The High Court found that water pipes laid across shared land in Donegal without a co-owner’s consent amounted to a continuing trespass, but deferred any removal injunction pending a compulsory purchase process. It assessed damages for the landowner at €7,500 and said it would hear the parties on costs and the terms of the order.
In a judgment delivered on 8 May 2008, Mr Justice Kevin Feeney said Catherine McKeever owned a one-seventeenth share of about 170 acres known as the Commonage, in Ballyoghagan and Rosepenna, County Donegal. The Island Roy Group Water Scheme laid a pipe across the land in September 2000 to supply homes on Island Roy, whose residents had relied on wells that could run dry or become contaminated.
The court found that the group and Donegal County Council proceeded with the works knowing McKeever had not consented. The group believed she might agree once other co-owners signed way-leaves, but the court said that expectation did not amount to permission. McKeever had objected before and during the works and began proceedings shortly afterwards.
The judge held that entry onto the land without the consent of all its owners was trespass, and that the pipes remaining in place created a continuing trespass. He found no significant damage to the land or diminution in its value, and said its use had not been altered. He also rejected exemplary or punitive damages, finding no reckless or wilful disregard of McKeever’s rights.
McKeever sought a mandatory injunction requiring the defendants to remove the pipes and restore the land. The court said she was prima facie entitled to an injunction, but immediate removal would cut off a clean and constant water supply to homes and cause substantial hardship. Two compulsory purchase orders were in process to acquire way-leaves for the pipes and provide a route to compensation for the landowners.
The court ordered that any injunction take effect only six months after that process is finally completed, and only if it does not result in final orders and compensation being paid. If the process secures the way-leaves, no removal injunction is to issue. If an injunction takes effect, the defendants may enter the land to remove the pipes and restore it.
The €7,500 damages were assessed for loss, inconvenience and distress up to the potential start of an injunction or successful completion of the way-leave process. The judge said the case should have been brought in the Circuit Court and reserved the question of costs, including costs of the interlocutory proceedings, for a further hearing.