Title — Validity — Plaintiff claiming adverse possession — Plaintiff also claiming ownership — Whether evidence to show intention to exclude others — Whether defendant dispossessed — Defendant’s appeal allowed
Two adjacent parcels of land near Malvern were conveyed separately in 1919: Portocks End Farm came into the possession of the plaintiff in 1960 and in 1980 Brickyard Cottage into the possession of the defendant. The only live dispute on the appeal was as to the ownership of the ditch between them. The plaintiff cleaned the ditch from time to time at the defendant’s request “thinking it was my ditch” (in accordance with an alleged local custom relating to which side owned a ditch). He claimed title by 12 years’ adverse possession under the Limitation Act 1939 if he was not the freehold owner. At first instance, the county court judge held that the plaintiff must prove intent and actual possession. He found that the plaintiff had been in adverse possession. The defendant appealed.
Held The appeal was allowed.
In Leigh v Jack (1879) 5 Exch D 264, it was stated that “if a man does not use his land…he does not necessarily discontinue possession of it.” In Powell v McFarlane (1977) 38 P&CR 452, it was held, inter alia, that factual possession signified a single and conclusive possession so that an owner and intruder could not both be in possession of the land at the same time; and, further, that the intruder not only had the requisite animus possidendi but had made such intention clear to the whole world. Whatever the plaintiff’s interest in the present case, he did not have possession at all; his acts did not show an intent to exclude the world — he worked on the ditch by consent, or on request, of the defendant.
Jonathan Salmon (instructed by March & Edwards, of Worcester) appeared for the plaintiff; and Benedict Sefi (instructed by Lamberts & Wade, of Malvern) appeared for the defendant.