The High Court has rejected claims by two defendants to a private right of way across a lane on a plaintiff’s land in County Donegal, dismissing their counterclaim and granting the plaintiff a permanent injunction against trespass.
In a judgment delivered on 21 March 2013, Mr Justice Herbert found that no right of way benefiting either defendant’s lands existed over the plaintiff’s Folio 22454F. The dispute concerned a lane running between county roads at Gortkeeran and Glenmakee, which crosses the plaintiff’s land and continues through land owned by the first defendant.
The plaintiff bought his property in 1988. The court noted that no right of way was registered against the folio and that the seller’s statutory declaration and reply to a title requisition stated that none affected the property. The defendants claimed a right to travel along the lane on foot, with animals and in vehicles.
The judgment considered evidence of historic and later use. Witnesses described walking, cycling, riding, moving cattle and carrying turf along the lane. The judge said that use by members of the public as a shortcut did not establish a private right benefiting the defendants’ lands. He also found the evidence of alleged tractor journeys vague and lacking convincing detail.
The court rejected the first defendant’s claim that his use of the lane to carry turf or move animals established a right benefiting his inherited lands. It found that use by tenants who had taken land on an 11-month letting was for their personal benefit and could not establish an easement for the land itself. The court also found that the second defendant had no legal estate or interest in the field he claimed to benefit during the period of alleged use before it was registered in his name in 2008.
The judge found no right of way over the plaintiff’s land for the benefit of the lands identified in the proceedings. He dismissed the defendants’ counterclaim and awarded the plaintiff costs on appeal and in the court below. He also granted a permanent injunction restraining the defendants, their agents and people acting on their behalf from entering or trespassing on, or otherwise interfering with, the plaintiff’s lands. The plaintiff had given no evidence of special damage.