High Court

Hickson, Hickson v Boylan, Robinson, Coyne, Knowles, Hynan and Duggan 

1982 No 9775 P 

25 February 1993 

CARROLL J: 

This is a title action in which the Plaintiffs, Mr and Mrs Hickson, claim to be entitled to approximately 155 acres of bog in the townland of Haggard, County Kildare, adjoining the farm known as Haggard Farm now comprising approximately 272 acres in the townland of Haggard, County Kildare, being the lands now comprised in Folio 1414, County Kildare. 

The Defendants are the trustees of a trust deed dated the 10 March, 1906, which vests bogland situated in the townlands of Haggard, Knockcor, Freagh, Ardkill and Carbury in the Barony of Carbury, County Kildare, on trust to distribute it during a period of 21 years among named tenants of the Herberton Estate, approximately 60 in number, who bought out under the 1903 Land Act and thereafter to hold it at the direction of the purchasers who had not been allotted bog. 

The action is framed in trespass with a counter-claim for a declaration that the trustees are entitled to the disputed area of bog. The Plaintiffs, as a defence to the counter-claim, plead estoppel. The action was precipitated by a test trench being dug across the bog on behalf of the trustees who were investigating its potential. The action took some time to come on as new trustees had to be appointed by the Court and the Defendants were appointed trustees in 1988 by Order of the High Court. 

The history of the disputed bogland insofar as it can be derived from the written documents is as follows: Originally all the lands and bogland were part of the Herberton Estate. After the Land Act, 1903, Viscount Herberton sold the tenanted land to various tenants. The tenant of Haggard Farm at the time was Sir William Pilkington. He was registered as first owner on the 18 November, 1904. The Folio then comprised considerably more acreage which has been sold off over the years. Edward Bourne became registered owner on the 4 April, 1916. He transferred the lands to Mark Davis who became registered owner on the 4 May, 1950. A copy of this transfer has not been produced. Mark Davis transferred the lands comprised in Folio 1414, County Kildare, to Donna Carracciolo by deed dated the 25 July, 1952. He also transferred the unregistered bog at Haggard comprising 166 acres and 37 perches as delineated on the map annexed in fee simple. This map comprised not only the bog in the townland of Haggard but also approximately eleven acres of cut away bog which forms part of the registered lands in the Folio. Mark Davis did not give any statutory declaration as to possession or use of the bog. However, in a bond also dated the 25 July, 1952, to the value of £300, it was recited that he was unable to produce any documentary evidence of his title to Haggard Bog. The bond in favour of Donna Carracciolo was valid until the 1 September, 1964, that is, just over 12 years, and it indemnified her against any claim against the bogland. 

Edward Bourne who then lived in Malahide, later made a statutory declaration dated the 15 August, 1952, in which he said that he sold the lands comprised in Folio 1414 to Mark Davis and that he had been in sole beneficial occupation and possession of the said lands since 1916 and that these lands adjoined the bog in the townland of Haggard conveyed to the trustees of the deed of the 10 March, 1906 in trust for tenants of the estate subject to prior existing rights. Prior to the purchase of 1916 he said that a portion of the said bog between the said lands and the said bog so conveyed as aforesaid had been given by the landlord to his predecessor in title, William Pilkington, and "the said portion was marked by a lockspit". He also said he treated the said portion of bog as his own property and as part and parcel of the said land without let or hindrance and that he believed he was absolutely entitled to the said strip or portion of bog at all times. 

The statutory declaration was expressed to be made for the satisfaction of Donna Carracciolo. In my opinion the statutory declaration shows that Edward Bourne did not claim to be entitled to the entire bog at Haggard. He refers only to a strip between the registered land and the bog at Haggard delineated by a lockspit. This strip was enjoyed as part and parcel of the farm. I therefore assume that he had legal and equitable title to this strip as successor in title to William Pilkington. Since he did not convey this strip to Mark Davis and did not join in any confirmatory conveyance to Donna Carracciolo he retained the legal estate which has long since been barred by lapse of time. But he did make the statutory declaration for the satisfaction of Donna Carracciolo so I therefore infer that he acquiesced in the transfer of the beneficial interest in the strip of unregistered land to Donna Carracciolo as part and parcel of the farm. 

Donna Carracciolo agreed to sell the registered lands together with the Haggard Bog comprising 168 acres and 37 perches to Mr and Mrs Hickson in 1956. She gave no statutory declaration relating to possession or user of the bogland. In the contract for sale the root of title to the bogland is expressed to be the Bourne Declaration. 

The Plaintiffs rely on the Valuation Office lists which go back to 1862. At that time the occupier was shown as Samuel Hall with the immediate lessor shown as Viscount Herberton. The rateable valuation of 168 acres and 37 perches of the bog at Haggard was £1.5 shillings, that is, £1.25 in decimal currency. Between 1874 and 1909 various Pilkingtons were shown as tenants. Between 1895 and 1909 the entry "immediate lessor, Viscount Herberton" was changed to "in fee". Between 1933 and 1967 "in fee" is crossed out. The entries for occupiers between 1909 to date reflect the title history. 

The Plaintiffs say they have paid rates for as long as they were payable and also taxes. However, there is no authority for saying that payment of rates or taxes confers title. The valuation lists do not prove ownership. The entry "in fee" during Mr Bourne's time illustrates the unreliability. He did not claim to be entitled in fee simple. 

The Plaintiffs compared entries relating to boglands at Ardkill, Carbury, Knockcor and Freagh which were comprised in the trust deed. But nothing can be proved from this. If a pattern can be deduced from these extracts it seems to be that where Viscount Herberton or the trustees of the Herberton Estate became rated occupiers, the trustees of Carbury bogs, (Carbury being the barony as well as the townland) were substituted. Also the evidence of Paul O'Brien and Cecil Potterton, both neighbouring owners and both claiming title to adjoining bogland added nothing or proved nothing. They did not even bring their title deeds. 

I therefore have no hesitation in saying that when the Plaintiffs acquired Haggard Farm the most they acquired of the bog adjoining was the beneficial interest in the strip of bog referred to in the Bourne declaration and they have ultimately barred the bare legal estate of Mr Bourne by long possession. 

I must also say that I accept without hesitation that Mr and Mrs Hickson bona fide believed that they owned the whole area of Haggard Bog. But they were strangers to the area having returned from England in 1956 and they relied on their Solicitor's advice. But they took the title with all the infirmities that might be inferred from a title commencing with a statutory declaration dated a few years before they purchased and which only referred to a "strip of bog". 

The Plaintiffs rely in the alternative on title based on their own lone possession. The acts of ownership which Mr Hickson relied on were walking on the bog, shooting on the bog, both by himself and by his son. He said his son also raised pheasants. A reference to shooting butts put in by a Pilkington owner in the last century, added nothing to the argument as they pre-dated the first registration and the trust deed and were not used by the Plaintiffs. Mr Hickson said he went out with shooting parties three or four times but he did not confine himself to the bog in the townland of Haggard. He said they would have gone through the whole of the high bog. But one of the Defendants' witnesses, John Kane, also said that he shot over the entire bog and he did not consider he needed permission. Mrs Hickson went on the bog with a botanist, Mrs Holland, who was the mother of a tenant of theirs, and another professor went out on the bog with the Wildlife Department having been given permission to do so by Mr Hickson. But none of these acts are, in my opinion, sufficient to oust the trustees' title and establish ownership. 

Physically on the ground there are two old gateways leading to the cutaway bog, part of the registered land. There is or was a stone based car or cartway from the farm across the fields to one of these gates and there is a branch cartway leading to the second gate. The most southerly of these gates is in the area of the lockspits and the other is very close and it does seem to lead to old turf banks as does the most northerly entrance which is not a gate. It is probable that the gates were used for the purpose of drawing turf from the bog in the area but they do not assist Mr and Mrs Hickson in establishing title by long possession. 

Pat Devane said that he cut turf for Mr Davis off the face of the bog in 1951 and 1952 and the Plaintiffs themselves never cut turf. According to the case of Convey v Regan ([1952] IR 56, cutting turf is not an act of ownership. The Plaintiffs themselves never put in a fence or demarcated the boundary in any way. It seems to me that they would have had to do something as radical as that to sustain a claim to title. There was encroachment for hand-won turf across the townland boundary from Knockcor into Haggard Bog but Mr Hickson said he would not have stopped anyone taking turf for private use. There was some evidence that the entire bog was known as Knockcor Bog but I do not consider that that could decide the matter. 

The position is that while the Plaintiffs thought they owned the bog the trustees in fact owned it. There were not unequivocal acts of possession referable only to a claim of ownership to the exclusion of the trustees which could have extinguished the trustees' title. 

Mr Lee, a retired senior engineer with Bordna Mona for 42 years, who spent 30 years in head office, gave evidence for the Defendants and I was very impressed by his evidence. He showed a depth of knowledge of bogs and bogland commensurate with his experience in Bordna Mona. He had access to an aerial photograph taken by Ordnance Survey in 1990 and he is used to interpreting aerial photography, having used them since the 1970s. He identified a number of lines on the aerial photograph as being originally lockspits and these do delineate a strip between the Haggard farmlands and the bog. There does not seem to be any dispute that a lockspit is the depth and the width of a spade cut along to define a boundary. But Mr Lee said that they were often strengthened afterwards on one side or the other especially in a bog where a lockspit would close in quickly due to the nature of bog which is 90% to 95% water. Having found them on the aerial photograph he then went on the ground and found them there. He checked them on two occasions and he found they were 18 inches wide and less than a foot deep. While he agreed they may have had a secondary purpose of draining he was quite certain they were lockspits and further that they were the only lockspits within either townland, ie Haggard and Knockcor. I accept Mr Lee's evidence. 

Mr Lee's map which represents a tracing of details from the aerial photograph corrected against a six-inch Ordnance Survey map shows the lockspits. It is possible with this map to identify the area bounded by the lockspits. 

The evidence for the trustees showed that the Ranger, Mr Brereton, collected money from people who were allocated turf banks to cut turf. One receipt from 1963 was produced. Turf was being cut from the Knockcor side of the bog having started there over 200 years ago. The purple marking on the map shows the extent of the new roadways serving the bog since the 1909 Ordnance Survey map was made. While at one stage the whole face of the bog was worked, with 50 to 60 people cutting, this dropped away until by the 195Os machine-won turf had taken over. Despite that, the bog was still worked by some people all the time even after the proceedings were commenced in 1980 though not to any great degree. 

The trustees have a good paper title to the whole of the bog in Haggard conveyed in the trust deed and the essential question is the extent to which their title has been ousted to the whole or part of the bog. On Mr Lee's evidence it is possible to identify the lockspits outlining a strip of land between Haggard Farm and Haggard Bog. I accept that this area is probably the area referred to in the Bourne declaration. I also accept that once it was enjoyed, according to Mr Bourne, as part and parcel of the farm; it was intended that Donna Carracciolo should also enjoy it and Mr Bourne's legal title has long since been barred. In consequence the legal and equitable interest in the strip is now vested in the Plaintiffs. As to the remainder of the Haggard Bog, it remains in the ownership of the trustees who have not been ousted by unequivocal acts of possession. It should be possible to identify the strip of bog on the map and in default of agreement I will delineate the boundary myself. 

The Defendants' title, therefore, to the remainder of Haggard Bog is confirmed. The Plaintiffs raise a defence of estoppel to the Defendants' counter-claim and quite apart from the legal niceties of whether the plea is used as a shield or a sword I am satisfied that the acts relied on by the Plaintiffs do not amount to estoppel. 

The Plaintiff relies on the fact that the property, including the 167 acres of bogland was advertised for sale by auction in 1955 and again in 1961 after Mr Hickson had been ill. The papers were the Irish Times and the Irish Independent in the first instance and the Leinster Leader, Irish Times and Irish Independent in the second instance. He said that nobody came to him and disputed the title. But the fact is that when the property was advertised by Donna Carracciolo in 1955 Mr Hubert Potterton on behalf of the trustees wrote to her Solicitor saying they claimed title. Her Solicitor replied denying it and a further letter was sent by the trustees persisting in the claim of title until proved otherwise. 

The Plaintiffs were never informed of this title claim when they bought the property and they relied on their Solicitor. I think it is probable that the title claim was not disclosed to them. The advertisement in 1961 for the auction which came to nothing was after he had purchased and in my opinion the failure of any trustee to make a claim of title directly to the Hicksons either before or after the sale to them does not amount to estoppel and therefore the defence to the counter-claim fails.