€27,500 in damages awarded in legal right-of-way saga

By Brendan Furlong

A Wexford farmer has won a legal right-of-way through farmland, following two days of a civil court action and was awarded €27,500 in damages in the process.

In what was a complex case concerning a right-of-way – which had been running through farmland for generations and which travelled through farm holdings of two neighbouring farmers – Judge Patrick Meghan found in favour of the plaintiff, Richard Nolan of Craan, Ferns, Co. Wexford.

Nolan is the owner of a dwelling and lands situated at a location known as Craan, Ferns, while the defendant – William Kavanagh, of Moneydurtlow, Ferns, Co. Wexford – is also the owner of certain lands at Craan, Ferns.

The plaintiff claimed that he was entitled to pass and repass on foot and with animals, vehicles, machinery and goods of all kinds, over the laneway. It was also claimed that the plaintiff is entitled to the said right-of-way whether by implied grant, by prescription or pursuant to the provision of the land and conveyancing law.

Counsel for the plaintiff, Conor O’Doherty, told Wexford Circuit Civil Court that the plaintiff has enjoyed a right-of-way through these lands and that the defendant has unlawfully interfered with it.

He explained that the defendant had unlawfully placed gates over the laneway and refuses to give the plaintiff access. Also, O’Doherty said, that the Kinsellas are joint landowners and have no problem in signing a declaration to the right-of-way; but, the defendant has refused to do so.

Background

Outlining the background, O’Doherty said a portion of the lands was given to the plaintiff by his mother.

The family had farmed this land for generations, with the portion of land in question going back to the 1900s; the house on this land was in occupation until 1918. Further land became part of the family holding at a later date and is now owned by the plaintiff’s brother, he added.

The plaintiff’s claim, said O’Doherty, is that there is a clear, unambiguous right-of-way.

However, defence counsel Caroline Latham said that the allegations in relation to harassment and trespass are strenuously denied.

It’s the defendant’s position that no right-of-way ever existed over his land, with the plaintiff’s land bordering the defendant’s property north and south.

It’s accepted that a laneway or trackway has been in existence over the defendant’s land dating back to 1840; but, that does not mean there is a right-of-way, Latham told the court.

She also said that these proceedings are statute-barred and, in the circumstances where there is no right-of-way, the plaintiff is statute-barred over the non-use of this portion of right-of-way over 12 years.

The defence counsel outlined that the Kavanaghs and the Nolans had lived beside each other for decades and throughout that time there has never been a right-of-way.

Access via a public road

She added that the plaintiff had always accessed this portion of land through the public road, which runs alongside land owned by his brother, Paddy.

According to Latham, the plaintiff claimed that the right-of-way had been acquired by either prescription or necessity and that this has been used for 40 years – a fact the defendant rejects.

But, she argued that there is an overgrowth on a 35m stretch of the laneway which crossed the defendant’s land – which suggests that the laneway had not been used for between 30 and 50 years.

A counterclaim was tabled by the defendant, claiming that the plaintiff had entered his land without permission with an agent – driving a jeep and digger – and had caused considerable damage to the land and drainage pipes.

Family history

The plaintiff, Richard Nolan, gave evidence during the trial of how he had brought sheep over and back the laneway down through the years.

He outlined that there was a 22ac parcel of land and another 42ac section located south and north of the laneway, while his brother had lands in Askamore.

It was claimed that, without the laneway, the plaintiff’s land to the north would be cut off.

The court heard how the plaintiff would walk the laneway when he visited his mother when she lived on the land. He also claimed that he wanted to sell two sites on the land, which the defendant objected to.

Blocking the laneway

The laneway was reportedly blocked by the defendant, William Kavanagh, when gates and a cattle crush were erected for safety reasons.

Defence counsel, Caroline Latham, explained that currently there is a registered right-of-way over her client’s land in favour of the Kinsellas – which dates back to 1945.

The defendant is willing to allow the plaintiff usage of this section; but, the overgrown section he disagrees with on account of it being impassable for decades.

Kavanagh told the court how he has been farming the land since he was 14. He added that the laneway begins on the plaintiff’s land from the public road in the south-western end.

It then continues up through the defendant’s land. Kavangh pointed out that it would not be possible to use the top section of the laneway with a vehicle due to it being overgrown and that the last time a tractor used it was 40 years ago.

The defendant told the court that using the northern section of the laneway had become dangerous, as there was a steep drop of approximately 40ft into an adjacent quarry. Tractors travelling on the laneway had further worsened the danger along this section, it was claimed.

Kavangh denied ever interfering with or harassing the plaintiff.

Result

Deciding on the case, Judge Meghan said that he was satisfied that there is a right-of-way in existence; but, unfortunately the relationship between the neighbours had deteriorated.

He said it would be better if the cattle crush and the gates were moved, as they were preventing access to the right-of-way – with the works to be carried out in consultation with the parties.

He also awarded damages of €27,500 to the plaintiff with costs.

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