THE HIGH COURT
		1999 No. 106 CA
DUBLIN CIRCUIT                                                      COUNTY OF THE CITY OF DUBLIN
BETWEEN

LIAM BOYLE AND MARGARET BOYLE
		PLAINTIFFS/APPELLANTS
AND
PATRICK CONNAUGHTON AND KATHLEEN CONNAUGHTON
		DEFENDANTS/RESPONDENTS
AND
THE HIGH COURT
			1999 No. 111 CA
DUBLIN CIRCUIT	COUNTY OF THE CITY OF DUBLIN
BETWEEN
PATRICK CONNAUGHTON AND KATHLEEN CONNAUGHTON
		PLAINTIFFS/RESPONDENTS
AND
LIAM BOYLE AND MARGARET BOYLE
		DEFENDANTS/APPELLANTS

Judgment of Miss Justice Laffoy delivered on the 21st day of March, 2000.
	THE PARTIES
	The parties in these appeals are neighbours.  Mr. and Mrs. Boyle, the Plaintiffs in the first proceedings mentioned in the title hereto (the first proceedings), who are the Defendants in the second proceedings mentioned in the title hereto (the second proceedings) and who are the Appellants on this appeal, are the owners of and reside in the premises known as Seychelles, Castleknock Road, Castleknock, Dublin.  The title to Seychelles in registered on Folio 2733R of the Register of Freeholders, County Dublin.  Mr. and Mrs. Connaughton, who are the Defendants in the first proceedings and the Plaintiffs in the second proceedings and the Respondents on this appeal, are the owners of and reside at Cairnhill, Hawthorn Lawn, Castleknock, Dublin.  The title to Cairnhill is registered on Folio 35063F of the Register of Freeholders, County Dublin.
	Both properties, Seychelles and Cairnhill, were formerly part of a single holding, the holding the title to which was registered on Folio 2733R.  The first registered owner on Folio 2733R was James Finn.  He was registered as full owner on 9th September, 1931.  Mr. and Mrs. Boyle are now registered as full owners with absolute title on Folio 2733R, having been registered on the folio on 28th July, 1992.  
	In 1982 Folio 35063F was carved out of Folio 2733R.  The new folio related to a plot of ground the measurement of which is given on the folio as 0.038 hectares which was surrounded on three sides, on the East, North and West, by the lands remaining registered on Folio 2733R and with a frontage to the public road, Hawthorn Lawn, on the South.  The first registered owners on Folio 35063F were John Tait and Elizabeth Tait who were registered on 2nd November, 1982 on foot of instrument no. R10351/82.  On 3rd December, 1991 Mr. and Mrs. Connaughton were registered as full owners with absolute title on Folio 35063F, there having been one intermediate ownership.  
	THE PROBLEM
	The problem which gave rise to these proceedings adversely affected both the Boyles and the Connaughtons when the proceedings were instituted in 1993.  The Land Registry map does not depict either property as it is on the ground or as it was on the ground and defined by substantial physical boundaries since mid-1982.  When these proceedings were instituted the Boyle's problem was that a roughly triangular shaped piece of land, which includes a small area of an extension to the house Seychelles, of which they were in possession was shown on the Land Registry map as being within the boundaries of the lands registered on Folio 35063F.  The Connaughtons' problem was that an area of land of which they were in possession, located at the East and North, that is to say the side and rear, of their property, on which a small portion of their dwellinghouse is constructed, was shown on the Land Registry map as being outside the boundaries of the lands registered on Folio 35063F and within the boundaries of Folio 2733R.  The problem areas are not of equal size.  On the basis of the evidence I conclude that the Connaughtons' problem area is roughly 0.01 hectare or 100 square metres greater in extent than the Boyles' problem area.

	THE SOURCE OF THE PROBLEM
	It is undoubtedly the case that the source of the problem was the sub-division of Folio 2733R in 1982.  Both the Boyles and the Connaughtons came to the Castleknock area and to their respective problems in the early 1990's and they have no direct knowledge of what happened in 1982.  However, fortunately, two reliable strands of evidence have been adduced which shed light on what happened in 1982.  
	First, there was the evidence of John Henry.  Since the early 1970's the Henry family have resided in Aghamore House, Castleknock Road, Castleknock, which is contiguous with and to the North of Seychelles.  In other words, the Henrys were next door neighbours of Mr. Finn and his wife who resided in Seychelles and subsequently of Mr. and Mrs. Tait who resided in Cairnhill from 1982.  Not only that but Mr. Henry's father was a builder and he was the builder who built the house Cairnhill for the Taits on the site they bought from the Finns in 1982.  Mr. Henry himself did some of the construction work.   At the time in 1982 the Finns and the Taits were elderly couples, the Finns being more elderly than the Taits.  They were good friends.  The Taits were Scottish and they visited Ireland regularly staying in a caravan in the grounds of Seychelles.  They decided to return to Ireland permanently and they purchased a site from Mr. Finn.  Mr. Henry's father was contracted to build a house on the site.  The construction of the house, which is now Cairnhill, took place over a matter of months in the spring of 1982.  At the same time, on completion of the house,  a wall dividing Cairnhill from Seychelles was constructed. Originally, a gap was left in the wall on what was the western boundary of Cairnhill and the eastern boundary of Seychelles so that the Taits would have easy access to the rear of the Finns' house, the idea being that the Taits would look after the Finns.  Some months after the construction of Cairnhill was completed relations between the Taits and the Finn soured and the gap in the wall was blocked up.  It is clear from the Boyles' title that Mr. Finn died on 4th June, 1984.  Mr. Henry's evidence was that Mrs. Finn died a short time, around six weeks, previously.  At any rate, Mr. Henry's evidence was that after the construction of Cairnhill and the construction of the wall separating Cairnhill from Seychelles, Mr. Finn never expressed any dissatisfaction with the location of the wall.  He had been "around and about" while the house was being built and while the wall was being built afterwards.  The wall was less than 12 feet from his back door.  Mr. Henry's evidence was that the wall surrounding Cairnhill was originally about 4 feet high.  When the Taits' successors acquired Cairnhill they raised the wall to about 8 feet high.  
	Secondly, Mr. Ernan Tobin, an Examiner of Mapping in the Land Registry testified and he produced the original of instrument R10351/82.  This discloses that the Taits, through their Solicitors, Actons, applied to the Land Registry on 28th October, 1982 for registration.  The documents lodged in the Land Registry included the Transfer from Mr. Finn to the Taits.  That Transfer was dated 1st October, 1982 and the property to be transferred was described therein as - 

	"ALL THAT plot of land part of the lands of Castleknock in the County of Dublin which said plot is delineated on the Map endorsed hereon and thereon edged with a red verge line being portion of the lands comprised in Folio 2733R of the Register of Freeholders County Dublin."

The map referred to in the Transfer was based on the then current largest scale Ordnance Survey map for the area which was the 1: 2,500 scale.  Another document lodged in the Land Registry at the time was a Statutory Declaration made on 5th April, 1982 by Mai Finn for the purposes of the Family Home Protection Act, 1976.  In it Mrs. Finn referred to an agreement for sale dated 18th November, 1981 whereby her husband, James Finn, had agreed to sell a site to the Taits.  It is clear from the instrument that on 15th December, 1982 the Land Registry requisitioned a consent to sub-division under Section 12 of the Land Act, 1965 and the relevant consent was lodged by Actons in the Land Registry with their response dated 21st December, 1982.  The Land Commission letter of consent was dated 23rd February, 1982 and the consent was given by reference to a map annexed to it.  The map was authenticated with the stamp of the Land Commission and of the signature of a Land Commission official and dated 23rd February, 1982.  Save to say that the map depicts the site to be transferred to the Taits as a roughly rectangular shaped site similar to the Connaughtons' property as it is on the ground today, in my view, it is of no assistance in resolving the issues between the parties.  First, it does not appear to have been drawn to scale.  Secondly, while there are certain dimensions shown on it in manuscript, it is impossible to establish the provenance of the dimensions.  Thirdly, in any event, I am absolutely satisfied on the evidence that the Land Registry mapped the property the subject of the Transfer dated 1st October, 1982 from the Ordnance Survey map which was initially lodged with the application on 28th October, 1982.  
	The documentary evidence from the Land Registry corroborates Mr. Henry's evidence and, in particular, is consistent with Mr. Henry's evidence that the construction of the Taits house took place through the Spring of 1982.  The inference I draw from the evidence is that Mr. Finn, on the one hand, and the Taits, on the other hand, were ad idem as to the location of the site which Mr. Finn had agreed to sell and the Taits had agreed to purchase and that their agreement was reflected in the actual construction of the house and its physical boundaries and that the extent and boundaries of the site the subject of their agreement were properly reflected on the ground and, in particular, by the wall which were constructed to separate the site from the remainder of Seychelles.  I further infer that the map referred to in the Transfer of 1st October, 1982 did not properly depict the extent and boundaries of the site the subject of the agreement between the parties, probably because of the difficulty of depicting the site accurately on a map of the scale used.  It is also probable that there was an element of discrepancy in translating the site as depicted on the map referred to in the Transfer in the Land Registry but that the element of discrepancy was within the acceptable margin of error in mapping practice.  
	Accordingly, I find that the source of the problem which gave rise to these proceedings was the failure to correctly depict on the map referred to in the Transfer the site the subject of the agreement between Mr. Finn and the Taits, which was the site as delineated by its physical boundaries on the ground.  I reject Mr. Boyle's suggestion that the source of the problem was that the Taits encroached beyond the agreed boundaries of the site sold to them and that the agreed boundaries are as shown on the Land Registry map.  The uncontradicted evidence convincingly establishes that the physical extent and boundaries of the site were established on the ground and that the house and physical boundaries were constructed before the transfer of title.  

	DISCOVERY OF THE PROBLEM
	By an agreement dated 14th August, 1990 executed following an auction, Bridget Finn, the legal personal representative of James Finn, deceased, agreed to sell Seychelles, being portion of the property comprised in Folio 2733R, to Mr. Boyle at the price of £81,000.  The property in sale was described by reference to a map annexed to the contract.  That map depicted the extent of Cairnhill and the boundaries between Cairnhill and Seychelles as they are on the ground.  Subsequently, there was a dispute between the parties to the agreement dated 14th August, 1990, which was settled on terms that there would be an abatement of the purchase price from £81,000 to £61,000 by reason of the inability of the vendor to make title to part of the property the subject of the agreement.  I am satisfied that the abatement of the purchase price was to compensate Mr. Boyle for the loss of a parcel of ground on the Eastern side of Cairnhill and was not in any way attributable to any discrepancy in relation to the boundaries between Cairnhill and Seychelles.  
	The agreement of 14th August, 1990 was not completed until 1992.  Before it was completed Mr. Boyle had become aware of the problem which has given rise to these proceedings.  In his own evidence he was very forthright in acknowledging that he knew what the scenario was before he completed the transaction.  He apprised his Solicitors, Messrs. Smyth, O'Brien & Hegarty, of the problems and instructed them to seek the co-operation of the Connaughtons in rectifying the situation.  By letter dated 27th April, 1992, Messrs Smyth, O'Brien & Hegarty wrote to the Connaughtons' Solicitors, Power Stephens and Company.  In that letter, which I think it is probable pre-dated the completion of the purchase by the Boyles, having stated that it had come to Mr. Boyle's attention that the Land Registry map in relation to the Connaughtons' folio did not accurately reflect the boundaries of the Connaughtons' property as they existed on the ground and that the Land Registry map of the Boyles' property did not accurately reflect the boundaries of the Boyles' property as they were on the ground, Messrs. Smyth, O'Brien & Hegarty went on to make the following suggestion:-

	"We feel that this is an ideal opportunity for both our clients to have the Land Registry map pertaining to both of their folios rectified.  Our client proposes, accordingly, to prepare corrective maps and to forward same to your firm to allow your client an opportunity to approve them before they are submitted to the Land Registry."

	That was a very sensible suggestion as at the time both properties were adversely affected by the mapping problem.  On 22nd April, 1993 approximately a year later, Messrs. Power Stephens & Company furnished maps intended to be lodged in the Land Registry to procure rectification of the Land Registry map for agreement.  However, in the intervening period hostilities had broken out between the Boyles and the Connaughtons.  There were a number of a issues between them.  One related to the laying and connection of a sewer which was to drain both Seychelles and Cairnhill, which previously had been drained into a septic tank on the adjoining property of Mr. Henry, into a sewer on adjoining property of a developer.  Another issue was the fact that Mr. Connaughton lodged an appeal to An Bord Pleanala against a notification of decision to grant planning permission for development at Seychelles which Mr. Boyle had obtained in April 1992.  On the evidence, it is not possible to ascribe blame for the unneighbourliness which ensued, save to say that it was definitely not entirely one sided.  By June 1993 Mr. Boyle was no longer prepared to implement the suggestion put forward by his Solicitors on 27th April, 1992.  Instead, his Solicitors, in their letter of 14th June, 1993 to the Connaughtons' Solicitors indicated that he was willing "to agree to a limited form of rectification" provided that the aggregate area to which the Connaughtons would have title as a result of the rectification did not exceed the area of the site which was transferred to their predecessor as shown on the Land Registry map in relation to their folio.  The Connaughtons did not take up this new proposal and the result was these proceedings.  However, it is clear that at all times subsequently the Connaughtons were willing to implement the first proposal made on behalf of Mr. Boyle in the letter of 27th April, 1992.  

	THE PROCEEDINGS
	The first proceedings were commenced by Equity Civil Bill issued on 17th September, 1993 in which the Boyles alleged an encroachment by the Connaughtons on to a portion of Cairnhill occupied by the Connaughtons which was outside the boundaries of the property as depicted on the Land Registry map in relation to Folio 35063F and sought an order directing the Connaughtons to vacate that area and an injunction restraining trespassing.  In their defence and counterclaim to the first proceedings the Connaughtons alleged that the Land Registry maps in relation to Folios 35063F and 2773R were in error and sought, inter alia, an order that the Boyles do all such things and take all such steps as were necessary to effect rectification of the error.  
	The pleadings in the second proceedings more or less mirror the positions adopted by the parties in the first proceedings.  
	At an initial hearing in the Circuit Court the parties were given leave to amend their pleadings.  As a result, an amended Equity Civil Bill was issued on 9th December, 1998 in the first proceedings in which the Boyles alleged that their predecessor in title, James Finn, and his successors in title, including the Boyles, had remained in exclusive occupation and possession of the part of Seychelles depicted on the Land Registry map as being registered on Folio 35063F following the transfer to the Taits in October 1982 and that the title of the Connaughtons had become extinguished pursuant to Section 24 of the Statute of Limitations, 1957 and they sought a declaration to that effect. 

	THE ISSUES
	The issues which arise for determination on these appeals are as follows:-

1.	The extent to which the resolution of the issues arising in this matter are determined by the provisions of the Registration of Title Act, 1964; 
2.	Whether under general equitable principles an order should be made for the rectification of the Land Registry maps in relation to either or both folios; and
3.	Whether the Boyles are entitled to the declaration by reference to the Act of 1957 which they have sought. 

	PROVISIONS OF THE ACT OF 1964
	Section 31(1) of the Act of 1964 provides as follows:-

	"The register shall be conclusive evidence of the title of the owner to the land as appearing on the register....; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just."

	As is pointed out in Fitzgerald on Land Registry Practice, 2nd Edition (1995), at page 11, the conclusiveness of the register is qualified in certain ways.  Two of the examples given by Fitzgerald are pertinent in this case.  
	The first is that the Land Registry map is not conclusive as to boundaries or extent.  Fitzgerald states that the map is not part of the register and the policy in relation to the boundaries has proved to be good sense in this and other jurisdictions.  However, this qualification requires further consideration.  It is based on Section 85 of the Act of 1964 which provides as follows:-

	"Registered land shall be described by the names of the denominations on the Ordnance Survey maps in which the lands are included, or by reference to such maps, in such manner as the Registrar thinks best calculated to secure accuracy, but, except as provided by this Act, the description of the land in the register or on such maps shall not be conclusive as to the boundaries or extent of the land."

	Mr. Boyle, who appeared in person and ably presented his own case, submitted that the discrepancies between the Land Registry map position and the on the ground position in this case were of an order of magnitude beyond the discrepancies envisaged in Section 85.  He referred the Court to the following passage from Glover on Registration of Ownership of Land in Ireland, (1933) at page 25:-

	"The provision restricting the conclusiveness of the register as to the extent of the land described in it is the legislature's mode of providing for those small discrepancies in areas and dimensions that are usually covered by the conveyancing formula of 'or thereabouts' in a conveyance of unregistered land.  It protects the Insurance Fund against claims for loss from errors in registration due to those discrepancies of a few roods or perches in calculations of the area of agricultural land, or of feet or inches in the dimensions of town property, that arise from the different methods of survey, and the varying skill of surveyors; it is not meant to be, and cannot be relied on as, a protection against substantial misstatements of the area or dimensions of a parcel of land as is exists."

That commentary relates to the provision of the Registration of Title Act, 1891 to which Section 85 corresponds.  However, Mr. Boyle also referred the Court to the following passage from McAllister on Registration of Title (1973) at page 59:-

	"It should not be taken that the provisions in the Act, as to the extent and boundaries of registered land not being conclusive extend to substantial discrepancies in areas: the provision is only intended to cover minor errors in calculation."

I have come to the conclusion that Mr. Boyle's submission in relation to Section 85 is correct and that, having regard to the nature and location of the properties in issue here, the discrepancies at issue here are not covered by Section 85.  
	The second example of the qualification of the conclusiveness of the register referred to by Fitzgerald is the number of burdens that affect registered land without registration under Section 72 of the Act of 1964.  By virtue of Section 72(1)(j) of the Act of 1964 - 

	"the rights of every person in actual occupation of the land.... save where, upon enquiry of such person, the rights are not disclosed"

affect registered land, whether registered as burdens or not.  The evidence establishes that Mr. Boyle was aware before he completed the purchase of Seychelles that the Connaughtons were in actual occupation of the area within the boundaries of the lands registered on Folio 2733R as shown on the Land Registry map from which, in essence, he seeks to evict the Connaughtons in the first proceedings.  Notwithstanding the conclusiveness of the register afforded by Section 31 such rights as the Connaughtons have in this area are preserved by their actual occupation and the Boyles' registration on Folio 2733R is subject to those rights protected by Section 72, as provided for in Section 37(3)(b) and Section 52(1)(b) of the Act of 1964.  This leads to the next issue, namely, whether under general equitable principles the Connaughtons are entitled to rectification.  

	RECTIFICATION/GENERAL EQUITABLE PRINCIPLES
	As I have already found, the agreement between Mr. Finn and the Taits was for the sale and purchase of part of the land registered on Folio 2733R commensurate with the site as physically defined by the wall constructed in mid-1982 to hive off the Taits' property from Mr. Finn's retained property.  It follows that I am satisfied that there is convincing proof that the intention of the parties to the Transfer of 1st October, 1982 was that the site as so physically defined would be transferred to the Taits.  Because of a mistake in mapping that intention was not given effect to.  In the circumstances, the Connaughtons have established a right in equity to have the Land Registry map rectified.  Mr. Boyle had actual notice of the situation before he completed the acquisition of Seychelles and, as the letter of 27th April, 1992 indicates, he saw rectification as the appropriate remedy.  In the circumstances the Boyles have not established any basis for resisting rectification.  

	STATUTE OF LIMITATIONS, 1957
	As I have held that the Connaughtons are entitled to succeed in their claim for rectification, which means that the title to both properties will be rectified to reflect the position on the ground, the issue of the effect of the Statute of Limitations, 1957 does not arise.  

	ORDERS
	In substance, the conclusion I have reached is the same conclusion as was reached by the learned President of the Circuit Court and reflected in his Orders made on 16th March, 1999, against which the Boyles appealed.  Both appeals will be dismissed.
	I think it is in ease of both parties to give effect to the decision in a slightly different form to the form adopted by the learned President.  I propose to substitute for the Order made in the second proceedings, following an explanatory recital that, having found that it was the intention of the parties to the Transfer dated 1st October, 1982 from James Finn to John Tait and Elizabeth Tait (instrument R10351/82) to transfer the part of the land then registered on Folio 2733R of the Register of Freeholders, County Dublin now shown as representing Cairnhill on the Ordnance Survey map as revised in 1995 (scale 1:1000; reference 3196-01 and 3196-02), the Court finds that by mistake the said Transfer did not give effect to that intention, an order directing that the Land Registry map in relation to Folios 2733R and 35603F of the Register of Freeholders County Dublin be rectified to conform with the said revised Ordnance Survey map. I am satisfied from the evidence of the Boyles' land surveyor, Mr. Frank Prendergast, that there is negligible deviation between the revised Ordnance Survey map on the 1:1000 scale and the position on the ground.  Rectification on the foregoing lines will rectify both the Boyles' title and the Connaughtons' title. 
	As regards the first proceedings, the Order will be to dismiss the Plaintiffs' claim simpliciter.