FERNS FARMER IS AWARDED €25,000 IN RIGHT OF WAY CASE

Gorey Guardian - - NEWS -

A FERNS farmer has won le­gal right of way through farm land and has been awarded €27,500 in dam­ages fol­low­ing two days of a civil court ac­tion.

Richard Nolan of Craan, Ferns, was awarded the dam­ages by Judge Pa­trick Meghan fol­low­ing two days of ev­i­dence and le­gal sub­mis­sions in what was a com­plex case con­cern­ing a right of way which had been run­ning through farm hold­ings of Mr Nolan and his neigh­bour and the de­fen­dant in the case, Wil­liam Ka­vanagh of Money­durt­low, Ferns.

Coun­sel for Richard Nolan, Conor O’Do­herty, told the court that his client had en­joyed a right of way through the lands in ques­tion. He claimed that the de­fen­dant, Wil­liam Ka­vanagh, had un­law­fully in­ter­fered with the right of way, erect­ing gates and a cat­tle crush, and re­fused to give Mr Nolan ac­cess. Mr Nolan also claimed he was ha­rassed by the de­fen­dant.

Out­lin­ing the back­ground to the land, Mr O’Do­herty said a por­tion of the lands was given to Mr Nolan by his mother, while the fam­ily had farmed this land for gen­er­a­tions, with the por­tion of land in ques­tion dat­ing back to the 1900s. Fur­ther land be­came part of the fam­ily hold­ing at a later date and is now owned by the plain­tiff ’s brother.

The Plain­tiff’s claim, said Mr. O’Do­herty, is that there is a clear un­am­bigu­ous right of way.

De­fence Coun­sel, Ms Caro­line Latham, said her client Mr Ka­vanagh stren­u­ously de­nied the al­le­ga­tions of ha­rass­ment and tres­pass. It is the de­fen­dant’s po­si­tion that no right of way ever ex­isted over his land, she told the court, with the plain­tiff’s land abut­ting the de­fen­dant’s land north and south. It was ac­cepted a laneway or track­way has been in ex­is­tence over the de­fen­dant’s land dat­ing back to 1840 but that does not mean there is a right of way. claimed Ms Latham.

Ms Latham said that the Ka­vanaghs and Nolans had lived be­side each other for decades and through­out that time there had never been a right of way, adding, that the plain­tiff had al­ways ac­cessed this por­tion of land through the public road at Askamore, which runs along­side the lands owned by the plain­tiff ’s brother, Paddy Nolan.

Ms Latham also told the court that they had a counter claim that the plain­tiff had en­tered Mr Ka­vanagh’s land with­out per­mis­sion with a jeep and dig­ger, caus­ing con­sid­er­able dam­age to the de­fen­dant’s land.

Richard Nolan gave ev­i­dence of the fam­ily’s his­tory on the lands, telling the court he took over the farm­ing en­ter­prise in 1992. There was a sec­tion of land of 22 acres and another sec­tion of 42 acres, while his brother had lands in Askamore. He said that with­out the laneway his lands to the north would be cut off.

When his mother lived on the lands, and he wanted to visit her, he would walk the laneway.

Mr Nolan told the court that when he sold a field for sites, the de­fen­dant placed gates and a cat­tle crush on the laneway. He also told of the de­fen­dant in­ter­fer­ing with him as he tried to sell horses to a Billy O’Con­nor. He also told of hav­ing prob­lems with the de­fen­dant re­gard­ing the trim­ming of hedges along the laneway.

Mr. Nolan also told the court that his mother did noth­ing or said any­thing to sug­gest she was aban­don­ing the right of way. He added that with­out the right of way his land is land­locked.

Ms Latham said the cat­tle crush was a ne­ces­sity for the safety of an­i­mals, adding that the gates were also erected for safety rea­sons, so as the cat­tle would not be able to di­vert to­wards the public road.

Ms Latham said that cur­rently there is a reg­is­tered right of way over Mr Ka­vanagh’s land in favour of the Kin­sella fam­ily which dates back to 1945. The de­fen­dant was will­ing to al­low the plain­tiff us­age of this sec­tion, but not the over­grown sec­tion, claim­ing that is has been im­pass­able for decades.

Wil­liam Ka­vanagh told the court the laneway be­gins on Mr Nolan’s land from the public road in the south/west­ern end, go­ing all the way through his land, up to Mr. Nolan’s land in the north. He said that a top sec­tion of the laneway has been over­grown for 40 years, adding, that it would not be pos­si­ble to use this top sec­tion of laneway with a vehicle.

He de­nied ever in­ter­fer­ing or har­rass­ing Mr Nolan. He also said that he did not ob­ject to Mr Nolan’s plan­ning ap­pli­ca­tion for sites.

In re­la­tion to the gates, Mr Ka­vanagh said they were erected for safety rea­sons to pre­vent­ing the cat­tle from bolt­ing to­wards the public road and also for the seg­re­ga­tion of the cat­tle, while the cat­tle crush has been on the lane since 2000.

Judge Meghan said he was sat­is­fied that there is a right of way in ex­is­tence but un­for­tu­nately the re­la­tion­ship be­tween the neigh­bours had de­te­ri­o­rated.

He said it would be bet­ter if the cat­tle crush and the gates were moved as they were pre­vent­ing ac­cess to the right of way with works to be car­ried out in con­sul­ta­tion with the par­ties. He also awarded dam­ages of €27,500 to the Plain­tiff with costs.

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