The facts in brief
The defendant was a farmer whose holding adjoined land on which there were two sheds. The land and sheds belonged to his sister, who leased them to him.
She sold the land and sheds to the plaintiff, which bought intending to build factory premises on the land but never made any use of the land or the sheds.
The defendant carried on as before, and erected a post and wire fence. From the erection of that fence, more than twelve years before the proceedings issued, his use of the land and sheds was exclusive.
The plaintiff sued to recover the land and sheds.
What the court decided
Barron J held that a claimant of adverse possession within the meaning of section 18(1) of the Statute of Limitations 1957 must prove animus possidendi on his own part.
Where no use is being made of the land by the owner, and the claimant knows the owner intends to use it for a specific purpose in the future, that knowledge is a factor to be taken into account in disproving animus possidendi.
The defendant had made full and exclusive use of the land for fourteen years, and there was no evidence that he intended to use it only temporarily. His claim to the land succeeded and the plaintiff's title was defeated under s.13(2) of the same Act.
The sheds went the other way. He had used them with his sister's permission until her death three years before the proceedings, so he was not in adverse possession of them and the plaintiff's title to the sheds stood.
Barron J also rejected the argument that, to defeat a former owner's title, the acts done must be inconsistent with his enjoyment of the soil for the purposes for which he intended to use it. He found no support for it in Leigh v Jack (1879) 5 Ex D 264 (1879) 5 Ex D 264 Persuasive and said (at 682) that the proposition as stated was too broad.
The ratio
A claimant of adverse possession must prove animus possidendi; the paper owner's intended future use is not a free-standing bar to the claim but at most evidence bearing on whether the occupier intended to possess.
Statutory basis
Section 13(2) of the Statute of Limitations 1957 gives the twelve-year period for an action to recover land.
Section 18 is the provision the animus point arises under: no right of action accrues unless the land is in the possession of some person in whose favour the limitation period can run.
Section 24, as amended by the Registration of Title Act 1964, extinguishes the dispossessed owner's title at the end of the period. For registered land, section 49 of the Registration of Title Act 1964 lets a claimant of possessory title apply to be registered as owner.
What it is authority for
- That animus possidendi is a distinct element the claimant must prove, separate from factual possession.
- That a paper owner's specific intended future use, known to the occupier, is a factor capable of disproving that intention, and no more than that.
- That permissive occupation is not adverse, so a claim can succeed on one parcel and fail on another.
Where it sits against later cases
The starting point is Murphy v Murphy [1980] IR 183 IE · Supreme Court where Kenny J treated adverse possession under section 18 as possession inconsistent with the title of the true owner, an inconsistency that necessarily involves an intention to exclude that owner. Absent fraud, what the owner knew about the title is immaterial.
The competing line survived. In Cork Corporation v Lynch [1995] 2 ILRM 598 IE · High Court, decided in 1985 and reported ten years later, Egan J accepted exclusive possession for more than twelve years, but held the defendant's acts were not inconsistent with the plaintiff's ultimate road-widening use, so he was not in adverse possession of the plot. The same line had been doubted by the Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch. 623 Persuasive · England.
Opinion has since moved towards Durack. In Feehan v Leamy [2000] IEHC 118 IE · High Court Finnegan J said the comments in Leigh v Jack had been misunderstood and go to what is required for dispossession. In Dunne v Iarnród Éireann [2007] IEHC 314 IE · High Court Clarke J said obiter that he preferred Barron J's reasoning: future use might be a factor in deciding whether the occupier had the necessary intention, but was not otherwise properly taken into account.
The Supreme Court has twice touched the point without deciding it. In Ulster Investment Bank Ltd v Rockrohan Estate Ltd [2015] IESC 17 IE · Supreme Court Charleton J set out the line of authority, noted criticism of it, and recorded that Barron J had not followed it, remarks that are arguably obiter. In Dunne v Iarnród Éireann [2016] IESC 47 IE · Supreme Court Charleton J said that where a title holder's intention for future use has defeated what would otherwise look like complete occupation, that intention is not determinative and may be no more than a factor. He made no ruling on future intended use, because it was conceded that the owner had no particular plan for the land.
The position in this jurisdiction is that the future-use line has not been overruled and no superior court has decided the point, but judicial preference in the higher courts runs with Durack: intended future use is a factor in deciding whether the owner was dispossessed, not a rule.
Key authorities
- Seamus Durack Manufacturing Ltd v Considine [1987] IR 677 IE · High Court — animus possidendi must be proved; the owner's known future use is a factor that may disprove it, not a bar in itself.
- Murphy v Murphy [1980] IR 183 IE · Supreme Court — adverse possession means possession inconsistent with the true owner's title, involving an intention to exclude; time cannot run for a licensee, caretaker or beneficiary.
- Leigh v Jack (1879) 5 Ex D 264 Persuasive — source of the proposition that the occupier's acts must be inconsistent with the owner's intended use.
- Cork Corporation v Lynch [1995] 2 ILRM 598 IE · High Court — exclusive possession for over twelve years failed because the acts were not inconsistent with the owner's intended road scheme.
- Feehan v Leamy [2000] IEHC 118 IE · High Court — Leigh v Jack has been misunderstood.
- Dunne v Iarnród Éireann [2007] IEHC 314 IE · High Court — Clarke J, obiter, preferred Durack: future use goes to the occupier's intention and no further.
- Dunne v Iarnród Éireann [2016] IESC 47 IE · Supreme Court — future intended use is not determinative and may be no more than a factor.
How it is examined
As a standalone case note, Durack is set because it is the decision that splits the Irish authorities.
Inside a problem question the cue is a paper owner who has left land idle while planning something for it, and a neighbour who has fenced and used it for over twelve years. Order of attack: identify the paper owner; establish factual possession; establish animus possidendi; ask whether occupation was permissive; then run the future-use argument as a factor bearing on intention. Finish with the consequence under s.24 and, for registered land, s.49.
Related Land Law notes: adverse possession · Dunne v Iarnród Éireann · registration of title · all free Land Law notes.
Need the whole adverse possession topic?
The adverse possession module works through the limitation periods, factual possession, animus possidendi and the future-use line of authority, with worked problem answers and case notes.
see the full library →Frequently asked questions
What did Seamus Durack Manufacturing Ltd v Considine decide?
Barron J in the High Court held that a person claiming adverse possession must prove animus possidendi, an intention to possess. Where the owner is making no use of the land and the claimant knows the owner has a specific future purpose for it, that knowledge is a factor that may disprove the intention. On the facts the farmer's fourteen years of exclusive use defeated the owner's title to the land.
Why did the claim to the sheds fail?
The defendant had used the two sheds with his sister's permission, because she had reserved the right to use them for her life for his benefit. She died only about three years before the proceedings. Possession held with permission is not adverse, so the twelve-year period had not run against the owner in respect of the sheds and title to them was not defeated.
Is the rule in Leigh v Jack still good law in Ireland?
It has not been overruled and no superior court has decided the point. Barron J declined to follow the broad version of it, Egan J applied it in Cork Corporation v Lynch, and Finnegan J said it had been misunderstood. The Supreme Court in Dunne v Iarnrod Eireann said future intended use is not determinative and may be no more than a factor, but made no ruling.
Which court decided Durack, and is it binding?
It was decided by the High Court on appeal from the Circuit Court. A High Court decision is Irish authority and is followed in practice, but it does not bind the Court of Appeal or the Supreme Court. That matters here, because the decision sits against a competing High Court decision and the Supreme Court has not resolved the conflict.
What limitation period applies to adverse possession in Ireland?
Twelve years for an action by an ordinary landowner to recover land, thirty years where a State authority brings the claim, and sixty years for foreshore. Time only starts once someone is in adverse possession in whose favour the period can run. At the end of the period the dispossessed owner's title to the land is extinguished.
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