Land – Claimant acquiring paper title to manors and lordships – Defendants’ claiming adverse possession – Whether defendants showing factual and intended possession – Claims allowed in part
Between 1997 and 2003, the claimant acquired various manors and Lordships over land comprising parts of the foreshore and bed of the tidal estuary of the River Severn, on its Welsh side and to the south-west of the first Severn road bridge. The land consisted of thousands of acres of sand and mudflats and similar land running seaward from the Welsh shoreline. Relying upon those acquisitions, the claimant set about registering a caution against first registration at the Land Registry.
The defendants claimed that they had paper title to various parts of the disputed land or, alternatively, that they had acquired title by adverse possession. Finding there to be conflicts between rivals, the Land Registry directed the claimant to begin proceedings against the defendants. The claimant could claim only paper title. In each case, the area claimed had a readily visible boundary at the shoreline side only, with each other boundary being either unmarked riverbed or water, depending in part upon the state of the considerable tides that affect the Severn.
The adverse possession claims were directed to be determined as a preliminary issue.
Held: The claims were allowed in part.
The onus was on the party seeking to establish that it was in adverse possession to prove that it had had both a sufficient degree of physical custody and control over the relevant land (factual possession) and an intention to exercise such custody and control on its own behalf and for its own benefit (the intention to possess): Powell v McFarlane (1979) P&CR 452 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 applied.
The words “possess” and “dispossess” were to be given their ordinary meanings. Factual possession signified an appropriate degree of physical control. There had to be a single and exclusive possession (although it could be exercised by, or on behalf of, several persons jointly); if the squatter was in possession, the paper owner could not be. What acts constituted a sufficient degree of exclusive physical control depended upon the circumstances, including the nature of the land and the way in which it was used or enjoyed. It had to be shown that the alleged possessor had dealt with the land in question as an occupying owner might have been expected to deal with it and that no one else had done so. Furthermore, the factual possession had to be sufficiently clear that, were the owner present on the land, it would appreciate that the squatter was dispossessing it: Lord Advocate v Lord Lovat (1880) 5 App Cas 273; Buckinghamshire County Council v Moran [1990] Ch 623; and Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125; (1976) 244 EG 295 considered.
Where a squatter claimed to be in possession by way of authorised entry and to be acting by its tenant or licensee, it would not suffice to demonstrate possession against the paper owner merely to prove that a lease or licence had been granted for a consideration, unless the lessee’s or licensee’s acts as carried out had been obvious or visible to the requisite degree. That was an issue of fact. However, the required exclusivity of possession was not negated by the exercise of the legal rights of others such as public rights of way or of fishing or navigation or private rights such as easements.
It was for the party claiming by adverse possession to prove that it had had a particular intention to possess throughout the period of possession upon which it relied (animus possidendi). It was not enough if the intention remained undisclosed, but it was not a necessary or invariable part of the animus that it should include an intention to dispossess. Moreover, the squatter’s acts did not have to be inconsistent with the paper owner’s intentions as to the land.
In the present case, the first defendant had demonstrated adverse possession of one of the two areas claimed, the second defendant’s claim succeeded so that the claimant’s title was barred and the third defendant’s claim had to await the outcome of the main action.
Mark Wonnacott (instructed by Darwin Gray, of Cardiff) appeared for the claimant; Charles Harpum (instructed by Lee & Pembertons) appeared for the first defendant; Thomas Braithwaite (instructed by Farrer & Co) appeared for the second defendant; and Barry Denyer-Green (instructed by Lee & Pembertons) appeared for the third defendant.
Eileen O’Grady, barrister
