Adverse possession –– Animus possidendi –– Whether squatters satisfied requirements of actual possession, animus possidendi and adverse possession for limitation period –– Whether warning-off cautions and issue of originating summons an action to recover land for purposes of Limitation Act 1980
Between 1975 and 1977 the first claimant acquired a substantial area of farmland that included the disputed land. It had always been its intention to hold the disputed land until planning permission could be obtained for development. It sold the other farmland in 1977. In 1982 G and his parents acquired the farmland. The father was granted a grazing licence to use the disputed land in 1983 and a licence to cut hay in 1984. A request for a further licence for 1985 was unanswered, and there was no communication between G (and his father) and the first claimant until 1997. Between 1985 and 1994 G carried out agricultural operations on the disputed land and used it for grazing purposes. It was farmed together with the rest of the farmland. In 1985 the second claimant, a wholly-owned subsidiary of the first claimant, acquired the disputed land by a transfer. G and his wife were registered as proprietors of the disputed land in 1992. In June 1997 G registered cautions against the claimants’ title claiming title to the disputed land by adverse possession. He later died. In April 1998 the claimants issued an originating summons seeking cancellation of the cautions and other relief. In January 1999 the claimants commenced proceedings against the defendants, administrators of G’s estate, seeking possession of the disputed land.
Held: Judgment for the defendants. An offer made by a squatter to an owner to pay rent or take a tenancy is an acknowledgement of the owner’s right to require the squatter to vacate the land (if the limitation period is still running), but it is not inherently inconsistent with the squatter being in actual possession of the land, or with the squatter having the requisite animus possidendi. Once any licence under which a squatter has occupation expires, if the squatter remains in occupation, his possession is capable of being “adverse”. The mere fact that a squatter orally communicates his preparedness to take a licence does not, of itself, prevent time running in the squatter’s favour, but it may assist an owner’s contention that the squatter did not have the requisite animus possidendi at and around the time the request was made. The earliest date when the limitation period began to run in favour of the defendants was 31 August 1984, when the hay-cutting licence expired. The limitation period ended when an action to recover land was commenced. The actions of the claimants, in making the application by orginating summons to warn off the cautions, were not actions to recover land within the meaning of section 15(1) of the Limitation Act 1980; the period therefore ended on 20 January 1999, when the action for possession commenced. The defendants established the requisite animus possidendi from January 1984 and certainly after August 1984. Their possession became adverse from 1 September 1984.
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
Buckinghamshire County Council v Moran (1988) 86 LGR 472; 56 P&CR 372
China v Harrow Urban District Council [1954] 1 QB 178; [1953] 3 WLR 885; [1953] 2 All ER 1296; (1953) 51 LGR 681
Edginton v Clark [1964] 1 QB 367; [1963] 3 WLR 721; [1963] 3 All ER 468
Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437
Hounslow London Borough Council v Minchinton (1997) 74 P&CR 221
Leigh v Jack [1879] 5 ExD 264
Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124; [1995] 38 EG 136
Ocean Estates Ltd v Pinder [1969] 2 AC 19; [1969] 2 WLR 1359
Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459
Powell v McFarlane (1977) 38 P&CR 452
R v Secretary of State for the Environment, ex parte Davies (1991) 61 P&CR 487; [1991] 1 PLR 78; [1991] JPL 540
Tecbild Ltd v Chamberlain (1969) 20 P&CR 633; 209 EG 1069, CA
Vandeleur v Sloane [1919] IR 116
Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex [1975] QB 94; [1974] 3 WLR 387; [1974] 3 All ER 575, CA
Walters v Webb (1870) LR 5 Ch App 531
WT Lamb & Sons v Rider [1948] 2 KB 331; [1948] 2 All ER 402, CA
This was the hearing of an action for possession brought by the claimants, JA Pye (Oxford) Ltd and JA Pye (Oxford) Land Ltd against the defendant administrators Caroline Graham and Charles Graeme Denton.
Jonathan Gaunt QC and Jonathan Small (instructed by Darbys Mallam Lewis, of Oxford) appeared for the claimants; Kim Lewison QC and Martin Dray (instructed by Burges Salmon, of Bristol) represented the defendants.
Giving judgment, Neuberger J said: The issue in this case is whether the defendants, Mrs Caroline Graham and Mr Charles Denton, have acquired title by adverse possession to some 23ha, or 57 acres, of land at Henwick, Thatcham, near Newbury in Berkshire (the disputed land).
Facts
JA Pye (Oxford) Holdings Ltd (Pye Holdings) is, as its name suggests, a holding company based in Oxford. One of its subsidiaries is the first claimant, JA Pye (Oxford) Ltd, which has at all material times been a company actively engaged in property development. Between 1975 and 1977, the first claimant acquired Henwick Manor (the farmhouse) together with a substantial amount of surrounding land. On 29 September 1977 the first claimant sold the farmhouse and approximately 67ha, or 165 acres, of the land (Manor Farm) to Dr and Mrs Holloway, and retained the disputed land. Mr Graham Pye, the managing director of Pye Holdings, said that this was because the disputed land was considered to have development potential. He also said that, since 1977, it had consistently been Pye Holdings’ intention to retain the disputed land until planning permission could be obtained
Both Manor Farm and the disputed land are irregular in shape. In rough terms, the position on the ground is as follows. The farmhouse and the farm buildings are situated approximately midway along, and just within, the southern boundary of Manor Farm. The farmhouse is approached by a private drive, which is part of Manor Farm and runs off a public highway known as Bowling Green Road (the road) in a westerly direction to the farmhouse, along the eastern half of the southern boundary of Manor Farm. Most of the northern boundary of the disputed land abuts the southern end of the drive, from which it is separated by a hedge, but the disputed land also extends in a westerly direction beyond the immediate south of the farmhouse and the farm buildings. The eastern boundary of the disputed land abuts the road, from which it is separated by a hedge that is just within the eastern boundary of the disputed land. Most of the southern boundary of the disputed land is bounded by a public footpath. The western boundary of the disputed land adjoins other land in separate ownership.
The disputed land consists of four fields. The largest, Drive Field, roughly constitutes the eastern half of the disputed land, and is bounded by the road to the east and the drive to the north. The smallest field, which is at the opposite, western, end of the disputed land, and whose northern boundary is close to the farmhouse and farm buildings, is Hill Field. The northern half of the remainder of the disputed land consists of a field known as the Paddocks, which is separated from the remaining field, Wallis Field, by a land drain.
The hedge along the eastern boundary of the disputed land (which is also the eastern boundary of the Drive Field), which abuts the road, has always included a gate (the road gate); it also has, and apparently always has had, one or two gaps, which are filled by post-and barbed-wire fencing. The hedge along the northern boundary of the disputed land (ie along the northern boundary of the Drive Field and the Paddocks) has no gaps; it has always had three gates (the Drive gates). There is, and has always been, a fourth gate (the Hill gate) onto the disputed land on its northern boundary; this gate is at the western end onto Hill Field. It leads directly from that field into an open area forming part of the curtilage of the farmhouse and farm buildings. There is a public footpath going south through Manor Farm and the farm buildings; it meets the northern boundary of Hill Field next to the Hill gate. The footpath divides at this point: one fork goes west just to the north of the Drive Field, within Manor Farm, and the other fork, accessed by means of a stile next to the Hill gate, goes through Hill Field.
From the time that they acquired Manor Farm, Dr and Mrs Holloway farmed it, and they were granted successive annual grazing licences of the disputed land by the first claimant. In 1980 Dr and Mrs Holloway sold Manor Farm to a Mr and Mrs Snook, and, in October 1980, the first claimant granted a grazing licence to the disputed land to Mr and Mrs Snook, and that grazing licence was renewed in 1981.
In 1982 Mr and Mrs Snook decided to sell Manor Farm, and it was purchased at auction by Mr John Graham and his wife with the purpose of providing a farm and a home for their son Michael. Completion of this sale occurred on 29 September 1982, the auction having taken place some months earlier. John Graham, his wife and Michael Graham were registered in Her Majesty’s Land Registry (the registry) as the proprietors of Manor Farm shortly after they completed their purchase. From then on, until his death in 1998, the farming activities were the day to day responsibility of Michael Graham. However, the farming was initially carried out through the medium of a family partnership, whose partners included John Graham and Michael Graham.
John Graham had been (and I believe still is) a successful farmer in the area. He said in his witness statement that he “had had [his] eye on Henwick Manor for about ten years prior to our buying it”. I accept that. I also consider that, before Manor Farm came on the market in 1982, John Graham had been aware that the disputed land was no longer part of Manor Farm and, as he put it in his evidence “had [been] sold… to Pye for hope value”. I am also satisfied that, at the time the Grahams acquired Manor Farm, they were aware that the disputed land had been, indeed was, farmed together with Manor Farm.
That state of affairs continued after the Grahams acquired Manor Farm. It seems that John Graham instructed Mr Timothy Evans, a chartered surveyor who was already acting for the first claimant, to prepare an ingoing valuation on Manor Farm. I think it likely that John Graham asked Mr Evans if he would approach the first claimant with a view to seeing if the Grahams could farm the disputed land. Mr Evans accordingly contacted the first claimant, and was told by Mr Douglas Foster, an employee of Pye Holdings, that the Grahams could be granted a grazing licence of the disputed land for 1983, and that, in the meantime, they would be permitted to occupy the disputed land on the basis that they would clean out a ditch and carry out any necessary hedge trimming and fence strengthening on the boundaries. In due course, on 1 February 1983, the first claimant granted John Graham a written grazing licence (the 1983 licence) of the disputed land until 31 December 1983 for £2,000. The use of the disputed land was limited to the purpose “of grazing or mowing”, and John Graham was obliged to restrict the use of the disputed land to the grazing of sheep, cattle and horses. He was also obliged to keep the disputed land free of weeds, the gates, fences and ditches in good order, and to use the land “in a good and husband like manner”.
Shortly after the grant of the 1983 licence, the Grahams took the view that Drive Field needed resowing, and terms were agreed during 1983 whereby the Grahams would resow Drive Field and would be paid £650 by the first claimant. This arrangement was duly implemented during 1983.
On 30 December 1983 Mr Evans wrote to Mr Foster suggesting that John Graham be granted a fresh grazing licence for 1984. Mr Foster acknowledged that letter in a telephone call on 5 January 1984, when he told Mr Evans that the first claimant was anticipating seeking planning permission for the development of some or all of the disputed land. On 9 January 1984 Mr Foster wrote to Mr Evans:
I am now advised quite emphatically that it would be sensible for the Company to have this land in hand at the time of the planning application and the almost certain planning appeal. In the circumstances no doubt you will advise Mr Graham that the Company do not propose to grant the new grazing licence for the 1984 season.
In a telephone conversation the following day, Mr Foster indicated to Mr Evans that the first claimant might none the less permit the Grahams to take a cut of hay from the disputed land. Mr Evans recorded his understanding of the situation in a note of 17 January 1984, when he summarised Mr Foster’s letter of 9 January, and wrote that he had “advised Mr Graham of the situation”. It is clear from his note that Mr Evans did not understand why “a grazing licensee’s occupation would make any difference to the outcome” of any planning application, and it appears that he made this clear to Mr Foster as well. In a letter of the same day to Mr Foster, he said that he could “see no reason why later in the season Mr Graham should not be allowed to take a cut of hay on this land”. There does not appear to have been any answer to this letter, and Mr Evans repeated the request some three months later. This request resulted in an agreement whereby the first claimant agreed to sell to John Graham “the standing crop of grass for one hay cut only for the sum of £1,100” over the disputed land (as recorded in a letter from Mr Evans to John Graham on 19 June 1984). It is clear that Michael Graham organised a cut on the disputed land thereafter, but there is some doubt whether it was of hay or silage. The evidence suggests that the cut was effected in the summer, and the £1,100 was paid some time in November 1984.
On 17 December 1984, pursuant to an oral request from John or Michael Graham, Mr Evans wrote to Mr Foster asking about the projected planning application, and also inquiring whether the Grahams could take another cut of hay “or better still have a grazing licence” in 1985. There was no answer to this letter from the first claimant. Nor was there any answer to another letter to Mr Foster on 30 May 1985, where Mr Evans reiterated his request on behalf of (and apparently pursuant to an oral request from) John Graham to take a cut of hay off the disputed
According to the draft witness statement of Michael Graham, he harrowed, rolled and spread dung on the disputed land in February and March 1984, in the hope of being granted a further licence to graze it, notwithstanding the first claimant’s refusal in January. He also said in his draft witness statement that he had turned cattle onto the disputed land in about March 1984, on the basis that it was his “intention to carry on using the land for grazing until… requested not to”.
So far as the actual use of the disputed land is concerned, Michael Graham, in his draft statement, said that in each year 1984 to 1993 he turned cattle out onto the disputed land around February, and left them to graze on the land until about November. He also said that he spread dung on the disputed land two or three times during 1984-1985. He also said that he harrowed and rolled the disputed land around February/March in 1985, and that he fertilised the disputed land in Easter 1985. He said that he maintained the same use and management of the whole of the disputed land until 1994, when the use of Drive Field changed to arable, but the use and management of the remainder continued as before. He also said that he sowed the disputed land in 1988 and (possibly) 1993, and that he limed it in 1985.
John Graham said in his evidence that the Grahams “never vacated the disputed land” because they were not asked to do so, and they “just kept farming all year round”. In addition to the grazing of cattle between 1984 and 1994, as described by Michael Graham, he said that there was a shed on the north of the Paddocks in which they kept some dry cattle and yearlings throughout the year. Further, he said that the disputed land was farmed together with Manor Farm, effectively as a single unit. He said that, until 1994 (when Drive Field was put to arable use), the whole of the disputed land was used as pasture, whereas Manor Farm was partly pasture and partly arable.
I accept this evidence as being substantially accurate, although it is based upon a draft statement of Michael Graham prepared in anticipation of this dispute, and upon the oral evidence of John Graham, who appeared, in some respects, to be a rather evasive and confused witness. There is nothing to contradict the general effect of this evidence, and it does not seem to me to be in any way inherently unlikely. Additionally, it is supported in a number of respects by independent witnesses, whom I thought to be reliable. Thus, Mr Simon Conington, who helped Michael Graham work Manor Farm and the disputed land, albeit on an intermittent basis, between 1983 and 1989, said that the disputed land had, since 1982, predominantly been used as a permanent pasture, and that he recalled sowing grass seed during the 1980s on Drive Field and the Paddocks. He also said that the disputed land was harrowed, rolled and fertilised around Easter in each year 1985 to 1989. He estimated that, save during the midwinter months, there would be between 80 and 140 cattle grazing on the disputed land. Mrs Hillary Harmsworth, who has lived in a house on the east side of the road immediately overlooking Drive Field since before 1980, said that the disputed land had been “in consistent use”, and that she could not recall any time when it was not farmed. She also said that, until recently, cows had grazed in Drive Field, and produced photographs showing this, although she was unable to date them precisely. Mrs Angela Vass, who has lived in another house on the east side of the road for 26 years, said that “the fields opposite have always been farmed”. Caroline Graham (an interested party), who had known Michael Graham and Manor Farm since 1983, also said that the disputed land was farmed by Michael Graham consistently from 1983.
I turn to the boundaries of, and means of access to, the disputed land. It seems clear that in 1983, 1984 and 1985 Michael Graham employed Mr Graham Bowsher to cut the hedges abutting Manor Farm and the disputed land. So far as the disputed land was concerned, those hedges were (subject to one or two small exceptions on other boundaries) along the northern boundary, abutting the drive, and along the eastern boundary, abutting the road. There is no direct evidence as to who, if anybody, carried out hedging work between 1985 and 1989, but from 1990 onwards Mr Christopher Webber was employed by Michael Graham to carry out this work each year. Mr Bowsher said that in about February 1984, he carried out work to the ditch in the disputed land between the Paddocks and Hill Field. According to his draft witness statement, Michael Graham instructed another agricultural contractor to carry out other ditching work on the disputed land in autumn 1984; he also says that, a little later, he employed a contractor to do some liming on the land in early 1985. There is no reason to doubt that evidence. In my judgment, the hedges on the northern and eastern boundaries of the disputed land were trimmed every year from 1983 by someone employed and paid for that purpose by Michael Graham, although there is no direct evidence as to the carrying out of such work in the years 1985 to 1989, I think it likely that someone was employed by Michael Graham for this purpose, and the records have been lost. It is clear that from 1984 the fencing round the boundary of the disputed land was maintained by the Grahams, as were the ditches in the disputed land.
Various witnesses also confirmed that the disputed land appeared to them to be part of Manor Farm, in terms of the way in which it was used. Caroline Graham said she only learnt that it was not owned by the Grahams when Michael Graham told her after they were married in 1987. She also said that they maintained the disputed land “to the same high standard as the rest of Henwick Farm”. Mr Bowsher said that Michael Graham “treated the [disputed] land as his”. Mr Webber said the same, and also said that he believed that Michael Graham owned the disputed land.
The main, indeed almost exclusive, means of access to the disputed land used by Michael Graham was the Hill gate; this was obviously the most convenient, because it was close to the farmhouse and the farm buildings. Although there were three gates from the drive to the disputed land, the evidence indicates that these were never used by the Grahams. The road gate was very rarely used by the Grahams. It was kept locked with a padlock. There was no direct evidence as to when the padlock was first fixed to the road gate, and I have come to the conclusion that it was fixed at some time prior to the end of 1983, and that, in particular, it was not fixed by the Grahams. First, Mrs Harmsworth said that the lock had been in place as long as she could remember; second, given that the disputed land has been used since before 1980 by the person farming Manor Farm, it seems likely that little, if any, use would have been made of the road gate, and that it would have been sensible to keep it secure; third, if the Grahams had placed the padlock on the road gate, one might have expected them to remember this. The only evidence as to any keys to this lock was given by Caroline Graham, who said that the key had always been kept in the kitchen of the farmhouse, and therefore had been under the control of the Grahams. I accept that evidence; it is inherently likely and was not contradicted.
During the early part of the 1990s there was little change in the way in which the disputed land was used. With effect from 1 April 1992, Michael Graham determined the partnership with his father and started farming in partnership with his wife, and they became registered as proprietors of Manor Farm at the Registry on 14 October 1997. During the mid-1990s, Drive Field was put to arable use, but the remainder of the disputed land continued to be used and maintained as before. According to the draft statement of Michael Graham, and the evidence of John Graham and Caroline Graham, Drive Field was put to arable use with effect from 1994. Judging from records kept by
During the 1980s and early 1990s, although it is not suggested that the claimants did anything physically on or to the disputed land, they were not wholly inactive in relation to it. On 18 July 1985 the second claimant, JA Pye (Oxford) Land Ltd, was formed as a wholly-owned subsidiary of the first claimant, and, on 7 April the following year, the first claimant transferred the disputed land to the second claimant (subject to an option to repurchase). The disputed land is registered under two separate titles at the registry, and on 9 July 1986 the second claimant should have been registered as the proprietor of both parts of the disputed land, but, due to an oversight at the registry, the first claimant was registered as proprietor of one part, and the second claimant of the other part. The claimants contend that the second claimant should be regarded as the proprietor of both titles, and, subject to their claim based upon adverse possession, the defendants do not challenge this. In this judgment, I shall, for the sake of simplicity, treat the disputed land, for the remainder of this judgment, as registered at the registry in a single title in the name of both claimants .
In 1985 and 1986 the claimants retained planning consultants, who made representations in relation to the use and development of the disputed land in connection with the West Berkshire structure plan, no doubt to maximise the prospects of getting planning permission for its development. Meanwhile, the claimants were in negotiation with a company called Trencherwood New Homes (Central) Ltd (Trencherwood) in connection with the possible construction of the Thatcham relief road (the relief road). On 24 February 1989 the claimants granted Trencherwood an option to acquire a substantial strip of the Drive Field (running north-south, dividing the Drive Field in two). Trencherwood exercised the option, and, on 12 April 1994, this strip was transferred by the claimants to Trencherwood. The relief road was completed in 1998 and, as Drive Field was thereby divided, another access was inserted from the drive to that field (although nothing hangs on that). I should also add that Mr Pye, a patently honest witness, said that, after a meeting with a director of Trencherwood in 1993, he visited the disputed land to inspect it; I understood that he viewed it from the road and from the drive, but did not actually go onto the land.
In December 1996 Babtie Group Ltd (Babtie), acting on behalf of the Berkshire County Council, contacted the claimants to obtain their agreement to enter onto the disputed land to carry out a survey “as part of an assessment of the archaeology which may underline the route of the proposed road”, which the claimants confirmed giving to Babtie on 18 December. The following month, the claimants wrote to Babtie confirming agreement that it could carry out trial trenching on the disputed land. There then followed discussions between Babtie and representatives of the Grahams, who were concerned that Babtie’s work might cause damage to their interests.
On 11 June 1997 Michael Graham registered cautions (the cautions) at the registry against the claimants’ title on the basis (according to his declaration) that he had obtained title to the disputed land by adverse possession. On 11 August 1997 the claimants’ solicitors wrote to the registry, acknowledging receipt of notification of the cautions and stating that the letter was “an application to warn off the cautions”; they wrote to the Grahams’ solicitors on the same day giving them notice of the warning off. There then followed negotiations between the respective solicitors as to the appropriate procedure. Following those discussions, the claimants’ solicitors wrote to the registry on 29 October 1997 stating that the parties had agreed that the chief land registrar should determine the dispute, and setting out proposed directions. The registry replied on 19 November 1997 rejecting the proposed directions and indicating that statutory declarations should be made on behalf of Michael Graham in the normal way. In early February 1998, Michael Graham agreed to release the cautions in relation to the land needed for the relief road, and, shortly thereafter, his draft statement was prepared. On 19 February 1998 Michael Graham was tragically killed in a shooting accident.
Possibly out of consideration for the Graham family, the claimants held off starting any proceedings until 30 April 1998, when they issued an originating summons seeking cancellation of the cautions, an inquiry as to damages, and further or other relief. A week or so thereafter, further cautions were registered on behalf of Caroline Graham. On 21 September 1998 letters of administration in respect of the estate of Michael Graham were granted to the defendants: his widow, Caroline Graham and her father, Charles Denton. Subsequently, on 20 January 1999, the claimants issued further proceedings seeking possession of the disputed land. Both sets of proceedings, namely the originating summons seeking cancellation of the cautions and the action for possession, are now before the court.
Issues and the law
Issues
As I mentioned at the beginning of this judgment, the central issue is whether the defendants have obtained title to the disputed land by adverse possession. In that connection, to put it broadly, in order to establish that he has obtained title to land by adverse possession, an occupier (the squatter) must show that, for at least 12 years, he has been in possession of the land adversely to the person who would otherwise be the proprietor entitled to possession (the owner). In the present case, it seems to me that the evidence and arguments give rise to three issues, albeit that the first two issues are, to an extent, interrelated. Those three issues are:
1. Have the Grahams enjoyed adverse possession of the disputed land for any period between 1 January 1984 and 20 January 1999? If so:
2. When did the period of adverse possession begin?
3. When did the period of adverse possession end?
The earliest date from which any adverse possession could run is 1 January 1984, as Mr Kim Lewison QC (who appears with Mr Martin Dray for the defendants) accepts, because, until then, the Grahams’ occupation of the disputed land must, on any view, have been pursuant to a grazing licence. 20 January 1999 is the latest day upon which any adverse possession could end, because that was the date upon which the claimants’ action for possession was issued.
Limitation Act 1980 (the 1980 Act)
Section 15(1) of the 1980 Act (and references hereafter to sections are to sections of that Act) states:
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
Section 38, the interpretation section, contains the following:
unless the context otherwise requires ––
“action” includes any proceeding in a court of law, including an ecclesiastical court;
Section 15 is concerned with barring actions, but its effect is taken further by section 17, which provides that, subject to certain exceptions:
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.
Section 15(6) states that Part 1 of Schedule 1 to the 1980 Act (the Schedule) “contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned”. The Schedule is headed “Accrual of Rights of Action to Recover Land”, and para 1 provides:
Where a person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
Paras 2 to 7 of the Schedule deal with specific cases, namely recovery of land belonging to a deceased person (para 2), recovery of land by a person to whom it has been “assured otherwise than by will” (para 3), recovery of land where the estate was originally in reversion or remainder (para 4), recovery of land where the person in occupation originally held under an oral tenancy (para 5), recovery of land let at a low rent where rent has been paid to another (para 6) and recovery of land pursuant to a forfeiture (para 7).
Para 8(1) of the Schedule is in these terms:
No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
I should also refer to para 8(4) of the Schedule, which provides as follows:
For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.
The law relating to adverse possession has been considered in a number of fairly recent cases, of which perhaps the two most important are the decision of Slade J in Powell v McFarlane (1977) 38 P&CR 452 and Buckinghamshire County Council v Moran [1990] Ch 623. As Slade LJ explained in the latter case at p636C, a person seeking to establish title to land by adverse possession must show that each of the following three requirements was satisfied for a period of at least 12 years:
1. He had “factual possession” of the land;
2. He had “the requisite intention to possess (animus possidendi)” the land;
3. His possession of the land “has been ‘adverse’ within the meaning of the Act.”
Factual possession
In relation to the first component, factual possession, Slade J said this in Powell at pp470-471:
It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly… The question what acts 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 has 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.
(The seventh word of this quotation in the report is “conclusive”, but I consider, and counsel are agreed, that “exclusive” is what Slade J must have meant).
Animus possidendi
So far as the second component, animus possidendi, is concerned, Slade J said this in Powell at pp471-472:
What is really meant, in my judgment, is that the animus possidendi involves intention, in one’s own name and on one’s own behalf, to
A number of points relating to animus possidendi discussed in the cases are of relevance in the present dispute. First, what is it that the squatter needs to intend? Two observations in Powell “might be read as suggesting that an intention to own the land is required”, to quote from Slade LJ in Moran at p643B. The observations included references to an “intention to appropriate the land as his own” and “no [intention] of establishing a permanent dominion over [the land]” (emphasis added) in Powell at pp478 and 479 respectively. As Mr Jonathan Gaunt QC (who appears with Mr Jonathan Small for the claimants) points out, Nourse LJ said in Moran at p646H that the judgment in Powell “accurately stated the law in all material respects” (and Butler-Sloss LJ agreed with him at p647C. However, I consider that the specific consideration and observations of Slade LJ (with whom Butler-Sloss LJ also agreed) on this point in the same case represent the law. At p643E, he said:
I agree with [Hoffmann J at first instance]… 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.
The second question that arises in relation to the question of animus possidendi is the weight to be given to the intention of the owner with regard to the land. In Leigh v Jack (1879) 5 ExD 264 at p273, Bramwell LJ said:
in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes.
If that observation represents the law, then it would enable the claimants in the present case to mount a formidable argument to the effect that there can be no adverse possession because they retained the disputed land with a view to developing it at some future time when planning permission could be obtained, and that the Grahams’ use was not inconsistent with that. However, I am satisfied that that observation is not good law: it was specifically disapproved by the Court of Appeal in Moran (see per Slade LJ at p639 and per Nourse LJ at p645F).
A variant of the approach of Bramwell LJ is to be found in the judgment of Lord Denning MR in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex [1975] QB 94 at p103D, where he said:
When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose… The reason is not because the user does not amount to actual possession. The line between acts of user and acts of possession is too fine for words. The reason behind the decisions is because it does not lie in that other person’s mouth to assert that he used the land of his own wrong as a trespasser. Rather his user is to be ascribed to the licence or the permission of the true owner.
Not only has this doctrine, sometimes called “the implied licence theory”, been expressly reversed by statute, namely para 8(4): see per Slade LJ in Moran at p637. It also appears to me, with all due respect, to be contrary to principle. As was said by Nourse LJ in Moran at p644D:
The essential difference between prescription and limitation is that in the former case title can be acquired only by possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong
(and see also what he said at p646G).
The fact that the doctrines propounded in Leigh and Wallis’s Cayton are no longer good law does not mean that the intention of the owner with regard to the land is irrelevant. In Moran, Slade LJ said at pp639H-640D:
If in any given case the land in dispute is unbuilt land and the squatter is aware that the owner, while having no present use for it, has a purpose in mind for its use in the future, the court is likely to require very clear evidence before it can be satisfied that the squatter who claims a possessory title has not only established factual possession of the land, but also the requisite intention to exclude the world at large, including the owner with the paper title… In the absence of clear evidence of this nature, the court is likely to infer that the squatter neither had had nor had claimed any intention of asserting a right to the possession of the land.
(Nourse LJ said much the same at p645A-B).
In Hounslow London Borough Council v Minchinton (1997) 74 P&CR 221, Millett LJ said at p229:
the two preconditions for the application of Slade LJ’s observations are (i) that the owner, while having no present use for the land, had a purpose in mind for its use in the future; and (ii) that the squatter was aware of this.
A third question concerns the value of statements, as opposed to actions, on the part of the squatter. I respectfully adopt the views of Slade J in Powell at p476:
Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. For the same reasons, even contemporary declarations made by a person to the effect that he was intending to assert a claim to the land are of little evidential value…, unless they were specifically brought to the attention of the true owner. As Sachs LJ said in Tecbild Ltd v Chamberlain [20 P&CR 633 at 643]. “In general, intent has to be inferred from the acts themselves.”
A fourth question is the effect on the alleged animus possidendi of the fact that the squatter is prepared, or would even be keen, to pay rent or take a tenancy, if requested by the true owner. In Ocean Estates Ltd v Pinder [1969] 2 AC 19, the Privy Council had to consider a case where the squatter had said that if the owner had come along, he “would either have taken a lease or got off the land”. Lord Diplock said at p24E:
Their Lordships do not consider that an admission of this kind, which any candid squatter hoping in due course to acquire a possessory title would be almost bound to make, indicates an absence of the animus possidendi necessary to constitute adverse possession.
This was taken somewhat further by the Court of Appeal in Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124*, where the squatter had previously been a tenant under an oral tenancy. In respect of part of the 12-year period during which he claimed to have enjoyed adverse possession, the squatter said that, if he had been asked, he would have said that he was a tenant. Balcombe LJ (with whom Pill LJ and Sir Roger Parker agreed) held that this did not prevent the squatter from having the necessary animus possidendi. At p126L, he referred to the argument that the squatter “believed himself still to be paying rent”, and said that it was clear “that even if there had been such a belief it would have had no relevance”. As Mr Lewison says, this appears to be consistent with principle: a tenant enjoys possession against the world, including his landlord, and therefore believing that one is a tenant is consistent with having animus possidendi.
* Editor’s note: Also reported at [1995] 28 EG 136
Mr Gaunt, however, suggests that the reasoning in Lodge is inapplicable in the present case, because the squatter in that case had been a tenant under an oral tenancy, and that, therefore, the provisions of para 5 of the Schedule applied, whereas they do not apply in the present case. It appears to me that para 5 is concerned with defining the point from which time begins to run in a case such as that under consideration in Lodge, namely where the squatter previously held the land under an oral tenancy: time runs from the date upon which he last paid the rent. However, this does not mean that the provisions of sections 15 and 17, and of paras 1 and 8 of the Schedule, do not apply in such a case in any different way from the way they apply in the present case.
I should mention the decision of the Court of Appeal in R v Secretary of State for the Environment, ex parte Davies (1991) 61 P&CR 487, where it would seem, from a passage of the judgment of Neill LJ at p496, that the court took the view that the fact the squatter said that she would have been prepared to pay rent prevented her from having the requisite animus possidendi. In my judgment, that case turns on its own special facts. The facts are not entirely clear from the report, but I note the reference to the conclusion being based upon “the context of this correspondence”. If that is not right, then it appears to me that the decision must be per incuriam, at least on this point. Although Powell and Moran were cited, the more centrally relevant Pinder was not. Further, a number of relevant decisions of the Court of Appeal, referred to and relied upon by the Court of Appeal in Lodge, were not cited either.
So far as the principle is concerned, it seems to me that an offer to the owner by the squatter to pay rent or take a tenancy is an acknowledgement of the ability of the owner to require the squatter to vacate the land (at least so long as the 12-year period is still running), but it is not inherently inconsistent with the squatter being in actual possession of the land or with the squatter having the requisite animus possidendi. As was emphasised in Powell and in Moran, the squatter must have the intention of excluding everyone from the land including the owner, but only to the extent that it is lawful for him to do so. The mere recognition of the owner’s ability, if he chooses to exercise it, to reclaim possession is not an acknowledgement that the owner actually has possession. An offer to pay rent can be contrasted with a request to the owner to keep out trespassers, which Knox J described in Pavledes v Ryesbridge Properties Ltd (1989) 58 P&CR 459 at p481 as involving the squatter “actively request[ing the owner] to shoulder the responsibilities that possession has”. In other words, requesting the owner to keep trespassers out is an acknowledgement that the owner, rather than the squatter, is in possession, whereas offering to pay the rent is merely offering to change the basis upon which the squatter retains possession.
Adverse possession
This third requirement a squatter has to establish has been the subject of some debate in the present case. For the defendants, Mr Lewison contends that the word “adverse” merely connotes that the squatter’s possession is not enjoyed under some sort of right granted directly or indirectly by the owner. In this connection, Mr Lewison relies upon what was said by Slade LJ in Moran at pp636D to 637F. In that passage, having quoted from para 8(1), which I have set out above, Slade LJ went on to say at p636G:
Possession is never “adverse” within the meaning of the Act… if it is enjoyed under a lawful title. If, therefore, a person occupied or used this land by licence of the owner… and his licence has not been duly determined, he cannot be treated as having been in “adverse possession” as against the owner with the paper title.
He then turned to the “implied licence theory” developed in Wallis’s Cayton, and held that, while he considered that the theory faced problems in any event, it was effectively abrogated by para 8(4) of the Schedule.
For the claimants, Mr Gaunt argues that the concept of adverse possession goes further than this, particularly in light of the requirement in para 1 of the Schedule that time cannot begin to run in favour of the squatter until the owner has “been dispossessed or discontinued his possession”. As Nourse LJ said in Moran at p645B:
I think its very doubtful whether the distinction between dispossession and a discontinuance of possession can ever have decisive consequences, a consideration which is perhaps confirmed by the confusion between them which is found in some of the decided cases.
Mr Gaunt is probably right to say that discontinuance of possession effectively means abandonment of possession, and that, on the facts of this case, it cannot be said that the claimants have abandoned possession (because they retained planning consultants who made representations in connection with the structure plan, they granted the option to Trencherwood, they sold the relief road land to Trencherwood, they gave permission for the disputed land to be inspected for archaeological
In my judgment, this argument is either incorrect or it takes matters no further. It seems to me that Mr Lewison is right in his contention that the requirement that the squatter must show that his possession was “adverse” merely requires him to show that his possession was not pursuant to a licence, a tenancy, or some other grant (whether express or implied) from the owner. That conclusion appears to be consistent with the way in which the 1980 Act is expressed, and also with the observations of Slade LJ upon which Mr Lewison relies in this connection. Despite Mr Gaunt’s argument to the contrary, I do not see anything in the observations of Nourse LJ in Moran at pp644G-645C that is inconsistent with this conclusion. When Nourse LJ referred to “the squatter perform[ing] sufficient acts and [having] a sufficient intention to constitute adverse possession”, it seems to me that he was expressing himself in a composite way. He was indicating that it was necessary for the squatter to show that, for 12 years, he had enjoyed factual possession, and he had the necessary intention to possess, and that, for those 12 years, the possession was adverse. There is nothing in the judgment of Nourse LJ to suggest that he intended to go any further than Slade LJ, and that is supported by the fact that he approved in strong terms the approach of Slade J in Powell, and also because, at p647C, Butler-Sloss LJ agreed with both judgments, which would scarcely be possible if the judgments were inconsistent.
Further, it seems to me that Mr Gaunt’s interpretation appears to add nothing to what a squatter has to establish. In order to succeed, the squatter must establish at least 12 years’ possession of the land in question; as was emphasised in Powell at p470, possession in this context “must be a single and exclusive possession”, and it therefore follows that, if the squatter has possession, the owner does not. It also follows that with effect from the moment from which the squatter enjoys possession, the owner ceases to enjoy it. I consider, therefore, that the effect of paras 1 and 8 of the Schedule is that, if the squatter initially has possession by virtue of a licence from the owner, then, while he, and not the owner, enjoys possession, the possession is not “adverse”, at least so long as a licence runs; however, once the licence expires, if the squatter remains in occupation, his possession thereupon may well become, and is certainly capable of being, “adverse”.
Another way of looking at Mr Gaunt’s argument is that it seems to suggest that, in order for possession to be adverse, there must be an intention to possess, which includes an intention to exclude the owner. That contention is right, as explained by Slade J in Powell at pp471-472, in a passage that I have quoted above. However, it seems to me that the argument takes matters no further, because it raises a condition that has to be satisfied by the squatter in relation to the requirement of animus possidendi in any event.
I mentioned above that this case raised three issues, albeit that the first and second issues were interrelated. I propose to consider these issues in a different order and in a slightly different form. First, I will address the question of when adverse possession could first begin; second, I will deal with the issue of when any period of adverse possession would have ended; and finally, I will turn to the question of whether, and, if so, for how long, the Grahams have enjoyed adverse possession as against the claimants.
When could time begin to run?
Mr Gaunt’s contention on behalf of the claimants is that time could not have begun to run in the Grahams’ favour until well after 30 May 1985, when Mr Evans, having been presumably asked to do so by John Graham, reiterated the Grahams’ request to the claimants to take a cut of hay from the disputed land. The contention on behalf of the claimants is that, in these circumstances, time could certainly not begin to run from before 30 May 1985, and that, in fact, it is unlikely to have started running until well after that date, given that the Grahams were presumably expecting, or at least hoping for, some sort of licence from the claimants during 1985 and thereafter.
In my judgment, that is not a good point. As already discussed, the fact that a squatter would be prepared, or even keen, to take from the owner a licence of the land that he occupies does not, on the authorities, prevent the squatter from being in possession, indeed in adverse possession, of the land. In particular, the mere fact that the squatter would be prepared to take a licence or tenancy from the owner, and indeed to pay him for that benefit, does not prevent the squatter having animus possidendi. In those circumstances, as a matter of logic, I find it difficult to see how it could be said that the mere fact that the squatter communicates his preparedness, or indeed his wish, to take a licence or tenancy of the land in question can prevent time running in his favour. However, I accept that the communication of any such offer or desire may, at least in some circumstances, assist the owner’s argument that, at least at the time of the communication, the squatter did not have the necessary animus possidendi, on the basis that the offer was indicative of a conditional future intention to possess the land, ie an intention that was only to be implemented in the event of a licence or tenancy being granted.
I believe that this conclusion is supported by consideration of a provision in the 1980 Act to which I have not so far referred, namely section 29, which is headed “Fresh Accrual of Action on Acknowledgement or Part Payment”. Section 29(2) provides:
If the person in possession of the land… in question acknowledges the title of the person to whom the right of action has accrued ––
(a) the right shall be treated as having accrued on and not before the date of the acknowledgement…
Section 30(1) provides that, to be effective for this purpose, “an acknowledgement must be in writing and signed by the person making it [or his agent]”, and that such acknowledgement must be to the owner or his agent. It appears that a written offer by the squatter to purchase the land from the owner may be a sufficient acknowledgement: see Edginton v Clark [1964] 1 QB 367. From this it would seem to me to follow that a written offer by the squatter to take a tenancy or a licence may be sufficient to stop time running. That suggests that an oral offer to take a tenancy or a licence would be insufficient to stop time running, which would appear to me to indicate that it is unlikely that an oral request by the squatter to take a tenancy or licence of the land from the owner is sufficient of itself to prevent time running for a different reason, namely absence of animus possidendi. Of course, as was pointed out in Pavledes at p480, the question of whether there is sufficient animus possidendi “is quite a separate question from [whether] there is an acknowledgement such as to start time running afresh”. However, it does seem to me that it would be peculiar if an oral offer to the owner by the squatter to pay rent, on its own and without more, were sufficient to stop time running, if (as appears from the authorities) a preparedness or keenness to pay rent on the part of the squatter is not enough to stop time running in his favour, and (as is clear from sections 29 and 30) an oral, as opposed to a written, recognition of the owner’s title by the squatter constitutes an insufficient acknowledgement to stop time running in the squatter’s favour.
Mr Gaunt attractively submits that, by making an offer or request to the owner to take a tenancy or a licence, the squatter “shows an intention to submit to the owner’s right to possession” and that this therefore negatives an intention to possess. It seems to me that, in light of the way in which the concepts of possession and intention to possess have been interpreted in the cases to which I have been referred, that argument must be rejected. A squatter who is still “clocking up” his 12 years, and who knows the law, will appreciate that his ability to exclude the owner from the land in question will be limited, in the sense that the owner has the right to come onto the land, and indeed to evict the squatter. In my judgment, that is a factor that one should bear in mind when considering the dictum of Slade J in Powell at pp471-472, and approved in Moran, that the squatter has to intend to exclude everyone, including the owner “so far as is reasonably practicable and so far as the process of the law will allow”. Given that the
Accordingly, I consider that, although not the subject of any decided case, the mere fact that a squatter orally communicates his preparedness, indeed desire, to take a licence of that land from the owner does not, of itself, prevent time running in the squatter’s favour. However, it also appears to me that the fact that a squatter asks the owner whether he can take a licence to occupy the land in question may be a factor that, at least in some circumstances, could be invoked by the owner to assist his contention that the squatter did not have the requisite animus possidendi at and around the time the request was made. While the existence of such a request might not be of much value on its own in this connection, its effectiveness might be strengthened by the terms in which it was expressed and/or other surrounding circumstances.
This conclusion does not necessarily mean, however, that time could have started running from after 31 December 1983, when the 1983 licence expired. It is still necessary to consider the effect of the grant by the claimants, through Mr Evans, to John Graham, of the right to take a cut of hay. For the defendants, it is contended that the effect of this arrangement was irrelevant, because the fact that the Grahams were granted the right to take a cut of hay from the disputed land in the summer of 1984 does not mean that their occupation of that land for a rather different purpose, namely grazing, could not amount to adverse possession. It seems to me that this argument raises this question: if the owner allows a person onto land for a specific purpose, and the person then carries on a different and unauthorised activity on the land, can the person rely on the unauthorised activity to justify the contention that he is enjoying adverse possession?
In my judgment, the answer to that question must turn on the facts of a particular case. If a person is allowed onto the land for the sole purpose of grazing cows, and he uses the land for the purpose of grazing sheep, no question of his enjoying adverse possession could arise during the period of the licence. He would be in breach of the terms of the licence, but one could not sensibly say that he was enjoying adverse possession during its currency. On the other hand, if the owner permitted a neighbour to come onto his land whenever sheep escaped from the neighbour’s land, the use of the owner’s land by the neighbour for the purpose of arable farming for a period of 12 years could (depending on all the other relevant facts) give rise to a claim for adverse possession, even though the very limited licence granted by the owner may have been current during the whole of the 12-year period.
There has been no detailed evidence as to the period and degree of occupation of the disputed land that was, or would have been, involved in the taking of a hay or silage cut in 1984. On the basis of the limited evidence, I expect that it would have involved the Grahams in being in “rolling” occupation of the disputed land (or the part from which the hay or silage was taken) for a period of between one and two weeks. It would also have involved the Grahams in bringing machinery onto the disputed land and, indeed, removing grass or hay that, as a matter of law, would have at least arguably formed part of the disputed land: see Megarry & Wade The Law of Real Property (6th ed) at pp655-656. Furthermore, although of only indirect relevance, it is worth remembering what Slade J said in Powell at p472:
An owner… will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This… is why the slightest acts done by or on behalf of an owner in possession will be found to be negative discontinuance of possession.
Bearing in mind these factors, I have reached the conclusion, albeit on balance, that, assuming that time would otherwise have been running in favour of the Grahams from 1 January 1984, the running of time was interrupted by their accepting and exercising the right to take a cut of hay from the disputed land. In these circumstances, it seems to me that, instead of being able to contend that time started running in their favour with effect from 1 January 1984, the Grahams can only contend that time started running in their favour with effect from the time that they completed the cutting of silage or hay from the disputed land. I think that the relevant date from which time could run would be the date on which the licence to take the cut of hay determined; as I see it, that would have been the date upon which it was effectively exhausted, in the sense that the Grahams completed cutting the silage or hay on the disputed land. The fact that the Grahams may well have taken a cut of silage, rather than a cut of hay, in no way alters this conclusion: it appears to me that the position is analogous to that of a grazing licensee who uses the land for sheep when, in fact, it is contractually limited to use for cows. That time will run from the expiry of the hay-cutting licence, rather than from 1 January 1984 (with an interruption of two weeks or so), appears to me to follow from para 8(2), which provides:
Where a right of action to recover land has accrued and, after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession.
It is not entirely clear when the hay-cutting licence expired; from the evidence, it was clearly some time between the end of June and 20 September 1984. On the basis of the evidence I have heard, I think the correct date to take is 31 August 1984. For the reasons given, that is, in my judgment, the earliest date from which time could begin to run in favour of the defendants.
When would time have stopped running?
Given that section 15(1) refers to an “action… brought… to recover any land”, it would seem, at any rate at first sight, that the date by which time must have stopped running in the present case must have been 20 January 1999, when the claimants brought their action for possession. That is indeed the date upon which time stopped running, according to Mr Lewison’s argument on behalf of the defendants. However, Mr Gaunt contends that the latest date until which time could have continued running was either 11 August 1997, when the claimants applied to the registry to warn off the cautions, or, alternatively, 30 April 1998, the date upon which the claimants issued the originating summons seeking removal of the cautions. Although Mr Lewison accepts that the issue of the originating summons was an “action” within section 15(1), in light of the definition of that expression in section 38 he contends that it is not, and was not, an action “to recover any land”. In relation to the claimants’ application of 11 August 1997 to warn off the cautions, Mr Lewison contends that the application was not an “action”, even within the extended meaning of section 38, and, as with the originating summons, even if it were an action, it was not one “to recover any land”.
Subject to any question of policy, it seems to me that Mr Lewison’s contentions on this point are correct. In Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437, Lord Simon of Glaisdale said at p1446C:
The primary sense of “action” as a term of legal art is the invocation of the jurisdiction of the court by writ, “proceeding” the invocation of the jurisdiction of a court by process other than writ.
While proceedings brought by originating summons would not, therefore, technically be an “action”, it appears to me that the extended definition of that word in section 39 clearly extends to an originating summons. However, I do not think that it would extend to an application to the registry. It is true that the chief land registrar exercises a quasi-judicial function, in the sense that he would entertain submissions from both parties, he can direct a hearing, and he can be expected to observe the rules of natural justice. However, although I accept that the definition of “action” in section 38 is inclusive, it would seem a little odd if it applied to an application to the registry in circumstances where the definition was limited to courts, including the Ecclesiastical Court.
I was referred to two other authorities on the meaning of “action” in the 1980 Act. For the claimants, Mr Gaunt referred to China v Harrow Urban District Council [1954] 1 QB 178, where the divisional court had to consider the meaning of the word “action” in its predecessor, the Limitation Act 1939 (the 1939 Act), which contained the same definition as is found in section 38. Lord Goddard CJ at p185 referred to “the wide words of the definition”, and Sellers J said at p187 that the definition “was obviously intended to enlarge the more normal meaning of action”, and a similar observation was made by Havers J at p190. However, I do not think that those observations assist the claimants’ case. First, they have to be read in the light of the observations of Lord Simon, to which I have referred. Second, China itself was a case where the alleged “action” was an application by the local authority to the magistrates’ court for a distress warrant in respect of unpaid rates. That application was not an “action”, taking that expression as a legal term of art, but, in light of the extended definition, it was held to be an “action” for the purposes of the 1939 Act. Third, the point emphasised by Lord Goddard CJ at p185 was that there was “a proceeding in a court of law”, and Sellers J expressed himself almost identically at p187. If anything, the reasoning in China appears to me to support the contention that an application to the registry is not an action within section 38. That conclusion is also supported, also only mildly, by the decision of the Court of Appeal in WT Lamb & Sons v Rider [1948] 2 KB 331. In that case, while accepting that the definition of “action” in the 1939 Act was wide, the court none the less refused to give it an unnaturally wide meaning: see p338.
It also seems to me that the originating summons, although an “action” for this purpose, was not an action “to recover [the disputed] land”. It was an “action” whose purpose was to remove the cautions against the claimants’ title in relation to the disputed land. In this connection, it is relevant to refer to the nature and effect of a caution. As stated in Megarry & Wade at pp250-251:
It entitles the cautioner to be warned of any proposed dealing with the property, and to be given an opportunity to assert priority for his interest, but it does no more than that… The function of registering a caution has therefore been described as “very largely a purpose of obtaining notice of proposed dealings rather than a purpose of overriding purchasers”.
It is also clear that a caution that relies upon a specific alleged right of the cautioner can be vacated without the underlying right being lost. Thus, as is explained in Megarry & Wade at p256, a caution can be vacated against the will of the cautioner even though the court concludes that it is well arguable that the alleged right upon which it is based is justified (albeit that the caution will then be replaced by an injunction in most cases), and, as is said at p257, a cautioner can withdraw a caution, but that “does not necessarily destroy the interest which it protects”. So, if Michael Graham had simply stood by and let the cautions be vacated in 1998, but had remained in uninterrupted possession of the disputed land, it is hard to see why he would be prevented from alleging he had enjoyed adverse possession since 1984 simply because of the vacation of the cautions.
None the less, it is fair to say that there is considerable force in Mr Gaunt’s argument that, as a matter of common sense, by issuing the originating summons seeking removal of the cautions, and, indeed, by applying to the registry to warn off the cautions, the claimants were making it clear that they were claiming entitlement to possession of the disputed land, and were challenging the Grahams’ claim to have obtained title by adverse possession. Indeed, it can be said that they were formally applying to a tribunal (the registry in the case of the warning-off procedure, and the court in relation to the originating summons) to assert their ownership of the disputed land, and to challenge the contention that the Grahams had obtained title to that land by adverse possession.
To support this argument, Mr Gaunt relies on Walters v Webb LR (1870) 5 Ch App 531. In that case, the lord of the manor had taken possession of the land of a copyholder who subsequently died. The copyholder’s heir applied to the court for an order that the lord admit the copyholder onto the roll. The lord’s defence was that the application was barred by limitation, and the question that had to be considered was whether the application was an action for the recovery of land. Lord Hatherley LC said at p533:
[T]his bill is in effect simply to compel the lord to admit a right of entry in the person who files the bill. The admittance is no doubt necessary if he should choose to proceed an ejectment against third persons, but as regards to the lord… in possession, the bill is an attempt to compel the person in possession of the land to acknowledge that the claimant has a right of entry by admitting him and placing him on the Court rolls. It seems to be trifling to say that this is not a proceeding for the recovery of land.
In the same case, Giffard LJ said at p534:
It is plainly a suit for the recovery of land, for the Plaintiff is calling on the lord to admit his right of entry as being entitled to certain land.
Although it initially appeared to me that this case assisted the claimants’ argument, I have come to the conclusion that it does not take matters any further. As Mr Lewison points out, in order to understand that case, it is necessary to appreciate that, unless and until the heir to a copyholder is admitted to the roll by the lord of the manor, he cannot claim possession of the land, at least as against the lord himself. Accordingly, while the deceased copyholder, who would have been admitted to the roll, would have been able to claim possession against the lord, it was not open to his heir to do so without first seeking the very relief that the plaintiff was seeking in that case. In other words, the plaintiff could not actually claim possession of the land against the lord: the only relief he could claim, and the relief that he was seeking in order to obtain possession against the lord, was to compel his admittance onto the roll by the lord. Mr Gaunt also referred to a decision of the Irish Court of Appeal, Vandeleur v Sloane [1919] IR 116, where the approach in Walters was followed, albeit in slightly different circumstances: see pp128 and 129. Again, it seems to me that the essential point in that case (as is probably clearest from the passage at p129) was that the plaintiff could not actually seek possession (because the land was subject to tenancies that bound him) and therefore the only action he could bring was for recovery of the rent.
In summary, it appears to me that there is an important distinction between the applications to vacate the cautions in the present case (whether in the registry or in the High Court) and the claims raised by the respective plaintiffs in Walters and Vandeleur. There was nothing in the present case to prevent the claimants bringing proceedings in court for the recovery of the disputed land from the Grahams or their predecessors at the time that the claimants applied to the registry or issued their originating summons. In neither of the two cases I have mentioned could the plaintiff have brought an action for possession. In Walters he had to seek the relief claimed before he could bring an action for possession, and it was clear that the purpose of his action was with a view to his obtaining possession of the land immediately thereafter. In Vandeleur, the plaintiff could not actually claim possession of the land, and the relief that he was seeking against the defendant was therefore, in effect, tantamount to seeking possession on the particular facts of the case, at least according to the Irish court. To put the point another way, the application to vacate the cautions was not a necessary prelude to an action for recovery of the disputed land.
In summary, it appears to me that, in light of the extended definition of the word “action”, the natural meaning of section 15(1) is tolerably clear as a matter of ordinary language: it envisages proceedings in a court where the owner seeks (or perhaps specifically raises his right) to recover the land. It does not extend to an application to the registry, which is not a “court”, and it does not cover proceedings, even though in court, where the owner seeks relief that would not, of itself, involve him recovering possession of the land in question, unless he is for some reason, other than the squatter’s claim to have acquired title by adverse possession, prevented from seeking possession of the land.
I appreciate that it can be said that this conclusion involves a rather narrow construction of section 15(1), and that the authorities I have been considering encourage a wider and more generous approach. I can also see force in the argument that, at least where there is any real room
Accordingly, I conclude that, assuming that time was indeed running in favour of the defendants, it only stopped running when the claimants issued their action for possession of the disputed land on 20 January 1999. That, then, brings me to the final and crucial question of whether the Grahams have, in fact, enjoyed adverse possession of the disputed land, and, if so, for what period.
Grahams’ claim for adverse possession
Introduction
In order to decide the question as to whether, and, if so, for how long, the Grahams have enjoyed adverse possession of the disputed land, it is necessary to consider, in turn, the three requirements that they have to satisfy.
Did the Grahams have factual possession?
Ultimately, the question that I have to answer is that postulated by Slade J in Powell at p471, namely whether the Grahams “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”; that test was applied in the first instance by Hoffmann J in Buckinghamshire County Council v Moran (1988) 56 P&CR 372 at p377 and on appeal by Slade LJ at [1990] Ch 623 at p641C-D. I do not find any difficulty with the second part of that test, assuming that it is directed towards some sort of physical dealing with the land. Apart from the Grahams (or their employees or agents), no one else physically did anything on or in relation to the disputed land between 1 January 1984 and some time in December 1996 (at the earliest) when Babtie went onto the disputed land. In this connection, it is somewhat unclear when Babtie went onto the disputed land, and whether it was pursuant to consent by the claimants and/or the Grahams. It also appears likely that work in connection with the construction of the relief road would have begun some time in 1997. However, as I understand his argument, Mr Gaunt does not suggest that either of these events stopped time running in favour of the Grahams, no doubt in light of the unclear nature of the relevant evidence.
In my judgment, it is hard to resist the conclusion that the Grahams did a number of acts that, particularly when taken together, were only consistent with their having treated the disputed land as if they were occupying owners from 1 January 1984 until 20 January 1999. With the exception of the existence of the public footpath over the stile and across the field, they controlled the access to, and egress from, the disputed land, in that, subject to the various gates, the boundary consisted wholly of hedging and fencing, which were stock-proof and were maintained by the Grahams. So far as access was concerned, with the exception of the stile and public footpath, nobody (and this includes the claimants) could get onto the disputed land without breaking through the locked road gate (to which only the Grahams had the key), breaking through or climbing over the hedges and fences, or trespassing on Manor Farm, owned and controlled by the Grahams (ie by going onto the Drive and into the disputed land through one of the three Drive gates). For over three-quarters of each year, the Grahams, and nobody else, used the whole of the disputed land for the only purpose to which it has been put in the past, so far as the evidence shows, namely grazing cattle, and for the remainder of each year they normally used at least part of the disputed land for dry cattle and yearlings. Further, they consistently maintained the land by harrowing, rolling and fertilising it each year, and, at least on one occasion, they sowed it and limed it. They also had ditching work carried out on a number of occasions.
Although a substantial part (it would appear about half) of Manor Farm was put to arable use, much of it was given over to pasture, and there is consistent and credible evidence that shows that the way in which the Grahams used and looked after the pasture within Manor Farm was the same as their use and management of the disputed land. Indeed, as I have mentioned, people who worked for Michael Graham believed that he owned the disputed land, as did one of the two neighbours who gave evidence. When asked in cross-examination by Mr Lewison what an occupying owner of the disputed land might have done, over and above what was done by the Grahams between 1984 and 1997, Mr Evans, an experienced chartered surveyor, was unable to think of anything.
In these circumstances, I am clearly of the view that the Grahams enjoyed factual possession of the disputed land for the period from 1 January 1984 onwards. I have not thought it necessary to take into account the fact that, from 1994, 1995 or 1996, Drive Field was put to arable use. Such use is more redolent of possession than grazing use, but it takes matters little, if any, further in the present case because it only continued for, at the most, five of the required 12 years.
Did the Grahams have the necessary animus possidendi?
When considering whether a squatter has established sufficient animus possidendi, it appears to me that the court will normally have to consider a number of different factors that, when taken together, will lead to a particular conclusion in that particular case. The present proceedings are no exception. To my mind, the following factors fall to be taken into account in the present case. While I do not suggest that they are factors that would always be relevant, or that there would be cases where other factors are not also relevant, it appears to me that the factors discussed below would normally be of assistance in determining whether a squatter has established sufficient animus possidendi.
First, there are the actual activities carried on by the squatter on the land during the period of alleged adverse possession. I have already mentioned these activities more than once: having between 80 and 140 head of cattle grazing on the land nine or 10 months each year; using at least part of the disputed land for dry cattle and yearlings most of the rest of the time; hedging every year maintaining the fences and ditches; harrowing, rolling and fertilising the land every year. As Mr Gaunt said, that is not as strongly helpful to the Grahams as it would have been if they had used the disputed land or part of it for arable purposes for 12 years or more. However, it is, at least on the face of it, plain evidence of beneficial use of the disputed land and responsible maintenance of the disputed land.
Second, there is the nature and history of the land concerned. In this case, the evidence I have heard establishes that the disputed land had been used for grazing cattle for some years before the Grahams used it for that purpose. Accordingly, as at 1 January 1984, when the Grahams’ grazing licence expired, the disputed land was, and would have been considered to be, grazing land. It was therefore laid to grass, and its boundary consisted of fencing or hedging (which was in all cases stock-proof) subject to gates and a stile. As Mr Evans said in his evidence, to which I have referred, it is hard to see what an occupying owner of the disputed land as grazing land would have done over and
Third, there is the question of enclosure and access. Where a squatter has enclosed the land, and remained in occupation thereafter for more than 12 years, that is, at least in exceptional circumstances, very good evidence of animus possidendi: see per Slade LJ in Moran at pp641H-642B. In the present case, as Mr Gaunt points out, the Grahams did not enclose the disputed land. However, although they cannot rely upon enclosure as a factor to support their case, the fact that they did not enclose the land cannot be used against them: as I have said, it was already fully enclosed (subject to gates and a stile). However, it is not irrelevant that, apart from the stile giving access to the public footpath across Hill Field, the only means by which the public could conveniently or properly have gained access to the disputed land would have been through the road gate, which was not only locked, but whose key was at all times in the sole possession of the Grahams. While it is probably true to say that the main purpose of maintaining the boundaries was to ensure that no cattle escaped from the disputed land, maintaining the hedges and fences, and keeping the only gate to a public highway locked, would also have been, and would have been perceived to have been, for the purpose of discouraging others from coming onto the disputed land. Indeed, Caroline Graham said that the road gate was kept padlocked to stop anyone gaining access, and, in particular, to deter children from houses on the road from coming onto the disputed land. (It appears that children were warned off the disputed land from time to time by the Grahams or their employees.) By maintaining the hedging and the fencing, the Grahams were ensuring that the disputed land remained effectively enclosed, and by retaining the key to the locked road gate, they were ensuring that, subject to trespassing onto the Drive or climbing over the barbed-wire fencing or clambering over or pushing through stock-proof hedging, nobody could get to the disputed land without their consent.
Fourth, there is the attitude that the squatter manifests to the land more generally. The Grahams did not merely benefit from the land on a short-term, ad hoc basis. They looked after it and kept it in good heart, by rolling, harrowing and fertilising it, and by maintaining the hedges, fences and ditches. That the Grahams treated, and thought of, the disputed land as one would have expected of an occupying owner seems to me to receive real support from the fact that their treatment of, and attitude to, that land between 1984 onwards (subject to the use of Drive Field for arable purposes from 1994 or shortly thereafter) appears to have been very much the same as their attitude to the parts of Manor Farm that were used for the same purposes, namely grazing. As I have mentioned, this is supported not merely by the evidence given by John and Caroline Graham, but also by people who either worked on the farm or lived close by, a number of whom believed that the Grahams owned the disputed land.
Fifth, there are the circumstances in which the squatter began allegedly adversely possessing the land. Here there were two initial grazing licences (informal from 29 September 1982, and written from 1 February to 31 December 1983); there was also the licence to cut hay in 1984. Where the squatter was a licensee, it might be said that, at least for an initial period, merely by remaining in occupation after the licence expires, especially if he is hoping for a new licence, the squatter will not have sufficient animus possidendi, but that this could eventually change if the occupation continued long enough without a licence. Indeed, in this case Mr Gaunt concentrates on the period 1984 to 1988, accepting that, by sowing the disputed land in that year, the Grahams may well have done something that, taken together with their previous occupation and activities over the previous four years, gave rise to the inference that there was a sufficient animus. Accordingly, he says that, bearing in mind that even as late as May 1985 John Graham was asking for a grazing licence, the proper conclusion is that, at least until the Grahams sowed the disputed land in 1988, their use and activities on and in relation to the disputed land were at least as consistent with the activities of a persistent trespasser as they were with the activities of a squatter with animus possidendi.
The argument that a former licensee or tenant who is negotiating with an apparently willing owner for a new licence or tenancy does not have sufficient animus is not without force. None the less, this is not a case where the owner indicated any sort of willingness to grant a new grazing licence or even where the position was allowed to drift after the 1983 licence expired: there were positive and persistent refusals by the claimants to let the Grahams have a grazing licence use over the disputed land. On 17 January 1984 an emphatic refusal to grant a grazing licence was communicated to the Grahams, and there was never any suggestion of any reconsideration of that decision. Accordingly, as I see it, from the date that John Graham was told of that emphatic refusal, and subject to the effect of the isolated grant of the right to take a cut of hay in 1984, such assistance as the claimants can obtain for their argument from the fact that the Grahams had been grazing licensees of the disputed land appears to me to have been dissipated.
Sixth, there are the intentions of the owner of the land, in so far as the squatter was aware of them. In this connection, Mr Gaunt says that the Grahams appreciated that the claimants were keeping the disputed land for the purpose of redevelopment, and therefore had no use for it until such time as they could obtain planning permission for its development. In those circumstances, he says that “very clear evidence” of intention to possess must be established by the Grahams (per Slade LJ in Moran at p639H). I accept that the Grahams knew that the claimants had no immediate use for the disputed land, and were holding it for the purpose of developing it at some time in the future, when they could obtain planning permission. However, unusually, it does not appear to me that this means that the Grahams must therefore have appreciated that their use and occupation of the disputed land was not inconsistent with the claimants’ intentions. What was communicated in 1984/1985 by the claimants, through Mr Evans, to John Graham is not entirely clear, as the latter could not remember the contents of any conversations, and Mr Evans could not really recall anything beyond his contemporaneous notes and letters. While those notes and letters satisfy me that John Graham was told that the claimants intended to develop the disputed land, and, albeit by implication, that they had no immediate present use for it, it seems to be likely that he was also effectively given to understand two other things. First, he was led to believe that the claimants would fairly shortly be making an application for planning permission to enable them to develop the disputed land; and, second, and perhaps more importantly in the present context, he was led to believe that the claimants did not want the disputed land to be grazed, because they took the view that any agricultural use of the disputed land might damage the prospects of obtaining planning permission. Although it can be said that neither of these points is precisely spelt out in the documentation, I consider that they are likely to be right. If no application for planning permission was to be made for some time, it would seem unlikely that there would have been any serious objection to the grant of a grazing licence. Although it is conceivable that Mr Evans understood that the claimants’ objection was not to the disputed land being grazed, but to the granting of a grazing licence, it seems to me more likely that he understood (and informed John Graham) that the claimants believed that their prospects of obtaining planning permission would be better if the disputed land was not being used for any agricultural purpose at all. This seems to me to be a more sensible interpretation of the contemporaneous documents and of the oral evidence.
In these circumstances, it appears to me that the claimants cannot fairly contend that the continued use and occupation of the disputed land by the Grahams for the purpose of grazing was consistent with the Grahams’ understanding of the use to which the claimants intended to put the disputed land. I am quite prepared to assume that, at some point
Seventh, there are the expressed and, indeed, unexpressed, intentions and understanding of the squatter, although, in so far as they are invoked to assist the squatter, they are of very limited assistance: see the observations in Powell at p476. Until May 1985, the Grahams had been asking intermittently for a grazing licence, but they had received a firm refusal in mid-January 1984, and there was no suggestion in the evidence of any possible change of heart (save to the extent of the grant of the right to cut hay in summer 1984). As Michael Graham said in his draft witness statement, he hoped a further grazing licence “would be forthcoming” in 1984, and, after he received no replies to his 1985 inquiries through Mr Evans, (ie the end of May 1985), he “gave up trying” and wanted to see if the claimants contacted him. His thoughts, hopes and communications (via Mr Evans) with the claimants in 1984 to 1985 were not, for the reasons discussed earlier, inconsistent with his having animus possidendi, at least from the end of August 1984. From May 1985 at the latest, his attitude was simply that, if the owner had asked him to pay for his occupation, he would have done so, as to which see Pinder. His attitude before that went a little further, as evidenced by the fact that his father contacted the claimants’ agent from time to time between September 1984 and May 1985. However, the requests John Graham made were not inconsistent with the Grahams having the necessary animus possidendi.
Drawing all these factors together, I am of the view that, from 1 January 1984, the Grahams not only had factual possession of the disputed land but also “clear evidence” that they had the necessary intention to possess the disputed land. I reach that conclusion by drawing together the various factors summarised in the previous nine paragraphs of this judgment. While it would be wrong to describe the evidence on the seven factors taken together as “all one way”, it is, in my judgment, strongly in favour of the defendants’ contention that they had the requisite animus from 1 January 1984. Their position on this issue is even stronger from 17 January 1984, and stronger still after August 1984, when the hay-cut grant expired and there was no further communication from the owner. The Grahams’ unanswered attempts at negotiations until May 1985, the fact that the beneficial use of the disputed land was only for grazing, the fact that the Grahams knew of the claimants’ intention to develop the land in due course if they could do so, appear to me to be insufficient to justify any other conclusion. I should add that Michael Graham’s draft proof contained a statement as to his belief at the time, namely that “it was possible to obtain ownership of land after it had been occupied for a sufficient number of years” (and he mistakenly thought that the period was seven years). Neither party made much of that, and I do not think it right to give that statement any weight in the present context. First, I bear in mind what Slade J said about statements of subjective intention in Powell at p476; second, it seems to me unfair that that sort of statement could be relied upon against the claimants in circumstances where, through no fault of their own, they cannot cross-examine its maker; and, third, there is room for argument as to precisely what conclusion the statement indicates.
How long was the Grahams’ possession adverse?
Since 1 January 1984, the Grahams have been in occupation of the disputed land without the benefit of any grazing licence. Once John Graham was told that the claimants were not prepared to renew the grazing licence, which appears to have been on 17 January 1984, it is hard to see why time should not have started running in favour of the Grahams, so long as they remained in possession of the disputed land: they had been told, through Mr Evans, in clear terms, that they were not going to be granted a fresh grazing licence in respect of the land, or any other right over the land, and there is, therefore, as I see it, no basis for contending that there was some sort of implied licence.
The claimants subsequently agreed that the Grahams could take a cut of hay, and, as indicated above, it appears to me that the exercise of that right to take a grass cut was an interruption to the adverse possession being enjoyed by the Grahams. However, once the right to take the hay-cut had been exercised, the ability of the claimants to rely upon this arrangement ceased, and the position effectively reverted to what it otherwise would have been from 1 January 1984. In these circumstances, I conclude that, while the grass-cut effectively abrogated the adverse possession enjoyed by the Grahams from 1 January 1984, their possession of the disputed land once again became adverse when the right to take the hay-cut was exhausted, namely with effect from 1 September 1984.
Conclusion
In these circumstances, it appears to me that the Grahams enjoyed factual possession that was adverse to the claimants, and had the necessary animus possidendi, in respect of the disputed land from 1 September 1984 onwards. I therefore conclude that the present action by the claimants for possession of the disputed land must fail in light of section 15, and that the claimants’ title to the disputed land has been extinguished by virtue of section 17. Accordingly, I believe that it follows that the defendants are entitled to be registered as proprietors of the disputed land at the registry.
I hope that it is not inappropriate to add the following comments. As may be apparent from one or two passages in this judgment, this is a conclusion that I arrive at with no enthusiasm. It seems to me that it is a result that does not accord with justice, and cannot be justified by practical considerations. In the latter connection, the right to acquire title to land by adverse possession is often explained by reference to the uncertainties that sometimes arise in relation to the ownership of land, but it appears to me that, with one or two exceptions, those uncertainties are very unlikely to arise in the context of a system of landownership involving compulsory registration: the owner of the land is readily identifiable, by inspecting the proprietorship register of the relevant title at the registry. In the days when land was unregistered, one can well understand that uncertainties could arise where the owner was seeking to rely upon an old conveyance: the person in possession might claim to have lost the documents that established his title, and the legislature may have concluded that arguments about what happened long ago should be avoided, and that this should be achieved by depriving the person with apparently good, if somewhat ancient, paper title of his ownership if the squatter could establish more than 12 years’ uninterrupted possession of the land. I accept that, even with registered land, a problem can arise over strips of land near to boundaries, as the Registry plans normally show general boundaries only.
A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely, and that is a proposition to which, at least in general, nobody could take exception. However, if, as in the present case, the owner of land has no immediate use for it, and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire the land for nothing from the owner simply because he has been permitted to remain there for 12 years. To say that, in such circumstances, the owner who has sat on his rights should therefore be deprived of his land appears to me to be illogical and disproportionate. Illogical, because the only reason that the owner can be said to have sat on his rights is because of the existence of the 12-year limitation period in the first place: if no limitation period existed, he would be entitled to claim possession whenever he actually wanted the land. Of course, one can well see the justification for saying that the owner should not be entitled to recover damages for trespass going back more than six years: that involves rather different
Although these considerations point to a different result, it seems to me that a proper application of the 1980 Act, as explained and developed in the cases to which I have referred, to the facts of this case leads to the result that the defendants have established title to the disputed land by adverse possession.
Finally, I would like to express my appreciation to all four counsel for the way in which this case has been conducted, both on paper and in court.
