The Gazette 1985

198

JULY/AUGUST

GAZETTE

field abutting the lane, saying that there was no entry from the field onto the lane and furthermore that the lane was private property. Thereupon the auctioneer in question visited the field and erected a gate thereon leading onto the lane, without any further objection from the said Respondent. The said Respondent also claimed that he had had to widen and surface the path and remove the ditch in order to get planning permission for a housing development on his lands. He understood that he owned at least half the path. HELD that the lane had been' deliberately constructed as a pathway dividing many different holdings of land and as a connecting link between two main highways with substantial boundaries on each side and adequate surfacing materials along its entire length to make it suitable for use by a rural community to the extent that it was used by the Plaintiffs predecessors in title as a means of access to their lands which abutted onto the lane and by other adjoining landowners for like purposes. No one appears to have challenged or contested such user until the intervention by the first named Respondent at the auction in 1974. This challenge was immediately taken up by the auctioneer and his client and when they proceeded to enforce the claim to a right of way the said Respondent took no further action to maintain his objection. When the said Respondent came to develop his own lands for building purposes he had no compunction about clearing away all the briars and bushes, doubling the available width of the lane and re-surfacing same in so far as was necessary to accommodate his building project, although in doing so he appears to have interfered with substantial parts of the lane which were not in his ownership, but rather were registered on the title of a number of different owners. He was entitled to do this because he, along with the other landowners adjoining the lane, is one of the dominant landowners who are entitled to keep the servient tenement, consisting of the right of way, in good repair and condition for whatever use they are entitled to make of it. The Respondent further contended that even if the evidence established the existence of a prescriptive right of way over the path, in favour of the Plaintiff and other adjoining landowners, such right of way must now be regarded as having been extinguished by non user over a considerable number of years. Dawes -v- Hawkins [1860] 8 CB (ns) 848 was referred to to support the maxim "once a highway, always a highway", for the public cannot release their rights and there is no extinctive presumption or prescription. However, in the case of a private right of way the following authorities establish that mere evidence

counts jurisdiction in the matters of family law and custody of children and maintenance under consideration in these proceedings. What was called the right of access to the courts was essentially a right to have recourse to justice and to have judicial determination in matters or questions of a disputable nature whether civil or criminal. If and when and in so far as other courts of first instance established by law had jurisdiction in matters of family law and custody of children and maintenance, of the nature under consideration in these proceedings, it was competent for the High Court to decline to entertain applications for orders obtainable in such other courts, or to remit to such other courts for hearing applications brought in the High Court which were within the jurisdiction of such other courts. 1. The Sections of the Acts specified in the Schedule to the Plaintiffs Notice are valid and in accordance with the Constitution. 2. The jurisdiction of the High Court to hear claims of the nature set out in the Plaintiffs originating summons has not been restricted nor removed. 3. The High Court may accept or decline to accept for hearing in accordance with its own procedures claims for relief of the nature set out in the Plaintiff's originating summons. E.R. -v- D R. and By Leave The Attorney General, a Notice Party - High Court (per Gannon J.), 16 February, 1984 - unreported. Damian McHugh RIGHT OF WAY Abandonment of right of way acquired by prescription — loss of same — must be intention to abandon. The Plaintiffs who had purchased a holding of about 4 acres to the South of a mile long path, running from the main Dundalk/Dublin road to a Dundalk/ Blackrock road, sought a declaration to a right of way for all purposes to and from their lands, along the path to the public highways at either end. The evidence established the existence of this path from time immemorial, of gateways leading from different holdings on to the path and also of free and unobstructed user of the lane over many years, when same was required for purposes connected to the user of the adjoining lands. Evidence was given on behalf of the Respondents of the lane having been allowed to become overgrown and impassable over long periods. The evidence further established that the first named Respondent had interrupted an auction of the letting of a

of no user is not sufficient to bring about the extinguishment of a right of way or other discontinuous easement: Tehidy Minerals Ltd. -v- Norman [ 1971] 2 QB 528, 553, Cook -v- Mayor and Corporation oj Bath (1868) LR 6 Ex 177, R. -v- Chorley (1848) 12 QB 515, Ward -v- Ward 1 Ex 838, Crossely -v- Lightowler (1866) LR 3 Ex 279; (1867) 2 CL App 478 and Gotobed -v- Pridmore (1970) 115 SJ 78 in which the English Court of Appeal held that mere abstinence from user of a right of way was insufficient to establish an intention to abandon. Rather, what was required was conduct by the owner of the dominant tenement which made it clear that neither he nor any of his successors in title intended to avail of the right of way. In applying these principles it was held that the owners of the soil had long since ceded the right of way to the adjoining landowners and also, in all probability, to the public in general, to use to the fullest extent as a link road between the two highways and, furthermore that the evidence had failed to establish an intention on the part of the Plaintiffs or their predecessors in title, to abandon that valuable right. Gerard Carroll and James Carrol! -v- James Sheridan and Raymond Sheehan - High Court (per O'Hanlon J.) [1984] ILRM 451.

Copies of judgments in the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

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