since the ways have not been taken in charge by the respondent in its capacity as a road authority.
184. So far as the ordinary members of the public are concerned, including the many people who gave evidence at the trial in the High Court, the declarations made in personam in favour of the respondent would be worthless. Such a result would certainly come as a great surprise to the many local people who gave evidence in the High Court and, it seems very likely, to the learned trial judge.
185. It seems clear beyond any doubt that this action was defended by the respondent, and, more importantly, the counterclaim brought by that respondent, on the basis of the function conferred upon it by s. 73(11) of the Roads Act 1993 and that the claim was defended by the appellants on the assumption that the section empowered the respondent to claim formally in legal proceedings that public rights of way existed (see paragraphs 46 and 48 ante). As already noted, the Attorney General attached particular importance to the fact that the appellants were not challenging the locus standi to explain his decision not to permit the counterclaim to be brought as a relator action in his name.
186. The respondent states that s. 73(11) of the Roads Act 1993 merely obliges it to “protect” public rights of way. In fact it confers a function. It does not impose an obligation. The respondent states, correctly, that its function does not displace that of the Attorney General. Nonetheless, it has brought the counterclaim in the present case for declarations that public rights of way exist affecting the estate of Lissadell. It relied in correspondence and in its defence on s. 73(11).
187. For more than a century, the law of England and Wales has conferred functions on local authorities relating to the protection of public rights of way. Section 116(1) of the Highways Act 1871, as amended, provided:
”It shall be the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority……”
188. The English courts have had occasion to examine the limits of an authority’s discretion in deciding whether it would bring legal proceedings to protect public rights of way. In Reg. v Surrey County Council, Ex parte Send Parish Council (1979) 40 P & CR 390 (as cited by Stephenson L.J. in the course of his judgment in Reg. v Lancs. County Council, Ex Parte Guyer [1980] 1 W.L.R. 1024 at 1031) Geoffrey Lane L.J.expressed the following views about the function of a local authority (paragraph 396):
"The local authority must at all times act with the object of protecting the highway and of preventing or removing any obstruction, and more broadly speaking of promoting the interests of those who enjoy the highway or should be enjoying the right of the highway; and the county council must likewise operate against the interests of those who seek to interrupt such enjoyment of the highway.”
189. Stephenson L.J. also cited with approval the following statement, relating to the earlier provision of s. 26(1) of the Local Government Act 1894, of Neville J. in Holloway v Egham Urban District Council (1908) 72 J.P. 433 at 434:
“In my opinion the provisions of the Local Government Acts which give to local authorities the right impose and impose upon them the duty of maintaining public rights of road and way are of the greatest possible importance to the public, and were very much needed at the time when the acts were passed, because undoubtedly in parts of the country where the population was increasing and the value of land was growing, there was a very great danger of public rights being invaded by individual proprietors……”
190. While s. 73(11) confers a function on a road authority without imposing a duty, it is a public-law function. It confers a statutory power on the authority. In performing its function, the authority is not pursuing a private-law interest.
191. The notion that the respondent, as local authority, counterclaimed for declarations that public rights of way existed throughout the estate of Lissadell only in personam, i.e., in its own interest is a most surprising one. Long established authority, such as the cases already cited of Boyd v Great Northern Railway Co. [1895] 2 I.R. 555; Smith v Wilson [1903] 2 I.R. 45, show that no individual, which, for present purposes, must include the respondent, may maintain an action for a declaration of a public right of way in the absence of proof of special damage. The respondent has never claimed to have suffered special or individual damage. It has brought the counterclaim, to all intents and purposes, in order to establish rights in favour of the public. The action was conducted exactly as if it had been brought by the Attorney General or at his or her relation.
192. In these circumstances, it would be quite wrong and unjust to permit the respondent to take any other position at this stage. The counterclaim must be treated as having been brought by the respondent for the purpose of seeking declarations that public rights of way exist over the roadways in Lissadell. It cannot have been in the contemplation of anyone involved in the case that the respondent was seeking a declaration which would benefit it, and it alone.
193. Next it is necessary to consider the learned judge’s treatment of the law with regard to public rights of way. The learned judge summarised at considerable length and with great thoroughness the common law and the established authorities with regard to the creation of public rights of way. He commenced by acknowledging, on the authority of the decision of this Court in Connell v Porter [2005] 3 I.R. 601, that dedication “is a question of fact and can be either expressed or inferred.” From the very outset, however, he subjected this proposition of law to very significant qualification, saying:
“This ‘fact,’ however, as we shall see later can be based on a fiction.”
The word ‘fact’ was placed within quotation marks.
194. In the course of his comprehensive review of the established case law, the learned judge correctly explained that dedication is a question of fact, that the burden of establishing dedication rests on the person alleging it, and that a conclusion that dedication had taken place could be reached only following a consideration of all the evidence. He correctly explained the task of the court at paragraph 28 of the judgment:
“In proving such a claim, evidence of various kinds can be advanced, but the essential question for the court is to ask whether the cumulative effect of all the evidence in the specific circumstances of the case enables the court to conclude on the balance of probability that the owner had the intention to dedicate (animus dedicandi) and did dedicate a right of way to the public over his lands………………. The court’s quest, where public user is relied on, may be assisted by the availability of an inference, but in the final analysis, all the evidence placed before the court must be assessed against this single criterion: does the evidence advance or defeat the argument that the owner dedicated or must be assumed to have dedicated a right of way to the public.”
195. The judge substantially shifted the emphasis away from a consideration of the “cumulative effect of all the evidence,” when he stated, at paragraph 29(i), that user, “especially when it is long user over the period of living memory, is by far the most impressive evidence and in many cases will be irresistible.” This statement appears to be linked to his assertion, at paragraph 32, that the House of Lords, in Folkestone Corporation v. Brockman ([1914] A.C. 338, 358), had “suggested that such user creates “an almost irresistible inference…” That statement, however, is based on a misunderstanding of what Lord Atkinson had said at page 358 of his speech. Lord Atkinson had cited a criticism by Lord Cranworth in Young v Cuthbertson (1854) 1 Macq. 455, at page 460, of what he termed “looseness” in judges’ directions to juries. Lord Cranworth expressed the view that a particular judge was merely “pointing out what was an almost irrestible inference in point of fact,” i.e., on the facts of the particular case. Lord Atkinson did not say that any particular evidence of user creates an “irrestible inference” of dedication. To the contrary, he reiterated that the presumption of dedication in a particular case was a “question of fact.”
196. The learned trial judge regarded it as having been laid down in the cases, as a matter of law, that the inference of dedication from long user is “almost irresistible.” The importance he attached to it reappears in the concluding passage in the judgment, paragraph 321, as follows:
“The conclusions that I have reached were justified in traditional terminology and were based on existing precedents which, on the evidence, mandated a finding of “fact” that the long user inferred dedication to such an extent that it had become an “irresistible inference.” (emphasis added)
197. It is not the law that evidence of long user ever mandates or compels a court to find that dedication of a public right of way has taken place. It is inconsistent with the constant refrain of the authorities that evidence of long user may lead a court to make a finding of dedication but that, as stated, for example, by Lord Blackburn in Mann v Brodie, already cited, that “it [user] is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.” Lord Atkinson said in Folkestone Corporation v. Brockman that he had been unable to “find any case, in which there was even a suggestion that, when the evidence of user is of the strongest kind and is not rebutted, the judge is entitled to direct the jury to find a verdict in favour of dedication.”
198. The learned judge was in error in approaching the question of whether there had been dedication by assuming that the evidence of long user created an “irresistible inference.” That is not the law. The law is that whether dedication has taken place is a question of fact to be decided, as the learned judge himself said elsewhere at several points and, in particular, at paragraph 28, on a consideration of all the facts.
199. The learned judge also, in a specific section of his judgment, headed, “Burden on the Protester,” addressed himself to the position of the landowner once there is sufficient evidence from which it is possible to infer dedication at some point in the past. This is closely related to the question of inference of dedication. It places the focus, however, on actions or statements bearing directly on the intention of the landowner. Since the essence of the inquiry is whether there is sufficient evidence to infer that the landowner intended to dedicate a right of way to the public, it necessarily follows that evidence may be produced on the landowner’s behalf tending to negative the existence of such an intention.
200. The learned judge referred to the dictum of Parke B. in Poole v Huskinson (1843) 11 M & W 827, approved by Lord Atkinson in Folkestone Corporation v Brockman to the effect that “a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.” The learned judge thought, quite reasonably, that this qualification “must be read with caution.” He continued, however:
“Certainly, if the landowner locks the gates on one day a year with a notice communicating his opposition, this “single act of interruption” may suffice to rebut the inference. Short of this, however, such single acts must be viewed in context; sometimes they may be no more than a token gesture of resignation.”
201. This is the section of the judgment in which the judge considers the circumstances in which the landowner may be able to successfully resist the inference of dedication by proving acts or statements inconsistent with an intention to dedicate. Apart from making the foregoing remarks, the learned judge in fact proceeded to cite a number of authorities (The Queen v. Petrie (1855) 4 E. & B. 737, 749; Williams-Ellis v. Cobb [1935] 1 K.B. 310; Farquhar v. Newbury Rural Council [1909] 1 Ch. 12; Coats v. Herefordshire County Council [1909] 2 Ch. 579) of attempted resistance to the inference of dedication, but these were cases in which the landowner relied on incapacity due to lack of sufficient title. What those cases in fact show is that, where there is evidence of user for the entire period of living memory, the landowner will not succeed in reliance on the incapacity of the occupier of the land unless, as it was put by Fletcher Moulton L.J. in Farquhar v. Newbury Rural Council [1909] 1 Ch. 12 at 18, he can:-
“…… show that it was impossible that dedication could have taken place, not that it was possible that it did not take place, and therefore no such answer as suggested would be sufficient.”
202. The learned judge correctly stated that these cases show “the strength of the inference or presumption [of dedication] where the person who wishes to challenge it relies on inadequate title.” (par. 45)
203. The cases there cited do not relate, however, to the strength of the presumption, or the consideration of the evidence, of dedication. They deal with a very specific situation, namely when a ground of opposition to dedication of a specific type is advanced. In cases where the evidence of user is such that it would justify an inference of dedication at any time, even a remote time in the past, a landowner, wishing to resist the inference on the ground that there was no occupier of the land with the title to dedicate, must show that at no time was there an owner with the legal capacity to dedicate. In that specific situation, the landowner undertakes the burden of negativing the possibility that there had ever, at any time in the past, been a person in possession with a sufficient title to be able to dedicate. It is to be recalled that Ó Dálaigh C.J. in Connell v Porter, restated “the general principle” that “that no one but the owner in fee can dedicate because the right given to the public is a right in perpetuity and persons entitled to the preceding estate and interest must concur.”
204. The learned trial judge, at a number of points in his judgment, expressed the view that the law with regard to dedication was based on a fiction. Dedication was, he said, “a question of fact which may be based on a legal fiction…” (paragraph 49.1). He gave preference to the rights of the public over those of the landowner, but describing user itself as “right-creating.” In a notable passage (paragraph 313), he summed up his views as follows:
“When the law infers dedication from long user it is consciously engaging in a fiction…… Nevertheless, the law is willing to indulge in this pretence because, to put it bluntly, it wishes to recognise the public’s right arising out of long user “as of right”. Behind the fiction is a deeper recognition that such long user should be right-creating and if the language of precedent requires this conclusion to be paraded as dedication, the courts have little hesitation in doing so.” (emphasis added)
205. At a later point (paragraph 317), he said:
“Even where the true attitude of the landowner, that he has no intention of dedicating, may be identified from private correspondence, etc., the law will ignore this and persist with a finding of dedication. It is clear that the courts, once presented with long user “as of right”, will not be deflected from recognising the right-creating force of this user and will still declare dedication to be the legal basis.”
206. In a number of ensuing passages, the learned judge spoke of:
• the need to bring “an end to dissembling;”
• how the “lawyers, whose business is to engage with the law, struggle to sustain the pretence;”
• the law engaging in the “three -card -trick –man”, and engaging in “sleight of hand;”
• parties being obliged to parties “to indulge in this façade, in a search for a “will-o-the wisp” notion.”
207. The judge, in support of the view that the law engages in a fiction cited at length from the speech of Lord Hoffmann in Regina (Godmanchester Town Council) v. Secretary of State for the Environment, Food and Rural Affairs [2007] 3 W.L.R. 85, citing in turn part of a statement of Scott L.J. in Jones v Bates [1938] 2 All E.R. 237, 244. However, the full context of the latter statement needs to be seen. Scott L.J. said (at pages 243-4):
“……the tribunal had solemnly to infer as an actual fact that somebody or other had in fact dedicated. It was often a pure legal fiction and yet put on the affirmant of the public right an artificial onus which was often fatal to his success. The practical result of the English rule of law was that in many cases, although a formidable body of evidence was available to demonstrate what I will call the Scottish premises, the public claimant failed on the additional English requisites.”
208. When thus seen, Scott L.J. did not say that the law engaged in a fiction in order to reach a conclusion of dedication when the facts did not support it; rather to the contrary, he was saying that the facts proved frequently did not lead to a finding of dedication. It is noteworthy that, in his judgment in the same case, Slesser L.J. at p. 239 restated the orthodox position as it had been in England prior to the statutory changes in 1932:
“Before the passing of the 1932 Act, when dedication had to be either proved or to be inferred, the mere proof of long, continuous and uninterrupted user of the way by the public, though it was evidence from which dedication might be inferred, did not create a presumption in favour of dedication. It was always a question of fact for the tribunal: (Folkestone v Brockman).”
209. It is, of course, the case that a number of judges have described the finding of dedication as involving an element of “legal fiction.” The intention of the Court was drawn, in the course of argument, to a statement of Lord Irvine of Lairg in the course of his speech in Director of Public Prosecutions v Jones [1999] 2 A.C. 240 at 256 to the following effect:
“Neither highway users nor the courts are in any position to ascertain what the landowner's original intentions may have been, years or even centuries after the event. In many cases, where the intention to dedicate is merely inferred from the fact of user as of right, there will not even have been a subjective intention. Nor would it be sensible to hold that the extent of the public's right of user should differ from highway to highway, as necessarily it would if actual subjective intention were the test. It is time to recognise that the so-called intention of the landowner is no more than a legal fiction imputed to the landowner by the court.”
210. The House of Lords was not, however, concerned, in that criminal case, with the question of whether a highway had been dedicated at all, but rather with the limits to the lawful use of a highway. The context was a charge of “trespassory assembly” under public order legislation. The assembly was peaceful. It was held that it was not an unlawful use of the highway merely because the demonstrators were not exercising a right to pass and repass.
211. The occasional use of the expression “legal fiction,” when referring to the process of a finding of dedication, does not mean that the courts engage in pretence or subterfuge. A court does not need to find that the landowner ever expressly stated that he or she was dedicating the land to public use. In reality, no such finding of fact is ever made. The court infers or presumes dedication from the evidence of uninterrupted public user as of right; and, where, to cite again the dictum of Lord Blackburn in Mann v Brodie, “the public were acting under the belief that the way had been dedicated, and [the landowner] has taken no steps to disabuse them of that belief…” Even if there is an element of fiction in this process, it involves consideration both of the user and the response, or lack of it, on the part of the landowner.
212. The essence of the views of the learned judge appears to be that user as of right should be regarded as itself being “right-creating”, thus rendering unnecessary any finding of dedication by the landowner and, consequently, of any acceptance by the public. That would be correct, if prescription were the test. As Lord Hoffmann explained in R (Godmanchester Town Council) v Secretary of State for the Environment [2007] 3 WLR 85, already cited (at paragraph 68 above), Scottish law permits user to create the right. However, where the question is whether the landowner has dedicated the rights of way to the public, prescription is not enough. A major consequence of this approach is that the law ignores any evidence that the landowner did not intend to dedicate as well as any evidence of unwillingness of the landowner, opposition or resistance to public user of the right of way.
213. The learned trial judge separately examined the evidence which a landowner would have to produce to rebut or resist the inference of dedication of a public right of way from long and persistent public user.
214. As already noted at paragraph 317 of his judgment, he held that, the court will ignore even clear evidence of “the true attitude of the landowner, that he has no intention of dedicating” and “ persist with a finding of dedication” where the evidence is found in what he terms “private correspondence, etc.” This appears to follow from his view regarding the “right-creating” effect of long user. He held, at paragraph 108:
“Resistance in this instance indicates opposition and objection to the user, which if effective, means the user is not as of right. The acts of resistance, however, as already noted, must be overt acts which are communicated to the user. Secret or private acts of resistance will not suffice…….
If the owner wishes to challenge the inference, he must also do so nec clam, that is in a manner that is externalised and communicated to the user. It does not suffice for the owner in the secrecy of his own heart to say to himself: “I am not dedicating a right of way to the members of the public who are traversing my land, however it may appear to the outside world. Neither is it sufficient to record his resolve (intention) in a private document which is only revealed many years afterwards.”
215. In sum, the judge was of the view that “if the owner is to rebut the inference of dedication, he must do so in an explicit, unambiguous and overt way.” He held that the law “demands that the challenge is made overtly and communicated to the public, so that the public, in turn, may challenge by way of reply or response, the owner’s opposition.” In support, he cited a statement of Lord President Hope in Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd. 1992 SLT 1035, 1041. However, that was a Scottish case. Scots law regarding public rights of way does not depend on dedication but on prescription, i.e., the fact of user by the public as of right, continuously and without interruption for a period of twenty years. (Mann v Brodie, already cited, per Lord Watson at page 57). The public right of way was opposed on the basis that it should be attributed to tolerance. Lord Hope did not lay down any general rule that written communications opposing the public user had to be proclaimed to the general public.
216. In fact, it appears that the learned judge did not consider that even overt acts of opposition or resistance would necessarily suffice. While he accepted that “[w]hether the acts of resistance or interruption relied on by the owner are sufficient in law depends on the circumstances of the individual case,” the judge held that “for such acts of interruption to rebut the presumption, the acts must be intended to prevent the users from coming onto the property, and must be effective in achieving their aim.” He added that “a failed attempt to prevent access, may be construed as a failed challenge which favours the persons asserting the claim.” (paragraph 110)
217. In one particularly powerful passage, the learned judge placed a very heavy burden on a landowner if the inference of dedication is to be resisted. At paragraph 119, he said:
“When examining the legal effect of an occasional act of interruption, the clearest case is one where the owner erects a total obstruction (locks a gate, for example) and places a notice to the effect that the reason he is doing so for one day is to manifest his intention of interrupting the user to prevent an entitlement arising. To have such effect, however, the intention must be clear and the interruption must be total and effective. If the obstruction fails to prevent entry it will not be deemed to be sufficient. Likewise, if the intention to exclude the public is not clear and unambiguous, the inference that there was no animus dedicandi, may not be warranted.”
218. These statements seem to amount to the following far-reaching propositions. Firstly, although a court may, having found long user exercised apparently as of right, consider whether it should infer that a landowner has dedicated a public right of way over his land, it will not permit him to rebut that inference by reference to statements to the contrary negativing such an intention, unless they are explicit, unambiguous and publicly made. Secondly, even acts of resistance, apparently even acts of physical obstruction and resistance to public user, will be ineffective unless they are “effective in achieving their aim.” This appears to be to reverse the onus of proof and to require the landowner, in the case of verbal communications, to state explicitly and openly to all the public that he does not permit access to the way, and, in the case of physical obstruction, require him to block access totally and effectively.
219. It must be recalled that the user which will lead to the inference of dedication must be user of the way in dispute as of right. It must be open, and have the appearance that the users have the belief that they are lawfully passing along the way, and have the right to do so. It is common sense that acts or statements tending to show that the user is not enjoyed as of right but that the landowner objects to it may cast doubt on the lawfulness of the user and certainly tend to show that the landowner does not intend to dedicate the way to the public. There is no authority for the proposition that the user is itself “right-creating.” Such a proposition is inherently inconsistent with the oft-stated principle that the court must have regard to “all the evidence”. Whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence.
220. Where the inquiry is into whether the user was of such length, frequency or intensity as to give rise to an inference that the landowner dedicated a right of way to the public, it cannot be correct to exclude from consideration available evidence of the same landowner’s opposition to or resistance to the user, even if unsuccessful in preventing the public from continuing to use the way. We would not exclude from consideration cogent and credible evidence that the landowner did not accept that the public had the right to use the way, declarations to that effect, protests against the user or attempts to resist it. Naturally, the weight to be accorded to any particular statement may vary depending on circumstances. A secret statement, uncommunicated to anyone, may well be considered to have little or no weight. On the other hand, a considered statement, made between interested persons, may carry considerable weight. In particular, statements made by the President of the High Court in performance of his duty to the Ward to the effect that no rights should be granted to the public should not be ignored.
221. In the same context, the learned judge appeared to leave little if any room for the possible explanation for user being the result of tolerance or permission. This led him, for example, to reject notions of “tolerance” or “neighbourliness.” At paragraph 91, he said: “I do not find that the introduction of this additional concept facilitates clear analysis of the situation.” In his view, “one is either talking about permission or acquiescence and there is nothing in between.” He added, at paragraph 105 that in his view, “the precario required to undermine “user as of right” must be more specific than that, it must relate to a particular activity and be confined to a limited and identified group of people.”
222. In this context, it is worthy of note that the respondent’s historical expert witness, Mr Rob Goodbody, thought that, in the 18th and 19th centuries, a great number of demesnes were open to the public as a matter of course. He agreed that large landowners would, as a matter of course, allow people, with their implicit permission, to come in and look at their demesnes. Dr Vandra Costello gave similar evidence. As we have seen, Farwell J. in Attorney General v Antrobus [1905] 2 Ch. 188 deplored the prospect that building public rights on the foundation of the liberality of landowners might lead them“to close their gates in order to preserve their property.”
223. This judge’s approach to this entire issue led him, in the particular instance of the blockage of the Forge Avenue in 1993, to reject the suggestion that the acceptance by Sir Josslyn and Mr Prins of the removal of the obstacle by force was based on “courtesy and neighbourliness.” Rather, his interpretation was that the “owner capitulated when confronted.”
The Period of Wardship
224. There is a striking temporal coincidence between the commencement, as found by the learned trial judge, of the public user of the various ways through the estate and, the period of the wardship of Sir Michael Gore-Booth. Generally, the judge found user to have commenced from the early 1950s at least. The wardship commenced in 1944. The estate was sold out of wardship in 1982.
225. The findings of user, as already set out in some detail earlier in this judgment show that it commenced in the early 1950s. These findings are soundly based on the evidence of the witnesses heard by the High Court. It is unnecessary to list them in detail in this judgment. It is sufficient to say that the entire thrust of the evidence of was of user commencing from the early 1950s.
226. Although the learned judge in fact found dedication to have occurred in the period from 1857 to 1861, it is clearly essential to consider the facts surrounding the actual period of the user on which the learned judge based his decision. The learned trial judge referred in great detail to events which occurred during this period, even though it is not the period in which he found dedication to have taken place.
227. Over the entire of the period from 1944 to 1982, Sir Michael was the tenant in tail male in possession, but he was incapable of managing his affairs. Once a person is a ward of court, “the court is vested with jurisdiction over all matters relating to the person and the estate of the ward…” (In re a Ward of Court [1996] 2 I.R. 79, per Hamilton C.J. at page 106). He was legally incapable of forming an intention to dedicate. His affairs were in the hands of the President of the High Court. In the words of Hamilton C.J.,
“In the exercise of this jurisdiction the court’s prime and paramount consideration must be the best interests of the ward.”
228. It must, consequently, be presumed that the President would not act against the interests of the Ward by dedicating to the public extensive rights of way over large parts of the estate.
229. Moreover, the estate was during the entire of this period entailed. Dedication could not, as a matter of law, take place during this period.
230. Sir Robert and his son Robert Newcomen were found by the learned trial judge to have dedicated the public rights of way between 1857 and 1861. The learned judge made the following finding at paragraph 265 of the judgment:
“I am prepared to infer that there was joint dedication; or, at the very least, that there could have been acquiescence to the user by both persons who had an interest in the property. Living in Lissadell House at the same time, it would be most unlikely that both did not have the same level of knowledge and appreciation as to what was happening on the lands at the time.” (emphasis added)
231. The underlined expression presents a major logical difficulty. The findings of user made by the High Court relate to a period commencing almost a century later, in the 1950’s. In deeming Sir Robert and his son to have known and appreciated what was happening on the lands at the time, the learned judge seems necessarily to have been engaging in a fictional exercise. It will be necessary to return to the question of dedication in the period from 1857 to 1861 at a later point.
232. It is necessary, nonetheless, to consider the possibility of inferring dedication from user during the period of the wardship. This is because that is the period of the user, as found by the High Court, by reference to which any dedication of a public right of way must be found. It is also necessary in view of the possibility that dedication might, alternatively, be alleged during that period.
233. It is, in our view, of crucial importance that all jurisdiction in respect of the estate fell to be exercised by the President of the High Court during that period.
234. The learned judge noted, at paragraph 24 of the judgment , the submission of the appellants to the effect that: “successive Presidents of the High Court consistently refused in the context of the wardship, until 1978 when conditional assent was given, to consent to any public monies being spent on the estate roads which might suggest dedication.” He appeared to acknowledge the force, if not the legal effect of this argument, at paragraph 273, where he said that it would be “clearly contrary to the intention of both the committee for the ward and the President of the High Court during that period” if dedication were to be found during the period of the wardship.
235. The appellants’ complaint is that the learned trial judge failed to have sufficient regard to the views and intent of the Office of the Wards of Court and the President of the High Court or to communications between the Wards of Court Office and the defendant, or to an Order of the High Court of 28th July, 1978.
236. The appellants refer to a number of indications that successive Presidents of the High Court had expressed opposition to the dedication of public rights of way. The principal such indications are as follows:
a. In 1954, the General Solicitor, writing on behalf of the President, gave permission to Sligo County Council to act as agent for An Bord Fáilte in repairs to the Crushmore Avenue (from the then gate lodge to what is now the Coillte Car Park). The General Solicitor also indicated his intention that the gate at the Crushmore entrance be closed on one day a year to protect the private nature of the avenues. The General Solicitor’s letter of the 26th February, 1954, contains the following statement:
“The matter was submitted by me to the President of the High Court for his directions and he instructs me to say that there is no objection to the work being carried out provided that the County Council accept that the carrying out of the work will not give the County Council or the public any right to claim the avenue as a public road or a public right of way.
I am instructed however to say that it is intended to permit until further notice access to the sea shore as hitherto, but that the gate will be closed on one day per year so as to maintain the private nature of the avenue.” (Emphasis added)
Bord Fáilte wrote to the County Council agreeing to these terms for carrying out the work. The County Manager, in a letter of 5th March, 1954, referring to the General Solicitor’s letter, expressed the intention of going ahead with the work; The learned judge suggested that this letter, “strictly construed, may not amount to an acceptance of the President’s conditions…,” adding that there was no evidence that the gate was subsequently closed on one day a year. It is difficult, however, to read the Manager’s letter otherwise than as acceptance of conditions which he knew to have been laid down by the President of the High Court. The Council was not taking the road in charge and was not performing its statutory function of repairing public roads. It was agreeing to carry out work as agent of An Bord Fáilte. The real point, however, and real significance of the letter is that the President had conveyed and was known to have conveyed, in the clearest terms, that he was not agreeing to the dedication of public rights of way over the avenues in Lissadell.
b. As appears from a letter of 12th May, 1969, written on behalf of the then manager of the estate, Mr Charles Caffrey, which is quoted by the learned trial judge at paragraph 129 of his judgment, he had agreed with Mr Gerard Maguire back in 1957 “to put up Notices giving the public leave to reach the Beach by the Front Avenue only…” He added that “the rest of the avenues had notices, “no admission except on business.”” He also said that, as of 1969, two of the notices were still there. The first notice was at the Crushmore entrance “giving the public leave to reach by the front avenue only.” The learned trial judge, at paragraph 130 of the judgment, mistakenly treats this as referring to the Main Avenue. It is clear from a reading of Mr Caffrey’s letters of June 1969 that, when referring to the Front Avenue, he meant the avenue commencing at Crushmore which was, in 1969, on the land very recently purchased by the Land Commission. Thus, it is clear that, from 1957 until at least 1969, there were notices on all the avenues except the Crushmore entrance to the effect: “no admittance except on business.” There was also a notice giving the public leave to enter to reach the beach by the “Front Avenue,” i.e., Crushmore.
c. Correspondence of the late 1960s shows that solicitors for Miss Gabrielle Gore-Booth were extremely concerned about the deterioration of the mansion house and the avenues leading to it. In this context, they complained about actions by Mr Caffrey, as manager on behalf of the ward, in restricting traffic, in particular CIE buses, causing tourists to walk more than a mile to the mansion house and threatening CIE with prosecution. While many of these charges were disputed, it seems clear that all parties believed that permission was necessary for use at least of the Main Avenue;
d. In 1970, the Central Development Committee of the Department of Finance agreed to make a grant of £2,500 for the resurfacing of the road leading from Crushmore to the Forester’s lodge on the Carney/Ballinaphull Road. This included the Main Avenue. The grant was conditional on the work being carried out on behalf of the estate by Sligo County Council; and on the estate agreeing to be responsible for the maintenance of the roadway until such time as it might be declared a public road, and taken in charge by that road authority. The latter event could only take place if the road were declared to be a public road in accordance with the terms of the Local Government Acts. In fact, the County Council indicated at that time, that there was no question of its taking over the road repairs. The President of the High Court approved these proposals on condition that Miss Gabrielle Gore-Booth agree in writing to keep the Main Avenue repaired. The learned trial judge notes that the President did not, on this occasion repeat the stipulation, which he had laid down in 1954, that there would be no rights for the public. However, the context was that a payment was made and approved by the President on condition that Miss Gore-Booth maintained the roads; it was also made clear that the roads were not then being declared public. The learned trial judge summed up the position at that time at paragraph 238(ii) as follows:
“In 1970, the council sought to have the roads dedicated to the public, but the President of the High Court refused to agree to this as, in his view, it would have diminished significantly the value of the estate and the entail would have to be barred. The council accepted that this was the legal reality. In documents prepared by the council at the time it was admitted that:-
“Sligo County Council cannot allocate funds for the road as it is not a public road within the terms of the Local Government Acts.”
And:-
“The Council is inhibited from declaring the road a public road due to the fact that the consent of the High Court would be required.”
e. In 1974, the County Council proposed to the General Solicitor that, as Committee of the Ward, he declare the avenues to be public roads. By a letter of 24th April, 1974, the Registrar of Wards of Court informed the General Solicitor that the President was not prepared to authorise him to dedicate the avenues at Lissadell to the public use, because he considered that to do so would lower the value of the estate. He added that he would not, in any event, have the power to do so without disentailing and it would be necessary for all interested parties to join in the deed.
f. In 1978, the County Council renewed its proposal to have the estate roads declared public roads. With this in view, it wrote to Sir Josslyn Gore-Booth, the then successor tenant in tail, who responded favourably. The matter was once more placed before the President of the High Court, who made an order on 28th July, 1978, authorising the Committee of the Ward to agree, with the consent of three other named members of the Gore-Booth family that certain roadways on the estate to be declared public and “to execute such Deed or Deeds of Dedication or other instruments as may be required in that regard.” If this had taken place, there would, unusually, have been an act of express dedication. No such deed was ever in fact executed. The President’s order of 1978 shows at least that he did not consider that dedication had taken place and that it could only take place with his approval.
237. Although it was not an act of the President, it is also material to record the actions of Miss Gabrielle Gore-Booth in 1956 in the context of the appointment, of a Mr Costello, to replace her as manager of the estate. She caused each of the four entrance gates to the estate to be closed, chained and padlocked with a notice at each, the text of which was reported in the newspaper. The notice was addressed to Mr Gerald Maguire from Gabrielle Gore-Booth
238. The learned trial judge, at paragraph 241 of the judgment gave four reasons for treating the evidence of the actions of the President and the Wards of Court Office as being ineffective to prevent dedication from taking place:
a. First, the attitude of both the council and the ward is contained in private correspondence. This correspondence was not available to the public at the time and the public had no opportunity to challenge it.
b. Second, the council is not the agent of the public in this matter. It is true that in the present case the council is advancing arguments in favour of public rights of way, but its views do not bind the public, and statements made in earlier correspondence, although they may go to reputation, may not reflect the view or the attitude of the public.
c. Third, the Attorney General was invited to join in this litigation, to represent the public interest, but declined to do so, being of the view that it was a private dispute.
d. Fourth, if the public rights of way predated this period, the correspondence adverted to cannot alter the legal position: “Once a highway always a highway”. There is little evidence that the ward investigated in any depth the legal impact of historic public user at that time.
239. In our view, none of these reasons provides an answer to the basic difficulty that dedication could not take place during the wardship without the consent of the President of the High Court. It cannot be forgotten that the burden is on those alleging dedication to prove it. During this period, the tenant in tail was incapable of dedicating, both by reason of lack of title and lack of capacity. The President of the High Court was under a duty to treat the interests of the Ward as paramount.
a. Firstly, official communications of the President of the High Court addressed to public bodies such as the County Council and An Bord Fáilte cannot be treated as mere private correspondence. As the appellants point out, that approach ignores the fact that the entire question of whether the Council could repair the roads in Lissadell was discussed at public meetings of the Council. We would also recall the view expressed by Kearns J., as he then was, in Murphy v The County Council of the County of Wicklow (Unreported, High Court, 19th March 1999) that “it would be ridiculous to apply an objective test in one direction if evidence from those who actually had the animus dedicandi was available to point towards some other intention.”
b. On the second point, it is not a question of considering the views of the Council: rather the issue is the clearly declared attitude of the President of the High Court resisting dedication;
c. On the third point, it is difficult to see the relevance of the Attorney General’s position, which was merely to state (in a letter of 27th July, 2009) that a relator action at his suit seemed unnecessary in circumstances where the Council was asserting the existence of a public right of way and the plaintiffs (the appellants) had not put in issue their right to do so.
d. Finally, the suggestion that “if the public rights of way predated this period, the correspondence adverted to cannot alter the legal position” would not seem relevant. The learned judge did not, in fact, find that a public right of way existed prior to the period of the wardship, save to the extent that he found dedication to have occurred in 1857 to 1861. To the extent that he did so based on his findings of user commencing in the 1950s, he was clearly engaging in what he termed a fiction, an exercise involving the transposition back a century of the twentieth century user. Even if he could do so, it cannot be right then to exclude from consideration evidence of the circumstances in which that user took place, namely that dedication depended on the intention of the President of the High Court.
Sir Josslyn, 9th Baronet; 1982 to 2003
240. Sir Josslyn, 9th Baronet, became the fee simple owner in possession in 1982, following the approval by the President of the High Court of the conveyance of the estate to him by the committee on behalf of the Ward. Sir Josslyn lived principally in England, but came to Lissadell during the summer months.
241. This was a new situation. For the first time for more than a century, there was a fee simple owner in possession who had the capacity to dedicate. The learned trial judge gave detailed consideration to the history of this period but did not make a finding of dedication at this time. Instead, he limited himself to finding that Sir Josslyn made certain admissions of the existence of rights of way.
242. Sir Josslyn appointed Mr Nicholas Prins as manager of the estate. He acted in that capacity from 1987 to 2001 and gave evidence at the trial. Mr Prins did not disagree with the evidence given as to public user as from the time when he became involved. Of course, as the trial judge found, there had been extensive actual public user of the various ways since the early 1950s. This user simply continued during Sir Josslyn’s time. Mr Prins accepted that some people parked their cars at or near the Water Wall, conduct which he said he did not mind as long as they did not cause an obstruction. However, he said that the most popular area in the summer was the sandy section of the beach near the Coillte car park where access to the beach was easiest. He also agreed that people accessed the sea via the Water Wall, having entered from Johnsport via the Farm Avenue from the west.
243. Mr Prins found the estate to be run down. He caused cattle grids to be installed at the Main Avenue, Forge Avenue and at the Crushmore entrances. He caused concrete piers to be erected at the bridge beside the Coillte Avenue. He also caused gate piers to be erected at the different entrances. At the main entrance, he caused cast-iron gate piers and “proper old-fashioned” gates to be erected.
Local residents’ objections in 1993
244. An important event occurred in 1993. Mr Prins caused a mass concrete obstruction to be built inside the Forge Avenue entrance in order to prevent new-age travellers from using the estate. The judge, at paragraph 136, found as a fact: “Local residents objected to the obstruction and gathered with shovels and machinery to remove the rubble by force.” The incident received publicity in a local paper, the Sligo Champion, which recorded that local residents were claiming that a public right of way existed and that they were “set to wage a battle in order to have public rights of way re-established…” The report recorded a claim that the “right of way has been open for at least one hundred years,” which is not, of course, what the evidence has established. It said that a large number of people turned out to remove the obstruction. The work was done with the help of a tractor and the work was completed in little over an hour. The learned judge reiterated that “the local people were willing to assert what they considered to be their rights, by force if necessary,” adding that the “owner capitulated when confronted.” Mr Prins was “anxious to stress that nobody’s access to the sea was being blocked.”
245. Councillor Leonard obtained Sir Josslyn’s telephone number in London from Mr Prins on that occasion and spoke to Sir Josslyn, telling him that local people were upset at this development. He said that the rubble and boulders “had blocked their right of way.” He said that “the local people wanted the obstacles removed and if it was not done, it was their intention to remove it themselves.” Cllr. Leonard’s evidence was that Sir Josslyn said that he would speak with Mr Prins.
246. Mr Prins said that, after this incident, he allowed Forge Avenue to fall into disrepair in order to discourage access.
247. Mr Prins also caused chains to be put up at the sides to the main house, as the judge explained, “to prevent people driving around the House, especially at night, to the annoyance of Ms. Aideen…” While these would block the way around the house, which is one of the ways claimed, they did not, Mr Prins accepted, prevent access along the Main Avenue.
The accident on the estate in 1996
248. In 1996, following an incident when a claim for damages had been made against the estate arising from an accident, Mr Prins caused notices in blue to be erected at all four entrances. Mr Prins’ evidence was that Sir Josslyn asked that the original wording be toned down as it was “too aggressive”. They read:
249. The learned judge found that the “blue signs erected in 1996 were erected to address the risk of entrants being injured on the property and the potential liability of Sir Josslyn as occupier. The notices did not forbid entry and were not worded to do so.”
Obstruction of the Main Avenue in 2002-2003
250. A second obstruction occurred in 2002-2003 when a large tree fell near the main house across the Main Avenue and remained there for many months. Cllr. Leonard, at the request of some local people, called on Sir Josslyn, who was then living at Lissadell. The judge’s findings in respect of this meeting were:
“When they called by appointment, they were received with courtesy, and after hospitable pleasantries, the conversation turned to the tree. An employee of Sir Josslyn outlined some of the problems they were having on the estate and complained, in particular, of late night visitors and some joyriders. Cllr. Leonard offered to convey the complaints to the gardaí the next time he was in Sligo. After more discussion, when Cllr. Leonard emphasised the inconvenience for neighbours passing through the estate from the main gate to the sea and the interruption of their right of way, Sir Josslyn, according to Cllr. Leonard, said, “I’ll see what I can do”. ………………Sir Josslyn added that he did not wish to fall out with neighbours.”
251. Mr Prins also gave evidence that the gate erected at the forge entrance was “closed occasionally but not on a regular basis.” He said that the gates at the main entrance were closed occasionally for tree felling, which was for safety reasons only and, in respect of the woodcock shoots, when the purpose was “to stop people coming in and getting in the way of the guns who would be on the avenue.”
252. The appellants relied on the different acts of Mr Prins as manifestations by the owner, for whom Mr Prins was agent, of an intention to regulate and control entry to the estate so as to rebut any inference of dedication that might arise from user. Mr Prins accepted that there was widespread public user of the avenues of the estate, that people were using the avenues for reasons unconnected with tours of the house and that six or seven cars might be parked near the Water Wall in summertime and said: “if they were out of the way I didn’t mind”. His attitude was that this was accepted as a matter of common courtesy to one’s neighbours. The estate, he said, was open to the public from the beginning of May until early October. Outside that period, it was not widely accessed. He noted, in particular, that from the public amenity area on the Coillte side of the boundary, it was very widely used. People would have come in from the Carney side for that purpose.
253. The learned judge expressed his general conclusion regarding the evidence of Mr Prins at paragraph 69 of the judgment as follows:
“Overall,… it is my conclusion that none of these interventions by Mr. Prins show that he opposed the public coming onto the property for reasons which were inconsistent with public user. In fact, all the interventions had independent reasons and justifications other than to keep the public out. Had that been his intention, it could have been easily done by erecting unequivocal notices which read “Keep Out” or “Private, No Entry”. Had such unequivocal notices been erected in a prominent location at the entrances, they would certainly support the plaintiffs’ contention in that regard. It was not done, however. When one obstruction was put there in 1993 and another obstruction, the fallen tree, occurred in 2002-2003 they were challenged and, with Sir Josslyn’s knowledge and consent, were quickly removed.”
254. The learned judge asked himself how he was to interpret the two incidents of 1993 and 2002 (paragraph 139). He rejected the suggestion of the plaintiffs that the conduct of Sir Josslyn should be regarded as suggesting courtesy and neighbourliness. He then remarked:
“Clearly, when the Forge entrance was blocked, the local people were willing to assert what they considered to be their rights, by force if necessary. The owner capitulated when confronted.”
255. He thought that the obstruction of 1993 “was either a clear acknowledgement of the claim to a right of way being made by the locals or a failed attempt to interrupt.”
256. The judge considered that “both of these incidents [of 1993 and 2002] must be seen as a positive assertion by members of the public of a right to pass over the avenues in question and an insistence that the obstacles be removed.” (paragraph 141). He noted that, in the first case, “the local response was immediate and force was contemplated.” He thought that the earlier experience, where, as he said force was contemplated, had reassured locals that the obstacle would be remove on the second occasion. He then concluded:
“I do not accept that in either case the owner’s response can be interpreted as a gesture which, since it was preceded by a courteous request, amounted to nothing more than permission. From any view, what occurred in both cases must be seen as a direct challenge to the owner’s title, and his response, involving positive action in both cases, can only be interpreted as an acknowledgement of the claims asserted. It certainly did not amount to interruption of user; it was undoubtedly acquiescence.”
257. By referring to a “direct challenge to the owner’s title,” the learned judge must have intended to say that the locals were claiming rights of way over the lands of Lissadell. He concluded that Sir Josslyn had acknowledged the claims. This acknowledgement or admission, he found, was communicated to Councillor Leonard in 1993, and in 2003 to Councillor Leonard and Mr Michael Carney. The facts are not seriously in dispute. What is involved here is not a finding of disputed fact but an interpretation of the evidence.
258. The appellants, however, objected to the admissibility of any statements attributed to Sir Josslyn on the ground that, so far as the appellants were concerned, they were hearsay.
259. The learned trial judge decided that each of the statements made by Sir Josslyn made to Councillor Leonard in 1993 and in 2002 (in the presence of Mr Carney) amounted to admissions that there were public rights of way affecting the property. He considered the law regarding the admission of statements made against interest. It is important to trace his reasoning on this point.
260. Firstly, he referred to the statement made by Ó Dálaigh C.J. in the context of criminal proceedings in Bord na gCon v. Murphy [1970] I.R. 301, 310 that the “only admissions which are admissible in evidence as exceptions to the rule rejecting hearsay are such admissions as are declarations against interest or, as these are sometimes called, disserving statements.” He added that “[I]t is fairly presumed that no man would make such a confession against himself if the facts confessed were not true.” (per Goose J. in The King v. Lambe (1791) 2 Leach 552, 555).
261. Secondly, the judge referred to authority for the proposition that an admission may be made by conduct, whether in the form of actions or omissions. He cited Morrissey v. Boyle [1942] I.R. 514, a paternity suit pursuant to the Illegitimate Children (Affiliation Orders) Act 1930, which required corroboration of the applicant’s evidence. The applicant had given evidence that she charged the respondent with being the father of her child. Sullivan C.J. held at p. 523 that:-
“If such a charge was made, then the fact that the respondent did not repudiate it in the presence of the appellant’s father, but made an appointment to meet him on the following night, obviously with the object of discussing the matter, is to my mind a most material circumstance from which the more probable inference is that the charge was well founded.”
262. Thirdly, the learned judge addressed the question whether any statements or admissions by Sir Josslyn, though hearsay, could be admitted into evidence against the appellants. He accepted that the normal rule is that a party cannot be bound by an admission made by a third party. However, he held that, where there is some privity of interest between the party and the person who made the statement, the admission of the latter may, in some circumstances, bind the former. There are, he said, three relevant situations of privity. One of these was privity of title. Since there was privity of title between Sir Josslyn and the appellants, any statements made by the former could be admitted into evidence in the action against the appellants.
263. The judge held that a statement against proprietary interest made by a predecessor in title of a party is admissible against the latter provided it was made at a time when the declarant had an interest in the property. He cited Woolway v. Rowe (1834) 1 Ad. & El. 114; M’Kenna v. Earl of Howth (1893) 27 I.L.T.R. 48; Evans v. Merthyr Tydfil UDC [1899] 1 Ch. 241 and South Dublin County Council v. Balfe (Unreported, High Court, Costello J., 3rd November, 1995)). In M’Kenna v. Earl of Howth, the evidence held admissible was described as consisting of “ancient maps or surveys coming from the proper custody, though mere private documents, [which] may be received in evidence as against persons deriving title from the proprietor under whose direction they are made….” In South Dublin County Council v. Balfe, an application to restrain use of property without planning permission, there was a special condition in a contract of sale stating that no planning permission had been obtained for certain use of land being sold. An issue was raised by the respondent as to whether the user in question pre-dated 1964. Costello J held that, by way of exception to the hearsay rule, the condition of sale was a declaration against interest admissible in evidence against the purchaser, who was, in any event, expressly on notice of the condition. The learned judge also cited from the decision of the English Court of Appeal in Falcon v. Famous Players Film Co. Ltd. [1926] 2 K.B. 474. That was a claim based on alleged breach of copyright brought against an assignee from the original owner. The court admitted into evidence a letter written by the assignor which admitted material facts. Bankes L.J., ruling on the admissibility of the letter stated:-
“I should like to take the rule of law from Wills on Evidence [fn. 2nd ed., p. 173], where it is said: “The same principle” – that is as to the admissibility in evidence of admissions – “has also been extended to statements affecting property, made by predecessors in title of the parties. Any statement made by the possessor of property of any description tending to limit in any way the complete and unfettered ownership thereof by him is deemed an admission, which may be given in evidence against any party who subsequently becomes entitled to it.””
264. It should be noted that, in each of these cases, there were documents containing express statements. In none of the cases was evidence consisting of no more than silence at issue. No authority was cited for the proposition that there could be admitted in evidence by way of exception to the rule against hearsay, the mere silence of a predecessor in title on an occasion when he might have been expected to address the matter in contention.
265. Based on his examination of the authorities, the learned judge held:
“Thus it is clear that where a predecessor in title makes statements which, if that predecessor was a party to the action, could be considered to be admissions, these will bind those with subsequent title in the property and may be admitted as evidence in an action against him or her.”
266. In respect of the telephone conversation between Councillor Leonard and Sir Josslyn in 1993, the judge found that Sir Josslyn did not take issue with the description of the route as a “right of way” made in a public context. He said that it was not disputed that, following this discussion, the rubble was quickly removed and the route again made passable. As a matter of fact, however, the rubble was not removed by or on behalf of Sir Josslyn, but was forcibly removed by the locals using shovels, spades and with the assistance of a tractor. This was done, therefore, by force and under the threat of force. Nonetheless, the judge concluded that this state of facts gave “rise to an inference that Sir Josslyn, when he said he would speak to Mr. Prins, admitted the existence of a right of way.” He made no finding of an express admission. He inferred an admission.
267. In the case of the conversation in Lissadell in 2002 between Councillor Leonard and Sir Josslyn, the judge found that “these events and the statement that he would see what he could do are also admissions made by the plaintiffs’ predecessor in title and are admissible as evidence in this case in relation to the Main Avenue.” Again, there was no express statement.
268. The learned judge found a third admission to have been made in 2003 at a meeting attended by Sir Josslyn, Mr Hugh Hamilton, his estate agent, and Mr Hubert Kearns, the County Manager. Mr Kearns’ evidence was as follows:
“I don't recollect what formula of words I used. This is seven years back. It may have been the rights and I'd probably just use something like the rights of way, or rights of way or something to that effect and I did it because I was curious. I seem to recollect that when I asked the question I think Sir Josslyn and Hugh Hamilton looked at each other and I am not to be honest I am not certain who answered it.”
“Was it Sir Josslyn or Hugh Hamilton?”
“I recollect the two gentlemen looking at each other and I recollect Sir Josslyn saying something can be and again I can't recollect the exact formula of words that it was something such as ‘ we are not making any assertion or any statement about rights of way.’ I can’t reconnect the exact words but certainly my clear recollection leaving the meeting was that he was leaving the position open and he certainly wasn't saying that there were no rights of way …”
269. The judge found that Mr Kearns had asked Sir Josslyn and his auctioneer “What about the rights of way?”, and that Sir Josslyn replied with words to the effect that “We are not making any assertion or any statement about rights of way.” The judge remarked that this was “certainly weaker that the previous incidents, [but that it was] nonetheless a situation in which, a denial by Sir Josslyn might reasonably have been expected.” He concluded:
“It is, therefore, in my opinion, an admission that gives rise to an inference that Sir Josslyn at least had some concerns as to rights of way over the estate and it is admissible in this regard.”
270. In summary, the judge made the following findings regarding admissions:
a. In 1993, in a telephone conversation with Councillor Leonard regarding the obstruction to the Forge Avenue, where the Councillor had threatened that the locals would remove the rubble themselves. Sir Josslyn did not deny the existence of the right of way, giving rise to an inference that he admitted the right of way.
b. In 2002, arising from the blocking of the Main Avenue by a fallen tree, when Sir Josslyn told Councillor Leonard that he would see what he could do and added that he did not wish to fall out with neighbours, the learned judge found that he had admitted the existence of the right of way over the Main Avenue.
c. Finally, the learned judge inferred a more general admission of the existence of rights of way from a conversation with the County Manager in which Sir Josslyn or Mr Hamilton (but the judge found it was Sir Josslyn) was alleged to have said that nothing was being said about rights of way.
d. Thus, in each case, the learned judge inferred an admission from circumstances and the absence of a denial of the existence of a right of way.
271. Ultimately, he explained the weight that he attributed to the admissions so found. As noted above, at one point he suggested that an admission of a predecessor in title would be “binding” on the successor. However, at paragraph 167, he took a more measured position as follows:
“As stated above, however, the mere admission of the above statements is not determinative evidence as to the existence of rights of way over any of the aforementioned routes or the estate in general. Instead, they create further inferences which form part of the overall tapestry of the evidence in this case, which must be weighed up and measured against all other circumstances and evidence as presented in toto.”
272. Considering these findings in the context of the conclusions of the learned trial judge on the entire question of the existence of the claimed public rights of way, it seems to us that it is very doubtful that they are admissible by way of exception to the hearsay rule. No express admission was made on any occasion. An extension of an exception to the hearsay rule, to include silence of a predecessor in title, would be very significant. On any view, very little if any weight can be attributed to these events
General Conclusion on Dedication
273. It is of crucial importance to note that the learned trial judge found dedication of the rights of way which he declared to exist over the estate at Lissadell in following terms:
a. “I am prepared to infer that there was joint dedication; or, at the very least, that there could have been acquiescence to the user by both persons who had an interest in the property. Living in Lissadell House at the same time, it would be most unlikely that both did not have the same level of knowledge and appreciation as to what was happening on the lands at the time.” (emphasis added) (paragraph 265)
b. “During the period 1857 to 1861 in the case before the court, I am prepared to say that dedication was not only possible, but on the facts I am prepared to presume that there was joint dedication during that period.”
274. The learned judge found that there had been a joint act of dedication. The life tenant, not being the fee simple owner, could not dedicate to the public in perpetuity. The judge cited the appellants’ argument that the life tenant could not dedicate to the public, unless there were special circumstances where it could be inferred that the life tenant and the remainderman both acquiesced to the dedication. Faced with this, the judge found as a fact that the father, Sir Robert, and his unmarried son, Newcomen, had been “living together (apparently in harmony) in the same house on lands over which the user is claimed to have occurred.”(paragraph 267)
275. In reaching that conclusion, the learned judge relied on Farquhar v. Newbury Rural District Council [1909] 1 Ch. 12, where there was a tenant for life with remainder to a tenant in fee simple. The remainderman had moved into possession, and the owner of the life estate (his elderly uncle) had ceased to live on the lands, and apparently never had knowledge of public user. Farwell L.J. stated (at pp. 18-19):-
“It is therefore a simple case of dedication, so far as title is concerned, by the owners of the fee. A man cannot dedicate that which is not his own, but there is nothing to prevent several owners who between them own the entire fee from dedicating.”
276. The learned trial judge next considered whether dedication could have taken place in the period from 1861 to 1894. At paragraph 270, he examined and ruled against this proposition as follows:
“By the disentailer made on the 12th March, 1894, between Sir Josslyn (the future 6th Baronet), his father, Sir Henry Gore-Booth (5th Baronet), and Mr. F.R.M. Crozier, the entail created by the will of 1861 was barred and the Lissadell Estate (now including Ballygilgan and Finned for the first time) were conveyed to Mr. F.R.M. Crozier subject to the power of appointment of Sir Henry William Gore-Booth and Sir Josslyn Gore-Booth. The next day, the 13th March, 1894, Sir Henry and Josslyn exercised this power and the Lissadell Estate went to Sir Henry Gore-Booth, thereafter to Sir Josslyn Gore-Booth for his life without impeachment for waste with remainders in fee tail to the first and every other son of Sir Josslyn Gore-Booth successively in remainder one after the other, and with divers remainders over. Importantly, Sir Henry and Sir Josslyn in this resettlement document, expressly reserved to themselves powers which during their joint lives would have enabled them to dedicate if they so wished. Josslyn, later to become the 6th Baronet on the death of his father Sir Henry in 1900, was protector of the settlement. From this it can be seen that from 1894 to 1900 Sir Henry and Sir Josslyn (to become the 6th Baronet) had power to dedicate if they wished. There is no evidence that they exercised this power and I am not aware of circumstances, unlike the period from 1857 to 1861, that would enable me to presume that such power was likely to have been exercised. But it was legally possible to do so. From 1900, after his father Sir Henry died, Sir Josslyn was a life tenant in possession, with remainder to his sons successively in tail. As such he did not have power to dedicate during this period.”
277. Two points emerge from this passage. The first concerns the title. The judge found that, in the period from 1894 to 1900, Sir Henry was the life tenant and his son, Josslyn (later the 6th Baronet) was life tenant in remainder. Unlike Newcomen Gore-Booth, in the earlier period, Josslyn was not the fee simple owner in remainder. The deed of appointment of 13th March, 1894, also granted remainders in fee tail for the first, and every other son, of Sir Josslyn Gore-Booth successively. Thus, unlike in the 1857-1861 period, the two living members of the family did not, in combination, have the fee simple. However, the judge observed that, under the deed of appointment, Sir Henry and Josslyn reserved powers which would have enabled them to dedicate if they so wished, but there was no evidence that they had exercised that power. The second point is more express than implied. The judge remarked that, unlike for the earlier period, he did not have evidence of circumstances which would have enabled him to presume that the power had been exercised. There were no circumstances such as had occurred in Farquhar v. Newbury Rural District Council, where, unusually, the owner of the fee simple in remainder was in possession. The life tenant apparently never lived there. Cozens-Hardy M.R., at page 15, thought that the court “ought to assume that that was done by the remainderman with the knowledge and approval of the tenant for life.”
278. Thus, it was not possible for dedication to take place in the period from 1894 to 1900. The only finding of dedication relates to the period from 1857 to 1861. We turn to consider that decision, which is the central conclusion in the entire case.
279. The entire principle of dedication of a way to the public is that it is reasonable to infer or presume that the landowner, being aware of open regular public user, exercised as of right for a long time over his land has dedicated those rights to the public. The requirement that the public user be open and as of right presumes that the landowner, to quote the language of Lord Blackburn in Mann v Brodie, already cited, “must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief…” Without proof that the landowner was aware of the user, there is no basis for attributing dedication to him.
280. Clearly, Sir Robert and Newcomen could not, in the period from 1857 to 1861, have been aware of user which was not contemporary and which was not in fact to occur until almost a century later. Equally clearly, the learned trial judge could not have meant that they were so aware, although he spoke of their “knowledge and appreciation as to what was happening on the lands at the time.”
281. The learned judge can only have been acting on the principle that the user which he found to have taken place in the 1950s could be retrospectively deemed to have taken place back as far as 1857 to 1861. Such a process of reasoning can occur in cases of user during the entire period of living memory, where it may be necessary to presume dedication to have taken place at some even distant time in the past. The cases make a distinction between cases where user is shown to have taken place for the entire period of living memory and where the only user shown is user over a period less than that covered by living memory. As Romer J. put it in Stoney v Eastbourne Rural Council [1927] 1 Ch. 367 at 378, “where……the user took place over the whole period covered by living memory, such user is just as good evidence of a dedication made a hundred years before the first proved act of user as of one made contemporaneously with that act.”
282. In the present case, the consistent evidence was of user commencing in the early 1950s, essentially during the decline of the estate following the death of Sir Josslyn (6th Baronet) and contemporaneously with the commencement of the wardship. There was clear evidence that, in the 1930s the gate to the Main Avenue was controlled by a gatekeeper and that only the family or servants and, presumably, visitors had access. That is not user for the entire period of living memory.
283. The law does not act, even in this area, on the basis of complete fiction. For example, it is common case and was accepted by the respondent that the right of way over particular avenues could not be presumed to have been dedicated at a time when those ways did not exist. The Main Avenue and the Forge Avenue did not exist before 1830.
284. For the same reason, it is not logical to apply retrospectively to 1857 to 1861 evidence of public user in the 1950s when it is clear, on the evidence, that the entire purpose and object of Sir Robert Gore-Booth in building the new mansion house, laying out the new avenues and extending the demesne lands by, in particular, purchasing the lands of Ballygilgan was to preserve the privacy and security of the house and its surrounds.
285. It is appropriate to note the circumstances prevailing on the estate in the period from 1857 to 1861. Not only did the evidence of public user not extend back to the middle of the nineteenth century, it is, as a matter of fact, highly improbable that such user would have been tolerated at that time. The learned judge took note of the appellants’ argument that it was “unlikely, given the whole raison d’être of the demesne and estate, that the owners would have dedicated to the public rights of way over the estate in such a manner that would have compromised the security and privacy aspects of the House.” He appears to have accepted this point, in a passage at paragraph 229 dealing with the actions of Sir Robert in 1836, when he “demolished the old house by the seafront and refocused the demesne around the new House.” He observed:
“This meant that a new network of avenues/roads was developed which was designed to service the work areas and to provide appropriate access to the House and its immediate environs and preserve, not only the privacy and security for those living in the House, but also to respect the imperatives of a landscape design which guaranteed minimum visual intrusion by those (servants and tradesmen mainly) whose business brought them within the vicinity of the House.”
286. There was no difference of opinion in evidence between the expert witness called by the respective parties on this issue. Mr Rob Goodbody, the respondent’s expert agreed, in cross-examination, that, those who built the new Lissadell House around 1833 would have been quite concerned to ensure that their privacy was respected, and that it appeared from the comments of the architect, Mr Goodwin, at that time that his principal concern was that the house and its surrounding gardens would remain completely undisturbed by traffic.
287. Thus, for two distinct reasons, we believe that the finding of dedication made by the learned trial judge as having taken place in 1857 to 1861 cannot be sustained. Firstly, as a matter of simple logic, user commencing in the 1950s cannot be used to infer that owners of the estate a century earlier intended to dedicate those way to the public; they could not have been aware of the user. Secondly, it is clear on the undisputed evidence that the owners in 1857 to 1861 would not have tolerated public user of the ways in the estate, which would have been inconsistent with the preservation of the privacy and tranquillity of the house and grounds, then recently developed and extended precisely to preserve those values.
288. For the two reasons given in the preceding paragraph, we are satisfied that the finding that dedication of all four of the public rights of way took place in the period 1857 to 1861 cannot stand and must be set aside.
Period of Wardship: implications
289. In addition, and for the sake of completeness, we have addressed separately the effects of the findings of user of all four ways from the early 1950s. As we have pointed out, this coincides in effect with the period of the wardship of Sir Michael commencing in 1944. Although the learned judge did not find dedication to have taken place during this period, we believe it was necessary, following the logic of the learned trial judge, to consider the circumstances of that user. We have concluded that dedication could not have been found to have taken place during that period, or at the beginning of that period, without attributing an intention to dedicate to the President of the High Court. For the reasons we have given, we are satisfied that such a finding would have been in the teeth of the expressed intention of the President that he would not dedicate.
290. Finally, it is necessary to consider the circumstances of the public user which indisputably continued following the entry into possession of Sir Josslyn as full owner in fee simple in 1982. As we have already decided, there could not have been dedication of public rights of way, as was found by the learned trial judge, by Sir Robert and his son, Newcommen, in the period from 1857 to 1861. No other basis of dedication was found by the High Court. However, even if an argument were to be advanced for dedication in the period from the early 1950s that case would fail by reason of the existence of the wardship in that period combined with the opposition of the President of the High Court.
Sir Josslyn Gore Booth; 1982 to 2003
291. From the early 1950s right up to the time when the appellants purchased the estate and to their decision to close it to the public in 2004 there was widespread, frequent and intensive user, to different degrees, of most or all of the ways through Lissadell. The learned trial judge’s findings of fact on those issues are not contested on this appeal. Nor could they be. In the ordinary way, such evidence would be likely to lead to the inference of dedication of public rights of way. However, in the period in question, apart altogether from the fact that Sir Michael was a ward of court, he did not hold the fee simple title to the estate. He was a tenant in tail. By virtue of long established principles of the common law, he was incapable of dedicating public rights of way. Faced with this problem, the learned trial judge found a dedication to have taken place in the period from 1857 to 1861. For reasons already given, that conclusion was not sustainable as a matter of law. Consequently, the undoubted fact of widespread, not to say universal, public user of the ways through the estate from the early 1950s did not give rise, as might normally be expected, to an inference of dedication.
292. The foregoing statement has important implications for the ensuing period from 1982, when Sir Josslyn was the owner in fee simple in possession. The public continued the user of the ways through the estate as if they were indeed public rights of way. It is obvious that, even if mistakenly, they believed that to be the case. There was no break. There was a continuum.
293. This leads us to address the consequences of that continued user from the commencement of Sir Josslyn's title in 1982. We do this while bearing in mind that the High Court has made no finding of dedication during that period. At most, the learned trial judge found that Sir Josslyn made a number of admissions which became admissible as against the appellants.
294. It seems to us appropriate, in the first instance, to look at the circumstances of the admissions so found on the hypothesis that the user is being relied upon to establish the inference of dedication. It is a very striking fact that the learned judge fully accepted that, in 1993, the local people who were asserting the existence of a public right of way, including Councillor Leonard, made it clear that they intended to remove the obstruction placed on Forge Avenue “by force if necessary.” The judge found that the owner had “owner capitulated when confronted.”
295. The judge linked the second event of 2002 to that of 1993. He found that earlier experience had reassured those affected that the tree would be removed when requested.
296. The learned judge treated the response of the owner, Sir Josslyn, as amounting to acquiescence in the face of a direct challenge to his title. This, in our view, was an erroneous application of the law. It seems to flow from the judge’s view that public user is “right-creating” and that the law will ignore evidence of the owner’s opposition and will persist in making a finding of dedication. As already noted, he went as far as to say that for “acts of interruption to rebut the presumption, the acts must be intended to prevent the users from coming onto the property, and must be effective in achieving their aim.” (paragraph 110). By this process of reasoning, the judge was able to reject clear and obvious action by the owner in obstructing the claimed right of way and to prefer evidence of forcible removal of the obstruction.
297. This finding with regard to 1993 is crucial in view of the link the judge made between it and the later events of 2002, after a tree had fallen across the Main Avenue. We regret to say that the approach of the judge to these events was erroneous in law. There was no existing lawful public right of way when Sir Josslyn became owner in 1982. He and Mr Prins on his behalf exercised rights of ownership over the estate which were inconsistent with the existence of public rights of way. It is wrong to treat acts of opposition to the public right as amounting to admissions, most especially when those claiming the public right gave effect to their claim by force and with the threat of force. To treat the “capitulation” of the owner, if that is what it was, in the face of such action as an acknowledgement of the right is a reversal of the logic, whereby the public uses the way as of right and the owner, because he does nothing to object, is considered to have agreed to dedicate the way to the public.
298. We would not, given the circumstances in which they took place, regard the statements of Sir Josslyn in 1993 and 2002 as amounting to admissions of the existence of a public right of way. On neither occasion did the learned judge find that he had made any express admissions. At most, he said that he would speak to Mr Prins (in 1993) or see what he could do (in 2002). It is important to emphasise, in any event, that each of these claimed admissions relate to one avenue only: in 1993 to Forge Avenue; in 2002, to the Main Avenue. We have given separate reasons for holding that dedication of these avenues could not have taken place in 1857 to 1861, as found.
299. Furthermore, we do not consider these instances to constitute admissions capable of constituting evidence against the appellants. While the learned judge cited authority for the proposition that statements made by a person against interest are admissible against him and that, by extension, his silence when he might have been expected to answer (as in the case of the paternity suit), there is no warrant for an extension of that principle to making such evidence admissible against a successor in title who has no knowledge of the events. It would be a significant extension to the exception to the rule against hearsay to permit the silence of a predecessor in title during a private meeting leading to an inference of an admission that can be used in evidence against the successor, who was not privy to and never had any notice of the event. In the cases cited, the hearsay evidence seems invariably to have taken the form of a written document.
300. The learned judge entirely discounted the evidence that Sir Josslyn, in 2002 in particular, said that he did not want to fall out with his neighbours and that he had always had good relations with them. We have already pointed out that whether particular acts of user are to be treated as amounting to the exercise of a right requires account to be taken of all the circumstances. The fact that a landowner tolerates acts on his property by his neighbours does not mean that he always effectively creates a right. The law should not lean so heavily in favour of the creation of public rights that landowners will be deterred from being generous or tolerant of visitors in the words used in the cases, they should not be compelled to be “churlish” in the insistence on their rights.
301. We have come to the conclusion that the appeal must be allowed in respect of the routes marked B-C and B-D.
Route A-B-E
302. Separate consideration, however, is required in the case of route A-B and B-E.
303. Firstly, we address at the level of principle, the status of the coastal route generally. We have already reached the conclusion that the learned trial judge, having heard the evidence of the experts and, having carefully considered the maps and other historical evidence, came to a conclusion that the coastal route was the subject of a public right of way before 1819. This was an issue on which Mr Goodbody, the respondent’s expert, and Dr Costello, the appellants’ expert, had disagreed. The learned judge preferred the evidence of Mr Goodbody. In addition, the judge found as a fact that the presentment (no. 35) of 1814 related to expenditure on the Water Wall. This was at a location on the sea front practically adjoining the former Lissadell House. Clearly it was material to the protection of the existing road by preventing collapse and erosion from the activity of the sea. The learned judge was careful to hold that this evidence was not conclusive: it was evidence of reputation.
304. In our view, the learned judge was entitled to reach these conclusions. Nothing we have heard suggests that they were not soundly based in the evidence. This, however, does not resolve all issues regarding the status of the coastal route. As already stated, the former coastal route falls into three parts. Only that part running from the Bunbrenoige Bridge at the entrance to the Lissadell Estate as far west as the point B retains the line of the coastal route as shown on the Larkin Map.
305. We have referred to the difficulties concerning the Farm Avenue. It first appears on the Ordnance Survey map of 1885. There is no direct evidence concerning its creation. Unlike the Main Avenue and the Forge Avenue, it does not appear in the Ordnance Survey map of 1837. It will be recalled that Mr Clarkin thought the 1837 Ordnance Survey map to be the most detailed and described the 1885 map as a revision of it. Dr Costello referred to the Western Wood, which appears to be on the site of the former coastal road adjoining Johnsport was planted about 1827 to 1830. In simple terms, we have no evidence of when the Farm Avenue came into existence except the 1885 map. Counsel for the respondent, at the hearing of the appeal, argued that the maxim: “once a highway always a highway” should determine the matter. She argued that the Farm Avenue should be regarded as a diversion of the former coastal route and should, for that reason, be treated as a highway.
306. Counsel has referred to Smith v Wilson [1903] I.R. 45 and to Dawes v Hawkins (1860) 8 CB (NS) 848. Each of those cases turns on its own facts. In Smith v Wilson, a lessee had blocked an existing public right of way but substituted another with a bridge and a path. On the surrender of the lease, it was found that the lessor had acquiesced in and adopted the dedication of the public right of way as so altered (see Madden J. page 62). The judge continued:
“Now the rights of the public as against the owner of land who closes up or obstructs a highway have been clearly settled from an early date. In Dunscomb’s case 1 Cro. Car. 366 it was held that if the owner of a close over which there was a public highway obstructs the highway, he is bound to leave a sufficient way over his close, and to maintain it at his own charge.”
307. Dawes v Hawkins is not a useful authority due to the unusual facts present in that case. There an adjoining owner who had obstructed the right of way. However, it was treated as good authority by Madden J. in Smith v Wilson for some statements of principle. Byles J. observed at page 1403:
“It is also an established maxim,--once a highway always a highway: for the public cannot release their rights, and there is no extinctive presumption or prescription.”
308. The High Court made a declaration that a public right of way exists over the Farm Avenue. The appellants say that there is no evidence of the existence of this avenue before 1885. That is when it first appears on the Ordnance Survey map. The respondent cannot dispute this fact. It says, however, that the Farm Avenue should be treated as a diversion of the historic right of way which the learned trial judge found to have existed along the coastal route prior to 1819.
309. In order to resolve this problem, the first point to be noted is that, as already stated, the learned trial judge’s finding of public user of the way was weak. He said that the “use of this road was limited and what traffic it generated was to a large extent generated by the fact that it was beside the football grounds at the west end of the estate.” We have already said that this finding would be insufficient to sustain an inference of dedication. It follows that the declaration made by the High Court is entirely dependant on whether this route can be treated as a diversion of the coastal route. On this issue, we have no evidence except the history of the maps. On that basis, there is no evidence at all of the existence of the Farm Avenue prior to 1885. The burden of proof on this issue lies on the respondent. It has failed to produce any evidence of when the Farm Avenue was created. It necessarily follows that it cannot produce evidence that it came into existence as a diversion of the old coastal route going west from point B on the map.
310. Moreover, if the Farm Avenue first came into existence contemporaneously with the Ordnance Survey map of 1885, it follows that it could not have been dedicated in 1857 to 1861.
311. For these reasons, the finding that there is a public right of way along route B-E cannot be upheld.
Route A-B: Coillte
312. Route A-B is shaded partly in yellow and partly in green on the map. As already explained, the part marked yellow was formerly part of the Lissadell Estate but, since 1968, it has been in the ownership of Coillte. It has never been owned by the appellants. Nonetheless, the High Court has made a declaration that a public right of way exists over that land.
313. Confronted with the objection by the appellants that he could not grant declarations of rights against either Coillte or the State, when neither was a party to the proceedings, the learned trial judge ruled that there was a simple solution. He said at paragraph 310:
“any decision in this case will only bind the parties to these proceedings, the findings of this court are binding inter partes only. The absence of other persons, such as Coillte or the State, does not prevent the court from determining the dispute between the protagonists here or from making a finding that the public have a right of way across Coillte land to the beach. Such determination or finding, however, is not a finding in rem, and either Coillte or the State may contest this Court’s determinations in such other proceedings they may wish to initiate.”
314. The learned judge drew attention to the fact that there was no dispute between the respondent and either Coillte or the State since neither of these bodies have sought to close down either the right of way along the Crushmore Avenue, or access to the Sea across the foreshore. This statement implies, of course, that Coillte accepts that a right of way exists, a proposition which is by no means clear.
315. The appellants submit that it is well established that all persons who have real interest in objecting to the grant of a declaration in legal proceedings should be joined in the action.
316. They refer to the evidence given in the course of the High Court hearing by Mr Tony Hennessy, Head of the Legal Department and Company Secretary of Coillte Teoranta. Mr Hennessy gave evidence that Coillte did not accept that a public right of way existed over the route claimed by the respondent to be subject to such a right and in respect of which the declaration was in fact made. Mr Hennessy said that Coillte’s view was that access to its land was based on its open-forest policy, which is permissive access. He said that Coillte would wish to resist any claim that there was a public right of way over its lands.
317. The respondent counters this reliance on Mr Hennessy’s evidence by saying that Mr Hennessy was not familiar with the lands at Ballygilgan, had never visited the area and had limited familiarity with the file. It says that Mr Hennessy’s evidence was of a very general nature and says that he could not comment on whether a public right of way existed. It does not accept that Mr Hennessy’s evidence consists of a denial on behalf of Coillte of the existence of a public right of way. It says that Coillte had not objected to the respondent’s resolution of 1st December, 2008.
318. These points made by the respondent are entirely wide of the mark. Mr Hennessy’s familiarity with the case, the land or the file is not relevant to the key point. He gave evidence as secretary of Coillte. He stated Coillte’s policy and explained its interest. Several suggestions made by the respondent, like the argument made in the High Court, and accepted by the learned trial judge, that Coillte was not denying the existence of a right of way highlights the very real interest of Coillte in the subject-matter of the action. They tend to imply that a public right of way in fact exists.
319. The appellants cite the decision of the House of Lords in London Passenger Transport Board v Moscrop [1942] A.C. 332. An employee of the appellants was not permitted to be represented by his own trade union at a disciplinary hearing, whereas members of another union, the Transport Union, had that right. He sought a declaration that the condition in question was unlawful. Lord Maughan said at page 345:
“…the persons really interested were not before the court, for not a single member of the Transport Union, nor was that union itself joined as a defendant in the action. It is true that in their absence they were not strictly bound by the declaration, but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by a court in their absence, and that, except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise, before a declaration affecting their rights is made.”
320. The learned trial judge, at paragraph 310 of his judgment, said that res judicata would not apply to Coillte, which might contest the court’s determinations in any proceedings they might wish to initiate. In this context, he cited Hue v. Whiteley [1929] 1 Ch 440 and Jones v. Bates [1938] 2 All E.R. 237. However, neither case concerns whether the principle of res judicata is applicable when a declaration is made affecting the rights of someone not party to proceedings. In each of those cases, a defence of a public right of way was raised against a claim in trespass. In each case, the plaintiff was the owner of the land over which the right of way was claimed. Neither of those cases, therefore, decides that a claim of public right of way or any other public right may be maintained in personam over the lands of a third party.
321. In our view, it is contrary to fundamental principle for a court to grant a declaration of right, especially of a public right, over the property of a party not a party to the action. It is no answer to say that the declaration operates in personam only, i.e., as between the two parties to the action. That would be to say that A has established as against B that A has a public right of way over the property of C. Such a declaration would be worthless, as it would have no effect at all insofar as C was concerned.
322. Turning to the facts of the present case, it is all the more clear that the declaration should not have been granted. The respondent has effectively taken the stance that there is no issue about whether there is a right of way over the land of Coillte. It has either asserted or implied that such a right exists. When a witness from Coillte contested the claim, the respondent sought to discredit or diminish the value of his evidence. All of these points demonstrate the need for Coillte to be represented before any declaration could be made affecting its rights.
323. It does not follow from any of this that there is not a public right of way over the Coillte land. The appellants have sought, in reliance on evidence of substantial changes in the routes which now pass through the Coillte lands, to persuade the Court that there is no public right of way. For the reasons already given, the Court cannot pronounce on that question. It can only say that, in the absence of Coillte, no declaration should have been made affecting its lands.
324. The result is that the Court upholds the determination of the High Court that there is a public right of way along so much of the route A-B as is within the property of the appellants. The rule that there should be a terminus ad quem, so that public right of way ends in access to a public road, does not prevent the making of the declaration in this case. It is well established that there may be a public right of way leading to a place of natural beauty, such as the beach at Lissadell. Moreover, the doubtful status of the route through the Coillte lands would not dissuade the Court from granting such a declaration, when the facts as found by the learned trial judge are of overwhelming use of the route A-B, even if that is by reason of the open access policy operated by Coillte.
325. The result is that the Court should allow the appeal in respect in respect of routes B-C and B-D and B-E and in respect of that part of route A-B which is not part of the property of the appellants. I would dismiss the appeal in respect of that part of route A-B which lies within the appellants’ property as well as route B-E.
Right of Parking
326. A number of final questions of detail need also to be considered. Firstly, the appellants complain that a public right of way does not extend to include the right to park cars along the way. The decision of the learned trial judge on this point was as follows (paragraph 298):
“I accept the evidence of those witnesses who said that there was limited parking near the Water Wall over the years and I hold that such right to park for those visiting the Water Wall as a terminus, was also part of the dedication, but only to the extent that it does not obstruct passage on the roadway for other vehicles and particularly, but not exclusively, for vehicles used by the plaintiffs in servicing the Alpine Gardens or vehicles used by the plaintiffs’ tenants in connection with the Fish Farm. I am not, however, prepared to hold that the right to park at or near the Alpine Gardens should require any alteration or adjustment to the recent landscaping carried out by the plaintiffs in that area.”
327. The High Court order of 3rd February, 2011, granted a declaration of a right of parking in the following terms:
“Parking near the Water Wall during daylight hours only and in respect of those visiting the Water Wall as a terminus only and provided vehicular passage of the roadway is not obstructed particularly but not exclusively in respect of vehicles used by [the appellants] in serving the Alpine Gardens or vehicles used by [the appellants’] tenants in connection with the Fish Farm.”
328. The appellants dispute the right of the High Court to declare a right of public parking as an adjunct to a public right of way. Such a right of parking is not known to the law. The learned trial judge did not provide any judicial analysis of the nature of the right.
329. The appellants submit that a public right to park in a defined space would leave the owner of the soil without any reasonable use of his land, and would render his ownership of land illusory: every member of the public would have the right in the area defined. It cannot be correct that a public car park can be created in the heart of private property.
330. The declaration made by the High Court is not related to any ordinary right of stopping temporarily during a journey along a public road. The terms of the declaration made by the High Court are limited to “right to park for those visiting the Water Wall as a terminus…” The qualification to the effect that those parking their cars should “not obstruct passage on the roadway for other vehicles” is no more than a statement of the general law. As the respondent points out in its written submissions, this is a matter governed by the law of nuisance.
331. The appellants say that a map prepared by the Respondent’s engineer John Owens not only shows parking on a two foot wall and a flower bed that is recorded as a feature since 1837, but also shows parking ‘off the road’, ‘blocking’ user of the avenue, and blocking the entrance to the cottage and to the Alpine Garden, and it shows parking on the appellants’ lands, which have been extensively restored and landscaped.
332. The appellants say that it is not possible to exercise this claimed right of parking without blocking the avenue, or trespassing on the appellants’ lands, either on the landscaped areas by the Alpine Garden, or on the cut grass verges, or on the two foot high stone wall border to the 19th century flower garden by the avenue, or on the driveway to the cottage by the Alpine Garden or the slipway.
333. The respondent counters the complaints made by the appellants regarding the grant of rights of parking by emphasising that under the ordinary law of nuisance, users of the highway are not entitled, for example, to park vehicles so as to obstruct the highway. This does not, of course, address the point that the declaration made in the present case involves the grant of a right to park cars not merely on the highway or public right of way as declared but on land owned by the adjoining proprietor.
334. In short, the declaration made by the High Court provides a right for the general public not merely to pass and repass along the route of the public right of way to park cars, not merely along the route of that way, but on adjoining land, which is the property of the appellants.
335. To deal with this point, it is appropriate to refer to the counterclaim made by the respondent. In the counterclaim itself, at paragraph 5 A., it claimed a declaration that the roadways were subject to “rights of way, together with the ancillary rights to stop and park, in favour of the public.” In its reply to a request for further particulars on 17th December, 2009, it said that a map would be furnished showing “parking near the water wall.” It said that the claim was:
“The rights of the public to stop and park extends to all of the rights of way marked yellow on the map annexed to the Defence and Counterclaim and such user must not constitute an obstruction to the rights of way or an encroachment on the lands of the Plaintiffs not subject to the rights-of way.” (emphasis added)
336. It is clear, however, that, in the course of the hearing, the claim was extended to include “encroachment on the lands of the Plaintiffs.” Mr John Owens, an engineer with the respondent gave evidence and produced a map showing “parking just off the road.” (emphasis added).
337. It is clear, therefore, both from the terms of the High Court order and the evidence given by and on behalf of the respondent, that the public right of way has been granted so as to include an ancillary right to park on the adjoining lands of the appellants.
338. The learned trial judge found at paragraph 298, that the “right to park for those visiting the Water Wall as a terminus, was also part of the dedication…” The dedication he was speaking of was, of course, what he found to have taken place in the period from 1857 to 1861. We have already held that it was not possible to make a finding of dedication at that time, based on user commencing in the 1950s, a point which applies with even greater force to the notion the Sir Robert Gore-Booth and his son could have had in their contemplation the parking of motor cars, yet to be invented, on their land. There was no evidence, and no suggestion, that any corresponding activity took place in the period of the Larkin Map.
339. The grant of a right of parking off the route of a public right of way, including the public road, entails the creation of a public car park on private lands. No authority has been produced for the proposition that such a right can be made ancillary to a public right of way. It seems contrary to the principle that a public right of way does not extend to a jus spatiendi. Costello J., in Smeltzer v Fingal County Council [1998] 1 I.R. 279, already cited, said at page 286:
“But it is well established that there can be no common law right in the public or customary right in the inhabitants of a particular place to stray over an open space i.e. that is there is no jus spatiendi (see Halsbury's Laws of England (4th ed.), vol. 34 para. 500, and Attorney General v. Antrobus [1905] 2 Ch. 188). I do not think that Giant's Causeway Co. Ltd. v. Attorney General [1905] N.I.J.R. 301 is an authority to the contrary. In that case, the court expressly held that no jus spatiendi existed and decided, on the facts established before it, that a public right of way over a road to the Giant's Causeway existed, and not over certain pathways.”
340. In our view, the grant of the additional ancillary to park motor cars off the route of the public right of way cannot stand and should also be set aside.
341. We have concluded that, for a number of reasons, the finding of dedication made by the learned trial judge in the period 1857 to 1861, during which time the estate was not entailed, cannot be sustained. The learned trial judge, however, also expressed the view that the law stating that there cannot be dedication during a period of entailment should not be followed. In the circumstances of the present case, for reasons already given, we are of the view that the evidence of user during the period from the early 1950s could not, in any event lead to an inference of dedication. In the period of wardship, we have given reasons for concluding that there was not dedication by the President of the High Court. Even though the learned judge did not find any separate act of dedication during Sir Josslyn’s occupation after 1982, we have, for the sake of completeness, addressed that issue and have concluded that the continued user during that time could not lead to an inference of dedication. For these reasons, it is not necessary to reconsider the long-established legal rule that only the fee simple owner can dedicate.
Conclusion
342. For the reasons given in this judgment, we propose that the Court allow the appeal insofar as the High Court granted declarations of public rights of way over routes: B-C; B-D; B-E and that part of A-B which is not the property of the appellants. We would dismiss the appeal in respect of the part of route A-B which runs from Bunbrenóige Bridge (which, in the interests of clarity we mark as point F) in a westerly direction to point B. In addition, we propose that the appeal be allowed against the grant of any right to park motor cars on the land of the appellants not subject to a public right of way.
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