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MAYOR AND BURGESSES OF LONDON BOROUGH OF HOUNSLOW v. ANNE MINCHINTON [1997] EWCA Civ 1277 (19th March, 1997)
IN
THE SUPREME COURT OF JUDICATURE
CCRTF
96/0075/C
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE BRENTFORD COUNTY COURT
(HIS
HONOUR JUDGE OPPENHEIMER
)
Royal
Courts of Justice
Strand
London
WC2
Wednesday,
19 March 1997
B
e f o r e:
LORD
JUSTICE BUTLER-SLOSS
LORD
JUSTICE MILLETT
LORD
JUSTICE THORPE
-
- - - - -
THE
MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOW
Plaintiff/Respondent
-
v -
ANNE
MINCHINTON
Defendant/Appellant
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
EDWARD
BANNISTER QC & MR FRANCIS MORAES
(Instructed by G.L. Hockfield & Co, London, SE11 4PG) appeared on behalf of
the Appellant
KIM
LEWISON QC & JONATHAN KARAS
(Instructed by London Borough of Hounslow, Middlesex, TW3 4DN) appeared on
behalf of the Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
LORD
JUSTICE BUTLER-SLOSS: I will ask Millett LJ to give the first judgment.
LORD
JUSTICE MILLETT: This is an appeal, brought with the leave of Russell LJ and
Singer J, by the Defendant, Miss Minchinton, from an order of His Honour Judge
Oppenheimer made on 27 June 1995 in the Brentford County Court. The Defendant
is the owner and occupier of No. 61 Maswell Park Crescent, Hounslow, Middlesex.
The
action concerns a strip of land 2'8" to 3'5" inches wide at the bottom or
eastern end of the Defendant's garden. Beyond the strip, further to the east,
lies Wosely Close. The Plaintiff Council claims that it is the owner of the
disputed strip. It is common ground that the Council has the paper title to
the strip. The Defendant claims that she has acquired title to the disputed
strip by adverse possession.
The
action was precipitated when the Defendant commenced to build a summerhouse
part of which encroached on the disputed strip. The Council sought a mandatory
injunction requiring the Defendant to remove the encroaching part of the
building and both sides sought declarations as to the true line of the
boundary. The Judge found that the Defendant had failed to establish title by
adverse possession to any part of the disputed strip. He refused to order her
to remove the encroaching building or any part of it, but ordered an enquiry as
to damages in lieu of an injunction. He made no other order on the claim or
counterclaim. The Defendant appeals to this court.
I
will first try to describe the land. It was common ground that the true
boundary according to the paper title lies 113 feet from the front of No. 61
Maswell Crescent and that the line of the boundary is unmarked. Beyond, that
is to say further to the east of the unmarked boundary, there is or was a line
of hawthorn trees or hedge. These were within the disputed strip and did not
form the line of the true boundary. The Judge said that it was less accurately
described as a hedge than as a pair of hawthorn trees with other kinds of trees
or shrubs interspersed between them. But it is described as a hedge in the
judgment and it has been so described before us and I will refer to it as a
hedge. Beyond the hedge and marking the far or eastern boundary of the
disputed strip there is and at all material times has been a chestnut paling
fence. I will read two passages from the judgment below. The first is at page
4 of the judgment where the Judge says:
"It
is agreed that the original rear boundary of No. 61 was 113 feet from the
frontage of the house. This means that the rear boundary of the garden of the
house stopped short of the hedge and chestnut paling fence",
The
other is at page 8 of the judgment where the Judge says:
"The
hedgerow ran behind the boundary on the paper title of the Defendant, the paper
title extended only as far as a hypothetical line drawn across the bottom of
the garden between the ends of the two [lateral] dwarf walls."
These
lateral walls or fences separating No. 61 from the properties on either side of
it ran down only to the true but unmarked boundary. As I understand it,
similar lateral fences or walls or properties on either side of the adjoining
properties also stopped short of the line of the hedge. Before 1987, however,
No. 61 was completely enclosed on the side adjoining No. 63 Maswell Park
Crescent where the gap between the end of the lateral wall and the hedge was
filled by a corrugated iron sheet. On the other side the gap was filled by an
elderberry tree which appears to have formed something of a barrier at that
point.
The
chronology is as follows. No. 61 Maswell Park Crescent, the Defendant's
property, was conveyed to the Defendant's predecessor in title, one Mr. Allen,
in March 1926. By then the Defendant's house had already been built on the
plot. In 1956 an application was made by developers, G. T. Crouch Ltd.
("Crouch"), for outline planning permission to develop the area east of the
Defendant's property which now forms Wosely Close. Planning permission for the
development of Wosely Close was granted to Crouch in March 1957. One of the
conditions attached to the planning permission required Crouch to plant trees
as a screen between Woseley Close and the properties in Maswell Park Crescent
in accordance with an approved scheme.
In
February 1959 the disputed strip was transferred by Crouch to the Mayor and
Burgesses of the Borough of Heston and Isleworth. The Plaintiff, the London
Borough of Hounslow, is their successor in title. Before, Crouch had previosly
erected a chestnut paling fence right along the boundary behind No.'s 61, 59
and 63 Maxwell Park Crescent and extending in either direction. The Judge
marks the edge of the disputed strip. It was to the east of the hedge and some
distance within the Council's land.
No.
61 was bought by a Mr. and Mrs Ritter in November 1975. Mrs Ritter's
son-in-law was a Mr Dunn. He gave important evidence before the Judge which he
accepted. In June 1986 the Defendant purchased No. 61. In October 1987 a wind
storm caused considerable damage to the shrubs and trees in the garden of No.
61. The elderberry tree fell across the chestnut paling fence and the two
hawthorn trees also fell down. The Defendant's companion, a Mr. Collins, who
lived at No. 61 with her, re-erected the chestnut paling fence in the same
position as before, but he also removed the corrugated iron fence and replaced
part of it with a new fence. He also, as I understand it, plugged the gap on
the other side of No. 61 by a further lateral fence in the place where the
elderberry tree had previously stood, thus completely enclosing of No. 61 and
including the disputed strip within the enclosure.
In
August 1990 Mr. Collins and the Defendant's builder visited the Council's
offices to inquire whether planning permission was required to erect a
summerhouse at the rear of No. 61. They were informed that planning permission
was not required. In August 1990 the builder began to erect a summerhouse and
half completed it. In September the Council wrote to the Defendant telling her
that, contrary to the advice she had previously been given, planning permission
was required for the summerhouse.
The
Defendant then applied for planning permission. It was refused at first, but
was eventually granted in February 1995. Meanwhile, however, the Council
noticed that the summerhouse was being built partly on the disputed strip; and
it brought the present proceedings in October 1993 claiming, inter alia, an
injunction to require the demolition of the partly-built summerhouse as
constituting a trespass on its land. The Defendant counterclaimed for a
declaration that she and her predecessors in title had acquired title by
adverse possession.
The
position in 1959, when Crouch transferred the disputed strip to the Plaintiff
Council's predecessor in title, is that the disputed strip formed part of a
long belt of land to the west of a chestnut paling fence. The hedgerow or line
of trees was entirely within the disputed strip and west of the fence. There
was no means by which Crouch or the Council could gain access to the disputed
strip or to the hedgerow. If the Council had wished to trim the hedge, its
employees would have had to remove part of the fence or obtain permission from
the Defendant or her neighbours to have access from Maswell Park Crescent.
Some of the Defendant's neighbours were also excluded from the disputed strip
by their own rear walls. Where there were no rear walls the lateral fences did
not reach beyond the line of the unmarked boundary to the west of the disputed
strip, so that those neighbours could gain access to the lane between their
properties and their fence. That was not so in the case with No. 61 where
access to the disputed strip from the neighbours' land on either side was
blocked, or one side by the corrugated iron sheet and on the other by the
elderberry tree.
The
Judge found that the Defendant's claim for adverse possession largely consisted
of Mr Dunn's evidence. He was the son-in-law of Mrs Ritter. He and his wife
apparently regularly visited No. 61 and helped Mrs Ritter in the garden. He
worked in the garden once a month or so. The Judge recorded his evidence that
he remembered the rear boundary to the garden as marked by a chestnut paling
fence and that there were a hawthorn hedge and some elderberry bushes. That
was important evidence because it showed that Mr Dunn who worked in the garden
assumed that the chestnut paling fence formed the rear boundary. It follows
that he considered that he was responsible for keeping the disputed strip tidy.
He also said in evidence that there was never any issue that this was part of
his mother-in-law's property and that he trimmed the hedge from time to time.
He told the Judge that Mrs Ritter weeded the area at the end of the garden and
around the hedge and trimmed and looked after the elderberry bushes. He also
said that at the end of the garden and on the disputed strip there was a
compost heap. The Judge accepted the entirety of Mr Dunn's evidence, subject
to one minor matter about the exact location of a strawberry bed.
Both
Mrs Ritter and the Defendant are dog owners. The Judge found as a fact that at
all material times before to the hurricane in 1987 the garden was completely
enclosed at the rear, partly of course by the chestnut paling fence or possibly
by the hedge in front of it (if the hedge was impenetrable for dogs, which for
my part I would rather doubt) and on either side by the corrugated piece of
iron and the elderberry bush. Although it is true that for a short period
after the wind storm in October 1987 there may have been access to the garden
from each side, that was soon put right when Mr. Collins re-erected the fence
and also shut off the gap to each side.
At
the time of the wind storm or shortly before, in the summer of 1987, the
Defendant and Mr. Collins cleared up the garden. They removed the compost
heap. They dug the compost into flowerbeds elsewhere in the garden and removed
odd items like bed frames and so on which had been thrown on to the compost
heap to a local dump.
The
Judge's findings are set out at pages 18 to 20 of his judgment. He found that
there was a compost heap placed on the disputed strip at the bottom left-hand
corner underneath which was household rubbish put there by Mrs Ritter and
removed by Mr Dunn (he must have meant Mr. Collins) during the late spring and
summer of 1987. He continued:
"Thus
the maximum period of time that the compost heap could have occupied the land
was from the date upon which Mrs Ritter purchased No. 61 [in December 1975]
until the summer of 1987 - a period of 11¾ years which ended 6¼ years
before the commencement of these proceedings."
It
is not clear what importance the Judge placed on the concluding words which
appear to derive from the doctrine of prescription applicable to the
acquisition of easements rather than the doctrine of adverse possession. It is
sufficient for a claim to title by adverse possession that the Defendant or his
predecessors in title should have been in adverse possession of the land for 12
years, whereupon the title of the true owner is extinguished. It is not
necessary that the period of 12 years should continue right up until the
commencement of the proceedings. If the adverse possessor goes out of
possession and the true owner does not re-enter, the clock as it were continues
to tick. The Judge found that the garden was enclosed, at least to a
sufficient extent to prevent the dogs from escaping, and that it had been
enclosed throughout the ownership of Mrs Ritter and the Defendant. He found
that the corrugated iron had been removed after the storm in October 1987 which
he pointed out was 6 years before the action was brought; but the latter
observation is not redundant. He accepted that the garden appeared to go down
to the hedge and fence, although there were dwarf lateral walls on the
boundaries of the adjoining gardens on either side, which did not extend to the
disputed strip. He accepted the evidence that Mrs Ritter trimmed and looked
after the hawthorn bushes and the elderberry tree and that Mr Dunn sometimes
did trimming work for her. I think that he must also have accepted the
evidence that Mrs Ritter weeded the disputed strip since he had referred
without comment to that fact earlier when recording the evidence of Mr Dunn
which he accepted.
After
those findings the Judge expressed his conclusion in the following words:
"Notwithstanding,
these acts I find that they are insufficient to amount to a sufficient degree
of exclusive occupation to constitute sole possession of the disputed strip. I
hold that the actual present use of the disputed strip is and has at all
material times been for the purpose of the putting thereon a screen; and that
as regards the fence, the true owner's use of the land for that purpose has
continued substantially uninterrupted until today by the trespasser, and as
regards the hawthorn bush, continued uninterrupted until at least 1987, with
the result that it cannot be said the trespassers occupation was ever
exclusive.
Support for this reasoning is to be found in the case of
Pulleyn
v Hall Aggregates (Thames Valley) Ltd
(1993) 65 P & CR 276. The screen may have been more or less effective but
any use that the Defendant or her predecessor in title made of the disputed
land was not inconsistent with the use made of that land by the council. I
therefore find that the Defendant has failed to make out her case."
In
my judgment, that is an impossible conclusion. The Judge seems to have
regarded the continued presence of the hedge or trees originally planted by the
Council's predecessor in title as constituting some kind of maintained
possession of the disputed strip sufficient to prevent the Defendant's acts on
the land as constituting exclusive occupation.
There
are traces in the Judge's judgment of the now exploded doctrine of
Leigh
v Jack
[1879] 5 Ex D 264, a doctrine which has not survived the decision of the Court
in
Buckinghamshire
County Council v Moran
[1990] 1 Ch 623. The latter was in some ways a not dissimilar case to the
present. It was concerned with a claim to adverse possession. The parties'
respective properties were separated by a fence or hedge and the true owner had
no access to the disputed land. In 1967 the Defendants' predecessors in title
began to maintain the land by mowing the grass and trimming the hedges and
using the land for their own purposes. The evidence was that the Plaintiff,
the owner of the paper title, had no immediate use for the land but intended in
due course to dedicate it for the purposes of a road diversion. Accordingly,
the use made of the disputed land by the Defendants did not interfere with the
proposed future use to which the true owner intended to devote the land. The
court held that the Defendant had established a title by adverse possession and
the fact that the acts of ownership relied upon to establish his claim to
adverse possession were not inconsistent with the use to which the true owner
intended to put the land in the future was irrelevant. I read from the
headnote:
"...
a claimant to a possessory title had to demonstrate that either the owner of a
paper title had discontinued possession and the claimant had taken over
possession or the claimant had dispossessed the owner; that such a claimant had
to establish not only factual possession but also an intention to possess so as
to amount to adverse possession, and it mattered not that the true owner plans
for the future use of the land in question; that although the council had never
discontinued its possession it was clear on the evidence that by ... 1973 the
defendant had acquired complete and exclusive physical control of the plot
since he had secured its complete enclosure and annexation to his house; and
that, accordingly, the defendant's acts amounted to an unequivocal
demonstration of his intention to possess the plot.
...
Per
curiam
.
The general doctrine that where the acts of an intruder, however continuous
and far-reaching, did not substantially interfere with any plans which the
owners might have for the future use of undeveloped land the squatter's
possession was prevented from being adverse, has been abrogated by paragraph
8(4) of Schedule 1 to the Limitation Act 1980."
I
shall read a few passages from the judgments. Slade LJ read paragraph 8(1) of
Schedule 1 and 8(2) of Schedule 1 to the Limitation Act 1980 which provide:
"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."
Then
Slade LJ continued as follows:
"Before
the passing of the Act of 1980, certain decisions of this court (in particular
Wallis's
Cayton Bay Holiday Camp Ltd. v Shell-Mex and B.P. Ltd.
[1975] Q.B. 94 and
Gray
v Wykeham Martin & Goode
(unreported) 17 January 1977; ... were thought to have established a general
doctrine that in one special type of case these would be implied in favour of
the would be adverse possessor,
without
any specific factual basis for such implication
,
a licence permitting him to commit the acts of possession upon which he sought
to rely; the effect of implying such a licence would, of course, be to prevent
the squatter's possession from being "adverse." That special type of case was
broadly one where the acts of an intruder, however continuous and far-reaching,
did not substantially interfere with any plans which the owners might have for
the future use of undeveloped land.
The
doctrine of implied licence, in my view, raised substantial conceptual
difficulties as a matter of law ..."
Then
after quoting from an earlier judgment of his own, Slade LJ continued:
"The
doctrine has now been abrogated by paragraph 8(4) of Schedule 1 to the Act of
1980 which provides:
´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.'"
That
marked the end of the doctrine of the implied licence. However, despite its
abolition, there continued to survive a doctrine derived from a dictum of
Bramwell LJ in
Leigh
v Jack
that:
"...
where land is acquired or retained by the owner for a specific future purpose,
then acts of trespass which are not inconsistent with such purpose do not
amount to dispossession."
The
origin of that "special rule" was, as I have said, the dictum of Bramwell LJ in
Leigh
v Jack
.
After considering that case and other cases which followed it Slade LJ said
that the dictum was not correct and he said this:
"The
statement of Bramwell LJ in
Leigh
v Jack
... on which so much reliance has been placed on this appeal was made in the
context of a case in which, it would appear, the defendant would have had
knowledge of the intention of the owner to dedicate it to the public as a
highway. ... If in any given case the land in dispute is unbuilt land and the
squatter is aware that the owner, while having no present use for it, has a
purpose in mind for its use in the future, the court is likely to require very
clear evidence before it can be satisfied that the squatter who claims a
possessory title has not only established factual possession of the land, but
also the requisite intention to exclude the world at large, including the owner
with the paper title, so far as is reasonably practical and so far as the
processes of the law will allow. In the absence of clear evidence of this
nature, the court is likely to infer that the squatter neither had had nor had
claimed any intention of asserting a right to the possession of the land."
I
interpose to make two points: first, the two preconditions for the application
of Slade LJ's observations are (i) that the owner, while having no present use
for the land, had a purpose in mind for its use in the future; and (ii) that
the squatter was aware of this. Neither condition is satisfied in the present
case. The Plaintiff Council did not have any use in mind for the disputed
strip in future. The Judge found only that the Council planted the hedge as a
screen and that the hedge continued to be a screen throughout the period with
which he was concerned. Far from finding that the Council had a future
intention to put the land to some purpose other than that for which it was
being used he found that the Council was throughout in possession by virtue of
the continued existence of the trees and hedgerow on the site. Moreover there
is not the slightest evidence that the Defendant or her immediate predecessor
in title, Mrs Ritter, had any idea that the Council's had any particular
intentions in regard to the disputed strip. Mrs Ritter was not the person who
acquired the land directly from the Council or was she in occupation at the
time when the Council acquired the land. I would observe that Slade LJ does
not suggest for a moment that the existence of such a known purpose prevents
the acts of the squatter from being sufficient acts to constitute adverse
possession, but rather that they go to the squatter's
animus
possidendi
.
This cannot be affected by considerations of which he is unaware.
Having
read some of the earlier authorities in this court, Slade LJ returned to deal
with Bramwell LJ's dictum in
Leigh
v Jack
and said this:
"I
would, for my part, reject the submission that since the Act of 1980 there
remains any ´special rule' which requires the words ´possessed' and
´dispossessed' or similar words to be given anything other than their
natural and ordinary meaning in
Leigh
v Jack
type of case.
Thus
far, therefore, I conclude that (1) if by ... 1973 the defendant had taken
possession of the plot, his possession must have been adverse to the council;
(2) the question whether or not the defendant had taken possession of the plot
by ... 1973 falls to be decided by reference to conventional concepts of
possession and dispossession and not by departing from the ordinary and natural
meaning of the relevant statutory provisions merely because this is a
Leigh
v Jack
type of case."
Slade
LJ then turned to the question of adverse possession in that case. He pointed
out that the true owner, the Council, could not gain access to the disputed
land unless it was prepared to climb a locked gate or scramble through one or
other of the hedges bordering the plot.
"The
defendant had put a new lock and chain on the gate and had fastened it. He and
his mother had been dealing with the plot as any occupying owners might have
been expected to deal with it. They had incorporated it into the garden of
[the property]. They had planted bulbs and daffodils in the grass. They had
maintained it as part of that garden and had trimmed the hedges."
Nourse
LJ explained the difference between prescription and limitation and said this
at page 644:
"The
essential difference between prescription and limitation is that in the former
case title can be acquired only be possession as of right. That is the
antithesis of what is required for limitation, which perhaps can be described
as possession as of wrong. It can readily be understood that with prescription
the intention of the true owner may be of decisive importance, it being
impossible to presume a grant by someone whose intention is shown to have been
against it. But with limitation it is the intention of the squatter which is
decisive. He must intend to possess the land to the exclusion of all the
world, including the true owner, while the intention of the latter is, with one
exception, entirely beside the point.
In
order that title to land may be acquired by limitation, (1) the true owner must
either (a) have been dispossessed, or (b) have discontinued his possession, of
the land; and (2) the squatter must have been in adverse possession of it for
the statutory period before action brought. Adopting the distinction between
dispossession and discontinuance which was suggested by Fry J in
Rains
v Buxton
14 Ch.D. 537, 539, I take the first case to be one where the squatter comes in
and drives out the true owner from possession and the second to be one where
the true owner goes out of possession and is followed in by the squatter. In
the light of that distinction, a very fine one, it is sometimes said that the
intention of the true owner may be material in this way. If he intends to use
the land for a particular purpose at some future date, a discontinuance of
possession can be prevented by the slightest acts of ownership on his part,
even by none at all. That no doubt is perfectly correct, but nothing follows
from it except that the case becomes one where the true owner must be
dispossessed before his title can be lost. He can only be dispossessed if the
squatter performs sufficient acts and has a sufficient intention to constitute
adverse possession. Those acts and that intention are no different from those
which are required in a case of discontinuance, there being no practical
distinction between what is necessary to exclude all the world in a case where
the true owner has retained possession and in one where he has discontinued it.
By
this route I have come to a belief that the intention of the true owner,
although it may have some influence in theory, is irrelevant in practice. To
that I would make one exception. If an intention on the part of the true owner
to use the land for a particular purpose at some future date is known to the
squatter, then his knowledge may affect the quality of his own intention,
reducing it below that which is required to constitute adverse possession. To
say that is only to emphasise that it is adverse possession on which everything
depends."
Returning
to the present case, I start with the fact that it was the Plaintiff's
predecessor in title which erected the fence in such a position as to exclude
access by the Council and its predecessors in title to the hedgerow and the
disputed strip. Since that was not an act of the Defendant or the Defendant's
predecessor in title, by itself it cannot be relied upon as an act of
dispossession. But, to my mind, it is strong evidence of discontinuance of
possession by the true owner. The Council did not remain in possession of the
disputed strip by virtue of the
continued
presence of the hedge.
Mr.
Lewison, who appeared before us for the Council, referred us to
Kynoch
Limited v Rowlands
[1912] 1 Ch. 527. In my judgment that was a different case. There the
Plaintiffs and the Defendant were adjoining owners of agricultural land
physically divided by a dry ditch or channel of an ancient watercourse. The
Plaintiffs built an enclosing wall on their own side of the ditch. By building
the all the Plaintiffs cut themselves off from access to the ditch.
In
an action between the parties it was determined that the true boundary between
the properties lay along the middle line of the ditch. The erection of the
wall accordingly left unenclosed a narrow strip of land belonging to the
Plaintiffs; the real boundary, though known to both parties, remaining
unmarked. The Plaintiffs afterwards brought an action to restrain the
Defendant from trespassing on the strip by tipping earth and rubbish upon it
and against the wall. The Defendant contended that by the erection of the wall
the Plaintiffs had abandoned the strip and that the Defendant had acquired
exclusive possession and retained it for more than the period required to
establish a possessory title under the Statute of Limitations then in force.
The only evidence of such possession by the Defendant was that cattle belonging
to its tenants had been allowed to graze such herbage as grew in the ditch and
on the strip between it and the wall. It was held that there had been no
abandonment or discontinuance of possession by the Plaintiffs and that they
were entitled to judgment.
Joyce
J at page 531 said:
"The
evidence, if it can be so called, with respect to the cows is of the most
meagre and vague description and, in my opinion, not worthy of serious
consideration."
That
was enough to dispose of any claim to adverse possession based upon the
occasional grazing of cows. However, the Judge went on:
"Besides,
if I own the fence with a ditch on the other side between my land and my
neighbour's field, my neighbour will not, by lapse of time, acquire the
ownership of the ditch merely because his sheep or cattle may have cropped such
herbage, if any, as grew upon the sides of the ditch or in the bottom of the
hedge. I do not lose my ditch simply because I do not maintain another fence
or place a line of barbed wire on the outer edge of it. In order to acquire
any property in the ditch as against me my neighbour must take actual
possession of it, as for instance, by cultivating the ground, building upon or
paving it, ... or something of that kind. ... He must, in my opinion, at least
do something for which if I knew of it I could reasonably maintain an action of
trespass or ejectment."
In
my judgment these observations were not related to any question of
discontinuance of possession but rather to the absence of any acts of adverse
possession by the Defendant.
On
appeal the Master of the Rolls said:
"Now
what are the facts? The facts are that this is an extremely narrow strip of
land on the outside of a little grass field, a very rough grass field. To call
it a ditch is perhaps to pay it too high a compliment. It is two feet by three
feet and the width varies from nothing to three feet in the widest place. This
being the state of things, [the Plaintiffs] did not do that which they were not
bound to do; they did not put a wire or any fence along the red line. They
left their boundary unmarked, perfectly well known to [the Defendant], because
he is cognizant of this plan. [The Plaintiffs] did not put up a boundary on the
red line. Well, it is said that the mere fact that cows, when grazing on this
pasture field, which admittedly belongs to [the Defendant], used to go into
this ditch when there was any grass to be found there (if ever there was, which
I greatly doubt) was an act of possession, and in fact evidence of possession
by [the Defendant] and his tenants. I do not think I can possibly improve upon
what was said by the learned judge on the law on that point. It would be
disastrous to hold that the mere occasional straying of cattle over a known
boundary by reason of there not being a fence or anything of that kind is, as
against the true owner, an act of such exclusive possession as will enable the
trespasser whose cattle have strayed over the boundary to acquire a statutory
title. In my opinion, this is a perfectly plain case."
Again
that seems to be directed to the question whether the Defendant had been in
adverse possession. Fletcher Moulton LJ said that he fully agreed. Then he
said:
"A
point has been raised as to discontinuance of possession as opposed to
dispossession. I do not feel called upon to examine into that question, but if
this so-called discontinuance of possession depends in any way on the intention
of the legal owners, there is not in this case the slightest justification for
saying that there is evidence of discontinuance or intention to discontinue on
the part of the plaintiffs."
And
a little later:
"...
even apart from the question of the action, which established beyond all
controversy that there was no intention on the part of the plaintiffs to
abandon the strip outside the wall, I should say that it would be improper to
infer from the mere fact of the building of the wall an intention on the part
of the owner to abandon everything lying outside right up to the wall itself."
Farwell
LJ said:
"I
agree. I only desire to add that it is necessary that there should be not only
absence of possession by the person who is alleged to have gone out of
possession, but also actual possession, or acts of ownership amounting to
actual possession, by somebody else",
He
described the appeal as a perfectly hopeless one.
It
is perfectly comprehensible that in the case of a field or agricultural land
the mere building of a boundary within one's own land and cutting off access to
land on the other side may not constitute a discontinuance of possession, but I
doubt very much whether that is a sensible inference to draw in the case of
suburban land where the exact boundary between adjoining gardens is of much
greater importance. Be that as it may, it seems to me clear and indeed was
conceded that if the Defendant or her predecessors in title had erected the
fence and no objection had been made to it by the Council that would have
constituted a dispossession and would have been strong evidence of adverse
possession. Since it was not erected by the Defendant or her predecessors in
title it could not constitute in itself an act of dispossession nor could it be
in itself an act of adverse possession. But in my judgment the fact that the
Council's predecessor in title erected the fence and thereby denied itself
access to the land lying beyond it was capable of constituting a discontinuance
of possession.
Kynoch
is, in my view, merely authority for the proposition that discontinuance of
possession by the true owner itself is neither here nor there unless it is
accompanied or followed by adverse possession by another party. So the
question is whether the acts of Mrs Ritter and Mr Dunn during their occupation
of the property before and for a short period after the wind storm in 1987
constituted acts of adverse possession. In my judgment, they manifestly did.
Indeed, as I understood Mr. Lewison, he was disposed to concede that in the
case of that part of the disputed strip which lies between the unmarked
boundary and the hedgerow there were sufficient acts of adverse possession, for
Mrs Ritter and the Defendant threw that area of land into their garden. The
particular acts relied on were not substantial. Mrs Ritter and Mr Dunn
maintained a compost heap upon part of it and kept it tidy in other respects
and weeded and trimmed the hedge and so on. But that was the only sensible use
of the land. It was rough land at the end of a garden. The fact is that the
Council did nothing at all. It did not trim the hedgerow and had indeed
disabled itself from doing so by putting up the fence. But for what I would
call the
Leigh
v Jack
heresy, I have no doubt that the Judge would have found that the Defendant's
acts and those of her predecessor in title did constitute sufficient acts of
adverse possession.
Mr.
Lewison relied strongly on the very first sentence of the Judge's conclusion at
page 20 when he says:
"I
find that [the acts above] are insufficient to amount to a sufficient degree of
exclusive occupation to constitute sole possession of the disputed strip."
But
this passage is immediately followed by the Judge's explanation. This was that
he regarded the continued presence of the hedgerow and the trees as
representing a continuance of possession by the Council of the land for the
only purpose for which the Council wanted to use the land. He treated the
Council as remaining in possession of land to which it had no access, for which
it had no use. As he found, the use made by "the Defendant or her predecessor
in title ... was not inconsistent with the use made of that land by the
council."
In
my judgment, the Judge was in error. The Council was not in possession of the
land and made no use of it. The Judge was purporting to apply the dictum of
Bramwell LJ in
Leigh
v Jack
which no longer represents good law. Moreover, he was misapplying that dictum
because the Council had no intentions as regards the future use of the land,
and if it did the Defendant was unaware of it. Finally, the dictum, even
according to its true application, does not go to the sufficiency of the acts
relied upon as constituting acts of adverse possession but only to the
squatter's
animus
possidendi
.
In my judgment, the acts on which the Defendant relied were sufficient, in the
absence of any use at all by the Council, to constitute adverse possession.
So
far as the Defendant's
animus
possidendi
is concerned, Mr. Lewison relied upon the fact that Mrs Ritter and after her
the Defendant or Mr. Collins' enclosure of the land was in order to keep their
dogs in rather than other persons out. But their motive is irrelevant. The
important thing is that they were intending to allow their dogs to make full
use of what they plainly regarded as their land, and which they used as their
land. They wanted to keep their dogs within the boundaries of their own land.
That was a perfectly understandable usage, but the enclosure which it made
neccessary was inconsistent with any continuance of possession of the Council.
The Defendant and his predecessors in title had to keep the Council out if they
were to keep their dogs in.
In
my judgment, on the primary facts founded by the Judge he ought to have reached
the opposite conclusion and found in favour of the Defendant.
I
would allow the appeal.
LORD
JUSTICE THORPE: I agree. The vital witness for the Defendant was Mr. Dunn.
Of his evidence the Judge said:
"I
accept the entirety of Mr. Dunn's evidence - I have no reason to doubt it -
subject to one matter with which I deal now. Mr Dunn has no interest in
distorting his evidence in any way. In particular, I accept evidence relating
to the compost heap, the cutting of the hedge and weeding at the very end of
the garden, the compost heap and the growing of strawberries.
The
one matter to which I have just referred is to be found in the evidence of Mrs
Sadleir."
That
one matter has no bearing on the usage that had been established by Mr Dunn.
These activities, as he described them and as accepted by the Judge, were
manifestly sufficient to sustain an action of trespass or ejectment, to apply
the test stated by Joyce J in the passage cited by my Lord.
LORD
JUSTICE BUTLER-SLOSS: I also agree with both judgments and that this appeal
should be allowed.
Order: Appeal
allowed; order of the Judge set aside; the claim of the Respondent Council
dismissed; declarations that (a) the rear boundary of the Defendant's
(appellant's) property known as and situate at 61 Maswell Park Crescent,
Hounslow, Middlesex ("No.61") runs along the chestnut paling fence to the rear
of No. 61 which fence is described on the plan annexed to the Defence and
Counterclaim herein; (b) that the Defendant (appellant) was entitled to enter
on and remain upon or to erect the Summer House (as defined in paragraph 4 of
the Defence herein) on the strip of land between the chestnut paling fence and
a line 113 feet from the frontage of No. 61 ("the disputed strip"); (c) the
Plaintiff (Respondent Council) holds the disputed strip on trust for the
Defendant (appellant) absolutely, pursuant to s 17 Limitation Act 1980 and s 75
Land Registration Act 1925; order that the register of title at Her Mayesty's
Land Registry be rectified to give effect to the order of this court;
appellant's costs here and below granted on scale 2.
© 1997 Crown Copyright
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1277.html