BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough Of Hounslow v Minchinton [1997] EWCA Civ 1277 (19th March, 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1277.html
Cite as: [1997] EWCA Civ 1277

[New search] [Printable RTF version] [Help]


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


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1277.html