The Gazette 1986

GAZETTE

JULY/AUGUST

19

that in order to constitute adverse possession against the owner "acts must be done which are inconsistent with his [the owner's] enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the Plaintiff and her predecessors in title was not either to build upon or cultivate the land, but to devote it at some future time to public purposes." Egan J. also referred to the decision by the English Court of Appeal in Wallis's Cay ton Bay Holiday Camp Ltd. -v- Shell Mex and B.P. Ltd.* in which Lord Denning M.R. stated that "where the true owner of land intends to use it for a particular purpose in the future but meanwhile leaves it unoccupied, he does not lose his title to it simply because some other person enters it and uses it for some temporary purpose like stacking of materials." Because of what he described as a dearth of modern Irish authority on the matter and, since the relevant English statutes are close enough in wording to the 1957 Act, Egan J. regarded the English authorities as strong persuasive precedents in this jurisdiction. He therefore concluded that "adverse possession" within the meaning of the 1957 Act had not been established by the Defendant and he accordingly granted a decree for possession to the Corporation. Egan J. was not altogether correct in speaking of a dearth of modern Irish authorities on the matter. The principle formulated by Bramwell L.J. in Leigh -v- Jack had been applied in Convey -v- Regan. 1 In the latter case the Plaintiff, who had been in exclusive and uninterrupted occupation and possession of the Defendant's bog for upwards of thirty years, during which time he had cut and taken away turf for sale, was claiming a declaration that he had acquired a fee simple interest in the bog and was seeking an Order directing rectification of the Register of Freeholders in the County of Mayo. Black J., who regarded the book-law upon some aspects of the problem as somewhat nebulous, believed, however, that there were certain points on which the law was fairly clear and one of these was that there must be dispossession of the owner by acts inconsistent with his enjoyment of the soil for the purpose for which he intended to use it, for which proposition he cited Leigh -v- Jack. Black J. went on to say that his main consideration was the principle that the party relying on acts of user over a long period to establish title against the owner must show that the acts were done with animus possidendi and he adopted the statement in Lightwood* that "there is no such animus possidendi where the acts can be referred to some right short of ownership, as where they only involve a claim to an easement." Black J. held that the acts of cutting and taking away turf from the Defendant's bog were equivocal since though they might have been done with the intention of asserting a claim to the soil they may equally have been done merely in the assertion of a right to an easement or to a profit a prendre such as a right of turbary. 9 It would thus have been virtually impossible for an intruder to acquire title in these circumstances since the only feasible use of the disputed bog was that made of it by the Plaintiff, i.e., the cutting and taking away of turf. All cases of intrusion are not so easily resolved, however, and Black J . 's reasoning in Convey -v- Regan together with Egan J . 's adoption of the English

authorities in the Cork Corporation case lead to the interesting consequence that even though the owner fails to initiate action to recover his land from an intruder for upwards of twelve years he may recover the land if he can satisfy the court that the intruder's use of the land is not inconsistent with his, the owner's ultimate purpose for the land. The question of adverse possession will accordingly vary with the circumstances of each particular case and, at first blush, the element of uncertainty implicit in this approach would seem to me inconsistent with the rationale of the principle of limitation in its application to actions for the recovery of land which is the quieting of titles. 10 The policy objective underlying successive Statutes of Limitation, however, has been counterbalanced by a reluctance to allow an intruder or squatter to acquire good title against the owner which has led the courts to interpret the words "adverse possession" in Statutes of Limitation very narrowly. Ormrod L.J. put it thus in Wallis's Holiday Camp -v- Shell-Mex ." "The overall impression created by the authorities is that the courts have always been reluctant to allow an encroacher or squatter to acquire a good title to land against the true owner, and have interpreted the word "possession" in this context very narrowly. It is said to be a question of fact depending on all the particular circumstances of the case (Bligh -v- Martin 12 ) but, to the relatively untutored eye, it has acquired all the appearances of a difficult question of l aw." While the answer to the question of adverse possession in the particular case is thus not nicely solvable, or easily predictable, the dictates of common- sense would suggest that the use of another's land for some temporary, transient, purpose should not constitute adverse possession such as would deprive the owner of title. Examples of such uses, instanced by Lord Denning in Wallis's Holiday Camp -v- Shell- Mex, 13 are the stacking of materials on the disputed land or the use of it for some seasonal purpose such as the planting of vegetables. In Williams Brothers Direct Supply Ltd. -v- Raftery 14 the use of the disputed land for the breeding of greyhounds, the erection of some Summons Servers Ltd. I n t e r n a t i o n a l ly r e p r e s e n t ed in o v er 4 0 c o u n t r i e s. Summo ns Servers L imi t ed is available for service of all Court Documen t s, Summon s, Petitions, Citations, Probate, Debtors Summo ns t h r oughout Ireland and under Order 11 R.S.C. for Out of Ju r i sd i c t i on Cases on a wo r l dw i de basis.

R i chmond Chambers, 101 R i chmond Road, Dr umcond r a, Dub l in 3. Tel: 3 6 0 1 2 4 / 5 - 3 7 1 9 0 6 .

A subsidiary

of K Security

Private Investigations

Ltd

142