The High Court has rejected a claim by Gerald Larkin and Larkin Quarries Limited to have the title of commonage owner Seamus Scanlon extinguished through adverse possession. The court said it would hear further submissions on whether a restricted order should be made, so that issue was not decided in the judgment.
Mr Justice O’Keeffe delivered the judgment on 27 January 2011 in an appeal from the Circuit Court. The dispute concerned commonage at Bovroughaun, Co Galway, where Scanlon was registered as owner of a one eighty-seventh share. He had sought to restrain quarrying on the lands, alleging that the defendants had entered and begun quarrying without authority.
The first three defendants’ defence claimed that Gerald and James Larkin, and their predecessors, had used and possessed land for more than 50 years, and that Scanlon and his wife had encouraged their development of it. The defendants argued that the claim was barred by the Statute of Limitations. On appeal, the defendants’ case focused on a claimed fence erected across the land in 1958 and the associated claim to adverse possession. James Larkin was removed from the case by agreement; Galway County Council was not a party to the appeal.
The judge found that the defendants had not established that the extensive fence they described had been built in 1958. He was not satisfied that the claimed fencing was of sufficient extent or quality to exclude the commonage owners, or that it had been maintained or supervised. He also found little or no stone was taken from the claimed lands in 1958, and was not satisfied that the area had then been fenced for grazing cattle, horses or donkeys.
The court found that intensive quarrying in a defined area was likely to date from 1995, while allowing that explosives may have been used in isolated areas and stone collected during the 1980s. It also accepted surveyor Brendan Arrigan’s evidence about differing maps submitted for the defendants’ claims, which showed substantial variation in the area and boundary claimed.
The judge found that the defendants had not proved the necessary intention to possess the land or sufficient exclusive physical control for the required period. He concluded that their adverse possession claim to Scanlon’s interest had not been established. The judgment did not determine whether a restricted order in the defendants’ favour should be made; the judge said he would hear the parties on that question.