Land – Appellant acquiring paper title to manors and lordships – Respondents claiming adverse possession – High Court holding respondents showing factual and intended possession – Whether Crown entitled to acquire land by adverse possession – Appeal dismissed
Between 1997 and 2003, the appellant acquired various manors and lordships over land comprising parts of the foreshore and bed of the tidal estuary of the River Severn. The land consisted of thousands of acres of sand and mudflats and similar land running seaward from the Welsh shoreline. Relying upon those acquisitions, the appellant took steps to register a caution against first registration at the Land Registry.
The respondents and other parties claimed that they had paper title to various parts of the disputed land or, alternatively, had acquired title by adverse possession. The Land Registry directed the appellant to begin proceedings against the respondents. The appellant could claim only paper title. In each case, the area claimed had a readily visible boundary at the shoreline side only, with each other boundary being either unmarked riverbed or water, depending in part upon the state of the river’s considerable tides.
The adverse possession claims were directed to be determined as a preliminary issue. Lindsay J concluded, inter alia, that the respondents’ claim succeeded so that the appellant’s title was barred: see Roberts (suing as Lord Marcher of Trelleck) v Swangrove Estates Ltd [2007] EWHC 513 (Ch); [2007] 2 P&CR 17.
The appellant appealed, contending that the Crown could not acquire title by adverse possession against a subject except where its original entry onto the subject’s land, by its servants or agents, was lawful, by, for example, holding over after a lawful entry. The principle was that because the Crown could not commit a wrong against one of its subjects, it could not base a claim to title by adverse possession upon its dispossession of the subject’s land. The appellant further submitted that the Crown had not in other respects established adverse possession under the Limitation Act 1980 by showing the appropriate intention to possess the land.
Held: The appeal was dismissed.
There was no legal basis for denying to the Crown the ability to plead a limitation defence that any of its subjects could plead or for treating the Crown’s ordinary possession of another party’s land as other than that of a party in whose favour time could run under the 1980 Act, which contained the current law on adverse possession of land. As a general rule, a party could not bring an action to recover land after the expiry of 12 years from the date upon which the right of action accrued to him or to the person through whom he claimed. By section 37(1), the 1980 Act applied to the Crown in the same way as it did to its subjects.
As between subjects, the origin of the possession of the person relying upon adverse possession was irrelevant to the barring of an accrued right of action. Adverse possession could originate either in an unlawful entry into possession, dispossessing the paper title owner, or in a lawful entry, as under a licence or tenancy, followed by a discontinuance of possession by the paper title owner. What mattered was that a right of action had accrued to the paper title owner and that the party claiming adverse possession was in ordinary exclusive possession of the disputed land for more than 12 years: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 considered.
Furthermore, with regard to the requisite intention to possess, evidence showed that the respondents believed that the disputed land was foreshore and, as such, formed part of the Crown Estate. It was possible for a party that, albeit mistakenly, believed itself to be the true owner to have the requisite intention to exclude others and to acquire title by adverse possession, which was not confined only to those who thought or knew that they were trespassing on someone else’s land. All that mattered for limitation purposes was that the party claiming adverse possession was in factual possession together with an intention to exclude everyone else. There was no sensible reason why a party that mistakenly believed that it was the true owner of land and behaved accordingly should be denied the benefit of a limitation defence: Hughes v Cork [1994] EGCS 25 considered.
Mark Wonnacott (instructed by Darwin Gray, of Cardiff) appeared for the appellant; Frank Hinks QC and Thomas Braithwaite (instructed by Farrer & Co LLP) appeared for the respondents.
Eileen O’Grady, barrister
