The Gazette 1986

GAZETTE

JULY/AUGUST

Adverse Possession And The

Animus Possidendi

Professor James C. Brady

Professor of the law of Property and Equity, University College Dublin.

he Supreme Court affirmed in

Murphy

-v-

Murphy

that the question whether possession of

another's land by an intruder amounts to adverse

possession within s. 18 of the Statute of Limitations,

1957 is to be answered by reference to the particular

circumstances in each case. The Court held in

Murphy

that the possession claimed to be adverse must be

inconsistent with the title of the true owner, such

inconsistency involving an intention to exclude such

owner from enjoyment of the estate or interest in

question.

The lay person might well be forgiven for

assuming that the exclusive use and occupation of the

disputed land by an intruder for the requisite limitation

period would bring about the extinguishment of the

owner's title but occupation and use by an intruder will

not, without more, have that effect and this paper is

concerned with an important refinement of the test of

adverse possession which involves that the Acts relied

upon by an intruder must be inconsistent with the

owner's enjoyment of the land for the purposes for

which he

intended

to use it.

This question of intention becomes crucially

important where, for example, an owner is obliged to

defer development of his land because of lack of finance

or otherwise, and , no immediate use being made of the

land by the owner, an intruder enters and remains in

exclusive occupation for twelve years or more. These

were more or less the circumstances in

The Lord Mayor,

Alderman and Burgesses of the City of Cork

-v-

Thomas Lynch

which came by way of an appeal from

the Circuit Court before Egan J. in the High Court on

Circuit. The Plaintiffs/Appellants whom, for the sake

of brevity, Egan J. called the Corporation, had brought

Ejectment in the Title proceedings against the

Defendant/Respondent in respect of a plot of land

situated along Silverspring's Lane and Castle Avenue

and abounding Lower Glanmire Road in the City of

Cork. The Defendant had averred that he had been in

possession of the said plot for upwards of twelve years

without acknowledging the title of the Corporation

thereto.

The disputed plot adjoined a garage premises and

forecourt which the Defendant had acquired almost

thirty years ago and which he had occupied since then.

Egan J. described the disputed plot as having a natural

boundary on its northern side while the western and

southern boundaries consisted of walls. Shortly after

the commencement of his garage business the

Defendant began to use the northern portion of the

disputed plot, which was divided from the rest of it by a

natural hedge, for the dumping of crashed cars. From

around 1960 or 1961, the Defendant began to use the

remainder of the disputed plot for the purpose of

parking customers' cars and cars associated with his

self-drive business; as many as forty or fifty cars might

be so parked. A chain link fence was built by the

defendant along the boundary walls and the natural

northern boundary around 1973 or 1974 and a wire

fence constituting an internal boundary was also

erected. There was no access to the disputed plot except

through two gates along this internal boundary. The

surface of the disputed plot was improved by chippings

about twenty years ago and half of it was subsequently

covered by tarmac.

From around the time in 1960 or 1961 that the

Defendant began to use the disputed plot for the

parking of cars it seemed clear to Egan J. that there was

no user of it, or any part of it, by any person or body

other than the Defendant. Egan J. turned to s.l3(2)(a)

of the Statute of Limitations, 1957 which provides that

no action to recover land shall be brought by a person,

other than a State authority, after the expiration of

twelve years from the date on which the right of action

deemed to the person bringing it. The learned judge was

satisfied that there had been exclusive physical

occupation of the disputed plot by the Defendant for

upwards of the statutory period but the matter did not

end there since s.15 of the 1957 Act provides that no

action to recover land shall be deemed to accrue unless

the land is in the "adverse possession" of some person

in whose favour the period of limitation can run.

Egan J. considered the circumstances in which the

disputed plot had been acquired by the Corporation in

1965. It had not been compulsorily acquired, nor had it

been specifically acquired, for the purpose of road

widening or the building of portion of a new road, but

the learned judge was nevertheless satisfied, that the

intention of the Corporation at the time of its

acquisition was that it should form portion of a North

Ring Road.

It was argued, on behalf of the

Corporation, that where a Local Authority acquires

land it cannot be said to be dispossessed until something

manifestly inconsistent with the ultimate purpose for

which the land was acquired is done by the squatter such

as, e.g., the erection of a major structure. Thus the

erection of wire fencing, the laying of chippings and

tarmacadam, and the use of the disputed plot as a car

park did not amount to such occupation as would be

manifestly inconsistent with the title of the Corporation

which would not require physical occupation of the plot

until it was in a position to proceed with the

contemplated road building programme.

Egan J. referred to

Leigh

-v-

Jack

a decision of the

English Court of Appeal, in which Bramwell L.J. stated

141