Respondent having continuous and exclusive occupation of land – Owner bringing action against respondent – Action dismissed for want of prosecution – Appellant as subsequent owner of land bringing action for possession – Whether first action stopped time running in favour of appellant – Judge holding adverse possession not interrupted – Appeal dismissed
The respondent occupied a dwelling-house and land known as Riverside, Weir, Restronguet, Falmouth, Cornwall. He claimed to have been in continuous and exclusive occupation of the property since the summer of 1977. In August 1990, L, the then owner of the property, brought an action against the respondent for possession. The action was ultimately dismissed in January 1999 for want of prosecution.
Subsequently, the appellant succeeded to the title of the land. In July 1999 it brought an action for possession, which the respondent resisted on the ground that he had acquired the land by adverse possession. A hearing was ordered of a preliminary issue as to whether the mere fact of L’s issuing proceedings for the recovery of land in 1990 stopped time running in favour of the respondent. The county court held that the respondent’s adverse possession was not interrupted by the issue, and subsequent dismissal, of the action by L. The appellant appealed.
Held: The appeal was dismissed.
It was impossible, upon the plain wording of the Limitation Act 1980, to conclude that where an owner failed in his action, he could rely upon the mere fact of having brought that action to make good a second claim. It could be seen from the language of section 15 of the Act and the legislation that the only relevant time, in relation to a particular action, was the time that had expired before the action was brought. It was a fallacy to suppose that, because one ignored, in the first action, any adverse possession that followed the writ, that same adverse possession fell to be ignored in the second action. For the purposes of any particular action, the issue of a writ in earlier proceedings was no more relevant than a demand for possession, and such a demand did not start time running afresh. Were it otherwise, all a true owner would have to do to avoid adverse possession claims would be to issue a writ every 12 years without more: Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 considered.
Mark Treneer (instructed by Hancock Caffin, of Truro) appeared for the appellant; Colin Elliott (instructed by Follett Stock, of Truro) appeared for the respondent.
Thomas Elliott, barrister
