Claim for trespass on land–Possessory title set up–Limitation Act 1939–Whether adverse possession established–No requirement that owner must be inconvenienced by possession–Appeal by possessor allowed
This was an
appeal by a defendant, Ernest Rodney Nute, from an order of Judge Chope at
Penzance County Court upholding a claim by the plaintiff, Mrs Joanna Treloar,
who sought, in addition to damages and a declaration as to title, an injunction
restraining trespass by Mr Nute upon a small plot of land at Halwin, Wendron,
Cornwall. Mr Nute appealed on the grounds (i) that the judge misdirected
himself in holding that none of the acts of possession had been
The appellant
appeared in person and P R Dunkels (instructed by White & Leonard &
Corbin Greener, agents for Thrall, Llewellyn & Pearce, of Truro)
represented the respondent.
Giving the
judgment of the court SIR JOHN PENNYCUICK said that in 1961 the plaintiff was
the freehold owner of a number of parcels of land at Halwin in the parish of
Wendron. The land in question in the present case, consisting of about
one-seventh of an acre, was part of one parcel and had previously been used by
her in connection with her farm but in 1961 was derelict. In 1961 Mr Nute’s
father purchased some land adjacent to that of the plaintiff and believed that
the disputed one-seventh of one acre was included in his purchase. Between the
date of the purchase in 1961 and the date of the conveyance in September 1962 the
defendant’s father and the defendant did certain acts on the disputed land,
such as grazing animals upon it, depositing soil in a gully running across it,
storing materials and (in the case of the defendant and a brother) riding motor
cycles on it. In 1963 the defendant’s father erected a fence on one of the
boundaries of the disputed land. The plaintiff protested and had the fence
removed, but it was re-erected by the defendant’s father. In 1965 the
defendant’s father conveyed the disputed land to the defendant by way of gift.
In 1966 the plaintiff complained of the dumping of earth on the disputed land.
In 1974 the defendant, having in the meantime filled up the gully, began to
erect a bungalow on the disputed land. This led to the commencement of the plaintiff’s
action for an injunction and other relief. The defendant contended that by
virtue of the Limitation Act 1939 the plaintiff’s title had been extinguished
since he (the defendant) and his father together had had possession of the land
for 12 years. Judge Chope took the view that the possession was not adverse to
the plaintiff’s title because it did not inconvenience her as she had no need
for the land then.
The question
whether a person has taken possession of land was a question of fact. Apart from
the minor acts of grazing and so on, which were of little weight, the deposit
of soil in the gully and the preparation of the surface for a bungalow were
sufficient evidence of possession. Adverse possession, however, meant
possession exclusive of the owner. The normal rule was that if someone takes
possession of land belonging to another and remains in possession of it for 12
years to the exclusion of the owner adverse possession was established, so that
at the end of the 12 years the owner’s title became extinguished. This rule had
been adapted by the court to meet the special case where the owner had no
immediate use for the land, and left it unoccupied, but intended to use it for
a particular purpose in the future. In such a case the owner did not lose his
title to the land despite temporary possession by another person. This had been
established by a series of cases from Leigh v Jack (1879) 5 Ex D
264 to Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex & BP Ltd
[1975] QB 94. These cases, however, depended on the intention of the owner to
use the land for a particular purpose in the future. That was not this case.
There was no evidence of special purpose here.
So far as the
present case was concerned, section 10 of the Limitation Act 1939 defined
adverse possession as possession by some person in whose favour the period of
limitation can run. There was no requirement that, in order to constitute
adverse possession, the owner must be inconvenienced. Indeed, if inconvenience
to the owner was a requirement it would be difficult to acquire a possessory
title, since the owner, if put to inconvenience, would be likely to take
proceedings. In the present case time began to run from the taking of
possession and the defendant had acquired a possessory title.
The defendant’s
appeal was allowed with costs.
