Adverse possession –– Intention to exclude all others –– Whether tenant in factual possession intending to exclude all others including landlord –– Whether erection of fence equivocal –– Whether on determination of tenancy any possessory title acquired by tenant passing to landlord as against third parties
In 1952 F conveyed an area of farmland to the respondent, and a further area of land to B by way of a subsale. The area conveyed to B included an area of farmland that was the subject of the dispute between the parties in the present proceedings (the disputed land). At the time of the sale, the farmland and the disputed land were the subject of an agricultural tenancy held by P. The farmland was eventually let by the respondent to H, although the tenancy did not expressly include the disputed land. In 1987 the respondent conveyed to his son, W, his interest in the land acquired in 1952. In 1988 H surrendered his tenancy to W. The title to the disputed land was acquired by the district council in 1991, and, following a transfer, the appellant trustees were registered as the proprietors in 1998. The respondent claimed that his tenant, H, had acquired an adverse possessory title to the disputed land that operated as an accretion to his tenancy, and that that title passed to the respondent upon the determination of H’s tenancy. The respondent’s application to HM Chief Land Registrar for an order under section 82(1)(g) of the Land Registration Act 1925 rectifying the filed plan to the relevant title, on the ground that he had been in adverse possession of the disputed land, was allowed by the deputy solicitor. The trustees appealed.
Held: The appeal was allowed. H was in factual possession for the necessary 12-year limitation period. However, the fact that H intended to work and use the disputed land was equivocal in relation to his intention to possess the disputed land and to exclude others, including the respondent. The erection of a fence was also not unequivocal evidence of an intention to exclude others, as H required the fence for keeping his stock secured. The necessary intention to exclude others was not proved and, therefore, there was no adverse possession.
The presumption that upon the determination of a tenancy any possessory title acquired by a tenant passes to his landlord will not inevitably apply as between the tenant and third parties, such as the trustees. If adverse possession had been established, and if the presumption applied that upon the determination of H’s tenancy the possessory title acquired by him passed to his landlord, W, and not to the respondent, would have acquired the title. JA Pye (Oxford) Ltd v Graham [2001] 18 EG 176 explained.
The following cases are referred to in this report.
Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 3 WLR 152; [1989] 2 All ER 225, CA
JA Pye (Oxford) Ltd v Graham [2001] EWCA Civ 117; [2001] 2 WLR 1293; [2001] 18 EG 176, CA
[2000] Ch 676; [2000] 3 WLR 242; (2001) 81 P&CR 15; [2000] 2 EGLR 137, Ch D
King v Smith [1950] 1 All ER 553
Kingsmill v Millard (1855) 11 Exch 313
Powell v McFarlane (1979) 38 P&CR 452
Smirk v Lyndale Developments Ltd [1975] Ch 317; [1975] 2 WLR 495; [1975] 1 All ER 690; [1974] 29 P&CR 407, CA
[1974] 3 WLR 91; [1974] 2 All ER 8; [1973] 28 P&CR 142, Ch
Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex [1975] QB 94; [1974] 3 WLR 387; [1974] 3 All ER 575, CA
Whitmore v Humphries (1871) LR 7 CP1
This was an appeal by the trustees, Michael John Lesley Batt, Guy Blackwood and Alan David Forrester (trustees of the Michael Batt Charitable Trust), against a decision of HM Land Registrar upon an application by the respondent, Jack Adams, for an order under section 82(1)(g) of the Land Registration Act 1925.
Jonathan Brock QC and Caroline Hutton (instructed by Curtis, of Plymouth) appeared for the appellants; Nicholas Asprey (instructed by Reynolds Parry-Jones & Crawford, of High Wycombe) represented the respondent.
Giving judgment, Laddie J said:
1. This is the judgment on an appeal against an order of the deputy solicitor to HM Land Registry made on 7 December 2000. By that order, it was directed that the filed plan of title number BM 166387 be rectified, pursuant to section 82(1)(g) of the Land Registration Act 1925, by the removal of the land tinted blue on the plan attached to the order, and that Mr Jack Adams, the respondent on this appeal, be registered as proprietor of the land. The appellants are the trustees of the Michael Batt Charitable Trust, who were the registered proprietors of the property. For the purpose of this judgment, I will refer to Mr Jack Adams as “Mr Adams Snr”.
2. The land in issue (the disputed land) is located near Amersham in Buckinghamshire. It was argued successfully before the deputy solicitor that Mr Adams Snr had acquired title by adverse possession. The following statement of the relevant background is derived in large part from the deputy solicitor’s decision, and is, I believe, non-contentious.
3. Until 1952, the disputed land was owned, with adjoining land, by a Mr Forbes. The land he owned comprised a substantial house and garden, called Rushymead, and adjoining farmland. The disputed land was part of the farmland. In 1952 Mr Forbes agreed to sell Rushymead and the farmland to Mr Adams Snr. He immediately agreed to sell on the house, with its garden and the disputed land, to Broom & Wade Ltd. The sale by Mr Forbes was carried into effect by two conveyances, both dated 11 March 1952. The first conveyance conveyed farmland to Mr Adams Snr, and the second conveyance conveyed Rushymead and the disputed land to Broom & Wade Ltd by way of subsale. The second conveyance included a covenant by Broom & Wade Ltd to fence off the boundary between the disputed land and the land conveyed to Mr Adams Snr. There is no evidence that Broom & Wade Ltd, or anyone else until very recently, ever erected such a fence, when the appellants erected one after Mr Adams Snr indicated that he claimed title to the disputed land by adverse possession. For present purposes, the latter fence can be ignored.
4. At the time of the sale, the disputed land and the adjoining farmland conveyed to Mr Adams Snr were subject to an agricultural tenancy in favour of three brothers called Pusey. Following the 1952
5. As noted above, at the time of the 1952 conveyances both the land acquired by Mr Adams Snr and the disputed land were the subject of a tenancy in favour of the three Pusey brothers. That tenancy came to an end in 1960. Subsequently, Mr Adams Snr granted a new tenancy to Evan Jeffries. That tenancy apparently subsisted until 1965. On determination of Mr Jeffries’ tenancy, Mr Adams Snr granted a tenancy to Roger Higgs Jnr (Mr Higgs), who gave evidence before the deputy solicitor and who plays a central role in the issues arising on this appeal. On 1 April 1987 Mr Adams Snr conveyed his interest in the land acquired in 1952 to his son, William John Adams (Mr Adams Jnr). Mr Higgs’ tenancy lasted until 28 September 1988, when he surrendered it to Mr Adams Jnr. Mr Adams Jnr does not claim an interest in the disputed land. He has granted a tenancy to Leslie and Philip Cox, but that tenancy does not purport to include the disputed land.
6. Mr Adams Snr’s claim is that his tenant, Mr Higgs, acquired possessory title to the disputed land by exercising more than 12 years’ adverse possession. The benefit of that adverse possession operated as an accretion to Mr Higgs’ tenancy, which passed to Mr Adams Snr upon the determination of that tenancy.
7. There is no dispute between the parties that a claimant to land by adverse possession needs to prove three things in order to succeed, namely that: (a) he, or other persons whom he has dispossessed, was, or were, for the relevant period, in factual possession; (b) he and they had, for the requisite period, the relevant intention to possess the land; and (c) his and their possession was adverse to the owner. Issue (c) is not in contention here. On this appeal the following major points are advanced by Mr Jonathan Brock QC, on behalf of the appellants:
(i) Mr Higgs was not in factual possession for the necessary period of 12 years.
(ii) It has not been proved that Mr Higgs had the necessary intention to possess.
(iii) Any presumption that the benefit of a title acquired by adverse possession by a tenant accrues to the benefit of the landlord is not binding upon a third party, and therefore not binding upon the appellants.
(iv) Even if Mr Higgs did acquire title by adverse possession and such title passed to his landlord, the relevant landlord was Mr Adams Jnr, who did not give evidence, played no part in these proceedings and made no claim to the disputed land.
8. I shall consider each of these arguments in turn.
Was Mr Higgs in factual possession for the necessary period of 12 years?
9. The deputy solicitor commenced his consideration of this issue by referring to the well-known passage in Slade J’s judgment in Powell v McFarlane (1979) 38 P&CR 452 at pp470-471:
The question of what acts would constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor had been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
10. There is no dispute between the parties that this encapsulates the correct approach to determining whether there has been factual possession. The question is whether Mr Higgs was in factual possession. There is no suggestion that Mr Adams Snr himself was either in factual possession or had the necessary intention to possess. His evidence was that he did not include the disputed land in his tenants’ tenancies because he knew that he did not have the legal documentary title to it. He never represented either to Mr Higgs or anyone else until after February 1998 that he had any interest in the disputed land, nor did he act as if he had any such interest.
11. The deputy solicitor analysed the evidence with some care. He drew particular attention to the fact that during the whole of Mr Higgs’ tenancy the disputed land was fenced in with a field included within his tenancy and owned by Mr Adams Snr and that there was no access to it from the appellants’ land. It was not suggested that the appellants or their predecessors had, at any material time, gone onto the disputed land. He noted that Mr Higgs’ evidence was that he had used the field mainly for pasture, but also, upon at least one occasion, for growing crops, and that he maintained it by harrowing, top-dressing and seeding just as he did the rest of his farm. The deputy solicitor took into account the fact that Mr Higgs’ farming activities decreased and that his use of the field decreased in parallel, but he accepted Mr Higgs’ evidence that he continued to take off at least two crops of hay per year because that was a valuable commodity. He recorded the fact that the disputed land was used less when contractors entered into an agreement with Mr Higgs and Mr Adams Snr to store large quantities of pipe on the farm. In view of the importance of this episode to Mr Brock’s argument, I will consider it separately below. As the deputy solicitor recorded, after all the pipes had been removed from the farm, the disputed land was in a bad shape. Initially, it had been sown with crops. He accepted Mr Higgs’ evidence that he intended “to get the field back into pasture as soon as possible”. Eventually, it was used for harvesting hay only. The deputy solicitor’s conclusion was:
The nature of the disputed land dictated that its primary use must be as pasture. A considerable part of the evidence was directed to showing that the field of which the disputed land forms part was wet and unsuited to use as arable land. I find that throughout the period of his tenancy Mr Higgs dealt with the disputed land as part of his farm just as any tenant of it would and no-one else had the use of it. Mr Higgs was in factual possession of the disputed land throughout the period of the tenancy granted to him by the applicant.
12. Mr Brock accepts that, up to the pipe incident, the disputed land was in Mr Higgs’ possession. However, he emphasises that it is now accepted that while the pipes were being stored on the farm, they were not located on the disputed land. He says that, during that period, the disputed land was not being used for anything at all. He also pays particular attention to the period after the pipes were removed. Taking hay from the land would only have required six incursions onto it during the course of each year, and, in all the circumstances, this was not sufficient to demonstrate factual possession by Mr Higgs during the relevant period either. In support of his submissions, Mr Brock has taken me through the evidence, including the transcript of the cross-examination before the deputy solicitor, in great detail.
13. Although I accept that the onus is on Mr Adams Snr to demonstrate that there was the necessary continuous period of adverse possession, this does not mean that he has to give a detailed, day-by-day account of what use was made of the land. The court must determine whether, upon a balance of probabilities, there was uninterrupted adverse possession throughout the relevant period. In this case, the starting point should be Mr Higgs’ statutory declaration and his witness statement. In both, he says that he was in continual possession of both the land that was the express subject of his tenancy from Mr Adams Snr, which he referred to as “green land”, and also the disputed land, which he referred to as “yellow land”. Thus, he says:
I used the yellow land in the same way, in all respects, as I used the green land, for both arable and dairy farming.
He also said that he farmed the green and yellow land “as one single field”. The disputed land and the land demised to Mr Higgs under his tenancy are contiguous. There is no discernible natural or artificial boundary between them.
14. Mr Nicholas Asprey, who appears for Mr Adams Snr, argues that, properly read, the evidence shows that the disputed land was used by his client for agricultural purposes and to the maximum of its
15. In my view, the conclusion arrived at by the deputy solicitor was correct. Concentrating particularly upon the periods relating to the storage of pipes and thereafter, it seems to me that what probably happened is as follows. First, it appears that the pipes were stored on Mr Higgs’ farm only for about a year or so, in the second half of the 1970s. I am not persuaded that the evidence shows that during that period the disputed land was not used for anything. I accept Mr Asprey’s submission that it was probably used for grazing. But even if this were not so, I do not accept that this would interrupt Mr Higgs’ continuous possession. The deputy solicitor found as follows:
In the mid-1970s an Agreement was entered into with contractors, who were laying a major pipeline, allowing them to store pipes and other materials required for the construction of the pipeline on the field of which the disputed land formed part. Both witnesses accepted that the pipes and other materials had been stored on the part of the field that did not include the disputed land. Counsel for the respondents suggested that this indicated that the disputed land was treated as outside the tenancy. I find that the agreement did not discriminate as to which part of the field was to be used. The contractors used the part of the field they did because it was nearest the gate giving access to the road.
16. I think that that conclusion was correct. Mr Higgs gave the contractors permission to place the pipes on the disputed land and also part of the land expressly within his tenancy. During that period, he was exercising control over all of the land and was happy for the contractors to use it, with his permission, for the storage of pipes. The fact that they did not actually place any pipes on the disputed land was a matter of choice for them. Mr Higgs was still exercising effective physical control over it.
17. As far as the subsequent period is concerned, I do not accept Mr Brock’s suggestion that taking two crops of hay per annum is insufficient to qualify as continuous factual possession. As was said in Powell, what acts constitute a sufficient degree of exclusive physical control must depend upon the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. It is not in dispute that the disputed land was of poor agricultural quality. It was wet and unsuited for use as arable land. Taking hay from it was likely to be the most efficient way of exploiting it. Mr Higgs was exploiting it to the full for his own use. These facts, taken together with the existence and maintenance of the fencing, lead me to conclude that the deputy solicitor was correct on this issue.
Did Mr Higgs have the necessary intention to possess?
18. In relation to this issue, the deputy solicitor cited two extracts from leading cases in this area of law. First, he relied upon another passage in Powell at pp471-472:
the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.
19. The second was from Buckinghamshire County Council v Moran [1990] Ch 623E at p643, as per Slade LJ:
I agree with the judge that “what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess” –– that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title.
20. He then dealt with the facts very briefly as follows:
In relation to the disputed land Mr Higgs said in his evidence that he “always regarded it as part of the tenancy” and “I always assumed that it was part and parcel of the farm and I had his [ie the applicant’s] consent to use it.” Mr Higgs was clearly intending to possess the land throughout his tenancy as part of his holding and as such to exclude all other persons. He had the necessary intention to possess.
21. Mr Asprey supports the citation of the passages from Powell and Moran. He says that they accurately encapsulate the law on intention to possess. On the other hand, Mr Brock, while accepting that they generally indicate what the squatter must prove, says that the approach is now “more rigorous” as a result of the decision of the Court of Appeal in JA Pye (Oxford)Ltd v Graham [2001] 18 EG 176*.
* Editor’s note: Also reported at [2001] 2 EGLR 63
22. I accept that Pye is a good example of the care with which the courts have to assess evidence of intention to possess, but it does not seem to me that it alters or refines the law on this issue. Indeed, the need for “rigour” is made clear in, and pervades much of, Slade J’s judgment in Powell. For present purposes, it is sufficient to refer only to two further passages from the latter case. First, the learned judge said at p472:
The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the court will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him is not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
23. A little later on, Slade J explained how the relevant principles applied to the facts of the case before him at p478:
On many days of the year neither he nor the animals would have set foot on it [the disputed land]. These activities, done, as they were, by a 14-year-old boy who himself owned no land in the neighbourhood, were in my judgment equivocal within the meaning of the authorities in the sense that they were not necessarily referable to an intention of part of the plaintiff to dispossess Mr McFarlane and to occupy the land wholly as his own property. At first, surely, any objective informed observer might probably have inferred that the plaintiff was using the land simply for the benefit of his family’s cow or cows, during such periods as the absent owner took no steps to stop him, without any intention to appropriate the land as his own.
24. These passages are important, because they emphasise that the person claiming title by adverse possession needs to prove an unequivocal intention that has two facets. First, he must show that he intended to be in possession of the land. Second, he must show that he had an intention to exclude all others. If he deliberately carries on activities that amount to use and occupation of the land, this may be compelling evidence that he intended to possess the land; however, the fact that he intended to do that does not inevitably mean that he also intended to occupy the land to the exclusion of others, including the title owner. It may be that the onus of proving an intention to exclude all others will be hard to discharge in many cases, but the courts are, to use Ormerod LJ’s words in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex [1975] QB 94, reluctant to allow an encroacher or squatter to acquire a good title to land against the true owner. Powell and Pye illustrate this reluctance in operation.
25. In the light of these authorities, it is necessary for Mr Adams Snr to prove that Mr Higgs intended not only to possess the disputed land, but also to exclude all others. As Mr Asprey concedes, this must mean that he must prove that Mr Higgs intended to exclude, among others, both the appellants and their predecessors and also Mr Adams Snr himself.
26. I have already set out the totality of the deputy solicitor’s expressed reasons for holding that the necessary intention has been proved here. The crucial finding is contained in the following sentence:
Mr Higgs was clearly intending to possess the land throughout his tenancy as part of his holding and as such to exclude all other persons.
(Judge’s emphasis.)
27. The inference of an intention to exclude all others was drawn from the fact that Mr Higgs intended to possess the land. However, the
I assumed that, as the yellow land appeared to be part of the said Jack Adams’ farm, I had his implied permission to use it. I never knew, until now, that he did not have a paper title to it and I always treated it as part of my tenancy. I did not consider that the owner, if not the said Jack Adams, had given me any permission. If the owner was the owner of Rushymead, I had no contact with that owner. In the early years of my tenancy, if that owner had requested me to leave, I might have sought compensation, at least, because of my expenditure of time and money on the yellow land, which was plain for that owner to have seen and yet he had kept silent. Once I had been tenant of the yellow land for many years, I would have resisted any request by that owner that I leave, on the grounds that he had abandoned the land. In either case, I would not have left without checking the position with the said Jack Adams and thereby giving him an opportunity to assert title.
28. From this passage, it is clear that Mr Higgs never knew of the possibility that someone other than Mr Adams Snr was the title owner. As far as he was concerned, his landlord had not given him an express tenancy over the disputed land, but had permitted him to use it at will. He was not charged for such use. There is nothing here that suggests that it was at any time Mr Higgs’ intention to exclude the person whom he believed was the owner of the land. He did not believe he was in adverse possession, and he did not intend to be in adverse possession. During his time on the farm, he never had to turn his mind to the question of adverse possession, and it is impossible to say that he intended such possession. His evidence as to what his attitude would have been had he been told that he was trespassing on land owned by someone else amounts to little more than speculation. Speculation as to what he would have intended had he known the true facts seems to me to be irrelevant. What counts is the squatter’s actual intention throughout the period of adverse occupation, not what his intention would have been had other facts been drawn to his attention.
29. Furthermore, this evidence does not show that he would have attempted to exclude all others, including the paper title owner, for his own benefit. Mr Higgs says that, in the early years, he “might” have sought compensation. He does not say for how long the early years would have lasted. But it is clear that, during them, he would not have made any attempt to resist a call for him to vacate. At the most, he might have asked for some money. This does not prove an intention to exclude the paper title owner. It is consistent with him using the disputed land for as long as no one else was doing so (cf para 23 above). He then speculates that it is only when he had been using the disputed land for many years that he would have resisted any request by the landowner to leave. Whether he would have done so, in fact, is now impossible to say. Nor does Mr Higgs explain whether he would have needed to be working the farm for 10, 20 or 30 years before he believes he would have resisted any such request. Even assuming that he would have done so throughout his last 12 years on the farm, it is tolerably clear that he would not have done so for the purpose of asserting any title on his own behalf. His evidence is that he believes he would have allowed Mr Adams Snr to assert title. None of this evidence supports a suggestion that Mr Higgs had the intention to claim possession in his own name and on his own behalf and to the exclusion of all others, as required by Powell.
30. There is other material that points the same way. First, the deputy solicitor relied upon an answer that Mr Higgs gave under cross-examination. The full transcript extract of the relevant passage reads as follows at p64:
MISS HUTTON:… In your witness statement, you have said that you thought Mr Adams owned the little extra bit, and you thought you had his consent to use it. Is that correct?
A. Well, I always assumed it was part and parcel of the farm, so obviously, if I thought it was part and parcel of the farm, I knew I had his consent to use it.
31. Consistent with the reasoning given above, this does not indicate an intention to take adverse possession of the disputed land. On the contrary, it is consistent with Mr Higgs mistakenly believing his possession to be with the consent of the true owner.
32. Second, it will be recalled that the deputy solicitor determined, accurately in my view, that the contractors were given permission to put pipes on a field that consisted both of the disputed land and land held by Mr Adams Snr. It appears that permission for that use of the land was, with the knowledge of Mr Higgs, sought and obtained from Mr Adams Snr. For example, in examination-in-chief, Mr Higgs said as follows:
A. I know [the disputed land] was ploughed, and I know the reason why it was ploughed.
Q. Can you explain what that reason was?
A. Yes, I can, because at one time they were putting a new gas pipeline through a lot of the adjoining lands, and the contractors asked if we had somewhere to store piping, miles of piping. In point of fact, we did store miles of piping, with Mr Adams’ permission, on that field.
Q. On which field?
A. On the field which is marked green and yellow. I don’t know whether the piping extended up onto the yellow bit, but it was certainly in that field…
33. Once again, here it appears that Mr Higgs believed that Mr Adams Snr was giving permission for the pipes to be put on the green land and the yellow land (ie the disputed land). This is not consistent with Mr Higgs having an intention to occupy to the exclusion of all others.
34. The only factor that appears, at first sight, to point in the direction of an intention to exclude anyone, is the fact that Mr Higgs maintained and repaired the fence separating the disputed land from Rushymead. This was not relied upon by the deputy solicitor to support his finding of intention to possess. The fence had been erected before Mr Higgs acquired his tenancy, but he repaired it from time to time and put up barbed wire when gaps appeared. Mr Higgs’ evidence was that he “maintained the stock-proof fencing”. Upon analysis, this really takes the issue little further. A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination, there is nothing in this case that suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others.
35. For these reasons, I have come to the conclusion that Mr Adams Snr failed to prove that Mr Higgs possessed the necessary intention to possess and his claim to title by adverse possession fails. In the light of this, I can deal quite briefly with the other arguments advanced on behalf of the appellants.
Is any presumption that the benefit of a title acquired by adverse possession by a tenant accrues to the benefit of the landlord binding on a third party?
36. A convenient starting point to this part of the case is Kingsmill v Millard (1855) 11 Exch 313. There, Parke B said at pp318-319:
It is laid down in all the cases –– whether the inclosed land is part of the waste, or belongs to the landlord or a third person –– that the presumption is, that the tenant has inclosed it for the benefit of his landlord, unless he has done some act disclaiming the landlord’s title. I am disposed to discard the definition, that the encroachment is made “for the benefit of the landlord,” and to adopt that of Lord Campbell, viz that the encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit. It is not necessary that the land inclosed should be adjacent to the demised premises; the same rule prevails when the encroachment is at a distance. That is now the law; and I must add, that even though at the time of making the encroachment there is nothing to rebut the presumption that the tenant intended to hold it as a portion of his farm, yet circumstances may afterwards occur by which it may be severed from the farm: for instance, if the tenant conveys it to another person, and the conveyance is communicated to the landlord, then it can no longer be considered as part of the holding. But if the landlord is allowed to remain under the belief that the encroachment is part of the farm, the tenant is
37. Mr Brock argues that in all, or nearly all, cases where the presumption has been considered, the tenant has been found to be encroaching either upon the landlord’s own land or waste that the landlord, as lord of the manor, had control over. There is no proper and detailed consideration of a situation like this where the tenant acquires title by adverse possession over a third party’s land. He says that the presumption cannot apply to a third party’s land. Furthermore, even if it does apply to third party land, it only determines who has acquired title as between the landlord and the tenant. It does not mean that the landlord can advance the claim to title in his own name as against the third party. The tenant has to make the claim, and, if successful, pass title to his landlord. In either case, Mr Adams Snr should not be asserting title against the appellants. Mr Higgs should have claimed title and he has not.
38. To an outsider, although the presumption may appear sensible and fair to the extent that it covers a tenant’s encroachment upon his own landlord’s land, it may appear feudal when it applies to land belonging to third parties. Why should a tenant who trespasses on a third party’s land, perhaps distant from the land the subject of his tenancy, acquire title that passes to his landlord? What happens if he is a tenant of two or more different landlords, and the land that the tenant adversely possesses is distant to all of them (or abuts them all)? Which landlord acquires title by virtue of the presumption, or do they all do so, and, if so, in what proportions? Neither Mr Brock nor Mr Asprey suggest that there are immediately obvious answers to these questions. Furthermore, it might be said that the presumption works a hardship upon the tenant. For years he exposes himself to the risk of being sued for trespass. His landlord is not liable. Yet, at the end of the day, it is the landlord who benefits from the acquired title to the stranger’s land. He obtains all the benefit and takes none of the risk. He acquires title only because the squatter happens to be his tenant on another piece of land. Mr Brock says that these considerations support his suggestion that the presumption cannot apply to third party’s land that is adversely possessed by a tenant. He acknowledges that his submission is inconsistent with Parke B’s judgment in Kingsmill , but he says it is obiter.
39. Whatever the difficulties created by the presumption, it does not appear to me to be open to a judge at first instance to depart from Parke B’s approach. The presumption may have grown beyond its logical origin, but Kingsmill is now well-established law. It is clear from the report of the argument in that case that Parke B gave particular thought to the issue of whether the presumption should be applied to title to third party land. Furthermore, the passage set out in para 36 above was cited with approval by Pennycuik V-C in Smirk v Lyndale Developments Ltd [1975] Ch 317*, whose judgment on this point was approved by the Court of Appeal in that case. It is also consistent with the judgment of Willes J in Whitmore v Humphries (1871) LR 7 CP1. It follows that I reject Mr Brock’s suggestion that I should hold that the presumption does not apply to title acquired to third party land.
* Editor’s note: Also reported at [1975] 2 EGLR 43
40. However, this does not affect the second part of Mr Brock’s submission. If the presumption applies, does it bind the third party? The limited scope of this submission should be noted. What Mr Brock is arguing is that the third party, in this case the appellants, may have lost title to land by adverse possession, but it is only the tenant who can advance the claim. As between the tenant and his landlord, title acquired by adverse possession must pass to the latter, but as between them and the third party, it is the tenant who must make the claim.
41. In my view, there is substance in this point, although, for the reasons set out below, it has little impact here. The presumption arises out of the relationship between landlord and tenant. It is because of their relationship that title acquired by one is treated as being acquired for the other. It arises as a kind of estoppel out of the relationship. This is consistent with what Parke B said in Kingsmill in the course of argument at p37:
The more correct definition is that of Lord Campbell, in Andrews v Haines…, viz that where the encroachment is taken and used as part of the holding, the presumption is, as between landlord and tenant, that it belongs to the landlord, and the tenant can no more dispute his title to it than to any part of the premises.
Very similar wording is to be found in the judgment of Willes J in Whitmore.
42. There is no relationship between the landlord and the third party. On the face of it, there is no reason why the presumption should bind the third party. It might be that, in some cases, this would be a significant point. It is not here. There is no doubt that Mr Higgs supports Mr Adams Snr’s claim to title to the disputed land. Although he has retired to Spain, not only did he give written evidence to support Mr Adams Snr, but he also attended for cross-examination. There is no reason to doubt that, were it necessary, Mr Higgs would have been prepared to add his name to the proceedings as a formality to enable his former landlord to acquire title through him. Such joinder was not necessary. Had Mr Adams Snr otherwise been entitled to the disputed land through his tenant, I do not accept that his claim could have been defeated by want of joinder of Mr Higgs. In any event, I would have listened sympathetically to any application made on the respondent’s behalf to add Mr Higgs to the proceedings. The limited technical scope of this objection was, in substance, conceded by Mr Brock, who invited me not to decide this appeal on this ground alone since it would only result in separate proceedings being brought by Mr Higgs.
If Mr Higgs did acquire title by adverse possession and such title did pass to his landlord, is the relevant landlord Mr Adams Jnr rather than Mr Adams Snr ?
43. The point here is short. By the time that Mr Higgs’ tenancy expired, his landlord was Mr Adams Jnr as a result of the execution of a conveyance between father and son the previous year. If title to the disputed land passes to the landlord on the expiration of the tenancy, then it is son not father who acquired it. This point has more substance than the previous one since, unlike Mr Higgs, Mr Adams Jnr has played no part in these proceedings and has never asserted that he acquired title from his tenant.
44. Mr Brock refers to the passage from Kingsmill set out at para 31 above, and, in particular, the last sentence of it. He also relies upon the following passage in the report of the argument:
Parke B –– The doctrine must be understood with this qualification, that if the tenant has disclaimed his landlord’s title to the inclosure, from that time it will cease to be part of the holding.
45. Similarly, he relies upon the following passage from p4 of the judgment of Willes J in Whitmore:
By the rule of law applicable to this subject the landlord is entitled at the determination of the tenancy to recover from the tenant, not only the land originally demised, but also any land which the tenant may have added to it by encroachment from the waste… unless it is made under circumstances which shew an intention to hold it for his own benefit alone, and not as part of his holding under the landlord.
46. Thus, in accordance with the presumption, title passes only at the end of the tenancy, and at that time Mr Adams Jnr was the landlord.
47. Mr Asprey says that this analysis is wrong. He says that the paper title holder’s rights are “extinguished” by operation of the Limitation Act at the end of 12 years’ adverse possession: see, for example, King v Smith [1950] 1 All ER 553. The title to the land accrues to the landlord immediately.
48. With some hesitation, I have come to the conclusion that Mr Brock is correct on this point. It is true that the third party’s title is extinguished after 12 years’ adverse possession. However, the question is not whether title has been extinguished, but who has acquired it. The effect of the presumption is to pass the title from the tenant to his landlord. However, a number of cases demonstrate that the presumption is rebuttable. Parke B expressly said that the tenant could defeat the
49. It follows that, had there been acquisition of title to the disputed land by Mr Higgs’ adverse possession, that would have passed to the landlord at the end of the tenancy. At that time, the landlord would have been Mr Adams Jnr, not his father.
50. For this reason as well, I will allow this appeal.
Appeal allowed.
