391 / 406
GAZETTE
JULY/AUGUST
198
counts jurisdiction in the matters of
family law and custody of children and
maintenance under consideration in these
proceedings.
What was called the right of access to
the courts was essentially a right to have
recourse to justice and to have judicial
determination in matters or questions of
a disputable nature whether civil or
criminal. If and when and in so far as
other courts of first instance established
by law had jurisdiction in matters of
family law and custody of children and
maintenance, of the nature under
consideration in these proceedings, it was
competent for the High Court to decline
to entertain applications for orders
obtainable in such other courts, or to
remit to such other courts for hearing
applications brought in the High Court
which were within the jurisdiction of such
other courts.
1. The Sections of the Acts specified in
the Schedule to the Plaintiffs Notice
are valid and in accordance with the
Constitution.
2. The jurisdiction of the High Court to
hear claims of the nature set out in
the Plaintiffs originating summons
has not been restricted nor removed.
3. The High Court may accept or
decline to accept for hearing in
accordance with its own procedures
claims for relief of the nature set out
in the Plaintiff's originating
summons.
E.R.
-v-
D R. and By Leave The Attorney
General, a Notice Party - High Court (per
Gannon J.), 16 February, 1984 -
unreported.
Damian McHugh
RIGHT OF WAY
Abandonment of right of way acquired by
prescription — loss of same — must be
intention to abandon.
The Plaintiffs who had purchased a
holding of about 4 acres to the South of a
mile long path, running from the main
Dundalk/Dublin road to a Dundalk/
Blackrock road, sought a declaration to a
right of way for all purposes to and from
their lands, along the path to the public
highways at either end.
The evidence established the existence
of this path from time immemorial, of
gateways leading from different holdings
on to the path and also of free and
unobstructed user of the lane over many
years, when same was required for
purposes connected to the user of the
adjoining lands. Evidence was given on
behalf of the Respondents of the lane
having been allowed to become
overgrown and impassable over long
periods. The evidence further established
that the first named Respondent had
interrupted an auction of the letting of a
field abutting the lane, saying that there
was no entry from the field onto the lane
and furthermore that the lane was private
property. Thereupon the auctioneer in
question visited the field and erected a
gate thereon leading onto the lane,
without any further objection from the
said Respondent. The said Respondent
also claimed that he had had to widen and
surface the path and remove the ditch in
order to get planning permission for a
housing development on his lands. He
understood that he owned at least half the
path.
HELD that the lane had been'
deliberately constructed as a pathway
dividing many different holdings of land
and as a connecting link between two
main highways with substantial
boundaries on each side and adequate
surfacing materials along its entire length
to make it suitable for use by a rural
community to the extent that it was used
by the Plaintiffs predecessors in title as a
means of access to their lands which
abutted onto the lane and by other
adjoining landowners for like purposes.
No one appears to have challenged or
contested such user until the intervention
by the first named Respondent at the
auction in 1974. This challenge was
immediately taken up by the auctioneer
and his client and when they proceeded to
enforce the claim to a right of way the said
Respondent took no further action to
maintain his objection.
When the said Respondent came to
develop his own lands for building
purposes he had no compunction about
clearing away all the briars and bushes,
doubling the available width of the lane
and re-surfacing same in so far as was
necessary to accommodate his building
project, although in doing so he appears
to have interfered with substantial parts
of the lane which were not in his
ownership, but rather were registered on
the title of a number of different owners.
He was entitled to do this because he,
along with the other landowners
adjoining the lane, is one of the dominant
landowners who are entitled to keep the
servient tenement, consisting of the right
of way, in good repair and condition for
whatever use they are entitled to make of
it.
The Respondent further contended
that even if the evidence established the
existence of a prescriptive right of way
over the path, in favour of the Plaintiff
and other adjoining landowners, such
right of way must now be regarded as
having been extinguished by non user
over a considerable number of years.
Dawes
-v-
Hawkins
[1860] 8 CB (ns) 848
was referred to to support the maxim
"once a highway, always a highway", for
the public cannot release their rights and
there is no extinctive presumption or
prescription. However, in the case of a
private right of way the following
authorities establish that mere evidence
of no user is not sufficient to bring about
the extinguishment of a right of way or
other discontinuous easement:
Tehidy
Minerals Ltd.
-v-
Norman
[ 1971] 2 QB 528,
553,
Cook
-v-
Mayor and Corporation oj
Bath
(1868) LR 6 Ex 177,
R.
-v-
Chorley
(1848) 12 QB 515,
Ward
-v-
Ward 1
Ex
838,
Crossely
-v-
Lightowler
(1866) LR 3
Ex 279; (1867) 2 CL App 478 and
Gotobed
-v- Pridmore
(1970) 115 SJ 78 in which the
English Court of Appeal held that mere
abstinence from user of a right of way was
insufficient to establish an intention to
abandon. Rather, what was required was
conduct by the owner of the dominant
tenement which made it clear that neither
he nor any of his successors in title
intended to avail of the right of way.
In applying these principles it was held
that the owners of the soil had long since
ceded the right of way to the adjoining
landowners and also, in all probability, to
the public in general, to use to the fullest
extent as a link road between the two
highways and, furthermore that the
evidence had failed to establish an
intention on the part of the Plaintiffs or
their predecessors in title, to abandon
that valuable right.
Gerard Carroll and James Carrol!
-v-
James Sheridan and Raymond Sheehan -
High Court (per O'Hanlon J.) [1984]
ILRM 451.
Copies of judgments in the above
cases are available on request from
the Society's Library. The photo-
copying rate is lOp per page.
xx