B e f o r e :
THE HON. MR JUSTICE LINDSAY
|| MARK ANDREW ROBERTS
(SUING UNDER THE NAME OF
MARK ANDREW TUDOR,
LORD MARCHER OF TRELLECK)
||- and -
||SWANGROVE ESTATES LIMITED
CROWN ESTATE COMMISSIONERS and
JOHN WARDLAW HANBURY-TENISON
Mr M. Wonnacott (instructed by Darwin Gray) for the Claimant
Mr C. Harpum (instructed by Lee & Pembertons) for the First Defendant
Mr T. Braithwaite (instructed by Farrers) for the Second Defendant
Mr B. Denyer-Green (instructed by Lee & Pembertons) for the Third Defendant
Hearing dates: 16th, 17th, 18th, 19th, 22nd, 23rd, 26th, 29th, 30th & 31st January
and 1st & 2nd February 2007
HTML VERSION OF JUDGMENT
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Mr Justice Lindsay :
- This case raises both familiar and novel issues in the law as to adverse possession and limitation. It is framed as a number of preliminary issues but, to most intents and purposes, it is as if there were four separate actions for adverse possession rolled into one. In each of the four cases the land said to have been acquired by adverse possession consists of parts of the foreshore and bed of the tidal estuary of the River Severn, on its Welsh side, to the south-west of the First Severn Road Bridge. The areas claimed consist of many thousands of acres of sand- and mud-flats and similar land running seaward from the Welsh shoreline and, in three of the four cases, the area claimed runs down to the deep water channel which, rarely in the middle of the estuary, takes its erratic and changing course as the historical boundary as it earlier ran between England and Wales.
- A feature of the action as a whole (as opposed to the preliminary issues) is that each of the parties claiming by adverse possession claims also not merely to have paper title to the area which he or it claims to have acquired by adverse possession but to have had that paper title, by himself, itself or by respective predecessors and to have been in possession for centuries. Unusually, therefore, it is those who, in the preliminary issues as to adverse possession, are the "squatters" - a convenient word I shall use (but not pejoratively) for those who claim by adverse possession – who are the very same persons who, in the main action, will assert that they have paper titles prior to that of he, the Claimant, who, in the preliminary issues before me, can claim only in reliance upon a paper title.
- That situation arises in this way: the Claimant, Mr Roberts, who appears by Mr Wonnacott, has over the years indulged his close regard for Lordships or Manors, their histories and the law in relation to them by acquiring a number of Manors. He has acquired over 60 of them. He has become well known to others interested in this rather esoteric branch of the law and, though not himself a lawyer, is consulted by others with similar interests. He probably knows as much as any lawyer (and more than many lawyers) about Lordships and about that particular class of them known as Lordships Marcher, kinds of Manors or Lordships on the Marches of Wales which, for reasons going back to the time of Edward I, may still have rights distinguishing them from the ordinary run of Manors. Mr Roberts claims (and, as I shall explain, that claim is not in dispute at this stage) that he has acquired the Lordships Marcher (moving southwards and westwards as I describe the Manors) of Mathern, Caerleon and Magor. Describing those Manors by reference to places on land, they relate, running south-westwards, to areas off Chepstow, to areas off Portskewett, further down, off Redwick and stopping a little short of being off Goldcliff. Mr Roberts also claims that the Manor of Porton is a sub-manor of his Lordship Marcher of Magor.
- Mr Roberts' acquisition of such Manors or Lordships is fairly recent; he acquired Caerleon on 12th October 2003, Magor on 15th October 1997 and Mathern (via a trusteeship) on 27th July 2000. Relying on such acquisitions, Mr Roberts set about registering a Caution against first registration at HM Land Registry but soon found himself, in relation to registration, in conflict with the First Defendant, Swangrove Estates Limited ("Swangrove"), which appears by Mr Harpum, as to Mathern and Caerleon, with the Second Defendants, the Crown Estate Commissioners ("the Commissioners") who appear by Mr Braithwaite, as to Caerleon and Magor and with Mr John Hanbury-Tenison as the Third Defendant, who appears by Mr Denyer-Green, as to a slim area, parallel with and closest to the shore, an area which is said to be within the Manor or sub-manor of Porton (and hence is claimed by Mr Roberts, as part of a sub-manor, to fall within his Lordship Marcher of Magor). That strip, although often bearing different colours on the almost countless maps, charts and plans produced during the course of the hearing, was coloured light green on the plan annexed to the Third Defendant's defence. I will call that area, the Porton Green Area, "the PGA".
- Finding there to be conflicts between rival claimants, HM Land Registry directed that there should be proceedings in this Division to resolve them and accordingly on 7th July 2005 Mr Roberts began proceedings against Swangrove, the Commissioners and Mr John Hanbury-Tenison. In the plan annexed to his Particulars of Claim he clearly defined the respective areas claimed against the Defendants respectively. In each case the area claimed has a readily visible boundary only at the shoreline side, with each other boundary being either unmarked riverbed or water, depending in part on the state of the very considerable tides that affect the Severn.
- In their respective defences, each of the Defendants not only sets out his or its respective alleged paper title to the area claimed from that Defendant by the Claimant but pleaded also, relying on adverse possession and limitation, that if (which was denied) Mr Roberts did have the title which he claimed and if (which was denied) his title has the consequences Mr Roberts claimed for it, then, even so, the Defendant respectively concerned had, by himself, itself or their respective predecessors, acquired title by adverse possession against Mr Roberts and his predecessors.
- Mr Roberts did not find himself able to assert adverse possession by himself or his predecessors against any Defendant so it became clear that if all or any Defendants could prove adequate adverse possession as against the Claimant or his predecessors it would become unnecessary to delve into the relative strengths of the historical titles upon which, if they had to, each of the parties would rely. As Mr Roberts' claimed title runs back, he says, to the law stated in the Liber Cardiff de Confuetudinibus Walliae as to the law applicable in the Marches of Wales following the conquest of the Principality of Wales in 1282, a resolution of the issues arising between the parties not by a contest of titles but by way of a resolution of the questions of adverse possession dangled before the parties a possibly more economical way of settling their differences in a manner that would satisfy HM Land Registry. Accordingly on 16th February 2006 in the Cardiff District Registry District Judge Hendicott ordered that there should be a split trial with all claims for adverse possession to be tried first. He directed that there should be a pre-trial review before Judge Wyn Williams QC on 6th November 2006.
- The matter was restored to HHJ Wyn Williams QC on 6th November 2006 when the Judge gave further directions but the Minute of Order which he directed was never agreed or otherwise formalised. The basis on which issues of adverse possession were to be tried as preliminary issues remained still unagreed when the matter first came before me on 16th January 2007. After hearing argument I ruled in two eventually unopposed paragraphs, the first of which may be said to have been redundant in the sense that the learned District Judge had already covered the ground, but the Order I made provided as follows:
"1. Every claim of adverse possession pleaded by any one or more Defendants against the Claimant shall be tried as a preliminary issue.
2. For the purposes only of the hearing of and judgment upon such preliminary issues, then, so long and so often as, at any time relevant to any such allegation of adverse possession, the Claimant claims that in a particular capacity he was then or that his predecessors to that capacity were then true owner or owners of any of the estates, rights or interests in land the present ownership of which is in question in this action, it shall be assumed that the Claimant was then or such predecessors were then in such capacity and that such capacity then entitled him or such predecessors to such estates, rights or interests."
- Thus only adverse possession has been in issue before me, on assumptions favourable to Mr Roberts.
- For ease of reference by Counsel and witnesses to particular parts of the areas with which I have been concerned, a fresh version of the plans annexed to the Particulars of Claim was produced based on the Ordnance Survey of the area and identifying all parts of the bed of the Severn from Oldbury Sands (north and east of the First Severn Road Bridge) down to the seaward boundary of Magor. The squares on the Ordnance Survey, each representing one square kilometre, were numbered from 1 to 153 on this plan, which was referred to as "the numbered" map or plan. Each of the numbers represented, with respect to land to which one or other defendant claimed possession, one square kilometre either of riverbed or, in parts, also of the immediately adjacent land. By no means all of the 154 such squares is an area in dispute in these preliminary issues but, as a rough reckoning, some 80-90 odd of the numbered squares fall wholly or partly within Mathern, Caerleon, Magor or the PGA (which is itself within Magor). That gives a rough idea of the total area in dispute – some 18-20,000 acres – as between the Claimant and one or other of the Defendants.
- At several points, when I come to deal with the facts, I shall need to refer to this or that square on the numbered map but, unfortunately, there is no convenient way of understanding where any particular square is other than by having a copy of the numbered map in one's hands. It also identifies areas such as "the Welsh grounds", "the Bedwin Sands", "the Charston Rock" and the line of the deep water channel. Part of Caerleon is marked as "Danger Area". At several points the words "mud" and "sand" are written on the numbered map. I regret that my references to numbered squares will be unintelligible to a reader who does not have the map in hand but there is no convenient way other than by reference to the numbered map that some particular facts can be established. I should, though, make reference to Denny Island, a small rocky uninhabited outcrop which, roughly speaking, is half way between the English and the Welsh shore in Magor, close to Caerleon, towards the north-eastern boundary of Magor, but which, despite being roughly in the middle of the estuary, is a good distance from what is there the deep water channel which, at that point, runs very close to the English shore.
- Whilst, during the hearing of the preliminary issues, I have not had anyone's paper title put to me, a very brief summary of the titles of the respective Defendants may be helpful to explain how it is that a particular Defendant comes to be the Defendant as to each particular area.
- Swangrove is the estate company of the Dukes of Beaufort. To avoid frequent reference to the relevant Duke of Beaufort as being, relative to any particular finding or assertion, that he was, say, the 8th, 9th, 10th or the current 11th Duke, I shall instead just refer to the relevant Duke as "the Duke" and to all of the Dukes as "the Dukes". It is pleaded that the Dukes, as such and under earlier and lesser titles, have, since the 15th century, enjoyed rights over a huge area of the estuary, said to have been granted to their predecessors by Regalian Grants of 1468 and 1537. That huge area, going also a good deal north and east of any area with which I am concerned and running not only on the English but also on the Welsh side of the deep water channel (and hence alongside as well as including, inter alia, Mathern and Caerleon), has sometimes been called, by reason of the identity of the grantors and grantees, the "Beaufort Royalty". All of Mathern is said to be within the Beaufort Royalty as also is all but a small triangle of Caerleon. Thus as to both Mathern and Caerleon, the contest is between Mr Roberts and Swangrove.
- The south-western boundary of the Beaufort Royalty (running, roughly speaking, from close to Avonmouth on the English shore to a little north and east of Coldharbour Pill on the Welsh shore, abuts the north-eastern boundary of Magor, although, by the way the two boundary lines are drawn, there is a sliver of land running out from the Welsh shore and the small triangle of land that I have mentioned running out as if towards the English shore, because the boundaries of Magor and Caerleon and that for the Royalty are not parallel with one another. So far as concerns paper title, the Crown asserts that it is owner of Magor's foreshore and river bed by ancient prerogative right. The contest as to Magor is thus chiefly between Mr Roberts and the Commissioners.
- As for the PGA, Mr John Hanbury-Tenison, so far as concerns paper title, alleges he has a title running back in part to 1765 and in part to 1879. The contest as to the PGA is between the Claimant and Mr John Hanbury-Tenison.
- The Severn, which, as to the parts with which I shall be concerned, is narrowest where Mathern is on the Welsh shore, wider where it is Caerleon on the Welsh shore and, if anything, only a little wider still where it is Magor on the Welsh shore, is well known for its extreme tides and the areas I shall be concerned with, washed every day by those tides, is an almost flat expanse which, on the Welsh shore, whilst, I apprehend, at points but not always bounded by a seawall, is rarely, if ever, of any great height relative to where the water is at high tide. Even when there is a high tide, the waters are of no great depth and at low tide it is possible (keeping a keen eye on the tide and with a stout pair of Wellingtons) to walk from the Welsh shore to Denny Island which, as I have said, is roughly half way between the English and the Welsh shores. Mr Roberts has done that.
- Whatever the future may hold by way, for example, of wind farms or the tidal generation of electricity, in the periods with which I am concerned the chief uses to which the areas on the Welsh side of the deep water channel have been put have consisted almost entirely of barely remunerative fishing, even less remunerative wildfowling and shooting and, as quite the most remunerative of uses, dredging. The evidence includes that the quality of sand that can be dredged here is of particular value to the construction industry as, unlike many other dredged sands, it needs little processing before it can be used in construction.
- For a time the claim raised in these proceedings by Mr Hanbury-Tenison based on adverse possession extended beyond the PGA and into all or most of the rest of Magor. Had that claim been persisted in it could well have been a gift, so to speak, to Mr Roberts because, as I shall come on to, for adverse possession to count against the (assumed) owner of the paper title, it has to be exclusive. It could thus have been that, as to Magor, each of the Commissioners' and Mr Hanbury-Tenison's claims for adverse possession would fail by reason of the evidence advanced in support of the other. Hardly surprising, therefore, was it that those parties agreed terms with one another and on 12th January 2007 the Third Defendant discontinued so much of his Part 20 claim that asserted adverse possession against the Commissioners.
- In adverse possession cases it is frequently necessary to speak of the party who, by his reference to what is called "the paper title", claims to be the true owner. It seems rather to beg the question to call him the true owner; I shall refer to such persons as the "paper owners".
- The Defendants, acknowledging, rightly in my view, that the onus is on them as (for immediate purposes) the squatters, went first.
- With the scene so set, I shall now turn to the law, which was subject to a great deal of argument.
B. THE LAW
- The Defendants joined together to make a unified set of careful and well researched common written submissions on such of the law as concerned the interests of all of them. Mr Harpum took me through them. They were set out under a series of broad headings some of which I shall adopt
Statutes of Limitation
- Limitation is a creature wholly of statute and the earliest Act the terms of which may need to be in mind for immediate purposes is the Real Property Limitation Act 1833, in force, as to many of its provisions, between 1st January 1834 and 30th June 1940. The period it prescribed for the acquisition of land by adverse possession was 20 years. It did not bind the Crown. That 20 year period was reduced to 12 years by the Real Property Limitation Act 1874, in force from 1st January 1879. The Limitation Act 1939, which did apply to the Crown, adhered to the 12 year period and consolidated and amended the law. At some points in the argument it will be necessary for me to refer to earlier Acts than the current one but, so far as concerns citation, it is not necessary for me to go beyond some of the provisions of the Limitation Act 1980, in force since 1st May 1981.
- Thus section 15(1) of the 1980 Act provides:
"(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned."
- All parties accept that there is no requirement that the 12 year period should immediately precede the time when action is brought – see J.A. Pye (Oxford) Ltd & Another v Graham & Another  1 AC 419 at 431.
- That Schedule 1, Part I referred to provides at para (1):
"Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance."
- Para 8 of that Schedule 1, Part I provides:
"(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession"); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession.
(3) For the purposes of this paragraph—
(b) receipt of rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be treated as adverse possession of the land.
(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."
- The effect that the squatter's possession has is provided for in section 17 which, so far as material, provides:
(a) section 18 of this Act [irrelevant for immediate purposes];
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished."
- Section 37(1) of the 1980 Act provides that the Act applies to proceedings by or against the Crown as it does between subjects. The Defendants thus argue that the Crown can claim the benefit of a limitation period as well as being subject to the burden of one. However, that, in part, is subject to a very extensive argument by Mr Wonnacott which I shall deal with later under the heading of "Can the Crown disseise a subject?"
Basic Ingredients of Adverse Possession
- A squatter who seeks to establish that he is in adverse possession must prove (the onus being on him) that, in respect of the relevant land, he has had both a sufficient degree of physical custody and control ("factual possession") and an intention to exercise such custody and control on his own behalf and for his own benefit (the intention to possess or animus possidendi) - see Powell v McFarlane & Another (1978) 38 P&CR 452 at 470 per Slade J. and the speech of Lord Browne Wilkinson in J.A. Pye (Oxford) Ltd supra at 435-436, a speech with which all others of their Lordships agreed. There are several passages in Lord Browne-Wilkinson's speech which amplify what is required. Thus at para 35 he says that from 1833 onwards:
"the only question [has been] whether the squatter had been in possession in the ordinary sense of the word….."
At para 36 he says:
"The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner."
- At para 37 he points out that the words "possess" and "dispossessed" are to be given their ordinary meanings. At para 38, speaking of earlier and not infrequent descriptions of adverse possession and limitation as requiring or amounting to an "ousting" by the squatter of the paper owner, he comments:
"The word "ouster" is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word."
- Those being the two necessary elements, I shall look at each in turn but, before I do, I should comment on Lord Browne-Wilkinson's reference to "possession in the ordinary sense of the word". Lord Browne-Wilkinson did not at first explain in his paragraph 35 what was the ordinary sense that he had in mind for the word "possession". In ordinary usage "possession" is not uncommonly nothing other than "occupation", yet in legal usage the two can frequently differ; a landlord who, for example, receives rent from his tenant under the lease of a house can be regarded for many purposes as in possession, be it of the house or of the reversion on the lease, despite never crossing its threshold.
- Lord Browne-Wilkinson turned to legal usage of the word in paragraph 39 and thereafter. In paragraph 40 he spoke twice of the elements necessary for "legal possession" and spoke also of "possession at law". In Buckinghamshire County Council v Moran  1 Ch 623 CA (cited in Pye supra) at 637 Slade LJ had spoken of possession as having to be given its ordinary legal meaning. In those circumstances I would not think that Lord Browne-Wilkinson, when he asked the question whether the squatter had been in possession, required a negative answer to be given to that in those cases where the squatter had, by licence or lease, authorised acts of possession by his licensee or lessee and had received whatever payments the licence or lease required. The squatter would be taken to have acquired legal possession by way of those acts; the licensee's or lessee's occupation may be counted by the squatter as acts of possession as against the paper owner – see e.g. Des Barres & Another v Shey (1873) 29 LT (NS) 592 at 594 (the defendants' possession as squatters from 1815 or 1832 included possession during periods over which they had granted tenancies or licences but where the tenants or licensees had been in occupation thereunder and had paid rent to the defendant or his predecessors) - see also Michael Batt Charitable Trust v Adams (2001) 82 P&CR 406 at para 16 and Sze To Chun Keung v Kung Kwok Wai David  1 WLR 1232 at 1235 (where the Crown for a time possessed adversely to the paper owner through its licensee). Indeed, I understood Mr Wonnacott to accept that where a squatter lets a tenant of his into possession the consequent acceptance of rent by the squatter is to be taken as evidence of possession by the squatter; consider Nesbitt v Mablethorpe UDC  2 KB 1.
- Mr Wonnacott accepted, with respect to one particular class of use - dredging - done under licence from the Commissioners, that it was an act to be attributed to the Commissioners such as could be attributed to possession by them of the area covered by the licence and that that could be the case irrespective of proof of payment by the licensee to the Commissioners. But, in that respect, there can hardly be any difference between licensing of dredging and licensing of other uses to which land can be put. That acceptance by Mr Wonnacott was at odds with his keen interest in whether the fees reserved in licences generally had been paid so I shall assume, in Mr Roberts' favour, that acts done under licence, if to be attributed to the licensor as representing possession or control by him, require that the consideration under the licence payable to the licensor, if not clearly waived, is indeed paid. Otherwise, it may be the licensee who is possessing as against the true owner. It follows from this approach that it will not suffice in the case at hand for a defendant to prove that he or his predecessors had, by licence and for consideration, authorised particular uses to which any material land might be put unless he shows also that in consequence the "rents" had been paid.
- In Lord Advocate v Lord Lovat (1880) 5 App.Cas 273 at 288, Lord O'Hagan said:
"As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession."
- In Powell supra (as corrected by himself as Slade LJ in Buckinghamshire County Council v Moran supra at 641) , Slade J held at p. 470-4711:
"Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive control…..Everything must depend on the particular circumstances, but, broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."
- One of the cases cited to me under this heading was Red House Farms (Thorndon) Ltd v Catchpole at  1 EGLR 125 CA where, at p.126k, Cairns LJ said:
"The authorities make it clear that what constitutes possession of any particular piece of land must depend upon the nature of the land and what it is capable of use for: see, for example, Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, at p 641. I am quite satisfied that between 1945 and 1964 the only profitable use of this land was for shooting. Our attention was drawn by Mr Cullen, on behalf of the defendant, to the Privy Council case of Cadija Umma & Anr v S Don Manis Appu  AC 136, where, as appears at p 140, cutting the grass was treated as possession in relation to the particular piece of land. So here I think that the learned judge was quite right to treat the shooting activity as constituting possession."
- In the same case at page 127m Waller LJ said:
"But, in my view, it is clear from the authorities that when considering what is required to amount to possession the court should look at the nature of the land which is being considered, and, as I see it, if the only purpose for which the land can be used is for shooting, and that is the actual use made in this case by the defendant, then that is an act of possession which is quite sufficient for the judge to draw the inferences which he did."
- I accept, of course, those dicta from Red House Farms but it would be wrong to jump from the former to seeing it as invariably necessary to look into whether, in a commercial sense, any profitable use could be made and had been made of some particular land; that it has been will very often be significant but to elevate profit in a commercial sense into a necessary condition would be to distort the requirement that "possession" is to be given its ordinary meaning.
- In my judgment, the authorities well support the defendants' submission that factual possession signifies an appropriate degree of physical control having the following characteristics, namely that it must be a single and exclusive possession (though there can be a single possession exercised by or on behalf of several persons jointly); that if the squatter is in possession the paper owner cannot be; that what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances including, in particular, the nature of the land and the manner in which land of that nature is commonly used or enjoyed; that what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so and that factual possession must be sufficiently clear that, if the owner were present on the land, he would appreciate that the squatter was dispossessing him. That last sentence is supported by Powell supra at page 480 where Slade J says:
"In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intention sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him."
- Immediately before that passage Slade J. also held that, in the absence of concealed fraud, it is irrelevant that an owner is ignorant that he has been dispossessed. But I do not take Slade J's reference to the owner, if present at the land, clearly appreciating that the squatter was actually seeking to dispossess him as importing a subjective test. Just as one is, in that passage, to suppose the presence of the owner at the land, even if he had never been to it, so also one may clothe the owner with the mantle of the "objective informed observer" whom Slade J. had supposed 2 pages earlier in Powell at page 478. A defendant to a claim for adverse possession does not escape it by proving that he had not known of the acts relied upon against him nor by proving that that omission was not attributable to some negligence or default on his part - Rains v Buxton (1880) 14 Ch D 537. The paper owner is not under a duty to be vigilant against intrusions but he runs a risk that he will be treated, as to his plot, in the same way as if he did know of them if he has failed to deploy at least that regard to his own interests as owner of the plot which would be expected of its reasonable owner.
- In his written argument Mr Wonnacott says that the possession has to be "notorious"; I do not go that far. The word used by Lord Hope in Pye, commenting on the law of Scotland where the acquisition of an interest in land is by positive prescription, said that the possession had to be "open" – see Pye supra at 446d-e. He continued:-
"So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough."
- When the paper owner has not noticed the acts of possession or control by the squatter or has not appreciated from them that the squatter is seeking to dispossess him, questions then arise as to whether such a deemed reasonable owner would, in the surrounding circumstances, have had notice of them and would, in such circumstances, have appreciated that the squatter was in course of possession. Both subjective and objective questions as to actual notice and deemed notice of facts and as to actual and deemed appreciation of the consequence thereof can thus arise as to what one might call the obviousness or visibility of the acts of possession and control upon which the squatter relies. Where, as in the case at hand, the current paper owner credibly denies actual notice and where there is no evidence of what his predecessors knew or inferred, the questions become the objective ones of whether a reasonable owner of the plot, paying that due regard to his interests as owner of it which was to be expected of him, would have acquired notice of them and would thereby have clearly appreciated that the squatter concerned was seeking to dispossess him or assert his, the squatter's, possession.
- It follows from this approach that where a squatter claims to be in possession by way of his having authorised entry upon and acts by his tenant or licensee on the disputed land, it will not suffice as possession as against the paper owner merely to prove the grant of the lease or licence and the consideration received therefor by the squatter unless the lessee's or licensee's acts as in fact carried out have been obvious or visible to the degree to which I have referred. That will be an issue of fact with which I shall need to deal.
- I accept the Defendants' argument that the required exclusivity of possession is not negated by the exercise of the legal rights of others such as public rights of way or of fishing or navigation or private rights such as easements. Indeed, I would expect that if, during possession by a squatter, the paper owner's entry on his own land was only in exercise of some such public right or of a private right he had as owner of other land then that, too, would not deny exclusivity of possession to the squatter. More particularly, there is nothing about the openness of the foreshore to access by the public that marks it out as not a fit subject for adverse possession. The Limitation Act 1980 itself contemplates as possible the acquisition of foreshore by way of adverse possession by subjects against the interests of the Crown – see Schedule 1, Part II, para 11. In Lord Advocate v Young (1887) 12 App Cas 544 at 543 Lord Watson (with whom Lord Halsbury and Lord MacNaghten agreed, as also did Lord Fitzgerald, albeit dubitante) observed at page 553:
"It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend on its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity….. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strictest sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject."
- Such practical considerations apart, fishing, as a mode of asserting possession with a view to a claim for adverse possession and limitation, encounters the difficulty that, instead of its necessarily being possession as against the fee (as I shall come on to), it may be no more than an assertion of a profit-à-prendre. Nonetheless, fishing can, on appropriate facts, be taken as a possessive act against the paper owner – see e.g. Lord Advocate v Lord Lovat, supra at 277-278 and 283-284. Of course, the way in which the fishing is conducted is a matter to which the court is likely to pay regard; forms of fishing which involve fixtures into the soil of the foreshore are more likely to be regarded as acts of possession of the soil itself than would be more ephemeral forms of fishing – consider Attorney General v Emerson  AC 649 passim. That is relevant here as most of the fishing in the areas with which I am concerned have been, certainly as to commercial rather than recreational fishing, by way of putts and putchers, both of which require fixture to stakes or poles driven into the soil so that fish, caught in them when the tide is relatively high, can be collected when it is lower.
Intention to possess
- It is for he who claims by adverse possession to prove that he has had, throughout the period of possession upon which he relies, a particular intention in relation to his possession. It is convenient to call this special form of intention the animus possidendi. To adopt again the judgment of Slade J. in Powell supra, at page 417-2, he says:
"What is really meant, in my judgment, is that the animus possidendi involves 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 if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
- But it is not enough if the animus remains wholly undisclosed. Slade J., dealing with the situation where a squatter had acquired possession, continued:
"In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."
- It is, though, no necessary and invariable part of the animus possidendi that it should include an intention to dispossess anyone – see Hughes v Cork, unreported, CA 14th February 1994 where, at pages 11-12 Beldam LJ, with whom Saville LJ agreed, said that a fallacy in counsel's argument as then put to the court lay:
"….. in the failure to distinguish between an intention to possess, which is required, and an intention to dispossess, which is not."
Saville LJ at page 16 developed this requirement further as follows:
"The learned judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, ex hypothesi, have an intention to exclude or oust the true owner. If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could require such a title, whilst those who did not realise that they were doing anything wrong would acquire no right at all. I can see no reason why, as a matter of justice or common sense, the former but not the latter should be able to acquire title in this way. What the law requires is factual possession i.e. an exclusive dealing with the land as an occupying owner might be expected to deal with it, together with a manifested intention to treat the land as belonging to the possessor to the exclusion of everyone else. Obviously if the possessor knows or believes someone else has the paper title to the land he must intend to exclude that person along with everyone else. But in the absence of such knowledge or belief it is in my judgment sufficient for this part of the second requirement simply to establish a manifest intention to exclude everyone."
- Mr Wonnacott, relying on what he suggested, as I shall come on to, was an evasive or placatory attitude on the Commissioners' part, argued that a squatter's intention had to be persistent and unconditional; it does not suffice as animus possidendi, he argued, if the squatter intends to possess only until the paper owner appears and demonstrates to the squatter his superior title. Slade LJ dealt with a similar argument in Moran supra. There, there had been – page 642h – an implicit acknowledgement by the squatter that he would be obliged to leave the plot if, in the future, the paper owner required it for a particular purpose. After looking at authority that might at first sight have suggested that that was correct, Slade J continued to the contrary, at page 643e, when he agreed with the judge below (Hoffmann J) that:
"What is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess – that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. No authorities cited to us established the contrary proposition." [my emphasis added]
- In Pye supra at page 436h Lord Browne-Wilkinson described the Court of Appeal's reaction to the argument as being manifestly correct. He added at page 438 that an intention to exclude the paper owner only so far as reasonably possible sufficed and that even an admission of title by the squatter was not inconsistent with the squatter being in possession in the meantime.
- Such a conclusion as to the animus possidendi, that it is not negated by a belief in the squatter that he is the true owner, is of particular importance in this case because, if there is a common feature among the Dukes, Swangrove, the Commissioners and the Hanbury-Tenisons, it is that they have resolutely believed that they respectively are, or are successors to, long-established true owners of the areas of which they here respectively claim adverse possession.
- There is no requirement that the squatter's acts must be inconsistent with the intentions as to the land which the paper owner has; see Pye supra at 437-438 where Lord Browne-Wilkinson made it plain that a suggestion that the sufficiency of the possession could depend on the intention not of the squatter but of the true owner is heretical and wrong.
Acts as to part as if acts as to the whole
- Does a squatter, to succeed, have to prove that the acts of possession on which he relies have blanketed the whole of the area he claims? There will be many cases of adverse possession when this does not fall to be considered. If, for example, a squatter has occupied a terraced house, has lived in it and has denied access through its doors other than to his visitors, he would, no doubt, be taken to have had possession of the whole house notwithstanding that he failed to prove he had occupied a back room on the top floor. Conversely a squatter who created for himself a small kitchen garden in a corner of a 40 acre field might find, on claiming as to the whole 40 acres, that all he acquired by adverse possession was a fee simple in the kitchen garden part. Before looking at any authorities, I would begin, so varied are the circumstances in which the lands and properties over which adverse possession may be claimed, with a disposition to regard the question as being inevitably one of fact and degree. But what do the authorities say?
- I shall deal with this relatively fully as it is of particular importance in the case.
- In Jones v Williams (1837) 2 M&W 326 the four-judge Court of Exchequer dealt with a question as to admissibility of evidence in the rather different situation of a case as to trespass upon the bed of a river where title was uncertain and where the dispute was whether the claimant or defendant owned the very part of land upon which the alleged trespass had occurred. Parke B at page 331 observed:
"In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same enclosure; for the ownership of one part causes a reasonable inference that the other belongs to the same person: though it by no means follows as a necessary consequence, for different persons may have balks of land in the same enclosure; but this is a fact to be submitted to the jury."
- Lord Blackburn built upon that in Lord Advocate v Lord Blantyre (1879) 4 App Cas 770, a case in which an alternative claim to ownership was based on possession from time immemorial of foreshore and banks in the River Clyde of some 5 miles and 2 miles respectively in length and spread over some 750 acres. At page 791 he said:
"Every act shewn to have been done on any part of that tract by the barons or their agents which was not lawful unless the barons were owners of that spot on which it was done is evidence that they were in possession as owners of that spot on which it was done. No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it. And all that tends to prove possession as owners of parts of the tract tends to prove ownership of the whole tract; provided there is such a common character of locality as would raise a reasonable inference that if the barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it, and what the kind of possession proved was. This is what is very clearly explained by Lord Wensleydale (then Baron Parke) in Jones v Williams. And as the weight of evidence depends on rules of common sense, I apprehend that this is as much the law in a Scotch as in an English Court. And the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately."
- In Lord Advocate v Lord Lovat (1880) 5 App Cas 273, which, if Mr Harpum's researches are correct, dealt with fishing rights over some 30 miles of river and bed, Lord Blackburn at page 314 said:
"I retain the opinion which I expressed in Lord Advocate v Lord Blantyre that this possession of part is evidence, but not conclusive evidence, of possession of the whole, its weight depending upon circumstances. What in my mind gives it in this case great weight is that this undisputed possession was of the salmon fishings in the whole of that portion of the river in which the salmon fishings were of any commercial value." - see also Lord O'Hagan at page 289.
- A more modern example is to be found in Higgs v Nassauvian Ltd  AC 464 where the land, questions as to which arose, were two tracts, one of some 92 and the other of some 12 acres. The land was part arable, part pine barren and not fenced or otherwise enclosed. Giving the opinion of the Privy Council, Sir Harry Gibbs at page 474 said:
"It is clearly settled that acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole."
- Then, after citing the passage I have already cited from Lord Blackburn's speech in Lord Advocate v. Lord Blantyre, Sir Harry continued:
"This rule is not applicable to a question of undefined and disputed boundary (Clark v. Elphinstone (1880) 6 6 App.Cas. 164, 170-171; West Bank Estates Ltd. v. Arthur  1 AC 665, 679-680), but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is enclosed by a wall or other physical barrier. The property claimed by possession may be sufficiently defined in other ways, e.g. where the claim is to trees in a belt of woodland (Stanley v. White (1811) 14 East 332), to the bed or foreshores of a river (Jones v. Williams) (1837) 2 M&W 326 and Lord Advocate v. Lord Blantyre, 4 App.Cas. 770) or to the right to fish in a river (Lord Advocate v. Lord Lovat (1880) 5 App.Cas. 273, 289). In the present case, although the two tracts were not physically enclosed, their boundaries were known and undisputed, and possession of the whole tracts might have been established by appropriate evidence of acts done on parts of them. The question was one of fact and degree and depended upon a consideration of all the circumstances of the case."
- I interpose that in the case now before me the boundaries of Mathern, Caerleon, Magor and of the PGA (delineated on the maps annexed to the Particulars of Claim) are, for present purposes, undisputed.
- To revert to evidence as to part being available to prove possession of the whole, another modern example is found in Powell supra where, in his seminal judgment, Slade J. at page 471 said:
"Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession."
- There is thus ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that there is "such a common character of locality as would raise a reasonable inference" that, if a person were possessed of one part of it as owner then he would so possess the whole of it. Plainly, the principle has been applied to rivers and there is nothing about an area being frequently entirely covered with water and not having visibly marked-out boundaries where it adjoins other waters that denies its application.
- There will nowadays be many cases in which he who is in possession requires planning, environmental or other permission if he is to use the land he possesses as he might wish. Quarrying, opencast mining and dredging come to mind as examples where it may only be on limited parts and over a period of years that the squatter can conduct operations on the land he possesses. Unless a practical view is taken of possession of part representing possession of the whole there would be many cases in which acquisition of the whole by actual possession would be impossible.
- As next appears, Mr Harpum (and he alone, as the other defendants had no need to do so) built upon these cases to develop the "Unum Quid" argument, which I will need to explain.
- Basing himself on the cases relied upon as showing that possession of part of an area or tract might be taken as if possession of the whole of it, Mr Harpum sought to expand that notion into an argument which was conveniently called the "unum quid" argument.
- That expression was used in argument and in judgment in the Scottish case of Lord Advocate v Lord Lovat supra at 280, 290 and 313. There is always a danger in adopting in one jurisdiction a term which may be a term of art in another; its context may not be fully understood. But Mr Wonnacott reduced that risk by providing an extract from Trayner's "Latin Maxims and Phrases collected from The Institutional Writers on the Law of Scotland" 4th Edition 1986 which, so far as material, provided:
"Unum quid – One thing.
This implies that several things are, for some purpose, taken and considered as one…"
- As used in Scots law the term is thus a convenient but loose one; in Lord Lovat it was used of different stretches of a river being yet considered as one river and as possession of part of a barony leading to reputed possession of its whole. That concept, so far, causes no difficulties but Mr Harpum sought at first to develop it further into this: that where a greater area or tract of land, including a disputed lesser part of it as to which paper title was held by A, was unum quid, acts of possession of parts of the greater unum quid as lay outside the disputed part could lead to a successful claim of adverse possession to the disputed part by B, believing himself to be the holder of the rest of the greater area, even if no acts of possession were proved by B as to the disputed part.
- Mr Wonnacott resisted this extension. By careful analysis of the authorities he demonstrated that (whilst practice may have been more flexible where acts of possession over long periods were being used to determine the bounds between some competing ancient but unclear titles) in no case of adverse possession and limitation had acts of possession been counted against the paper owner where the acts consisted only of acts outside that paper owner's title. To meet that analysis, which he did not succeed in dismantling, Mr Harpum retreated to stating instead what was said to be a rule of evidence that ran as follows: where there are no acts of possession by a squatter over a disputed area which he claims from its paper owner by adverse possession, then evidence of that squatter's acts of possession over another area or areas which are unum quid with that disputed area is not admissible against the paper owner in support of the squatter's claim. However, (so continued the suggested rule) assuming that the squatter has proved some acts of his which are acts of possession as to the disputed area then, if that area is unum quid with other land, such evidence is admissible against that paper title owner in support of the squatter's claim by way of adverse possession of the disputed area.
- Mr Harpum described that as a rule of evidence which was said to apply notwithstanding that the paper owner of the disputed area did not know of, could not be expected to know of or could not stop any of the possessive acts outside his own area. The rule applied, he said, even if the acts proven over and possessive of the disputed area itself would not, taken on their own, suffice to substantiate a claim for adverse possession of that area. It might be thought that, if there were to be any such rule, it would be crucial to know what areas might, for the purposes of the rule, be regarded as unum quid; but Mr Harpum accepted, too, that it is unclear on the authorities whether areas are to be regarded as unum quid only if they are within the same title or only if they are owned by the same owner or only if there is such a common character of locality between them as would raise a reasonable inference that acts of possession as to the one area would be taken to be acts of possession of the claimed area.
- I would accept, although I find it difficult to visualise them, that there may be exceptional circumstances where so powerful and notorious was a reputation as to the unity of an area, of its possession as one thing, that a paper owner of part of it ought reasonably to be taken to understand that acts done on it but outside his own part were nonetheless such as could be treated, against him, as possession even of his part. I will later deal with whether, in point of fact, any such exceptional circumstances have here been proved. But in principle, such exceptional circumstances apart, I see no good ground for Mr Harpum's unum quid argument either as first framed or as diminished into a rule of evidence. It is surely of the essence of adverse possession that the paper owner, in point of legal theory at least, could usefully object under the law or could have usefully so objected to whatever acts of possession were relied upon against him and could thereby have generally procured their end. A right of action has to have accrued to him at least notionally but, at any rate outside the exceptional circumstance that I have supposed, in general a true owner of land would be unable to object (on the ground that the acts of possession would otherwise count against his title) to acts outside the area to which his paper title related.
- The unum quid argument, certainly in its initial shape, could have had an important part to play in the decision, especially as to Mathern, but I cannot accept that first form. If, instead, it is a mere rule of evidence, then a first enquiry is whether it would even be necessary. The modern approach in civil cases is, broadly speaking, to admit evidence where its probative force exceeds its prejudicial tendency and to leave questions as to its proper weight to judicial discretion. I see no need to frame a rule, still less to frame one the applicability of which is as so uncertainly defined as the one I am describing.
- In practical terms, whilst I would accept that where areas are unum quid that may assist a squatter in proving his necessary animus but, so far as concerns the case at hand, unless exceptional circumstances such as I have described them are proved, I shall regard as relevant as acts against Mr Roberts' four respective (assumed) paper titles only acts done on, over or with respect to the areas assumed to be respectively covered by those paper titles.
The Defendants' Arguments as to other aspects of Adverse Possession
- The Defendants, relying upon Jourdan's Adverse Possession, para 7-17, argue that if evidence of the animus possidendi is strong then less physical use of the disputed land is required. That requires qualification: a squatter will not find that the burden upon him of showing acts of possession is lightened by reason of some undisclosed fervency in his belief that he intends to possess to the exclusion of the world at large. Conversely, though, the stridency of the manifestation of that intent may be such that acts of possession perhaps equivocal in themselves (as, for example, could otherwise be acts merely of trespass) are more readily to be taken to be material acts of possession supportive of a claim to adverse possession than would have been the case had the manifestation been less obvious. It may be that Jourdan meant no more than that. If it is thus qualified, I would accept the Defendants' argument on this minor point although, on the facts, I doubt it will prove to be significant.
- A submission which Mr Wonnacott did not resist was this: that, given adequate obviousness or visibility, evidence of acts of control by a squatter the purpose or effect of which was a negative one such as to deny or limit access by others or deny the use of the disputed area for particular purposes can be just as indicative of possession by the squatter and should be subject to the same tests as positive acts amounting to, or to the granting of, such access or control.
The Claimant's arguments
- I now turn to propositions advanced by the Claimant. Mr Wonnacott began with what he called his seven keys to understanding adverse possession. The first suggested key is that what is "possessed" is the fee simple in the land. That is acceptable, as the Defendants point out, so long as it is recognised that "possession" is here neither a term of art nor a feudal relict but, in general (I have already touched on its legal meaning), no other than possession, in an ordinary sense, of the land itself. The next key is that adverse possession is always against the fee. That, as the Defendants firstly argue (although this exception is of little relevance in this case), is not invariably the case if by that is meant that 12 years' adverse possession will necessarily leave the squatter with a fee simple. It may not. If, for example, throughout those 12 years the paper owner, out of possession, has been a lessee, a further 12 years' possession after the end of the term would be needed to obtain that fee from the lessor - see Fairweather v St Marylebone Property Co Ltd  AC 510 at 536, 544.
- Secondly, there can only be one person in possession of the fee simple at any one time (joint tenants count as one person) -see e.g. Lord Hope in Pye supra at para 70. The third key is this: the paper title owner is deemed to be in possession of the fee simple unless and until someone else acquires possession of it – see Powell supra at page 470; Fowley Marine (Emsworth) Ltd v Gafford  2 QB 618 at 630. This point has a real rôle to play in the case because it introduces the important feature that the Claimant, Mr Roberts, by way of the title which he is, for immediate purposes, assumed to have, is, in consequence and as a starting point, deemed to be in and to have been in actual possession of the land itself (as also have been his predecessors in title) from the dates of his and their respective acquisitions of the four areas.
- The fourth key is this: there is a bright line between even "persistent" trespass, and exclusive enjoyment of the fee simple. I agree. It is likely to be in the presence or absence of the animus possidendi. Where that is the case it may be far from easy for the paper owner to discern the line but, in principle, there is a clear distinction between the two.
- Fifthly, Mr Wonnacott argues that a squatter does not acquire possession until he obtains exclusive enjoyment of the fee simple (that is why an adverse possessor has a fee simple from day 1 – see Rosenberg v Cook (1881) 8 QBD 162 at 165 CA per Sir George Jessel MR (but obiter so far as concerned Brett and Cotton LJJ). Two things require comment; the fact that on and from day 1 the squatter has a fee simple is no more than a consequence of the first key above and requires corresponding qualification. It does not follow that he has from the outset a title of any value. Secondly, exclusivity of possession will become an issue on the facts because, as I have touched on already, it is said by Mr Wonnacott that both the Commissioners and the Third Defendant have claimed possession of parts of Magor with the result, he argues, that neither's possession had the necessary quality of exclusivity – See Sir Frederick Pollock's "Essay on Possession" 1888, Part III at page 21: "Physical possession is exclusive or it is nothing".
- Mr Wonnacott's sixth key was this: what amounts to exclusive enjoyment of the fee simple depends on the nature of the property and the burdens and incidents that are attached to that fee simple. To that he added that exclusive possession had to involve enjoyment of all the ways in which the site in issue could reasonably be expected to be used. Whilst the initial part of Mr Wonnacott's key was acceptable, the addition, in my judgment, requires further thought. No authority was cited in its support. There are some cases where a single use is all that the land can have been understood to have as a practical use; an example is to be found in Red House Farm supra where the single purpose that the land could be used for was for shooting. Use for shooting thus sufficed to justify a finding of possession having been in the squatter. But in many cases the land in issue will have been capable of more than one use, sometimes mutually exclusive (as, say, a field for stock or as a car park or a site for a car boot sales), sometimes capable of being used together. I see no warrant for the suggested additional requirement; so long as whatever use as is enjoyed can reasonably be taken to represent a taking and retention of exclusive possession it matters not that the site could have been enjoyed or further enjoyed in other ways.
- Last of the seven keys is this: a squatter (or successive squatters) must enjoy the fee simple for the full limitation period: if there are breaks, possession reverts to the paper title owner and time starts running again. I accept that as correct.
- Mr Wonnacott added an eighth proposition, namely this: possession of a fee simple by the paper owner cannot be abandoned. The true owner has it unless and until someone else takes possession. This, perhaps, is no more than the third key viewed from a different angle but, by reference to Megarry and Wade's The Law of Real Property, 6th Edition, at paragraph 3-020, Mr Wonnacott drew attention to the characteristic of seisin that someone must always be seised. It would be fair to add that at para 3-021 the learned editor adds that whilst possession is still, of course, of great importance, it is usually no longer necessary to distinguish it from seisin. It remains the case, though, that, as Mr Wonnacott put it, the default position is that the paper owner is in possession. He referred also to Sir Frederick Pollock's essay, "Possession in the Common Law" supra of 1888 in which, at page 22, Sir Frederick wrote that:
"In approaching the subject as a whole, and in working out various particular problems, there is nothing easier or more misleading than to assume that when a thing is not in anyone's physical control it is not, or on principle ought not to be, in anyone's legal possession. The deemed possession enjoyed respectively by the claimant and his predecessors in title thus persists unless proven to have been determined."
- A further argument which Mr Wonnacott raises is this; an act which is lawful as against the paper owner cannot be an act of possession against his title, even if the person doing that act does not know that it is lawful. He relies on Hughes v Griffin & Another [1969) 1 WLR 23 CA and BP Properties v Buckler  2 EGLR 168. In the former case Harman LJ accepted as persuasive an earlier dictum that possession is never adverse if it can be referred to a lawful title – page 30g and h and, per Russell LJ, at page 31h. Now that Powell and Pye have explained that possession does not need the quality of being "adverse" (that may be its consequence to the paper title owner rather than its required quality) the better view is the way that the matter was described by Cairns J. at page 32h where he said that if the occupation was by permission then the statute of limitation would not run. For these purposes, in other words, it is not possession if it is lawful as against the paper owner. In BP supra, Dillon LJ, whilst approving Hughes, added that it mattered not if the person in possession did not know that his or her possession was lawful; the lawful title would still preclude the person with the paper title from evicting the person in possession – page 171m-172a and see Powell supra at 469. Mustill LJ and Sir Edward Eveleigh agreed. That, as it seems to me, squares with Saville LJ's observations cited at para 49 above. I accept Mr Wonnacott's argument on this point.
- This point becomes important as between the Claimant and the Third Defendant because (as I shall explain more fully when I shall come on to consider the facts as to the PGA) the Claimant accepts that the Third Defendant and his predecessors are entitled to a several fishery over the PGA. If acts by the Third Defendant or his predecessors are, so to speak, to count as being adverse possession against the Claimant then they need to be acts which would not have been lawful even on the basis that the Third Defendant and such predecessors did enjoy a several fishery over the PGA.
- As to other parts of the Claimant's argument, I have already dealt, in effect, with Mr Wonnacott's arguments on possession as to part representing or not representing possession of the whole and as to the unum quid argument in my responses as above to the Defendants' arguments. Amplifying his seventh "key" Mr Wonnacott also argues, as I have accepted, that if a squatter, after possessing for a time but, before having been in possession long enough to extinguish the paper title, then abandons possession, the paper owner reverts to the position he was in before that intrusion. The insufficient possession "… does not leave behind it any cloud on the title of the rightful owner" – see Agency Co Ltd v Short (1888) 13 App Cas 793 JCPC 798-799. Mr Wonnacott also draws attention to Stening v Abrahams  1 Ch 470, a case which dealt with whether a lessee had so excluded himself from part of the demised premises as to have been in breach of a covenant not to part with possession of any part thereof. The case, in my view, throws no light on the circumstances in which a squatter will be taken to have acquired possession. Several other parts of his argument were not, as it proved, contentious and I have no need to go over, once again, the propositions that emerge from Powell and Pye supra. But an argument does emerge that does require separate attention and it is this: whereas all other squatters have no need to prove how they came into possession but only that they have had it and have retained it for the required period, the Crown, says Mr Wonnacott, is in a fundamentally different position. Mr Wonnacott then set out on his argument that has, as its consequence, if correct, that save in particular circumstances that do not here apply, the Commissioners cannot acquire title by adverse possession against a subject of the Crown. This intriguing, scholarly and historical argument demands a heading to itself.
Can the Crown disseise a subject?
- This subject affects only Magor and parts of Caerleon claimed by the Commissioners; as to Mathern, Caerleon generally and the PGA, Mr Wonnacott accepts that it matters not how it came to be (if it did) that Swangrove and Mr Hanbury-Tenison have been in possession. Until 1834 the manner in which a squatter came to be in possession was important to ascertain as the nature of the paper owner's remedy and the consequence of someone other than he having possession varied, depending on whether the paper owner had been put out of possession unlawfully by being ousted or whether he had lost possession by way of leaving the land vacant or letting the squatter in lawfully (e.g. as a tenant or licensee), only then to find that the squatter remained unlawfully even after his permission to be on the premises had expired. There was thus at the time a practical distinction between the former, which was disseisin, and the latter two forms, which were deforcement. A squatter who acquired possession only by deforcement would, in general, not be taken to be in a possession which had the quality of being "adverse" to the paper owner, as it then had to be. As it is explained by Blackstone's Commentaries, book III, 15th Edition, 1809 at page 178:
"In case of deforcement also, when the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he [the paper owner] shall continue to have the presumptive prima facie evidence of right; that is possession lawfully gained. Which possession shall not be overturned by the mere entry of another; but only by the defendants shewing a better right in a courte of law"
However, the Real Property Limitation Act 1833 changed the position. A great list of what were called Real and mixed actions were abolished as from 31st December 1834 – section 36 – and a cause of action was, more simply, taken by section 3 to have accrued to the paper owner when he was either dispossessed or discontinued his possession with possession then being taken by another – see Jourdan supra at para 5-01. Hence, since 1834, it has, in general, not mattered whether the original entry was a deforcement case or was not. The then applicable 20 year period applied to both. But, says Mr Wonnacott, the Crown is a special case.
- In order to show that, Mr Wonnacott then first takes me back to the Magna Carta (as amended in 1217), chapter 29. That provides that "no freeman shall … be disseised of his freehold … but by the lawful judgment of his Peers, or by the law of the land". Adopting an argument advanced in "Common Law Aboriginal Title" by Kent McNeil, Clarendon Press 1989 at pages 93-94, Mr Wonnacott argues that, as the Crown could not be sued in its own courts without its consent, that provision would have become a virtual dead letter if disseisin of a subject by the Crown had remained possible and, possibly for that reason and by implication from the charter (which also said that the King had to restore lands which he had previously acquired by disseisin), there eventually emerged the rule that the Crown cannot disseise a subject. That had emerged by 1486 when it is recorded in YB 1 EDV PL 13 that (in translation):
"Note that it was said on the same day in Chancery, and agreed by all the judges and serjeants being there that the King could not be said to be one who committed wrong, because if one would disseise another to the use of the King, where the King had no right, the King could not be said to be a disseisor."
- To the same effect is St German's Doctor and Student of 1530 – see the edition for the Seldon Society in 1974 at page 65 and Noy's Dialogue and Treatise on the Law of Tenures etc. 9th edition, page 339 – see also Holdsworth, Volume III, page 466. Noy, in particular, brings out the notion that the question is one of a fair reciprocal balance; the King "… cannot disseise, nor be disseised".
- This rule, says Mr Wonnacott, survived the Commonwealth and one sees it, he says, in 1667 in Friend v Duke of Richmond (1667) Hard 460. I am far from sure that the case is authority for any proposition beyond the simple one that a man in possession under title is not to be turned out of it by way of a judgment in proceedings to which he was not party. In Friend there had already been an information of intrusion, a form of prerogative remedy in some ways similar to ejectment but exclusive to the Crown. The judgment earlier obtained had been in favour of the Crown but it was not a form of judgment that dealt with a recovery of seisin as such; it was more like an action for trespass and the claimant in Friend had not been a party to it. It required an injunction if possession was to be required under it and that had not been obtained. However, the case did illustrate a link between the understanding that the King could do no wrong (or, more fully and correctly, could not be said, in his own court, to have done any wrong) and the rule that he could not disseise a subject as there is a comment on the point by Hale C.B. at page 462 where he said:
"And though the judgment in intrusion includes an amoveas manum, yet it extends only to such as may lawfully be amoved. And if the sheriff do otherwise, he is a disseisor; as if in a judgment against A., in a real action, he should oust B., who neither claims under A., nor is tenant to the action. And the King cannot gain anything by wrong; so that he cannot be a disseisor, but they that enter."
- I confess I find that last sentence difficult to unpack; is the reference to the King only to the Monarch himself or herself and do the words "but they that enter" imply that where, beneficially, the entry is for the King but is executed by others – "they that enter" – it is they who can and do disseise and will, in an appropriate case, be personally liable for the associated wrong, albeit that they do so for the Monarch's benefit? Such an interpretation would at least accord with Holdsworth, Volume III, page 466 where, having spoken of the conclusion in the 1480s that the King could not commit a wrong, he added:
"But as yet this was a very new principle. It was not until the 16th century that, with the growth of the idea of the dual capacity of the King, it became acclimatised in the law. It was not till the 17th century that it was made the basis of the modern doctrine of ministerial responsibility."
- The new twist put on the notion that the King could not commit a wrong was, as Hale P.C. i 43-44 records, as cited by Holdsworth:
"It is regularly true that the law presumes the King will do no wrong; and therefore if the King command an unlawful act to be done, the offence of the instrument is not thereby indemnified."
- I am not persuaded that Friend is authority for the proposition that no subject can ever be disseised for the benefit of the Crown but, rather, if it does go beyond the even simpler proposition I identified above, it is obiter support for a view that if a disseisin is effected for the Crown beneficially but done by others than the Monarch himself or herself then, whereas the Monarch himself or herself cannot be sued on account of the disseisin, the executives who acted for the Monarch can be liable for it.
- However, moving on from his stated position that deforcement did not lead to adverse possession in the law as it was before 1834 but on the basis, too, that the Crown could not disseise a subject, Mr Wonnacott points out that the changes made in 1834 included that as deforcement could now lead to adverse possession (as it sufficed, as I have mentioned, to prove a taking of possession after a discontinuance) and as the Crown had never been disabled from acquiring land following a deforcement because the prohibition had only been to disseisin, the Crown could now acquire by adverse possession but only so long as it relied upon deforcement. The rule that it could not disseise, he argues, remained as it always had been.
- That, says Mr Wonnacott, jumping forward to 1877, is consistent with Attorney General v Tomline (1877) 5 Ch 750 reversed at (1880) 15 Ch.D. 150 CA. The Crown succeeded in the Court of Appeal in its argument that it had acquired adverse possession of a freehold. A site in Suffolk, one enclosure, was occupied in part by a Martello Tower, the Q Tower. Part of the site had been let very long before to Alexander Mair, the Lieutenant-Governor of the nearby Landguard Fort, to hold for his life "if he should so long continue Lieutenant-Governor of Landguard Fort but not otherwise". He had ceased to be Lieutenant-Governor of Landguard Fort in June 1811. But the Q Tower and a surrounding plot had remained in the possession of the Crown. In 1874 Colonel Tomline committed what was said by the Crown to have been a trespass. The Attorney General argued that the Crown had acquired freehold title by adverse possession for upwards of 50 years. Colonel Tomline accepted that there had been such undisturbed possession but argued that the Crown had thereby acquired no more than a copyhold title. In consequence, argued the defendant as lord of the manor, because the coprolites which the defendant had dug up were minerals and because minerals belonged to the lord of the manor, the coprolites had belonged to him. A good deal of the argument and, indeed, of the judgment before Fry J. at first instance, was as to whether it was a copyhold or a freehold title that the Crown had acquired by its possession. That affected the measure of damages. Fry J. considered that Colonel Tomline, as lord of the manor, had an absolute power of veto over the digging up of the coprolites. He concluded at page 768 (an early forerunner of Wrotham Park  1 WLR 798) that:
"The value of that veto appears to me to be the value of the coprolites less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the coprolites less such a sum of money by way of profit as would induce a third person to undertake the enterprise. That I consider to be the proper measure of damage in this case."
- In the Court of Appeal it was still the measure of damages that was in issue but that, as I have said, depended on the nature of the Crown's title. At page 158 James LJ said:
"From the time of the determination of Mair's tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before the statute 3 & 4 Will. 4, c. 27, it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute."
- Cotton LJ at page 159 said:
"…the title of the Plaintiffs simply rests on possession, and prima facie a title by possession is a freehold and not a copyhold title."
- Thesiger LJ at page 162 also held that the land on which the trespass was committed was, by virtue of the Statute of Limitations, the freehold property of the Crown. On that view of the case it could not be contended that the damages awarded were excessive.
- I can accept that Tomline is not inconsistent with a view that after 1834 the Crown could not disseise a subject but it is not authority for such a view. On the facts the Crown's possession, begun and continued as a holding over (after cesser of Mair's lease or licence) was such that, on Mr Wonnacott's analysis, it would have been a deforcement, but it is very surprising, if Mr Wonnacott's allegedly crucial distinction between deforcement and disseisin was still current and materially affected the Crown, that nowhere does Fry J. or any of the Lords Justices in the Court of Appeal draw out that the case was not one of disseisin but of deforcement. Nor can it be said that the case is consistent with the Crown being able to do no wrong (if, by the Crown, one means someone other than the Monarch herself) as James LJ expressly said that the possession after the termination of Mair's tenancy was wrongful. Moreover, if Mr Wonnacott's argument as to the crucial distinction in Crown cases between deforcement and disseisin is correct then James LJ was wrong in saying that it was not necessary to enquire whether or not there was "adverse" possession in the old pre-1834 sense of the word because that enquiry would have been necessary to determine whether there had been a deforcement or a disseisin. Mr Wonnacott has to say and does say that the dictum of James LJ was wrong. I would rather regard the dictum as a pointer to Mr Wonnacott's argument as to the crucial nature of the distinction between disseisin and deforcement being unsound, at any rate after 1834.
- Coming forward to the 20th and 21st centuries, Mr Wonnacott accepts that after the Crown Proceedings Act 1947 the Crown, when acting by way of a government department, can bring proceedings for adverse possession even after a disseisin by the Crown. In that respect, he says, so long as the disseisin is what he calls a government tort the Crown is now in the same position as any ordinary private individual. But, he says, the position is still that the Commissioners (not, I believe he has to say, acting as a government department but when acting for the benefit of the Monarch's estate) still cannot claim a title by way of adverse possession beginning with a disseisin, only one beginning with a deforcement. Given the surrender of hereditary revenues of the Crown to the nation is return for the Civil List – see Halsbury's Laws Vol 12, paras 205-207 - and the Civil List Act 1952 Schedule 1, coupled with the duties statutorily cast upon the Commissioners as managers, I may not be alone in having difficulty in here separating a government tort from a non-government one. Mr Wonnacott's argument thus raises doubts in me but, if it is right, it has important consequences.
- I say that because the point of all this is that the Commissioners do not claim that their entry onto the area with which they are concerned, began by way of a deforcement, namely some vacancy or holding over after the expiry of a lease or licence granted to them by some predecessor in title of the Claimant. They, I apprehend, rely on a disseisin (by that meaning no more than that they have been in possession without proving that it was acquired following a vacancy or holding over). Thus, if the Claimant can in principle limit adverse possession by the Commissioners to cases where their possession begins with a deforcement then, regardless of the other facts, the Commissioners must necessarily fail in their claim for adverse possession.
- Mr Wonnacott, in part anticipating the argument for the Second Defendant, then turned to a number of authorities thought to throw light on this question, the first of which was Sze To Chun Keung supra. The advice of the Privy Council was given by Lord Hoffmann. In Sze the plaintiffs had a good paper title, a long Crown lease, to land in Hong Kong's new territories. They began proceedings for possession against the defendant. By way of an amendment for which the defendant sought permission, the question of adverse possession was attempted to be raised. The defendant was refused leave to amend at first instance on the ground that adverse possession could not succeed and that refusal was upheld in the Hong Kong Court of Appeal. The defendant appealed to the Privy Council. The Hong Kong legislation was based on the English Limitation Act 1980. The defendant's proposed pleading (which was, for the purposes of the Privy Council, assumed to be true in the usual way) pleaded that the defendant had gone into possession in 1955 and that in 1961 he had for consideration been granted a Crown permit or licence to occupy the land. That permit was renewed until 1988, when the Crown, having by then found out that the land had been and was in private ownership, cancelled the permit. For 27 years the land had been mistakenly the subject of a Crown permit. Had the Crown licence had the effect of causing the land not to be in the adverse possession of the defendant as between the plaintiff and the defendant? The Privy Council held that it had not. At page 1235 the advice of the Privy Council included this:
"For the purposes of limitation, therefore, possession from 1961 must be regarded as having been in the Crown, which possessed through its licensee, the defendant. Was that possession adverse to the plaintiff? Their Lordships consider that it was."
- At page 1236 the advice continued:
"It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiff's title was extinguished in about 1975."
- There had been no enquiry, so far as one can tell from the report, into whether the Crown had entered by way of a deforcement or not. The very fact that there was no such enquiry, just as there was none in Tomline supra, suggests that the distinction, if it existed, was immaterial. Mr Wonnacott argues that the case was not a disseisin case but there is no indication that the Crown in some way entered upon a vacancy or as itself the lessor of a long lease or as a holding over. Mr Wonnacott also points out, correctly, that the Crown was not a party to the proceedings but I fail to see how that can affect the Privy Council's view that the possession by the Crown had been adverse to the subject. If the Privy Council could come to that view without Crown representation one might think that they would have come to it even more readily with Crown representation. I thus do not see Sze as assisting Mr Wonnacott; on the contrary, although it may not follow (though this has not been argued before me) that the relationship between Crown and subject was the same in Hong Kong as it is in the United Kingdom, it appears to me to be against Mr Wonnacott's argument.
- Then Mr Wonnacott turned to Tobin v The Queen (1864) 16 C.B. (NS) 310. In that case, as the headnote discloses, the Commander of a Queen's ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to port for condemnation in a Vice-Admiralty Court, the Commander caused the ship to be burned. The shipowners proceeded by Petition of Right. The suppliant-petitioners claimed to have sustained damages to the amount of £10,000 and humbly prayed that Her Majesty would be pleased to do what was right and just in the premises and to cause her suppliants to be reimbursed and compensated for the losses, damages and injuries so sustained. The Attorney General, on demurrer, argued that if wrong had been done the remedy was against the Commander as the person who did it and, secondly, that the Crown was not responsible for acts such as those detailed in the petition. In the course of a long argument on behalf of the petitioner Sir Hugh Cairns drew attention to Blackstone's Commentaries – 3 BL Comm 254 – where it is said:
"That the King can do no wrong, is a necessary and fundamental principle of the English Constitution: meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the King, nor is he, but his ministers, accountable for it to the people; and, second, that the prerogative of the Crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever, therefore, it happens that that, by misinformation or inadvertence, the Crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (for, who shall command the King?), yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the King of the true state of the matter in dispute: and, as it presumes, that, to know of any injury and to redress it are inseparable in the Royal Breast, it then issues as of course, in the King's own name, his orders to his judges to do justice to the party aggrieved."
- The Attorney General was not even called on. Erle C.J. delivered the judgment of the court. At page 353-354 he said:
"The maxim that the King can do no wrong is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law presumes will not be wrong: that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command."
He, too, referred to 3 BL Comm but a different passage, at 246, where it was said:
"The King can do no wrong; which antient and fundamental maxim is not to be understood as if everything transacted by the government was of course just and lawful, but means only two things, – first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor he is answerable for it personally to his people; for, this doctrine would destroy the constitutional independence of the Crown, – and, secondly, that the prerogative of the Crown extends not to do any injury."
- That maxim, said the Chief Justice, had been constantly recognised and he rejected that the King could be responsible in damages for a supposed wrong. He then turned to the use and abuse of petitions of right. The court held that such petitions did not enable an award of damages to be made against the King; if damages were sought, they were to be obtained, if at all, from the officer who did the wrong – page 360.
- I cannot see Tobin as assisting the Claimant; rather it hinders him, as Mr Braithwaite argued. Firstly, the case shows how the first part of the notion that the King could do no wrong had certainly, by 1864, been transmuted, as Holdsworth suggested – see para 90 supra – into one relating to ministerial responsibility. The servant of the Crown could not escape personal liability; he could not hide behind an instruction from the Crown because, unable to do wrong, the King could not have given the wrongful instruction. As for the second part of the notion, that the King's prerogative could not be used to justify injury to a subject, a member of the very class of people for whose benefit it had been conferred upon him, that plainly related only to exercise of a prerogative. But in the case before me the Commissioners assert only their possession, not any prerogative. On the contrary, they ask only to be treated in the same way as are all citizens, namely that they may rely on their adverse possession whether or not such possession has an origin in disseisin.
- Next Mr Wonnacott dealt with Feather v The Queen (1865) 6 B&S 257. Mr Feather had invented an improvement in the construction of ships, one tending to make them more impervious to shot. He was granted an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for £10,000 as compensation for the damage he had suffered. Much of the case was concerned with whether an exclusive patent granted by the Crown barred free use by the Crown of the method revealed by the patent. The court held that it did not. As to whether a petition of right could be used against the Crown in respect of the alleged wrong, the court (obiter) held that Tobin was correct. The judgment of the court was delivered by Cockburn CJ; he, moving away from procedural issues, continued:
"Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done to a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition, therefore, which rests on such a foundation falls at once to the ground. Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of the minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown."
- On that basis, whatever might have been the position had it been the Monarch himself or herself who wrongly had taken possession by way of a disseisin, when the entry was made by someone else but on behalf of the Crown there would have been no difficulty in launching proceedings against that servant or agent. That being so, and even accepting that before 1834 there had been the distinction between deforcement and disseisin cases which Mr Wonnacott urges, it is difficult to see why it should have continued to exist after 1834. Leaving aside the possibly special position of entry by the Monarch himself or herself, a paper owner, finding another in possession, had the same rights as against whoever, even as servants of the Crown, had taken possession as he would have had it been a citizen who had done that. If the notion of reciprocity (neither disseise nor to be disseised) was important to the rule; it did not truly exist as Crown Servants could be made liable. Feather, outside the special position of patents with which it was concerned, does no more, in effect, than confirm the interpretation of Tobin which I have addressed in paras 104-107 above.
- Mr Wonnacott next referred to Volume 12(1) of Halsbury's Laws in the current edition, paragraph 212 which reads as follows:
"Rights in land between Crown and subjects
The normal rules of the common law relating to land are modified in respect of relationships between Crown and subjects because of the special standing of the Crown.
In particular, the Crown cannot (except where statute otherwise provides) be liable on an action of covenant in the courts and cannot be sued on a restrictive covenant. If, however, the Crown Estate Commissioners acquire land subject to a restrictive covenant they may give a covenant for indemnity or enter into a new covenant on purchase and they will be liable on it. Similarly the Chancellor or Vice-Chancellor of the Duchy of Lancaster will be liable on a restrictive covenant. In the case of Crown private estates any covenant which is required will be given by the Keeper of the Privy Purse."
- There is nothing in that passage that suggests that a paper owner losing possession in any way to a servant, agent or minister of the Crown is left without remedy of the kind that would be available had it been a citizen that had acquired the possession.
- Next Mr Wonnacott, again dealing with an argument of Mr Braithwaite's, referred to the summary, by Lord Woolf, in M v Home Office  1 AC 377 at 409 which is in the following terms:
"The position so far as civil wrongs are concerned, prior to the Act of 1947, can be summarised, therefore, by saying that as long as the plaintiff sued the actual wrongdoer or the person who ordered the wrongdoing he could bring an action against officials personally, in particular as to torts committed by them, and they were not able to hide behind the immunity of the Crown. This was the position even though at the time they committed the alleged tort they were acting in their official capacity. In those proceedings an injunction, including, if appropriate, an interlocutory injunction, could be granted. The problem which existed in seeking a remedy against the Crown was not confined to injunctions. It applied to any form of proceedings and where proceedings were possible by suing the wrongdoer personally then an injunction would be available in the same circumstances as other remedies. If such a position required reconciling with the historic maxim as to the Crown doing no wrong, then this could be achieved by an approach, which Mr. Richards [Mr Stephen Richards, counsel for the Crown] endorsed in the course of argument, by saying that, as the Crown could do no wrong, the Crown could not be considered to have authorised the doing of wrong, so the tortfeasor was not acting with the authority of the Crown."
- Lord Woolf pointed out that the difficulty which could arise in identifying who was the appropriate servant of the Crown to sue was overcome by the Crown nominating the individual responsible. If that person as defendant lost the case then the Treasury would make an ex gratia payment of compensation if it was a case where, but for Crown immunity, the Crown would have been vicariously liable. Nothing in re M suggests a need, were justice to be done, to distinguish in adverse possession cases between cases where the Crown had entered upon a vacancy or had unlawfully held over and those where the original entry had been a disseisin. Again leaving aside the highly improbable case of it being the Monarch himself or herself who had entered, the servants, agents or ministers of the Crown, being as vulnerable as any citizen would be to claims against them had, equally, no reason to be denied the full ability adversely to possess which citizens would have.
- Mr Wonnacott then cited from Mr Walter Clode's work "The Law and Practice of Petition of Right" of 1887. At page 68-69 Mr Clode emphasises that a petition of right could be used by a citizen to obtain restitutionary relief against the Crown in relation to land. Mr Clode cites Staunford on the Prerogative 1573 as saying:
"Peticion is all the remedy the subject hath when the King seizeth his lands or taketh away his goods from him, having no title by order of his laws so to do, in which case the subject for his remedy is driven to sue unto his sovereign lord by way of petition, for other remedy hath he none."
- That suggests that where the full period of possession required for acquisition of title by adverse possession and limitation had not been served then a petition of right could be used where the King had "seized" the land (a word which, surely, was more suggestive of disseisin than of deforcement); there is nothing to suggest that where the full period of possession had been achieved, the Crown's possession thereafter would be other than "by order of his laws" It is noticeable that neither Clode nor Staunford thought it necessary to distinguish between disseisin and deforcement cases.
- I have already expressed substantial doubts as to the Claimant's argument under this heading, already incorporating parts of Mr Braithwaite's argument, but now turn to the further argument of Mr Braithwaite on behalf of the Commissioners, they being, as I say, the only Defendant concerned with this argument.
- Whilst Mr Braithwaite had little need for the purposes of this case to look into the position as it was before 1947 as most of the acts of possession relied upon by the Commissioners post-dated the Crown Proceedings Act of that year, he did deal with the position as it had been before the Act.
- He first referred to the book "The Crown Proceedings Act 1947" written in 1948 by Master Bickford-Smith, as he later became. At page 10 the work says:
"Property of all kinds, that is land, incorporeal hereditaments and chattels could be recovered from the Crown by an individual wrongly out of possession."
- If the subject could before 1947 recover from the Crown (albeit by special process such as Petition of Right) then what had seemed to be a ground (reciprocal inability to disseise or be disseised) for the Crown not asserting possession against a subject was undone. At page 8 the work had said, under the heading 'The rule that the King can do no wrong':
"It seems that in the 16th century a principle that it was not permissible to allege that the Crown had committed a trespass or other tort was evolved, partly from the fact that no Petition of Right containing any such allegation had been entertained, and partly from the tendency to attribute to the King a theoretical perfection in keeping with the idea of the Sovereignty of the State which was beginning to arise." (my emphasis)
- Although, in a memorable phrase, Nourse LJ once spoke of adverse possession as being possession "as of wrong", at least since Pye supra it has been clear that it is no necessary part of a squatter's allegation that he has wrongfully acquired such possession as he has; it suffices that he is in and has been in possession. Accordingly there is before me no allegation by the Commissioners in their pleading that their entry and possession has been wrongful. Nor is there any plea by the Claimant that the Commissioners' (unadmitted) possession was wrongfully acquired.
- Then Mr Braithwaite makes a point of refreshing simplicity. A deforcement involves a wrong; in both moral terms and in terms of tort, he who, for example, unlawfully holds over as against the paper owner is as much committing a wrong against that owner as he, to use the word that was invariably earlier used, who "ousts" the paper owner. It will be remembered – see para 86 above – that Blackstone, writing of deforcement, writes of the deforciant detaining the land "wrongfully". If the notion that the King can do no wrong (or cannot be impleaded in his own courts as having done a wrong) has any relevance at all to adverse possession and limitation then it would, surely, as much bar adverse possession by deforcement as that by disseisin. The inescapable logic of Mr Wonnacott's argument, says Mr Braithwaite, is that the Crown could not in any circumstances acquire title by adverse possession. Adverse possession would, on Mr Wonnacott's argument, invariably involve the commission of a tort and the Crown could not commit a tort. It will be remembered that in the holding-over or deforcement case of Tomline James LJ described that holding over as wrongful – see para 95 above. But, says Mr Braithwaite, Mr Wonnacott stopped short of saying that in no case could the Crown gain possession from its subject by adverse possession. In Mr Wonnacott arguing, as he does, that, so long as the adverse possession is acquired following a deforcement, the Crown can acquire title by adverse possession and limitation, he accepts, says Mr Braithwaite, that the Crown can in this respect do wrong and can take advantage of its own wrong. Mr Wonnacott, says Mr Braithwaite, thereby denies the logic of his own argument. I agree; the point shakes the very foundation on which the Claimant relies.
- Coming forward to the position as from the Crown Proceedings Act 1947, section 2(1)(a) provides that the Crown can be liable in tort. If, once, it had been seen to be no more than reciprocally fair that, if the Crown could not be liable for a tort, so also could it not take advantage of one, that rationale for any special rule affecting the Crown has gone. Even if, which I would not accept, the position before the 1947 Act had been that, by reason of the antique distinction between disseisin and deforcement on which Mr Wonnacott relies, there could be no adverse possession by the Crown against a subject relying upon a disseisin, it would be difficult after 1947 to resist citing Lord Atkins' dictum, albeit one made in a different context, that:
"When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred" – see United Australia Limited v Barclays Bank Limited  AC 1 at page 29.
- The end sought by Mr Wonnacott's argument under this heading is that the Commissioners cannot be heard to say that they have come into possession of Magor or Caerleon to the use of the Crown. It is almost with regret that I visit an argument as interesting as Mr Wonnacott's with a negative but I do not accept it. I hold that at no time material to the Commissioners' claim to adverse possession of Magor or Caerleon has it been the case that they or their predecessors have been unable to assert their possession against the Claimant, even if it was possession acquired by way of disseisin or that which, before 1834, would have been a disseisin. More broadly, I have found it impossible to accept that the rule – that the King can do no wrong – that served to underline the advantage and privileged position of the Crown, should have been capable of mutating, without first dying, into a rule that would, after the Act of 1947, put the Commissioners at a disadvantage not suffered by the ordinary citizen. It is striking both that Mr Wonnacott has been able to find no authority truly on all fours with his argument and that there is no hint of it in the comprehensive review of the law in Pye. Moreover, as a form of comment available now that the Law Reports proper are in computerised form, Mr Braithwaite tells me that nowhere does the word "deforcement" appear in them.
- Lest I am wrong, I add this: if only in a deforcement case could the Commissioners assert adverse possession then I would accept that, despite the onus being upon them, they have failed to prove that, relative to Magor, they entered by way of a deforcement. It would follow that the Commissioners' claim to Magor by adverse possession would fail.
- So much for the law. I shall now turn to comment on the witnesses and then to look at each of the four areas separately but, because of the possibility of there being exceptional circumstances as to the Beaufort Royalty, as I hinted at in para 71 above, I shall, after dealing with the witnesses, look to see whether any such exceptional circumstances do exist.
C. THE WITNESSES
- Eight witnesses gave evidence by witness statement and all but one, Mr G.A. Gabe, were cross-examined. Mr Gabe, of very full age, was too unwell to be called and his evidence was received under a Civil Evidence Act notice. He had worked for the Dukes and then for Swangrove from 1946 to 1988, when he retired. Even then he continued to work with Swangrove's managing agents till 1998. He was able to write of dredging, shooting and wildfowling, in particular, over the Beaufort Royalty in the period with which he was familiar.
Mr C.H. Smith, chartered surveyor and a partner in Knight Frank, Swangrove's managing agents, provided a number of conveyances and licences, for dredging (with payment details), for shooting, drainage and for wildfowling, all relating to claimed Swangrove land. He could speak of periods before 1992 only in general terms but he had been the managing agent since 1992.
Mr M.J. Dawson, chartered surveyor, could speak of the Swangrove estate for periods going back to 1983; he had been managing agent from 1983-1992. He covered the same ground as had Mr Smith but for the preceding period.
Mr Robert Breen, managing director of one or more operating dredging companies, gave evidence. His company had begun dredging under a licence from the First Defendant in 1984 and he gave important evidence as to the frequency of dredging and the areas over which dredging took place in years material to Swangrove's claim for adverse possession.
Messrs Smith's, Dawson's, Breen's and Gabe's evidence comprised the whole of the witness evidence for Swangrove.
- As for the Commissioners, they called Mr N.R. Jacobson, coastal manager of the Marine Estate Department of the Crown Estate and Mr J.F. Bingham, offshore agent of the Commissioners, the latter being especially concerned with dredging, prospecting and dumping on the Crown's area. He gave important written and oral evidence about the visibility of dredging.
- Sir Richard Hanbury-Tenison, father of the Third Defendant and his immediate predecessor in respect of possession of, inter alia, the PGA, wrote of the uses to which the PGA had been put and of the intentions that had lain behind his family's possession of the area going back some 70 years and more. His son, John, brought that information up-to-date.
- Mr M.A. Roberts, the Claimant, who also uses the name M.A. Tudor, Lord Marcher of Trelleck, gave written and oral evidence. He gave evidence by photographs and by oral description of the layout and appearance of the areas with which I am concerned and which, for immediate purposes, it is assumed he has within his title by way of being Lord of the Manor. Because his interest in the area has only been comparatively recent, he was not able to say much as to the claims for adverse possession which the Defendants brought against him. He was the only witness on the Claimant's side.
- So far as concerns the veracity of these witnesses, it was not in any respect challenged and I shall accept their evidence, both written and oral, as being true save that, as I shall explain, to the extent that there was conflict between the written and the oral, I shall explain which I prefer.
D. REPUTATION AS TO OWNERSHIP; THE BEAUFORT ROYALTY
- Whilst this subject has practical consequences, if any, only as to Mathern and Caerleon, I shall deal with it under its own separate heading.
- In his written submissions, Mr Harpum defines "the Beaufort Royalty" as those parts of the River Severn which the Dukes have regarded as owned by them. That might be extended to include those parts which Swangrove has from time to time regarded as owned by it. The Royalty has varied from time to time in extent, sometimes diminished by sales or by tacit or other admission of other persons' titles and sometimes enhanced by purchases or successful rejection of challenges from others. Speaking of the Royalty in that way, it is and, throughout the period I am looking at, has always been, a huge area, many miles long and covering the whole width of the River on both sides from Cone Pill and Sheppardine Passage to the north east down to a line between the mouth of the Avon and Cold Harbour Pill to the south, an area of the order of 18,000 acres. Little evidence has explained whether and how the area at the north-east end of the Royalty has varied over the years but even within the south-west parts with which I have been chiefly concerned, from Oldbury Sands seawards down to the Avonmouth-Cold Harbour Pill line, there has been such evidence of doubts or challenges from others as to the Dukes' or Swangrove's ownership or as to the claimed extent of the Dukes' or Swangrove's rights over parts of the Royalty that I believe I need, if only for the purposes of the unum quid argument, to examine whether their title and rights can at any material time be said to have been so established as to have been matters of public reputation or notoriety.
- Looking first at the papers laid before me, in 1899 there was sold by auction some fishing rights at Aust, on the English side but wholly within the Royalty as then claimed by the Dukes. The rights extended over some one and three-quarter miles and fell within the tithing and manor of Aust; the rights included the right to erect 645 putchers, which had been let to a Mr Norris. The auction plan shows the site of the putchers as owned by Mr Cann-Lippincott. In 1935 Mrs Cann-Lippincott, by then considering disposing of the manor of Aust, was writing to the Duke's solicitors to say that it was she who had sold the foreshore and she queried how it came about that a third party, a Mr Stride, was saying that the Duke had sold him part of the land and foreshore, parts of her manor. "No one else", she wrote, "has any claim whatever to my manorial rights". Mr Stride's claim, she said, was not understood. Round about this time – in 1936 – and indicative of doubt irrespective of how matters finally turned out - Mr R.L. Moon, clerk of the County Council of Gloucestershire wrote to the Duke's solicitors to say that they had been advised that the erection of the Severn Bridge, on land well within any definition of the Royalty, would not interfere with any legal rights of the Duke's; the County Council was acting on the basis that the bed of the river at the relevant part was owned by Mrs Cann-Lippincott. Ultimately the one and three quarter miles' right of fishing and associated appurtenances of the manor of Aust were purchased by the Duke in 1953 from the family who had purchased at the auction in 1899. Thus, from the Duke's point of view, this not insubstantial hole in the extent of the Royalty was eventually made good, but it is plain that for many years there had been dispute as to title around Aust and no universal acceptance of the bounds of the Royalty, or of the rights the Dukes enjoyed or the uses they could prohibit or authorise.
- In 1955 a Mr R.L. Baker wrote to the Duke so as to gain his permission to break up two boats over a period of some three months on part of the Royalty near Pilning on the English side. He mentioned that he had used the site before (seemingly unknown to and unauthorised by the Duke or his agents) "when we thought it belonged to the Crown Commissioners".
- In 1960 the Secretary of the Malmesbury and District Wildfowlers' and Gun Club spoke of his having made extensive enquiries into the possibility of obtaining some wildfowling on the Severn foreshore yet it was only after he had had this course suggested to him by the Clerk of Thornbury Rural Council that he approached the Duke. "Up till now", he wrote, "we can't find anyone to grant that permission"; he asked if the Duke had the power to give that permission then could it please be granted to his club.
- Also in 1960 there was brought to something close to a head a dispute between Sir Algar Howard and the Duke when a writ was issued in the Chancery Division between them. Sir Algar, basing himself on an agreement of the 6th June 1670 as confirmed by an Act of Parliament of that year, claimed, as lord of the manor of Thornbury, part of the bed and foreshore of the Severn which included part which had become the subject of a compulsory purchase order made by the Central Electricity Generating Board. It was a part which hitherto had also been claimed by the Duke. Sir Algar's Statement of Claim, settled by the late Mr H.E. Francis Q.C., asserted rights exercised over the disputed area by the lords of the manor of Thornbury from time immemorial; the area disputed between Sir Algar and the Duke was of a size now roughly estimated at about 500-800 acres or so. The late Mr Walter Wigglesworth, a conveyancing counsel of the highest reputation, advised the Duke in 1961 that the case ought to be settled if possible as he was of the view that Sir Algar's case was stronger than the Duke's. There is no evidence of a compromise or further dealing but, after Sir Algar's death, all or parts of the erstwhile disputed area were sold as part of the Thornbury Castle estate. The special conditions of sale show that title was deduced from a grant to Sir Algar in 1926; no mention was made of any deed from or compromise with the Duke. So far as one can now judge, Sir Algar had been successful in disputing title to significant parts of what otherwise might have been regarded as part of the Royalty.
- For some years down to the 19th April 1996 Swangrove had been in dispute with the Commissioners over the extent of that part of the foreshore and fundus of the River Severn as was vested in the Crown and managed by the Commissioners and the extent of that part vested in Swangrove. The boundary line between the two was disputed until it was then settled by deed.
- As for oral evidence on this subject, Mr Smith (albeit in response to a very leading question) spoke of the Swangrove land as widely known and reputed as being within the Beaufort Royalty amongst a number of official bodies in the area such as local planning authorities, harbour and port authorities and so on. But those are bodies with which Swangrove and their respective agents have frequently corresponded in their capacities as persons acting for the Dukes or Swangrove. That evidence, as it seems to me, does not greatly help to create a widely accepted reputation amongst those who do not ordinarily find themselves in correspondence with the Dukes or Swangrove. Mr Breen, in saying, in the course of his oral evidence, that ownership of the bed of the river was well known as being in the Duke of Beaufort and the Crown, was not asked whether the reputation was that they were joint owners nor was he asked further so as to separate those parts widely known to be owned by the Dukes and those parts so known to be owned by the Crown.
- There have been and are stretches of the shore of the river which have been conveyed away by the Dukes or Swangrove together with adjacent areas of the bed of the river so as to give the current putative Beaufort Royalty a very irregular shape and that, coupled with the long-standing disputes and the several doubts that I have described as emerging from the papers, lead me to hold on the evidence that, whilst no doubt there will be some authorities, solicitors, land agents and others in the area that are familiar with the term "the Beaufort Royalty" (a term very rarely seen in the papers put before me) and who have some fairly accurate view of its content, the term has no widely accepted understanding amongst those who have ordinarily needed to have no regular dealings with Swangrove or the Dukes. On the evidence I am not able to accept (even supposing that such a thing could, in principle, ever be accepted) that so well known was and is the extent of the Beaufort Royalty and the rights it might entitle the Dukes or Swangrove to enjoy or to authorise over areas of the Severn and its foreshore that it ought reasonably to be expected, of a person who believed himself to have good paper title to parts of the foreshore and bed of the river, that acts done (or authorised) by or on behalf of the Dukes or Swangrove elsewhere within a reputed Royalty but outside the area which the paper owner believed he owned and to which he had title, could or would be taken, for the purposes of the law, as acts by the Dukes or Swangrove possessive of the paper owner's land.
- Accordingly, both as to Mathern and Caerleon, I remain of the view expressed in para 73; Swangrove's claims to adverse possession will need to be adjudged by reference only to Swangrove's acts of possession and control done on or with respect to those areas respectively and separately and not by reference to the other of those two areas or to some other area such as the Beaufort Royalty. On that basis I shall now turn to look at the four areas with which I am concerned.
E. MATHERN – POSSESSION BY SWANGROVE OR ITS PREDECESSORS?
- (i) Animus possidendi
Whilst there are many steps taken by Swangrove or its predecessors which could be taken to indicate a belief and intention in it or them that it or they owned, were entitled to control and did and intended to possess Mathern as part of a greater area, there are, within the relevant period, few indications that would seem to identify such state of mind with respect to Mathern as an identifiable part of that whole. Indeed, within the relevant period, there are only some seven or so dealings which might have affected Mathern separately from either the rest of the Royalty or from other far larger tracts of it. Mr Wonnacott concedes that animus possidendi has been sufficiently proved as to Mathern but as some of the evidence that led him (rightly in my view) to that concession is relevant also under the heading of acts of possession as to Mathern I shall briefly run through it.
- Thus the Conveyance of 26th July 1901 indicates that the Duke held the view, with respect to the several fisheries, including a several fishery at Mathern, which he was then conveying to His Majesty the King, that he had been their owner and possessor. So also the Conveyance of 6th December 1916 (the Duke to the Standard Shipbuilding and Engineering Co Ltd) may have indicated a similar state of mind relative to an area of land which may have included a very small part of Mathern.
- In 1949 there was, to judge from an amended draft that was produced, a licence granted by the Duke with respect to liberty to gather such seaweed as might be found on an area of some 22.923 acres of the soil and bed of the River Severn. Unfortunately, despite the acreage being so precisely stated, the area concerned cannot be now identified although it is thought to have been on the Welsh side. As Mr Wannacott points out, the grantee has an address in Sedbury and, from there, the closest part of the Royalty foreshore would be well to the north of Mathern. There is, in any event, no evidence that the right was exercised.
- There was correspondence in 1958 in which, on the Duke's behalf, enquiries were made of Trinity House, the Port of Bristol Authority and the Gloucester Harbour Trustees as to whether (and, if so, where) such authorities had placed navigational fixtures in the Royalty. The correspondence, which suggests, perhaps, a failure earlier to have exercised control over such things, did at least indicate a wish in the future to control such matters in relation to an area, a small part of which (though this is far from clear) may have included parts of Mathern.
- There was very probably an annual licence to shoot granted by Swangrove in 1964, although no actual licence is produced, which, amongst larger and other areas, licensed shooting over part of Mathern (though it is not referred to as such) but there is no evidence there was in fact shooting under the licence and it may be that, even if there was, it was for a relatively brief period as there is no evidence of repeated licences or repeated payment of licence fees. Assuming that a licence was in fact granted, it could be said to indicate animus possidendi (and that is all that Mr Harpum claims in respect of it).
- In 1965 there were some dealings between Swangrove and the Secretary of State for Defence with respect to a rifle range at Beachley. On the evidence, it is, in my view, unlikely that the dealings referred to any land that falls within Mathern and no licence is produced, nor is there any evidence of exercise of the right to shoot. At most the dealings could speak only as to Swangrove's intentions and beliefs.
- On 29th April 1968 Swangrove granted a licence to shoot which, by its reference to St Pierre's Pill, included shooting over a very small part of Mathern (again not expressly referred to as such) but, as there is no evidence of shooting under the licence at all, let alone shooting over Mathern, the grant, whilst acceptable as evidence of animus possidendi, does not go beyond that.
- On 28th August 1991 Swangrove granted a dredging licence to Bildorn Ltd, a company said to be dormant but one owned indirectly by Mr Breen. Bildorn's obligations under the licence were guaranteed by another of Mr Breen's companies, Severn Sands Ltd. The area covered by the grant was a very large area, covering both sides of the river and the whole site of the river from the second Severn crossing seaward down to a line between the mouth of the Avon (on the English side) and Cold Harbour Pill (on the Welsh side). It thus included the whole of Mathern. In his oral evidence and by reference to the numbered map, Mr Breen said that he had dredged at the Dun Sands, squares 32 and 33. Whilst a large part of square 32 is within Mathern, part of it goes to the southeast of the deep water channel and hence that part is outside Mathern. An admiralty chart was produced to Mr Breen. Mr Breen indicated that it was at the Dun Sands as indicated on the chart that this dredging had taken place. Whilst it has to be remembered that the locus of sands changes from time to time, as also does that of the deep water channel and that there is plainly a margin of error in attempting to translate, so to speak, from the plan on the Particulars of Claim, to the numbered plan and onwards to the admiralty chart, the best view, as I so hold, is that any dredging in square 32 under this licence took place on the Dun Sands outside, namely to the south and east of, the deep water channel which is the boundary of Mathern. The grant of this licence may go to Swangrove's animus possidendi as to Mathern but it does not help it beyond that.
- There are no other acts within the relevant period said to be indicative of animus possidendi as to Mathern but those I have mentioned, taken together with those indicative of animus possidendi relative to the whole Beaufort Royalty or as to larger parts going beyond Mathern, satisfy me that, relative to Mathern, Swangrove and its predecessors have, throughout the relevant period, harboured such animus possidendi relative to Mathern that, if that animus were to have been accompanied by appropriate acts of possession, it would have sufficed as possession by Swangrove and its predecessors for the purposes of adverse possession and limitation.
- (ii) Acts of possession
However, I am unable, on the evidence, to hold that there have been by or on behalf of Swangrove or its predecessors any acts of possession or control of Mathern itself at any material time such as could be expected to have come to the notice of a reasonable holder of Mathern's title. Still less am I able to hold that there have been such acts over any unbroken 12 year period before action brought.
- (iii) Taking the law and fact together
If I am right on the unum quid argument then Swangrove must fail in its claim as to adverse possession of Mathern for want of proof of material acts of possession over any claimed period of not less than 12 years. If, as a moderated form of my conclusion on the unum quid argument, evidence of acts of possession outside the paper owner's area could, in exceptional circumstances, be regarded as if possessive of that area, then I would not here find any such exceptional circumstances to have existed. In the period at which I have been looking there was, in my view, as I have explained, no such widespread reputation as to the precise areas over which the Dukes or Swangrove claimed ownership or rights. Nor was there any general reputation that the Dukes or Swangrove had rights which included rights over Mathern nor any general reputation as to the nature of the rights claimed by Swangrove or exercised by it or its licensees over Mathern. There was no reason why the paper owner of Mathern could reasonably have been expected to have understood that the Dukes' and Swangrove's acts outside Mathern might or would, for the purposes of adverse possession, be taken to have the force, against himself, of acts within it and hence that they were such as might or would ultimately jeopardise his title.
- Accordingly Swangrove's claim to Mathern by way of adverse possession and limitation fails.
F. THE SLIVERS
- There is a relatively small triangular sliver of foreshore running, as its landward end, from a point east of Cold Harbour Pill for something like a third or a half of a kilometre and, whilst quickly narrowing as it runs seaward, which extends to a point about three kilometres out. The sliver – "the Welsh sliver" - is either in Caerleon or in Magor. To the extent it is in Caerleon it is claimed to have been adversely possessed by Swangrove; so far as in Magor, it could have been thought to be claimed by the Crown. If both have in fact carried out acts of possession over the sliver with the appropriate animus possidendi without either having acquired the necessary 12 years of exclusive possession then, as I have mentioned, it is likely that neither will have enjoyed exclusive possession and neither would, on that account, succeed in barring Mr Roberts' title. However, on the large map annexed to the Commissioners' defence the Welsh sliver is coloured light blue (denoting "the Swangrove Land") rather than pink ("the Crown Land"). The Commissioners' assertion of adverse possession is only as to the "Crown Land". There is thus no claim by the Commissioners as to acts of possession by it or any animus possidendi in it as to the Welsh sliver. That is also a conclusion consistent with a settlement of the boundary between Her Majesty, the Commissioners and Swangrove made in 1996. If, as I shall next turn to, Swangrove makes good its claim to have barred Mr Roberts' title to all Caerleon, I will have no reason not to regard the title to the Welsh sliver as equally barred by Swangrove.
There is a not dissimilar sliver ("the Eastern sliver") running out to, but not beyond, the deep water channel, as if towards the English coast. As to that, if the Commissioners successfully bar Mr Roberts' title to Magor, there will be no reason not to regard them as having barred his title to the Eastern sliver.
G. CAERLEON – POSSESSION BY SWANGROVE OR ITS PREDECESSORS?
- (i) Animus possidendi
Swangrove has substantiated so many dealings over a very long period indicative of a belief in it and in its predecessors that it and they owned and were entitled to control and intended to possess Caerleon that I hold, as to its and their intentions, that animus possidendi is sufficiently proven at all material times for the purposes of this preliminary issue. Indeed, Mr Wannacott so accepts. The battleground is therefore as to acts of possession.
- (ii) Acts of possession
Of the acts relied on by Swangrove the first in point of time are some related to the erection of a pier at Portskewett by the Bristol and South Wales Union Railway Company in and after 1865. Whilst the pier fell within the area which Swangrove now claims it is far from clear that in and after 1865 the site of the pier had been in the possession of the Dukes. Unfortunately, the plan to which the relevant Conveyance refers is no longer to be found and, whilst a small area at Portskewett was thereby conveyed, the 1854 Book of Reference which was prepared for the purpose of the acquisition of lands for the railway gives the names of persons other than any seeming to be acting for or related to the Duke as owners or reputed owners of the ferry over the river, of its foreshore and of the earlier pier, quays and landing places. In the 1856-57 Book of Reference it is Charles James Lewis who appears to be described as lord of the manor of Portskewett. Come the 1871 Book of Reference it is the Lords of the Admiralty and the Duke who are described as reputed owners of the River Severn, with the Duke alone being named as the owner or reputed owner of the earth and foreshore. Whilst the dealings at this time no doubt go to animus possidendi (which, as I have mentioned, is in any event conceded) there is, in my view, nothing sufficiently clear to be relied upon as an act of possession by the Dukes of any part of Caerleon.
- As part of the Special Commission for English Fisheries of 1866 the Special Commissioners certified, after enquiry, that a Richard Baker was held to have the privilege of placing "fixed engines consisting of  putts in five ranks" on the right bank of the river, which the attached plan showed to be wholly or largely to the east of the Cold Harbour Pill-Avonmouth Line claimed by the Dukes and Swangrove as the westernmost boundary of the Royalty. That finding may (it cannot be put higher than that) have been inconsistent with the rights claimed by the Dukes but it certainly does nothing to help Swangrove's assertion of possession by its predecessors or control by them of that westernmost part of Caerleon at the time.
- In April 1881 there was a grant by the Duke to the Great Western Railway that included a grant of an "easement right power and liberty and licence" to enter the land described which was, in part, in the parish of Portskewett, in order to make a railway tunnel under the Severn. The tunnel passes through Caerleon (squares 36 and 37). I do not understand Mr Harpum to claim that the continuing use of the tunnel (it is still in use today) represents acts of Swangrove or its predecessors possessive of the bed of the river above the tunnel and he is, in my view, right so to limit his argument. Whilst I would not myself read Bevan v The London Portland Cement Co Ltd (1892) 67 LT (NS) 615 as authority, as Mr Wonnacott argued, for the proposition that sufficient (adverse) possession of a tunnel does not confer title to the soil above or below it, I would nonetheless accept that such adverse possession leads only to title to the space of the tunnel itself. On that basis the title (as assumed) of the predecessors to the Claimant would have been undisturbed by the grant of the land for the tunnel or its continuing use.
- I am told that many of the estate papers of Swangrove's predecessors were destroyed in the War.
- There is some reason to believe that from 1949 the Dukes granted rights to gather seaweed to a Mr G.C. Groves. The licence covered the whole of such of the soil and bed of the River Severn as was in the Duke's ownership. In 1959 the licence was still in force. In 1954 the Duke granted Mr Groves a right over a similar area to cut spartina grass. This information comes from a draft Statutory Declaration intended to be made by Colonel R.A. Hobbs, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the Chartered Land Agents Society and a partner in the firm of Rooke & Hobbs, Chartered Land Agents. He, and before him, his father had for over 40 years acted for the Dukes. Although there is no proof that the Statutory Declaration was ever completed, the draft was retained and, in my view, is acceptable as evidence of the matters stated therein, given the distance of time which has elapsed from those events. There is no direct evidence of Mr Groves exercising the rights he was granted, either over Caerleon or at all, but, given that Mr Hobbs speaks of the licence being still in full force and effect in 1949 and given also that Mr Groves took the trouble to ask for further rights with respect to the spartina grass, the likelihood is, as it seems to me, that Mr Groves did, indeed, exercise the rights that he was granted but there is nothing that enables me to describe Mr Groves' activity as activity over Caerleon (or Mathern).
- In 1958 there was correspondence with authorities concerned with navigation; it is the same correspondence as that referred to in para 144 above. The area the correspondence was concerned with includes part of Caerleon as there is reference to the Charston Light which is on Charston Rock which is at the northern end of Caerleon. Whilst the correspondence indicates an interest in and an intention or wish in the future to control the placing of navigational fixtures within Caerleon, the nature of the enquiry and the doubts or lack of information it reveals on the Duke's part suggest that there had been little or no control on the topic in the past. As to the future, as it stood in 1958, there is no evidence as to the subsequent fixing, repair or replacement of navigational features; the correspondence thus only goes to animus which, in any event, is accepted by the Claimant.
- In 1960 there was correspondence between the Duke's Estate Office and the Secretary of the Malmesbury and District Wildfowlers and Gun Club which concluded with the Duke's Office refusing permission for wildfowling anywhere on the Severn foreshore and hence refusing permission for wildfowling, inter alia, in Caerleon. It may be said to be some evidence of control by Swangrove's predecessor.
- On 8th September 1960 the Duke, in consideration of the payment to him of £3,000, conveyed to Swangrove rights in and over the foreshore and bed of a very large stretch of the Severn between the high water marks of ordinary tides. All the land of which Swangrove claims paper title in this action was within the Duke's Conveyance. There is no express reference to the area conveyed being any part of the or a Beaufort Royalty. I mention this Conveyance not because it is asserted to be any act possessive of Caerleon (or Mathern or Magor) but to indicate how and when Swangrove enters the scene.
- In 1964 there was, so far as one can judge from the contemporary correspondence that has been produced, a licence granted to the Newport Wildfowling and Gun Club for shooting over an area including Caerleon. The licence itself is not produced. This is the correspondence also mentioned in para 145 above. The licence, not formally executed until March 1965, ran from June 1964 to June 1965. Whilst the first year's rent of £25 was paid, there is no evidence of any extension beyond June 1965 or payment for later periods nor of any shooting under the licence at all, although the likelihood is that there had been some exercise of the rights granted between June 1964 and the formal execution of the licence in March 1965. This can be seen to be evidence of Swangrove's control over and possession of Caerleon, at any rate with respect to the period to which it relates.
- In April 1968 Swangrove granted an exclusive licence to Mr W.G. Hunt and Mr G.P. Jennings to shoot over an area having a little more than 2 kilometres in shoreline length, part of Caerleon. Swangrove reserved the right, on notice, to nominate two guns to shoot over the same area. The licence was for 14 years from 29th September 1966 at the yearly "rent" of £15. This can be taken to be an act of control by Swangrove over and possessive of Caerleon, or at least of that length of foreshore and adjacent river bed represented by the 2 kilometres or so of coastline.
- I now come to first mention of the kind of activity and control upon which Mr Harpum for Swangrove chiefly relies: dredging. In 1984 Swangrove granted an exclusive licence to Mr Breen's company, Severn Sands Limited, to search for over and to dredge and remove sand and aggregate from four delineated areas of the foreshore in Caerleon, one large area and three much smaller pockets. The large area was further from the shore, closer to the deep water channel, than the three small pockets but those pockets were widely spread through Caerleon, one very close to the high water mark, to the north, one, furthest away from the high water mark, in the middle and one only a little distance from the Cold Harbour Pill-Avonmouth line at a middling distance between the shoreline and the deep water channel. The term of the licence was 21 years from 25th March 1983. The renewable licence fee was £250 per annum together with a royalty of 20p per ton removed. The licensee covenanted to observe all planning regulations and other appropriate regulations. There was provision for renewal of the licence and an option for a licence for a further 14 years was granted to the licensee. Mr Breen's written evidence included that Severn Sands Limited commenced dredging under the licence. There is evidence of payment of royalty and rent in 1986 and 1987. This is not to say that there was neither dredging nor payment before 1986 but rather that it has not been proven. The payment of tonnage royalties from 1986 I take to be proof of actual dredging of the amount indicated. This first licence was superceded by a licence, which I shall come on to, of the 28th August 1991.
- In his oral evidence Mr Breen accepted that he had not been personally involved in the relevant dredging until 1990 so that his evidence of the period of the first licence was likely to have been outside his own personal knowledge. However, given the indication in the papers of royalty and rent payments paid before Mr Breen was personally concerned, and the lack of evidence of any termination or complaint as to non-payment, I have no reason not to accept that there was, indeed, both dredging done and payment duly made under the first licence throughout the period falling before Mr Breen's own personal knowledge. Given that dredging, at any rate by the 1980s and 1990s, was outstandingly the most lucrative of the renewable uses to which ownership of the rights over and of the bed of the Severn could be put, I see this first licence as an important indicator of possession and control of Caerleon being in the hands of Swangrove by way of its grant of dredging rights and receipt of payments under this first licence.
- In May 1989 the Severn Wildfowlers Association, having a maximum membership of 40, approached the Duke's agents as to shooting rights. There was then further contact and by the 31st May 1989 the Association had left a map with the agents (it is no longer available) of the area, some 120 acres, over which they invited a grant to them of sporting rights. On 9th August 1989, on the basis that there would be a grant to them of an annual tenancy commencing in June 1989, the Association paid the agents £300 as the first annual fee. The Association awaited a "copy map of the specific area over which the licence is effective" and the map found in the associated file and, as it seems, as was enclosed with a later letter from the agents, shows that the area over which rights were granted included a large rectangular area falling within Caerleon. Mr Dawson, in his written evidence, confirmed that the plan in the file is the plan to which the permission related. Mr Gabe, in his witness statement, confirmed that shooting and wildfowling had taken place over the Swangrove land between 1946 and 1988 but he does not further identify the area of which he was speaking. No formal licence is in evidence and the next mention is in October 1998 when Swangrove's agents, Knight Frank, speak of an area "over which [the Association] have shooting rights" – which suggests that the rights were still current in 1998 – and spoke also of an area which the Association had "used for shooting". Mr Smith, in his oral evidence, said, with respect to the period as to which he could speak, that he was aware that the Association had exercised sporting rights; that was for a period commencing not later than 1992. Although his written evidence said that he continued to be responsible for collecting the rents, in cross examination he was not sure whether the licence fees were paid. I would, however, take it to be more probable that they had been as, had they not, the likely correspondence of complaint or termination would have been more memorable and more likely to have been taken up to his level of management than would have been than the repeated payments of relatively small sums. I regard these dealings with shooting by the Severn Wildfowlers Association as indicating a degree of possession and control over Caerleon, probably over some 120 acres of Caerleon, being enjoyed by Swangrove from 1989.
- As I have foreshadowed, a second dredging licence was granted to one of Mr Breen's companies, Bildorn Limited, on the 28th August 1991. This is the licence referred to in para 148 above. The term of the licence so granted from Swangrove to Bildorn was 21 years from 1983. The licence was exclusive. It provided for a fixed yearly sum of £1,000 and a royalty of 35p per ton. As in the first lease, the licensee covenanted to observe all planning requirements and other statutory provisions and regulations. Bildorn's obligations were guaranteed by Severn Sands. There was provision for re-entry on notice should payments remain unpaid for 14 days after the due date. Both the rent and royalty payments were reviewable on the expiration of successive periods of 7 years. Again, an option was granted to the licensee to take up a further licence for a further term of 14 years. The area over which searching for and dredging of sand and aggregates was thus licensed was shown on the annexed plan and consisted of the whole of such of the area now claimed by Swangrove as lies south and west of the second Severn crossing. It thus includes the whole of Mathern and the whole of Caerleon.
- At this point it is convenient to examine three issues related to dredging at Caerleon within the period of this second licence: firstly, over what, if any, periods was Swangrove paid by reason of there having been actual dredging of parts of Caerleon; secondly, over what, if any, periods did actual dredging take place over Caerleon. Given that a commercial dredger would hardly be likely to pay tonnage royalties unless there was actual dredging in the period in which they were paid, these first two issues can be taken together. Thirdly, how far, if at all, could any such dredging as had taken place be reasonably expected to have come to the notice of the Claimant's predecessors in title as representing the exercise of control over or possession of parts of Caerleon by someone other than himself or themselves?
- As for the first two issues, Mr Gabe could not be cross examined but his written evidence was that Severn Sands (it is not clear whether he is referring to a ship or company of that name) carried out dredging in the Caerleon area covered by the licence "during my time as surveyor", namely, as a maximum, from 1946 down to 1988. His evidence does not speak as to the duration or frequency of the dredging. Mr Dawson, in his written evidence, said the same as to his period of tenure as managing agent, namely from 1983 to 1992. Mr Smith did not deal with actual dredging in his first witness statement but in a second witness statement he explained that by reason of a change in computer systems in 1998 he had been unable to retrieve records from the previous system. He produced records from the new system showing consistent payments of both dredging royalties and dredging rents from September 1998 through to 2006. As dredging royalties were far from insubstantial I would have expected Swangrove's agents for the time being to have pounced on any non-payment and the absence of any evidence of that suggests that payment was continuously paid.
- There was further important evidence as to dredging from Mr Breen. He said that he had been involved in dredging by three companies, Bildorn, Severn Sands and Cross Avon Limited. His dredgers unloaded at Newport Docks or Chepstow. "We started", he said, "in 1990". He had purchased the Severn Sands company in1990 but he had then acquired with it a box of company papers and had copy dredging licences, he said, that went back to 1984/85. He was not asked to produce them. Dealing with a gap in the dredging receipts that had been produced in these proceedings by Swangrove, he said that he believed that, despite the gap, dredging had taken place during the period of the gap, 1990 to 1993. He believed there had been dredging from 1988 to 1993; the dredging of which he spoke had been by one or other of the three companies which he had named. So far as concerned Caerleon, he identified three of the numbered squares (each of one square kilometre) over which dredging had taken place. One of them, square 93, I would take to be some one and a half kilometres from Denny Island and the other two (squares 77 and 78) were some two to four kilometres from the Welsh coast. He knew, he said, where dredging had taken place before his companies had taken over in 1990; that was in squares 54 and 55 (which I would take to be some one to two kilometres from the shore). He did not himself go to sea on the dredgers but I do not feel able to infer from that that he could not have been sure where the dredging had taken place and it was not put to him that that was the case. His written evidence, which was not cross examined on this issue and which I accept, was that dredging took place approximately four to five times a week on the basis of a 44 week year. His written evidence included a batch of letters to Swangrove's agents at regular intervals (save for the gap of which I have spoken) indicating the fixed rents paid and the royalty payments made for the respective tonnages dredged in the various periods. Taken together with evidence I have mentioned as to dredging under the first, 1984, licence, this evidence, in my view, justifies a holding that there has been dredging at Caerleon over a continuing unbroken period from June 1986 or thereabouts, carried out by licensees of Swangrove and regularly paid for by those licensees to Swangrove, both in respect of fixed rent and tonnage royalty. Even more robust would be the alternative holding which I make, that such dredging has been continuous and continually paid for since 1990; the period of which Mr Breen had direct personal knowledge.
- As for the third issue, the degree to which dredging was apparent, Mr Breen did not give evidence as to the size of the dredger Rhone which his companies chiefly used but Mr Bingham's evidence included that the smaller class of dredgers which operated in "tide dependent" areas, which would include the parts of Caerleon with which I am concerned, would be at least 50 metres in length and clearly visible from either bank of the estuary. As the width of the whole estuary does not significantly vary as between that alongside Caerleon and that alongside Magor I take his observation about visibility to apply to both. There was no evidence that required some distinction between the two areas so far as concerned visibility. Mr Bingham also spoke of dredging being a noisy process because of the sound from the vessel's engine, the pumps running and the water being sluiced from the aggregate which was dredged. Moreover, I would expect that a dredger, even if not dredging at anchor but, as Mr Bingham said, at only 2 to 3 knots, would be readily distinguishable from vessels using the deep water channel in the ordinary course of navigation.
- That passage in his witness statement about visibility from either shore was not directly put to Mr Bingham in his cross-examination but it was put to him that at high tide and looking from the Welsh shore a viewer, unless he had binoculars, would not be able to tell if dredging was taking place in certain particular areas. The areas, in some cases overlapping, were identified to him by reference to a large chart then produced to him and to a smaller plan which was already in the papers. The indicated areas varied in shape and size but none was as big as Caerleon nor were all of them wholly in Caerleon. Mr Bingham answered that it depended on whether the viewer had binoculars and knew what he was looking for. The colour of the water was also a factor, he said, in the detection of dredging (as dredgers churn up the sand and hence the colour of the surrounding water is changed) but I did not take his answers to be a qualification of what he had said in his witness statement; he was not saying, as I understand him, that only with binoculars and some knowledge as to dredgers or dredging would the viewer appreciate that dredging was taking place but that, without that, the viewer would not have been able to say that it was taking place in the particular areas shown to him, which were unmarked stretches of water wholly or largely inside the boundaries of the areas claimed by the Claimant. It was then put to him more generally that without binoculars one could not tell where (counsel did not say whether) the dredging was going on and his answer was that it depended on the time that the viewer was there. As dredging was not done every day or even every week that was obvious enough but that answer does not suffice to undo his written evidence as to its visibility from the Welsh shore and, as I mentioned, it was not put to him that it did. He had earlier mentioned the weather as another factor affecting the detection of dredging. I add this: as dredging, as I have said, is outstandingly the most lucrative use to which Caerleon (or Magor) has for several years been able to be put, I am not satisfied that its reasonable paper owner, finding, if he did, that he could not be sure, from the Welsh shoreline and without binoculars, whether some squatter was usurping that commercial possibility, would not have either acquired binoculars or rowed or motored a boat out from the shore, have viewed from Denny Island, or have called at Chepstow or Newport Docks to enquire of the dredgers, as they unloaded, where it had been they had dredged or proposed to dredge. Most maps and all charts expressly identify areas of sand, areas where dredging might predominantly be expected to occur and to which his attention would thus be drawn as areas which required particular attention. All such areas so marked so far as concerns Caerleon (and Magor), are north-west of the deep water channel and hence within the areas claimed by the Claimant and his predecessor.
- I hold, given its frequency and duration spoken to by Mr Breen, whose evidence I accept, and given also its visibility, noise and the disturbance it causes to the waters, that a reasonably vigilant owner of Caerleon, with or without binoculars, could and would have detected, even from the low height of the Welsh shore, that dredging was taking place over Caerleon and that he could and would, as to dredging in squares 77, 78 and 93, very likely even more easily have detected that from the height of Denny Island. Lest it be said that Mr Roberts or his predecessors had no right to view Caerleon from Denny Island, I would note that he had felt able to visit the Island both on foot and by boat, to remain upon it above the foreshore and even to assert ownership or control of it by erecting a notice upon it, set in concrete, which suggested that it was controlled by him or a company of his. Moreover, I have no evidence, had the true owner of the Island, whoever that may be if not Mr Roberts or his predecessors, been asked for permission by the owner of Caerleon to use the island in order to check whether dredging or any other incursion into Caerleon was taking place, that such a licence would have been denied. It would have behoved the true owner to give such a licence if only to deny Mr Roberts or his predecessors the ability to claim adverse possession of the Island.
- Dates and times of Mr Roberts' visits to Caerleon were not given so whether they coincided with the days and hours when dredging was not taking place was never established. It may be he did not see dredging only because he was never there when it was being carried out. However, I would not take Mr Roberts to be less than ordinarily vigilant so his evidence that he had never seen a dredger working Caerleon was, in my view, more an indication of the infrequency or brevity of his visits than of the unapparency to a reasonable owner of Caerleon of the dredging that was still taking place even after his acquisition in 2003.
- I hold that throughout the duration of the dredging at Caerleon, which I have held to have taken place, it was such as would have come to the notice of an ordinarily reasonable and vigilant owner of Caerleon as representing not only the exercise of control over and possession of such parts of Caerleon by a person other than himself but control and possession of such parts as could and would have been seen by him to amount to control and possession of the whole of Caerleon.
- On the 6th July 1993 a date arrived which was 12 years before the issue of the claim form (a date which I will call the "Last Start Date"). If, by the Last Start Date, no right of action for the recovery of Caerleon had accrued to the Claimant's predecessors, if, in other words, time had not by then begun to run against them, then proof by a defendant of any later acts, either of possession of or animus in relation to Caerleon on Swangrove's part, would not avail that defendant. However, whilst the Last Start Date is the last date on which can begin any 12 year period of possession that could have any prospect whatsoever of success in leading to a judgment of adverse possession, that is not say that events after the Last Start Date cannot be relied upon, for or against, to show either that relevant possession, already begun, did or did not continue so as to complete or break some potential 12 year period which had started before the Last Start Date. I thus have to continue further into an examination of the alleged acts on Swangrove's part said to be possessive of Caerleon.
- Questions were put to witnesses about the right of wreck. Mr Smith said that cannonballs were found about 7 years ago on the foreshore at squares 53 and 54, both in Caerleon. The fact that Swangrove's agents knew of the finding could suggest that either their staff found the cannonballs or that others reported the finding to them but neither possibility was put to Mr Smith for verification, nor was I told of what became of the cannonballs so it would be somewhat speculative to regard this incident as evidence of Swangrove's exercise of the right of wreck. Of course, the right of wreck can only be usefully exercised when there is wreckage available which falls within it and it could be that the evidence as to cannonballs is evidence as to the only incident at Caerleon when the right could have been exercised. There was no evidence of Mr Roberts' predecessors or anyone else exercising the right save Mr Roberts' own evidence so far as it related to Caerleon. His evidence was that he would, on occasions over the "last few years" when on the foreshore, occasionally pick up pieces of driftwood in order to make a fire and hence, presumably, pick up pieces small enough to make a fire, to cook his lunch. As he did not acquire the manor or Lordship Marcher till the 12th October 2003 I take it that his reference to the last few years was to the period since he had acquired a lease thereof on 1st September 2000. The events of which he speaks, even if, strictly speaking, exercise of the right of wreck at all, are de minimis; I do not take them to deny to Swangrove the ability to claim, as it does, that it alone has exercised the right over Caerleon.
- In 1992 the Secretary of State for Wales served on Swangrove notice of his requirement to purchase over 902,000 sq.m. of land for the purposes of the construction of the Second Severn Crossing. That large area included parts of Caerleon. Notice was given in March 1992 of the Secretary of State's intention to enter upon and take possession of the land. Works were to be carried out on some 63,000 sq.m. of the foreshore and land of Swangrove. Swangrove responded to the notices and negotiations began. Although the construction of this Second Crossing was spoken of in evidence these next dates were not (Mr Smith thought work began in 1993-4) but it is clear that the works for it began in April 1992 and that the bridge was opened by HRH the Prince of Wales on 5th June 1996. The predecessors of the Claimant to the manor or lordship Marcher of Caerleon could be excused for not knowing of dealings between Swangrove and the relevant Ministries but could hardly fail to notice that massive works were being done on and over Caerleon to create the Second Crossing, which passes over Caerleon for some half a kilometre or so. Nor could they have failed to notice that it was not he or they who had been dealt with by the Ministries or had conducted negotiations in respect of what was to be purchased or what compensation should be paid. Had those predecessors made enquiries they would surely have found that it was Swangrove that was successfully asserting ownership and being treated as owner and possessor of Caerleon. It was from Swangrove that the relevant Ministry understood that it was taking possession. Ultimately, after long negotiations, in 2006 there was a transfer of registered land by Swangrove to the Secretary of State for Wales for £250,000 which included compensation for severance and damage; some part of this related to Caerleon.
- Over a number of days from late December 1998 to January 1999 Swangrove granted 22 licences to individuals to have access to and to fish for eels and elvers in three areas, one of which falls into Caerleon. The licences were £75 each and ran from the 17th February 1999 to 15th April 1999. It was left to the licensees to obtain the necessary permissions from the Environmental Agency and from the National Rivers Authority to carry out such fishing. There was no evidence of the elver fishing actually taking place either within the area of Caerleon or at all or of the licences being extended beyond 15th April 1999, or being renewed in other years but it seems probable to me that, having staked their respective £75, the individuals or some of them would at least have carried out exploratory fishing in each of the three areas to see if it was likely to be rewarding. The granting of such licences, the terms upon which they were granted, the extraction of fees for the grant and the subsequent elver fishing by the licensees together indicate, in my view, a degree of control and possession over the area concerned by Swangrove.
- In 2001 two of the individuals who had been authorised to have access and to fish for eels and elvers in the licences granted in late 1998 and early 1999 then took out further licences from Swangrove at £50 each for elver fishing in the same areas as before (and thus including part of Caerleon), together with a further larger area, also within Caerleon, which was defined by reference to two Ordnance Survey national grid squares, each of which is one square kilometre in area. The lower fee than earlier, the fewer individuals and the addition of the larger area even at that lower fee all might suggest that elver fishing had not been very successful during the earlier period but even unsuccessful fishing is fishing and the persistence of these two individuals suggests that elver fishing within the new grant would be likely to have taken place. The licences were renewed a year later so as to run to 31st December 2003; the very fact of the renewal tends to suggest that it had proved worthwhile to fish and that there had been and was likely to be further fishing. These two further repeated licences are to be regarded as further indications of a degree of possession and control by Swangrove over parts of Caerleon.
- On 18th May 2001 Swangrove granted a licence to the Secretary of State for Defence that gave the MoD highly prescribed rights of access to and shooting over a north-eastern part of Caerleon. The Ministry had a rifle range a little way inland at Rogiet Moor and there were targets set up closer to but not on the foreshore. The Ministry recognised that there would be bullets (which were carefully defined) missing the targets and going over or to the side of them and well into Caerleon. The licence authorised that form of accidental shooting over Caerleon and granted also such access over the defined area as was necessary to fulfil the Minister's covenants. The licence, at a reviewable annual rent of £200, was for a term of 15 years from 1st January 1999. Mr Smith's evidence was that there had been an earlier licence over the same area but that was not produced. He, hardly surprisingly, did not say whether there had in fact been any bullets that had missed their target and had fallen into Caerleon or whether there had been exercise of the associated right of access. However, the Claimant himself knew of the range going over that part of Caerleon marked "Danger Area" and spoke of there being flags up and sentries posted when shooting was taking place at the Rogiet Moor range. He therefore must have been aware that rights were being exercised or things done over Caerleon that had not been granted or authorised by him and which, in practical terms, excluded him from parts of the area title to which he claimed. The same would have been true as to his predecessors. This licence and the activity under it represents a degree of possession and control by Swangrove over part of Caerleon.
- The Claimant's claim form was issued on 7th July 2005. There are documents and acts thereafter which are claimed to be evidence of continuing control and possession by Swangrove thereafter but these late events may not be capable of assisting Swangrove in its claim over Caerleon and hence I shall not look further into them.
- As to whether Swangrove's control and possession of Caerleon, if otherwise established, was exclusive, in, say, the period of 12 years from February 1986 to 1998, or not to be counted in its favour because it was not exclusive, I have no evidence of acts of anyone but Mr Roberts and of his immediate predecessor, Mr Lewis, that might suggest that Swangrove's possession was not exclusive. I immediately discount the evidence relating to periods before Mr Roberts' acquisition of a lease of Caerleon on 1st September 2000 as the only evidence of that was hearsay and, indeed, was what could well have been a vendor's self-serving hearsay at that. Mr Roberts said that Mr Lewis had told him that he, Mr Lewis, the vendor to him, had fished and shot over Caerleon. Mr Lewis gave no evidence and that hearsay has no real weight. As for Mr Roberts' own activity, as he said in evidence on a different topic, he would not have wished to assert rights which he had not got so I can take it that if, which he did not in any event speak of, he had entered on Caerleon before his acquisition of a lease of it, it would not have been qua owner or with the animus possidendi of an owner. I can therefore take it that an allegation of non-exclusivity does not undo Swangrove's claim to adverse possession, assuming it is otherwise made good, at least for periods that end before the 12th October 2003.
Taking the law and fact together
- If I may now draw together the law as I have described it as being and the facts I have held, I find, dredging apart, a series of acts, often, I accept, with a large elapse of time between them, but which relate to widely spread parts of Caerleon and, whilst none alone would have been at all conclusive, together they are such as to have a cumulative force as all of them tend towards to the same conclusion, namely that there has been unchallenged and at least spasmodic control and possession of Caerleon by Swangrove or its predecessors for many years running at least until Mr Roberts' ownership in October 2003. There has been no evidence of ways which, in practical terms, Caerleon could have been used or exploited but in which it has not been; there is no evidence of opportunities declined or missed by Swangrove or its predecessors. Caerleon is of "a common character of locality". The degree to which the various acts came to the notice of Mr Roberts' predecessors in title no doubt varies one to another but, as to each of them, the acts would have come to the notice of a reasonable owner for the time being of Caerleon and have been noticed as representing acts suggestive of someone other than he being owner of Caerleon. I do not need to pursue what conclusion I would have arrived at had there not been dredging but when those acts are coupled with the evidence and the holding I have arrived at as to dredging then, in my judgment, there is such widespread unbroken, obvious and exclusive possession by Swangrove of Caerleon either from 1986 to 1998 or, alternatively, from 1990 to 2002 as has been sufficient in duration and kind to have barred the title of Mr Roberts' predecessors by late 1998 or, alternatively, by 2002. Swangrove's claim to have barred Mr Roberts' title to Caerleon (and the sliver) thus succeeds.
H. MAGOR: POSSESSION BY THE COMMISSIONERS
- Here the parties asserting adverse possession are the Commissioners. Unlike the case with Swangrove and Caerleon, Mr Wonnacott does not concede that an appropriate animus has been proven and thus here the contest is to both acts of possession and to animus. It is convenient to take acts of possession first.
- (i) Acts of possession
Regulation or management of all or parts of the Severn, its foreshore and bed, including the parts falling within Magor and many functions relating to such an area have been carried out by or on behalf of numerous Crown ministries or bodies. At one time or another aspects hereof have been in the hands of the Board of Trade, the Ministry of Shipping, the Ministry of War Transport, the Commissioners of Crown Lands and, as now, the Commissioners. I have not understood Mr Wonnacott to dispute that, whilst I should leave out of account acts done in other capacities, for the purpose of assessing adverse possession by the Commissioners, I can lump together all Crown acts done as or as if owners as counting towards the Commissioners' claim and that is the approach I shall adopt, speaking of whichever emanation of the Crown is at the time so concerned as "the Commissioners", whether or not it was them at the time.
- As was the case with Caerleon, the acts of possession chiefly relied upon over Magor are acts of dredging, from 1958, but I shall first look at acts of other classes before I return to dredging.
- Prospecting: it is usually but not invariably a precursor to an application for licence to extract and has been licensed by the Commissioners. Thus on 1st January 1964 they authorised trial boreholes, probably not relating to extraction, within an area which included part of Magor. On 4th November 1993 the Commissioners granted an exclusive prospecting licence to Crossavon Limited, one of Mr Breen's companies. The licence was for a year at £500 and, though it is hard to correlate one plan with another, I was told, and it was not contested, that the area covered was in and around square 130, roughly in the middle of Magor. Boreholes were accordingly driven in several parts of Magor.
- The Commissioners also licensed dumping. On 6th June 1967 they granted a licence, for £400, to the City of Bristol to dredge for material (outside Magor) and then to deposit it by Denny Island, in Magor. The license had no specified period but was related to the construction and maintenance of a loading quay. In 1976 the Commissioners gave their consent to the Port of Bristol Authority for 10,000 cubic metres of marl to be deposited off Denny Island (although only 1,750 cubic metres were in fact dumped). On 11th December 1992 the Crown, by its Marine Resource Management Agents, Posford Duvivier, confirmed that the Commissioners would consent to dumping on the Denny Island spoil ground upon reactivation of dumping.
- There has also been military use of Magor. On 15th September 1939 consent was given by the Commissioners for the use of the Bedwin Sands, part of which fall within Magor, as an RAF bombing range and later, in 1942, consent was so given for an air firing or gunnery range over the Welsh Grounds, sandbanks falling almost exclusively within Magor. In 1943 the Commissioners gave consent, for the duration of the war, for gunnery practice only over a widening arc of land which, at its western end, ran down as far as Denny Island and hence included part of Magor. At the time the RAF Bedwin Sands range was described as being in almost constant use.
- Turning to archaeological and related use, in 1985 the Newport Museum and Art Gallery, wishing to investigate the foreshore area near Magor, approached the Commissioners, who gave their permission. Plainly the Commissioners kept a sharp eye on things as, upon their reading an article in the Independent newspaper of 13th April 1987, they contacted the Museum the very next day to ask what the outcome of the survey had been and what was its likely duration. On 24th January 1989 the Commissioners indicated to the Museum that they had no objection to the Museum's continued presence on the area nor to the continuing survey. The area covered by the Museum by way of survey is far from clear but, given the original description of its being near Magor, it seems probable that, at least in part, it covered areas within the Claimant's claim.
- Mr Braithwaite next referred to the manner in which the Commissioners dealt with a claim in and after early 1914 from a Major H.A.B. Anthony who claimed to own a several fishery known as the Undy Fishery and, as owner of that, claimed a small extent of foreshore which, after passing over the foreshore of the area which I have called the sliver, then for a short distance fell into Magor. Not long after the letter of 1914 both the Commissioners and, perhaps, Major Anthony, had more pressing matters to turn to but by 1921 the notes amongst the Commissioners' papers indicate that Major Anthony's claim had already been repudiated but that steps should be taken to see whether that claimant had exercised any acts of ownership in the area. On 11th April 1922 the Commissioners asked the Collector of Customs and Excise to instruct their officer at Chepstow to report at once if and when any encroachments or acts of ownership occurred below the high water mark of ordinary tides on the foreshore of the area. The correspondence cannot be relied upon as evincing activity which would or should have come to the notice of the owner of Magor but it does indicate an intent on the Commissioners' part to control areas which, as they thought, were within their ownership and to keep such possession as they had as exclusive.
- On 25th October 1966 the Commissioners, writing of works in connection with the revision of Bristol Port and Harbour, commented upon dredging licences having been granted by the Commissioners and of their having been of long standing and then currently in operation.
- As another example not of acts of possession which could or should have come to the notice of the owner of Magor but, rather, of a keen eye being kept by the Commissioners on any developments relative to their lands, in 1969, upon enquiry being made by Monmouth County Council as to registration of Denny Island under the Commons Registration Act 1965, the Commissioners pointed out that Crown Estate foreshore was not registrable as common land under the Act and indicated that they would lodge an objection to any registration of the area between high and low water marks. Ultimately, by late 1970, it was noted that registration was amended to exclude tidal land below high water mark and the Commissioners accordingly withdrew their objection.
- There was, said Mr Bingham, little fishing in Magor; stocks were down but there was some fishing by rod and line and some by long line and netting but the fishermen were not identified by Mr Bingham. It was not put to him that such fishing was unlicensed by the Commissioners nor that, it if was, it was otherwise than an occasional and insignificant trespass, not of a kind such as to entrench upon the exclusivity of the Commissioners' possession were that otherwise to be substantiated.
- In 1993 there occurred events not of a kind such as might come to the notice of the owner of Magor but indicative of a degree of control being exercised by the Commissioners over Magor: learning that the MV Rhone, Mr Breen's company's ship, had been dredging in an unauthorised part of Magor, they threatened Crossavon Limited with an injunction to restrain such activity. The Commissioners also asked for compensation. The outcome was that an undertaking was given by the dredging company to take all necessary steps to prevent any further unauthorised dredging operations being carried out on Crown property. A little later the Commissioners' solicitors took the view that the undertaking had been broken and told Crossavon's solicitors that they were instructed to issue proceedings for an immediate injunction. Ultimately Crossavon paid £10,000 in settlement of the Commissioners' claim.
- That suffices to deal with indications as to comparatively minor acts; I now turn to the written evidence and then the oral evidence adduced by the Crown as to dredging, looking first at its being licensed or refused licence.
- In 18th August 1958 the Commissioners' predecessors authorised dredging by the Holm Sand & Gravel Co Ltd on "the King Road area near Cockburn buoy". This was an extension of arrangements already in place with that company. The King Road, which can be spoken of as a channel or an area, is, as an area, in part within Magor but towards its southernmost boundary, furthest from the Welsh and closest to the English shore. The area includes sands on the Welsh side of the deep water channel. That licence was renewed in November 1961 for 5 years, again renewed in 1966 and expired in 1974. There was a licence relating to dredging at King Road to another company, Bristol Towages Ltd, in 1965 for 2 years (renewed in 1967) and to yet another company, British Dredging Ltd, granted by the Commissioners in 1967 and running to 1974. In 1969 a licence was granted to Sand Supplies (Western) Ltd (by then the name of the erstwhile Bristol Towages Ltd) as to King Road that ran to 1974. The area dredged consisted of or at least included sands within Magor.
- In June 1962 the Commissioners granted licence to the Bristol Sand & Gravel Co Ltd to dredge at Cockburn Shoal for 5 years from October 1961. The area described was on the north western side of the deep water channel and in Magor. Sand Supplies (Western) Ltd was granted a licence to dredge at Cockburn Shoal in 1974 and, after renewals in the meantime, the final licence ended in December 1990. From 1974 another company, British Dredging Ltd, also had licence to dredge the Cockburn Shoal under a series of licences that ran to March 1991 and the Holm Sand & Gravel Co had licence to dredge there from 1974 to December 1990. From April 1995 to 2005 the Commissioners authorised dredging at Cockburn Shoal to ARC Marine Ltd.
- Another part of Magor, the Denny Shoal, was licensed by the Commissioners for dredging from 1975 to 1990, the licence being granted to Sand Supplies (Western) Ltd and from 1995 to date by ARC Marine Ltd.
- So far as licences are concerned, the picture is one of continuous unbroken dredging licences from 1958 to date, the licences having been granted to at least one company at a time and having been in respect of at least one at a time of the three described parts of Magor to which licences related. I have already dealt with the visibility of dredging when dealing with Caerleon; here the same conclusion is to be drawn, namely that the areas licensed were such that dredging upon them would have been visible without difficulty from the Welsh shore but, in this case, very likely more readily seen from the English shore and, I hold, easily enough seen from Denny Island.
- Mr Braithwaite also draws attention to the Commissioners having exercised control by refusing licences for dredging of parts of Magor between 1975 and 1979, in 1967, in 1972, 1976 and 1981. Mr Breen's company, Cross Avon Ltd, has an application still pending for dredging on a part of Magor, the North Middle Ground, an area closer to the Welsh shore than previously, and his evidence that his company had already spent a six figure sum on environmental and planning researches and consultations and applications to persons other than the Commissioners, applications that will have to succeed before dredging would be lawful, emphasised that dredging is far from a matter merely between the river-bed owner and the dredger and that, even if an owner wished to or did licence dredging everywhere within his plot, widespread dredging within it would not be lawful unless and until appropriate consents, including, for example, under the Coast Protection Act, were first obtained.
- The Commissioners have policed the dredging taking place within Magor. In 1973 they warned the Holm Sand & Gravel Co of the risk to vessels using the navigable channel if their dredging under the licence granted to them continued. The licensee was told to cease dredging the area concerned. I have already referred to the way in which the Commissioners reacted on learning that Mr Breen's ship, the Rhone, had been dredging outside the parts which had been licensed to his company.
- Turning to evidence from witnesses rather from the contemporary documents, Mr Bingham produced a very detailed spreadsheet indicating what tonnages had been extracted from Magor for each year from 1967 to 2005, the vessels believed to have been used, their usable tonnages and the number of trips needed for that vessel to recover the appropriate tonnage (on the assumption, favourable to the Claimant, that the ship always travelled, once dredging had taken place, fully laden). Using that spreadsheet, Mr Braithwaite produced graphs which, whilst inescapably making not-unreasonable assumptions, as Mr Bingham had made, purported to show tonnages declared by the dredgers from 1967 to 1986 and the numbers of ship journeys those tonnages would have required. The tonnage graph shows that never less than 130,000 tonnes was extracted per annum over the period and that over 200,000 tonnes was far more common than not, with little short of 400,000 tonnes being the maximum in any one year. The graph also purported to show how much of the annual total came from the southern part of Magor and how much from a more northern part, presumably a little more easily visible from the Welsh shore. In every year from 1969 to 1986 there was extraction from the northern part and in every year from 1977 to 1986 the extraction from the north exceeded that from the south. In no year from 1972 to 1986 was less than 100,000 tonnes taken from the northern part. As for the number of trips that would have been required for the dredging and then unloading of the declared tonnages, the graph (assuming, as was favourable to the Claimant, a seven day week and a 50 week year) showed, over the years 1967 to 1986, never less than 3 trips a week and, from 1970 to 1979 never less than 4 a week, with up to 6 or 7 trips a week frequent between 1971 and 1979. Overall, since 1967 some 5,580,000 tonnes has been declared as taken from Magor, a tonnage which would have required some 5,593 trips. Each separate trip in Magor would have taken, wrote Mr Bingham, some 4 to 7 hours to load the vessel with the material it was dredging and some 2 to 3 hours to steam out to the site. So far as concerns the obviousness of dredging, as I have mentioned, I come, relative to Magor, to the like conclusions as reached on the subject as to Caerleon` – see paras 172-174 above.
- Whilst assumptions have had to be made in the evidence from time to time over the period of dredging and whilst the specificity apparent in the spreadsheet may at times be unjustified, I accept the broad drift of the Commissioners' evidence as the best estimate that can reasonably made of the subjects it describes and, so far as concerns actual dredging, the evidence is that there has been extensive and continuous dredging on Magor at frequent internals and of substantial duration throughout working weeks from 1967 to date, licensed by, controlled by and paid for to the Commissioners.
- There has been no evidence of acts of control over or possession of Magor by any of the Claimant's predecessors in title and none by the Claimant at least until his acquisition of Magor on 16th October 1997 (assuming, in his favour, that the acts since then, of which he spoke, were acts of control or possession of Magor). However, there is some other evidence that requires examination as it may suggest that the Commissioners' control and possession of Magor, if they had had it, was not exclusive but had been shared with Mr John Hanbury-Tenison, the Third Defendant, and his predecessors in title to Porton land. Although Mr Denyer-Green indicated that his client claimed by adverse possession only with respect to the PGA (the narrow strip variously called "Porton", "the Green Land" or "Land A") the written evidence, sworn to at a time when the Third Defendant's claim was more extensive, was evidence open to the Claimant to rely upon as evidence that the Commissioners' control and possession of Magor was not exclusive.
- Turning to that written evidence, Mr John Hanbury-Tenison acquired the Porton Estate in late 1998 upon being given it by Deed of Gift from his father, Sir Richard. The only act as if an act of possession or control over Magor and of a kind that arguably could have come to the notice of the Claimant or his predecessors or to the Commissioners as rival candidates for possession and control of Magor as spoken to by Mr John Hanbury-Tenison in his witness statement was, to the extent that the rights so granted were in fact exercised over Magor rather than over the PGA, his grant in 2001 of a licence to exercise sporting rights over the foreshore, later extended for an open period, to the Newport Wildfowling and Gun Club. But there was no evidence of that licence being in fact exercised and in any event by 2000 the Commissioners had completed over 12 years of possession.
- As for Sir Richard's written evidence, he wrote of dealings in 1959 and 1960 with the steel company, Richard Thomas & Baldwins, but the area affected, running not more than a third of a mile out from the high water line, does not appear to have gone outside the PGA and into Magor and in any event the dealings were not indicative of an intent to exercise possession or control over the land but rather to convey it away. Sir Richard wrote also of permission having been granted to Newport Museum to excavate and to others to fish, both in a recreational way and, by putts and putchers, commercially; shooting was also authorised but in no case was it demonstrated that the rights granted were in fact exercised outside the PGA and into Magor. Whilst the Hanbury-Tenison family undoubtedly considered themselves as owners of areas of Magor outside but adjoining the PGA and not infrequently paid taxes or duties and corresponded with others on the basis that that was so, I do not find, with respect to Magor, sufficient acts by their family of a kind such as to deny to the Commissioners the role of having been in exclusive possession and control of Magor at least from the 1960s to the 1990s (at least until 1997). Indeed, on 1st March 1962 the Third Defendant's predecessor wrote, by his solicitors, that it was very improbable that he would require to exercise the right of fishing beyond "the present extent of the fixed engines", that is to say beyond the PGA.
- I should add that, although each of Sir Richard and Mr John Hanbury-Tenison said in their respective witness statements that he was not aware of dredging having taken place on Magor, Sir Richard said in his oral evidence that he was not often in the area and Mr John Hanbury-Tenison in his said that dredging there was advertised in the press and was common knowledge. I prefer that oral evidence. As for the advertisement of applications for approval by the requisite authorities of proposed dredging north and west of the deep water channel of the Severn, the current process requires the Welsh Assembly to conduct what is called a "Government View" and, as part of that, there is, it seems, a required advertisement of the proposals giving details of the areas intended to be dredged. In the example I have, the application of Mr Breen's Crossavon Company to dredge an area of Magor approximately 2½ kilometres south of the Welsh coastline, the advertisements in local newspapers delineate in considerable detail the areas as to which dredging is proposed. The areas are not only described by latitude and longitude down to minutes of arc but by northings and eastings, the latter being a form of identification with which Mr Roberts demonstrated himself to be very familiar. The Government View process also involves consultation with a considerable list of consultees. I have no corresponding detail in relation to earlier proposals to dredge and, indeed, they may not have been subject to the full "Government View" process but I think I can take it, moving on from Mr John Hanbury-Tenison's evidence, that dredging was advertised and that, even if not made public in corresponding full detail, the fact that there was proposed to be dredging in identified areas was the subject of advertisements throughout, at least, the 80s and 90s.
- The visibility, as I have held it to be, of dredging on Magor, both from the Welsh shoreline and from Denny Island (some of it may have been even more visible from the English shore) and its frequency and duration would, in my judgment, have brought it to the notice of any reasonable owner of Magor throughout the 1960s to the 1990s (at least until 1997). Any public advertisements would have made that even more probable.
- To avoid Mr Braithwaite's argument on the facts that a conclusion that the Commissioners' dredging in the south-eastern part of Magor could and should be taken to represent (at any rate when in conjunction with dredging and other uses on other parts of Magor by the Commissioners) adverse possession of the whole of Magor, Mr Wonnacott drew an analogy with a case in which the owner of a house in a row of houses with poorly delineated boundaries as to their gardens then strayed onto his neighbour's garden by, say, planting trees along a strip which in truth belonged to his neighbour. No one would say, said Mr Wonnacott, that such an act of minor encroachment could be taken to represent adverse possession of the whole of the neighbour's garden, still less of the neighbour's house. At most it would be taken as adverse possession of the strip.
- I agree that would be the probable outcome but the facts are so very different as to make the analogy unfair. There would unlikely to have been, in such a case, any animus possidendi in respect of the whole of the neighbour's back garden or house. To make the analogy less uneven, one would need to factor in, for example, that the intruder required permission to plant any trees, that, taking a practical view, he might have had to recognise that on no part of his neighbour's garden but along the strip would permission be likely to be granted, that he had then sought permission only as to that strip and had obtained it only as to the strip. If one had factored in also that the paper owner of the garden had never set foot in it over 12 years and that the garden had little or no possible use but for the planting of trees, one could begin to see that it could be possible that the user over the strip could be taken to be adverse possession of the whole garden. I would add that it was not proven (albeit highly likely) that it was the Commissioners that owned the land immediately beyond the deep water channel which was the boundary of Magor and from which, if this argument were to be examined further, the Commissioners would have had to encroach upon Magor. Plainly there will be cases where it cannot be taken that possession of part is possession of the whole but Mr Wonnacott's analogy is so far removed from the facts with which I have to deal that I have not found it helpful.
- Reverting, then, to the Commissioners' claim to Magor, there has been a series of relatively minor acts of possession and control, dotted over Magor, by the Commissioners of a kind which I have described and which would or should have come to the notice of a reasonable owner of Magor. The area has a "common character of locality". Aside from the Hanbury-Tenisons, whose distinct position I have dealt with, no one but the Commissioners seem to have exercised control or to have enjoyed possession throughout the 60s, 70s, 80s and 90s (down to 1997) in any way likely to be apparent to others and throughout those decades there has been uninterrupted dredging by repeated and frequent visits by vessels authorised by the Commissioners and paid for to the Commissioners by the various licensees. Given the importance of dredging as a use to which the foreshore can be put (Sir Richard Hanbury-Tenison spoke of fishing having become unprofitable because of the emergence of farmed salmon and that "you can't do much on the mud") I am, I believe, entitled to attach considerable weight to dredging. Mr Braithwaite did not espouse any particular period of 12 years but I hold that by 1980 and, a fortiori, by 1990 there had been such unbroken, obvious and exclusive control and possession by the Commissioners over Magor as was sufficient in duration and kind to have barred the title of Mr Roberts' predecessor in title. Were it necessary to do so, I would have held that such unrivalled possession had been continued at least until Mr Roberts' acquisition of Magor in October 1997. I do not mean, by stopping at October 1997, to hold that the Claimant's acts upon Magor since his acquisition represent an incursion into the Commissioners' exclusivity of possession but rather that that is a question I need not deal with. But were the Commissioners' acts accompanied by the necessary animus possidendi?
- (ii) Animus possidendi
Mr Wonnacott put animus in issue as to Magor. In his cross-examination of Mr Jacobson he drew the witness's attention to a small number of documents with a view to establishing the Commissioners' general policy and practice. Thus in 1957 a memorandum concerned with Crown Estate foreshore, while stating the general position that the Crown is prima facie entitled to every part of the foreshore, river and seabed between high water mark and the limit of territorial waters and stating also the ways in which a subject could establish title otherwise, continued:
"From the practical point of view, the Commissioners – following the practice of their predecessors – do not put themselves and other parties to the expense of court action where the claimant of title adverse to the Crown produces sufficient documentary and other evidence in support of his claim. When the Commissioners are informed by their Legal Advisers [including Counsel who is consulted in many cases] that, in view of the evidence submitted, the Crown's title is doubtful, the claimant is told that the Commissioners do not propose to contest the claim. There is no admission."
- Mr Jacobson was also referred to some private notes made by the Commissioners in 1973 which showed the Commissioners being embarrassed to have found that they had earlier granted licences (by then expired) and were currently offering new dredging and prospecting licences relating to an area as to which the Crown had yet earlier admitted that it belonged to the Duke. The error was, so far as concerned the future, spotted in time and the proposal was thus to amend what was being offered in the new licences to avoid further inconsistency. There is no hint that the inconsistency had been raised by or was known to the Duke; the problem was both detected and solved by the Commissioners.
- Mr Jacobson agreed that the 1957 memorandum did represent the Commissioners' policy; where sufficient documentary evidence was produced to the Commissioners that indicated that a subject had rights then the Commissioners would not formally admit those rights but, if they felt the claims were, indeed, legitimate, they would not resist their exercise. The Commissioners took legal advice. It was put to him that the Crown's policy was not to keep out someone who had a legitimate claim; he said that that was probably correct.
- Mr Wonnacott argued that those answers and the Commissioners' policy as illustrated in those documents together destroyed the Commissioners' claim to Magor; the Commissioners, he said, had never had the necessary animus to exclude everyone, including the paper title owner were he to show up. The animus which the Commissioners had was not the absolute and unconditional one to exclude all others, he said, which the authorities required. If I am right on the law – see paras 50 and 51above – then an intention on a squatter's part exclusively to possess at least unless and until he is dispossessed by another or until the paper owner shows to him both a good title and a real will to repossess suffices. On that basis the Commissioners' policy, as Mr Wonnacott describes it, would not be insufficient, when supported by appropriate acts, to lead to a successful claim to have barred the paper title. But, lest I am wrong on that view of the law, I should deal a little more fully with Mr Jacobson's answers.
- His answer that the policy put to him was probably correct was in the context of the Commissioners learning of a paper title to rights which conflicted with the presumed title of the Commissioners, of the Commissioners finding that the owner of that paper title was asserting or exercising such rights in reliance upon his paper title, of the Commissioners having the opportunity to assess the documentary basis of the purported paper title and of their finding, if necessary after taking counsel's advice, that the paper title appeared to be stronger than their own. Mr Jacobson's answer was, in effect, that if and when such a situation arose and then, yes, the Commissioners would not formally admit the paper owner's title but would not resist his assertion or exercise of the appropriate rights.
- But that situation has not arrived. There is no evidence as to when, or if, before these proceedings began, the Commissioners learned of paper rights of the Claimant or his predecessors over Magor that conflicted with their own title. There is no evidence that before these proceedings began the Commissioners had found that there was any such a paper owner asserting or exercising rights inconsistent with the Commissioners' rights (as the Commissioners understood them) nor, before these proceedings, had a paper title to the Claimant's rights over Magor been shown to or evaluated by the Commissioners. As for the last ingredient, the strength of the Claimant's title, that is, for the time being, presumed. It is neither necessary nor appropriate to attempt to establish what the Commissioners' advisers' view of the strength of the Claimant's title relative to theirs truly is.
- In these circumstances, I am unable to find any general policy or practice of the Commissioners which, of itself, by denying the existence of an appropriate animus, negates their claim to adverse possession of Magor. In particular, Mr Jacobson's answer that the Commissioners would not intentionally trespass on another's land does nothing, in my view, to deny the appropriate animus in a case where, as the 1957 memorandum itself states, the Crown believed it was prima facie entitled to every part of the area concerned.
- So much for the required animus not being disproved; but was it proved?
- Mr Bingham gave evidence, as did Mr Jacobson, that the Crown owns virtually the entire seabed in the United Kingdom out to the 12 mile limit. Mr Bingham added that, as a result, it was also the owner of the material that lay on the seabed. He, as I have mentioned, is an offshore agent of the Commissioners and, as such, is the director responsible for a team of specialists who, as he puts it, "deliver management of the Crown Estates' marine assets". The Crown also has foreshore agents. Mr Bingham attends meetings with local authorities and national government on the Crown Estate's behalf. The Crown Estate "as landowner", he says, grants licences to dredge in the areas with which I have been concerned and has done so at least, he said, since 1958. Mr Jacobson wrote of the Marine Estates Department of the Crown Estate as having to comply with its obligations under the Crown Estates Act to maintain and enhance the value of the Estate and the income derived from it with due regard to good estate management. Its interest, he explained, was that of a landowner although, he added, technically title was vested in the Crown itself. Save, as to Mr Jacobson, in the manner I have referred to, neither Mr Jacobson nor Mr Bingham was cross-examined to show that the Crown had no appropriate animus and I hold that at all material times the Crown has, in relation to Magor, accompanied its acts of possession and control with the animus possidendi of a putative owner.
Taking the law and fact together
- Given my conclusions as to their acts of possession and control over and their animus with respect to Magor, I hold that the Commissioners' claim to have barred Mr Roberts' title by adverse possession and limitation succeeds.
I. THE PGA – POSSESSION BY THE THIRD DEFENDANT OR HIS PREDECESSORS?
- (i) A preliminary issue
Here there is a prior point of some importance related to pleadings and to the course of argument. The Third Defendant pleaded in his Re-amended Defence that he had, as against the Claimant, so possessed the "Porton Foreshore land", alternatively the "Porton Claim land", as to have barred the Claimant's title by limitation but he also pleaded, inter alia, that the conveyances to him or to his predecessors of several fisheries were such as presumptively to have carried with them ownership of the soil over which the water ran. He then set out details of a number of conveyances to him or his predecessors of several fisheries. The Third Defendant's pleading continued that if "Porton" was not the owner of any part of the "Porton Foreshore land" or of the "Porton Claim land", then in any event the Third Defendant held a several fishery over all of those areas. I do not need to explain which particular areas were covered by those terms. In the Claimant's reply to that he asserted that such acts as the Third Defendant and his predecessors had done were no more than was consistent with the exercise of a right of several fishery and admitted unconditionally that the Third Defendant was entitled to a declaration that he had a several fishery over the PGA, although, the pleading continued, the Third Defendant was put to proof that the several fishery extended beyond that area.
- Until Mr Denyer-Green for the Third Defendant, last of the defendants to address the court in reply, did so, there had been no assertion on the Third Defendant's part that the Third Defendant did not own at least that admitted several fishery or that every act of the Third Defendant or his predecessors, even those consistent with his or their having such a fishery, would count in his favour against the Claimant as an act of (adverse) possession. The case had thus far proceeded, as Mr Wonnacott had understood the issues, on the basis that irrespective of the success or failure of the Third Defendant's other claims, that defendant did have a good paper title to a several fishery over at least the PGA. That, it seems, was well enough understood on the Third Defendant's behalf; Mr Denyer-Green's written submissions included that the Claimant had admitted that the Defendant had a several fishery. Accordingly, when Mr Denyer-Green asserted in his reply (long after all evidence had been heard and long after Mr Wonnacott had finished his speech in defence) that the Hanbury-Tenisons were, for immediate purposes, to be treated as if no other than squatters, without, squatters' rights apart, any rights whatsoever with respect to the PGA, Mr Wonnacott described himself as having been "ambushed". Of course, if the Hanbury-Tenisons had been no other than mere squatters in all respects then even such of their acts as were consistent with their having had a several fishery over the PGA would be acts which counted against the Claimant and, conversely, if it were accepted that the Hanbury-Tenisons did have a several fishery over the PGA then the range of acts upon which they could rely for possession as against the Claimant would be the more limited range of only those which were inconsistent with their having no more than such a fishery.
- To meet this objection Mr Denyer-Green rightly said that the terms of the preliminary issue – see para 8 above – required no assumptions to be made as to the Third Defendant's title, that it had not been proved that their title did include any several fishery and that the argument he was making could fairly be advanced. Mr Wonnacott asked me to rule that the Third Defendant was not to be permitted to assert as Mr Denyer-Green was then claiming. Given the pleadings and the course that the preliminary issue had thus far taken, I so rule; until Mr Denyer-Green's reply (which was far too late to raise it) there was not, in my judgment, either by way of pleading or argument, any claim by the Third Defendant to adverse possession which was based on his and his predecessors not even having had a several fishery over the PGA. Accordingly only acts by or on behalf of the Third Defendant or his predecessors in title to the PGA which were inconsistent with their having only a several fishery over the PGA are to have weight against the Claimant and are such that can be candidates for being regarded as acts of possession or control adverse to the Claimant's (assumed) title. The corollary of that ruling is this: as the various claims as to adverse possession before me under this preliminary issue are taken not to include a claim by the Third Defendant on the footing that he does not even have a several fishery over the PGA, he will be free, if he chooses, to raise that claim either in other proceedings or, upon appropriate leave to amend, later in this action.
- (ii) Animus Possidendi
In the course of my judgment below as to the existence or not of acts of possession I have at several points referred to indications in the evidence of Sir Richard and Mr John Hanbury-Tenison respectively having clearly shown, and of their predecessors having shown, in relation to the PGA or to a larger area including the PGA, a belief in their and their predecessors' ownership of it and an animus possidendi going back to the 1860s if not earlier of a kind such as, if accompanied by appropriate acts, would lead to a successful claim for adverse possession. I shall hold that animus possidendi is proven as to the PGA. But it is not animus that is the chief area of dispute as to the PGA.
- (iii) Acts of possession
As I am looking only for acts of control or possession by John Hanbury-Tenison or his predecessors which consist of or include acts not consistent with his or their having only a several fishery over the PGA, it would be as well for me first briefly to define a "several fishery". Mr Denyer-Green referred me to the Fourth Edition of Halsbury's Laws of England, 1998, Vol 18, para 617 where one finds:-
"A several fishery is an exclusive right of fishing in a given place, either with or without the property in the soil. By exclusive is meant that no other person has a co-extensive right with the owner."
- That definition suffices for immediate purposes. This next question is, for reasons which will appear, not the only possible one to raise but it is this: what, then, over any relevant period of at least 12 unbroken years, has the Hanbury-Tenison family done or has it licensed on the PGA that goes beyond enjoyment of such fishing and such property in the soil, assuming, at this juncture, that the several fishery included the ownership of the river bed of the PGA?
- Mr Denyer-Green took me to the processes by which the Special Commissioners for English Fisheries, acting under the Salmon Fisheries Acts 1861 and 1865, found the Lords of Porton, the Third Defendant's predecessors, after full enquiry, to have been and to be entitled to privileged "fixed engines", putts and putchers in large numbers for fishing on the PGA. He then took me to leases and licences by which that privilege was turned to advantage. I need not go further back in time than the 28th November 1930 when, in a typical dealing, the Lords of Porton agreed to lease to Jane Keyte not only some 44 acres of on-shore land at Porton but also the exclusive right to fish for salmon and all other fish "within the free and several Fishery of the Landlords known as the Porton Fishery", which was then more fully defined. The agreement included use of the landlords' stakes driven into the soil to which putts and putchers could be attached. The landlords reserved hunting and coursing over the demised area (rights which would surely have been impracticable so far as concerned the PGA) and reserved also shooting but, even if such reservations manifested an intention to exercise rights going beyond those of a several fishery, there is no documentary evidence that such reserved rights were exercised, still less that they were exercised in a manner that could be taken to have come to the notice of the Claimant's predecessors.
- I am told, as in the case with Swangrove, that many Porton Estate papers were lost or destroyed in the War.
- The difficulty which Mr Denyer-Green has (on the assumption I am proceeding under as to the fishery including the bed beneath the PGA) is in his finding acts which go beyond fishing and the associated right to the river bed. It is notable that when, in July 1938, the Lords of Porton put up a notice on the sea wall warning off trespassers, the right that the notice asserts as belonging to them is "the exclusive right of fishing for salmon and all other fish". In a gentlemanly dispute with the Crown in the 1960s it was a several fishery at the PGA which, carrying with it the soil, the Crown was prepared to concede and, so far as concerns the PGA itself, it is unclear that the Porton Estate was claiming anything beyond a several fishery over that area at the time. Even if it was, there was nothing there that would have come to the notice of an owner such as the Claimant's predecessors. There were returns made of fish caught and there were licences to the Man of Steel Sea Angling Club and, in 1979, a lease by Sir Richard (then Mr) Hanbury-Tenison of the sole and exclusive right to catch salmon by putcher and putt, the rent being payable in salmon rather than in money, and in which shooting was reserved unto the landlord but, as yet, there is no documentary proof of acts other than of fishing consistent with the ownership of a several fishery. True it is that in the early 1970s a temporary wharf was licensed by Mr Richard Hanbury-Tenison (both as to its erection and, later, to its demolition) but the wharf had been removed by September 1975 and so, at most, that could represent only some 3 years or so of activity indicative of possession of something beyond being only a several fishery with an associated right to the soil, even if it indicated that at all.
- Mr Denyer-Green turned to the subject of the right of wreck; the papers plainly showed the Third Defendant's predecessors claiming the right, against the Crown, but there is nothing which occurred as an act which, on the documentary evidence of which I am so far speaking, could have brought the enjoyment of such a right to the notice to the Claimant's predecessors.
- As for the payment of rates and other outgoings, there is no evidence that the Claimant's predecessors ever knew or approved of any payment of outgoings relative to the PGA being paid by the Third Defendant's predecessors. I do not say that such knowledge is a necessary pre-condition of a payment made in respect of occupation by a squatter counting as against the paper owner but it is obviously a factor to be taken into account. The difficulty that the Third Defendant is in is that it is far from clear, in respect of outgoings paid by his predecessors, that they were paid in respect of anything beyond a several fishery, bearing in mind that a several fishery can be claimed to have running with it, and the Third Defendant's predecessors did so claim to have running with it, the ownership of the bed of the river. In 1912-13 one sees, for example, that an "Usk fishery rate" was paid of £61.4s.0d. and in 1913 there was correspondence relating to the fishery and the payment of outgoings. Land tax was paid by the Third Defendant's predecessors but, given that they were claiming ownership of the soil by way ownership of the several fishery, that, of itself, does not point to an act of possession other than possession of a several fishery.
- On 10th January 2002 the District Valuer, in correspondence with the Third Defendant's predecessors' Estate Office, agreed that capital gains tax should be payable in respect of 4,000 acres of the foreshore in the tidal estuary of the River Severn. Whilst that acreage included the PGA it plainly went far beyond it. More importantly, I cannot see, without much more, that payment of capital gains tax by a squatter can count as against the paper owner. The basis on which the payment of rates, for example, can sometimes so count is that a person in occupation but not claiming adversely to be possessing the land is, on being approached for the payment of rates, likely to say "You had better ask the owner" - see Bree v Scott (1963) 29 VLR 692 at 702. A squatter, wanting the world to understand that he claimed the land for himself, would, says Bree v Scott, naturally pay the rates himself and there would then be a strong inference in the squatter's favour. But I cannot see that any equivalent inference could be drawn from a payment by a squatter of capital gains tax. The paper owner would not have details of how the amount of capital gains tax had been computed; he would not know that it included a sum by reference to a gain relating to the land of which he was paper owner and the payment would be confidential as between the Revenue and the payor. So far as concerns the documentary evidence, I do not find the evidence as to payments of such kinds as indicative of acts of possession going beyond possession of a several fishery.
- Mr Denyer-Green took me through a number of grants that had been made out of the land for the time being owned by the Third Defendant's predecessors but he relied upon those grants only as indicating the required animus possidendi and so, again, the evidence does not assist in relation to acts of possession.
- Next I was taken to some auction sale particulars of 1920. So far as concerns the PGA, its description was consistent with nothing being claimed or owned other than a several fishery carrying with it the ownership of the underlying soil of the river.
- Then I was taken to a Conveyance of 4th February 1960 between trustees, predecessors in title of the Third Defendant, as vendors, and Richard Thomas & Baldwins Limited. The vendors then sold, inter alia, a number of rights, easements and privileges which included the right to Richard Thomas & Baldwins to construct pipes over the foreshore for the draining of surface water from the land into the Severn, the passage of trade effluent, but not sewage, into the Severn and the pumping of water from the Severn to the main property then sold. But it was an outright sale; so far as would concern the Claimant's predecessors in title, they would have every reason to regard the person exercising those drainage and similar rights, if anyone, as being Richard Thomas & Baldwins. There would have been no reason (unlike the case as it would have been had the vendors been lessors rather than outright conveyors) for regarding the vendors as still being in possession of the relevant part of the PGA. The dealing, in other words, would, so far as concerned the Claimant's predecessors, whatever it represented by way of activity by Richard Thomas & Baldwins, represent no more than a single brief incident as if of possession by the Third Defendant's predecessors in title.
- In 1972 Mr Richard Hanbury-Tenison granted the British Steel Corporation, a successor to Richard Thomas & Baldwins, the right, as I have mentioned earlier, temporarily to erect a wharf on the footing it was demolished within 3 years. It was erected and it was demolished but, as I mentioned earlier, that can represent no more than acts of possession, if of any real duration, merely over the 3 years concerned, ending in 1975.
- In 1981, taking up a proposal from Gwent Trust for Nature Conservation Limited, the Third Defendant's predecessor indicated a willingness to grant shooting rights over the PGA (and over a larger area) to that body, with a view to that body then sub-licensing shooting to the Severn Wildfowlers' Association. There is no documentary evidence of the shooting taking place pursuant to this licence and sub-licence. In October 2000 the Pontypool Park Estate, acting for the predecessor in title to the Third Defendant, granted shooting rights over a larger area, which included the PGA, to the Newport Wildfowling and Gun Club at a rent of £50 per annum paid in advance. That grant, and the response of the Estate to the 1981 proposal, indicate, in my view, a degree of control of the PGA by the Third Defendant's predecessors but, so far as concerns documentary evidence, there is nothing to indicate that acts occurred thereunder which could or should have come to the notice of the Claimant's predecessor.
- Mr Denyer-Green then turned to documentary evidence of a miscellany of acts which might represent control or possession. These, though, whilst frequently illustrating the Third Defendant's predecessors' firm belief in their ownership of a several fishery (the seaward bounds of which were sometimes disputed but which were little, if at all, disputed so far as concerned the PGA) do not, in my judgment, represent, in general, possession or control of something other than a several fishery. Thus, in 1972, Mr Richard Hanbury-Tenison's agent objected to planning permission being sought to construct the (temporary) wharf which I have described earlier; he objected on the grounds that it would interfere with the "fisheries at Porton". As another indication of a wish to exercise control there was correspondence in 1988 from Mr Richard Hanbury-Tenison telling the Department of Archaeology of the National Museum of Wales that permission to use a metal detector on the Porton grounds or to remove any object therefrom should be sought from him or his agent; but there is no indication of a formal or even informal licence being granted amongst the documents produced and it transpired that the object which had been found had not required a metal detector for its finding. In 1990 Mr Richard Hanbury-Tenison had correspondence with the National Rivers Authority in which he drew their attention to the existence of a several fishery over the Porton foreshore and he mentioned illegal drift netting as a form of fishing that had for many years been a thorn in the flesh of the Estate's fishing tenants. By October 1990 Mr Hanbury-Tenison was indicating that the only commercial activity "we" had ever carried out was the putcher fishery and that that was in abeyance. In 1993 the Pontypool Park Estate was complaining to British Steel that, by one or more padlocks, it had effectively cut off access to Estate land but the complaint was, as it seems, relative to access to on-shore land rather than to the fishery. In any event, British Steel pointed out that the Estate's tenant, Mr Keyte, already had four keys and a further key was provided to him.
- In 2002 Sir Richard Hanbury-Tenison gave permission to the Countryside Council for Wales to conduct an inter-tidal survey and Sir Richard, in granting permission, spoke of the Porton fishery extending out to the low water mark. Even if the evidence revealed that the survey had taken place (which the documentary evidence does not) it would not, in context, seem to be more than a short-lived act in 2002, not one necessarily inconsistent with the Third Defendant having no more than a several fishery. All in all, these miscellaneous permissions and control, so far as concerns the documentary evidence of them, whilst reinforcing the long existence of an appropriate animus in the Third Defendant and his predecessors, do nothing to indicate acts of possession going beyond those which were proper to be exercised by an owner for the time being of a several fishery over the PGA. They were not of a kind to be taken to have come to the notice of a reasonable paper owner of the PGA as acts going beyond those consistent with a several fishery .
- Turning then to the evidence of witnesses, Sir Richard Hanbury-Tenison's witness statement writes of the Porton Estate having been in his family since 1765 and clearly shows that from September 1960 until he gave it to his son, John, in December 1998 he had, all along, a firm belief in his and his predecessors' ownership of the Estate and an animus which, had it been supported by appropriate acts, would have amounted to a sound claim for adverse possession. However, there is in his reference to the various documents I have already described and in his other references nothing in his witness statement which is evidence of acts of possession or control over any sustained period beyond 3 years other than might be expected of and would be consistent with the ownership of a person who owned no more than a several fishery and its associated right to the bed of the river.
- Moving on to oral evidence, in oral evidence-in-chief Sir Richard, who was born in 1925, spoke of his 78 years' of knowledge of the area. In cross-examination, so far as concerns acts other than fishing, he spoke of shooting rights having been granted but he did not speak of their having been seen by him or having been known by him to have been exercised. He spoke of the right of wreck which he said had not fallen to be exercised in his time. An anchor had been found but he had not been involved. He said that it was generally accepted that "we" owned a great deal more, seaward of the PGA, but that answer went only to animus. He could not speak of Porton land being used for target practice in the War; he was not then there at all. In any event, if Porton land was used in the War for target practice it would have been more likely, I would think, in order to minimise risks, to be land further out from the shoreline than the PGA.
- In his witness statement Mr John Hanbury-Tenison wrote of the grant of sporting rights over the PGA (and beyond) to Newport Wildfowling and Gun Club in 2000. He added:
"I have not shot over the foreshore myself, but the Gun Club has hosted my guests at my request".
- That then is evidence of actual shooting but, of course, the year 2000 is too late a start if 12 years' adverse possession needs to be shown. A substantial part of his witness statement dealt with the position between the Porton Estate on the one hand and the Crown on the other, an area of potential dispute with which, those parties having come to terms, I am now unconcerned. Mr John Hanbury-Tenison's witness statement, whilst reinforcing and bringing up to date evidence of an appropriate animus in him and his predecessors, does nothing to indicate acts of possession going beyond those consistent with he and his predecessors, so far as concerns the PGA, having been no other than owners of a several fishery and its underlying river bed.
- As for his oral evidence, Mr John Hanbury-Tenison said that he did not believe that there had been dredging on the PGA; he was uncertain whether boreholes had been driven into it but there was no suggestion that either rights to dredge or rights to prospect had been granted over the PGA by him or any predecessor of his. In cross-examination it was put to him that, assuming that he and his predecessors had had an exclusive right to fish on and over the PGA, including the right to use putchers and putts, would it not be that all the acts of which he had spoken would be consistent with such a right? He answered that that depended on the terms of the grant to him or his predecessors but he did not identify any act that was consistent with he or his predecessors having greater possession than merely such as would attend ownership of a several fishery and its river bed. He was asked about the right of wreck but was not sure that any occasion for its exercise had arisen. He was not aware of he personally having paid a tax on land that would not have been payable had he only had a several fishery but, as far as he knew, no occasion had arisen where that had been in issue.
- I have been unable to find, during any unbroken period of 12 years, acts of control and possession in relation to the PGA done by or on behalf of the Third Defendant or his predecessors of a kind which were inconsistent with the Third Defendant and his predecessors having no more than a several fishery over the PGA coupled with the usually-assumed right of property in the underlying soil.
- (iv) Taking the law and fact together
What this long scrutiny comes to is this: if the several fishery which the Claimant admits the Third Defendant has over the PGA is one that carries with it property in the bed of the river, then adverse possession and limitation does not assist the Third Defendant. It may be that in that context adverse possession would be irrelevant in the sense that ownership of a several fishery with associated rights to the river bed would meet all the wishes of the Third Defendant and defeat all the aspirations of the Claimant as to the PGA. I do not need to look into that but the true contest, in such a case, will be one of paper titles between the Claimant and the Third Defendant, a contest with which I have not been concerned.
- But what is the situation if the admitted several fishery does not include the underlying soil? If that is the case, and running again over the acts of possession and control described above and bearing in mind, too, that a squatter's possession is usually against the fee and for an estate in fee, I would hold that the Third Defendant and his predecessors, or, more particularly, his predecessors, acquired a fee simple by adverse possession over any number of 12 year periods from, say, the 1860s onwards, down at least to November 1930 and yet further on, into the time of which Sir Richard could speak, by way of the fixing of putts and putchers – "fixed engines" – in large numbers in the PGA. They were well spread over the PGA at points calculated, presumably, at the time (having in mind the shifting nature of channels and sands) as the best available on the PGA for the catching of fish. In the hearing before the Special Commissioners of English Fisheries in the 1860s there was evidence given of the substantial poles or stakes driven in to the mud and sand and to which the fixed engines were affixed. It was part of the claim of the successful claimants before those Special Commissioners that the positions of the fixed engines could be moved from point to point within the respective fisheries as it would be absurd, ran the argument, given the shifting nature of the Severn Sands, to suppose otherwise. The fixed engines were up to some 95 yards or so in length and of a good height, "visible to anyone". Their use continued through the 1930s and certainly into the War years. It is fair to remind myself that the Porton Estate records for the War years were destroyed. Such user by the Third Defendant's predecessors or their licensees was, it seems, exclusive and represents, in my judgment, an appropriation of the soil, an act of possession or control by the Third Defendant's predecessors inconsistent with their ownership being of no more than a several fishery which included no rights to the underlying soil. So also the licensing of the erection of the temporary wharf for some 3 years or so in the early 1970s and the shooting and fishing to the limited extent that it was proven both to have been licensed by the Third Defendant or his predecessors and to have taken place.
- Thus the position arrived at relative to the PGA is this: if, as a matter of a close study of the respective paper titles of the Claimant and of the Third Defendant to the PGA (not a matter before me), it appears that the Third Defendant and his predecessors have a paper title to a several fishery which carried with it the river bed of the PGA, then the Third Defendant has no successful claim (but may not need any) to the PGA based on adverse possession and limitation for want of he or his predecessors proving acts of possession and control over the PGA over any unbroken period of 12 years which were acts indicative to the Claimant's predecessors as (assumed) owners of the PGA of their having or claiming a greater estate or right than that of a several fishery together with its river bed. If, however, from that study of the respective paper titles, it appears that the Third Defendant and his predecessors, whilst owners of a several fishery, had no associated right to the river bed of the PGA, then they will have achieved an estate in fee simple to the PGA by way of a successful claim based on adverse possession and limitation. But, as an examination of the respective titles has not been before me, I unfortunately cannot say which outcome, even as to adverse possession, is appropriate; that will have to await the outcome of the main action.
- For the reasons I have given and as I have already mentioned, of the claims of adverse possession and limitation before me, Swangrove's to Mathern fails but its claims to the Welsh sliver and to Caerleon succeed; the Commissioners' claim to the Eastern sliver and to Magor succeed and, for the reasons given in para 252, the final outcome of Mr John Hanbury-Tenison's claim to the PGA has to await the result of the main action.
- I shall need to discuss with counsel the proper form of Order and to see what, if any, useful directions can be given to move the remaining matters towards trial.