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1. This Circuit Appeal concerns a small plot of ground, 2 roods and 28 perches in area, which is situate at Maxwells Row, Dundalk, Co Louth. The plot is bordered on the north by the Castletown River, on the east by the bridge on the main road leading northwards out of Dundalk, on the south by Maxwells Row, and on the west by a holding of land of approximately 10 acres (which I will refer to as Mrs Conway's land) which is registered on Folio 7210 of the Register County Louth of which the registered owner is Elizabeth Conway, the Defendant's mother.

The plot of ground in question, which I shall call the disputed plot, was demised to the Plaintiff for the term of 999 years from the 1 day of November 1912 by a lease dated the 20 March 1913. In 1938 the Plaintiff bought out the fee-simple interest in the plot. At the time of the making of the lease, the plot of ground was principally fore-shore and the lease contained a covenant of the part of the lessee to construct a sea-wall to protect the disputed plot from the incursion of the river. It appears from the ordnance survey map of 1938 that this sea-wall was built.

The Plaintiff's claim is for damages and an injunction to restrain trespass on the disputed plot. The Defendant does not deny entry on the plot but contests the Plaintiff's title. It was pleaded in the defence that the Defendant's mother had acquired title by possession to the disputed plot and that the Defendant's entry had been with her consent, but in the course of the argument this contention was abandoned, as it seemed to me that it had to be, as Mrs Conway's title could not be established. She had only acquired the adjoining lands in 1976 and even if any of her predecessors in title had acquired title by possession to the disputed plot, such title had not been conveyed to her.

The case then made by the Defendant, which ultimately was the case upon which the Defendant principally relied, was that the Plaintiff's title had been extinguished by virtue of adverse possession between 1930 and 1060 by Patrick Walsh, a former owner of Mrs Conway's lands. In the alternative it was submitted that the Plaintiff was seeking the equitable remedy of injunction and that in the particular circumstances of the case such remedy should not be granted.

As the Plaintiff has a clear paper title to the disputed plot, the starting point in this case seems to me to be the general principle enunciated by Ormrod LJ in his judgment in Wallis's Cayton Bay Holiday Camp Limited v Shell-Mex and BP Limited [1974] 3 All ER 575 at 589 d:-

"The General principle appears to be that, until the contrary is proved, possession in law follows the right to possess: Kynoch Ltd v Rowlands [1912] 1 Ch 527 at 534. Lord Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19 at page 21 put it in these words:-

"In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it.'"

It seems to me, accordingly, that in deciding whether the Plaintiff's title has been extinguished, the question that has to be considered is whether it has been established on the evidence that the Plaintiff either discontinued possession of the disputed plot or was dispossessed of it by Patrick Walsh for the duration of the statutory peirod.

I start with the question of discontinuing possession. In Leigh v Jack (1879) 5 LR Exchequer 264 Cotton LJ said in his judgment at page 274:-

"In deciding whether there has been a discontinuance of possession the nature of the property must be looked at. I am of opinion that there can be no discontinuance by absence of use and enjoyment where the land it not capable of use and enjoyment."

I consider that the disputed plot, over the years during which it is alleged that the Plaintiff lost its title, was not capable of use and enjoyment. It was in effect a small plot of wasteland dropping fairly sharply to the river. The value of the plot to the Plaintiff is that it adjoins the bridge which carries the road over the river and it may be required in the event of repairs to the bridge becoming necessary. But as for actual use and enjoyment on a regular basis, I am satisfied that it was not capable of any.

Furthermore, I am satisfied on the evidence that it was never the intention of the Plaintiff to discontinue possession. The evidence shows that the fee-simple interest was bought out in 1938; a sewer was made through the disputed plot from Maxwells Row; a new manhole was built on this sewer about 1956; ornamental trees were planted in the early 1960s; temporary permission to cross part of the plot was given to Patrick and John Daly in 1972; and in 1978, Kieran Fitzgerald, the Assistant Town Engineer, in the company of the Defendant, marked out the boundary between the disputed plot and Mrs Conway's land. In the light of this evidence I am satisfied that it could not be said that the Plaintiff at any time intended to discontinue possession or did in fact discontinue possession.

As to whether the Plaintiff was dispossessed, the following passage from the judgment of Lord Bramwell in Leigh v Jack (1879) 5 LR was cited with approval by Ross J in In Re Duffy's Estate [1897] I IR 307 at 315:-

"Acts of user are not enough to take the soil out of the Plaintiff, and vest it in the Defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil, for the purposes for which he intended to use it."

In Wallis's Cayton Bay Holiday Camp Limited v Shell-Mex and BP Limited [1974] 3 All ER 575 Lord Denning MR said at page 580:-

"Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor." . . . "When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials; or for some seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years, or more."

And in the same case Stamp LJ said at page 585:-

"Reading the judgments in Leigh v Jack (1879) 5 LR and Williams Brothers Direct Supply Store Ltd v Raftery [1957] 3 All ER 593 [1958] 1 QB 159 I conclude that they establish that in order to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done on it and the intention of the squatter fall to be considered. Where the land is waste land and the true owner cannot and does not for the time being use it for the purpose for which he acquited it, one may more readily conclude that the acts done on the waste land do not amount to dispossession of the owner."

Finally, in Convey v Regan [1952] IR 56, Black J said in his judgment at page 59:-

"The main consideration operating in my mind is the principle that the party relying on acts of user over a long period to establish title against the owner must show that the acts were done with animus possidendi."

It is necessary now to apply these principles of law to the facts on which the Defendant relies to establish that the Plaintiff was dispossessed for the statutory period and its title thereby extinguished. The main evidence on which the Defendant relied was that over the statutory period cattle belonging to Patrick Walsh, who at the time was the owner of Mrs Conway's land, had had access at all times to the disputed plot and could graze on it at will. In addition there was evidence that between 1950 and 1960 a man called Niall O'Brien had been permitted by Patrick Walsh to bring a caravan onto the disputed plot and that he was also given permission to graze horses on Mrs Conway's land and the disputed plot. Finally there was evidence that the Valuation Office had included Mrs Conway's land and the disputed plot in a single unit for valuation purposes and that Patrick Walsh had been the rated occupier of this unit.

Is this evidence sufficient to establish that the Plaintiff had been dispossessed? In my opinion it is not. In the first place, there was not, and could not be, any evidence of what Patrick Walsh's intention was in allowing his cattle to graze on the disputed plot. For his possession to have been such as would have amounted to dispossession of the true owner, it would have been necessary, as pointed out by Black J in Convey v Regan, [1952] IR 56 that he had the animus possidendi. But there is no evidence that he had. If anything, the evidence is the other way. If Patrick Walsh had been grazing the disputed plot with the intention of excluding the Plaintiff from it, and so acquiring a title, one would have expected that when Mrs Conway's land came to be sold to the Doyles, the disputed plot would also have been included in the sale. But quite clearly it was not. The only conclusion one can draw from this is that Patrick Walsh did not consider that he had acquired title to the disputed plot and it would seem to follow that he could never have had any intention of acquiring title. Such use as he made of the disputed plot could not accordingly have been made with the necessary animus possidendi.

Apart from this, Patrick Walsh's user was not in any way inconsistent with the purpose for which the Plaintiff required the plot. All that the Plaintiff required it for was to run a sewer through it and to have it available in case repairs should be required to the bridge. Grazing cattle on it did not in any way interfere with this purpose. I am of the opinion, accordingly, that Patrick Walsh did not acquire a possessory title to the disputed plot. It follows that the Plaintiff's title has not been extinguished.

Even if I had taken the view that the Plaintiff's title had been extinguished, that would not necessarily have entitled the Defendant to have the action dismissed. Trespass to land is a tort to possession of land. It does not necessarily depend on title. So if the Plaintiff's title had been extinguished, the question would have been as between the Plaintiff and the Defendant which was entitled to the possession of the disputed plot. And it seems to me that the question would have been answered in favour of the Plaintiff. I think there is no doubt that the Plaintiff had possession of the disputed plot at the time that the Defendant's mother bought the adjoining land in 1976. They planted ornamental trees on it in the early 1960s and had given the Dalys permission to cross part of it in 1972. And as soon as a dispute arose between the Plaintiff and the Defendant, the Plaintiff very clearly affirmed its right to possession through Mr Fitzgerald when he marked out the boundary between the two holdings in July 1978. So even if the Plaintiff had lost its paper title to the disputed plot, I consider that their possession of it could not have been disturbed by the Defendant whose sole claim rested on an allegation of title which could not be proved.

The alternative submission advanced on behalf of the Defendant was that the principal relief which the Plaintiff was seeking was equitable, namely, an injunction, but that on the facts of the case the Plaintiff was not entitled to equitable relief and that the appropriate remedy was to give the Plaintiff compensation for the value of the disputed plot. This submission was based on the decision of the Chief Justice, then President of the High Court, in the case of McMahon and McMahon v The County Council of the County of Kerry [1981] ILRM page 419. In my opinion the facts of the case are so clearly different from those in the present case that the decision in the case is of no assistance. Furthermore, the Chief Justice emphasized in his judgment that the conclusion at which he had arrived resulted from the special facts of the case. He said in his judgment at page 423:-

"All these factors and considerations drive me to the conclusion that it would truly be unconscionable and unjust that the plaintiffs should recover possession of this land with these two houses built upon it. To avoid, however, the classic fault of creating bad law by the consideration of a hard case I would emphasise that it is only the combination of factors which I have outlined which are many and possibly in their combination unique which forces me to the conclusion that equity should restrain the sole operation of the plaintiffs' legal right to recover possession of these lands."

I think it is clear that the Chief Justice was not formlating any general equitable principle. He decided on the very special facts of the case that it would be inequitable that the Plaintiffs should be permitted, in exercise of their legal rights of ownership, to recover possession of a plot of ground on which the Defendant County Council, without being aware of the Plaintiffs' title, had erected two dwellinghouses.

In the McMahon case the Plaintiffs were seeking to exercise a legal right, the right to recover possession of a plot of land to which they had a legal title. That is not the position here. I am satisfied that the Plaintiff has lawful possession of the disputed plot. What is sought is the equitable relief of injunction to restrain the Defendant from interfering with that possession. The basis of the Defendant's claim is that he expended money in reclaiming part of the disputed plot by dumping filling material on it. But as early as the 5 July 1978 the Assistant Town Engineer, Mr Kieran Fitzgerald, in the presence of the Defendant, marked out the boundary between the disputed plot and the adjoining land which the Defendant's mother had bought. Anything that the Defendant did after this he did in the full knowledge of the Plaintiff's claim to ownership of the disputed plot. Accordingly any dumping he did subsequently on the disputed plot could not give him any right in equity to have the Plaintiff restrained from preventing his further trespassing on it.

The learned Circuit Court Judge, in addition to giving the Plaintiff a declaration of their title and an injunction restraining the Defendant from trespassing on the disputed plot, also gave the Plaintiff a decree for £1,000 damages for trespass. In my opinion there was no evidence justifying damages of that amount. The only loss proved was the cost of rebuilding a portion of the wall at Maxwells Row which had been broken down by the Defendant. The cost of this was £112.71 and that is the only sum which the Plaintiff is entitled to recover as damages.

The Defendant counterclaims for damages in respect of the cost of the fill put by him on the disputed plot but on the facts as I have found them this counterclaim cannot succeed.

I affirm the Order of the learned Circuit Court Judge except insofar as the damages for trespass are concerned which I reduce from £1,000 to £112.71.