Green and another v Wheatley

Parties owning adjoining land – Defendant building garage – Claimants claming paper title to disputed land – Defendant claiming adverse possession – Whether intention to possess an appropriate degree of exclusive control – Judge ordering removal of garage – Appeal allowed The defendant owned a property on which he lived in a converted barn known as Barndale, Buckden, West Yorkshire. The defendant’s parents had purchased the barn and surrounding land in 1974. At the time of the purchase the southern boundary of Barndale, between the barn and the road, was marked on the ground by a low stone wall leading in a straight line from the south-east corner of the barn in an easterly direction until it reached another stone wall bordering the road. To the south of the boundary wall was a small area of open land. The area of open land was effectively enclosed along its roadside boundaries by the stone wall bordering the road. The claimants owned a property known as Buckden Court Holiday Cottages (Buckden Court), which adjoined Barndale to the south. It consisted of a number of cottages, including a line of three cottages facing south, the rear wall of which was parallel to the southern boundary wall of Barndale and separated from it by a narrow strip of land that effectively formed a path (the path). The path was separated from the small area of open land to the east by a low stone wall in the nature of a retaining wall. In October 1994 the defendant began building a garage on the area of open land (the garage site). The work was completed in early December 1994. The claimants commenced proceedings, claiming primarily that they had paper title to the garage site. The defendant did not contend that he had paper title to any part of the garage site, but asserted that he and his mother had acquired title to it by adverse possession. He submitted that from the mid-1970s he and his parents had taken possession of it as part of Barndale by clearing it, siting an oil tank on it, tending it and generally incorporating it into the garden of Barndale. The judge rejected the defendant’s claim and, concluding that the claimants were entitled to an easement over the garage site, ordered the removal of the garage. The defendant appealed. Held: The appeal was allowed. 1. The unchallenged evidence that had been before the judge had been more than sufficient to establish the possessory title of the defendant and his mother to the garage site. The evidence was that soon after the defendant’s parents purchased Barndale, the low wall separating Barndale from the garage site was removed, the site was cleared and an oil tank erected on it. Thereafter it had been planted with flowering shrubs and treated as an extension of Barndale’s garden. Those facts demonstrated the requisite intention to possess and an appropriate degree of exclusive control, and accordingly it could be concluded that the defendant had established a good possesory title to the site. 2. It was plainly right that any easement had to be confined to the path, and accordingly the garage could not constitute an interference with such an easement. There was virtually no evidence of any user of the garage site itself by the owners or occupiers of Buckden Court. Moreover, the very existence of the wall separating the garage site from the road negated the possibility of a right of way over the garage site between Buckden Court and the road arising by implied grant or by prescription. Richard Carter (instructed by Varleys, of Skipton) appeared for the claimants; the defendant appeared in person. Thomas Elliott, barrister