The Court of Appeal dismissed an appeal by Niall Leonach and Noel Barry over a claimed public right of way across land at Annacrivey, Enniskerry, Co. Wicklow. It upheld the High Court’s decision in principle that the landowner, Joseph Walker, could obtain a negative declaration against the two appellants, but directed that the order be narrowed to make clear it applied to them alone.
The court said the appellants had not proved that a public right of way existed along the route marked A to K on the judgment map. The case concerned a claim raised as a defence to Walker’s action; the appellants had not sought a declaration of their own that the route was public.
The High Court had granted a declaration that Walker’s lands were not subject to a public right of way. On appeal, the Court of Appeal stressed that this could not settle the rights of the public at large or bind other owners along the route. Wicklow County Council and other landowners were not parties, and the court said their absence limited the orders available. The declaration was to operate in personam against Leonach and Barry, not in rem against the world.
The dispute involved maps depicting a route over several centuries, accounts of walkers using it, and evidence about the land’s ownership and features. The appeal court accepted that the trial judge was entitled to find the route was probably an estate access track during the Powerscourt family’s ownership. The appellants had not established the necessary public use as of right, conduct by an owner showing an intention to dedicate the route, or public acceptance of any dedication.
The court also noted that a cottage stood across the claimed route and that the appellants had not adequately addressed its significance. Evidence said to come from a Wicklow County Council survey, which allegedly recorded an acknowledgement of the route by Walker and his wife, had not been properly proved at trial. The trial judge had ruled it inadmissible.
The appeal court said the appellants’ failure to prove the claim did not establish whether a public right of way exists for other people. Because the orders were in personam, a future court could consider the issue afresh if new or different evidence were presented. The appeal was dismissed, subject to modification of the declaration.