Record No. 1984 616Sp

THE HIGH COURT
IN THE MATTER OF THE ARBITRATION ACTS 1954 AND 1980
IN THE MATTER OF THE ARBITRATION PROCEEDINGS BETWEEN ROHAN INDUSTRIAL ESTATES LIMITED, APPLICANT AND MALACHY GERAGHTY, RESPONDENT
AND IN THE MATTER OF THE ARBITRATION AWARD MADE ON THE 24TH DAY OF AUGUST 1984
BETWEEN/
MALACHY GERAGHTY
PLAINTIFF
AND
JOHN F. BUCKLEY
AND
 ROHAN INDUSTRIAL ESTATES LIMITED
DEFENDANT

Judgment of Miss Justice Carroll delivered on the 16th day of March, 1987.

This Judgment is supplemental to the Judgment delivered by me in this matter on the 6th of October, 1986 and should be read with it.

I have now had an opportunity of hearing Mr. Fahy  for the Registrar of Titles.  Dublin County Council did not want to make any submissions.

In his award the Arbitrator found that the Land Registry had effectively removed lands from the two Folios 754 and 882 County Dublin by altering the official Land Registry map and opening new folios without a transfer from the registered owner and without noting any removal of lands from the folios.

When hearing this case before, I was under the impression that the area of lands comprised in the new folios included the road areas abutting the parcels transferred, so that over the years the total area, formerly comprised in the two Folios 754 and 882 County Dublin (54.804 acres) and now comprised in those folios and the new folios which have been "hived off" increased by 2.549 acres, being the road area abutting the parcels transferred.  Such is not the case.  There has been no duplication in registration.  What I am told happened is that when a parcel of lands was transferred by the registered owner, a new folio was opened comprising the area of the parcel transferred with a corresponding reduction in the parent folio.  The map relating to the new folio showed the parcel transferred and the area of the road abutting it ad medium filum. A corresponding adjustment was made to the map relating to the parent folio.  The acreage of the road was neither added to the new folio nor deducted from the old.  So duplication of registration of the same piece of land does not arise.

It is also clear now that on first registration the area of the roads abutting the lands comprised in Folios 754 and 882 County Dublin were properly included.  There is no question of their having been included by mistake. It is submitted by Mr. Fahy for the Land Registry that it is a presumption of law that a conveyance of land passes half the adjoining highway.  He cited Norton on Deeds 2nd Edition Page 252, Dwyer  .v.  Rich 1871 Irish Reports 6 Common Law 144; Berridge  .v.  Ward 1861 10 CB (NS) 406; and Micklethwait  .v.  Newlay Bridge Company 1886 33 Chancery Division 133.  I have no doubt that insofar as unregistered land is concerned that is correct.

Mr. Fahy submitted that these cases support the view of  the Land Registry that in the ordinary course of events they are entitled to act on the presumption that the road passed. He said that it was not correct to say that the Registrar had transferred the lands.  It was done by the registered owner because there was no circumstance to rebut the resumption.

I looked at the book of title documents submitted by the  Plaintiff.

In the case of the transfer of lands marked B on the map submitted by the Land Registry, to the North Dublin Rural District Council (the forerunner of Dublin County Council) this was effected not by transfer but by a receipt.  There is   n a declaration by James Jolley the registered owner that the map of the sites numbers 128 to 147 in the Order of 1929 referred to, formed portion of the lands comprised in Folio 754 County Dublin.  The receipt for the purchase money dated the 10th of December 1930 is in respect of his interest in 17 acres 27 perches described on the maps as numbers 128 to 147.  The map does not include the half of Turnapin Lane abutting the plot on two sides. The area of 17 acres 0 roods 27 perches is entered at entry number 16 in Folio 3045 being the folio to which the lands were transferred.
 
In the case of the transfer to Dublin County Council dated the 2nd of March 1940, it concerned part of the lands in Folio 882 County Dublin containing 2 roods 2 perches delineated on the sub-division map lodged in the Land Commission and thereon coloured pink.  While the copy map supplied is not coloured, I am assuming that only the narrow strip being required for road widening was coloured pink.  Only 2 roods 2 perches were entered in Folio 2440 County Dublin at entry number 41 being the County Council's folio.

In both of these cases the area of the parcel conveyed and the map referred to in the actual transfer coincided.

If the Land Registry took the view that a transfer of land abutting a road carried with it the road ad medium filum even though not specifically included, then logically they should have added to the area comprised in the transfer the road area concerned and deducted that total from the parent folio.  I am not asked to say whether in the absence of an actual transfer of the road area, that practice would have been effective.  That has not come up for adjudication.  What I am asked to hold is that where there was no transfer of lands at all but only a change in the map, there was an effective change of ownership from one folio to another and from one registered owner to another.

This strikes at the basic principle underlying registered land. There is only one estate in registered land, the estate of the registered owner, and the folio is conclusive evidence of
the title of the registered owner (see section 31).  That is not to say that rectification of the folios would not be granted. It appears to me that there is a very good case to rectify both folios but until that is done, the road areas abutting the parcels transferred out of the two folios remain part of the lands comprised in those folios.

I have no intention of apportioning blame or liability in any way, as such does not concern me.  My view is confined to whether the Land Registry practice described was effective to transfer ownership.  In my view it is not.