Tuesday 20 February 2018

Family behind 'Emerald' sweets brand in right-of-way dispute in High Court

Judge's gavel
Judge's gavel

Tim Healy

A FAMILY of confectioners who came up with the well-known "Emeralds" sweets brand were not entitled to assert rights-of-way over their former factory lands in Donegal, 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, Mr Justice Paul Gilligan said.

As a result of asserting such a right, a company owned by Donegal Creameries plc, which bought the property from the McKinneys, missed out on an opportunity to sell the premises to supermarket chain Lidl for €1.9m, the court heard.

Zopitar Ltd sought declarations that the estate of Ruth McKinney, daughter of Oatfield founder, the late Ira McKinney,  did not enjoy rights-of-way over the now demolished factory premises on the DeValera Road and the Ramelton Road.

Ms McKinney, since deceased, has asserted the right when she learned in 2011 the factory was to be sold to Lidl, the court heard. 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, administrator of her estate who took over the action when she died, denied the claims and also counter-claimed.

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.

Finding against Mr Jacob, Mr Justice Gilligan was satisfied the use of the factory premises to access the McKinney home, both by Ira McKinney and by Ms McKinney, did not constitute a legal right of way over the property.

Before the factory was sold by the McKinneys in 1999, the use of the premises to access the house was a "permission to use" it personal to Mr McKinney and his family, but not for the benefit of Oatfield Bungalow itself.

Ms McKinney's assertion of a right did not meet a requirement of the 1832 Prescription Act that there must be 20 years continuous use of the alleged right of way, he said.

The use of the factory to access Oatfield Bungalow was tolerated by the factory owners and, despite a number of opportunities over the years to assert rights of way, they were never made, he said.

Neither was it asserted as part of the sale of the factory in 1999 when Ms McKinney received "considerable financial benefit" - IR£453,000 - for her shares in Oatfield.

At its height, Oatfield was Letterkenny's largest employer of 178 people. A company called Zed Candy was the last to produce sweets there in 2012 before the premises was demolished last year.

Online Editors

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