HC 186/04 
THE HIGH COURT
CIRCUIT COURT APPEAL
 [2001 No. 135 C.A.]
BETWEEN 
ORWELL PARK MANAGEMENT LIMITED 
PLAINTIFF
AND
MARTIN HENIHAN AND RACHEL HENIHAN
DEFENDANT

Judgment of Mr. Justice Herbert delivered the 14th day of May, 2004.
	I find from a review of the Title Documents discovered by the parties and admitted into evidence that the area over which the plaintiff now claims a right of way, was in 1883, or thereabouts, expressly set aside by the fee farm grantor for the purpose of forming a private service lane or passage leading from Orwell Road to the rere of the houses then being built adjoining Orwell Park Road with a private footway extension leading to the passage, (probably public) running parallel to the River Dodder.   I can, I am satisfied, infer as a matter of probability, from the Terms of and the Maps annexed to the Fee-Farm Grant William Carvill to William Todd, made 18th August, 1863; the Fee-Farm Grant, William Todd to the Trustees of Christ Church, Rathgar, made 10th March, 1879 and the Fee-Farm Grant Trustees of the Will of William Todd, deceased, to Trustees of Christ Church, Rathgar made 31st October, 1884, that Orwell Bank, the dwelling house which formerly occupied the site of the development of 18 houses of which the plaintiff is the Management Company, was built as a manse and became occupied as such between 18th August, 1863 and 10th March, 1879.  
	The house known as No. 63 Orwell Park Road, was built pursuant to the terms of a Building Lease made 17th August, 1883, between the Trustees of the Will of William Todd, deceased and John Henry Elvery, on a site which adjoined Orwell Bank on the West.   The Parcels demised by this Building Lease are therein described as:-
“All that part of the lands of Rathgar, bounded on the North by Orwell Park Road on the South by a lane or passage, on the East partly by a holding called Orwell Bank and partly by a lane or passage … together with a right of way from the rere of the said demised premises by a footway to be made by the said John Henry Elvery, his executors, administrators and assigns in and leading to the passage running parallel with the River Dodder …”.
	This Building Lease contained the following covenant on the part of the lessee to be observed and performed:-
“And also shall and within the like period of twelve months construct a footway leading from the rere of the said demised premises into the passage running parallel to the River Dodder and which footway to be formed is marked P to R on the annexed maps same to be of an uniform width of six [interpolated in handwriting] feet throughout and the side of the said footway next the grounds of Rialto Cottage to be fenced in with a wooden pailing and to be closed by a suitable gate or door such pailing and gate to be  approved by the said Trustees and the said John Henry Elvery, his executors, administrators and assigns shall at all times hereafter maintain in proper order and condition and keep locked such gate or door and also the gate or door to be erected by the said Trustees at the end of the lane to be formed leading out into Orwell Road and marked on the said maps by the “X”.”
	This Building Lease further contained a covenant on the part of the Lessors with the Lessee, his executors, administrators and assigns that they would, “when and so soon as the lane or passage leading into Orwell Road shall be formed [to] erect a gate at the extremity thereof where the same shall join the said road.”  Though this Building Lease grants an express right of way to the Lessee of No. 63 Orwell Park Road, and his successors over the footway to be constructed from the rere of that dwelling house to the passage running parallel to the River Dodder, no express grant of a right of way to the plaintiff or the defendants or either of their predecessors in title over the intended lane or passage was proved in evidence.   
The maps proved in evidence indicate that in August, 1883 a gateway existed immediately to the North of Rialto Cottage, leading into a green-field area of 9 acres 1 rood 25 perches, statute measure on, part of which Orwell Bank was built prior to March, 1879.  The immediately adjoining house No. 63 Orwell Park Road, was not built until August, 1883 or later.   It is clear in my view, from the map annexed to the Fee-Farm Grant made 10th March, 1879, the map annexed to a Deed of Indemnity and Apportionment dated 10th February, 1883, and, the Ordinance Survey Sheet of 1882 that while this area of 9 acres 1 rood and 25 perches, statute measure, was intended to be sub-divided into separate lots and dwelling houses built on those lots, Orwell Bank was built as a single stand alone unit and was completed and was in use as manse for a least four years before the building of the adjoining house, No. 63 Orwell Park Road, was commenced.  The maps show the line of the western boundary of Orwell Bank and I find on the evidence that the relevant portion of the present west boundary wall of Orwell Bank corresponds with the boundary as shown on these maps.  
Mr. William Maguire, Architect, a former President of the Royal Institute of Architects in Ireland, told the court that he had carried out the surveys of and, had prepared the plans for the re-development of Orwell Bank.  He said and his evidence was not challenged in this regard, that he had carried out a detailed survey of this boundary wall for development and planning purposes.  He described the wall, - photographs of which were proved in evidence by other witnesses and were available to the court, - as a substantial capped random masonry wall.  From his knowledge of building methods, materials and styles, particularly in the Dublin area, he gave it as his opinion, - and this was not challenged, - that the Coach House and Stables Buildings at the rere of No. 63 Orwell Park Road immediately adjoining this wall and the original door surround through this wall giving access from the lane into Orwell Bank were both constructed in or about 1883.  The evidence also established that this very substantial Coach House and Stables Building, the remaining part of which, though considerably altered and refurbished, is the dwelling house of the defendants, was constructed leaving an extraordinarily small gap of 20.32 centimetres or 8 inches between it and the face of the boundary wall.  
It is clear, particularly from the map annexed to the Deed of Indemnity and Apportionment made 10th February, 1883, that when Orwell Bank was built no other building plots had been laid out in its vicinity so that for at least four years it was separated by the western boundary wall from a large open field containing 6 areas 1 rood and 26 perches, statute measure.  The Building Lease of 17th August, 1883, though it refers to the demised area on which No. 63 Orwell Park Road, was covenanted to be built as bounded on the east by a holding called Orwell Bank, is silent as to the nature, ownership of or the obligation to repair this actual boundary.  No evidence was given that the defendants, or the present or previous owners of any part of No. 63 Orwell Park Road, had at any time exercised any rights over or assumed any responsibility for the maintenance or upkeep of this boundary wall.
Mr. David P. O’Sullivan, (whose late father, Jerome J. O’Sullivan purchased Orwell Bank by Conveyance made 8th June, 1937), told the court that he lived at Orwell Bank from 1937 until his marriage in 1955 when he moved first to a house in Palmerston Gardens and then back to an address in Orwell Park Road just about five houses away from his old home.  He said that after his father died in August, 1958, he helped his mother to manage the house and grounds at Orwell Bank until she died in 1972 and after her death he had helped, but to a far lesser extent, his two older sisters who were unmarried and who had continued to reside at Orwell Bank.  He told the court that this wall was always referred to as “our wall” and he had never from 1937 to 11th December, 1978, when he and his late brother Jerome T. O’Sullivan, as Executors of the Will of their late father, sold Orwell Bank to Orwell Park Limited who subsequently developed the property, saw anyone else doing any work on the wall.  A newer section of wall, stated without contradiction, to have been built in or about 1927, between Orwell Bank and No. 63 Orwell Park Road at the Orwell Park Road end of the properties, was freely admitted to be a party wall in a letter dated 27th September, 1991, from Orwell Park Limited, the predecessor in title of the plaintiff, to Corrigan and Corrigan, Solicitors, acting on behalf of the Bank of Ireland Trustee Department as personal representatives of James Roche, deceased, the former owner of No. 63 Orwell Park Road.   
I find that though Orwell Bank was built on lands ultimately intended to be developed for housing, it was not built as part of a general scheme of houses laid out in accordance with a common plan, each house or plot divided from the others by a series of boundary walls.  I am satisfied that the evidence does not give rise to a presumption that the wall in question is a party wall shared between Orwell Bank and No. 63 Orwell Park Road. (See White & Others v. Taylor & Another [1969] 1 Ch 150 at 200 per Buckley J., Ch Div U.K).   In my judgment the correct inference to be drawn from the evidence, to which I have referred, is that this wall is the boundary shown on the maps of 1879, 1883 and 1882; that it was built contemporaneously with the dwelling house, Orwell Bank, between 1863 and 1879; that the door opening onto the new lane or passage was made in this wall in or about 1883; that the wall was built at the extremity of, but entirely upon the lands of Orwell Bank and that the wall is the sole property of the plaintiff.
The map annexed to the Building Lease of 17th August, 1883, shows a passage marked, “Lane” running east from the gate marked “X” on Orwell Road to the rere of the lands of No. 63 Orwell Park Road.  The width of this lane is not given.  An extension marked “6” feet wide then continues for a further 60 feet along the rere boundary of the lands of No. 63 Orwell Park Road to the western boundary wall of Orwell Bank where it then turns south, between the lands of Orwell Bank and Rialto Cottage, to join the passage running parallel to the River Dodder.  This map is not drawn to scale but it is clear that the lane from Orwell Road to the lands of No. 63 Orwell Park Road is at least twice the width of this extension.  The north to south section of this passage described as a “footway” in the Lessees Covenant to construct it, appears on the Ordinance Survey Sheets of 1934 and 1947 but is no longer marked on the Ordinance Survey Sheet of 1970.  Mrs. Roche-Webster, the occupier of No. 63 Orwell Park Road, who was called in evidence on behalf of the defendants, told the court that this footway had been allowed to become overgrown by shrubs and trees because the local residents did not want the lane to be used as a shortcut by members of the public to get from the River Dodder to Orwell Road.  I find that this footway was absorbed into the lands of Rialto Cottage upon which a housing development known as “The Willows” was built in about 1987, or partly into those lands and partly into the lands of Orwell Bank.  There can be no doubt as to the abandonment by the occupiers of No. 63 Orwell Park Road and any other dominant owners (if any) including the occupiers of Orwell Bank, of this right of way.  
A drawing, No. 39 Job 776, made by the Firm of William A. Maguire and Partners, Architects, of 34 Lower Baggot St., Dublin, showing details of the proposed residential development at Orwell Bank for Orwell Park Limited, the predecessor in title of the plaintiffs, dated 14th August, 1989 and drawn to a scale of 1:200, was proved in evidence by Mr. William Maguire the principal of that firm.  This drawing shows the opening in the western boundary wall of Orwell Bank centrally located at the end of the east to west extension of the lane.  In the course of his evidence Mr. Maguire scaled off this opening at 1.2 metres or 50 inches.  He stated that this accorded with his own recollection of the width of this door.  Mr. Maguire told the court that this drawing was made for the plaintiff’s predecessor in title following on a detailed ground survey.  It is of some significance that the evidence established that this drawing was made in the course of resolving a boundary dispute between the plaintiff’s predecessor in title and the then owner of the dwelling house No. 3, “The Willows”.
On a site survey of No. 77B Orwell Road, the residence of the defendants, prepared in March, 1994, prior to the commencement of the re-development of the original Coach House and Stables Building at the rere of No. 63 Orwell Park Road, by R.B. O’Flynn, to a scale of 1:200, a 1.2 metre wide opening in the same part of the Western Boundary Wall of Orwell Bank is shown opening on to what is there designated as, “Stable Lane”.  The following legend appears on this survey:-
“Pedestrian gate 1.2 metres  (4 feet 0 inches) wide as shown by W.A. Maguire and Partners, Architects on survey for Orwell Park Limited August 1984.  This survey was submitted as a planning application Document to Dublin Cooperation Park’s Department.”  

	This survey was identified by Mr. Patrick D. Henihan, Architect, father of the first named defendant, who carried out the re-development of the original Coach House and Stable Building and was admitted into evidence without further proof.
	On another site survey of No. 77 B Orwell Road, also made by R.B. O’Flynn drawn to the same scale and dated March, 1999, the opening in the boundary wall of Orwell Bank at the end of the lane is shown as being 1.2 metres or 4 feet 2 inches wide.  At this time the opening had been moved from its original central position on the lane to a new position at the south corner of the lane adjoining the north boundary of, “The Willows”.  Mr. James Bradbury, who purchased and who carried out the residential development at Orwell Bank, told the court that he demolished part of the original boundary wall of Orwell Bank, which included the door at the end of the lane, in 1989 in order to allow access by construction machinery and in 1991 replaced it with a modern wall but with an opening in the position shown on the Survey by R.B. O’Flynn.  It was his recollection that this gate was 5 feet 2 inches or 5 feet 3 inches wide.  He accepted that it was a condition of the planning permission pursuant to which the development at Orwell Bank was carried out, that this opening would not be wider than the width of the door in the wall during the occupancy of Orwell Bank by the O’Sullivan Family.  In cross-examination Mr. David P. O’Sullivan said that he would not disagree with the suggestion by counsel that the original door was 50 inches wide.   In his evidence in chief he had told the court that he recalled that it was 5 to 6 feet wide.  Mr. Bradbury also said that in his recollection the original door was 5 to 6 feet wide.  In a drawing made in September, 1999, more than two years after the service of the Equity Civil Bill in these proceedings, by Denis Wood, Associates, and numbered 8290, the re-located opening is measured at 1.285 metres.  I find, on the balance of probabilities, that the width of the original door in the western boundary wall of Orwell Bank at the eastern end of the lane was 1.2 metres or 50 inches.  
	Prior to 1934 a two storey Coach House and Stables Building was constructed at the rere of No. 63 Orwell Park Road.  This building appears on the Ordinance Survey Sheet of that year in the usual ground plan designation.  Mr. William Maguire told the court that in his opinion this building was probably erected in 1883.  This building, shortened on the side nearest to Orwell Road by approximately 12 feet, was totally refurbished and is now known as No. 77 B Orwell Road and is the residence of the defendants.  The area in front of the south wall of this house facing the northern boundary of the lands of Rialto Cottage, now, “The Willows” is not a uniform width of 6 feet as shown on the map annexed to the Building Lease made 17th August, 1883, pursuant to the Lessees Covenants in which No. 63 Orwell Park Road was constructed.  I find, on the evidence of the measurements taken by Mr. Patrick D. Henihan, that this area varies in width from a maximum width of 3.62 metres or 11 feet 11 inches at the eastern end of the house almost immediately adjoined the wall of Orwell Bank, to a minimum width of 3.3 metres or 10 feet 10 inches at the western end of the house nearest to Orwell Road.  From the maps and photographs produced and proved, or admitted into evidence, I find that the present southern boundary wall of this area corresponds directly to the original northern boundary of Rialto Cottage.  I therefore infer that when the original Coach House and Stables Building was constructed in or about 1883 at the rere of No. 63 Orwell Park Road, it was set back somewhat from the southern or rere boundary of that property.
	Drawing No.3 Job. No. 9411, dated March, 1994 and made by Mr. Patrick D. Henihan, Architect, to a scale of 1:100, shows the layout of the former Coach House and Stables Building.  The Coach House section occupied the western part of the ground floor of the building nearest to Orwell Road with a larger door – the lower part of which was later blocked up in order to make a window of the upper part, – facing the Orwell Road entrance to the lane.  The stables area, containing three adjoining horse stalls, facing north, occupied the eastern part of the ground floor of the building nearest to the wall of Orwell Bank, with a hay loft overhead.  The entrance to the stable section was on the south elevation of the original building, - now the front of dwelling house No. 77 B Orwell Road.  The probable explanation for the increased width of the lane or passage in front of this stable entrance is that 6 feet was not considered sufficiently wide to afford a safe entry and exit for the horses or to permit the efficient servicing of the stables facility.  The survey by Mr. Patrick D. Henihan bears the legend that an area indicated as the full width of the lane or passage outside the original door to this stables section had been paved with 9 inch by 4.5 inch stable block, “STAFFORDSHIRE BLUE” flagstones.  In my judgment this lends support to the inference that this area of the lane or passage was used to service the stables section and probably also to wash down and groom the horses.  This area was directly in front of the original door leading into Orwell Bank.
A large number of photographs were admitted or proved in evidence during the hearing of this case.   A number of these photographs were of considerable assistance to the court as illustrating relevant physical features and events.  I shall now refer to these.  A series of three photographs, taken by Mr. James Bradbury in 1989 were proved in evidence by him.  These show the opening where a section of the original western boundary wall of Orwell Bank had been demolished by him for the whole of the distance between the south eastern corner of the wall of the original Coach House and Stables Building and the northern boundary wall of the “The Willows”, - a distance of some 4.02 metres or 13 feet and 2 inches.  I am satisfied that the evidence establishes, for reasons I have already given, that the original door from Orwell Bank into the lane or passage had stood in the middle of this demolished section of wall.
In a photograph, numbered 16, taken in February, 1990 by Mr. Paul Griffin an Architect acting on behalf of Mrs. Cathy O’Sullivan who then resided at No. 3 “The Willows”, was identified by her and admitted into evidence.  It shows the original Coach House and Stables Building with an outside staircase, (erected after 1953 when the building was used as a knitwear factory by Stoakes Bros.), still in place and the hoarding erected by Mr. Bradbury in the opening where part of the western boundary wall of Orwell Bank had been demolished by him.  Mr. Bradbury gave evidence that the original door in the western boundary wall of Orwell Bank opening onto the lane or passage was located approximately where the black panel appears between the white panels in this photograph.  Two photographs, No. 13 and 14, were taken in Autumn 1991 by Mr. Stuart Hamilton, Chartered Surveyor, acting on behalf of the Bank of Ireland Trustee Department as trustees of the deceased owner of No. 63 Orwell Park Road, and were proved in evidence by him.  Photograph No. 13 shows the Coach House and Stable Building after the outside staircase had been removed, revealing the original coach entrance partially blocked up to form a window and the flagged area outside the original stables entrance.  Photograph No. 14 shows the lane leading up to the Coach House and Stable Building and continuing past that building to the wall and the gate erected by Mr. James Bradbury in 1991 to replace the above mentioned hoarding.  Evidence was given by Mrs. Patricia Quinn that part of the lane had received some form of tarmacadam surface dressing in 1973 but other evidence indicated that the surface was mostly gravel and stone chippings and that the vegetation shown growing on the lane in the various photographs was mostly moss, grass, annual weeds, and light shrubs and brambles.
A photograph taken by Mr. Michael Nugent, Solicitor for the plaintiff, on 15th May, 1997, one month before the commencement of these proceedings, and proved in evidence by him, shows the extent of the landscaping work carried out by the defendants in front of a gate leading into Orwell Bank as of that date.  Mr. Nugent identified the person in the photograph as Mr. Desmond Crofton Property Management Agent of the plaintiff.  Photographs, numbered 6 and 7, taken on 8th February, 1999 by Denis Woods Associates Consulting Forensic Engineers, were proved in evidence by Dr. Denis Wood.  These show the same features as seen from the Orwell Bank side.  The opening of 4.2 metres is seen on these photographs to be closed entirely by a gate consisting of two unequal sections, made of the vertical metal bars, which the evidence established was erected by Mr. James Bradbury in 1990.  In addition, it is further partly closed by a wall of concrete blocks which the evidence established was erected by the first named defendant in September, 1995 on the west or Orwell Road side of this metal gate, on the surviving courses of a previous wall erected on the site by Mr. Bradbury in 1991 and which had then been removed by him in 1995.  Photographs, numbered 13 and 24, also taken by Mr. Michael Nugent and proved in evidence by him, together show the present layout and condition of the lane from the Orwell Road entrance to the western boundary wall of Orwell Bank.  Photograph, numbered 9, was taken by Mr. Patrick D. Henihan, Architect, on 24th March, 2000 and was proved in evidence by him.  It shows a Miget Racing Car, which he stated in evidence was driven in competitions in the decade 1930 to 1940 and in the decade 1940 to 1950 and which, in order to comply with the Motor Sport Competition Rules, had to have a front track width of exactly 1.1 metres or 3 feet and 7 inches.  
Mr. Patrick D. Henihan told the court that when in 1994 he purchased the lands which included the former Coach House and Stables Building at the rere of No. 63 Orwell Park Road, he realised, and had no doubt, that there was a right of way along the narrow part of the lane or passage in front of that building to the door in the wall of Orwell Bank.  He said that he assumed that this was a pedestrian right-of-way only as this door was 1.2 metres wide.  He told the defendants about this before transferring the property to them.   He had no intention, he said, of ever obstructing this right of way and in his drawings, - which he produced and proved in evidence, - he provided for a pathway 4 feet and 2 inches wide leading directly to this opening.  Rachael Henihan, the second named defendant, told the court that she and her husband had never denied that there was a right-of-way from Orwell Bank along the passage or lane in front of their house, but she believed at all times that it was a pedestrian right-of-way only.  She said that they would never have incurred the expense of carrying out landscape work in front of No. 77B Orwell Road in 1996 if they had known that vehicles could come all the way up to the wall of Orwell Bank.  Mr. Patrick D. Henihan told the court that he only realised that a more extensive right-of-way with vehicles was being asserted by the plaintiffs when his solicitor, Mr. Donal Spring of Spring Murray and Co. Solicitors received a letter dated 10th May, 1995 from Beauchamps, Solicitors for Orwell Park Limited and James Bradbury in the following terms:- 
“We act for Orwell Park Limited and Mr. James Bradbury, the owners of the development known as Orwell Bank, Orwell Park, Dublin.  The various houses in the development have been sold to individual purchasers but the common areas are still retained by Orwell Park Limited.  
Dublin Corporation wrote to our clients saying that there was a blocked drain or pipe in the lands of Orwell Bank.  In addition to owning the lands at Orwell Bank, our clients have a right-of-way over the lands outlined in red on the map annexed to the declaration of Jerome T. O’Sullivan, dated 11th December, 1978.  Our clients and our have used the right-of-way as outlined in red with or without vehicles since 1937.  Our clients require to bring a vehicle over the right-of-way into their property at Orwell Bank for the purpose of unblocking a blocked drain.  Your clients have indicated to our clients that they propose preventing our clients from exercising their right-of-way with the said vehicle in order to unblock the drain.  Our clients propose bringing workmen and machinery along the right-of-way into their premises on Friday with the view to unblocking the drain which, as we say, has been brought to our clients’ attention by Dublin Corporation.  
Your clients have no right to interfere with our client’s use of the right-of-way and any attempt by your clients to prevent our clients exercising their right-of-way with and without vehicles over the lane-way as coloured red on the map annexed to the Declaration of Jerome T. O’Sullivan will be met with proceedings which would include injunction given the nature of the blockage.  Further, our clients will hold your clients liable for any loss of damage occasioned in the event of them being prevented from exercising their right-of-way in order to unblock the blocked drain. 
We look forward to hearing from you by return confirming on behalf of your clients that they will not interfere with our client’s exercise of the right-of-way.”
	
	A letter dated 8th September, 1995, Beauchamps, Solicitors, furnished to Mr. Donal Spring a copy of a Statutory Declaration of Jerome T. O’Sullivan, - since deceased, - which stated as follows:-
“1.	My father Jerome J. O’Sullivan purchased the dwelling house and premises known as Orwell Bank, Orwell Park, Rathgar, in the City of Dublin under Indenture of Conveyance dated 8th June, 1937, made between John Healy of the one part and the said Jerome J. O’Sullivan of the other part.   
2.	Since that date my father was in undisputed possession and receipt
of the rents and profits of the said premises, Orwell Bank, Orwell Park, Rathgar, up to the date of his death on 25th August, 1958.  
3.	Since the date of his death, myself and my brother, David P.
O’Sullivan who are the Executors and Trustees of the Will of the said Jerome J. O’Sullivan have been in undisputed possession of the said premises.   
4.	I state since 1937 my said father until his death and I this deponent
and my brother the said David P. O’Sullivan and the family have since his death used and enjoyed a right of way along the passage or laneway running from the said dwelling house, Orwell Bank to Orwell Road as the same is more particularly delineated on the map hereto annexed and thereon outlined in red together with or without horses, carts and motorcars without any interruption or disturbance or attempted interruption or disturbance by any person whatsoever and without any claim to the said passage or laneway or any part thereof having been made or attempted to be made at any time during the said period by or on behalf of any person or persons. 
I make this Statutory Declaration conscientiously believing the same to be true and by virtue of the Statutory Declarations Act, 1938.”
	The area outlined in red is the whole of the lane or passage from Orwell Road, to the western boundary wall of Orwell Bank.   
	Mr. David P. O’Sullivan gave evidence to the court that from after his father purchased Orwell Bank on 8th June, 1937, until he and his late brother Jerome T. O’Sullivan, as Executors and Trustees of their late father who died on 28th August, 1958, sold the property to Orwell Park Limited on 11th December, 1978, the family always had a key to the Orwell Road gate of the lane.   This recollection is corroborated by the evidence of Mrs. Roche-Webster, who was called in evidence on behalf of the defendants.  She told the court that she and her late husband, James P. Roche, had moved into No. 63 Orwell Park Road in 1964 or 1965 and her late husband had re-acquired the Coach House and Stables Building at the rere of No. 63 Orwell Park Road in 1972.  She said that when a new gate was erected at the Orwell Road end of the lane in 1973, - she did not identify by whom - keys were given to her husband and herself, to a Dr. Brennan and to Mr. O’Sullivan’s sisters.    
	Mr. O’Sullivan told the court that at least up to the time when his father died, in 1958, two full-time gardeners were employed at Orwell Bank.  When he left Orwell Bank in 1955 on the occasion of his marriage, the gardeners were Mr. Byrne and Mr. Lucey.   He could not recall when Mr. Byrne had ceased working at Orwell Bank but he felt that it was sometime after the death of his own father, Jerome J. O’Sullivan, in 1958. He told the court that the second gardener Mr. Lucey continued to work at Orwell Bank until 1972 when the witness’s mother died.   Mr. O’Sullivan told the court that he helped his mother with the management of Orwell Bank up to the time of her death and one of his duties was to pay Mr. Lucey his wages.  Mr. O’Sullivan said that after he married he and his wife lived not too far away from Orwell Bank at Palmerston Park and that after a short while they moved to live in Orwell Park Road, only about five doors away from Orwell Bank.  After the death of their mother his two sisters took over the management of the house and gardens at Orwell Bank.  Mrs. Roche-Webster told the court that she had met the late Mrs. O’Sullivan and often spoken the O’Sullivan sisters across the wall between their respective properties.  She said that she knew that the O’Sullivans had a number of gardeners. 
	Mr. David P. O’Sullivan gave evidence that from the time they moved into Orwell Bank in 1973, he recalled, though he was a young boy when the move was made, that at least once a year loads of manure and gravel would be brought up the lane to the door in the wall of Orwell Bank through which it was then taken into the garden in wheelbarrows.  Initially, he said, these deliveries were made by horse drawn carts but as the years passed this form of transport gave way to motor lorries.  He felt confident, but was not prepared to say emphatically, that the material was first offloaded from the cart or lorry onto the surface of the lane near or against the boundary way of Orwell Bank before being barrowed through the door by the gardeners.  He recalled that the manure was supplied for some time by Milltown Dairies but he could no longer recall any other suppliers or who supplied or delivered the gravel.  He was not asked and did not offer any evidence about the nature or width of the delivery carts or lorries or the months or even the seasons when the deliveries were made.  He told the court that he also recalled on a number of occasions cinders being similarly delivered.  Mr. O’Sullivan by his evidence confirmed and elaborated what is suggested by the Ordinance Survey Sheet for 1950, and I find, that the lower site at Orwell Bank was up to the time of the sale in 1978 occupied by a large ornamental Victorian fruit and vegetable garden laid out in formal beds with extensive gravel walks.  This garden, he said, supplied all the fruit and vegetable requirements of the household at Orwell Bank throughout the year.   
	Mr. David P. O’Sullivan told the court that it was totally impossible to get any materials to this garden from the main entrance to the house on the upper level.  The house itself was situated on what is in effect a bluff rising about 50 feet above the lower site at gradients of 1:1, and could be only accessed from the lower site by steep flights of steps.  This evidence was fully corroborated by that of Mr. William Maguire, who had been the architect for the development at Orwell Bank and, also by Mr. James Bradbury, the developer of the property through Orwell Park Limited, the predecessor in title of the plaintiff.  Mr. O’Sullivan told the court that the gardeners generally came and went by the door into the lane and while this door was sometimes used by family members, it was not commonly used to access the house itself.  Mr. O’Sullivan said that it was his recollection that the practice of bringing these loads to the garden continued at least up to the date of his mother’s death and until Mr. Lucey retired in 1972.  
	Mr. David P. O’Sullivan accepted that the family hardly ever drove or parked motorcars on the lane.  He told the court that he and his older brother were motor racing enthusiasts.  He said that from 1947 to 1953 they built Miget Racing Cars on the lane outside the door to Orwell Bank from parts taken from old Austin Seven and Baby Ford cars which they towed down the lane and disassembled near the door.  They could not pass these old cars through the door at it was not sufficiently wide.  He said that the engine compartment of the these cars would fit partly through the door and they had used the door arch as an anchor for a block and tackle pulley arrangement which they used to lift the engine blocks out of and into these cars.  
He said that they would never be working on these cars all the time and never on more than two at any one time.  They had tarpaulins to cover the cars when they were not working on them. 
	While I find that Mr. David P. O’Sullivan was mistaken in his recollection as to a number of matters, I am quite satisfied that this was solely due to the passage of more that fifty years.  Having observed him in giving his evidence, both in chief and under cross-examination, I am satisfied that he was a truthful and careful witness on whose evidence the court could rely.  While I accept his evidence in relation to these Miget Racing Cars, I find on the balance of probabilities, that this activity ceased prior to 1953 and probably at the time his older brother left Orwell Bank in 1950.   
	Mr Anthony Stokes gave evidence that from 1953 to 1978, he and his older brother, ran a Childrens Knitwear Factory in the former Coach House and Stables Building at the rere of No. 63 Orwell Park Road.  He told me that he was the engineer- technician in charge of the factory machinery.  He said that he never observed any car dismantling or car building activity taking place outside the door leading from the lane into Orwell Bank during this period.  This activity, if carried on during this period would of necessity have to have taken place directly outside the windows of the factory.  It is impossible to imagine that Mr. Stokes, himself an engineer, would not have noticed and remembered such activity, especially the unique use of the door arch.  While I have no doubt that Mr. Stokes was endeavouring to recall the events of a quarter to almost a half century ago, as carefully and as accurately as he could, he could not be expected to have had the same interest in the comings and goings at Orwell Bank as the O’Sullivans and therefore his recollection of events involving Orwell Bank, is, on the balance of probabilities, likely to be less complete than that of Mr. O’Sullivan.  Nonetheless, on this issue of the Miget Racing Car construction, I am satisfied that the matters to which I have averted entitle the court to prefer his recollection to that of Mr. O’Sullivan.  I find accordingly that this particular activity had ceased prior to 1953: probably in 1950 when Mr. O’Sullivan’s older brother left Orwell Bank, or shortly thereafter.   
It was Mr. David P. O’Sullivan’s recollection that the door leading through the western boundary wall of Orwell Bank from the lane was 5 to 6 feet wide and was a double panelled door opening in the middle.  Mr. James Bradbury also told the court that it was his recollection that this door was 5 or 6 feet wide but he thought that it was a single panel door.  For the reasons I have already set out I am fully satisfied that the recollection of both gentlemen in this regard is defective and that the door was in fact 1.2 meters or 50 inches wide. 
	Mr. Roche-Webster told the court that after the section of the original western boundary wall of Orwell Bank from the corner of the former Coach House and Stables Building to the other side of the lane had been demolished by Mr. James Bradbury’s workmen in 1989, she had taken possession of the door which had hung in the opening in that wall.  She said that it was a fine single panel door of heavy wood which was well preserved.  Mr. William Maguire said that he had a clear recollection of the door.  He said that it was a single panel made of vertical wooden planks and was sound and firm when he observed it in 1979, though it gave the appearance of not having been painted for at least three years.  He had formed the impression at the time that the particular door was only about ten years in place.  Mr. Anthony Stoakes recalled that in about 1957, what he described as a small single panel green painted door in the Orwell Bank boundary wall was more or less coming off its hinges and he had jammed a piece of a packing case against it in order to keep it closed.  He said that he had seen it open a couple of times between 1953 and 1968 but had assumed that children had opened it.  He said that he had no recollection of seeing anyone going in or out through this door or walking near the factory though he was there most week days and very frequently at weekends also.  In cross-examination Mr. Stoakes accepted that persons could have gone in and out through this door and material could have been taken through it without his being aware of these occurrences.  He said that he recalled what seemed to be a mound of weed covered clay in front of this door but that the door could still be opened easily.  His recollection was that in 1953 the surface of the lane appeared to be gravel.  He said that at this time there were double wooden gates, 7 feet in height at the Orwell Road end of the lane.  He and his brother had keys to this gate and he believed that the Roche Family and Noble Family were the only other persons who had keys to this gate.  He admitted, however, that he did not really concern himself with who else might have keys so long as he and his brother had keys and the gate was kept locked. 
	This evidence, though it suggests that sometime, probably between 1957 and 1969, the door in the opening through the western boundary wall of Orwell Bank from the lane was changed, nonetheless leads one strongly to the conclusion that both the previous and subsequent doors were single panel constructions.  Though I am satisfied that Mr. David P. O’Sullivan is mistaken in his recollection as to the construction and the width of this door and, as to the construction of Miget Racing Cars by him and his older brother in the lane outside this door after 1952, I do not find that this demonstrates that his recollection of the period 1937 to 1978 is generally unreliable.  On the contrary I am satisfied that his evidence is otherwise accurate and credible.  Mrs. Roche-Webster said that she had never seen any gravel or manure being delivered to the door leading onto the lane from Orwell Bank.  However, she accepted that she and her family hardly ever used the lane.  She said that her children had sometimes used the lane to go to the Kiosk Shop on Orwell Road Bridge and the family had used the right of way to take the childrens’ canoes down to the River Dodder before they had allowed it to become overgrown with bushes and trees to prevent the public from using it as a shortcut to Orwell Road.   
	It was generally agreed during the course of evidence that the height of the door in the western boundary wall of Orwell Bank opening onto the lane was about 1.98 metres or 6.5 feet high that is somewhat less high than the existing opening for the gate leading directly from the lower site onto the passage running parallel the River Dodder.  The court was told that the height of this opening was 7 feet.  Mr. William Maguire told the court that he recalled that in 1979 the lane appeared to him to be surfaced with gravel and loose chippings.  He was satisfied that the former Coach House and Stables Building was not in use in 1979.  Mr. Stoakes gave evidence that he and his brother had moved their business to Cookstown Industrial Estate some years before the expiry of their Lease of the Coach House and Stables Building, which was for a term of 21 years from 1957.  He said that they had assigned the unexpired residue of the term to a pharmaceuticals distributor.  
	Though no evidence was given by Mr. David O’Sullivan as to the type and in particular the width of the carts and lorries used to carry the manure, gravel and cinders to the immediate vicinity of the door leading from the lane into the fruit and vegetable garden of Orwell Bank, I am satisfied that the only proper inference to be drawn is that these transports required the whole width of the narrower part of the lane in front of the Coach House and Stables Building for this purpose.   Mr. Patrick D. Henihan and Dr. Denis Wood told the court that the former Coach House and Stables Building was 12 feet longer than the present dwelling house of the defendants in the west or Orwell Road direction.  Dr. Wood calculated, and this was not disputed by Mr. Maguire, that the lane at its narrowest point between the corner of the Coach House and Stables Building in its full original length and the boundary of Rialto Cottage, now, “The Willows” was 9ft wide.  Dr. Wood said that the average width of a motorcar was 5½ ft.  I believe that the court may infer that a horse drawn cart or ordinary lorry suitable to carrying a load of manure or gravel would probably be at least 1ft wider than this.  It is obvious that any horse and cart or lorry would have to proceed in reverse through this gap and along this narrower part of the lane to the wall of Orwell Bank because the lane does not widen thereafter beyond 3.62 meters or 11 ft and 11 inches, which would not allow sufficient room for a horse and cart or a lorry to turn around.  An indication of the passage room required by a horse and cart or a lorry at this time is to be found in a Deed of Assignment, made 3rd March, 1947 between Matthew McKnight and Another and John Joseph Roche of No. 64 Orwell Park Road, whereby the plot of ground at the rere of No. 63 Orwell Park Road, “with the stable buildings thereon”, was assigned to John Joseph Roche excepting and reserving to the Vendors….. their tenants, servants and agents with or without horses, carts, motor cars, motor vans, lorries and other vehicles, a right of way 10 feet wide through the gates to be constructed by the Purchaser….. for the purpose of gaining access to the said right of way leading to Orwell Road and the River Dodder.”
	Mr. William Maguire told the court that between 1979 and 1989 he had examined the lower site behind Orwell Bank House for the purpose of advising Mr. James Bradbury as to its development potential.  He considered that it had a maximum potential of accommodating a singe private residence.  He said that he had carefully considered the right of way to the lower site referred to in the Statutory Declaration of Jerome T. O’Sullivan, (since deceased) dated 11th December, 1978 and as shown on the map annexed to that Statutory Declaration, which stated that the right of way was enjoyed with or without horses, carts and motorcars.  By a letter dated 29th August, 1990 he had advised the firm of Hickey, Beauchamp, Kirwan and O’Reilly, Solicitors for Orwell Park Limited that:-
“There is free access to the right of way from Orwell Road.  There is a pedestrian gate at the end of the right of way abutting Orwell Bank.  It is understood that this access is useful for the purpose of maintaining the lower grounds abutting the River Dodder and is likely to be required by a Management Association for the purposes of maintenance.”  
	This letter was produced and proved by Mr. Maguire in evidence.  He told the court that he had advised Mr. James Bradbury that there could be a planning problem in relation to this lower site because the door or gate from the lane into that site had in his opinion never been a vehicular access.  
	Though four Grants of Planning Permission dated 1982, 1984, 1987 and 1988 and a Grant of Bye-law approval dated 1988 are Scheduled at items 33 to 37 inclusive in the Affidavit of Discovery sworn by Desmond Crofton, Property Management Agent of the plaintiff, sworn on the 10th March, 2000, these were not produced or proved in evidence.  From an Affidavit of Kenneth Deale sworn on the 19th July, 2001, in the course of the defendants’ application for Security for Costs in respect of this Appeal, it appears that the Development at Orwell Bank was carried out pursuant to Decision Order No. P. 2113 Plan No./Reg. No. 807/87 had Decision Order No., P. 3161 Plan No./Reg. No., 1976/88.  On the run of the evidence it appeared to be accepted by both sides to this appeal that it was a condition of the planning permission that the gate from the lane into the lower site at the rere of Orwell Bank would not exceed the width of that gate during the O’Sullivan Family occupation of Orwell Bank.  
	Reference was made to correspondence in 1990 and 1991 between Mr. James Bradbury on behalf of Orwell Park Limited, the predecessor in title of the plaintiff and Mrs. Roche-Webster of No. 63 Orwell Park Road in relation to this door and letters dated 2nd August, 1990; 5th October, 1990; 12th October, 1990; 19th September, 1991; 24th September, 1991 and 27th September, 1991 were produced and proved in evidence by Mrs. Roche-Webster.  Mrs. Roche-Webster is not a party to these proceedings.  I am satisfied that no estoppel against the plaintiff can arise out of this correspondence.  In the context of the Conditions which attached to the Grants of Planning Permission I cite the following passage from the letter dated 2nd August, 1990 from Orwell Park Limited to Mrs. Roche-Webster, copies of which were sent to the Planning Section of Dublin Corporation and to W. A. Maguire and Partners, Architects:-
“The present gates are temporary.  The opening was enlarged in order to gain access for machinery to carry out works at the lower level of the site.  This opening will be reduced to its original size and the wall repaired in accordance with the planning conditions.”     
	I find, on the balance of probabilities, that between 8th June, 1937 and a date in 1972, in addition to a pedestrian user of the lane, in respect of which a right of way was admitted by the defendants during the course of this appeal, on at least two occasions in each year, openly, peaceably and without permission, initially a horse and cart and then, with changing technology, a lorry, carrying manure, gravel and cinders, passed and re-passed over and along the lane from its Orwell Road entrance to the face of the wall at Orwell Bank and there deposited that manure, gravel and cinders on the surface of the lane.  I find that these materials were then taken through the door in that wall, probably by the use of wheelbarrows, for the purpose of repairing, maintaining and improving the fruit and vegetable garden, which then occupied the area of the lower site at the rere of Orwell Bank, for the sole benefit of the occupants of Orwell Bank.  Mr. David P. O’Sullivan did not say that he or either of his brothers moved the manure, gravel or cinders and after the retirement of Mr. Lucey, the last full-time gardener at Orwell Bank in 1972, it is very improbable though not impossible that Mr. O’Sullivan’s sisters continued this practice.  I find that this user was of a clear and definite nature and though, of its nature necessarily intermittent, was “of such of character, degree and frequency as to indicate an assertion by the claimant of a continuous right and of a right of the measure of the right claimed.”  [Gale, “Easements”, 16th edition (1979) pages 230 and 231, citing White v. Taylor (No. 2) [1969] 1 Ch. 160 at 192 – 5.]   
I find that between 8th June, 1937 and 11th December, 1978 despite what is stated in the Statutory Declaration of the late Jerome T. O’Sullivan, members of the O’Sullivan Family did not, save very infrequently, pass or repass over and along the lane with motorcars from its Orwell Road entrance to the door in the western boundary wall of Orwell Bank.   Because of the absence of a vehicular entrance at this point, its distance from the house, the intervening steep flights of steps and the ample car parking space around the house itself, the members of the O’Sullivan Family would have had little or no incentive to drive or to park motorcars on any part of the lane.   I find that Mr. David P. O’Sullivan and his older brother, from 1947 to not later than 1952, did occasionally assemble Miget Racing Cars on the surface of the lane outside the door in the western boundary wall of Orwell Bank from old cars towed to that location over and along the lane and there dismantled.   I find that this activity by two young men in their late teenage years or early twenties was a casual and non-continuous use and an activity of a type which would not put the servient owner or any co-user of the lane on notice that a right of way for the passage and re-passage of motorcars along the lane was being asserted.   
Despite what was averred at paragraph 3 of the Affidavit of Mr. James Bradbury sworn on the 1st August 1997, that between 1978 and 1996, “the right of way was regularly used both for pedestrian purposes and for vehicular purposes”, I find that from the 11th December 1978 to 1989, the part of the lane, from at least the western side of the former Coach House and Stables Building to the western boundary wall of Orwell Bank was scarcely used at all.  In cross-examination Mr. James Bradbury admitted that from 1978 to 1989 inclusive the lane was, “unused most of the time”.  Mrs. Cathy O’Sullivan told the court that in 1987 the lane at the Coach House and Stables Building was all overgrown with thistles, nettles and bushes.  If she had to retrieve a ball knocked into this area by her children she had to put on wellington boots and gloves.  The photographs produced and proved in evidence clearly demonstrate that by 1989, this part of the lane had become very overgrown.  I accept the evidence of Mr. William Maguire that he and this team carried out a detailed survey of the boundaries of Orwell Bank in 1979 and that this inevitably required a visit to this part of the lane.  I am prepared to accept that Mr. James Bradbury himself carefully examined this part of the lane.  He told the court, and I accept his evidence, that he was keenly conscious of the fact that the lane was the only practicable access to the lower site at Orwell Bank which was absolutely essential to the whole development as providing a vital sewer connection.  He said that there was a gate about 9 feet wide at the Orwell Road end of the lane in 1979  and the surface of the lane was firm and comprised of gravel over clay but had been worn into two ruts with a hump in the centre.  However, on the balance of probabilities, I find that these surveys and visits were all made prior to the first application for the planning permission which was made in 1982 and before this part of the lane had become overgrown through lack of use.
Mrs. Patricia Quinn told the court that she had lived from June or July 1972 to 1995 in the house next to the Orwell Road entrance to the lane.  In 1972 this entrance, she recalled, was narrower and was closed with a rather dilapidated wooden gate.  In 1973 Mrs. Roche-Webster and the witness’s husband had shared the cost equally of hanging a new gate and putting a tarmac surface on part of the lane, down she believed to the rere access to No. 63 Orwell Park Road.  She knew that her husband had keys to this gate and she believed that Mrs. Roche-Webster and the Stokes brothers also had keys but she really had no interest in whoever else might have had keys.  She told the court that it was not until about 1983, when her children were then aged 8 and 10, that she discovered that there was door at the end of this lane.  Her memory was that this bottom part of the lane in 1983 was very over grown with tall weeds and brambles.   She remembered, she said, the Stokes brothers parking their cars on the lane under the breakfast room and dining room windows of her house and she recalled delivery vans coming from and going to their knitwear factory in the former Coach House and Stables Building.
She said that she knew Mr. James Bradbury because he had served his time with a relative of hers.  She told the court that she had met him on the lane in 1988 or 1989.  He told her then that he had purchased the property at the end of the lane.  When she asked him, he said that he was not building on this field but wanted access to it.  She said that she knew that he was building entrepreneur and was very sceptical about his intentions.  She said that she told Mr. James Bradbury at this meeting that she would oppose any development in this field, (identified as the lower site at the rere of Orwell Bank), as she did not want twenty four cars driving in and out every day over the lane.  In cross- examination Mrs. Patricia Quinn accepted that by 1991 the tarmac surface had become unravelled and was extensively obscured by moss and short grass.  She recalled building workers moving up and down the lane constantly during 1989, 1990 and 1991.  She said that two refuse skips had been placed on the lane but she did not know by whom.  In 1989 a large mechanical digger had great difficulty, she said, negotiating the narrow part of the lane between the corner of the Coach House and Stables Building at the Orwell Road end and the boundary wall of “The Willows”.  She recalled that several local residents were out watching the manoeuvring of this machine because they were fearful that it would cause damage to their properties.  
	I find that from 21st July 1989 to 10th November 1993, during the construction and selling phase of the 18 houses at Orwell Bank the lane through it’s entire length was extensively used by Mr. James Bradbury and his employees.  Mrs. Cathy O’Sullivan told the court that on the 21st July 1989 workers using a J.C.B. Digger demolished the stretch of the original western boundary wall of Orwell Bank at the end of the lane across it’s entire width.  The garden of her home No. 3, “The Willows” was immediately next to the scene of this work and she well remembers the occasion because she was having a party for children and was fearful that one of them might be injured.  The developer who had built the houses at, “The Willows” had gone out of business before the development was completed and the boundary wall between her house and the lane had been built only to about half its proper height.  She took the photograph, numbered 11, on the 21st July 1989 and this was produced and proved by her in evidence.  
	Mrs. Cathy O’Sullivan, (who is unrelated to Mr. David P. O’Sullivan), told the court, and I accept her evidence, that during the remainder of the summer and into the autumn of 1989 all the old fruit trees and fruit bushes were cleared out of the garden on the lower site at Orwell Bank.  She recalled that a team of three workmen with chain saws, ropes and other implements were involved in the felling and cutting of the trees and that they had made a great deal of noise.  She said that some of the timber was burned and some of it was buried in a large hole which had been excavated in the lower site.  Mr. James Bradbury told the court that he caused to be carefully dug up and removed in vans and lorries the dwarf box hedges which had lined the gravel paths in the garden and also some other valuable shrubs which he found growing in the garden.  In addition to lorries and construction machines of several types, Mrs. Cathy O’Sullivan recalled that, “the odd car would come down the lane to the site as well”.  The evidence of Mr. James Bradbury corresponded in every respect to this evidence of Mrs. Cathy O’Sullivan.  I found Mrs. Cathy O’Sullivan to be an acute and accurate observer of facts with a remarkably clear memory of the events of 1989 and who was scrupulously careful and objective in her evidence.  She said that she had come to believe, - she could not recall how, -  that this lower site was intended to have been a tennis court for the use of the occupiers of the Orwell Bank houses.  Remarkably, a print of a Drawing by W. A. Maguire & Partners, Architects, Job 776 Drawing No. 7, if examined very carefully does indeed appear to show the lines of a tennis court superimposed on the area of this lower site.  
	Mr. James Bradbury told the court that he had to construct a massive reinforced concrete wall or buttress to stabilise the escarpment between the upper and the lower sites at Orwell Bank and to prevent any danger of future land slippage.  When this was completed he said the slope had to be planted to provide further stabilisation and to prevent soil erosion.  Only after all this had been done was the lower site graded and seeded as a lawn.  He said that all the equipment and transport vehicles involved in this work used the lane.  Mr. Patrick D. Henihan accepted that Mr. James Bradbury had to carry out this major work at the lower site at Orwell Bank.  He believed, - but he did not say why, - that the mass concrete was gravity fed into the shuttering and rebar work from the upper site.  
Mr. James Bradbury told the court that he initially closed off the opening in the demolished part of the western boundary wall of Orwell Bank with a wooden hoarding in sections of four feet wide by eight feet high.  This recollection is confirmed by the photographs taken in February 1990 by Mr. Paul Griffin, Architect, acting on behalf of Mrs. Cathy O’Sullivan and produced and identified by her and admitted into evidence.  Mr. James Bradbury told the court that later in 1990 he replaced this hoarding with metal gates 4.2m or 13’2” wide hung on steel posts.  These gates are still in place and appear in the photographs proved in evidence by Dr. Denis Wood and Mr. Michael Nugent to which I have already referred earlier in this judgment.  Mr. James Bradbury said that in late Autumn or perhaps it was November of 1991 he had built a brick wall on the footings of the original western boundary wall of Orwell Bank in front of these gates leaving an opening, not in the centre where the original door into Orwell Bank was located, but adjacent to the boundary wall of “The Willows” on the opposite side of the lane to the Coach House and Stables Building.  Mr. Michael Nugent, Solicitor for the plaintiff, produced a Certificate of Incorporation which showed that the plaintiff was incorporated in the State on the 5th October 1990.  By a Deed of Conveyance made 29th September 1995, produced and proved in evidence by Mr. Nugent, the common areas of the development at Orwell Bank were conveyed to the plaintiff as Management Company for the same.  Mr. James Bradbury told the court that on the 20th March 1996 he severed all connection with the Orwell Bank development and the management of the common areas was taken over by the late Mr. Eddie Daly.  Mr. Michael Nugent, Solicitor for the plaintiff proved in evidence that Mr. Eddie Daly had become a director of the plaintiff on the 20th March 1996.  Mr. Nugent told the court that Mr. Daly had most tragically died in July or August 1996.  Mr. James Bradbury told the court that he had arranged for the lawns in the lower site at Orwell Bank to be regularly trimmed until 1995.  This work was mostly done by his own workmen but a man form the Parks Department of Dublin Corporation had also cut the grass on occasions.  He said that a Mr. Anthony Fox was the last person to cut the grass for him.
	Mrs. Regina Brennan told the court that she had lived from December, 1991 to May, 1997 in one of the houses built on Orwell Bank.  Mr. James Bradbury stated that Mrs. Brennan and her late husband were the second persons to purchase a house in the newly completed development.  He said that the development, “took off”, in 1992 and that the last property was sold on the 10th November, 1993.  Mrs. Brennan told the court that the lower site was laid out in lawns surrounded by mature trees and was a very pleasant amenity and was very well maintained.  She produced and proved in evidence a photograph taken by her of her late husband and their infant daughter in this lower site in 1992 and it certainly gives every appearance of being carefully maintained.  One could scarcely expect otherwise at this time when the houses at Orwell Bank were being marketed.  Mrs Brennan said that she did not know how people got into this lower site to cut the grass and carry out general maintenance.  I accept the evidence of Mr. James Bradbury and Mr. William Maguire and I find that it would be extraordinarily difficult and extremely dangerous to attempt to bring this equipment down from the top site at Orwell Bank.  I accept the evidence of Mr. James Bradbury that a self propelled ride-on mower was used to cut the lawns.  I accept his evidence that the mower was brought on the back of a lorry along the lane to a point near the boundary wall of Orwell Bank, and was then rolled down from the lorry bed on planks to the surface of the lane and pushed through the opening in the wall and through the smaller of the two metal gates behind the wall.  I accept his evidence that the ride-on section of the mower was taken separately from the lorry and brought through the wall and gate in the same manner and then attached to the mower before work commenced.  
I accept the evidence of Mr. Patrick D. Henihan, - with which Mr. James Bradbury did not disagree when it was put to him in cross examination, - that from the start of January, 1995 to the middle of 1996 mowers or other ground maintenance equipment could not be brought into the lower site at Orwell Bank along the lane because of the conversion work being carried out at the Coach House and Stables Building.  This evidence is corroborated by the photographs produced and proved in evidence and by the evidence of Mrs. Cathy O’Sullivan that in, she believed, 1996, she had seen workmen coming down the steps from the upper site at Orwell Bank to the lower site and cutting the grass which was then overgrown using one or more hand scythes.
Mr Patrick D. Henihan told the court that he purchased the Coach House and Stables Building on the 11th March, 1994 through a company called, “Glindeland”.  He said that he had applied for planning permission on the 27th June, 1994.  Mr. James Bradbury told the court that he had probably seen the Planning Notice but had paid no real attention to it.  This property, he said, had been offered to him by Mr. Tom Day of Lisneys, Auctioneers, but he was not interested in it.  Mr. Patrick D. Henihan told the court that a Grant of Planning Permission issues in September, 1994.  He said that he had telephoned Mr. James Bradbury in June, 1994 and told him about the intended conversion of the Coach House and Stables Building into a dwelling house and that Mr. James Bradbury had, “wished him well”.  He said that the work of converting the building to a dwelling house commenced on the 1st January, 1995.  Before work commenced it had been necessary to widen the gate at the Orwell Road end of the lane by about 2 ft.  Mr. Patrick D. Henihan told the court that during the construction work this gate had to be locked every evening and also at weekends because his insurers insisted upon this.  Mr. Patrick D. Henihan accepted that Mr. James Bradbury was very obliging and helpful and had given him permission to erect scaffolding on the land of Orwell Bank without which scaffolding it would have been extremely difficult to complete the work.  
Mr. Patrick D. Henihan told the court that the work had arrived at the point of practical completion by about June, 1995 and had had left the site by the end of 1995 or very early in January, 1996.  He gave evidence that the first landscaping work was carried out in 1996 by Martin Tully and Company.  Mr. Patrick D. Henihan fully accepted that these works were not in accordance with the plans on foot of which planning permission for the development had been granted.  He told the court that the idea was to leave a 1.2 meter or 50 inch pedestrian right or way but to reduce its visual impact on the new house, No. 77B Orwell Road, by using a serpentine path through shrubs and bushes and to screen off, but not in any way to obstruct, the opening in the Orwell Bank boundary wall.  
Mrs. Rachel Henihan, daughter-in-law of Mr. Patrick D. Henihan, said that she and her husband had moved into no. 77B Orwell Road in June, 1995.  In cross- examination Mr. James Bradbury agreed that this was so.  Mr. James Bradbury and Mr. Patrick D. Henihan in their evidence accepted that in late April or early May of 1995 a main drain under the lower site at Orwell Bank collapsed.  Mr. James Bradbury told the court that Dublin Corporation Drainage Section were extremely concerned not least, by the very close proximity of the River Dodder and demanded that remedial work be carried out without delay.  He told the court that he had telephoned Mr. Patrick D. Henihan to notify him, solely as a matter of courtesy, that it would be necessary to demolish the brick boundary wall of Orwell Bank just beyond no. 77B Orwell Road and to bring in a J.C.B. Digger and other equipment to work on the broken drain.  Mr. Patrick D. Henihan accepted that he had been so contacted by Mr. James Bradbury but appeared to suggest, which I do not accept, that Mr. James Bradbury was in fact seeking his permission to carry out this work.  Suffice it to say that the reaction of Mr. Patrick D. Henihan to this telephone call was not quite what Mr. James Bradbury had expected.  By a letter dated 10th May, 1995, - produced by Mr. Michael Nugent, Solicitor and admitted into evidence, Beauchamps, then Solicitors for Orwell Park Limited wrote to Spring Murray and Company, Solicitors for Mr. Patrick D. Henihan as follows:-
	“Re:  Our clients: Orwell Park Limited and James Bradbury. 
	Your client: Don Henihan.           
		Premises at: Orwell Road.
		Dear Sirs,
We act for Orwell Park Limited and Mr. James Bradbury, the owners of the development known as Orwell Bank, Orwell Park, Dublin.  The various houses in the development have been sold to individual purchasers but the common areas are still retained by Orwell Park Limited.  
Dublin Corporation wrote to our clients saying that there was a blocked drain or pipe in the lands at Orwell Bank.  In addition to owning the lands at Orwell Bank our clients have a right-of-way over the lands outlined in red on the map annexed to the Capital Declaration of Jerome T. O’Sullivan, dated 11th December, 1978.  Our clients and their  have used the right-of-way as outlined in red with and without vehicles since 1937.  Our clients require to bring a vehicle over the right-of-way into their property at Orwell Bank for the purpose of unblocking a blocked drain.  You clients have indicated to our clients that they propose preventing our clients from exercising their right-of-way with the said vehicle in order to unblock the drain,  our clients propose bringing workmen and machinery along the right-of-way into their premises on Friday with a view to unblocking the drain which as we say, has been brought to our clients’ attention by Dublin Corporation. 
Your clients have “No right to interfere with our clients’ use of the right- of way and any attempt by your clients to prevent our clients exercising their right-of-way with and without vehicles over the lane - way as coloured red on the map and next to the Declaration of Jerome T. O’Sullivan will be met with proceedings which would include injunction proceedings given the nature of the blockage.  Further, our clients will hold your clients liable for any loss or damage occasioned in the event of them being prevented from exercising their right-of-way in order to unblock the blocked drain.  
We look forward t hearing from you by return, confirming on behalf of your clients that they will not interfere with our clients’ exercise right of their of way. 
Yours faithfully”. 
	If a reply was sent to this letter it was not produced in evidence.  Mr. James Bradbury told the court, and I accept his evidence, that the day following his telephone call to Mr. Patrick D. Henihan, the Orwell Road gate into the lane was locked.  He said that he had to cut this lock, - I presume it was a form of padlock, - in order to gain entry to the lane.  Mr. Patrick D. Henihan told the court that the brick boundary wall of Orwell Bank which Mr. James Bradbury had caused to be erected in 1991 to replace the section of the original rubble granite wall, was taken down by hand by Mr. James Bradbury’s employees and a J.C.B. Digger and other equipment was driven into the lower site at Orwell Bank.  Mr. James Bradbury told the court that the task of digging up and repairing the drain and reinstating the site took in all, about twelve days.  It was accepted that the wall as it now stands was reinstated by the first named defendant in September 1995 on the footings of the wall built by Mr. James Bradbury’s employees in 1991.  
Rachel Henihan, the second named defendant told the court that the paving and surfacing of the lane in front of No. 77B Orwell Road was done in November 1995.  She said that the landscaping had been done in February and March 1996 and took Mr. Tully and his team 2 days.  This witness told the court that she and her husband had paid her father- in- law £21,000 (former currency) to include £7,500 (former currency) for the landscaping work, for 77B Orwell Road.  She said that in February or March 1996, the late Mr. Eddie Daly had called to their house, No. 77B Orwell Road and had demanded that the plants be removed and the surface of the lane restored.  She said that she told him that her husband, - the first named defendant, - dealt with these matters and that he was not at home on the occasion.  She said that Mr. Eddie Daly had called again a few weeks later.  Mr. Michael Nugent, Solicitor, told the court that in early May 1996 the late Mr. Eddie Daly had instructed him to act in the matter on behalf of the plaintiff.  After he had taken-up the Title Deeds - from Beauchamps, Solicitors, he wrote to the first named defendant on the 11th June 1996, as follows:- 
“Re: Orwell Park Management Limited. 
Dear Mr. Henihan, 
We act on behalf of Orwell Park Management Limited who instruct us that you have recently blocked off part of a right of way which runs between the Orwell Bank estates on Orwell Road.  We specifically instructed that you have planted trees and shrubs over the right of way.  
By this letter we call upon you to immediately remove the trees, plants and shrubs and to reinstate the right of way to its previous state.  Should you fail to do so within 10 days we are instructed to issue proceedings against you in court to force you to remove your trees and shrubs and to reinstate the right of way and we are further instructed that in the event of court proceedings we are to seek from the court an Order for the costs of those proceedings.  
Yours faithfully”. 
	The second named defendant told the court that when she and her husband received this letter they were very shocked and upset.  Mr. Nugent told the court that unfortunately Mr. Eddie Daly died in July or August 1996.  A new Board of Directors of the plaintiff Management Company was not elected until January, 1997.  At this time, he said, Mr. James Bradbury was very ill and in hospital and he was unable to communicate with him until March 1997.  On the 7th May 1997 he wrote to Julian Deale & Co., Solicitors for the defendants, in the following terms:- 
“Re: Orwell Park Management Limited  v Mr. and Mrs. Martin Henihan. 
	Your ref: KD/R/N
Dear Sirs, 
We refer to previous correspondence about this matter which we note you have entirely ignored.  
On Thursday 15th May 1997 at 12 noon our client’s gardener will be arriving via the right of way with a large van seeking to access the rere field of our client’s property.  We require that by 12 noon on Thursday 15th May 1997 all trees, shrubs, plants and other impediments on the right- of- way are removed and the wall which your clients have erected in front of the gate be dismantled and removed.  
Should our client’s gardener be faced with any impediment whatsoever while trying to exercise the right  of way which is the subject of previous correspondence injunctive proceedings shall issue against your clients and those proceedings shall not be stayed or withdrawn or delayed in any manner whatsoever unless and until a permanent injunction is granted against your clients with an Order for the costs of the proceedings and we shall also be seeking the costs and expenses of the gardener in attending to attempt to gain access. 
Yours faithfully”. 
	To this letter he received a reply dated 14th May, 1997 from Julian Deale and Company, Solicitors for the defendants in the following terms:- 
	“Re: 	Your client Orwell Park Management Limited. 
		Our client Mr. and Mrs. Martin Henihan.
Dear Sirs, 
We refer to your letter of the 7th May 1997 and our subsequent telephone conversation of the 13th May 1997. 
Our clients do not admit that your client enjoys a vehicle right- of- way along the lane past our client’s residence.  We note that nothing less than total capitulation is acceptable to you. You must do whatever you deem necessary by was of proceedings to vindicate your client’s claimed rights.  However, we would tend that injunctive proceedings are inappropriate in the circumstances of this case.  
Yours faithfully”. 
	Mr. Nugent gave evidence that on the 15th May, 1997 he had gone to the area in front of No. 77B Orwell Road.  Because of the trees, bushes and flower beds planted and made in the lane, the Contract Gardener employed by the plaintiff could not get his van through to the boundary wall of Orwell Bank.  The van was then parked in the lane on the western side of No. 77B Orwell Road and the ride-on lawnmower was unloaded from the van but because of the flowerbeds, trees and bushes it could not be brought through to the opening in the boundary wall and the gate into Orwell Bank.  On the same day Mr. Nugent said that he wrote to Julian Deale & Company, Solicitors as follows:- 
	“Re: Orwell Park Management Limited v Mr. and Mrs Martin Henihan.    
	Your Ref: KD/RN
Dear Sirs, 
Today at 12 noon our client’s gardener arrived at the right of way and found the right of way continues to be blocked by your clients as previously described.  Your clients had left a child minder in the house with instructions to say nothing and deny all knowledge of the matter.  Our client’s gardener was unable to gain access to the site and had to leave without tending to the rere of our client’s property.  We shall send you the bill for his services in due course and if it is not paid by your clients they shall be sued for the amount of that bill. 
Please note that on Friday 23rd May next at 12 noon our client’s gardener will again attempt to use the right-of-way with his van and should your client’s fail to have unblocked the right of way we shall again seek to recover from your client’s the costs of the gardener and as already advised, injunctive proceedings shall issue against your clients to force them to unblock the right of way. 
Yours faithfully”. 
	To this letter Mr. Nugent told the court he received a reply dated 19th May, 1997 from Julian Deale & Company Solicitors in the following terms:- 
	“Re: 	Your Clients Orwell Park Management Limited. 
		Our clients Mr. and Mrs. Martin Henihan. 
Dear Sirs, 
We acknowledge receipt of your letter dated 15th May 1997 and note its contents.  
Previous correspondence sets out our position in relation to your clients claim to a vehicular right of way.  
Four men attended at our client’s residence on the 15th May 1997 and acted in such a manner as to distress out client’s babysitter, inter alia one of the four took a photograph of the laneway and our client’s house and the babysitter.  
Our client’s are not liable for your client’s gardener’s costs, and will not be discharging any bill furnished. 
As to the ultimate paragraph of your letter we reiterate our client’s do not admit that your client’s enjoy a vehicular right of way along the laneway passed our client’s residence. 
Yours faithfully.”
	Mr. Nugent told the court that he was then instructed to commence proceedings and on the 27th June, 1997 had issued and served an Equity Civil Bill on the Defendants.  Mr. Nugent said that Mr. Desmond Crofton had been appointed to be Property Management Agent of the Plaintiff on 27th January, 1996.     
	At paragraphs 3, 4, 5 and 6 of claim indorsed on the equity civil bill, the plaintiff pleads as follows:-
3.	“The Plaintiff was and is entitled to a right of way over a laneway adjoining the Defendants’ lands which is coloured yellow on the map attached hereto (hereinafter called “the laneway”), with and without vehicles by virtue of the fact that the Plaintiff and its  have enjoyed the said right of way as of right and without interruption for 40 years before this action and, as such the Plaintiff’s title to the said right of way is absolute and indefeasible pursuant to the Prescription (Ireland) Act, 1858.  
4.	Further or in the alternative, the Plaintiff was and is entitled to a right of way over the laneway by virtue of the fact that the Plaintiff and its have enjoyed such a right of way as of right and without interruption for a period of in excess of 20 years pursuant to a grant thereof which has been lost and cannot be found.  
5.	In or about the month of June, 1996 the Defendants wrongfully obstructed the said right of way by erecting or causing to be erected a concrete block wall on the Plaintiff’s lands across the access to the laneway between the points marked X and Y on the map annexed hereto thereby trespassing on the Plaintiff’s lands.  The Defendants further planted a flower bed with trees and shrubs on the laneway and dug drains on the laneway, thereby rendering the laneway impassable for vehicles and greatly restricting the right of way for pedestrians.
6.	Despite objections by the Plaintiff the Defendants have ever since continued and maintained the said obstructions and have continued to trespass on the Plaintiff’s lands and threaten, unless restrained by Order of this Honourable Court, to continue obstructing the Plaintiff’s said right of way and to continue to trespass on the Plaintiff’s lands.”   
By the said indorsement of claim, the plaintiff claims the following reliefs:-
“(a)	A Declaration that the Plaintiff is entitled to a right of way for all purposes over the said laneway;
(b)	An injunction restraining the Defendants, by themselves, their servants or agents or otherwise howsoever, from obstructing the Plaintiff’s said right of way;
(c)	An Injunction requiring the Defendants forthwith to remove the aforesaid trees and shrubs and flower beds and all other structures obstructing the Plaintiff’s said right of way.   
(d)	An injunction requiring the Defendants forthwith to remove the said concrete block wall from the Plaintiff’s lands; 
(e)	Damages not exceeding £30,000;
(f)	Such further and other relief as to this Honourable Court shall seem fit and appropriate;
(g)	Costs.”
Mr. James Bradbury accepted that the pleading at the first sentence of paragraph
5 of the said indorsement of claim and the averment at paragraph 4 of the affidavit sworn by him on 1st August, 1997, that:-
“…In or about 1995 the Defendants herein who live adjacent to the right of way in the lands coloured green on the map attached to the Civil Bill herein attempted to block off the right of way by building a brick wall across its entrance onto Orwell Bank, the lands coloured pink on the map attached hereto.  I demolished that brick wall and continued to use the right of way and I had no more difficultly with the Defendants or with any one else concerning the Right of way.”,
are both incorrect and Counsel for the plaintiff accepted that the relief prayed at  (d) of the indorsement of claim is not now and never was necessary. 
	A defence and counterclaim were delivered on 14th day of October, 1997.  At paragraphs 3, 4, 5 and 6 of the defence it is pleaded as follows:-
“3.	It is denied that the Plaintiff is entitled to a right of way with or without vehicles [the emphasis is mine] over the lands claimed in paragraph 3 of the Indorsement of Claim of the Equity Civil Bill (hereinafter called “Stable Lane”).  In particular, it is denied that the Plaintiff is entitled to a right of way with or without vehicles over the red land.  
4.	It is denied that the Plaintiff or its  have
enjoyed the alleged right of way as of right and without interruption for 40 years next before the initiation of proceedings herein as alleged in paragraph (iii) of the Indorsement of Claim of the Equity Civil Bill.  
5.	It is denied that the Plaintiff or its  have 
enjoyed the alleged right of way as of right and without interruption for 20 years as alleged in paragraph 4 of the Indorsement of Claim of the Equity Civil Bill.  
6.	If, which is denied, there has been an enjoyment of an
accommodation over the disputed lands by the Plaintiff and/or its such enjoyment has been interrupted within the meaning of s. 4 of the Prescription Act, 1832 as introduced by s. 1 of the Prescription (Ireland) Act, 1858.”
	By way of counterclaim the defendants assert that they are in undisputed exclusive possession of the lands over which the plaintiff wrongfully claims a right of way with or without vehicles (the emphasis is mine) and the plaintiff trespassed on this land on 15th May, 1997 and its threatened and intended continuing trespass has caused the defendants distress, anxiety and inconvenience.  By way of counterclaim the defendants seek the following reliefs:
“1.	A declaration against the Plaintiff that the Defendants are in possession of the red lands;
2.	A declaration that the Plaintiff is not entitled to enter the red land; 
3.	A declaration that the Plaintiff is not entitled to right of way with or without vehicles over the red land;
4.	An injunction to restrain the Plaintiff, its servants or agents from the repetition or continuance of the acts complained of or acts similar thereto and restraining the Plaintiff, its servants or agents from otherwise interfering with the Defendants occupation thereof;
5.	Alternatively, a declaration that the Plaintiff is estopped and precluded from claiming any legal right over the red lands.  
6.	Such interim or interlocutory injunction in the terms of the foregoing as this Honourable Court shall deem fit;
7.	£30,000 damages for trespass;
8.	Further and other relief;
9.	Costs. 
I find that the plaintiff and its predecessors in title have not enjoyed the alleged right of way with vehicles over the lane, (the existence of a pedestrian right of way having been admitted by the defendants) without interruption for a full period of 40 years, or indeed for a full period of 20 years next before the commencement of these proceedings on 27th June, 1997.   The plaintiff has therefore failed to establish a claim under s. 2 of the Prescription Act, 1832 as applied to this Jurisdiction by the Prescription (Ireland) Act, 1858.   I am satisfied on the evidence and I so find, that from 1972 to 21st July 1989, that is, from the death of Mr. David P. O’Sullivan’s mother and the retirement of the last full-time gardener at Orwell Bank to the demolition of the section of the original western boundary wall of Orwell Bank at the end of the lane by employees of Mr. James Bradbury, the lane had been used only on a very few and very infrequent occasions, by the of the plaintiff.  I find that there was no, “continuous use”, within the legal meaning of that expression, of the lane by Jerome T. O’Sullivan and David P. O’Sullivan as executors and trustees of the will of their father or by any other members of the O’Sullivan Family or by any employees, agents, invitees or licensees or theirs or by any directors, officers, agents, employees, invitees or licensees of Orwell Park Limited after the purchase of Orwell Bank by that Company on 11th December 1978, such as would put the servient owner on notice that a right of way was being asserted.  
I find that the late Jerome J. O’Sullivan, his executors and trustees and members of the O’Sullivan Family residing in Orwell Bank, by themselves, their employees, invitees and licensees, from 1937 to 1972 inclusive, openly, without force, without permission from and without objection by or interference on the part of the servient owner, continuously used the lane for the passage of horse drawn carts and lorries from the start of the lane at Orwell Road to the face of the section of the western boundary wall of Orwell Bank at the eastern end of the lane.   The route taken was over the entire surface of the lane which  was clearly defined by walls and by a bank and hedge (now the wall forming the northern boundary of the housing development called “The Willows”), from the indicated terminus a quo to the indicated terminus ad quem.  However, I find that this user was not at all times and for all purposes.
I find that the use was on business days and during business hours only, that is, from Monday to Friday excluding Public Holidays and between the hours of 9 am and 5 pm only.  I find that the vehicles involved, namely, horse drawn carts and lorries were used solely for the transport of materials used in the maintenance, repair and improvement of the fruit and vegetable garden, which then occupied the lower site at the rere of Orwell Bank, and which was for the sole use and enjoyment of the occupiers of Orwell Bank.  I find that the equipment used in this work was also carried by hand or in such horse-drawn carts or lorries over and long the lane during these days and during these hours.  I find that only such equipment and materials as could be passed through the door opening, 1.2 metres or 50 inches wide and 1.98 metres or 6.5 feet high in the western boundary wall of Orwell Bank was so carried by hand or transported in such horse-drawn carts or lorries.  
I find that such material and equipment was off-loaded from these horse drawn carts or lorries and was deposited on the surface of the lane as close as possible to the door leading into Orwell Bank and was from there brought through that door into the lower site at the rere of Orwell Bank in such a way and within such a time as not to unreasonably obstruct the proper use of the lane by other persons lawfully entitled and, in particular, the occupiers of No. 63 Orwell Park Road and the Coach House and Stables Building.   
To establish an easement of way by prescription, the party claiming that right whether by virtue of s. 2 of the Prescription Act, 1832 or under the Doctrine of Lost Modern Grant, must provide evidence of continuous use of the way for the prescription period.  Continuous use is not, however, to be equated with incessant use: what the law requires is that the use be such as would clearly indicate to a servient owner that a continuous right to do what would otherwise amount to a trespass was being asserted.  A right of way is a non-continuous easement: a right to pass and repass over the property of another whenever the person claiming that right has occasion so to do.  In my judgment, where the evidence establishes that there has been an open, uninterrupted and continuous use of land as a right of way, in the instant case for 35 years,  the court should presume that the owner of the land was aware of this use and acquiesced in it.  The important question is whether the use, which I have already found was made by the late Jerome J. O’Sullivan, his executors and trustees and members of the O’Sullivan Family occupying Orwell Bank, by themselves, their employees, agents, invitees and licensees from 1937 to 1972, would suggest to a reasonably careful and prudent owner of the lane that a casual use only of the lane was being made dependant for its continuance upon the tolerance and good nature of such servient owner, or would put such servient owner on notice that an actual right to do these things was being asserted. [See Gale: Easements: 16th ed, 1997, pages 229 and 230.]
Where a door exists in the boundary wall of a property and that door opens directly and solely onto the private property of another and the property of the other is a lane or passage leading to a public road and where the occupiers of the property beyond the boundary wall have a key to the gate leading from the public roadway into that lane and where such occupiers a few times each year whenever the need arises arrange for and authorise the delivery of materials and equipment in horse-drawn carts and lorries along that lane and this continues without permission sought or explanation offered for 35 years, in my judgment, even the most benign of land owners tolerant to the point of indifference could not but consider that a right to use the lane in this manner was being asserted.  On the facts of this particular case I will, therefore, presume that the above described uninterrupted vehicular use of this lane by these predecessors in title of the plaintiff, was made as of right and pursuant to a lost modern grant, even though this enjoyment did not continue for 20 years prior to this action being taken
In a case of Healey v. Hawkins, [1968] 1 W. L. R. p. 1967, Mr. Justice Goff in the Chancery Division found as a fact that the defendant had used the access way or drive to the plaintiff’s bungalow with vehicles from 1938 to 1966 except for the period of the Second World War when petrol was rationed and a period of three months in 1961 when there was a change of ownership of the dominant tenement.  There was no evidence of any user of the drive from August, 1966 to the commencement of proceedings on 3rd March, 1967.  At p. 1976 of the report, paragraphs A – C, Goff J., held as follows:-
“…in my judgment, on the user down to the time when the Quigleys left, [August 1966], I ought to presume a lost grant because in my view on this evidence the court would have done so before the Prescription Act, 1832, but I desire to guard myself against accepting as a principle of general unqualified application the suggestion in Gale on Easements, 13th, ed. (1959), p. 126 that it would seem right to expect the doctrine of lost modern grant to be applied for instance, where enjoyment for a period of twenty years has not continued right down to the time of action brought.  This can be further considered if necessary when occasion arises.  I would presume a lost grant on the facts of this particular case.”
	In the case of Mills v. Silver [1991] L.R., Ch and Fl Div., 271 a decision of the Court Appeal in the United Kingdom, (Dillon L. J., Parker L.J., and Stocker L.J.), at p. 278 of the report Dillon L.J., pointed out that the prescription period under the Act of 1832 had to be twenty years next before action brought.  The facts of that particular case were that from 1922 to 23rd September, 1981 a particular track which led from a public highway to an upland farm had been used by a man called Joe Phillips.  From 1950 to his death on 23rd September, 1981 only occasional vehicles whenever the occasion arose passed along the track to visit the farm and then only, in an area where the court accepted that rainfall was high and winters were long and often severe, when the track was dry enough and the surface was passable.  The court, per Dillon L.J., at p. 268, considered that this user between 1950 and 1981 was not great but was still sufficient to carry to the mind of any reasonable occupier of the servient tenement that a continuous right to enjoyment was being asserted.  From the death of Mr. Phillips on 23rd September, 1981 to the purchase by the defendants in 1985 or 1986 there had been little or no use of the particular track.  Proceedings in that case were commenced on 8th December, 1987.  A right of way on foot, on pony, on horse and cart and on tractor was asserted.  At p. 278 of the report Dillon L.J., stated as follows:-
“If that use is sufficient to warrant the implication of a lost grant of a right of way with vehicles discontinuance of the use after the death of Joe Phillips would not defeat the grant or amount to an abandonment of the right.  Conversely if the use with the vehicles during the life time of Joe Phillips was insufficient to warrant the presumption of a lost grant, it is equally insufficient to support a claim to a right of way under the Act of 1832 even if there had been no discontinuance of use after Joe Phillips’ death until the first and second named defendants came along.
The plaintiffs do not object to the defendants using the disputed track on foot, - only to the use of vehicles.  The first and second named defendants rashly bought Coed Major in reliance on a statutory declaration of Miss. Olive Davies, a niece of Joe Phillips as to access….  The first and second named defendants failed to take the elementary precaution of finding out from the plaintiffs before their purchase whether the plaintiffs accepted that there was right of way with vehicles over the disputed track”.
	The Court of Appeal, reversing the High Court, held that the use shown to have been made of the track between 1922 and 1981 was sufficient to warrant the implication of a lost modern grant (per Dillion L.J. 286 paragraph E).  The Appeal Committee of the House of Lords of the United Kingdom, (Lord Bridge, Lord Ackner and Lord Goff), dismissed a petition by plaintiffs for leave to appeal against this decision.  
The prescription periods stipulated by ss. 1 and 2 of the Prescription Act, 1832 are required by s. 4 of that Act, to be “taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, …” No decision was opened to the court in which it had been held that a similar requirement was necessary in the case of prescription under the doctrine of lost grant.  I would also refer to the report of the Law Reform Commission, December, 2002 “The Acquisition of Easements and Profits á Prendre by Prescription” p. 9 paragraph 1.13; and to the case of Tehidy Minerals v. Norman [1971] 2 Q.B. 528 C. of A., U.K.   
I find that the use of lane, by the plaintiff, with light lorries, vans and trailers
drawn by mechanically propelled motor vehicles for the purpose of transporting machinery, equipment and materials capable of passing through an opening 1. 2 metres wide and 1.98 metres or 6.5 feet high, and reasonably necessary for the proper maintenance, repair and improvement of the lower site at Orwell Bank as a garden or park for the exclusive use and enjoyment of the occupiers of the houses built on the upper site at Orwell Bank, their employees, guests and tenants, does not amount to an alternation of the substance of the easement of way as acquired by the plaintiff pursuant to the doctrine of lost modern grant, nor does it impose any unjustified additional burden on the servient lands.  I find, that as ancillary to this use, and absolutely essential to its proper enjoyment, the plaintiff is entitled to halt such light lorries, vans and trailers on the lane, so often and for so long as is reasonably necessary to unload and load such machinery, equipment and materials and, in addition, to deposit that machinery, equipment and material on the surface of the lane for the sole purpose of unloading, loading and transferring the same into and out of Orwell Bank with all practicable dispatch and without unreasonably interfering with the use of the lane by the servient owner and any others lawfully entitled to use the lane.
	The defendants plead in their defence, that any alleged easement of way which the plaintiff and its  predecessors in title may have enjoyed was interrupted within the meaning of s. 4 of the Prescription Act, 1832 as applied in this Jurisdiction by s. 1 of the Prescription (Ireland) Act, 1858.  They further plead that any alleged use of the lane by the plaintiff and its predecessors in title was by permission of the defendants and additionally or alternatively, the use by the plaintiff of the lane was a secret enjoyment without the actual or constructive knowledge of the servient owner.  
	The defendants allege that in March 1994, Mrs. Margaret Henihan, wife of Mr. Patrick D. Henihan and mother of the first named defendant, caused gates to be erected across the Orwell Road entrance to the claimed right of way and did not provide a key to the plaintiff or to any predecessor in title of the plaintiff. 
	Mr. Patrick D. Henihan, told the Court that he had purchased the Coach House and Stables Building through a limited liability company called “Glindeland” on 11th March, 1994 and had commenced the work of re-development on 1st January, 1995.  He told the Court that he had widened the existing entrance to the lane at Orwell Road and that his insurers had insisted that this gate be kept locked in the evenings and at weekends during the carrying out of the re-development work.  
	I find on the evidence, in particular the evidence of Mrs. Regina Brennan and Mrs. Cathy O’Sullivan, that during 1994, the employees or agents or Orwell Park Limited, the  predecessors in title of the plaintiff, instructed by Mr. James Bradbury, as often as the proper maintenance of the lawns on the lower site at Orwell Bank required, used the lane to transport the necessary machinery and equipment to the opening in the western boundary wall of Orwell Bank, on light lorries, in vans, or in trailers drawn by mechanically propelled vehicles, unloaded and reloaded the same on the lane as close as practicably to that opening and brought this machinery and equipment through that opening and through the smaller metal gate behind this wall and into and out of the lower site at Orwell Bank.  I am totally satisfied that the user of the lane by the predecessor in title of the plaintiff was not in any manner obstructed nor was it intended to be obstructed by Mr. Patrick D. Henihan or by Mrs. Margaret Henihan.  Apart from anything else, Mr. Patrick D. Henihan was very dependant upon securing the co-operation and goodwill of Mr. James Bradbury if he was to be able to carry out the re-development of the Coach House and Stables Building either economically or at all, as he required the permission of Mr. James Bradbury to erect vital scaffolding on the lands of Orwell Bank.   I, therefore, have no hesitation in rejecting this plea as utterly devoid of merit.  
	I have already held that the servient owner must be deemed to have been fully aware of the long term vehicular use of the lane by members of the O’Sullivan Family from 1937 to 1972.  I am satisfied that the evidence establishes and I find, that Orwell Park Limited, or Mr. James Bradbury did not in May 1995 or at any time, seek the permission of Mr. Patrick D. Henihan to pass over the lane for the purpose of obtaining, “temporary and personal” access to Orwell Bank.  I totally accept the evidence of Mr. James Bradbury that as a matter of courtesy he had informed Mr. Patrick D. Henihan, by telephone, of what had occurred regarding the drain and of the temporary measures which would be required to enable this very serious matter to be remedied.  This telephone call also signalled to Mr. Patrick D. Henihan that Mr. James Bradbury was not attempting to develop the lower site at Orwell Bank contrary to his submitted Plans pursuant to which the Grant of Planning Permission had issued.  The pleading at paragraph 8 of the claim indorsed on the defendants’ equity civil bill cannot possibly stand in the face of the letter dated 10th May, 1995 from Mr. Michael Nugent, Solicitor for Orwell Park Limited and James Bradbury to Spring Murray and Company, Solicitors for Mr. Patrick D. Henihan, to which I have previously referred and also cited in the course of this judgment. 
	Mrs. Rachel Henihan, the second named defendant, told the Court that the landscaping work on the lane in front of No. 77B Orwell Road, was done in February and March 1996.  She accepted that in February or March 1996 the late Mr. Eddie Daly came on two occasions to No. 77B Orwell Road and had demanded that the plants be removed and the surface of the lane restored.  Mr. Michael Nugent established in his evidence that Mr. Eddie Daly had become a Director of the plaintiff on 20th March, 1996.  These visits from Mr. Eddie Daly were followed by a, “desist and reinstate”, letter from Mr. Michael Nugent as Solicitor for the plaintiff on 15th June, 1996, followed by further letters on 7th May, 1997 and 15th May, 1997.  I have already referred to these letters and to the events of 15th May, 1997.   Mr. Nugent told the court and I fully accept his evidence, that the delay from June, 1996 to May, 1997 was due to the untimely death of Mr. Eddie Daly in July or August, 1996, the serious illness suffered by Mr. James Bradbury which confined him to hospital and rendered him inaccessible to Mr. Nugent and the need to elect a new Board of Directors for the plaintiff.
	I am quite satisfied on this evidence and I find that there was no interruption of the plaintiff’s use and enjoyment of the right of way within the meaning of s. 4 of the Prescription Act, 1832, as is pleaded at paragraph 6 of the defence.    Section 4 of the Act of 1832, provides expressly that:-
“… no act or matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made.”
	There can be no doubt whatever that if the provisions of s. 4 of the Prescription Act, 1832, applied in this case, there was manifestly no acquiescence in or submission to the interruption by or on behalf of the plaintiff or its predecessors in title for one year.  The actions of the late Mr. Eddie Daly as a Director of the plaintiff and the letter dated 11th June, 1996 from Mr. Michael Nugent as solicitor for the plaintiff, accepted by the second named defendant as having been received by the defendants, were more than sufficient to negative any suggestion of acquiescence or submission.  
	Contrary to what is pleaded at sub-paragraph (c) of the ‘Particulars of Interruption’ indorsed on the equity civil bill, I find that the right of way enjoyed by the plaintiff and its predecessors in title was not interrupted for more than one year by the building of a wall blocking that right of way.  In that sub-paragraph it is pleaded by the defendants that prior to the 11th March, 1994 a brick wall was built separating the lands of Orwell Bank from the lane.  It is pleaded by the defendants that this wall was later demolished and at a date unknown, but prior to 1983, was replaced by a concrete wall which Orwell Park Limited, the predecessor in title of the plaintiff, caused to be built.  The defendants plead that in May 1995 this wall was demolished in part by Mr. Patrick D. Henihan at the request of Mr. James Bradbury, “to facilitate entry to the plaintiff’s lands for a temporary purpose”.  The defendants plead that this wall was rebuilt by the first named defendant in August 1995 because of the failure of Orwell Park Limited to do so.
	I have already found that the original western boundary wall of Orwell Bank located at the eastern end of the lane, was rubble built from granite between August 1863 and March 1879 and that the door in that wall at the eastern end of the lane was probably opened in 1883.  I have found that the section of this wall containing the door at the eastern end of the lane between the corner of the former Coach House and Stables Building and the northern boundary of, “Rialto Cottage”, subsequently, “The Willows”, was demolished by employees of Mr. James Bradbury on the 21st July, 1989.  I have already found that this section of the western boundary wall of Orwell Bank was rebuilt on the original foundations by employees of Mr. James Bradbury in late Autumn or in November 1991, leaving an opening 1.2 meters wide leading into Orwell Bank, not in the position of the former door but adjoining the boundary of the “The Willows”.  I have found that this wall was in turn demolished by employees of Mr. James Bradbury in May 1995 in order to obtain access for the machinery necessary to uncover, repair and recover a broken main drain in the lower site at the rere of Orwell Bank.  I have found that this wall was reinstated by the first named defendant in September 1995 on the footings of the wall built by the employees of Mr. James Bradbury in 1991.  This September 1995 wall is still in place and, though built by the first named defendant, remains the western boundary wall of Orwell Bank and is entirely the property of the plaintiff.
	I find that none of these walls, at any time or for any period, blocked any part of the right or way enjoyed by the plaintiff and its predecessors in title.  In my judgment the walls were always part of the dominant tenement and their western face, and in particular the door in that face, marked the terminus ad quem of the right of way.  
	The defendants plead at paragraph (i) of the ‘Particulars of Abandonment’ indorsed on the defence, that the plaintiff and additionally or alternatively its predecessors in title, did not use the lane as a right of way for a period of at least 19 years prior to 1997.  In my judgment, this is not correct.  I have already found that from 11th December, 1978 to a date in 1982, only casual and intermittent use was made of the right of way by Orwell Park Limited.  I have found that from 1982 to the 21st July, 1989 no use at all had been made of the right of way by the predecessor in title of the plaintiff.  I found that from the  21stJuly, 1989 to the 1st January, 1995 the right of way had been extensively used during the carrying out of the development at Orwell Bank and thereafter for maintaining the lawns laid out on the lower site at the rere of Orwell Bank.  From the 1st January, 1995 to May 1995 the right of way was not used by the immediate predecessor in title of the plaintiff solely to permit the work of redeveloping the former Coach House and Stables Building to be carried out.  In May 1995, the right of way was used extensively by Mr. James Bradbury and his employees for about 12 days while the work of repairing the broken main drain in the lower site in the rere of Orwell Bank was proceeding.  On the balance of probabilities I find that the lane was not used again by Mr. James Bradbury or Orwell Park Limited up to February 1996 probably because the lawns on the lower site had been extensively disturbed by the work, in which month the defendants obstructed the right of way by laying out flower beds and planting trees and shrubs in the surface of the lane outside no. 77B Orwell Road.  Since then, the enjoyment of the right of way by the plaintiff is deemed in law to have continued and to be continuing despite this interruption because the interruption has been protested and challenged by and on behalf of the plaintiff.  
	Contrary to what is pleaded at paragraph (iv) of these ‘Particulars of Abandonment’, in my judgment the plaintiff did not acquiesce in the works done and expenditure of money by the defendants in landscaping, cultivating, draining and planting trees and shrubs on the lane.  I find that the plaintiff, as I have indicated earlier in this judgment, immediately after this work had been carried out and not having been advised in advance of the intention of the defendants to carry it out, called on the defendants to desist and to immediately remove the trees, plants and shrubs and to reinstate the right of way to its previous state.  Mr. Patrick D. Henihan accepted that neither Mr. James Bradbury nor Orwell Park Limited were consulted in relation to the implementation of this landscaping scheme which was not in accordance with the Grant of Planning Permission for the redevelopment of the former Coach House and Stables Building.  I am quite satisfied that the plaintiff and its predecessor in title, Orwell Park Limited did not stand by and knowingly delay  enforcing their rights until the defendants had acted to their detriment by expending, if in fact they did expend which is not altogether clear, the sum of £7,500 (former currency) in having this landscape work carried out.
	In my judgment, there is simply no evidence whatsoever that the plaintiff or its predecessors in title ever demonstrated a fixed intention never again to assert the right to use the lane themselves or to attempt to transmit that right to anyone else, (see: Tehidy Minerals v. Norman [1971] 2 Q. B. 528 at 533, per., Buckley L. J., (Salmon and Sachs L. J. J., concurring).  I have already found that the lane was not used at all by the predecessors in title of the plaintiff for a significant period after 1972, that is from 1972 to 1989.  However, mere nonuser of a non-continuous easement, such as a right of way, while it can be evidence of an intention to abandon or release the easement, is never in itself sufficient evidence for that purpose.  (See: Carroll v. Sheridan [1984] I. L. R. M. 451 per O’Hanlon J.).  Because a private right of way is a very valuable property right, the courts will not lightly find that such a right has been released or abandoned.  In the case of Benn v. Hardinge [13th October, 1992] The Times, the Court of Appeal of the United Kingdom declined to find an intention on the part of the dominant owner to abandon a right of way even though no use had been made of that right of way for one hundred and seventy five years because the dominant owner had other access to the particular land.  
	In the instant case, from 1972 to 1978 Orwell Bank was occupied by Mr. David T. O’Sullivan’s older unmarried sisters.  They no longer had the assistance of a full-time gardener after Mr. Lucey had retired in 1972.  One may reasonably infer, that there was not the same demand on the fruit and vegetable garden during this period as when Orwell Bank was occupied by their parents and, on the evidence, at least five children, (perhaps there were other children but they were not mentioned during the course of the hearing).  From the purchase of Orwell Bank in 1978 to 1989, Orwell Park Limited had made a series of planning applications obviously with a view to maximising the development potential of the property.  There can be no doubt but that the continued existence of the right of way was of enormous significance in this regard and the evidence established that Mr. James Bradbury and his Architect, Mr William Maguire were at all times very conscious of this.  I am, therefore, fully satisfied that in this case there is an explanation for the non user of the lane by the predecessors in title of the plaintiff from 1978 to 1989 which is both credible and entirely inconsistent with an implied release or abandonment of the easement of way.  In my judgment, there was no release or abandonment by the plaintiff or its predecessors in title of the right of way acquired between 1937 and 1972 pursuant to the doctrine of Lost Modern Grant.  
	The court, therefore, declares that the plaintiff is entitled to a right of way over the lane way, but not for all purposes.   The court will order that the defendants, by themselves, their servants or agents or otherwise howsoever, be permanently restrained from obstructing the plaintiff’s right of way.  The court will order that the defendants do remove or cause or procure to be removed, the trees, shrubs, flower beds and all other structures in any way obstructing the plaintiff’s said right of way and restore the surface of the lane within such time as may be agreed between the parties or in default of agreement within such time as shall be stipulated by the court having heard the parties in this regard.   As no evidence was put before the court that the plaintiff has sustained any appreciable loss the court will make no order as to damages.   The defence and counterclaim of the defendants will be dismissed.  
	The court declares, that in addition to the general right of way, on foot, at all times and for all purposes, the plaintiff and its successors are further entitled to use the entire of the laneway, (more particularly delineated on the map to be annexed to the order of the court), with light lorries, vans and trailers drawn by mechanically propelled vehicles, from 09:00 hours to 17:00 hours, Monday to Friday inclusive but excluding Public Holidays, from the public roadway at Orwell Road to the face of the entire section of the western boundary wall of Orwell Bank forming the eastern end of the laneway, solely for the purpose of transporting materials, machinery and equipment, such as could pass through a door 1.2 metres or 50 inches wide and 1.98 meters or 6.5 feet high and, reasonably necessary for the proper maintenance, upkeep, repair and improvement of the lower site at the rere of Orwell Bank as a garden, park or other open amenity area for the exclusive use and enjoyment of the occupiers for the time being of the upper site at Orwell Bank, their employees, invitees, licensees and tenants, and to halt such light lorries, vans and trailers drawn by mechanically propelled vehicles, on any part of the laneway, so often and for so long as is reasonably necessary to unload and load the same, and to deposit any such material, machinery and equipment on the surface of the laneway, as close as practicable to the entrance from the laneway into Orwell Bank, for the sole purpose of unloading, loading and transferring the same from, onto and into such light lorries, vans and trailers drawn by mechanically propelled vehicles and, into and out of the lower site at the rere of Orwell Bank, with all reasonable dispatch and without unreasonably interfering with the use of the laneway by the servient owner and any other persons lawfully entitled to use the laneway.  
	The Court will hear the parties as to the costs at first instance and of this appeal. 
Other cases and Authorities referred in argument 
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McCarthy J.
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Cullen v. Cullen [1962] I.R. 268.	
McMahon v. Kerry County Council [1981] I.L.R.M. 419.
McCarron v. McCarron, Unreported, February, 13th , 1997, Supreme Court. 
Smyth v. Halpin, Unreported, December 20th, 1996 High Court. 
Muldoon v. Fallon, (1873) I.R. 6 Eq.  458.
Cotching v. Bassett (1862) 32 Beav. 101.
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Ives (E.R.) Investment v. High [1967] 2 Q.B. 379.
Haughtan v. Rutledge, (1998) I.R. 295
Haugh v. Hesken, Unreported, High Court, October 2nd, 1967, Kenny J.