Walker -v- Leonach & Anor [2012] IEHC 24 (08 February 2012)

Walker -v- Leonach & Anor [2012] IEHC 24 (08 February 2012)

The evidence did not establish, on the balance of probabilities, that there was a public right of way over the plaintiff’s land. There was insufficient evidence of dedication by any landowner with capacity, no public expenditure or maintenance, and the user was sporadic, referable to toleration rather than acquiescence. The court has no jurisdiction to grant a declaration in rem, and the proceedings are determined as between the parties only.

Citation
[2012] IEHC 24
Parties
Plaintiff: Joseph Walker; Defendant: Niall Leonach; Defendant: Noel Barry
Jurisdiction
Ireland
Judgment Date
08 February 2012
Procedural Posture
Plenary Proceedings / High Court Judgment After Full Hearing
Outcome
Plaintiff’s claim for declaration that his land is not subject to a public right of way succeeds as between the parties; defendants’ counterclaim fails.
Legal Topics
Public Right of Way, Dedication and Acceptance, Easements, Injunctions, Lis Inter Partes, Attorney General Fiat, Landowner Rights
Property Law Civil Procedure Public Right of Way Dedication and Acceptance Easements Injunctions Lis Inter Partes Attorney General Fiat +1 more

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Parties

Joseph Walker

Plaintiff

Niall Leonach

Defendant

Noel Barry

Defendant

Procedural Posture

Plenary Proceedings / High Court Judgment After Full Hearing

Legal Issues

  1. 1 Whether a public right of way exists over the plaintiff’s land at Annacrivey, Enniskerry, County Wicklow
  2. 2 Whether the plaintiff is entitled to a declaration that his land is not subject to a public right of way
  3. 3 Whether the defendants are entitled to a declaration that a public right of way exists

Ratio Decidendi

The evidence did not establish, on the balance of probabilities, that there was a public right of way over the plaintiff’s land. There was insufficient evidence of dedication by any landowner with capacity, no public expenditure or maintenance, and the user was sporadic, referable to toleration rather than acquiescence. The court has no jurisdiction to grant a declaration in rem, and the proceedings are determined as between the parties only.

Court Disposition

Plaintiff’s claim for declaration that his land is not subject to a public right of way succeeds as between the parties; defendants’ counterclaim fails.

Orders

  • Declaration that, as between the parties, there is no public right of way over the plaintiff’s land at Annacrivey, Enniskerry, County Wicklow.
  • Injunction restraining the defendants from entering the plaintiff’s land without permission.