A judge was told on Friday that, far from her decision ending a boundary dispute between warring neighbours, the confrontation would open on several new fronts.
Judge Jennifer O’Brien in the Circuit Civil Court told sisters Renee and Jacqueline Malone of 72 Dublin Road, Sutton, Dublin and next door neighbours Begona Alvarez O’Neill and Lucita Pascual Sanmiguel where the exact line of the boundary between their properties would be.
The judge accepted as a rule of court a map drawn up on her directions by court-appointed chartered surveyor Dr Patrick Prendergast following a visit by her on Thursday to view the disputed boundary.
The neighbours have been involved in a legal battle for almost as long as the Second World War and their protestations have now been heard by seven judges. The litigation was initiated by the late Evelyn Malone who died at the age of 97 during the drawn out legal dispute. Her two daughters were substituted as defendants following her death.
Beautiful homes
The beautiful homes of the warring neighbours front onto the sea near Sutton with panoramic views of Howth Head.
Judge O’Brien said on Friday she had attended at the properties and the court was now in a position to make a number of determinations.
“The court hereby grants a declaration that the boundary between No 72 and N0 73 is as described on the map annexed to this order,” Judge O’Brien said. “The same declaration shall apply to the defendants’ counter-claim regarding these proceedings and the court makes no finding with regard to trespass and no order for damages in favour of either party.”
Judge O’Brien also ruled that each party in the case would bear their own legal costs with liberty to apply to the court again regarding details of her decision.
“There is no winner in this case and the court appreciates that this litigation has been a very difficult ordeal for both families and the court hopes they may now be able to put their difficulties behind them and move forward,” the judge said.
She refused to grant a stay on her order to facilitate an appeal of her decision to the High Court.
Richard Lyons SC said that earlier in the case he had indicated that an issue with regard to statutory title might arise. He told Judge O’Brien on Friday that the map now before the court suggested that the O’Neills had been encroaching on the Malone’s title.
“On the basis of the new boundary line, the O’Neills have occupied that encroachment area for decades, and they will not have statutory title to it,” stated Mr Lyons who appeared with Robert O’Reilly BL and James Wall Solicitors for the O’Neills.
He made an application to amend his client’s defence and counter-claim to include title over then encroached upon land.
Judge O’Brien said she had been invited by both parties to attend at the site, and she was not going to amend the defence and counter-claim. “I cannot permit the changing of pleadings while I am hearing the case and at a point when this court has conducted itself in a certain way to assist both parties,” she said.
She said the court could not allow the defendants to introduce a new case through amended pleadings.
“I appreciate neither side may be happy with the court’s decision, but I cannot allow the defendants to reopen new arguments at this point. If the defendants wish to take it to another court that is their decision. I am sticking with my decision,” she said.
Barrister Shane English, who appeared with Gore and Grimes Solicitors for the Malones, said the defendants were aiming to introduce an absolutely new case.
“What is happening is precisely what happened from the beginning,” Mr English said. “When the defendants realised they were losing ground they moved ground.”
Judge O’Brien said the point was well made that the defendants’ request was a new case.
