The Gazette 1986

GAZETTE

JULY/AUGUST

sheds and fencing on it, and the cultivation of the land, did not constitute adverse possession against the owners who intended to develop the land when that became possible. 15 Sellers L.J. said that he could not accept that owners would lose their rights "merely by reason of trivial acts of trespass or user which in no way would interfere with a contemplated subsequent user." 16 Triviality is, of course, as Ormrod L.J. pointed out in Wallis's Holiday Camp -v- Shell-Mexj 1 a relative concept and the same act of trespass may be highly significant to the owner of a house and garden, yet utterly trivial to a property déveloper or an industrialist who has no immediate use for the land affected. Ormrod L.J. went on to point out that in Leigh -v- Jack the trespass, if viewed in isolation, was massive yet in no way prejudiced the purposes which the owner had in mind for her land. Similarly, in Williams Brothers Direct Supply Ltd. -v- Raftery the defendant's trespass amounted to a virtual occupation of the disputed land but in no way affected the owner's practical, as opposed to their legal interests. In neither case did time run against the owners and that seemed reasonable to Ormrod L.J. "since the interests of justice are not served by encouraging litigation to restrain harmless activities, merely to preserve legal rights, the enjoyment of which is, for good reason, being deferred." 18 The most succinct formulation of the test of possession is contained in the speech of Lord O'Hagan in Lord Advocate -v- Lord LovaO 9 who said that possession "must be considered in every case with reference to the peculiar circumstances . . . The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests — all these things . . . are to be taken into account in determing the sufficiency of a possession." The only apparent limit on the time within which an owner must bring an action to recover his land from an intruder in circumstances where the latter is not using the land in a manner which is inconsistent with the owner's ultimate purpose for the land is provided by the equitable doctrine of laches which is defined as a substantial lapse of time coupled with the existence of circumstances which would make it inequitable to enforce a claim. 20 In the Cork Corporation case, however, although the Defendant had been in occupation of the disputed land for upwards of twenty- five years, and, as Egan J. pointed out, the Corporation could not be relieved of some criticism with regard to laches in pursuing their claim the learned judge applied the doctrine only in the limited sense of not making an Order for costs in the Circuit Court or the High Court. There is also the possibility of an estoppel arising in favour of the intruder as shown by the decision of Finlay P. in McMahon -v- Kerry County Council 21

where the defendant Council had erected two houses in the Plaintiffs' land. In that case, however, the edstoppel was held to arise before time had run in favour of the Council and the Court did not have to address the question whether the erection of the houses was consistent with the owners' ultimate purpose for the land. Indeed the owners had long abandoned the purpose for which they had acquired the land, which was the erection of a Secondary School, but, in any event, the present writer believes, that had time run in favour of the Council at the time of the action the Plaintiffs would have been held to have been dispossessed by the adverse possession of the Council. Finally, the problems posed by the Cork Corporation case are similar to, but distinguishable from, those which came before Kenny J. in Browne -v- Fahy. 11 In the latter case the owners of land had granted a licence to graze cattle on their lands. The licencee had planted trees to provide shelter for the cattle, drained and manured the land and erected fences along a boundary with a main road. He had also collected money from campers who used the land. Kenny J. held that these acts of the licencee were consistent with the licence and did not constitute adverse possession against the owners. Kenny J.'s conclusion is consistent with the principle that to constitute animus possidendi the acts of the intruder cannot be referrable to any right other than his own adverse possession. • 2. The cases do noi make il clear whether this intention must be formed at the time the land is acquired by the owner. 3. Unreported judgment delivered-the 26th July, 1985. Circuit Court Record No. PB/1984. 4. Egan J. pointed out that a North Ring Road was mooted almost forty years ago and had since become a partial reality. 5. (1879) 5 Ex.D. 264,272. 6. [1975] l.Q.B. 94, 103. 7. [1952] I.R. 56. 8. "The Time Limit on Actions" (1909) at p.39. 9. [1952] I.R. 56, 59. 10. See Dundee Harbour Trustees -v- Dougall (1852) 1 Macq. 317, 321 (per Lord St. Leonards). 15. The owners had been denied planning permission for the land. 16. [1958] l.Q.B. 159, 173. See West Bank Estates Ltd. -v- Arthur [1967] 1 A.C. 665, 678. 17. [1975]l.Q.B.94,115. 18. Ibid at p. 116. 19. (1880) 5 App. Cas. 273, 288. See also Johnson -v- O'Neill [1911] A.C. 552, 583, and Irby -v- Cowderoy [1912] A.C. 599, 603. 20. See Brady and Kerr, The Limitation of Actions in the Republic of Ireland, (1984) at pp.97 etseq. 21. [1981] I.L.R.M. 419. See Brady and Kerr at pp. 105, 106. 22. Unreported High Court judgment delivered the 25th October 1975. Footnotes 1. [1980] I.R. 183. 11. [1975] 1 Q.B. 94, 114. 12. [1968] 1W.L.R. 804. 13. [1975] l.Q.B.94, 103. 14. [1958] l.Q.B. 159.

143