Belfast Telegraph

Tuesday 30 September 2014

Land battle 'turned brothers into enemies'

A six-year legal battle over disputed land has turned two brothers from the best of friends into enemies to be vanquished at all costs, a High Court judge has held.

Mr Justice Horner said Michael and Hugh McCann have been "split asunder" since their father died shortly after making a new will which triggered the breakdown in relations.
 

His assessment came as he ordered the sale of a 61 acre stretch of land in Co Tyrone rather than dividing it between the pair.
 

Urging them to try to repair their broken relationship, the judge warned: "The litigation path will bring nothing but further heartache, upset and very considerable expense."
 

The court heard their father, Myles McCann, transferred a plot known as the Mountain Lands to them in 1979.
 

Hugh McCann farmed the land while his brother worked as a joiner and builder with a workshop he used there until he left for the United States in 1988.
 

Michael McCann made intermittent short visits back to Northern Ireland before returning for good in 1994, a married man with two children.
 

The pair remained close friends until the death of their father in 2001 resulted in their relationship changing "irrevocably".
 

In an earlier will Mr McCann senior had left all his land to Hugh McCann.
 

But a new division of his assets arranged shortly before he died led to a major fall-out and a flurry of litigation.
 

They involved allegations of trespass and an attempt to have the later will set aside.
 

The latest action, issued by Michael McCann in May 2007, sought the sale in lieu of partition of the Mountain Lands.
 

His brother claimed, however, that he had acquired exclusive title to the whole stretch by adverse possession.  
 

Ruling on the case, Mr Justice Horner said "internecine strife" has consumed the family and resulted in a complete breakdown of trust and confidence.
 

"They had before these legal disputes arose been the best of friends and true brothers," he said.
 

"Now each seems to regard the other, it would appear, as an enemy to be vanquished at all costs."
 

Both became so determined to win the battle they had difficulty in giving any testimony which detracted from their case, the judge noted.
 

He concluded there had been an implied agreement and understanding that Hugh McCann would farm the Mountain Lands on his own.
 

When his brother left in 1988 he kept some of his plant in the workshop.
 

The judge also pointed to Michael McCann walking the land, cutting turf, and quad biking there during visits back to Northern Ireland.
 

"These modest acts of possession when exercised as a legal owner are, I find, sufficient to show he was not dispossessed and that he remained in possession," Mr Justice Horner said.
 

He held that an order for partition would be inappropriate due to difficulty in dividing the type of land involved, together with the remote prospect of the brothers reaching agreement.
 

Although Michael McCann was found to have discontinued possession of farm buildings, the judge said it was appropriate to order sale of the land.
Calling on the brothers to try to reach an accommodation even at this stage, he stressed: "It is still not too late to turn back, reach agreement and repair fractured relationships."

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