Limitation Act 1939–Claim to title to small piece of land by adverse possession–Acts constituting adverse possession dependent inter alia on nature of land–Land in this case of no agricultural value, but capable of use for shooting–Evidence of use for shooting sufficient to constitute taking possession–Claim upheld
This was an
appeal from the decision of Judge Stinson, at Bury St Edmunds County Court,
holding that the defendant, Mrs Catchpole, against whom the plaintiffs had
claimed a declaration of ownership, damages and an injunction, had acquired a
title by adverse possession to a small piece of land, amounting to a little
less than an acre, at Bardwell, Norfolk. The judge had dismissed the
plaintiffs’ action.
N C H
Browne-Wilkinson QC and Alan Boyle (instructed by Sharpe, Pritchard & Co,
agents for Russell, Steward, Stevens & Hipwell, of Norwich) appeared for
the appellants; T L G Cullen (instructed by Bankes Ashton & Co, of Bury St
Edmunds) represented the respondent.
Giving
judgment, CAIRNS LJ said: The court is obliged to counsel on both sides for
their helpful arguments in this interesting case. It is an appeal from a
decision of His Honour Judge Stinson given at the Bury St Edmunds County Court
in an action relating to the title of a piece of land at Bardwell in the county
of Norfolk. The land concerned is an area of a little less than an acre, no 319
in the Ordnance Survey, and for convenience I shall sometimes hereafter refer
to it simply as "319." The
plaintiffs had a paper title to the land and sued the defendant for a
declaration that they were the owners of it, for damages for trespass and for
an injunction to restrain further trespass. The learned judge held that the
defendant and her predecessor had acquired a title by adverse possession, and
he dismissed the action. The plaintiffs appeal, contending that the conditions
laid down in the Limitation Act 1939 for the acquisition of a title by adverse
possession were not here fulfilled. The defendant’s case was that for more than
12 years, between 1945 and 1964, she and her predecessor made such use of the
land as constituted acts of adverse possession, and that the plaintiffs’
predecessors made no use of it.
The relevant
statutory law is contained in four sections of the Act of 1939, the necessary
parts of which I will read. Section 4 (3): "No action shall be brought by
any other person to recover any land after the expiration of 12 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." The proviso is not relevant. Section 5(1):
"Where the person bringing an action to recover land, or some person
through whom he claims, has been in possession thereof, and has while entitled
thereto been dispossessed or discontinued his possession, the right of action
shall be deemed to have accrued on the date of the dispossession or
discontinuance." Section 10(1):
"No right of action to recover land shall be deemed to accrue unless the
land is in the possession of some person in whose favour the period of
limitation can run (hereafter in this section referred to as ‘adverse
possession’) and where under the foregoing provisions of this Act any such
right of action is deemed to accrue on a certain date and no person is in
adverse possession on that date, the right of action shall not be deemed to
accrue unless and until adverse possession is taken of the land." And section 16, omitting immaterial words:
". . . at the expiration of the period prescribed by this Act for any
person to bring an action to recover land . . . the title of that person to the
land . . . shall be extinguished."
The relevant
history starts from about 1930. Mr Edwards, the father of the defendant, was
then the tenant of Bardwell Hall Farm. Part of the northern boundary of the
farmland was the River Little Ouse. 319 was part of that farmland and was
bounded on the south by a ditch and on its other three sides by the river,
which was in the shape roughly of an inverted "U." About 1930 the ditch was enlarged so that the
river then flowed along a straight line, which acquired the name of the
"New Cut," instead of going round the "U." The effect of that was to cut off 319 from
the adjoining field, which was Ordnance Survey 320. In the early 1930s a bridge
was built over the "New Cut" from 320 to 319. In 1934 Mr Edwards
acquired the freehold of Place Farm, which adjoined Bardwell Hall Farm on its
northern side. Then, or shortly afterwards, he either let
Both Mr Edwards and the defendant, and other members of the family, were fond
of shooting, and they shot over Place Farm and over 319. The defendant has
continued such shooting up to the present time, to a reduced extent in recent
years, but up to 1964, at any rate, which is the relevant period she was
herself shooting fairly regularly, her family, as she said in evidence, to a
considerable extent, and as from 1960 a syndicate which had been formed for
shooting on that land.
On September 1
1938 a Mrs Palmer acquired the freehold of Bardwell Hall Farm, subject to Mr
Edwards’ tenancy. In the later 1930s cattle were grazed on 319, and, of course,
were able to get access to it by the bridge. In 1944 Mrs Palmer sold her
freehold to a Mr Musker, Mr Edwards continuing as tenant.
Now by 1945
the bridge over the "New Cut" had disappeared, and so then there was
no direct way from Bardwell Hall Farm to 319, which by that time had become
marshy. In October 1945 Mr Edwards’ tenancy of Bardwell Hall Farm was
determined, and Mr Musker, the freeholder, then began to farm it. He died in
May 1947 and his personal representatives executed an assent vesting the farm
in his son, Dermot Musker, the assent referring expressly to 319 as part of the
land so vested. On April 6 Mr Edwards conveyed Place Farm to the defendant by
deed of gift, and there was no reference to 319 in that deed, not surprisingly,
because at that time it would have been impossible to contend that a possessory
title had been obtained to it. Some time before December 22 1964 Dermot Musker
died, and on that date his personal representatives conveyed Bardwell Hall Farm
to a company called Orchard House Farm Ltd, a company of which a Mr Reynolds
was the director. He is also a director of the plaintiff company, to which
Bardwell Hall Farm was later conveyed.
Between 1945
and 1964 the defendant had continued to shoot over 319, one Dowcra had with her
permission shot pigeons there, and he also fished there from the river bank, as
did a number of other people. There was no evidence that the Muskers or anybody
on their behalf made any use of 319 during those 19 years. After 1964, as I
have indicated, the defendant was still continuing to shoot occasionally, but Dowcra
was no longer on the scene. On the other hand, there were a few occasions
between 1964 and 1971 when Mr Reynolds, or somebody on his behalf, went on to
319 and did some trimming of the undergrowth and that sort of thing, the
undergrowth by that time, or at any rate by the present time, as appears from
photographs which were put in evidence, having become pretty rough.
It was in 1971
that a dispute arose as to the ownership of the land, and it was on not more
than three or four occasions that there was any evidence of anybody on behalf
of Orchard Hall Farm Ltd, the plaintiffs, having gone on to the land between
1964 and 1971; there was no evidence that the defendant was aware of those
activities, nor was Mr Reynolds or anybody else for his companies aware that
she was continuing to shoot there.
It is common
ground that the defendant either obtained a possessory title by 1964 or not at
all, and that if she did obtain it she did not lose it after 1964. Mr
Browne-Wilkinson, on behalf of the plaintiffs, relies on the limited use made
after 1964 by each party as casting light on the inferences to be drawn from
what happened before 1964. The plaintiffs contend that the limited use made by
the defendant and by Mr Dowcra with her permission during the relevant 19 years
was insufficient to constitute possession, and that there is no sufficient
evidence that the plaintiffs or their predecessors were dispossessed or
discontinued their possession, to use the language of the Limitation Act.
The judgment
was criticised on various grounds. The learned judge found that the defendant
was exercising such rights of ownership as could be exercised in relation to
this piece of land. In that connection he said that it would be quite
uneconomic to drain it so as to make it into agricultural land, and that the
value of agricultural land at the material time was such that it was not
improbable that a farmer would abandon this small area. It is contended that
there was no evidence to support either of those propositions about the economics
of farming and the value of agricultural land. It does not seem to me that
those are matters which a learned judge in a county court would not be entitled
as a matter of general experience to find. In any case, I do not think that any
part of those findings is really essential to the decision of the learned
judge, except to the extent that he was finding that the condition of the
land–marshy and overgrown–was such that the only use that anybody could be
expected to make of it was for shooting. Really, it is obvious on the face of
it that it is a piece of land which would not be of any agricultural value.
Another criticism that was made was that the learned judge said that during the
time that the Muskers had Bardwell Hall Farm two or three fields near to 319,
including 320, were planted with poplars, and 319 was not, and he regarded that
omission as significant. Mr Browne-Wilkinson says that the evidence did not
establish when the poplars were planted and that this was not a valid point
against the plaintiffs. I do not think that that was anything but a very small
point in the case, and certainly I am content to deal with the appeal on the
basis of disregarding the poplars.
Further points
from the evidence not referred to in the judgment are relied on in support of
the appeal. As to the fishing, one witness said that half the village was
fishing there. So it is contended that the fishing by Mr Dowcra with the
defendant’s permission could not be regarded as the exercise by her of any act
of possession. It was also said that the villagers were accustomed to walk
across 319. I would accept that these users of the land are consistent with
either party being in possession, and, for my part, I would disregard them.
If the
defendant is to succeed here it must, I think, be on the basis of shooting by
herself and shooting organised or permitted by her. It is contended that such
shooting could not amount to possession. The authorities make it clear that
what constitutes possession of any particular piece of land must depend upon
the nature of the land and what it is capable of use for: see, for example, Tecbild
Ltd v Chamberlain (1969) 20 P & CR 633, at p 641. I am quite
satisfied that between 1945 and 1964 the only profitable use of this land was
for shooting. Our attention was drawn by Mr Cullen, on behalf of the defendant,
to the Privy Council case of Cadija Umma & Anr v S Don Manis Appu
[1939] AC 136, where, as appears at p 140, cutting the grass was treated as
possession in relation to the particular piece of land. So here I think that
the learned judge was quite right to treat the shooting activity as
constituting possession.
It is clear
that there must be dispossession or discontinuance of possession on the part of
the original owner and something which in law is to be regarded as adverse
possession on the part of the squatter. Reliance is placed by the plaintiffs on
a series of cases where mere non-user has been held not to constitute
discontinuance or dispossession. There are three such cases in this court: Leigh
v Jack (1879) 5 Ex D 264, Williams Bros Direct Supply Ltd v Raftery
[1958] 1 QB 159, and Wallis’s Cayton Bay Holiday Camp Ltd v Shell Mex
and BP Ltd [1975] QB 94. A common feature in all those cases was that the
land was being held by the original owner with a view to future development.
Obviously in those circumstances the fact of non-user while such development
was being awaited could not be regarded as an abandonment of use of the land.
There is nothing to indicate that there was any such intention here. The land
was useful for shooting. There is nothing to suggest that at any time the
Muskers–and they are the people whose intention would
Edwards and the defendant used it for the purpose of shooting; the Muskers did
not.
Then a matter
of vital importance in this case to my mind, as, indeed, was recognised by Mr
Browne-Wilkinson, is the history of the bridge. It was there for some years
after the "New Cut" had been made and then allowed to fall into decay
and no step taken to replace it; so that there were no normal means of
approaching 319 from Bardwell Hall Farm. The only way, unless one were inclined
perhaps to wade across the river, would be a roundabout route which, indeed, would
involve trespassing through Place Farm. Taking that circumstance about the
absence of any way of crossing the river into account, together with the fact
of there being no attempted use on the part of the Muskers, I think it is a
case where clearly the proper inference on the balance of probabilities is one
of abandonment by the Muskers. Reliance is placed on the inclusion of 319 in
the assent in 1947. I think that the two answers to that contention given by Mr
Cullen are right: first, that this means no more than that the solicitors who
were preparing the document were simply taking the parcels from previous deeds;
and secondly, that as the assent was that of the personal representatives,
there could not be imputed to them knowledge of the circumstances relating to
this particular piece of land.
Now as to
adverse possession, again it is highly relevant that the bridge over the
"New Cut" had disappeared, because once that had gone there was
nothing that Mr Edwards or the defendant could be expected to do by way of
asserting their possession of the land. If they were using the land for the
only purpose for which it was sensible to use it, and if there was no
reasonable means of access to it, then it seems to me that that is sufficient
to constitute adverse possession on their part. A case in this connection which
has some slight relevance here is Marshall v Taylor [1895] 1 Ch
641, where the division between the plaintiff’s land and the defendant’s land
was a hedge which it was said it would be possible to crawl under, but which
formed a normal barrier between the land of the two parties.
Great reliance
is placed by Mr Browne-Wilkinson on the case of Tecbild Ltd v Chamberlain,
to which I referred earlier. It is, I think, only necessary to read the
holdings in the headnote there to see how greatly that case differs from the
present one:
Held,
dismissing the appeal, (1) that an owner of land did not necessarily
discontinue possession of it, ie, abandon it, merely by not using it, but that
each case depended on the nature of the land or property in question and the
circumstances under which it was held; that, in the present case, lack of user
was of itself no evidence to warrant a finding of discontinuance and there was
otherwise no evidence on which discontinuance could be found.
Here, as I
have said more than once, it is not non-user by itself; it is the non-user
together with the actual cutting off of this piece of land from the adjoining
land. The second holding was:
That a
finding of adverse possession required some affirmative, unequivocal evidence,
going beyond mere evidence of discontinuance, consistent with an attempt to
exclude the true owner’s possession, the nature of the property being, again,
relevant.
And that
brings us back to the fact of the land being cut off by the "New Cut"
without the bridge.
It has been
said by Mr Browne-Wilkinson that inferences adverse to the plaintiffs ought not
to be made here having regard to the long interval of time since the last
material date, 1964, and the impossibility of putting before the court the
evidence of the Muskers. It does not seem to me that the absence of that
evidence can lead the court to take any other course than to decide what is the
most probable inference to make on the evidence that is available. In so far as
Mr Browne-Wilkinson does place some reliance on what has happened since 1964,
what he has described as "joint user since 1964" involving the use by
Mr Reynolds of a raft, which apparently he constructed and maintained, kept on
his side of the "New Cut" and used to get across, that it seems to me
can be of no relevance at all seeing that the parties are different. What any
representatives of the plaintiff company may believe to be the true position,
or any inferences which they draw from anything which happened, or did not
happen, before 1964, can be of no assistance to the court in determining what
the proper inferences are.
I come without
any hesitation to the conclusion that the learned judge was entitled to reach
the decision at which he did arrive and that there is no ground on which that
decision should be disturbed. I would dismiss the appeal.
Agreeing, ORR
LJ said: I agree, and would only add a few words. This case turns, in my
judgment, on its own special facts, of which the first is that although, when
the course of the river was changed about 1930, a bridge was built to preserve
access to the land in question from the Bardwell Hall Estate, that bridge had ceased
to exist by the end of the war, and thereafter the only means of access from
the estate was by the use of a raft to cross the river or by walking round by
way of the village. The second special fact is that it was not in dispute at
the trial that the land in question, less than an acre in extent, was incapable
of being used for agricultural purposes without very considerable expenditure,
and that unless that expenditure was incurred its only value lay in shooting,
there being no suggestion that it had any development value.
In my
judgment, in the light of those special circumstances, the judge in this case
was entirely right both in law and on the facts in coming to the conclusion he
did. In complete agreement with the judgment delivered by my Lord, I too would
dismiss this appeal.
Also agreeing,
WALLER LJ said: I would add just a few words out of respect for Mr
Browne-Wilkinson’s argument. He submitted that the learned judge ought not to
have come to the conclusion that he did, and that, having regard to the passage
of time since 1964, the evidence should be scrutinised carefully before coming
to a conclusion, although the conclusion should then be on a balance of
probabilities.
The evidence
of the change of the nature of this land was, in my view, most important. While
it had been used for agricultural purposes, first of all, before the cut was
made, and secondly, after the cut was made, but finishing some time during the
war, there was no question but that from the end of the war onwards the land
was of an entirely different character and could only be used for shooting.
There was clear evidence given by Mrs Catchpole that considerable use for
shooting had been made of the land either by her or by a syndicate for which
she was responsible, and that that had gone on throughout the years from 1947
up to and including 1964, though in the latter years she had not personally
shot so much. Mr Browne-Wilkinson submitted that that was equivocal and that
mere shooting could not be sufficient to amount to taking possession. But, in
my view, it is clear from the authorities that when considering what is
required to amount to possession the court should look at the nature of the
land which is being considered, and, as I see it, if the only purpose for which
the land can be used is for shooting, and that is the actual use made in this
case by the defendant, then that is an act of possession which is quite
sufficient for the judge to draw the inferences which he did.
So far as the
question of discontinuance is concerned, I agree with what has already fallen
from my Lords. The fact was that after the war, after the bridge had
disintegrated during the war and had not been replaced, there was no reasonable
connection between the land of Bardwell Hall Farm and the field 319. The only
way in which somebody could go on foot would be by going round by the village
and then either trespassing through Mrs Catchpole’s land or asking her
permission to use it. The alternative, that access should be obtained by using
a raft across the river, is hardly one that was likely to be practical for
permanent use.
For those
reasons also, I agree that this appeal should be dismissed.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
