Insufficient evidence of use or intention to dispossess owners of land

Appellants purchased piece of land from Respondents - boundary dispute regarding adjoining lands - Appellants built a wall in 2017 near the tree line of the disputed land - Appellants say that disputed land is within their land – Plaintiff planted leylandii cypress to create a hedge between the Appellant farm and his residence - by the mid-1990s they had grown to the 15 to 18 metres – High Court case was heard over 24 days - the trial judge visited and inspected the disputed lands – adverse possession, trespass and nuisance – Respondent was found to own the disputed lands by the High Court – enjoyed an easement over the lands – permanent injunction granted restraining Appellants from trespass - order made that Appellants remove wall - High court found that no valid explanation for the clear trespass onto the back garden of the Respondent’s household and the cutting of an apple tree – on appeal the Appellants claimed inaction of the Plaintiff in relation to the lands outside the post/wire fence and Leylandii trees - Plaintiff failed to take any steps in the intervening 40 years to assert title to the property at issue – argued that the Appellants’ predecessors in title were in sole and exclusive possession of the disputed lands - claimed that the Respondent became statute barred in respect of the disputed lands by 1986 by reason of the use and occupation of a Farmer who retained lands up to the fence and occupied the land on the outer side of the fence without permission from the Respondent - Trial Judge found that Farmer’s evidence was not compelling in relation to the storage of skips / tyres – trial on the land - not satisfied that there was any extensive use of the disputed land made for that purpose - Appellants said that the Respondent failed to assert his title and seldom visited – Court of Appeal found that the onus was on the Appellants to prove dispossession or discontinuance of possession of the Respondent of the disputed land - required to show that their predecessors were in possession of the disputed land for the requisite twelve years and such possession was adverse to the Respondent – the Farmer had signed a note at the suggestion of the Respondent – Trial Judge said note reflected the fact that the Farmer had always accepted the respondent’s title and that no attempt was made by any of the predecessors to deprive the Respondent of same – Court of Appeal found that the Appellants had failed to identify any findings of fact that were not based on credible evidence – Appellants accept that the Respondent obtained a good paper title to the disputed lands - 1974 Deed under - Respondent land was transferred by the Farmer to the Respondent in consideration of natural love and affection - Respondent was deemed to be in possession upon and after execution of the 1974 Deed - onus on the the Appellants to prove to that their predecessors in title had acquired title to the disputed land by adverse possession - actual entry into possession by the Respondent evident - not necessary to physically enter and occupy or make use of every corner or constituent piece of ground - sufficient to enter on part into order to enter into possession of the whole - Respondent’s planning application showed his intention to occupy the entire plot and build his house on it – Court of Appeal found that the farmer who was involved in business - Consultant making the planning application - aware of the detailed objection from immediate neighbour and brother- in-law - the fact that none of the Farmer’s family countered that assertion of title undermines claim that they individually or collectively held the requisite animus possidendi at any relevant time - no general obligation in law on a title owner to assert their title by proactively undertaking acts of possession in order to sustain their title over time - open to a land owner to leave their property unused and unoccupied - Appellants cannot succeed on the basis of a defence of estoppel by silence or acquiescence – Farmer’s family’s use of disputed land was not sufficiently extensive to give rise to adverse possession - Appellants failed to establish the requisite animus possidendi on the part of the Farmer’s family - Trial Judge was entitled to reject the Appellants’ defence of adverse possession - appeal of that finding must fail – provisional order made for €125,000 - general damages for trespass and nuisance - €118,400 awarded by the trial judge for reinstatement of 64 leylandii trees – evidence from an Arborist – parties bear own costs in relation to the costs of the appeal related to the general damages award – balance of the costs of the appeal borne by the Appellants.