A CIRCUIT Court judge has struck out an adverse possession claim over two acres of farm land in Kilmacrennan and ordered the plaintiffs to erect a fence within a month.
Plaintiffs Noel and Patrick Joseph (known as Josie) Russell claimed adverse possession over the land owned by defendant Thomas Kerr, represented by his daughter Tanya McBride.
Judge Petria McDonnell heard the full evidence of the land dispute at a civil sitting of Letterkenny Circuit Court on Tuesday and gave her judgment on Thursday afternoon.
Ms Tanya McBride (40) said she and her former husband had bought the land at Legnahoorey from Eliza and William John Pearson in 2001, soon after getting married hoping to some day build a new home for their family.
Ms McBride claimed she had been threatened and bullied by the plaintiff Mr Noel Russell who, she said, had removed any ‘no trespassing’ signs she had posted claiming that the land was owned by his family.
She said she was first approached by Noel Russell in 2004 when he called to the house to tell her that he was grazing cattle on the field at Legnahoorey.
Ms McBride said while her husband wanted to keep the peace, she did not like Mr Russell’s attitude. “No one else in that area was willing to stand up to him because they wanted to keep the peace. He bullied me and I wasn’t going to let him bully me.”
Mr Russell claimed the Pearsons had sold a plot of land to Ms McBride that was owned by his family and had been farmed by them since the 1970s.
He said nobody apart from his family had farmed the land, while the barrister Ms Patricia McLaughlin BL called on neighbours of the Russells to support this claim.
Mrs Eliza Pearson told the court that she had bought a large 33-acre plot of land from Dominic Doherty, Noel Russell’s uncle (by marriage), part of which she then sold to Ms McBride and her husband.
In evidence, both the Pearsons and Ms McBride said Noel Russell had made several attempts to buy the plot of land from them.
Mr Pearson also said that when he said they had already sold the land to Ms McBride, Noel Russell replied ‘that’s OK, because you weren’t going to get any f***ing money anyway’.
Mr Russell denied making offers to both the Pearsons in 2001 and to Ms McBride in 2004 to buy the land in question. The court heard that Mr Russell made his first application for registration of ownership of the land in 2006.
Judge McDonnell said it was ‘terrible’ when neighbours got into disputes over land. In this case she found that the plaintiff had not been able to establish the necessary 12 years to claim as the slightest act by the registered owner defeated this title claim.
The judge said she accepted that the Russells had used the land for grazing, however, the period of possession had been broken when Mr Pearson asserted his ownership when he attempted to build a fence. She also said there was no evidence of Mr Russell asserting himself as the owner of the land before 2006.
Judge McDonnell struck out the Russells’ claim and said she would not make an order for costs if the Russells built a fence around the plot in question within a month.
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