The Gazette 1986

JULY/AUGUST

19

GAZETTE

Adverse Possession And The Animus Possidendi by Professor James C. Brady Professor of the law of Property and Equity, University College Dublin.

T he Supreme Court affirmed in Murphy -v- Murphy 1 that the question whether possession of another's land by an intruder amounts to adverse possession within s. 18 of the Statute of Limitations, 1957 is to be answered by reference to the particular circumstances in each case. The Court held in Murphy that the possession claimed to be adverse must be inconsistent with the title of the true owner, such inconsistency involving an intention to exclude such owner from enjoyment of the estate or interest in question. 2 The lay person might well be forgiven for assuming that the exclusive use and occupation of the disputed land by an intruder for the requisite limitation period would bring about the extinguishment of the owner's title but occupation and use by an intruder will not, without more, have that effect and this paper is concerned with an important refinement of the test of adverse possession which involves that the Acts relied upon by an intruder must be inconsistent with the owner's enjoyment of the land for the purposes for which he intended to use it. 2 This question of intention becomes crucially important where, for example, an owner is obliged to defer development of his land because of lack of finance or otherwise, and , no immediate use being made of the land by the owner, an intruder enters and remains in exclusive occupation for twelve years or more. These were more or less the circumstances in The Lord Mayor, Alderman and Burgesses of the City of Cork -v- Thomas Lynch 3 which came by way of an appeal from the Circuit Court before Egan J. in the High Court on Circuit. The Plaintiffs/Appellants whom, for the sake of brevity, Egan J. called the Corporation, had brought Ejectment in the Title proceedings against the Defendant/Respondent in respect of a plot of land situated along Silverspring's Lane and Castle Avenue and abounding Lower Glanmire Road in the City of Cork. The Defendant had averred that he had been in possession of the said plot for upwards of twelve years without acknowledging the title of the Corporation thereto. The disputed plot adjoined a garage premises and forecourt which the Defendant had acquired almost thirty years ago and which he had occupied since then. Egan J. described the disputed plot as having a natural boundary on its northern side while the western and southern boundaries consisted of walls. Shortly after the commencement of his garage business the Defendant began to use the northern portion of the disputed plot, which was divided from the rest of it by a natural hedge, for the dumping of crashed cars. From around 1960 or 1961, the Defendant began to use the

remainder of the disputed plot for the purpose of parking customers' cars and cars associated with his self-drive business; as many as forty or fifty cars might be so parked. A chain link fence was built by the defendant along the boundary walls and the natural northern boundary around 1973 or 1974 and a wire fence constituting an internal boundary was also erected. There was no access to the disputed plot except through two gates along this internal boundary. The surface of the disputed plot was improved by chippings about twenty years ago and half of it was subsequently covered by tarmac. From around the time in 1960 or 1961 that the Defendant began to use the disputed plot for the parking of cars it seemed clear to Egan J. that there was no user of it, or any part of it, by any person or body other than the Defendant. Egan J. turned to s.l3(2)(a) of the Statute of Limitations, 1957 which provides that no action to recover land shall be brought by a person, other than a State authority, after the expiration of twelve years from the date on which the right of action deemed to the person bringing it. The learned judge was satisfied that there had been exclusive physical occupation of the disputed plot by the Defendant for upwards of the statutory period but the matter did not end there since s.15 of the 1957 Act provides that no action to recover land shall be deemed to accrue unless the land is in the "adverse possession" of some person in whose favour the period of limitation can run. Egan J. considered the circumstances in which the disputed plot had been acquired by the Corporation in 1965. It had not been compulsorily acquired, nor had it been specifically acquired, for the purpose of road widening or the building of portion of a new road, but the learned judge was nevertheless satisfied, that the intention of the Corporation at the time of its acquisition was that it should form portion of a North Ring Road. 4 It was argued, on behalf of the Corporation, that where a Local Authority acquires land it cannot be said to be dispossessed until something manifestly inconsistent with the ultimate purpose for which the land was acquired is done by the squatter such as, e.g., the erection of a major structure. Thus the erection of wire fencing, the laying of chippings and tarmacadam, and the use of the disputed plot as a car park did not amount to such occupation as would be manifestly inconsistent with the title of the Corporation which would not require physical occupation of the plot until it was in a position to proceed with the contemplated road building programme. Egan J. referred to Leigh -v- Jack 5 , a decision of the English Court of Appeal, in which Bramwell L.J. stated

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