Peter Colleen (plaintiff/appellant) v Yanny Peters, Niall Lenoach, North Wicklow Times Ltd and the Attorney General (defendant/respondents)
Land Law - Appeal against refusal of an application for a declaration of ownership of property claimed as a public right of way - Criteria for creation of right of way - Intention to dedicate - Whether commencement and termination of right of way at public place.
The High court (before Mr Justice O'Leary); judgment delivered June 19th, 2006.
To establish a public right of way what has to be proved is an intent on the part of the owner to dedicate his land to the public, an actual dedication, and the acceptance by the public of the dedication. Traditionally, a public right-of-way had to commence at a public place and/or terminate at another public place. Termination at another public place no longer applies where the claim is based on presumed dedication where the destination is a place of natural beauty requiring access.
Mr Justice O'Leary so held in upholding the appellant's appeal.
Michael Counihan SC with Peter Bland BL for the appellant; Cormac O'Dulachain SC with Anthony Mc Bride BL for the respondents.
Mr Justice O'Leary said the plaintiff sought a declaration concerning the status of a property of which he is the owner in the context of a claim by the defendants and others that a public right-of-way existed over the plaintiff property at folio 7072, Co Wicklow. In due course the proceedings against the first and third named defendants were terminated leaving only the second named defendant as the sole remaining defendant. This defendant took issue with the plaintiff over the existence of a public right-of-way over the plaintiff's property and filed a defence and counterclaim seeking the court's ruling on his right-of-way claim. As the matter had now in effect resolved itself into the one issue, i.e. of the existence or not of a public right-of-way the Circuit Court had previously ordered the notification of the Attorney General in accordance with normal practice. As is usual in such cases the Attorney General did not seek representation and the matter falls to be decided by the court on the pleadings and evidence of the parties. Despite the complicated nature of the pleadings and the multiplicity of the parties the issue resolved itself as to whether a public right-of-way existed. The Circuit Court decided that a right-of-way had existed and made consequential orders (by agreement moving the right-of-way from its traditional route, as found, to a more practical nearby existing route) including costs orders against the plaintiff. Against these findings the plaintiff (now in the effect the defendant to the counterclaim) appealed.
Mr Justice O'Leary said that the right-of-way claimed needed to be identified with some precision in view of the nature of the decision to be made. In that regard reference was made to a map of the area produced and entered into evidence by the plaintiff's cartographer, a copy of which has been placed on the court file. Mr Justice O'Leary said that the right-of-way claimed is a part of a pathway marked out. From point A (at the entrance to the path known as Lambe's Lane) the way proceeds to point B passing over the property of a Mr Clear and Mr Gantly (both of whom, though not parties to the action, gave evidence at the hearing). It then proceeds to point C using a long-established route (herein referred to later as the "old road"). This "old road" includes all the way between A and C through B. At point C (or at a point immediately to the west of C) the "old road" goes in a north-westerly direction and diverges from the right-of-way claimed that continues westward to the site of an old footbridge at point D (now no longer in existence though substituted by a different structure by agreement of the relevant parties). Mr Justice O'Leary said that the claim was for the declaration of a public right-of-way from B to C to D. While C to D is no longer in use (having been moved from C to E by agreement) all parties agreed and the court accepted that the right-of-way west of C stands or falls on the status of the original C to D route and not on the C to E substitute route. There was no claim or concession of a right-of-way between A and B nor was there any claim or concession of a right-of-way from point D westwards. Mr Justice O'Leary said that the effect of these limitations would be further considered later in this judgment.
Mr Justice O'Leary said that the evidence could be divided into a number of categories. First there was evidence of the cartographers, secondly the evidence of the users, many of whom were long-term local residents. Lastly the plaintiff and the second named defendant also gave evidence. A number of maps were produced which were of considerable assistance to the court. These included an 1838 Ordnance Survey map of the area and a further similar map of 1888 both to the scale of 6 inches to the mile, a composite map from 1909/1910 survey at a scale of 25.344 inches to the mile and finally, from the old estate maps of the Powerscourt Estate a number of maps showing the road structure in the relevant area in 1816. The evidence of the plaintiff's cartographer did not contradict that of the defendant. From the evidence of both cartographers Mr Justice O'Leary concluded that: a. the Lambe's Lane entrance and pathway is the same pathway as shown in the maps as produced and was in the earliest of these maps described as the "old road", b. it is clear this "old road" commenced at a public right-of-way. What was not clear from either the estate maps or the Ordnance maps was whether it joined another public right-of-way at the other extremity. A number of the estate maps produced did not cover the relevant area while the earliest Ordnance map had the road noted as unfenced at its north-western extremity. In later maps the area previously indicated as "unfenced road" appeared to have been incorporated in the surrounding land. One estate map dated 1816 showed the "old road" ending at "rocky heathy pasture" which rough area in turn appeared to stretch to the public road and c. there was no evidence of the existence of any track (not to mention a private or public right-of-way) from point C to point D though this area was covered in some of the maps and in particular in the 1816 estate map.
Mr Justice O'Leary also heard evidence from a number of witnesses with particular knowledge (mostly as users) of the area. Of particular interest to the court was correspondence in 1980 relating to the removal of the old footbridge and its replacement. Reference has already been made to the letter of September 1980 claiming a public right of way. Mr Justice O'Leary said that the basis on which this claim was made appeared to owe something to a lack of appreciation of the meaning of a public right-of-way. Of greater interest was the letter from the owner Mr Collen to the Forestry and Wildlife Service (now Coillte) dated December 1980, which owned the far side of the river on which the new bridge would partly rest. This stated as follows:
"Dear Sir,
I am the owner of some land on the north side of the Glencree River at Old Boleys/Aurora. There was an old bridge across the river and I would like to replace it downstream and would welcome your permission to do so. The main purpose is to be a convenience to the boys at the Aurora Club. I have checked with my insurance co. and my Public Liability Policy will cover any claims made against me. I will put a small notice on the bridge say that one must it at one's own risk. The bridge consisted of three strong logs.
Yours Sincerely."
Mr Justice O'Leary set out his factual conclusions from the evidence with regards to user as follows:
1. The way known as Lambe's lane is most likely part of the remains of an old road-way serving those living in the valley in particular those living along the north-western corridor which peters out in the old maps. That road may (or may not) have stretched as far as rejoining the now main Glencree to Enniskerry public road.
2. From point C on this way certain use was made of a short-cut over a crude log bridge at point D until this crossing was moved to point E in the early 1980s.
3. The pathway between C and D was used for many years by persons living in the valley to access the main Glencree to Enniskerry public road. This use decreased to almost zero as transport made other access points more suitable. Very little use for work or school was made of the pathway from the 1970s on. Other than locals (included in that description is those who stayed in the hostel) a minute number of recreational walkers used the way.
4. At point D going westwards those using the shortcut went directly to their destination so that there was more than one feeder path into that point coming from the west. The preponderance of the users approached from the hostel (Major Thunder's) direction.
5. The letter of December 1980 from Mr Collen is clear evidence that he still believed that he was the owner and occupier of the land between C and D. He was so concerned about his personal exposure that he notified his insurance company of the proposed structure. It refutes any suggestion that he had dedicated the way to the public at large.
Mr Justice O'Leary said that the law in this area is very clear. It is set out by Costello P in Smeltzer v Fingal County Council 1 IR 279 at p.287 as follows:
"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. A distinction is made between a permission granted by the owner of land to members of the public to walk on pathways on his land and the dedication of these pathways to the public. To establish a public right of way what has to be proved is an intent on the part of the owner to dedicate his land to the public, and actual dedication, and the acceptance by the public of the dedication."
Mr Justice O'Leary said that in the instant case there was no evidence that any owner starting with the Powerscourt family, any intervening owner including Mr Collen Senior and ending with the plaintiff actually dedicated the area between A to B or B to C or C to D to the public. Mr Justice O'Leary said that if the law as stated was the full story that would be the end of this case. However, the law had developed additional tenets to cater for cases where dedication is to be presumed. In theory the presumption requires continuous use by the public since "legal memory" commenced in the 12th century. In practice this is not applied strictly. In the case of Connell v Porter, unreported, December 18th, 1972, O'Dalaigh P stated the law as follows:
"Where 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."
Mr Justice O'Leary stated that obviously in the instant case the maintenance by the local authority did not arise so the public user without interruption was the only method open for a decision in favour of the counter-claimant. Mr Justice O'Leary stated that the court had held as a fact that the reason for its use was ease of access to the public road at its most convenient points. That use became obsolete with the arrival of the motor car which necessitated the bringing of the car to a point nearest to the dwelling notwithstanding the longer journey on the public road as the shorter walk to the house made the longer car journey irrelevant. The various paths from the houses to the public road converged at point D as a matter of convenience for the purpose of crossing the small river when in flood but to characterise this use as having anything in common with a public right of way was to retrospectively convert a local convenience into a right for the public at large. Mr Justice O'Leary found that the use of this pathway in the early to middle 20th century was characteristic of a neighbourly convenience probably not even amounting to a private right-of-way. It was clear that by 1980 the (temporarily resident) boys of the Aurora Club were considered the main users. Their use was occasional and sporadic. The evidence of use by other walkers and hikers was so small as to amount to no more than the kind of use on an unofficial basis of fields throughout the country by town's people for Sunday picnics.
Mr Justice O'Leary was satisfied that the route from C to D or any alternative route going westward across the Glencree river in that area had not now and never had the benefit of a public right-of-way. For reasons the court later explained Mr Justice O'Leary said that he would make no such determination in the case of A to B to C along the route of the "old road". The court had made the foregoing determination in the interest of certainty even though as it would now be seen, there were other reasons why a decision favourable to the counter-claimant could not be made.
Mr Justice O'Leary said that there is a long line of cases dealing with the necessity for a public right-of-way to commence at a public place and/or terminate at another public place (terminus a quo and terminus ad quem) except where there is an express dedication. The traditional view was that for a presumption of a public right-of-way public termini were necessary at both ends and examples such as O'Connor v Sligo Corporation (1901) 1 NIJR 116 and Re the Estate of Thomas Connolly (1871) 5 ILTR 28 support this proposition. It is clear however the strict application of that legal principle was disturbed in Giants Causeway Co Ltd v AG (1898) 5 NILJ 301 and now terminus ad quem does not apply where the claim is based on presumed dedication where the destination is a place of natural beauty requiring access and probably by extension in other exceptional circumstances. Mr Justice O'Leary said that the counter-claimant in the case appeared to be seeking to establish a completely new principle of law that a public right-of-way could be found to exist without express dedication in the absence of both termini. Such a proposition could have no prospect of success. Mr Justice O'Leary said that if the court had held that the circumstances existed which merited a declaration the pathway the subject of the claim was potentially a public right-of-way (which the court had not so found) it would also have to be satisfied that the potential public right-of-way had a terminus a quo and a terminus ad quem, in other words, started and finished in a place to which the public had access to as a right. Alternatively access from a public place might suffice in certain limited circumstances. The court considered the availability of access from the area the subject of the claim to the public roadways which in the instant case were the relevant access points. The court had no evidence that the easterly extension (A to B) of the area over which the claim was made is a public right-of-way. Mr Justice O'Leary said that it is possible that if all the relevant parties were notified and the issue litigated that such a finding could be made. It is also possible, of course, that the court would decide that no public right-of-way exists over A to B and/or A to C. At the present time (in the absence of all the relevant parties) the court could not presume that such a public right exists over A to B. Mr Justice O'Leary said that the westerly extension to the area under review is similarly land-locked. In order to reach the public road it would be necessary to go through land owned by Coillte and other land owned by the Glencree Society. While the Glencree Society appeared to support this application they seem to have acted in a manner which denied the existence of a public right-of-way through their own property as they erected a gate at the entrance to the public road thereby preventing people accessing the way through their property. The object of this obstruction was to restrict unauthorised access as the property wasbeing damaged. While the objective was understandable, the actions of the society in restricting all access (even pedestrian access) are wholly inconsistent with the existence of a right-of-way. Alternative access became available when Coillte opened an entrance for the extraction of timber and other works but this was not part of any agreement to substitute this entrance for the closed Glencree Society access point. Further, in so far as this new entrance allows access from the public road to point D, the evidence to the court was that this was the result of the "open access" policy of Coillte. "Open access" is a policy which is commendable from this public body but is not equivalent to a public right-of-way. Evidence was not given viva voce nor was any document produced confirming that there existed a public right- of-way through Coillte land. In the absence of such evidence the court could not presume its existence.
Mr Justice O'Leary said that both the easterly and westerly connectors to the public roads had not been proved to the court as being public rights-of-way. There were no alternative public accesses to the right-of-way claimed. This foregoing lead to a second reason why the counter-claimant could not succeed. Any declaration of a public right-of- way in the area claimed would have such a pathway surrounded by private land over which no such public right-of-way existed. It would be a public right-of-way consisting of an inaccessible island in a sea of private property.
Mr Justice O'Leary dismissed the counter-claim and indicated that he would hear the parties as to the nature of the order appropriate to the plaintiff's claim (if any) and would hear submissions on costs. Mr Justice O'Leary said this had been a very interesting case focusing the courts attention on the sometimes competing rights of property owners and walks. Mr Justice O'Leary said that it is open to the legislature within the limits of Bunreacht Na hEireann to address how to provide facilities for walkers while respecting the rights of property owners. What should be clear from this action was that the use of the concept of public rights-of- way as a mechanism for creating new or reviving old rights for walkers was unlikely to lead to a satisfactory overall solution.
Solicitors: Augustus Cullen & Son (Wicklow) for the appellant; Ken J. Byrne & Co (Dublin) for the respondent.
P.J.Breen, barrister