Famous confectioner loses appeal over rights of way

A family of confectioners who were the creators of ‘emeralds’ sweets has lost an appeal over whether there were rights-of-way over their former factory lands in Co Donegal.

In 2015, the High Court ruled the estate of a member of the McKinney family, who set up Oatfield Sweets in 1930, had no entitlement to the rights- of-way across the former sweet factory premises in Letterkenny.

That decision was appealed and Mr Justice Gerard Hogan, on behalf of a three-judge Court of Appeal, dismissed the case.

The High Court heard that as a result of the assertion of rights-of-way, Zopitar, a company owned by Donegal Creameries, which bought the property from the McKinneys, missed out on an opportunity to sell the premises to supermarket chain Lidl for €1.9m.

Zopitar asked the court for declarations that the estate of Ruth McKinney, daughter of Oatfield founder, the late Ira McKinney, did not have rights-of-way over the now demolished factory premises on the De Valera Road and the Ramelton Road.

Ms McKinney, since deceased, had asserted the right when she learnt in 2011 the factory was to be sold to Lidl.

She offered to extinguish the alleged rights-of-way if work was carried out on her own home, Oatfield Bungalow, next to the factory, along with the payment of €500,000.

Zopitar asked the court to declare there were never any rights-of-way as well as damages as a result of the lost sale to Lidl.

Ms McKinney’s nephew, Harold Jacob, the administrator of her estate who took over the action when she died, denied the claims and also counterclaimed.

It was claimed Ms McKinney used an entrance to the lands from the De Valera Road as a right-of-way for access to Oatfield Bungalow, including for oil deliveries.

There is a second access to the house from the Ramelton Road.

Mr Justice Hogan, in the appeal court decision, said he was of the view that the use of the access roads to the factory by Ms McKinney was at all times given to her and her family for a specific amount of time and could be revoked by the owner.

The essence of the McKinney/Jacob claim was that a right of way was acquired by prescription by reason of 20 years (or more) uninterrupted user under the 1832 Prescription Act, he said. This ‘nec precario’ concept, as it is known in law, means user by permission of the owner is not user as of right.

The McKinney/Jacobs accordingly cannot establish that the use was as of right within the meaning of the 1832 law, the judge said.

He noted this law has since been repealed by the 2009 Land Law and Conveyancing Law Reform Act.


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