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sheds and fencing on it, and the cultivation of the land,
did not constitute adverse possession against the owners
who intended to develop the land when that became
possible.
15
Sellers L.J. said that he could not accept that
owners would lose their rights "merely by reason of
trivial acts of trespass or user which in no way would
interfere with a contemplated subsequent user."
16
Triviality is, of course, as Ormrod L.J. pointed out in
Wallis's Holiday Camp
-v-
Shell-Mexj
1
a relative
concept and the same act of trespass may be highly
significant to the owner of a house and garden, yet
utterly trivial to a property déveloper or an industrialist
who has no immediate use for the land affected.
Ormrod L.J. went on to point out that in
Leigh
-v-
Jack
the trespass, if viewed in isolation, was massive yet in no
way prejudiced the purposes which the owner had in
mind for her land. Similarly, in
Williams Brothers
Direct Supply Ltd.
-v-
Raftery
the defendant's trespass
amounted to a virtual occupation of the disputed land
but in no way affected the owner's practical, as opposed
to their legal interests. In neither case did time run
against the owners and that seemed reasonable to
Ormrod L.J. "since the interests of justice are not
served by encouraging litigation to restrain harmless
activities, merely to preserve legal rights, the enjoyment
of which is, for good reason, being deferred."
18
The
most succinct formulation of the test of possession is
contained in the speech of Lord O'Hagan in
Lord
Advocate -v- Lord LovaO
9
who said that possession
"must be considered in every case with reference to the
peculiar circumstances . . . The character and value of
the property, the suitable and natural mode of using it,
the course of conduct which the proprietor might
reasonably be expected to follow with a due regard to
his own interests — all these things . . . are to be taken
into account in determing the sufficiency of a
possession."
The only apparent limit on the time within which an
owner must bring an action to recover his land from an
intruder in circumstances where the latter is not using
the land in a manner which is inconsistent with the
owner's ultimate purpose for the land is provided by the
equitable doctrine of laches which is defined as a
substantial lapse of time coupled with the existence of
circumstances which would make it inequitable to
enforce a claim.
20
In the
Cork Corporation
case,
however, although the Defendant had been in
occupation of the disputed land for upwards of twenty-
five years, and, as Egan J. pointed out, the Corporation
could not be relieved of some criticism with regard to
laches in pursuing their claim the learned judge applied
the doctrine only in the limited sense of not making an
Order for costs in the Circuit Court or the High Court.
There is also the possibility of an estoppel arising in
favour of the intruder as shown by the decision of
Finlay P. in
McMahon
-v-
Kerry County Council
21
where the defendant Council had erected two houses
in the Plaintiffs' land. In that case, however, the
edstoppel was held to arise before time had run in
favour of the Council and the Court did not have to
address the question whether the erection of the houses
was consistent with the owners' ultimate purpose for the
land. Indeed the owners had long abandoned the
purpose for which they had acquired the land, which
was the erection of a Secondary School, but, in any
event, the present writer believes, that had time run in
favour of the Council at the time of the action the
Plaintiffs would have been held to have been
dispossessed by the adverse possession of the Council.
Finally, the problems posed by the
Cork Corporation
case are similar to, but distinguishable from, those
which came before Kenny J. in
Browne -v- Fahy.
11
In
the latter case the owners of land had granted a licence
to graze cattle on their lands. The licencee had planted
trees to provide shelter for the cattle, drained and
manured the land and erected fences along a boundary
with a main road. He had also collected money from
campers who used the land. Kenny J. held that these
acts of the licencee were consistent with the licence and
did not constitute adverse possession against the
owners. Kenny J.'s conclusion is consistent with the
principle that to constitute
animus possidendi
the acts of
the intruder cannot be referrable to any right other than
his own adverse possession.
•
Footnotes
1.
[1980] I.R. 183.
2.
The cases do noi make il clear whether this intention must be
formed at the time the land is acquired by the owner.
3.
Unreported judgment delivered-the 26th July, 1985. Circuit
Court Record No. PB/1984.
4.
Egan J. pointed out that a North Ring Road was mooted almost
forty years ago and had since become a partial reality.
5.
(1879) 5 Ex.D. 264,272.
6.
[1975] l.Q.B. 94, 103.
7.
[1952] I.R. 56.
8.
"The Time Limit on Actions" (1909) at p.39.
9.
[1952] I.R. 56, 59.
10. See
Dundee Harbour Trustees
-v-
Dougall
(1852) 1 Macq. 317,
321 (per Lord St. Leonards).
11. [1975] 1 Q.B. 94, 114.
12. [1968] 1W.L.R. 804.
13. [1975] l.Q.B.94, 103.
14. [1958] l.Q.B. 159.
15. The owners had been denied planning permission for the land.
16. [1958] l.Q.B. 159, 173. See
West Bank Estates Ltd.
-v-
Arthur
[1967] 1 A.C. 665, 678.
17. [1975]l.Q.B.94,115.
18.
Ibid
at p. 116.
19. (1880) 5 App. Cas. 273, 288. See also
Johnson
-v-
O'Neill
[1911]
A.C. 552, 583, and
Irby
-v-
Cowderoy
[1912] A.C. 599, 603.
20. See Brady and Kerr,
The Limitation of Actions in the Republic
of Ireland,
(1984) at pp.97
etseq.
21. [1981] I.L.R.M. 419. See Brady and Kerr at pp. 105, 106.
22. Unreported High Court judgment delivered the 25th October
1975.
143