Freedom to Roam and Public Rights of Way

Henry David Thoreau wrote in his journal in 1842, ‘I am amused to see from my window here how busily a man has divided and staked off his domain. God must smile at his puny fences running hither and thither everywhere over the land.’

Mr Justice McMahon’s judgment (20th Dec 2010) in the Lissadell public right of way case would certainly have brought a smirk to Thoreau’s face. Documentary evidence dating back 200 years, two Senior Counsel asserting private property rights over their demesne and the public’s desire to keep on strollin’ in the free world. This case had it all – a true slobber-knocker.

Eddie Walsh and Constance Cassidy sued Sligo County Council, claiming slander to their title to Lissadell and improper interference with their business interests. They have been unsuccessful. The gist of the High Court’s ruling is that the public has a right of way on the avenues of Lissadell estate in Co Sligo.

The Court established that the onus lay on Sligo County Council to demonstrate that the previous owner had dedicated a right of way across his lands to the public. To discharge this burden, the defendant County Council called 25 witnesses to give evidence as “users as of right.” Judge McMahon was convinced by their testimony – a picture emerged “that since the early 1950s at least many people, who had no specific business or other reason to be there, entered and exited the estate through all four entrances.” Furthermore, the fact that the past owners of the land did not object was interpreted as acquiescence and thus acceptance of the practice.

The evidence offered by people from the town and with long-lasting familial connections to the estate seems to have been decisive to the conclusion reached by McMahon. As a result, it would be inappropriate to exaggerate the importance of this judgment for the future, given how fact-specific the case was. The Court’s response is a positive outcome for those in Sligo. For the rest of us, it offers hope of a possible trend in the courts’ treatment of public rights of way cases that encourages people to open up their land and let others enjoy the countryside.