The High Court has rejected a claim by the estate of Ruth McKinney to two rights of way across the former Oatfield sweets factory site in Letterkenny, finding that the family’s use of the routes was tolerated rather than exercised as a legal right.
The judgment, delivered by Mr Justice Gilligan on 29 July 2015, concerned a dispute between Zopitar Limited, which owned the factory lands, and Harold Jacob, named as defendant in his capacity as administrator ad litem of McKinney’s estate. The court said the first stage of the proceedings was limited to deciding whether the claimed rights of way existed.
McKinney’s estate claimed access from the De Valera Road across the factory yard to Oatfield Bungalow, and a second route used by gardeners to reach the rear garden. The company sought declarations that no rights existed, along with injunctions and damages. The estate sought declarations recognising the routes and an order to register them against the land title.
The court accepted that people regularly crossed the yard after the De Valera Road entrance was built in 1982. Oil lorries used the route, sometimes two or three times a year; psychiatric nurses visited McKinney’s home, at times weekly; and gardeners used another route to reach the garden. The gates were locked outside factory hours. When access was needed after hours, people asked factory staff to open them. Keys held by the McKinney family were for emergencies and were not used to open the gates for ordinary access.
Justice Gilligan assessed whether use between 1991 and 2011 was sufficiently open and adverse to establish a prescriptive right. He found that Ira McKinney, who owned the bungalow until 1999 and was a director, chairman and substantial shareholder in the family company, had not used the yard in a way that asserted a right against the company. His position within the business made permission or family access a more plausible explanation.
The judge also found that Ruth McKinney signed a 1999 share sale agreement containing warranties that the company property was not affected by rights of way. No claim had been pleaded to set that agreement aside. The court said the agreement was not the sole basis for its decision: the wider evidence showed that neither father nor daughter had alerted the company that they claimed a legal right. It found the second route had been raised only months into the proceedings and was an afterthought.
The court concluded that there had never been a legal right to use either route and that the use from 1982 to 2011 did not establish an adverse right of way. It did not set out the final order or decide the company’s claims for injunctions and damages in this judgment; the judge said he would hear submissions on the form of the order.