Disputed land — Action for possession — respondent counter-claiming adverse possession — Whether possession ceasing on termination of earlier grazing agreements — Whether roadworks affecting disputed land interrupting in adverse possession — Appeal dismissed
The appellant was the owner of 13 acres of freehold agricultural land. The respondent’s father had been granted grazing rights on the land from time to time since 1972 and, following his father’s death in 1982, the respondent continued to use the land. In 1993, the appellant transferred a strip of the land to the local highway authority as part of their road-widening works. The respondent did not object because he did not wish to draw attention to his occupation of the land, but continued to use the remainder of the land as before.
In 1996, the appellant brought an action against the respondent for possession of the land. The respondent claimed to have been in adverse possession for a continuous period of 12 years and counter-claimed both for a declaration that he was the owner of the disputed land and an order for rectification of the land register.
The county court upheld the respondent’s adverse possession claim, save in respect of a narrow strip of land. The appellant appealed, contending that the acts of the respondent from 1 January 1983, following the expiry of the last of the grazing agreements, did not amount to “possession” of the disputed land within the meaning of Part I of Schedule 1 to the Limitation Act 1980 (the possession issue). Alternatively, if the respondent could establish adverse possession, the events of 1993 would amount to an interruption in his adverse possession, which, by operation of para 8(3) of Part I of Schedule 1 to the 1980 Act, would stop time running.
Held: The appeal was dismissed.
The appellant failed on the possession issue. In general, a squatter would establish factual possession if he could show that he was using the land as if he were the true owner and in such way that the owner was excluded. In addition, just as the issue as to actual possession depended crucially upon the facts, so also did the issue as to the existence of requisite intention to possess: Powell v Macfarlane (1979) 38 P&CR 452 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 applied.
In the present case, the early grazing agreements could have no effect on the issue of whether the respondent’s activities on the disputed land during the relevant period amounted to factual possession. Objective acts that would otherwise constitute factual possession could not be diluted or denatured by reference to dealings between the squatter and the true owner that, by their own terms, related exclusively to some earlier period.
As regards the interruption issue, it would be artificial and unreal on the facts to conclude that the acts done on a specific and relatively small part of the disputed land, for the approximate period of a month, somehow altered the quality of the respondent’s continuing activities on the remainder of the disputed land.
Moreover, a squatter, where his activities were open and apparent and there was no suggestion that he had acted dishonestly, was not obliged in law to draw the true owner’s attention to the fact that time was running against him.
Jonathan Gaunt QC and Stephen Jourdan (instructed by Bude Nathan Iwanier) appeared for the appellant; Paul Morgan QC and Martin Dray (instructed by Oglethorpe Sturton & Gillibrand, of Lancaster) appeared for the respondent.
Eileen O’Grady, barrister