(1979) 38 p. + c.r. 452
TRANSCRIPT
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452
PROPERTY AND
COMPENSATION
REpORTS
owell v McFarlane and Another
CHANCERY
DIVISION
SL DE J.
January
17-21,
24-26,
February
28 March 14 25
and
28
1977
Limitation of action Recovery of
land Adver8e
POS868aion--Owner abroad-
Unable to develop for
houaing Land in
area
of
landscape
value Intruder
a year old youth Between
1956
and
1973 cutting
and
collecting
hay ptaUng
family ow
t
grazing In
1956 intruder 8tock-proofedfencB
and
cleared
part of
disputed
land FencBfallen
into disrepair
and
land
overgrown Whether
owner
diBpo88688ed-Whethe,. .. adver8e p08868Bion.
The
disputed land, an enclosed field used as agricultural land, was
situate
close
to
an
extensive
area of
landscape
value and was
unlikely
to
be
developed
for
any
purposes
other
than
those
directly
related to
agriculture
or
forestry. In
its
neighbourhood,
but not
adjoining
it, was
a small
farm
which
now
be
longed
to the
plaintiffbut
on
which
the
plaintiff s
grandfather had
farmed as a
farming contractor since before 1942.
n 1951 the first defendant bought the disputed
land
and was registered at
the Land Registry as its proprietor on March
11 1952.
s part of the
contract
of
purchase the vendor planted
a large
number of
Christmas trees.
The
defen-
dant hoped to
sell
those trees when they
were large enough
to be
sold.
He
also
bought
a neighbouring
plot of land
where
he
could
build
a house
in
which
to
live
with
his wife
and
children. But by early 1955 the defendant s plans
became impossible of achievement because he, as a civil servant, was posted
abroad
for a
year
but
had to stay
there for years.
By
1956
the
disputed
land
was
vacant
as the tenant in
occupation
had
left.
At
that
time, the
plaintiff who was 14
years
of age, conceived the
idea of using the land
for the
purpose of grazing
the
family cow which belonged
to his grandfather with
whom the plaintiff
had
lived since his childhood.
He
persuaded his grand
mother
to
write
to
the first defendant asking for permission for such a use.
No reply was
received
by the plaintiff s grandmother. By the summer of
1956
the plaintiff decided
to enter on
the
disputed land.
With the help
of friends, the plaintiff
cut hay and took i t to his grand
father s land and used i t to
feed
the
family cow.
He made
the fence
stock
proof. Thereafter,
he left
the cow grazing on
the
land. n 1968
the
cow
died. Between 1956
and
1973 the plaintiff
went
shooting on the land from
time
to
time and
arranged a clay pigeon shoot on a few occasions. One of
his
friends
tethered his goat there. The plaintiff started
business
as
a
contractor
to
fell
and treat
trees
and he put up his
business sign
board on
the land in
such
a
way
that it
could be
Been
from
the
road
Over
the
years
the
first
defendant s
wife
visited the disputed land
but found
nothing unusual, except that
i t
was overgrown.
n
August 1972
both
the
defendant and his wife visited the
land and
found that
there
was
no trace
of
the
Christmas trees and the
fence was
in
a
poor
oondition
and
the
land was
overgrown.
The defendant made an
unsuccessful application
for planning
permission
to
build
three
bungalows
there. On May
23 1973
he made
a
grazing agreement
with
the second defendant.
On
an action by the plaintiff seeking inte,. alia a declaration that
he had
been in adverse possession of the disputed land
within
the Limitation Aot
1939
for upwards of
12
years:
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POWELL v.
McF RL NE
ND
NOTHER
453
Held,
(1)
that
apart from authority the word possession in
the
Limita
tion Act 1939 would bear
the
traditional sense of
the degree
of occupation or
physical
control,
coupled
with the
requisite
intention
commonly referred
to as
animus posBiclendi, that would entitle a person to maintain an action of
trespass in relation to
relevant
land; and that the word dispossession in
the
Act
denoted simply the
taking
of possession in such
sense from another
without
the
other's licence
or
consent
and
likewise a person who had
dis
possessed another in that sense would be in adverse
possession
for the
purpose of
the
Act.
(2) That a few basic principles relating to the concept of possession
under
English law were,
(a)
in the absence of evidence to the contrary, the owner of
land with paper title was deemed to be in possession,
and the
law would thus,
without reluctance, ascribe possession either
to
him or to persons who could
establish a
title
through him; (b) a claimant to possession with no paper title,
must show both factual possession
and the
requisite intention to possess;
(c) factual possession signified an appropriate degree of
physical
control
and
i t must
be a
single and conclusive possession and thus an
owner
and an
in
truder
could
not both be in
possession
of
the land
at
the
same time
and,
accordingly, the
acts
constituting
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 was commonly
used
or
enjoyed and, broadly,
it
must
be
shown that the intruder
had
been
dealing
with the
land as
an occupying
owner might have been
expected to deal
with
it
and
that
no
one else
had
done
so; and
(d)
the animus possidendi
was also
necessary
to
constitute
possession
and
involved
the intention,
in one's own
name
and
on one's own behalf, to
exclude the
world at large,
including the
owner with the paper
title,
so far as was reasonably practicable and so far as
the processes of the law would allow; and that the courts would require clear
and affirmative evidence that the
intruder,
claiming that he had acquired
possession,
not
only
had the
requisite animus
possidendi but
made such inten
tion clear to
the world.
(3)
That
it was consistent with
principle
as well as authority
that
a person
who
originally
entered
another's land as
a
trespasser
but
later
sought
to
show
that he had dispossessed the owner, should
be
required to adduce compelling
evidence that he had the
requisite
animus possidendi;
and,
accordingly, on the
facts
here
it followed
that the
plaintiff's
intentions in
1956
and
1957 must be
interpreted primarily from his own acts
and the
acts done by
him
were,
in
effect,
to
take various profits from the land and those activities, done as they
were by a 14-year-old
boy
who himself owned no land in the neighbourhood,
were equivocal in the sense that theywere notnecessarily
referrable
to aninten
tion on his
part to dispossess the
defendant
and to
occupy
the
land
wholly as
his own
property.
Accordingly,
the
plaintiff's claim under
the
Limitation Act 1939 failed.
Per curiam: n WaUiB s Cayton Bay Holiday
Camp Ltd. v.
SheU-Mez and
B.P.
Ltd.
[1975] Q.B. 94; Treloar v. Nute [1976] 1
W.L.R.
1295
and
Gray v.
Wykeham Martin
(Unreported), Court
of Appeal (Civil Division) Transcript
No.
lOA
of
1977,
the Court
of Appeal
decided
that
in any case
where
the
acts
of
an intruder,
however continuous
and
far-reaching,
do
not
substantially
interfere with
any
present or
future
plans which
the
owners
may
have for
the
use ofunbuilt land,
the
court will not treat
the
intruder as having dispossessed
the
owner for the purpose of the
Limitation
Act 1939 because it will treat
him
as
having
been
there
under some implied
or
hypothetical licence.
Those
deci-
sions are
binding
on
the court offust
instance.
Accordingly, even if he plaintiff
was held to
have
succeeded in obtaining possession of
the land
in
1956
or
1957
the
court would be constrained
to hold
that his possession was
not
adverse ..
within
the
meaning of
the
1939Act because
the
court would be obliged to hold
that i t was
enjoyed
under a licence imputed by law.
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454
PROPERTY AND
COMPENSATION
REPORTS
ACTION.
The
facts
are
stated in
the
judgment.
M A F. Lyndon Stanford for
the
plaintiff Thomas
Edward
Powell.
Leonard Hoffmann for
the
first defendant Colin
Forsythe
McFarlane.
Robert Wakefield
for
the
second defendant
Peter James Ransom.
Cur. adv. vult.
March 25. Slade
J
read
the
following
judgment. The
primary issue
in this action
is
whether or not the
plaintiff Mr.
Thomas Edward
Powell had acquired a
statutory
title by adverse possession
to
a
certain piece of land situated
just
outside Reigate Surrey. The case
is an
interesting and
unusual one if only because
it
is claimed
that
this
adverse possession
began
when
he
was a
boy
of
14. I t raises some
difficult
points of
law
as to
which I
have had the
benefit
of
full
and
most meticulous argument from all counsel for which I
am
grateful.
In
deference to this argument, I shall myself try to deal fully with
the
law
as well as
the
facts
though this
will necessitate a very long judgment.
The first defendant Mr. Colin Forsythe McFarlane is
the
registered
proprietor of the disputed land at
H.M.
Land
Registry. The second
defendant Mr.
Peter
James Ransom, claims to be entitled to possession
of
it by virtue
of a grazing agreement dated May 29 1978 entered
into
between
him and
Mr. McFarlane.
The
land
consists
of an
enclosed field
of
some 8 144 acres. t
bears
the
ordnance
number
129c
and
is
and
has
at
all
material times
been
agricultural land.
t
abuts
a
road
called
Gatton
Park
Road,
which runs roughly in a north-easterly direction away from Reigate.
t ies
on the northern
side
of that
road. t s approximately triangular
in
shape
its
southern
boundary
forming
the
base
of the
triangle
and
the point
lying
at the north of it.
To
the north-west of it,
but
not
immediately adjoining there are extensive areas of National
Trust
land known
as Gatton
Park. t is designated by
the
local planning
authority as an
area of great
landscape value and lies within the
Metropolitan Green
Belt. At
all
material times it
has accordingly been
unlikely
that
development
of the disputed land
would
be permitted
for any purposes other than those directly related to agriculture or
forestry.
On
the
eastern boundary
of
the land
there
is a lane which I will
call
the
lane
and
which formerly led
to
a house called
Nutwood
Lodge. This house which is shown
on the
ordnance
map annexed
to
the statement of claim
and
was situated
at
a short distance to
the
north-west of
the
tip of
the
disputedland was demolished in about 1956.
Immediately to
the
west of the
land on
which this house was situated,
lies
an
area
of land of about
one
and
a
quarter
acres
known as Nut
wood
Farm.
This now belongs
to the
plaintiff. The
plan annexed to
the
statement of claim shows a rectangular house and certain out
buildings situated
on
this land. This house has in fact been demolished
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POWELL
v McF RL NE
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NOTHER
455
and
a bungalow erected
in its
place;
the
outbuildings still exist.
Between Nutwood Farm
and
the disputed land and adjacent to
both
lies
another
small
triangular
piece
of
land, which was purchased
by
a
Mr. Weston in 1957. I shall call this Mr. Weston's land.
The plaintiff was
born on
April 12, 1942. His mother
died
when
he
was four
months
old; his
father
survived her, but
played
no
part in
the plaintiff's early life. He was brought up by his grandparents, a
Mr.
and
Mrs. Bishop, who were then in their sixties. Mr. Bishop had
carried on a small business as a farm contractor and
had
been a
tenant of
various fields
in the
immediate area, including the disputed
land. By
1947, however,
he
was
in bad
health
and had
surrendered his
tenancy of the disputed land
and
the other land except Nutwood
Farm house and about an acre next to it.
At
this time
he
and his wife
were living
at this
house.
They had
also living
with
them
the
plaintiff,
his
half brother
Mr.
Frederick
Jeffries, who was
about
two
and
a
half
years
older
than he
was,
having been
born
on
November 12, 1939,
and a Miss Bishop who has played no part in these proceedings. Mr.
Bishop purchased
the
freehold of the farmhouse
and
outbuildings in
1956. On his death in 1964
it
devolved on his wife, who died in 1975.
Before
her
death, however,
the
plaintiff
had purchased the
freehold
from her.
He
himself
married in
1966 but went
on
living
at the
farm
house with his wife
and
with his grandmother until her
death.
Life was obviously quite
hard
for the plaintiff
at
Nutwood Farm.
His grandparents were
strict and
money was short. I heard
and
saw
him
giving evidence for several hours.
From
this
and
from
the
evi
dence
of
a
number of
persons who
have known him
since his school
days, I
am
satisfied that he is and has at all material times been an
astute
and
determined
person
of
powerful independence
of
spirit,
ebullient self-confidence, perhaps falling
not far short
of arrogance,
and unusually dominating
personality. I
mention these
qualities
by
way
neither of
praise nor
of
criticism, but because
an
appreciation
of
them is essential
to
a fair understanding of the somewhat unusual
history of this case.
From 1947 onwards Mr. Bishop, who had sold the rest of his herd,
retained a cow called Kashla. t seems
to
have
been
a
remarkable
cow;
it
lived
on until
1968
and
provided
the
family
with
milk
until
about 1966. The plaintiff, from about the age of eight onwards, did
everything for it.
He
put
i t
out to grass in the morning; he milked it
during the
day and
bedded
it at
night;
it
was known
by
his family
and
friends
as
Ted's
cow.
He
began
driving
tractors
at
about
the
age
of
eight. According
to
his evidence,
he never
got
any pocket
money and, even as a schoolboy, had to buy his own clothes. Up to the
age of 14, he spent almost all his spare time looking after
the
cow,
working on
the land at
Nutwood Farm and doing many jobs for
other
persons on neighbouring
land.
Before
the
relevant events
of
1956, he
had
for example assisted
in the
demolition
of Nutwood
Lodge,
in
driving herds of cattle, in the concreting and construction of pig
sties for a Mr. Hammond who then owned some neighbouring land,
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456
PROPERTY AND COMPENSATION REPORTS
in
the
mucking
out of
pigs
and the
dragging
out of timber
for
the
National Trust.
By
1956 he clearly
had
a wider experience
in
the
practical aspects
of
farming
and
farm management
than most
boys
of
the age
of
14.
By a conveyance on sale
of February
20, 1951, a Mr. Birt acquired
the
freehold
of the
disputed
land
from a Mr. Edney,
the
previous
owner. Mr.
Birt kept
a couple
of
pigs
and
a few chickens on
the
land.
He applied for planning permission to keep a caravan on it but this
was refused. Following
this
refusal, Mr. Birt decided
to
sell the dis
puted
land
and
advertised it for sale. Mr. McFarlane
or
his wife
answered
the
advertisement
and
eventually Mr. McFarlane agreed
with
Mr.
Birt
to purchase
it
for 470. t was a
term
of
the
agreement,
though this was not embodied
in the
formal contract, which was
dated
January 81, 1952, that the vendor should arrange for
the
planting
of
4,000 Christmas trees
on the
land.
The
purchase was duly completed
and, by the
time that
Mr. McFarlane
took
possession, a substantial
number
of
Christmas trees had in fact been planted. There is no clear
evidence as to how
many
had been planted, but Mrs. McFarlane in
evidence gave a rough estimate of 2,500
and
said they
had
been
planted, much too closely,
in an area
which she indicated, towards
the
south-west
comer of the
land. Mr. McFarlane was registered
with
an
absolute
title
to
the
land
at
H.M.
Land
Registry on March 11,
1952. He hoped that, when the Christmas trees reached a sufficient
height, he might be able to sell
them
at a profit.
More
or
less
at the
same
time
as purchasing
the
disputed land, Mr.
McFarlane purchased
another
piece
of land situated
on
the other
side
of
Gatton
Park Road, which consisted of a building plot.
He
was at
the time a civil servant living
in
a
tenanted
house
in
Barnes with his
wife, mother-in-law
and
two small children. Unlike the disputed land,
the
plot on
the other
side
of
Gatton Park
Road
is
not
included in
the
Green Belt.
He
accordingly contemplated
that he
might be able to
build
on
it
a house for himself
and
his family. Difficulties, however,
arose over
this
project
and
it was abandoned
in
late 1954
or
early 1955.
By
that
time it had been proposed by Mr. McFarlane s minis try that
he should
take up
a post
in Bonn in
West Germany. In these changed
circumstances he sold
the
building
plot in the
summer
of
1955.
He
made inquiries
with
local estate agents
with
regard to
the
possibility
of
letting
or
selling the disputed land, but nothing came of
them.
He
left for Bonn
in
October 1955
and last
saw
the
land before he departed
in about
August
of
that
year.
He
was originally
sent
to
Bonn
for a
year s
assignment;
but in
the
event
he
stayed
there for 11 years
and
did not
see
the land
again
until
1967. His wife likewise
did not
see
it
again
until
1967, save for one visit in 1960 to which I will refer
hereafter.
A
Mrs.
Ball
had
a
tenancy of the
disputed land during
part of the
early
part of
Mr. McFarlane s ownership. On one occasion she arranged
for it
to
be ploughed
and
sown with some cereal crop. The crop, how
ever, was a failure and it has, I think, been common ground between
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POWELL V McF RL NE
ND
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457
the parties
to
these proceedings that the land is rather poor land, not
really suitable for ploughing
and
cultivation with a cereal crop. By
1955 or early 1956, Mrs. Ball had vacated it, so that
it
was apparently
entirely unoccupied land, and
apart
from
the
Christmas trees, unused.
In 1955,
or
early 1956,
the
plaintiff, who was then
an
enterprising boy
of about
14, conceived
the
idea
of
using
the disputed land
for
the
purpose of grazing the family cow. His evidence given in chief, which I
accept on this point, is
that,
because he thought he and his family could
do with more
land
for grazing cattle; he obtained from Mr.
Hammond
the name and
address of Mr. McFarlane, as the owner
of
the land,
and
got
his
grandmother,
Mrs. Bishop,
to
write a
letter
to
Mr. McFarlane
to see whether he would agree to such use. There is no evidence that
he ever received this letter or that Mrs. Bishop ever received
any
reply
to
it.
The plaintiff said under cross-examination that if Mr. McFarlane
had
replied,
he
would
have
asked for permission
to
use
the
land,
but
that in the
absence
of
such a
reply he made
a decision
on
his own
to
possess it. He had said in chief that so far as he knew in 1956, the
owner might be dead,
but
he can hardly have inferred that Mr.
McFarlane
had
died merely from his failure
to
answer one letter.
Whatever
his
further intentions may have been-I
shall revert
to
the
question
of such intentions
hereafter-the plaintiff
then
decided
to
enter and
cut the
hay on the disputed land. This he did himself in
the
summer of 1956, using a tractor
and
a mowing machine belonging
to his grandfather.
His
half-brother, Mr. Jeffries,
and
two more
or
less
contemporary school friends, Mr. Marsh
and
Mr. Skinner, all
of
whom
have given evidence in the proceedings, then helped him over the
period of a week or two to
lay
and turn the hay
and
in due course
to
collect
and
load
it
on a trailer.
It
was then taken
back
to
the
Bishops'
farm, where
it
was put in a shed and used
to
feed the cow Kashla.
As
might
be expected,
it
was suggested
to
the plaintiff
in
cross
examination,
and submitted in
argument
on behalf of the
defendants,
that his haycutting
and
all the various other activities which he did
on
the
disputed land in 1956 and
later
years must
have
been done on
behalf
of
Mr. Bishop
until
his death in 1964 and subsequently on
behalf
of
Mrs.
Bishop,
at
least
until
she sold
Nutwood Farm to the
plaintiff. In
the
context
of the early
years
of
these activities, force is
added to this suggestion not only by the consideration that all the
occupants of the farmhouse benefited from them, in that they pro
duced fodder for the family cow which in turn provided
the
family
with
milk,
but
also because
in
1956
the
plaintiff was only 14
and
was
living with his
grandparents,
who in
the
unanimous opinion
of
all
the
witnesses who knew them were very strict. Mr. Jeffries, however, who
continued living at Nutwood Farm until he married in 1965
and
struck
me
as
an eminently honest witness, supported
the
plaintif f himself in
stating in
effect
that, after it
had proved impossible
to obtain
Mr.
McFarlane's permission for
the
use
of the
land, Mr.
and Mrs.
Bishop
were quite opposed to the plaintiff using it without such permission,
but despite attempts to do so, particularly on
the
part of Mrs. Bishop,
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458 PROPERTY
AND
COMPENSATION REPORTS
could not stop him from doing so in the face of
his
defiance. By 1956
Mr. Bishop according
to the
evidence was
in poor health
and
able
to
move
very
little.
The
plaintiff on the
other hand, as
Mr. Jeffries
confirmed was obviously a very
early
developer. Even the
strictest
of
elderly grandparents may find
it
difficult to restrain a large and
defiant
teen-age boy
with
a strong will of his
own
and fixed ideas of what he
wants to do. Having heard all
the
witnesses who knew both the plain
tiff and his grandparents, I am satisfied that
the
relevant activities
were done
by
him
neither at
the
instigation nor with
the approval of
Mr.
and
Mrs.
Bishop whom
one of his witnesses Mr.
King,
described
under cross-examination as very
straight,
really honest. In
the
end
they put up with these activities because they found it too difficult and
perhaps too exhausting to try and stop them.
Also in 1956 the plaintiff decided
that
he wished
to make
the dis
puted
land
stockproof
in
order
that
he
could
put
the
cow
Kashla on
it.
There
has
been
some divergence
between
the
evidence given on
behalf
of
the
plaintiff and that given on
behalf
of Mr. McFarlane
as
to the
nature
and state
of the boundaries in 1956
and as to
the work
if any,
which
the plaintiff did
to them.
I find the following facts in the con
text
of fencing. On the eastern boundary, the fencing consisted basic
ally
of an iron-rail fence of three or
four
rails which had originally
stretched all
the
way along the boundary.
Parts
of it, however had
deteriorated with rust and age and some
of the
iron rods had been
removed
or bent out
of
line.
Furthermore,
a section of the fence had
been almost
entirely
destroyed
in 1951
when
various persons had
been
collecting cut timber on
the
other
side of
the
drive
and one of them,
namely
Mr. Marshall who was working
as
a
mate on
the
job
and
gave
evidence in these proceedings in accordance with instructions given
to him by his employers pulled out part of the fence
with
a
tractor
and rope in order to enable vehicles to turn and get
back
to the
road.
This
section of
the
fence had
never been properly restored
before 1956.
There was
no
proper hedge running along
the
boundary, but suckers
and saplings
had
grown
up
in between
the
fencing. Along
this
boun-
dary,
somewhere towards the middle
there
was also an
old iron
entrance
gate,
which
had,
however been so
badly
damaged that
it
was virtually folded in
two. In
1956 the plaintiff in those places
where he could straighten or repair
the
existing iron fence sufficiently
to make it stockproof did so. In any gap where it was impossible
adequately
to repair
or re-erect the
iron
fencing
he erected posts
cut
from trees
or
saplings
situated on
the land and
joined
them
with two
or
more
barbed-wire strands.
This work was
done
with
the
assistance
of Mr. Jeffries and Mr. Skinner. The plaintiff
removed
the
iron gate,
but to create a gateway for easy access fitted two lengths
of
chain
running
from the one
gate post
to the
other.
Along the southern boundary of the
disputed land adjoining Gatton
Park Road there was no
iron
fencing; there were
the
remains of a
wooden
posted
fence with slats but this was in a bad state of repair.
There were however along this boundary line a number
of
small trees
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POWELL V McF RL NE
ND
NOTHER 459
and some
thick
scrub and
undergrowth
which, more than the remains
of the wooden fence, constituted
the
existing
protection
of
the
prop
erty. In
1956
the
plaintiff, again
with the
assistance of friends
such as
Mr. Jeffries
and
Mr. Skinner, erected posts fitted
with barbed
wire
between the various small trees on the boundary line, to the extent
necessary to make
it
stockproof.
For
this purpose however, less
work
was needed
than
was required to
the
eastern boundary. In 1956
there was fencing
of
sorts along
the
whole
of
the western boundary;
along the southern
half it
consisted
mainly of
wooden
posts
and
barbed
wire, which
cannot
have
been
in
too bad
a state of repair, because
it
had
served
to keep in horses, which had been kept on
the
adjacent
land to the west during
the
years
immediately preceding 1956. Along
the northern half of the western boundary
was a
very
old
iron
fence.
In
1956 the plaintiff, again
with
the assistance of friends,
repaired
the
western
fence line
to the extent
necessary
to
make
it
stockproof. So
far as necessary, barbed wire was fitted to various saplings which
were growing up on
the
southern half. Posts were cut
from
trees
situated on
the
disputed land and staked
against
the rail fencing on
the
other half
to keep
it
in an
upright
position.
All the
work
on the
three
boundaries of the
land
which I have
described was done by
the
plaintiff and his friends in
the
evenings or
at weekends or holidays. Having heard Mr. Jeffries and Mr.
Skinner
give evidence, I am satisfied that it was done under his direction and
that he alone was fully in charge of all the operations.
The same
comment applies to
other work
which the plaintiff
with
the
assistance of friends did on the
disputed land
in 1956.
He
wished
to increase
the
mowing area
but
found
that
in various parts, particu-
larly
near the boundaries, brambles and
other growth had
encroached
thickly.
He
did
clearance
work
in
relation
to
these brambles
and
growth and
cut
a
number
of
trees
which were obstructing
these
areas
which
he
wished to mow. The
trees
so cut included
the
remaining
Christmas trees, but according to
the
plaintiff s evidence,
by
then,
only
about
50
of
them remained on
the
land. There is no evidence
before
me
as to
what
became of the many other Christmas trees
that
had originally
been
planted.
t
would
appear,
however,
from
the
plaintiff s evidence that by
the
time
he began his activities on
the
land, Mr. McFarlane s Christmas tree project had for practical pur-
poses more
or
less come to an end,
by
reason
of the
prior death,
destruction
or
removal
of
almost
ll the trees.
Having made
the
disputed land
reasonably stockproof,
the
plaintiff
put the cow Kashla to graze on it. On his suggestion and
with
his
consent, Mr. Jeffries also tethered a goat there. The plaintiff obtained
a water supply for
the
land in 1956
by
connecting a hose-pipe to a
stand pipe situated on Mr. Weston s land.
He
had
access to a
gun and
used
from time
to
time
to shoot pigeons and rabbits in the field from
1956
onwards.
In 1957
the
plaintiff
continued
to take the cow Kashla to pasture
011 the disputed land. He went
on
doing so until
its
death in 1968. t
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460
PROPERTY AND COMPENSATION REPORTS
used to pasture more or less equally on the disputed land
and
on a
field
on
the other
side
of
the
drive,
to
the
east.
At
the
present
time
the
plaintiff, in
other
proceedings, is claiming a title to part of
the
land
on
the
other side of
the
drive
by
adverse possession. In 1957
he
again
took the hay
crop from
the disputed
land.
He
continued shoot
ing there and checked and, so far as necessary repaired, the fences
along the boundaries to keep the land stockproof; since children lived
on a council estate
near the land
on
the other
side of Gatton Park
Road, this was a fairly frequent occurrence. After
the
land which I
have
defined
as
Mr.
Weston's
land was sold
to
Mr.
Weston
in 1957,
the
plaintiff
obtained
a
substituted water
supply for
the disputed
land
by connecting a hope-pipe to a stand-pipe situated on the opposite
side of
the
drive. This same
year
he continued his operations of clear
ing brambles and
other
unwanted growth,
and
for
this
purpose, on
one occasion
in
1957,
he
borrowed a
Jungle
Buster,
which I
understand
to
be a machine with rotating chains sui table for flaying
and
obliterating shrubs, small trees and brambles.
It
was towed by a
tractor and both machines belonged to
the father
of a contemporary
school friend of
the
plaintiff, Mr. King, who helped in the operation
under
the
plaintiff s direction
and
gave evidence in these proceedings.
The object of the
operation, which
took about two
hours, was
to
increase the area of hay making. After the completion of the main
clearance operations, this
had
become
an
area of
about
two and a
half
acres.
The
plaintiff again
took the
hay crop from
the disputed land in
1957
and
that same year he ceased using the gateway which he had erected
on
the
eastern boundary
for
anything
other
than
pedest rian access;
in its place he created a rough
and
ready vehicular access
about
85
yards to the
south,
consisting
of
post and barbed wire, which could be
temporarily taken
down, so
far as
necessary,
to
enable vehicles
to
enter and then be
replaced.
The plaintiff, often with the help of Mr. Jeffries
and
Mr. King, took
the
hay
crop from
the
disputed land in all subsequent years
up
to
and
including 1971.
He cut the hay
in 1972, but let
it
lie because
it
was
spoilt by
the
weather.
He did not take it in
1973 because
the crop
was
ruined by
a horse
or
horses
in
circumstances which I will
mention
hereafter. The cow Kashla had two heifers, one or both of which
joined her in pasturing on
the
disputed
land
and
the land
on
the
other
side
of the
drive between 1957 and 1960 when
the
two heifers were
disposed of. Over
the
years 1958
to
1978
the
plaintiff
continued
to
do
some
work of repair to the
fences
and
some clearance work,
but,
I
think, as
the
years went by,
far
less than he had done in 1956
and
1957, with
the
result that
by the
1970s
the
disputed land looked untidy
and the
fences were again in a poor state of repair.
The
need
to
keep
the disputed land
stockproof had gone
when the last
cow
Kashla
died in 1968 and was
not
replaced. By that time Mr. Jeffries goat,
which had been
tethered
on the land for many years from 1956 on
wards, had also died.
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10/36
POWELL
v McF RL NE ND NOTHER
461
The plaintiff was living continuously
at Nutwood
Farm from
the
time
when
he began activities on
the
disputed
land
till
the
issue of
the
present
proceedings. He
left
school in 1957
and then had two
successive full-time
jobs
locally, one of which
lasted
for about
three
years
and the second about a
year.
He
carried
on the activities on the
disputed
land
which I have described over this period
at
week-ends,
early
mornings, and summer evenings and holidays. He then worked
for about six months for a tree-Iopper. His experience gained in
the
course of
this job and
in
other
places
prompted him in
1962 to set up
his own business
as
what he described as a tree
surgeon
- tha t is
to
say
someone who deals
with
the
care
and
maintenance
of trees,
including tree felling. Somehow or other, he got together
the
essential
equipment
for
this work
consisting
of
a
van,
rope, saw, etc. and erected
an advertising display board
showing the
name
of
E .
Powell
&
Co.,
Tree
Surgeons,
in
the
south east
corner
of
the
land;
the
board
was a single board facing
the
road and was visible from it.
n
1968,
the
plaintiff replaced
this
board with a larger one. This was a double
sided board
of
a V shape erected on hoardings, each side
of
it
measuring roughly five
feet
by
four
feet,
advertising
the business of
E. Powell Co. as Tree Surgeons
and contractors
and giving
the
plaintiff's address at
Nutwood
Farm, with a telephone
number.
t
was again visible
from
the
road. t remained on
the
south east corner
of the
land until December 1972, when a person employed
by
Mr.
McFarlane,
removed
i t
and took it to
the plaintiff's house. One half
of this double fronted
board
was available for inspection in court.
A good deal of evidence was given in
relation
to this sign and
it
provided
some puzzling features
particularly
because, while the
plaintiff was adamant that
the
sign, removed in 1972, had been a
double fronted sign of the nature which
I have
described, and which
had been erected in 1963, Mr. and Mrs. McFarlane were equally
adamant that
it
had
been
a mere single
fronted
one. Without thinking
it necessary to particularise
the
evidence, however, because this is
not an important matter, I have come to the conclusion that Mr.
and
Mrs. McFarlane's recollection
on this point
must
be mistaken.
The
plaintiff's evidence on
it
was supported not only by evidence from Mr.
Jeffries, Mr. King and Mr. Marshall, but from one of Mr. McFarlane's
own
witnesses, Mr. Donegan; Mr. Barber
gave
no evidence.
From 1962 on wards
the
plaintiff (whose evidence on this point is
supported by
that
of Mr.
King,
Mr. Marshall and Mr. Skinner,
among
others) used from
time
to
time
to park
lorries
and other
vehicles
on
the disputed land in connection
with
his tree surgeons business;
though
they were
frequently
replaced, he always had a
crane
lorry
and another
lorry
in use in
this
business. From time to time he also
parked
cut
tree
trunks
on
the
land,
before
they
were taken to the
timber mills; he would load and
unload them with
the assistance of a
crane lorry. For
the
purpose of allowing
improved
access for vehicles
and timber, he improved the access way which he
had
created
on the
drive. He continued parking vehicles and timber on
the
land until
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462
PROPERTY AND
COMPENSATION
REPORTS
about 1970, when he made
other
arrangements, partly because
the
disputed
land
is sloping
ground
and
therefore
not
entirely convenient
for the
stacking of
timber.
Over
all the years from 1956
t
1978 the plaintiff
shot from time
to
time
on the disputed
land
and organised a clay pigeon shoot
with
a
number of friends on
it
in
the
summer of 1978.
In
1972 he again
employed a
Jungle
Buster on the
disputed
land and with its
assistance renewed the fence along
Gatton
Park Road
with
posts and
barbed
wire.
In that year he
also started completely refencing the
eastern
boundary with
a
rustic type
fencing of wooden
posts with
a
rail,
working
from north to
south,
but did not get very far because of
the intervention of Mr. McFarlane.
In about August 1972 Mr. and Mrs. McFarlane paid a visit to the
land
and noticed the
new
fence along
Gatton Park
Road and
part
of
the
drive.
They
saw
the
plaintiff's address
on
his
advertising
display
board and
visited
him at
his
house in order to
try
and dis( over who
had done the fencing.
There
is a conflict of evidence as to precisely
what was
said at
the ensuing meeting. However, I think
that the
plaintiff made it clear that
he
was seeking to establish a possessory
title
to the
land,
while Mr. McFarlane made i t clear that
he regarded
himself
as
still the true owner of the
land
and said
that
he would have
to consult his solicitors. The plaintiff duly received a letter written
by
solicitors instructed on behalf
of
Mr. McFarlane dated August 14,
1972, asserting Mr.
McFarlane's title
to the land
but
offering the
plaintiff a grazing agreement, an offer which he never accepted.
On
October
16, 1972, Mr.
McFarlane
made an application for
planning
permission for
the
erection
of
three
bungalows
on
the
dis-
puted land, but
this
application was refused
on January
26,1978. On
May
29, 1978, Mr. McFarlane entered
into
a
written agreement with
the second defendant, Mr.
Ransom, under
which Mr.
Ransom
was to
be
entitled, during
the
period of three
years
beginning on June 1,
1973, and ending
on
May 81, 1976, and thereafter
from
half year to
half year, to graze with cattle, sheep
or
horses
the
disputed land.
Certain rights were conferred by the
agreement on either
party to
terminate
what was called " the
tenancy ; but it
is
accepted for
the
purpose of
these
proceedings by both Mr. McFarlane and Mr. Ransom
that
the
grazing
agreement
is still in subsistence and,
as
between the
two
of
them, entitles Mr. Ransom to the possession
of
the disputed
land.
Also
at
about the
end
of
May
1978 Mr.
Ransom let
a horse
or
horses
loose on the disputed land to graze,
thereby ruining
the
hay crop,
which accordingly was not cut by the plaintiff
that
year. Mr. Ransom
did not give evidence before me, but I presume that he put
the
horse
or horses on to the disputed
land
in
purported
exercise
of
his rights
under
the grazing agreement.
The plaintiff " rotorvated "
the
majority of
the
disputed land in
October 1973. The writ in
the
action was issued on November 1, 1978.
Since
then, I understand,
by
means of an uneasy
mo us viven i
there
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POWELL V
McF RL NE
ND
NOTHER
463
has been
a measure of use of the
land
by all three parties but none of
them have
contended
that events which have occurred since then have
any relevance for the purpose
of
my present decision.
The findings which I
have
made as
to
the activities of the plaintiff
on the disputed
land are primarily based
on his own evidence and
that of witnesses called on his behalf which to the extent indicated I
have accepted in this context.
It
is however right
that
I should refer
to certain important features of the defendants evidence in this
context. Neither Mr. McFarlane nor his wife
visited
the
property
between October
1955
when
they went to Germany and 1960.
They
had
no
knowledge whatever
as
to what was
happening
to
i t
during
this period. In July 1960 however Mrs. McFarlane visi ted
the
land
with a view to seeing the Christmas
trees
and
making appropriate
arrangements
about
them,
because she and
her husband
thought
that
by
that
time
they
might be ready
for sale. She
entered
the
land over
the
iron
fence by the
lane
and discovered
that
the Christmas
trees
had
completely disappeared. She did nothing about this because she
thought
that nothing could usefully be done. Her evidence was
that,
though
she
walked at least part of
the
way
up
the lane
and across
the
land, it
was all in a
very
overgrown state and
there
were
no
signs that
anybody had
been
doing anything to the boundaries by way of repair.
Nor did she notice the
creation
of any
new
access way along
the
drive
nor any other activities on
the
land. It did
not
look to her eyes as if
the
grass had beeen
cut.
During the succeeding
years
Mr. McFarlane considered various
possible uses for the
land, such as
the planting of blackcurrants or the
breeding of pigs; but
his
ideas never ripened into a firm intention as
to the mode of
its
future use. In 1966 when his return from
Germany
to England
was fairly
imminent,
he explored the possibility
of
build-
ing
a bungalow on the
land.
For
this
purpose he made
an
application
to the
Reigate
Corporation for
planning
permission through
W.
H.
Colt Son Co. Ltd. in
December
of
that year; but
this application was
refused in February 1967 which for
the
time being put an
end
to that
particular project. Save for the Christmas
tree
project from 1955
up
to the
start
of these proceedings Mr. McFarlane I
think, has
had
no
immediate
use for the land otherwise than
as
an investment. He
made
it
clear in his evidence
that
he has always
been
a busy man and that
his wife
has
always been much more
interested
in the
land than he.
He has
always
had it
in mind however
that he might
develop the
land
by
building
if
at
any time in
the
future
the
attitude of
the
local
planning authority
might
alter
sufficiently to enable this to be done.
He
and his family left Bonn in January 1967 and returned to
England. They went to live
in
a house at Purley, where
they
still
reside.
During the
course
of
the
next
few weeks
that
is
in
February or
March
1967 Mr.
and
Mrs.
McFarlane
went to
visit
the
disputed
land.
Their
evidence is that
from
then on to the start of these proceedings
they
used to pay
it
several visits say three
or
four at least every
year. At first sight it is difficult to reconcile
their
evidence
with
that
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464
PROPERTY AND COMPENSATION REPORTS
of
the
plaintiff because their evidence is that,
during
the
whole of
the
course
of
their
visits
from
1967 onwards
up
to
the
time in
1972
when
they
noticed
new
fencing
and
consequently visited the plaintiff,
they
never saw any
activities on the disputed
land
of the
nature
relied on
by the plaintiff.
In
particular they
never
saw any signs of hay making,
bramble
cutting,
repair or erection of fencing,
cattle,
timber or lorries
on
the
land.
They did
not
notice any new access way that had been
created by
the
plaintiff on
the
drive. They saw an advertisement
display
board
in the
south-east
corner
bearing
his name,
but
thought
it
was doing
no
harm. The whole property and its boundaries accord-
ing to their evidence looked in a rather derelict state and
it never
occurred to them that
anyone
was using it.
The evidence
of
Mr. and Mrs. McFarlane in this context is to some
extent
corroborated
by
that
of a Mr. Donegan, who first
saw
the dis-
puted land in
1969,
when
he
visited
Mr.
Weston s
land
for
the
purpose
of assisting him over a possible
planning
application.
He
revisited Mr.
Weston s
land three times in 1970 and two or three times in 1971.
According
to his evidence, though on these visits he had to pass
up
the
drive and
noticed the disputed
land
on the
western
side, he
never
saw
any
activity
on
it
of any kind and thought the fences on the west
boundary at least in a deplorable condition, being greatly overgrown.
Mr. Arthur Weston, whose late father had
purchased
Mr.
Weston s
land in 1956
and
who had made occasional visits to this land from 1956
onwards
but
had
never
lived
there, gave
evidence to
much
the
same
effect; but he
admitted
that he
did
not take
much
notice of the dis-
puted land or the fences on
it
except for
the
common boundary fence.
Finally
a Mr. Horlock,
who
had
been
at
school
with
the
plaintiff,
gave evidence on subpoena at
the
instance of Mr. Ransom, which was
not at
first sight wholly consistent
with
the plaintiff's evidence.
After
leaving school in 1955, he
took
a job as a farm labourer for a Mr.
Wyman, who worked various fields in
the
area.
He
was employed by
Mr. Wyman for
about
a year. During the course of his employment, he
went up to a hill known as Green Clump Hill about once a week. This
hill is close
t
the disputed land, which is visible from it. He ( ontinued
working in the
area until about
January 1958
when
he
went
into the
Army for
nearly six
years. His evidence was that he could not remem-
ber seeing
the
plaintiff on the disputed land or doing any work to its
boundaries at
any
time between 1955
and
1958. After coming
out of
the
Army
in August 1968, according
to
his evidence, he
saw
the dis-
puted
land
frequently.
In
particular he saw
it almost
every day be-
tween
1966 and 1971, because by then he had become a roof tiler
and had made an arrangement
that
he should store tiles in
the
yard
of Mr.
Hammond,
who
then
owned
land
on the opposite side of the
drive.
During
the whole of
this
period of 1968
to
1972, according to
his evidence, he
never saw
the plaintiff on the disputed
land
or any
work
being done to fence it;
indeed he never saw
a cow on
the
land
either
during
this
period or the earlier period before he went into
the
Army.
However, while Mr.
Horlock struck me as an
entirely
honest
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8/12/2019 (1979) 38 P. + C.R. 452
14/36
POWELL v McF RL NE ND NOTHER
465
witness, he
did
not
strike me
as a very observant man. He
accepted
that the various activities alleged by
the
plaintiff could
have
gone on
without his noticing them.
He
was not, I think, much interested in
the
disputed
land;
as
he said,
it
was not
his land and
he
was
not
bothered.
In
order to
get
to Mr.
Hammond's yard,
he had to go
only a short way up the drive and so would not have necessarily
seen the whole field. My analysis of his evidence therefore is
that,
while it does suggest that
the
scope of the plaintiff s activities on the
disputed
land, particularly
by
way of
repairs
to
the
boundary
fences
during the 1960s, may have
been
limited,
it
does
not prove
that
these
activities did not take place.
Essentially
the
same comment applies in relation to
the
evidence of
Mr. and Mrs. McFarlane, Mr. Donegan
and
Mr. Weston. I entirely
accept that,
with
the exception of the sign
board,
none of
them
noticed
any
activities
of
the
plaintiff
on
the
disputed
land until
1972. So
far
as
Mr. and Mrs. McFarlane were concerned, however, their visits were
fairly spasmodic. Even
when
they came they
by
no
means
always got
out
of the car; sometimes they merely drove past the
land.
Frequently
when
they got
out of the car,
they did
not go
on
to the
land
itself,
because access was not
particularly easy
or comfortable; and
their
inspections were not, I think, in general either
detailed
or care ful.
The plaintiff has
never
claimed
that
his activities on
the
land took
place every hour
of
every day
or
indeed on every day
of
every year.
t
is therefore perfectly possible
that,
as is his evidence, his activities
of
hay
cutting, fence repairing, placing
timber
and lorries on the
land
and so forth
continued
long after the McFarlanes return to this coun-
try
in 1967, without their noticing it until 1972.
t
is likewise possible
that they
could
have continued without
being noticed
by
persons
such as
Mr. Weston
and
Mr. Donegan, whose visits to the area
of
the
disputed
land
were
only
spasmodic. Mr. Powell s own evidence
that
he carried
out activities on the land
between
1956 and 1978 sub-
stantially of
the
nature alleged in his pleading is to a considerable
extent corroborated
by the
evidence of a number of witnesses such as
Mr. Jeffries, Mr. Skinner, Mr. Marsh and Mr.
King
who, unlike any
of
the
defendants'
witnesses, had themselves
actually
worked on the
land and thus had the best opportunity to become acquainted with it.
t
was also supported
by
a
proof
of evidence signed by Mr.
Ham
mond, who had purchased
the
house
known as
The
Lodge
immediately
opposite the
south-east corner
of the
land
in 1956 and
lived
there until
June
1972, so
that
he
had
ample
opportunity
to
see
what was going on.
He
died
in 1975,
but
his proof
was
admissible
through the
invocation
of
the
procedure
provided
by the
Civil
Evidence Act 1968 in
regard
to hearsay statements. The solicitor who
took this proof, Mr. Mellows,
gave
evidence before
me.
However, I
think
it
is
fair
comment that the
very
fact that the plaintiff s activities
were not observed by Mrs. McFarlane in 1960
or
by her
husband
and
her
or
by Mr. Weston, Mr.
Donegan
or Mr.
Horlock
in later
years
is
some indication that in 1960 and in later years these activities were
PCR-38
30
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8/12/2019 (1979) 38 P. + C.R. 452
15/36
466 PROPERTY AND COMPENSATION REPORTS
of a somewhat limited nature.
The
same comment applies, though less
forcibly,
in
relation
to
Mr. Horlock s failure
to
observe
any
of
the
activities of 1956 and 1957.
When the
writ
in the
action was issued,
Mr.
McFarlane was
in the
first instance joined
as the
sole
defendant to the
proceedings. The
statement of claim in its original form was
very
short, claiming, so far
as material for present purposes, that
the
plaintiff had been in adverse
possession for upwards of 12 years, between 1956
and
the date of
the
issue
of
the writ,
of the
disputed land, alleging
that Mr.
McFarlane
claimed
to be the
owner
and
registered
proprietor
of
the land and
that
he disputed the
plaintiff s claim
to
adverse possession,
and
seeking
by
way of primary relief a declaration that the plaintiff had been in
adverse possession of the
land
for upwards of 12 years and is entitled
to be registered
as
the
proprietor or
alternatively a declaration
that
any
title or
right
of
Mr. McFarlane
has
been extinguished.
The statement of claim was followed by a defence served on behalf
of Mr. McFarlane, paragraph 1 of which consisted of a bare denial
that
the
defendant had been in adverse possession of
the
disputed
land
or
any
of
it for upwards
of
12 years from 1956
or at
all. He pleaded,
as
was
the
fact,
that he
had since 1952 been registered
at
H.M.
Land
Registry as proprietor of the land with title absolute. He included a
counterclaim in which he asserted that during the period of six years
before
the
commencement of
the
action
the
plaintiff had trespassed
upon the
land
by .. entering upon
it, removing trees
and
shrubs
and
erecting
an advertisement hoarding and he
claimed damages.
At
a
later
stage, however,
in
response
to
a
request
for further
and better
particulars, Mr. McFarlane informed
the
plaintiff
that
he did
not
intend to rely
upon
the claim in respect of
the
removal of trees or
shrubs
or
entries
upon the land,
save
in
relation
to the
erection of
the
hoarding.
Mr. Ransom was subsequently added as a defendant
to
the action.
On March 17, 1975, Goulding J. gave
the
plaintiff leave
to
amend
the
statement of claim,
but
refused
an
application made on his behalf for
further and
better particulars
of
paragraph 1
of
Mr. McFarlane s
defence.
The statement of
claim was then
amended
so
as to
include
an allegation
that
Mr. Ransom claimed
to
be in possession of the dis-
puted land as against
the
plaintiff by virtue of
the
grazing agreement
and
that
he
disputed the plaintiff s claim to adverse possession.
I t
further
contained
an
allegation
that
in
the
middle
of
1978
Mr. Ran-
som
had
caused a horse
to
graze
on
the
disputed land and
damage
the
plaintiff s
hay
crop. The prayer
to
the statement of
claim was
amended to include a request for appropriate relief against both
defendants.
A defence was served on
behalf
of
Mr.
Ransom in due course, in
which
he
denied that
the
plaintiff had been
in
adverse possession
of
the disputed land
and
counterclaimed for possession of the disputed
land, on
the
grounds that he was entitled to this by virtue of
the
graz-
ing agreement entered into between
him and
Mr. McFarlane.
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8/12/2019 (1979) 38 P. + C.R. 452
16/36
POWELL
v MCFARLANE AND
ANOTHER
467
There are
only
two further matters
to which I need refer in
relation
to the pleadings. First
the
plaintiff, in response to a request, gave full
further and better particulars
of the
nature of his case on possession,
which were
subsequently
slightly amended. As will
appear
from a
comparison of
these
amended
particulars with
the facts found earlier
in this judgment, the
facts
alleged in them are in my judgment for the
most part proved, though I think they fairly may be said to give a
general impression of more widespread, frequent
and
obvious activities
by the plaintiff on the
land, particularly
in
relation to
the years subse-
quent to 1956 and 1957, than were in fact
carried
out by him. Sec-
ondly, I should mention that at the
trial
I gave leave for the re-
amendment of
the
statement of claim so as
inter alia)
to include a
new paragraph lA in
the
following terms:
Alternatively,
if
(which is denied)
the
plaintiff
has
not
so posses-
sed
the said land for himself
throughout
the
said
period, posses-
sion has
been
successive.ly for his grandparents, Mr.
Bishop
and
Mrs. Bishop, or one of them and himself, and the plaintiff will
rely on
the
same physical acts on
or
in respect
of
the
said
land
as are
set out in the amended
further
and
better
particulars of
the statement of claim
and
will say
that
the intention of the
plaintiff to possess the said
land
is to be attributed to the said
Mr.
and/or Mrs. Bishop as
the
case may be.
The
disputed
land
being registered land, the freehold
estate
of
Mr.
McFarlane as
the registered proprietor thereof
cannot
on
any
footing
have been actually extinguished. If, however, the plaintiff had
acquired
title against him
by
virtue of
the
Limitation Act 1939, such
estate
would
be
deemed
to
be
held
by
Mr. McFarlane
in
trust
for
the
plaintiff, under the combined effect
of
section 16 of
that Act
and
section 75 (1) of the Land Registration Act 1925.
In
the latter con-
tingency,
Mr. Ransom
too would have taken his interest in the land
subject to any rights acquired
by
the plaintiff under
the
Limitation
Act 1939: see sections 20 (1) b), 3 (xvi), 3 (xxii) and 70 (1) (f)
of
the
Land Registration Act
1925. For
present
purposes therefore Mr.
McFarlane
and
Mr.
Ransom
stand on
much
the
same
footing in
defending this
action
and
it
makes no
practical
difference
that
the
disputed
land
is registered land.
The plaintiff s claim is primarily based
upon
section 4 (3)
of
the
1989 Act, which so
far as
material reads as follows:
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.
. .
I t has
not
been
suggested
on behalf
of
either of
the
defendants
that
the legal position is
altered
merely because they
are as
a matter of
form
defendants
to
the
present proceedings rather than a plaintiff
seeking to recover
the
land. The crucial question therefore is whether
Mr. McFarlane s right
of
action to recover
the
land accrued to him
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8/12/2019 (1979) 38 P. + C.R. 452
17/36
468
PROPERTY AND COMPENSATION REPORTS
before
November
1, 1961, that is to say more than 12
years
before
the
writ
was issued
on
November
1, 1978.
Section 5 (1) of the 1989
Act
defines
the
date when a right of action
to
recover
land
is
deemed
to accrue,
as
follows:
Where
the person bringing an
action
to recover
land,
. . has
been in possession thereof, and has while entitled thereto been dis
possessed or discontinued his possession, the right of action shal1
be
deemed to have accrued
on the
date
of the
dispossession
or
discontinuance.
For this purpose, dispossession refers to a person coming in and
putting another out of possession, while discontinuance refers to
the
case where
the
person in possession abandons possession and another
then takes
it.
The
authorities however show
that
merely
very slight
acts
by
an
owner in a
relation
to the
land are
sufficient to negative
discontinuance. Mr.
Lyndon-Stanford,
on behalf of the plaintiff,
rightly in my judgment, has not founded any argument on discon
tinuance. His case is quite simply that Mr. McFarlane was dispos
sessed by the plaintiff in 1956
or
1957 and
that
accordingly Mr.
McFarlane's right
of
action
is
deemed to
have
accrued
in 1956 or 1957
and is
now barred. t
is theoretically possible that dispossession
could
have occurred between 1958 and 1962, even though it did not take
place in 1956 or 1957; such a contention, however, is
unsustainable
on
the facts and is
not put
forward.
Section
10
of the 1989 Act provides:
(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.
(2)
Where
a
right
of
action
to recover land has
aecrued
and
thereafter, before the
right
is
barred,
the
land
ceases to be
in
adverse possession, the
right
of
action
shall
no
longer be
deemed
to have
accrued
and no fresh
right
of action shall be
deemed
to
accrue unless and until the land is
again
taken
into
adverse
possession.
It
was
accepted
by counsel for
both
the
defendants, again rightly in
my
judgment,
that
if,
contrary
to their
submissions,
the
plaintiff
began to be in adverse possession of
the
disputed land in 1956 or
1957 and a right of action to recover the land correspondingly accrued
to Mr. McFarlane at that date,
the
land
has
never
ceased to
be
in
adverse
possession
of the plaintiff since
then. Thus
section
10 (2)
is not relied on by the defendants.
Reverting to section
10
(1),
it
will be seen that adverse
possession
is defined
as
simply the possession of some person in whose favour
the
period
of limitation
can run. This definition calls for two com-
-
8/12/2019 (1979) 38 P. + C.R. 452
18/36
POWELL V
McF RL NE
ND
NOTHER 469
ments.
First, time
can never run in favour of a person who occupies or
uses land by licence of the owner with the paper title
and
whose
licence
has
not
been duly
determined, because
no right of action
to
recover the
land has ever
accrued
against the
owner; consequently
such
a person has no adverse
possession
however long his occupa-
tion
or use may
have lasted.
Secondly, though the
fact
that the plaintiff
was an infant in 1956 and 1957 is clearly relevant in deciding whether
he had possession of
the
disputed land, it has not
been
submitted
that this fact prevented him
from being a person
in
whose favour
the period of limitation can
run. Indeed
the decision of the Court
of
Appeal
in
Willis v. Earl Howe,
1
illustrates
that time
may run in
favour of an infant, though on the facts of that case the
infant's
mother held adverse possession in his name.
Neither
the
word possession nor
the
word
dispossession is
defined
in
the
1989
Act.
Possession
of
land,
however,
is
a concept
which has
long
been
familiar and of importance to English lawyers,
because (inter alia) it entitles the person in possession, whether
rightfully or wrongfully,
to
maintain
an
action of trespass against
any other
person who
enters
the
land
without his consent, unless
such
other person
has
himself a
better
right
to
possession.
In
the
absence of authority, therefore, I would for my own part
have
regarded
the word possession in the 1989 Act as bearing the
traditional sense of that degree of occupation or physical control,
coupled with the requisite
intention
commonly referred to as
animus
possidendi, that
would entitle a person
to maintain
an action of tres-
pass in
relation
to the relevant land; likewise I would
have regarded
the word dispossession in the Act as
denoting
simply the taking of
possession
in
such
sense
from
another without the
other's
licence
or
consent; likewise I would
have regarded
a person
who has dis-
possessed
another
in
the sense just
stated as
being
in
adverse
possession for the purpose of the
Act.
Three
recent
decisions of the Court of Appeal, however,
indicate
that this
may
be too simple a way
to
look
at the
matter. The first of
these
decisions is
Wallis s Cayton Bay Holiday Camp Ltd. v. Shell-Mew
and
B P
Ltd.
2
(which I will call
the Wallis
case).
The
second is
Treloar v. Nute.
3
The
third is Gray v. Wykeham-Martin which was
decided on January 17, 1977; I will call i t the Gray case.
On the first hearing, there was a long debate before me as
to
the
effect
of the
first
two of these
decisions.
After
I had
prepared
my
written judgment
and
indeed was
about
to
deliver
it,
counsel
requested
that
the matter should
be
restored for further
argument
in
the light of the Gray case, of
which
they
had
been
previously unaware,
and
also in view of a further recent Court of
Appeal
decision, ed
1 [1893] 2 Ch. 545, C.A.
2 [1975] 1 Q.B. 94; [1974] 2
W.L.R.
387; [1974] 3 All
E.R.
575; (1974) 29
P. C.R. 214, C.A.
3 [1976] 1
W.L.R.1295;
[1977] 1 AllE.R. 230; (1976) 33 P.
C.R.
41, C.A.
, (Unreported).
January
17,1977, Court of Appeal (Civil Division) Transcript
No. lOA of 1977.
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8/12/2019 (1979) 38 P. + C.R. 452
19/36
470
PROPERTY AND
COMPENSATION
REPORTS
House Farms Thorndon) Ltd. v. Catchpole,
5
which
had
been decided
on
November
12, 1976.
The last-mentioned case, which I will call the Red House Farms
case, is, I think, only marginally relevant
to
the present facts. The
other
three cases, however,
are
very relevant,
and as
I will indicate,
to
my mind present certain
problems. However, whatever else
may be in
doubt as a result of recent, somewhat conflicting, authorities, one
negative proposition of law in
my
judgment remains quite clear; an
intruder cannot
be
said to have dispossessed
an
owner of
land
for the
purpose
of the
1939
Act
unless
(at
least)
the intruder
has taken over
from
the
owner possession
of the
land,
in the ordinary
sense
of
posses
sion recognised as such by law, without the owner's licence or consent.
On
the
facts of the present case
it
is mani festly impossible
under any
general principles of law to imply
any
licence or consent given to
the
plaintiff
in
1956
or
1957
by
Mr.
McFarlane, who
at
that
time
was
in
Germany and
had
no knowledge
of
his existence. The decisions in
the
Wallis case
6 and
the Gray case
7
suggest
that,
for the purpose of
applying
the
1939 Act,
it may
be necessary
to
impute
an
implied or
hypothetical licence in circumstances where a licence could
not be
imputed
for
any other
purpose. Though I shall in due course
revert
to
these
decisions, I propose
to
devote
the
greater
part of the rest of this
judgment to consideration of the question whether in 1956 or 1957
the
plaintiff acquired possession of the disputed land in the ordinary
sense of possession recognised as such by law. f
he
fails
to
establish
this
point, his claim
must
fail, quite
apart
from
any additional
hurdles
placed in his way
by recent
Court
of
Appeal decisions.
t
will
be
convenient
to
begin
by
restating
a few basic principles
relating to
the
concept of possession under English law:
(1) In
the
absence
of
evidence to
the
contrary, the owner
of
land
with the paper
title is deemed to
be in
possession
of
the land, as being
the
person
with the prima
facie
right to
possession.
The law will
thus,
without reluctance, ascribe possession either to the paper owner or
to
persons who can establish a
title
as claiming
through the
paper
owner.
(2) If
the law
is
to attribute
possession
of land
to a person who can
establis