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1 Paragraph numbers in this judgment are as assigned by the court.

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PURBRICK v HACKNEY LONDON BOROUGHCHANCERY D IVISION

(Neuberger J.): June 26, 2003 1

[2003] EWHC 1871; [2004] 1 P. & C.R. 34

Adverse possession; Improvements; Intention

Land lawAdverse possessionBuilding without door or roofUsed by P from1988 to store building equipmentCorrugated iron chained to doorwaySecured with two padlocks1992 proper door installed and rst oor restoredWhether title obtained by adverse possessionWhether intention to possess manifested between 1988 and 1992

Sometime in the 1970s property owned by the defendant council had been thesubject of a re. Much of the property was subsequently demolished and the site

became a car park. The building which was the subject of the proceedings stood ina corner of the site. It had not been demolished but was a burnt out shell some 4mwide, 6m long and 4m high. It had a doorway, but no door, and rubbish had beendumped inside. The roof had collapsed or had disappeared. In 1988 P, a builder,cleared the rubbish and began to store ladders and other equipment in the building.He put a sheet of corrugated iron across the doorway, securing it with a chain and two padlocks. P had been reluctant to carry our further work in case anyone had tried to stop him using the building. He also wanted to keep a low prole in case theowner saw him. In 1992, however, P installed a proper door and restored the rstoor. Thereafter, P remained in occupation. Following a hearing in 2002, theDeputy Solicitor to the Land Registry determined that P had not made out a casethat he had obtained title by adverse possession. P could not rely on the initial four years occupation between 1988 and 1992 because his intention to possess the

building was not apparent and his acts in relation to the building were open to morethan one interpretation. On appeal:

Held, allowing the appeal, that P had acquired the property by adverse possession. The natural inference to be drawn was that between 1988 and 1992 Pintended to possess the building. He did what he could, without carrying outsubstantial improvements to the building, which were carried out in 1992, to

maintain possession by substantially, exclusively being in physical occupation and by placing a makeshift door with two locks on it, thereby excluding anyone elsefrom gaining access other than by using a ladder to get over the four metre wall.There could be no justication for holding that the mere fact that from 1988 to 1992P could have done more on the land, and in particular that he could have improved it, prevented him from claiming that he had physical possession. P had had full and

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real occupation of the property and the nature of the occupation was unequivocallyconsistent with possession. Further, the fact that P was aware that he was liable to

be dispossessed as a right did not prevent him being in possession. It was also tosome extent implicit in the law of adverse possession that an owner who makes nouse of the property should be expected to keep an eye on it to ensure that adverse

possession rights are not being established.

Cases referred to:(1) Buckinghamshire County Council v Moran [1990] Ch. 623; [1989] 3 W.L.R.152; [1989] 2 All E.R. 225; (1989) 58 P. & C.R. 236; (1989) 133 S.J. 849; [1989]L.G.R. 145; (1989) 139 N.L.J. 257, CA(2) JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 A.C. 419; [2002] 3W.L.R. 221; [2002] 3 All E.R. 865; [2002] H.R.L.R. 34; [2003] 1 P. & C.R. 10;(2002) 28 E.G.C.S. 129; [2002] N.P.C. 92; [2002] 2 P. & C.R. D22, HL(2) Littledale v Liverpool College [1900] 1 Ch. 19, CA(3) Ocean Estates v Pinder [1969] 2 A.C. 19; [1969} 2 W.L.R. 1359; (1969) 113S.J. 71, PC(4) Powell v McFarlane [1977] 38 P. & C.R. 452(5) Prudential Assurance Co Ltd v Waterloo Real Estate Incorporated [1999] 2E.G.L.R. 85; [1999] 17 E.G. 131; [1999] E.G.C.S. 10; [1999] N.P.C. 8, CA(6) Rains v Buxton [1880] 14 Ch. D. 537.

Legislation referred to:Limitation Act 1980.

Appeal by the claimant, Victor Purbrick, from a decision of Mr C.W. Martin,the Deputy Solicitor to Her Majestys Land Registry, given on February 24, 2003,that the claimant had failed to make out a case that he had obtained title by adverse

possession to a building of which the registered proprietor was the defendant, theLondon Borough of Hackney. The facts are stated in the judgment.

Jonathan de Rohan , instructed by WH Matthews & Co, for the claimant. Harry Spurr , instructed by Hackney Legal Services, for the defendant.

JUDGMENT

NEUBERGER J.: This is an appeal from the decision of Mr CW Martin, theDeputy Solicitor to Her Majestys Land Registry. Following a hearing on January28, 2003, he decided on February 24, 2003, in a written decision, that Mr Victor Purbrick had failed to make out a case that he had obtained title, by adverse

possession, to a building which was part of a registered title, of which theregistered proprietor was the London Borough Council of Hackney.

The decision of the Deputy Solicitor is full and clearly reasoned. The building,the subject of these proceedings, comprises a small part of a property, registered inthe name of the Council, which is 183, 185, 187 Stoke Newington High Street, 1 to11 Aldam Place, a yard and garage, and the site of Aldam Place itself. Sometime inthe 1970s, Aldam Place was the subject of a major re and much of the propertycomprised in the title had been demolished, and the site of Aldam Place became a

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car park. The building, the subject of these proceedings, (the building) isattached to the rear of 179 Stoke Newington High Street. The Deputy Solicitor described the building in these terms:

It is about 4 metres wide, 6 metres long and about 4 metres high. For somereason, possibly because of its particular position in a small corner of the site,it survived demolition but stood derelict for many years

The evidence of Mr Purbrick, which was accepted by the Deputy Solicitor, wasto this effect. In the summer of 1988, he was living in Southend and was working asa builder in east London. He stored plant and equipment in his van, which he used to park near the building. He noticed that it was what the Deputy Solicitor described as a burnt out shell. It had a doorway but no door and rubbish had beendumped inside. The roof had either collapsed or disappeared.

In September 1988, Mr Purbrick cleared the rubbish and began to store laddersand other equipment in the building; he chained them securely together. Hecovered the equipment and building materials with a tarpaulin, because of the lack of a roof. In about October 1988, he put a sheet of corrugated iron across thedoorway and chained it to the old doorframe, securing it with a chain and two

padlocks. Mr Purbrick said, and the Deputy Solicitor appears to have accepted, thatthis arrangement:

Was intended to serve as a door and prevent anyone else from getting into the property

This remained the position for four years. The Deputy Solicitor said that,although this arrangement was very basic, Mr Purbrick had been:

Reluctant to carry out any work on the property in case anyone else had tried to stop him using it. He also tried to keep a low prole in case the owner sawhim

He also told the Deputy Solicitor that if the council had tried to reclaim the

property he would have tried to rent it. By 1992, nothing had happened to disturbMr Purbricks use of the building, and he then decided to instal a proper door and roof, and to restore the rst oor. This he did in the autumn of 1992. Thereafter, heremained in occupation of the building.

In effect, it is, and was, common ground between the parties before the DeputySolicitor, and indeed, before me, that the crucial period to be considered is between1988 and 1992. If Mr Purbrick establishes that he was in adverse possession of the

building between 1988 and 1992, then he will manage to attain 12 years adverse possession and, accordingly, his appeal should succeed. If, as the Deputy Solicitor concluded, he cannot rely on those approximately 4 years occupation asconstituting adverse possession, then, as the Deputy Solicitor found, hisapplication must fail.

The case law relating to adverse possession has been bedevilled by difculties asto the meaning of the word adverse, the elusive nature of possession, and thetendency of courts on occasion to put glosses on the law, perhaps because of anunderstandable distaste for the ability of squatters to obtain title by adverse

possession.

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Be that as it may, the law has been authoritatively claried by the recent decisionof the House of Lords in JA Pye (Oxford) Ltd v Graham , [2002] 3 WLR 221. Thestatutory provisions governing adverse possession in the Limitation Act 1980, areset out in the speech of Lord Browne-Wilkinson, at 229 BG. I do not propose torehearse them here. For the purpose of this appeal, it is necessary, however, to refer to one or two passages in his speech.

So far as the concept of possession is concerned, Lord Browne-Wilkinson said this, at 233H:

There are two elements necessary for legal possession:

1. A sufcient degree of physical custody and control (factual

possession)2. An intention to exercise such custody and control on ones own behalf and for ones own benet (intention to possess)

What is crucial is to understand that, without the requisite intention, in lawthere can be no possession

At little later he discussed the meaning of factual possession. At 234 EF, hecited, with approval, an observation of Slade J. in Powell v McFarlane , [1977] 38P. & C.R. 452 at 470 to 471:

Factual possession signies an appropriate degree of physical control. Itmust be single and exclusive possession, though there can be a single

possession exercised by or on behalf of several persons jointly. Thus anowner of land, and a person intruding on that land without his consent, cannot

both be in possession of the land at the same time. The question what actsconstitute a sufcient degree of exclusive physical control must depend on thecircumstances, in particular the nature of the land and the manner in whichland of that nature is commonly used or enjoyed. . . .. Everything must depend on the particular circumstances but, broadly, I think what must be shown asconstituting factual possession is that the alleged possessor has been dealingwith the land in question as an occupying owner might have been expected todeal with it, and that no one else has done so

Lord Browne-Wilkinson had rather more to say on the issue of intention to possess. At 234H to 235E, he said this:

42. There are cases in which judges have apparently treated it as beingnecessary that the squatter should have an intention to own the land in order to

be in possession. In Littledale v Liverpool College , [1900] 1 Ch 19 24,Lindley MR referred to the plaintiff relying on acts of ownership. . . . In the

Moran case, . . . the Court of Appeal . . . [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct.

I should interpose to say that that proposition is that what is required is not anintention to own, or even an intention to acquire an issue, but an intention to

possess.

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Lord Browne-Wilkinson went on:

Once it is accepted that in the Limitation Acts, the word possession has its

ordinary meaning . . . it is clear that, at any given moment, the only relevantquestion is whether the person in factual possession also has an intention to

possess . . . Slade J reformulated the requirement (to my mind correctly) asrequiring an intention, in ones own name and on ones own behalf, toexclude the world at large, including the owner with the paper title if he be nothimself the possessor, so far as is reasonably practicable and so far as the

processes of the law will allow

I must nally refer to passages in Lord Browne-Wilkinsons speech, at 236G to237A:

In Ocean Estates Ltd v Pinder , [1969] 2 AC 1924, Lord Diplock, giving theadvice of the Privy Council, said that an admission by the squatter to thateffect [i.e. a preparedness to pay rent if asked by the paper title owner] whichany candid squatter hoping in due course to acquire a possessory title would

be almost bound to make, did not indicate an absence of an intention to possess. . . . The decision in Pinder . . . is consistent with principle. Once it isaccepted that the necessary intent is an intent to possess, not to own, and anintention to exclude the paper owner only so far as is reasonably possible,there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession inthe meantime

As I have already indicated, the Deputy Solicitor rejected Mr Purbricks casethat he had been in possession, as that expression had been explained by Lord Browne-Wilkinson for the years 1988 to 1992. I think it is necessary for me toquote from passages in his decision. He said this:

I think it is helpful to consider what a visitor to the site would have beenlikely to see and to assume once the applicant [that is, Mr Purbrick] had started using the disputed building in late 1988. If he had noticed the applicantgoing about his business, the visitor would, I imagine, assume that he wasusing the building to store his equipment, and possibly because he wasworking on a job nearby. The lack of any roof and only a makeshift doorwould suggest that this was just temporary use and that the person concerned,either had the permission of the true owner, or was simply taking a chance and risking that no one would object to him using the property for a short while.The padlocked door would quite understandably be necessary to prevent his

equipment from being stolen or interfered with. Presumably, the apparenttemporary nature of the occupation would be further emphasised by the factthat the person using the disputed building was actually a builder, otherwisewhy did he not put on a proper roof. It would seem odd not to have done so if the building belonged to him or he was intending to take over possession of it.Being a builder, these jobs would surely come naturally to him

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All this changed, of course, when the applicant put in a proper door and started repairing the roof. From then on, I imagine it would be assumed that

the owner, or perhaps an occupier with his consent, was improving the building or, at least, restoring it to its original condition. Alternatively, if itwas someone other than the owner, and someone not under his authority,then, clearly, whoever it was, he was seeking to take over possession in theclearest possible way. He was certainly using it in a manner that wasconsistent with him being the owner.

To my mind, the installation of the proper door and the repair of the roof in1992 were of the greatest possible signicance. . . . Prior to 1992, theapplicant was not behaving in a way that you would expect an owner to

behave. His intention to possess the building was not apparent and his acts inrelation to the building were open to more than one interpretation. Thereafter,he was dealing with the building as you would expect it to be dealt with,namely, as a permanent lock-up for his equipment. His intentions were clear,and his acts unequivocal. It was at this point, in my view, that time beganrunning against the respondent, i.e. the Borough, and has continued to thisday

The Deputy Solicitor went on to point out, quite rightly, that on the basis of thatnding, Mr Purbrick had not achieved 12 years adverse possession and, therefore,his claim failed.

This is an appeal in the normal sense, i.e. by way of review. There is nochallenge to any of the ndings of primary fact made by the Deputy Solicitor, notsurprisingly, as Mr Purbricks evidence was, as I have mentioned, effectivelyaccepted in full. The question is, whether on those facts, the Deputy Solicitor wasentitled to reach the conclusion that he did. I put it that way because Mr Spurr rightly reminded me that it would not be enough for Mr de Rohan to persuade methat I would have reached a different conclusion from the Deputy Solicitor. If thisappeal is to succeed, I must be satised that the Deputy Solicitors decision waswrong, in the sense that he either went wrong in law, or that he reached aconclusion to which, properly applying the law, no tribunal could reasonably havereached.

Between 1988 and 1992, Mr Purbrick exclusively occupied the building and secured it from access to anyone else, including the paper title owner. The extent towhich he lled up the building with his equipment and materials, and the frequencywith which he visited the building during that period, is not entirely clear. But it isclear that the extent to which the building was physically occupied by hisequipment and materials was considerably more than minimal, and may well have

been very substantial. Furthermore, it seems likely that he would have visited the building from his evidence, and from common sense, on a number of occasions probably more than once every working day. It also seems clear that, during the period 1988 to 1992, nobody could physically have visited the building, other than by putting a ladder up against the wall and getting in over the wall, except a keyholder, ie Mr Purbrick or someone provided by him with two keys because therewere two padlocks.

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It seems to me that, to an ordinary speaker of English and, indeed, to any property lawyerwho many would say are not ordinary speakers of EnglishMr Purbrick would appear to have been, at least on the face of it, in possession of the

building from 1988. It is a dangerous question (in the sense that a negative answer cannot be conclusive) but it is nonetheless worth considering: if he was not in

possession, who was? To say that the Council was in possession of the building,when someone else had installed his equipment, had locked it so that nobody could obtain access, other than by putting a ladder up against the wall and climbing over the top of a 4 metre wall, appears to me, at least on the face of it, and subject to anyspecial rule or principle to the contrary, to out common sense and reality.

It is therefore pertinent to ask oneself on what basis the Deputy Solicitor reached a different result. When considering that issue, one inevitably must subject thereasoning of the Deputy Solicitor to careful scrutiny, and it is therefore right toobserve that almost any judgment, if subjected to very detailed scrutiny, can beshown to have some defect in terms of unhappy expression or even somequestionable logic, which should not, in all fairness, impugn the decision. Further,one can be guilty of over-analysis and, accordingly, if one subjects a decision todetailed scrutiny, it is important, at the end, to stand back and ask oneself, havingdissected the various strands of reasoning, whether, taking all the reasons together,the decision is one which nonetheless could have been fairly reached.

I think that there are perhaps four strands in the reasoning of the Deputy Solicitor which led him to his conclusion. In saying that, I accept that some of the strandsoverlap and that one could possibly analyse the decision in different ways. The rstof the four strands is that Mr Purbrick could have done more in the four years;namely, he could have installed a roof and permanent door and reinstated the rstoor, which is what he did only in 1992. The fact that a squatter could have donemore than he did on the land, or in the building, is plainly not enough of itself todefeat a claim for adverse possession. Otherwise, human ingenuity being what it is,virtually any claim for adverse possession could be defeated. Indeed, the simplecontention that the fact that the squatter could have done more on the land should defeat his claim for adverse possession, would fall foul of the reasoning of Slade J.in Powell and of Lord Browne-Wilkinson in Pye . However, given that factual

possession must depend on the particular circumstances and must depend onconsidering what an occupying owner might have been expected to [do], I acceptthat it is not illegitimate to consider what more might have been done.

However, that can be a dangerous approach because the question is not what thesquatter could have done, but what he did, and whether what he did is sufcient toamount to physical possession. To my mind, it is dangerous to conclude that thesquatter did not do sufcient to achieve adverse possession because he should haveimproved the premises. In my judgment, while I would not rule out the possibilityof the court ever holding that there was insufcient activity because there was noimprovement, it would require a rare case where the mere failure to carry outimprovements to a dilapidated property, or property out of repair, meant that thesquatter did not have sufcient physical possession. After all, as some of thevarious passages I have quoted emphasise, unless the squatter believes, mis-takenly, that he owns the property, which at least until the Land Registration Act

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2002 comes into force is an irrelevant factor, he is unlikely to carry out much in theway of improvement because he knows that, at any time, he is liable to be ejected.

I can see no justication in the present case for holding that the mere fact that hecould have done more on the land, and in particular that he could have improved it,

prevents Mr Purbrick claiming that he had physical possession. He occupied the property to the exclusion of anyone else, and it was not a de minimis occupation, itwas a full and real occupation, and he locked out the rest of the World.

I also consider that this aspect is irrelevant to the issue of intention to possess.The fact that he may have done more if he had been the paper title owneras stated

by the Deputy Solicitoris not really in point, as the passages I have read from Pyeemphasise. The question is not whether the occupation is what one would expect of the paper title owner, it is whether the nature of the occupation is unequivocallyconsistent with possession. One only has to bear in mind that a short term businesstenant, who may have no protection under the Landlord and Tenant Act 1954, is in

possession, to appreciate that the absence of any long-term work, even on adilapidated building, is by no means inconsistent with physical possession,although I accept it may be inconsistent with ownership.

The second point, which seems to have weighed with the Deputy Solicitor, wasthe temporary nature of Mr Purbricks occupation and, in particular, his view thathe was liable to be evicted at any time. In a sense, I have already dealt with thataspect of his reasoning. It seems to me that, just as it is inherent that any squatter,

who knows that he is squatting, would say that he would pay rent for the property if asked, so it is inherent in most squatters thinking that their possession may well betemporary. For 12 years, most squatters will know that they have no right to bethere and are liable to be dispossessed as a right. The mere fact that they are awareof that, and that they cut their cloth accordingly, cannot, to my mind, prevent themfrom being in possession. Otherwise, virtually any claim for adverse possessionwould fail on the basis of the intention to possession test not being satised.

Thirdly, there is the fact that Mr Purbrick kept a low prole during the four yearsin question. To some, I accept, that might appear to be unattractive. Against that, it

is to some extent implicit in the present law of adverse possession, that an owner of property who makes no use of it, whatever, should be expected to keep an eye onthe property to ensure that adverse possession rights are not being clocked up. A

period of 12 years is a long period during which to neglect a property completely.It seems to me, that the answer to the point that Mr Purbrick was keeping his

head down, is really two-fold. First, he was not doing anything dishonest or underhand; he was not lying to the Council or its representatives; he was notdenying to anyone that he was in occupation. The notional visitor, discussed by theDeputy Solicitor, would have seen the corrugated iron door and the locks on it.Furthermore, as cases such as Rains v Buxton , [1880] 14 Ch.D.537, referred to byLord Browne-Wilkinson in Pye in a somewhat different context, show, the fact thatthe 12 years possession is clocked up by a squatter, in circumstances where the

paper title owner can say with some justication that he was unaware of what wasgoing on, does not mean that the 12 years adverse possession cannot beestablished. Secondly, it is not as if the Limitation Act contains no protection for a

paper title owner where there has been fraud or deliberate concealment on the partof the person claiming adverse possession. The provisions of s.2(2), of the

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Limitation Act 1980 specically deal with that. There is no question of Mr Purbrick being guilty of any fraud or deliberate concealment and counsel hasrightly raised no such suggestion. It seems to me, therefore, that the Limitation Actcontains the degree of protection, which in this connection the legislature thinksshould be afforded to a paper title owner, and it is does not extend to a case such asthe present.

Finally, the Deputy Solicitor considered the question of how the occupationwould have struck a notional visitor to the site. There are obvious difculties inconsidering the issue of how a hypothetical person, such as a visitor to the site atcertain times, would be struck by what was going on. Apart from anything else, itimmediately raises the question of what knowledge of the facts and the law thehypothetical visitor is to be clothed with. As I read his judgment in Prudential

Assurance Co Ltd v Waterloo Real Estate Incorporated , [1999] 2 E.G.L.R. 85 at87J, Peter Gibson L.J. also had reservations about it. He said this:

[Counsel] relied on the single reference in Powell v McFarlane at p. 478 toany objective informed observer. Slade J words should be understood in thatcontext. He was considering what would probably have been inferred by suchan observer from observing the conduct of a 14-year old boy, usingagricultural land to graze the family cow, and doing other insignicant acts.

Not surprisingly, Slade J found that conduct equivocal. This provides slightsupport for Mr Bowles suggested principle and we would be reluctant tointroduce into this now well understood area of the law, further tests,

particularly those of an articial nature

I would respectfully echo those observations which, although expressed before thedecision of the House of Lords in Pye , appears to me to sit very nicely with thatdecision.

As I have said at the beginning of this judgment, it seems to me that the law of adverse possession has been bedevilled by various articial, or difcult, concepts,and to introduce a person such as the objective informed observer tends, in my

view, to create more difculties than it solves. In one case, a judge may make athrowaway reference in a full and careful judgment to such a notional observer; in asubsequent case, counsel then seeks to invoke that observer, and the judge is thentempted into discussing what that observer is deemed to know or not to know; in acase thereafter consideration of the nature of such a hypothetical observer is raised;and, before one knows it, one is a long way away from the words of the Statutes,and the basic concepts involved in the Statute, and is rather considering thequestion of the informed observer.

In my view, one comes back to the fact that there was here physical possessionand, subject to the points I have discussed, and to one further point, an intention to

possess from 1988. Asking what a hypothetical observer might have thoughtwould tend to confuse rather than assist.

The nal aspect I should mention, is that the Deputy Solicitor appears to have been inuenced by the fact that the possession, whether viewed through the eyes of the notional informed observer or some other person, such as the court, could have

been attributable to a licence or a tenancy or some other right. I do not regard that asa helpful way of looking at matters. Mr Spurr rightly refers to Littledale v

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Liverpool College as being a case where the claim of adverse possession wasdefeated, even though the squatter had fenced the relevant property, because thefencing could have been attributable to a right of way which he enjoyed over the

property. As Mr de Rohan says, that was a case where the squatter actually had aright over the property concerned, namely a right of way, and it seems to me it istherefore of no assistance in the present case, where the squatter, Mr Purbrick, had no rights over the building. Quite apart from that, I think it can be dangerous to relyon Littledale , in any case other than one very close on its facts, for two reasons.

First, although Lindley M.R. expressed a rm view that adverse possession wasnot established at [1900] 1 Ch. 23, the judgment of Sir Francis Jeune at 24 and 25makes it quite clear that he had very considerable doubts about the decision and that, in the absence of Lindley M.R.s views, he might well have gone the other way. The third member of the Court of Appeal, Romer L.J., at 26, described thecase as one of difculty, although he agreed with Lindley M.R. at the end.

Secondly, there are comments about the reasoning of the Master of the Rolls in Littledale , in the speech of Lord Browne-Wilkinson in Pye , in a passage I havequoted and in a subsequent passage I have not read, where he refers to LindleyM.R.s judgment as including a manifestation of the same heresy, that is, theheresy that there be a requirement to intend to exclude the paper title owner. Thoseobservations must, in my view, cast some doubt on the soundness of the decision in

Littledale .

In those circumstances, I have concluded that this appeal should be allowed.Even if one stands back and views the various strands I have identied in thedecision of the Deputy Solicitor together, it still seems to me that one comes back to the basic point that, without carrying out substantial improvements to the

building, which were carried out in 1992, Mr Purbrick did what he could tomaintain possession between 1988 and 1992, by substantially, exclusively being in

physical occupation of the building between 1988 and 1992, and by placing amakeshift door, with two locks on it, thereby excluding everyone else from gettingaccess to the building, other than by using a ladder to get over the 4m wall. There is

nothing in his evidence which can fairly be said to cast doubt on the naturalinference that Mr Purbrick intended to possessnot to own, but to possessthe building. In those circumstances, I allow the appeal.

Appeal allowed.

ReporterDavid Stott.

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