(1979) 38 P. + C.R. 452

452 PROPERTY AND COMPENSATION REpORTS
Powell v. McFarlane and Another

CHANCERY DIVISION
SLADE J.
January 17-21, 24-26, February 28, March 14, 25 and 28, 1977
Limitation of action-Recovery of land-Adver8e POS868aion--Owner abroad-
Unable to develop for houaing-Land in area of landscape value-Intruder
a-year-old youth-Between 1956 and 1973 cutting and collecting hay-ptaUng
family cow to grazing-In 1956 intruder 8tock-proofedfencB and cleared part of
disputed land-FencBfallen into disrepair and land overgrown-Whether owner
diBpo88688ed-Whethe,. .. adver8e p08868Bion."
The disputed land, an enclosed field used as agricultural land, was situate
close to an extensive area of landscape value and was unlikely to be developed
for any purposes other than those directly related to agriculture or forestry. In
its neighbourhood, but not adjoining it, was a small farm which now be-
longed to the plaintiff but on which the plaintiff's grandfather had farmed as a
farming contractor since before 1942.
In 1951 the first defendant bought the disputed land and was registered at
the Land Registry as its proprietor on March 11, 1952. As part of the contract
of purchase the vendor planted a large number of Christmas trees. The defen-
dant hoped to sell those trees when they were large enough to be sold. He also
bought a neighbouring plot of land where he could build a house, in which to
live with his wife and children. But by early 1955 the defendant's plans
became impossible of achievement because he, as a civil servant, was posted
abroad for a year but had to stay there for 11 years. By 1956 the disputed
land was vacant as the tenant in occupation had left. At that time, the
plaintiff, who was 14 years of age, conceived the idea of using the land for the
purpose of grazing the family cow which belonged to his grandfather with
whom the plaintiff had lived since his childhood. He persuaded his grand-
mother to write to the first defendant asking for permission for such a use.
No reply was received by the plaintiff's grandmother. By the summer of 1956
the plaintiff decided to enter on the disputed land.
With the help of friends, the plaintiff cut hay and took it to his grand-
father's land and used it to feed the family cow. He made the fence stock-
proof. Thereafter, he left the cow grazing on the land. In 1968 the cow
died. Between 1956 and 1973 the plaintiff went shooting on the land from
time to time and arranged a clay pigeon shoot on a few occasions. One of his
friends tethered his goat there. The plaintiff started business as a contractor
to fell and treat trees and he put up his business sign board on the land in
such a way that it could be Been from the road.
Over the years the first defendant's wife visited the disputed land but found
nothing unusual, except that it was overgrown. In August 1972 both the
defendant and his wife visited the land and found that there was no trace of
the Christmas trees and the fence was in a poor oondition and the land was
overgrown. The defendant made an unsuccessful application for planning
permission to build three bungalows there. On May 23, 1973, he made a
grazing agreement with the second defendant.
On an action by the plaintiff seeking, inte,. alia, a declaration that he had
been in adverse possession of the disputed land within the Limitation Aot
1939 for upwards of 12 years:
POWELL v. McFARLANE AND ANOTHER 453
Held, (1) that apart from authority the word" possession" in the Limita-
tion Act 1939 would bear the traditional sense of the degree of occupation or
physical control, coupled with the requisite intention commonly referred to as
animus posBiclendi, that would entitle a person to maintain an action of
trespass in relation to relevant land; and that the word " dispossession" in
the Act denoted simply the taking of possession in such sense from another
without the other's licence or consent and likewise a person who had "dis-
possessed" another in that sense would be in "adverse possession" for the
purpose of the Act.
(2) That a few basic principles relating to the concept of possession under
English law were, (a) in the absence of evidence to the contrary, the owner of
land with paper title was deemed to be in possession, and the law would thus,
without reluctance, ascribe possession either to him or to persons who could
establish a title through him; (b) a claimant to possession with no paper title,
must show both factual possession and the requisite intention to possess;
(c) factual possession signified an appropriate degree of physical control and
it must be a single and conclusive possession and thus an owner and an in-
truder could not both be in possession of the land at the same time and,
accordingly, the acts constituting a sufficient degree of exclusive physical
control must depend on the circumstances, in particular the nature of the
land and the manner in which land of that nature was commonly used or
enjoyed and, broadly, it must be shown that the intruder had been dealing
with the land as an occupying owner might have been expected to deal with
it and that no one else had done so; and (d) the animus possidendi was also
necessary to constitute possession and involved the intention, in one's own
name and on one's own behalf, to exclude the world at large, including the
owner with the paper title, so far as was reasonably practicable and so far as
the processes of the law would allow; and that the courts would require clear
and affirmative evidence that the intruder, claiming that he had acquired
possession, not only had the requisite animus possidendi but made such inten-
tion clear to the world.
(3) That it was consistent with principle as well as authority that a person
who originally entered another's land as a trespasser but later sought to show
that he had dispossessed the owner, should be required to adduce compelling
evidence that he had the requisite animus possidendi; and, accordingly, on the
facts here it followed that the plaintiff's intentions in 1956 and 1957 must be
interpreted primarily from his own acts and the acts done by him were, in
effect, to take various profits from the land and those activities, done as they
were by a 14-year-old boy who himself owned no land in the neighbourhood,
were equivocal in the sense that they were not necessarily referrable to aninten-
tion on his part to dispossess the defendant and to occupy the land wholly as
his own property.
Accordingly, the plaintiff's claim under the Limitation Act 1939 failed.
Per curiam: In WaUiB's Cayton Bay Holiday Camp Ltd. v. SheU-Mez and
B.P. Ltd. [1975] Q.B. 94; Treloar v. Nute [1976] 1 W.L.R. 1295 and Gray v.
Wykeham-Martin (Unreported), Court of Appeal (Civil Division) Transcript
No. lOA of 1977, the Court of Appeal decided that in any case where the acts
of an intruder, however continuous and far-reaching, do not substantially
interfere with any present or future plans which the owners may have for the
use ofunbuilt land, the court will not treat the intruder as having dispossessed
the owner for the purpose of the Limitation Act 1939 because it will treat him
as having been there under some implied or hypothetical licence. Those deci-
sions are binding on the court offust instance. Accordingly, even if the plaintiff
was held to have succeeded in obtaining possession of the land in 1956 or 1957
the court would be constrained to hold that his possession was not" adverse ..
within the meaning of the 1939 Act because the court would be obliged to hold
that it was enjoyed under a. licence imputed by law.
454 PROPERTY AND COMPENSATION REPORTS
ACTION.
The facts are stated in the judgment.
M. A. F. Lyndon-Stanford for the plaintiff, Thomas Edward Powell.
Leonard Hoffmann for the first defendant, Colin Forsythe McFarlane.
Robert Wakefield for the second defendant, Peter James Ransom.
Cur. adv. vult.
March 25. Slade J. read the following judgment. The primary issue
in this action is whether or not the plaintiff, Mr. Thomas Edward
Powell, had acquired a statutory title by adverse possession to a
certain piece of land situated just outside Reigate, Surrey. The case
is an interesting and unusual one, if only because it is claimed that
this adverse possession began when he was a boy of 14. It raises some
difficult points of law, as to which I have had the benefit of full and
most meticulous argument from all counsel, for which I am grateful. In
deference to this argument, I shall myself try to deal fully with the law,
as well as the facts, though this will necessitate a very long judgment.
The first defendant, Mr. Colin Forsythe McFarlane, is the registered
proprietor of the disputed land at H.M. Land Registry. The second
defendant, Mr. Peter James Ransom, claims to be entitled to possession
of it by virtue of a grazing agreement dated May 29, 1978, entered into
between him and Mr. McFarlane.
The land consists of an enclosed field of some 8 144 acres. It
bears the ordnance number 129c and is and has at all material times
been agricultural land. It abuts a road called Gatton Park Road,
which runs roughly in a north-easterly direction away from Reigate.
It lies on the northern side of that road. It is approximately triangular
in shape, its southern boundary forming the base of the triangle and
the point lying at the north of it. To the north-west of it, but not
immediately adjoining, there are extensive areas of National Trust
land known as Gatton Park. It is designated by the local planning
authority as an area of great landscape value and lies within the
Metropolitan Green Belt. At all material times it has accordingly been
unlikely that development of the disputed land would be permitted
for any purposes other than those directly related to agriculture or
forestry.
On the eastern boundary of the land, there is a lane, which I will
call "the lane" and which formerly led to a house called Nutwood
Lodge. This house, which is shown on the ordnance map annexed to
the statement of claim and was situated at a short distance to the
north-west of the tip of the disputed land, was demolished in about 1956.
Immediately to the west of the land on which this house was situated,
lies an area of land of about one and a quarter acres, known as Nut-
wood Farm. This now belongs to the plaintiff. The plan annexed to
the statement of claim shows a rectangular house and certain out-
buildings situated on this land. This house has in fact been demolished
and a bungalow erected in its place; the outbuildings still exist.
Between Nutwood Farm and the disputed land and adjacent to both
lies another small triangular piece of land, which was purchased by a
Mr. Weston in 1957. I shall call this" Mr. Weston's land."
The plaintiff was born on April 12, 1942. His mother died when he
was four months old; his father survived her, but played no part in
the plaintiff's early life. He was brought up by his grandparents, a
Mr. and Mrs. Bishop, who were then in their sixties. Mr. Bishop had
carried on a small business as a farm contractor and had been a
tenant of various fields in the immediate area, including the disputed
land. By 1947, however, he was in bad health and had surrendered his
tenancy of the disputed land and the other land except Nutwood
Farm house and about an acre next to it. At this time he and his wife
were living at this house. They had also living with them the plaintiff,
his half brother Mr. Frederick Jeffries, who was about two and a half
years older than he was, having been born on November 12, 1939,
and a Miss Bishop who has played no part in these proceedings. Mr.
Bishop purchased the freehold of the farmhouse and outbuildings in
1956. On his death in 1964 it devolved on his wife, who died in 1975.
Before her death, however, the plaintiff had purchased the freehold
from her. He himself married in 1966 but went on living at the farm-
house with his wife and with his grandmother until her death.
Life was obviously quite hard for the plaintiff at Nutwood Farm.
His grandparents were strict and money was short. I heard and saw
him giving evidence for several hours. From this and from the evi-
dence of a number of persons who have known him since his school
days, I am satisfied that he is and has at all material times been an
astute and determined person of powerful independence of spirit,
ebullient self-confidence, perhaps falling not far short of arrogance,
and unusually dominating personality. I mention these qualities by
way neither of praise nor of criticism, but because an appreciation of
them is essential to a fair understanding of the somewhat unusual
history of this case.
From 1947 onwards Mr. Bishop, who had sold the rest of his herd,
retained a cow called Kashla. It seems to have been a remarkable
cow; it lived on until 1968 and provided the family with milk until
about 1966. The plaintiff, from about the age of eight onwards, did
everything for it. He put it out to grass in the morning; he milked it
during the day and bedded it at night; it was known by his family
and friends as" Ted's cow." He began driving tractors at about the
age of eight. According to his evidence, he never got any pocket
money and, even as a schoolboy, had to buy his own clothes. Up to the
age of 14, he spent almost all his spare time looking after the cow,
working on the land at Nutwood Farm and doing many jobs for other
persons on neighbouring land. Before the relevant events of 1956, he
had for example assisted in the demolition of Nutwood Lodge, in
driving herds of cattle, in the concreting and construction of pig-
sties for a Mr. Hammond who then owned some neighbouring land,
in the mucking out of pigs and the dragging out of timber for the
National Trust. By 1956 he clearly had a wider experience in the
practical aspects of farming and farm management than most boys of
the age of 14.
By a conveyance on sale of February 20, 1951, a Mr. Birt acquired
the freehold of the disputed land from a Mr. Edney, the previous
owner. Mr. Birt kept a couple of pigs and a few chickens on the land.
He applied for planning permission to keep a caravan on it but this
was refused. Following this refusal, Mr. Birt decided to sell the dis-
puted land and advertised it for sale. Mr. McFarlane or his wife
answered the advertisement and eventually Mr. McFarlane agreed
with Mr. Birt to purchase it for 470. It was a term of the agreement,
though this was not embodied in the formal contract, which was dated
January 81, 1952, that the vendor should arrange for the planting of
4,000 Christmas trees on the land. The purchase was duly completed
and, by the time that Mr. McFarlane took possession, a substantial
number of Christmas trees had in fact been planted. There is no clear
evidence as to how many had been planted, but Mrs. McFarlane in
evidence gave a rough estimate of 2,500 and said they had been
planted, much too closely, in an area which she indicated, towards
the south-west comer of the land. Mr. McFarlane was registered with
an absolute title to the land at H.M. Land Registry on March 11,
1952. He hoped that, when the Christmas trees reached a sufficient
height, he might be able to sell them at a profit.
More or less at the same time as purchasing the disputed land, Mr.
McFarlane purchased another piece of land situated on the other side
of Gatton Park Road, which consisted of a building plot. He was at
the time a civil servant living in a tenanted house in Barnes with his
wife, mother-in-law and two small children. Unlike the disputed land,
the plot on the other side of Gatton Park Road is not included in the
Green Belt. He accordingly contemplated that he might be able to
build on it a house for himself and his family. Difficulties, however,
arose over this project and it was abandoned in late 1954 or early 1955.
By that time it had been proposed by Mr. McFarlane's ministry that
he should take up a post in Bonn in West Germany. In these changed
circumstances he sold the building plot in the summer of 1955. He
made inquiries with local estate agents with regard to the possibility
of letting or selling the disputed land, but nothing came of them. He
left for Bonn in October 1955 and last saw the land before he departed
in about August of that year. He was originally sent to Bonn for a
year's assignment; but in the event he stayed there for 11 years and
did not see the land again until 1967. His wife likewise did not see it
again until 1967, save for one visit in 1960 to which I will refer
hereafter.
A Mrs. Ball had a tenancy of the disputed land during part of the
early part of Mr. McFarlane's ownership. On one occasion she arranged
for it to be ploughed and sown with some cereal crop. The crop, how-
ever, was a failure and it has, I think, been common ground between
POWELL V. McFARLANE AND ANOTHER 457
the parties to these proceedings that the land is rather poor land, not
really suitable for ploughing and cultivation with a cereal crop. By
1955 or early 1956, Mrs. Ball had vacated it, so that it was apparently
entirely unoccupied land, and apart from the Christmas trees, unused.
In 1955, or early 1956, the plaintiff, who was then an enterprising boy
of about 14, conceived the idea of using the disputed land for the
purpose of grazing the family cow. His evidence given in chief, which I
accept on this point, is that, because he thought he and his family could
do with more land for grazing cattle; he obtained from Mr. Hammond
the name and address of Mr. McFarlane, as the owner of the land, and
got his grandmother, Mrs. Bishop, to write a letter to Mr. McFarlane
to see whether he would agree to such use. There is no evidence that
he ever received this letter or that Mrs. Bishop ever received any reply
to it. The plaintiff said under cross-examination that if Mr. McFarlane
had replied, he would have asked for permission to use the land, but
that in the absence of such a reply he made a decision on his own to
" possess" it. He had said in chief that so far as he knew in 1956, the
owner might be dead, but he can hardly have inferred that Mr.
McFarlane had died merely from his failure to answer one letter.
Whatever his further intentions may have been-I shall revert to
the question of such intentions hereafter-the plaintiff then decided
to enter and cut the hay on the disputed land. This he did himself in
the summer of 1956, using a tractor and a mowing machine belonging
to his grandfather. His half-brother, Mr. Jeffries, and two more or less
contemporary school friends, Mr. Marsh and Mr. Skinner, all of whom
have given evidence in the proceedings, then helped him over the
period of a week or two to lay and turn the hay and in due course to
collect and load it on a trailer. It was then taken back to the Bishops'
farm, where it was put in a shed and used to feed the cow Kashla.
As might be expected, it was suggested to the plaintiff in cross-
examination, and submitted in argument on behalf of the defendants,
that his haycutting and all the various other activities which he did
on the disputed land in 1956 and later years must have been done on
behalf of Mr. Bishop until his death in 1964 and subsequently on
behalf of Mrs. Bishop, at least until she sold Nutwood Farm to the
plaintiff. In the context of the early years of these activities, force is
added to this suggestion not only by the consideration that all the
occupants of the farmhouse benefited from them, in that they pro-
duced fodder for the family cow which in turn provided the family
with milk, but also because in 1956 the plaintiff was only 14 and was
living with his grandparents, who in the unanimous opinion of all the
witnesses who knew them were very strict. Mr. Jeffries, however, who
continued living at Nutwood Farm until he married in 1965 and struck
me as an eminently honest witness, supported the plaintiff himself in
stating in effect that, after it had proved impossible to obtain Mr.
McFarlane's permission for the use of the land, Mr. and Mrs. Bishop
were quite opposed to the plaintiff using it without such permission,
but despite attempts to do so, particularly on the part of Mrs. Bishop,
could not stop him from doing so in the face of his defiance. By 1956,
Mr. Bishop, according to the evidence, was in poor health and able to
move very little. The plaintiff, on the other hand, as Mr. Jeffries
confirmed, was obviously a very early developer. Even the strictest of
elderly grandparents may find it difficult to restrain a large and defiant
teen-age boy with a strong will of his own and fixed ideas of what he
wants to do. Having heard all the witnesses who knew both the plain-
tiff and his grandparents, I am satisfied that the relevant activities
were done by him neither at the instigation nor with the approval of
Mr. and Mrs. Bishop whom one of his witnesses, Mr. King, described
under cross-examination as" very straight, really honest." In the end
they put up with these activities, because they found it too difficult and
perhaps too exhausting to try and stop them.
Also in 1956, the plaintiff decided that he wished to make the dis-
puted land stockproof in order that he could put the cow Kashla on it.
There has been some divergence between the evidence given on behalf
of the plaintiff and that given on behalf of Mr. McFarlane as to the
nature and state of the boundaries in 1956 and as to the work, if any,
which the plaintiff did to them. I find the following facts in the con-
text of fencing. On the eastern boundary, the fencing consisted basic-
ally of an iron-rail fence of three or four rails, which had originally
stretched all the way along the boundary. Parts of it, however, had
deteriorated with rust and age and some of the iron rods had been
removed or bent out of line. Furthermore, a section of the fence had
been almost entirely destroyed in 1951 when various persons had been
collecting cut timber on the other side of the drive and one of them,
namely Mr. Marshall, who was working as a mate on the job and gave
evidence in these proceedings, in accordance with instructions given
to him by his employers, pulled out part of the fence with a tractor
and rope, in order to enable vehicles to turn and get back to the road.
This section of the fence had never been properly restored before 1956.
There was no proper hedge running along the boundary, but suckers
and saplings had grown up in between the fencing. Along this boun-
dary, somewhere towards the middle, there was also an old iron
entrance gate, which had, however, been so badly damaged that it
was virtually folded in two. In 1956 the plaintiff, in those places
where he could straighten or repair the existing iron fence sufficiently
to make it stockproof, did so. In any gap where it was impossible
adequately to repair or re-erect the iron fencing, he erected posts cut
from trees or saplings situated on the land and joined them with two
or more barbed-wire strands. This work was done with the assistance
of Mr. Jeffries and Mr. Skinner. The plaintiff removed the iron gate,
but to create a gateway for easy access fitted two lengths of chain
running from the one gate post to the other.
Along the southern boundary of the disputed land adjoining Gatton
Park Road there was no iron fencing; there were the remains of a
wooden posted fence with slats, but this was in a bad state of repair.
There were, however, along this boundary line a number of small trees
and some thick scrub and undergrowth which, more than the remains
of the wooden fence, constituted the existing protection of the prop-
erty. In 1956 the plaintiff, again with the assistance of friends such as
Mr. Jeffries and Mr. Skinner, erected posts fitted with barbed wire
between the various small trees on the boundary line, to the extent
necessary to make it stockproof. For this purpose however, less work
was needed than was required to the eastern boundary. In 1956
there was fencing of sorts along the whole of the western boundary;
along the southern half it consisted mainly of wooden posts and barbed
wire, which cannot have been in too bad a state of repair, because it
had served to keep in horses, which had been kept on the adjacent
land to the west during the years immediately preceding 1956. Along
the northern half of the western boundary was a very old iron fence.
In 1956 the plaintiff, again with the assistance of friends, repaired the
western fence line to the extent necessary to make it stockproof. So
far as necessary, barbed wire was fitted to various saplings which
were growing up on the southern half. Posts were cut from trees
situated on the disputed land and staked against the rail fencing on
the other half to keep it in an upright position.
All the work on the three boundaries of the land which I have
described was done by the plaintiff and his friends in the evenings or
at weekends or holidays. Having heard Mr. Jeffries and Mr. Skinner
give evidence, I am satisfied that it was done under his direction and
that he alone was fully in charge of all the operations.
The same comment applies to other work which the plaintiff with
the assistance of friends did on the disputed land in 1956. He wished
to increase the mowing area but found that in various parts, particu-
larly near the boundaries, brambles and other growth had encroached
thickly. He did clearance work in relation to these brambles and
growth and cut a number of trees which were obstructing these areas
which he wished to mow. The trees so cut included the remaining
Christmas trees, but according to the plaintiff's evidence, by then,
only about 50 of them remained on the land. There is no evidence
before me as to what became of the many other Christmas trees that
had originally been planted. It would appear, however, from the
plaintiff's evidence that by the time he began his activities on the
land, Mr. McFarlane's Christmas tree project had for practical pur-
poses more or less come to an end, by reason of the prior death,
destruction or removal of almost all the trees.
Having made the disputed land reasonably stockproof, the plaintiff
put the cow Kashla to graze on it. On his suggestion and with his
consent, Mr. Jeffries also tethered a goat there. The plaintiff obtained
a water supply for the land in 1956 by connecting a hose-pipe to a
stand pipe situated on Mr. Weston's land. He had access to a gun and
used from time to time to shoot pigeons and rabbits in the field from
1956 onwards.
In 1957 the plaintiff continued to take the cow Kashla to pasture
011 the disputed land. He went on doing so until its death in 1968. It
used to pasture more or less equally on the disputed land and on a
field on the other side of the drive, to the east. At the present time
the plaintiff, in other proceedings, is claiming a title to part of the
land on the other side of the drive by adverse possession. In 1957 he
again took the hay crop from the disputed land. He continued shoot-
ing there and checked and, so far as necessary repaired, the fences
along the boundaries to keep the land stockproof; since children lived
on a council estate near the land on the other side of Gatton Park
Road, this was a fairly frequent occurrence. After the land which I
have defined as" Mr. Weston's land" was sold to Mr. Weston in 1957,
the plaintiff obtained a substituted water supply for the disputed land
by connecting a hope-pipe to a stand-pipe situated on the opposite
side of the drive. This same year he continued his operations of clear-
ing brambles and other unwanted growth, and for this purpose, on
one occasion in 1957, he borrowed a "Jungle Buster," which I
understand to be a machine with rotating chains suitable for flaying
and obliterating shrubs, small trees and brambles. It was towed by a
tractor and both machines belonged to the father of a contemporary
school friend of the plaintiff, Mr. King, who helped in the operation
under the plaintiff's direction and gave evidence in these proceedings.
The object of the operation, which took about two hours, was to
increase the area of hay making. After the completion of the main
clearance operations, this had become an area of about two and a half
acres.
The plaintiff again took the hay crop from the disputed land in 1957
and that same year he ceased using the gateway which he had erected
on the eastern boundary for anything other than pedestrian access;
in its place he created a rough and ready vehicular access about 85
yards to the south, consisting of post and barbed wire, which could be
temporarily taken down, so far as necessary, to enable vehicles to
enter and then be replaced.
The plaintiff, often with the help of Mr. Jeffries and Mr. King, took
the hay crop from the disputed land in all subsequent years up to and
including 1971. He cut the hay in 1972, but let it lie because it was
spoilt by the weather. He did not take it in 1973 because the crop
was ruined by a horse or horses in circumstances which I will mention
hereafter. The cow Kashla had two heifers, one or both of which
joined her in pasturing on the disputed land and the land on the other
side of the drive between 1957 and 1960 when the two heifers were
disposed of. Over the years 1958 to 1978 the plaintiff continued to do
some work of repair to the fences and some clearance work, but, I
think, as the years went by, far less than he had done in 1956 and
1957, with the result that by the 1970s the disputed land looked untidy
and the fences were again in a poor state of repair. The need to keep
the disputed land stockproof had gone when the last cow Kashla
died in 1968 and was not replaced. By that time Mr. Jeffries' goat,
which had been tethered on the land for many years from 1956 on-
wards, had also died.
The plaintiff was living continuously at Nutwood Farm from the
time when he began activities on the disputed land till the issue of
the present proceedings. He left school in 1957 and then had two
successive full-time jobs locally, one of which lasted for about three
years and the second about a year. He carried on the activities on the
disputed land which I have described over this period at week-ends,
early mornings, and summer evenings and holidays. He then worked
for about six months for a tree-Iopper. His experience gained in the
course of this job and in other places prompted him in 1962 to set up
his own business as what he described as a " tree surgeon" -that is
to say someone who deals with the care and maintenance of trees,
including tree felling. Somehow or other, he got together the essential
equipment for this work consisting of a van, rope, saw, etc. and erected
an advertising display board showing the name of "E. Powell &
Co., Tree Surgeons," in the south east corner of the land; the board
was a single board facing the road and was visible from it. In 1968,
the plaintiff replaced this board with a larger one. This was a double
sided board of a "V" shape erected on hoardings, each side of it
measuring roughly five feet by four feet, advertising the business of
" E. Powell & Co." as " Tree Surgeons and contractors" and giving
the plaintiff's address at Nutwood Farm, with a telephone number. It
was again visible from the road. It remained on the south east corner
of the land until December 1972, when a person employed by Mr.
McFarlane, removed it and took it to the plaintiff's house. One half
of this double fronted board was available for inspection in court.
A good deal of evidence was given in relation to this sign and it
provided some puzzling features particularly because, while the
plaintiff was adamant that the sign, removed in 1972, had been a
double fronted sign of the nature which I have described, and which
had been erected in 1963, Mr. and Mrs. McFarlane were equally
adamant that it had been a mere single fronted one. Without thinking
it necessary to particularise the evidence, however, because this is
not an important matter, I have come to the conclusion that Mr. and
Mrs. McFarlane's recollection on this point must be mistaken. The
plaintiff's evidence on it was supported not only by evidence from Mr.
Jeffries, Mr. King and Mr. Marshall, but from one of Mr. McFarlane's
own witnesses, Mr. Donegan; Mr. Barber gave no evidence.
From 1962 on wards the plaintiff (whose evidence on this point is
supported by that of Mr. King, Mr. Marshall and Mr. Skinner, among
others) used from time to time to park lorries and other vehicles on
the disputed land in connection with his tree surgeons business;
though they were frequently replaced, he always had a crane lorry
and another lorry in use in this business. From time to time he also
parked cut tree trunks on the land, before they were taken to the
timber mills; he would load and unload them with the assistance of a
crane lorry. For the purpose of allowing improved access for vehicles
and timber, he improved the access way which he had created on the
drive. He continued parking vehicles and timber on the land until
about 1970, when he made other arrangements, partly because the
disputed land is sloping ground and therefore not entirely convenient
for the stacking of timber.
Over all the years from 1956 to 1978 the plaintiff shot from time to
time on the disputed land and organised a clay pigeon shoot with a
number of friends on it in the summer of 1978. In 1972 he again
employed a "Jungle Buster" on the disputed land and with its
assistance renewed the fence along Gatton Park Road with posts and
barbed wire. In that year he also started completely refencing the
eastern boundary with a rustic type fencing of wooden posts with a
rail, working from north to south, but did not get very far because of
the intervention of Mr. McFarlane.
In about August 1972 Mr. and Mrs. McFarlane paid a visit to the
land and noticed the new fence along Gatton Park Road and part of
the drive. They saw the plaintiff's address on his advertising display
board and visited him at his house in order to try and dis(!over who
had done the fencing. There is a conflict of evidence as to precisely
what was said at the ensuing meeting. However, I think that the
plaintiff made it clear that he was seeking to establish a possessory
title to the land, while Mr. McFarlane made it clear that he regarded
himself as still the true owner of the land and said that he would have
to consult his solicitors. The plaintiff duly received a letter written
by solicitors instructed on behalf of Mr. McFarlane dated August 14,
1972, asserting Mr. McFarlane's title to the land but offering the
plaintiff a grazing agreement, an offer which he never accepted.
On October 16, 1972, Mr. McFarlane made an application for
planning permission for the erection of three bungalows on the dis-
puted land, but this application was refused on January 26,1978. On
May 29, 1978, Mr. McFarlane entered into a written agreement with
the second defendant, Mr. Ransom, under which Mr. Ransom was to
be entitled, during the period of three years beginning on June 1,
1973, and ending on May 81, 1976, and thereafter from half year to
half year, to graze with cattle, sheep or horses the disputed land.
Certain rights were conferred by the agreement on either party to
terminate what was called " the tenancy"; but it is accepted for the
purpose of these proceedings by both Mr. McFarlane and Mr. Ransom
that the grazing agreement is still in subsistence and, as between the
two of them, entitles Mr. Ransom to the possession of the disputed
land.
Also at about the end of May 1978 Mr. Ransom let a horse or horses
loose on the disputed land to graze, thereby ruining the hay crop,
which accordingly was not cut by the plaintiff that year. Mr. Ransom
did not give evidence before me, but I presume that he put the horse
or horses on to the disputed land in purported exercise of his rights
under the grazing agreement.
The plaintiff " rotorvated " the majority of the disputed land in
October 1973. The writ in the action was issued on November 1, 1978.
Since then, I understand, by means of an uneasy modus vivendi there
has been a measure of use of the land by all three parties, but none of
them have contended that events which have occurred since then have
any relevance for the purpose of my present decision.
The findings which I have made as to the activities of the plaintiff
on the disputed land are primarily based on his own evidence and
that of witnesses called on his behalf, which, to the extent indicated, I
have accepted in this context. It is, however, right that I should refer
to certain important features of the defendants' evidence in this
context. Neither Mr. McFarlane nor his wife visited the property
between October 1955, when they went to Germany, and 1960. They
had no knowledge whatever as to what was happening to it during
this period. In July 1960, however, Mrs. McFarlane visited the land
with a view to seeing the Christmas trees and making appropriate
arrangements about them, because she and her husband thought that
by that time they might be ready for sale. She entered the land over
the iron fence by the lane and discovered that the Christmas trees
had completely disappeared. She did nothing about this, because she
thought that nothing could usefully be done. Her evidence was that,
though she walked at least part of the way up the lane and across the
land, it was all in a very overgrown state and there were no signs that
anybody had been doing anything to the boundaries by way of repair.
Nor did she notice the creation of any new access way along the drive
nor any other activities on the land. It did not look to her eyes as if
the grass had beeen cut.
During the succeeding years Mr. McFarlane considered various
possible uses for the land, such as the planting of blackcurrants or the
breeding of pigs; but his ideas never ripened into a firm intention as
to the mode of its future use. In 1966, when his return from Germany
to England was fairly imminent, he explored the possibility of build-
ing a bungalow on the land. For this purpose he made an application
to the Reigate Corporation for planning permission through W. H.
Colt, Son & Co. Ltd. in December of that year; but this application was
refused in February 1967, which for the time being put an end to that
particular project. Save for the Christmas tree project, from 1955 up
to the start of these proceedings Mr. McFarlane, I think, has had no
immediate use for the land otherwise than as an investment. He made
it clear in his evidence that he has always been a busy man and that
his wife has always been much more interested in the land than he.
He has always had it in mind, however, that he might develop the
land by building, if at any time in the future the attitude of the local
planning authority might alter sufficiently to enable this to be done.
He and his family left Bonn in January 1967 and returned to
England. They went to live in a house at Purley, where they still
reside. During the course of the next few weeks, that is in February or
March 1967, Mr. and Mrs. McFarlane went to visit the disputed land.
Their evidence is that from then on, to the start of these proceedings,
they used to pay it several visits, say three or four, at least every
year. At first sight it is difficult to reconcile their evidence with that
of the plaintiff because their evidence is that, during the whole of the
course of their visits from 1967 onwards up to the time in 1972 when
they noticed new fencing and consequently visited the plaintiff, they
never saw any activities on the disputed land of the nature relied on
by the plaintiff. In particular they never saw any signs of hay making,
bramble cutting, repair or erection of fencing, cattle, timber or lorries
on the land. They did not notice any new access way that had been
created by the plaintiff on the drive. They saw an advertisement
display board in the south-east corner bearing his name, but thought
it was doing no harm. The whole property and its boundaries accord-
ing to their evidence looked in a rather derelict state and it never
occurred to them that anyone was using it.
The evidence of Mr. and Mrs. McFarlane in this context is to some
extent corroborated by that of a Mr. Donegan, who first saw the dis-
puted land in 1969, when he visited Mr. Weston's land for the purpose
of assisting him over a possible planning application. He revisited Mr.
Weston's land three times in 1970 and two or three times in 1971.
According to his evidence, though on these visits he had to pass up
the drive and noticed the disputed land on the western side, he never
saw any activity on it of any kind and thought the fences on the west
boundary at least in a deplorable condition, being greatly overgrown.
Mr. Arthur Weston, whose late father had purchased Mr. Weston's
land in 1956 and who had made occasional visits to this land from 1956
onwards but had never lived there, gave evidence to much the same
effect; but he admitted that he did not take much notice of the dis-
puted land or the fences on it except for the common boundary fence.
Finally a Mr. Horlock, who had been at school with the plaintiff,
gave evidence on subpoena at the instance of Mr. Ransom, which was
not at first sight wholly consistent with the plaintiff's evidence. After
leaving school in 1955, he took a job as a farm labourer for a Mr.
Wyman, who worked various fields in the area. He was employed by
Mr. Wyman for about a year. During the course of his employment, he
went up to a hill known as Green Clump Hill about once a week. This
hill is close to the disputed land, which is visible from it. He (!ontinued
working in the area until about January 1958 when he went into the
Army for nearly six years. His evidence was that he could not remem-
ber seeing the plaintiff on the disputed land or doing any work to its
boundaries at any time between 1955 and 1958. After coming out of
the Army in August 1968, according to his evidence, he saw the dis-
puted land frequently. In particular he saw it almost every day be-
tween 1966 and 1971, because by then he had become a roof tiler
and had made an arrangement that he should store tiles in the yard
of Mr. Hammond, who then owned land on the opposite side of the
drive. During the whole of this period of 1968 to 1972, according to
his evidence, he never saw the plaintiff on the disputed land or any
work being done to fence it; indeed he never saw a cow on the land
either during this period or the earlier period before he went into the
Army. However, while Mr. Horlock struck me as an entirely honest
witness, he did not strike me as a very observant man. He accepted
that the various activities alleged by the plaintiff could have gone on
without his noticing them. He was not, I think, much interested in the
disputed land; as he said, it was not his land and he was not
"bothered." In order to get to Mr. Hammond's yard, he had to go
only a short way up the drive and so would not have necessarily
seen the whole field. My analysis of his evidence therefore is that,
while it does suggest that the scope of the plaintiff's activities on the
disputed land, particularly by way of repairs to the boundary fences
during the 1960s, may have been limited, it does not prove that these
activities did not take place.
Essentially the same comment applies in relation to the evidence of
Mr. and Mrs. McFarlane, Mr. Donegan and Mr. Weston. I entirely
accept that, with the exception of the sign board, none of them noticed
any activities of the plaintiff on the disputed land until 1972. So far
as Mr. and Mrs. McFarlane were concerned, however, their visits were
fairly spasmodic. Even when they came they by no means always got
out of the car; sometimes they merely drove past the land. Frequently
when they got out of the car, they did not go on to the land itself,
because access was not particularly easy or comfortable; and their
inspections were not, I think, in general either detailed or care ful.
The plaintiff has never claimed that his activities on the land took
place every hour of every day or indeed on every day of every year.
It is therefore perfectly possible that, as is his evidence, his activities
of hay cutting, fence repairing, placing timber and lorries on the land
and so forth continued long after the McFarlanes' return to this coun-
try in 1967, without their noticing it until 1972. It is likewise possible
that they could have continued without being noticed by persons
such as Mr. Weston and Mr. Donegan, whose visits to the area of the
disputed land were only spasmodic. Mr. Powell's own evidence that
he carried out activities on the land between 1956 and 1978 sub-
stantially of the nature alleged in his pleading is to a considerable
extent corroborated by the evidence of a number of witnesses such as
Mr. Jeffries, Mr. Skinner, Mr. Marsh and Mr. King who, unlike any of
the defendants' witnesses, had themselves actually worked on the
land and thus had the best opportunity to become acquainted with it.
It was also supported by a proof of evidence signed by Mr. Ham-
mond, who had purchased the house known as "The Lodge"
immediately opposite the south-east corner of the land in 1956 and
lived there until June 1972, so that he had ample opportunity to see
what was going on. He died in 1975, but his proof was admissible
through the invocation of the procedure provided by the Civil
Evidence Act 1968 in regard to hearsay statements. The solicitor who
took this proof, Mr. Mellows, gave evidence before me. However, I
think it is fair comment that the very fact that the plaintiff's activities
were not observed by Mrs. McFarlane in 1960 or by her husband and
her or by Mr. Weston, Mr. Donegan or Mr. Horlock in later years is
some indication that in 1960 and in later years these activities were
PCR-38 30
of a somewhat limited nature. The same comment applies, though less
forcibly, in relation to Mr. Horlock's failure to observe any of the
activities of 1956 and 1957.
When the writ in the action was issued, Mr. McFarlane was in the
first instance joined as the sole defendant to the proceedings. The
statement of claim in its original form was very short, claiming, so far
as material for present purposes, that the plaintiff had been in adverse
possession for upwards of 12 years, between 1956 and the date of the
issue of the writ, of the disputed land, alleging that Mr. McFarlane
claimed to be the owner and registered proprietor of the land and that
he disputed the plaintiff's claim to adverse possession, and seeking by
way of primary relief a declaration that the plaintiff had been in
adverse possession of the land for upwards of 12 years and is entitled
to be registered as the proprietor or alternatively a declaration that
any title or right of Mr. McFarlane has been extinguished.
The statement of claim was followed by a defence served on behalf
of Mr. McFarlane, paragraph 1 of which consisted of a bare denial
that the defendant had been in adverse possession of the disputed
land or any of it for upwards of 12 years from 1956 or at all. He pleaded,
as was the fact, that he had since 1952 been registered at H.M. Land
Registry as proprietor of the land with title absolute. He included a
counterclaim in which he asserted that during the period of six years
before the commencement of the action the plaintiff had trespassed
upon the land by .. entering upon it, removing trees and shrubs and
erecting an advertisement hoarding" and he claimed damages. At a
later stage, however, in response to a request for further and better
particulars, Mr. McFarlane informed the plaintiff that he did not
intend to rely upon the claim in respect of the removal of trees or
shrubs or entries upon the land, save in relation to the erection of
the hoarding.
Mr. Ransom was subsequently added as a defendant to the action.
On March 17, 1975, Goulding J. gave the plaintiff leave to amend the
statement of claim, but refused an application made on his behalf for
further and better particulars of paragraph 1 of Mr. McFarlane's
defence. The statement of claim was then amended so as to include
an allegation that Mr. Ransom claimed to be in possession of the dis-
puted land as against the plaintiff by virtue of the grazing agreement
and that he disputed the plaintiff's claim to adverse possession. It
further contained an allegation that in the middle of 1978 Mr. Ran-
som had caused a horse to graze on the disputed land and damage the
plaintiff's hay crop. The prayer to the statement of claim was
amended to include a request for appropriate relief against both
defendants.
A defence was served on behalf of Mr. Ransom in due course, in
which he denied that the plaintiff had been in adverse possession of
the disputed land and counterclaimed for possession of the disputed
land, on the grounds that he was entitled to this by virtue of the graz-
ing agreement entered into between him and Mr. McFarlane.
POWELL v. MCFARLANE AND ANOTHER 467
There are only two further matters to which I need refer in relation
to the pleadings. First the plaintiff, in response to a request, gave full
further and better particulars of the nature of his case on possession,
which were subsequently slightly amended. As will appear from a
comparison of these amended particulars with the facts found earlier
in this judgment, the facts alleged in them are in my judgment for the
most part proved, though I think they fairly may be said to give a
general impression of more widespread, frequent and obvious activities
by the plaintiff on the land, particularly in relation to the years subse-
quent to 1956 and 1957, than were in fact carried out by him. Sec-
ondly, I should mention that at the trial I gave leave for the re-
amendment of the statement of claim so as (inter alia) to include a
new paragraph lA in the following terms:
Alternatively, if (which is denied) the plaintiff has not so posses-
sed the said land for himself throughout the said period, posses-
sion has been successive.ly for his grandparents, Mr. Bishop and
Mrs. Bishop, or one of them and himself, and the plaintiff will
rely on the same physical acts on or in respect of the said land
as are set out in the amended further and better particulars of
the statement of claim and will say that the intention of the
plaintiff to possess the said land is to be attributed to the said
Mr. and/or Mrs. Bishop as the case may be.
The disputed land being registered land, the freehold estate of Mr.
McFarlane as the registered proprietor thereof cannot on any footing
have been actually extinguished. If, however, the plaintiff had
acquired title against him by virtue of the Limitation Act 1939, such
estate would be deemed to be held by Mr. McFarlane in trust for the
plaintiff, under the combined effect of section 16 of that Act and
section 75 (1) of the Land Registration Act 1925. In the latter con-
tingency, Mr. Ransom too would have taken his interest in the land
subject to any rights acquired by the plaintiff under the Limitation
Act 1939: see sections 20 (1) (b), 3 (xvi), 3 (xxii) and 70 (1) (f) of the
Land Registration Act 1925. For present purposes therefore Mr.
McFarlane and Mr. Ransom stand on much the same footing in
defending this action and it makes no practical difference that the
disputed land is registered land.
The plaintiff's claim is primarily based upon section 4 (3) of the
1989 Act, which so far as material reads as follows:
No action shall be brought by any other person to recover any
land after the expiration of 12 years from the date on which the
right of action accrued to him. . .
It has not been suggested on behalf of either of the defendants
that the legal position is altered merely because they are as a matter of
form defendants to the present proceedings rather than a plaintiff
seeking to recover the land. The crucial question therefore is whether
Mr. McFarlane's right of action to recover the land accrued to him
before November 1, 1961, that is to say more than 12 years before the
writ was issued on November 1, 1978.
Section 5 (1) of the 1989 Act defines the date when a right of action
to recover land is deemed to accrue, as follows:
Where the person bringing an action to recover land, . . has
been in possession thereof, and has while entitled thereto been dis-
possessed or discontinued his possession, the right of action shal1
be deemed to have accrued on the date of the dispossession or
discontinuance.
For this purpose, dispossession refers to a person coming in and
putting another out of possession, while discontinuance refers to the
case where the person in possession abandons possession and another
then takes it. The authorities however show that merely very slight
acts by an owner in a relation to the land are sufficient to negative
discontinuance. Mr. Lyndon-Stanford, on behalf of the plaintiff,
rightly in my judgment, has not founded any argument on discon-
tinuance. His case is quite simply that Mr. McFarlane was dispos-
sessed by the plaintiff in 1956 or 1957 and that accordingly Mr.
McFarlane's right of action is deemed to have accrued in 1956 or 1957
and is now barred. It is theoretically possible that dispossession could
have occurred between 1958 and 1962, even though it did not take
place in 1956 or 1957; such a contention, however, is unsustainable on
the facts and is not put forward.
Section 10 of the 1989 Act provides:
(1) No right of action to recover land shall be deemed to accrue
unless the land is in the possession of some person in whose favour
the period of limitation can run (hereafter in this section referred
to as "adverse possession") and where under the foregoing
provisions of this Act any such right of action is deemed to accrue
on a certain date and no person is in adverse possession on that
date, the right of action shall not be deemed to accrue unless and
until adverse possession is taken of the land.
(2) Where a right of action to recover land has aecrued and
thereafter, before the right is barred, the land ceases to be in
adverse possession, the right of action shall no longer be deemed
to have accrued and no fresh right of action shall be deemed to
accrue unless and until the land is again taken into adverse
possession.
It was accepted by counsel for both the defendants, again rightly in
my judgment, that if, contrary to their submissions, the plaintiff
began to be in " adverse possession" of the disputed land in 1956 or
1957 and a right of action to recover the land correspondingly accrued
to Mr. McFarlane at that date, the land has never ceased to be in
" adverse possession" of the plaintiff since then. Thus section 10 (2)
is not relied on by the defendants.
Reverting to section 10 (1), it will be seen that" adverse possession"
is defined as simply " the possession of some person in whose favour
the period of limitation can run." This definition calls for two com-
ments. First, time can never run in favour of a person who occupies or
uses land by licence of the owner with the paper title and whose
licence has not been duly determined, because no right of action to
recover the land has ever accrued against the owner; consequently
such a person has no " adverse possession" however long his occupa-
tion or use may have lasted. Secondly, though the fact that the plaintiff
was an infant in 1956 and 1957 is clearly relevant in deciding whether
he had " possession " of the disputed land, it has not been submitted
that this fact prevented him from being a person " in whose favour
the period of limitation can run." Indeed the decision of the Court of
Appeal in Willis v. Earl Howe,
1
illustrates that time may run in
favour of an infant, though on the facts of that case the infant's
mother held adverse possession in his name.
Neither the word" possession" nor the word" dispossession" is
defined in the 1989 Act. Possession of land, however, is a concept
which has long been familiar and of importance to English lawyers,
because (inter alia) it entitles the person in possession, whether
rightfully or wrongfully, to maintain an action of trespass against
any other person who enters the land without his consent, unless
such other person has himself a better right to possession. In the
absence of authority, therefore, I would for my own part have
regarded the word" possession" in the 1989 Act as bearing the
traditional sense of that degree of occupation or physical control,
coupled with the requisite intention commonly referred to as animus
possidendi, that would entitle a person to maintain an action of tres-
pass in relation to the relevant land; likewise I would have regarded
the word " dispossession " in the Act as denoting simply the taking of
possession in such sense from another without the other's licence or
consent; likewise I would have regarded a person who has "dis-
possessed" another in the sense just stated as being in "adverse
possession " for the purpose of the Act.
Three recent decisions of the Court of Appeal, however, indicate
that this may be too simple a way to look at the matter. The first of
these decisions is Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mew
and B.P. Ltd.
2
(which I will call "the Wallis case)." The second is
Treloar v. Nute.
3
The third is Gray v. Wykeham-Martin' which was
decided on January 17, 1977; I will call it" the Gray case."
On the first hearing, there was a long debate before me as to the
effect of the first two of these decisions. After I had prepared my
written judgment and indeed was about to deliver it, counsel
requested that the matter should be restored for further argument in
the light of the Gray case, of which they had been previously unaware,
and also in view of a further recent Court of Appeal decision, Red
1 [1893] 2 Ch. 545, C.A.
2 [1975] 1 Q.B. 94; [1974] 2 W.L.R. 387; [1974] 3 All E.R. 575; (1974) 29
P. & C.R. 214, C.A.
3 [1976] 1 W.L.R.1295; [1977] 1 AllE.R. 230; (1976) 33 P. & C.R. 41, C.A.
, (Unreported). January 17,1977, Court of Appeal (Civil Division) Transcript
No. lOA of 1977.
House Farms (Thorndon) Ltd. v. Catchpole,
5
which had been decided
on November 12, 1976.
The last-mentioned case, which I will call" the Red House Farms
case," is, I think, only marginally relevant to the present facts. The
other three cases, however, are very relevant, and as I will indicate, to
my mind present certain problems. However, whatever else may be in
doubt as a result of recent, somewhat conflicting, authorities, one
negative proposition of law in my judgment remains quite clear; an
intruder cannot be said to have dispossessed an owner of land for the
purpose of the 1939 Act unless (at least) the intruder has taken over
from the owner possession of the land, in the ordinary sense of posses-
sion recognised as such by law, without the owner's licence or consent.
On the facts of the present case it is manifestly impossible under any
general principles of law to imply any licence or consent given to the
plaintiff in 1956 or 1957 by Mr. McFarlane, who at that time was in
Germany and had no knowledge of his existence. The decisions in the
Wallis case 6 and the Gray case 7 suggest that, for the purpose of
applying the 1939 Act, it may be necessary to impute an implied or
hypothetical licence in circumstances where a licence could not be
imputed for any other purpose. Though I shall in due course revert to
these decisions, I propose to devote the greater part of the rest of this
judgment to consideration of the question whether in 1956 or 1957
the plaintiff acquired possession of the disputed land in the ordinary
sense of possession recognised as such by law. If he fails to establish
this point, his claim must fail, quite apart from any additional hurdles
placed in his way by recent Court of Appeal decisions.
It will be convenient to begin by restating a few basic principles
relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land
with the paper title is deemed to be in possession of the land, as being
the person with the prima facie right to possession. The law will thus,
without reluctance, ascribe possession either to the paper owner or to
persons who can establish a title as claiming through the paper
owner.
(2) If the law is to attribute possession of land to a person who can
establish no paper title to possession, he must be shown to have both
factual possession and the requisite intention to possess (" animus
possidendi ").
(3) Factual possession signifies an appropriate degree of physical
control. It must be a single and conclusive possession, though there
can be a single possession exercised by or on behalf of several persons
jointly. Thus an owner of land and a person intruding on that land
without his consent cannot both be in possession of the land at the
same time. The question what acts constitute a sufficient degree of
5 (Unreported). November 12, 1976. Court of Appeal (Civil Division) Transcript
No. 411 ofl976.
6 [1975] 1 Q.B. 94; (1974) 29 P. & C.R. 214.
7 (Unreported). Court of Appeal (Civil Division) Transoript No. lOA of 1977.
POWELL V. MCFARLANE AND ANOTHER 471
exclusive physical control must depend on the circumstances, in
particular the nature of the land and the manner in which land of that
nature is commonly used or enjoyed. In the case of open land, absolute
physical control is normally impracticable, if only because it is gener-
ally impossible to secure every part of a boundary so as to prevent
intrusion. "What is a sufficient degree of sole possession and user
must be measured according to an objective standard, related no
doubt to the nature and situation of the land involved but not subject
to variation according to the resources or status of the claimants":
West Bank Estates Ltd. v. Arthur, 8 per Lord Wilberforce. It is clearly
settled that acts of possession done on parts of land to which a posses-
sory title is sought may be evidence of possession of the whole.
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. On the particular facts of
Cadija Umma v. S. Don Manis Appu
D
the taking of a hay crop was
held by the Privy Council to suffice for this purpose; but this was a
decision which attached special weight to the opinion of the local
courts in Ceylon owing to their familiarity with the conditions of life
and the habits and ideas of the people. 1 0 Likewise, on the partiCUlar
facts of the Red House Farms case, mere shooting over the land in
question was held by the Court of Appeal to suffice; but that was a
case where the court regarded the only use that anybody could be
expected to make of the land as being for shooting 11: per Cairns,
Orr and Waller L.JJ. Everything must depend on the particular cir-
cumstances, 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.
(4) The animus possidendi, which is also necessary to constitute
possession, was defined by Lindley M.R., in Littledale v. Liverpool
College
12
(a case involving an alleged adverse possession) as "the
intention of excluding the owner as well as other people." This con-
cept is to some extent an artificial one, because in the ordinary case
the squatter on property such as agricultural land will realise that, at
least until he acquires a statutory title by long possession and thus
can invoke the processes of the law to exclude the owner with the
paper title, he will not for practical purposes be in a position to exclude
him. 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
8 [1967] A.C. 665, 678, 679; [1966] 3 W.L.R. 750, P.C.
D [1939] A.C. 136, P.C.
10 Ibid., at pp. 141-142.
11 (Unreported). Court of Appeal (Civil Division) Transcript No. 411 of 1976,
pp. 6G, 12B, G.
1ll [1900] 1 Ch. 19,23, C.A.
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.
The question of animus possidendi is, in my judgment, one of
crucial importance in the present case. An owner or other person with
the right to possession of land will be readily assumed to have the
requisite intention to possess, unless the contrary is clearly proved.
This, in my judgment, is why the slightest acts done by or on behalf
of an owner in possession will be found to negative discontinuance of
possession. The position, however, is quite different from a case where
the question is whether a trespasser has acquired possession. In such a
situation the courts will, in my judgment, require clear and affirma-
tive 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 dis-
possessed the owner.
A number of cases illustrate the principle just stated and show how
heavy an onus of proof falls on the person whose alleged possession
originated in a trespass.
In Ldgh v. Jack 18 the relevant land consisted of a small piece of
ground which the previous owner, one J. S. Leigh, had laid out as a
street, in the contemplation that he would dedicate it to the public
as a highway. It was marked as a street on a plan of his estate which
he hung up in the Leigh Estate Office l' and this was presumably
common knowledge among those interested in the property. The
defendant, who had occupied ground on each side of the land, had
enclosed it and placed on it a quantity of refuse. In proceedings
between J. S. Leigh's successor in title and the defendant, the defen-
dant relied on (inter alia) the Statutes of Limitation, but the Court of
Appeal held there had been neither a discontinuance of possession
nor dispossession. What was said about discontinuance has little
relevance for present purposes. In the context of dispossession, how-
ever, Cockburn C.J. said 16:
I do not think that any of the defendant's acts were done with the
view of defeating the purpose of the parties to the conveyance;
his acts were those of a man who did not intend to be a trespasser,
or to infringe upon another's right. The defendant simply used the
land until the time should come for carrying out the object
originally contemplated.
Cockburn C.J. was thus plainly basing his judgment in relation to
dispossession on the fact that the defendant did not have the essential
13 (1879) 5 Ex. D. 264,C.A.
a Ibid., at p. 266.
16 Ibid., at p. 271.
POWELL v. l\lcF ARLANE AND ANOTHER 473
animus possidendi, because his acts were " those of a man who did
not intend to be a trespasser, or to infringe upon another's right."
Bramwell L.J. dealt with the question of dispossession, in a passage
which has frequently been referred to in later authorities, as follows 18:
I do not think there was any dispossession of the plaintiff by the
acts of the defendant: acts of user are not enough to take the soil
out of the plaintiff and her predecessors in title and to vest it in
the defendant; in order to defeat a title by dispossessing the for-
mer owner, acts must be done which are inconsistent with his
enjoyment of the soil for the purposes for which he intended to
use it: that is not the case here, where the intention of the plaintiff
and her predecessors in title was not either to build upon or to
cultivate the land, but to devote it at some future time to public
purposes.
Though the ratio of his decision was perhaps not quite so clear, it
seems to me that Bramwell L.J. in this passage was really doing no
more than echo the reasoning of the earlier judgment of Cockburn
C.J., namely that the defendant's acts were not those of a man who
intended to infringe upon the rights of the plaintiff or her predecessors.
He seems to have treated the defendant as being aware that the inten-
tion of the plaintiff and her predecessors was neither to build upon nor
cultivate the land; for an intention on the part of the owners of which
the defendant was totally unaware could surely have had no possible
relevance to the issue of dispossession, though it might well have been
relevant to the issue of discontinuance. In the light of this knowledge
on the part of the defendant, he apparently regarded the defendant's
acts as not being those of a man who intended to dispossess the owner,
because what he did in no way conflicted with the owners' enjoyment
of the soil for the purposes for which they intended to use it. This may
or may not be a correct interpretation of Bramwell L.J.'s reasoning.
Whether or not it is, however, it seems to me that Cockburn C.J.'s
judgment was plainly based on the absence of any sufficient evidence
of animus possidendi.
The same can be said of the judgment of Hodson L.J. in Williams
Brothers Direct Supply Ltd. v. Raftery. 17 In that case (which I will
call "the Williams case ") the land in dispute consisted of a small
strip at the rear of a row of shops with flats above. The plaintiffs
were the registered owners of the strip and the buildings. They had
bought the land in 1987 and intended to develop it, but, though they
were prevented by the outbreak of war in 1989 and by the refusal of
planning permission, they had never abandoned their intention to
develop it when opportunity arose. During the war, the tenants of the
flats had begun cultivating the land at the rear of the premises, some
of them obtaining oral permission from the owners to do so. In 1940
one Haydon had cultivated the land behind flat no. 367a, which was
the relevant strip, and had marked off a boundary to it with old
18 Ibid. at p. 273.
17 [1958] 1 Q.B. 159; [1957] 3 W.L.R. 931; [1957] 3 All E.R. 593, C.A.
bricks. In 1948, the defendant became tenant of this flat, took over the
relevant strip, without the owners' permission and without paying
rent for it, and continued to grow food on it, until 1949, when he
abandoned cultivation and turned part of the land over to the purpose
of rearing greyhounds, putting up sheds and a fence to keep the dogs
in. In his evidence before the county court judge, the defendant said 1 8:
"I knew other tenants were cultivating behind their premises. I
thought entitled to same. Not trying to take over land, not really.
Exercising rights I thought I had as tenant of these premises."
The defendant claimed that he had acquired a squatter's title
having been in uninterrupted possession of the land for over 12 years.
The Court of Appeal held that he had not. Hodson L.J. referred at
length in his judgment 19 to Leigh v. Jack 2 0 and rejected an argument
that Bramwell L.J. was striking out on his own, unsupported by the
other members of the court, when he spoke of acts having to be done
inconsistent with the enjoyment of the soil for the purposes for which
the plaintiff intended to use it. Hodson L.J. said: "I think, for my
part, that all their Lordships were in agreement in the way in which
they dealt with the matter." Hodson L.J. thus by necessary implica-
tion seems to have accepted that Bramwell L.J.'s decision, as much as
that of Cockburn C.J., had been based on the lack of the necessary
animus possidendi. The fact that he took this view becomes clearer
still, I think, from the next paragraph of his judgment, in which he
referred again to the "inconsistency " test referred to by Bramwell
L.J.
Applying that test to this case, I cannot see that any act which
the defendant did is capable of being treated as sufficient to dis-
possess the plaintiffs. The defendant never even thought he was
dispossessing the plaintiffs; he never claimed to do more than work
the soil, as he thought he was permitted to do. He had some
vague idea in his head, derived from a source which is not clear
on the evidence, that it was quite all right for him to work it; but
he never, as far as I know, had any intention, nor claimed any
intention, of asserting any right to the possession of this piece of
ground.
In Tecbild Ltd. v. Chamberlain
21
a possessory title was claimed to
certain plots of land which were vacant and uncultivated, though
they were ripe for development. The acts relied on by the defendant
to establish adverse possession were that her children had played on
the two plots as and when they wished, the family ponies had been
tethered and grazed on them and there was a rough old fence on one
boundary. The Court of Appeal dismissed her claim. Sachs L.J.
said
22
:
18 [1968] 1 Q.B. 169, 162.
19 Ibid. a.t pp. 167-169.
20 (1879) 6 Ex.D. 264.
21 (1969) 20 P. & C.R. 633, C.A.
22 Ibid. a.t pp. 642-643.
POWELL v. MCFARLANE AND ANOTHER 475
I now turn to the question of adverse possession, prefacing my
consideration by saying that, in this particular case, there seems
to me to be no difference between adverse possession and dis-
possession, though there may be in other cases. As regards adverse
possession in cases such as the present, it is of no use relying only
on acts which are equivocal as regards intent to exclude the true
owner. If authority were needed for that proposition, it could be
found in the judgment of Harman L.J. in George Wimpey & Co.
Ltd. v. Sohn 2 3; indeed, in that case it was pointed out that even
all-round fencing is not unequivocal if other explanations exist
as to why it may well have been placed round the land in ques-
tion, as, for instance, to protect the ground from incursions of
others.
Here again, everything depends on the nature of the property
and the nature of the acts. To my mind, the acts relied on in this
case by the defendant were not even equivocal in that they did
not appear to provide an equal balance between intent to exclude
the true owner from possession and an intent merely to derive
some enjoyment from the land wholly inconsistent with such
use as the true owner might wish to make of it. The scales tipped
clearly toward the latter conclusion.
It follows that this impudent attempt to gain l,OOO-worth of
property without having any right to it in law rightly failed; ...
Sachs L.J.'s judgment in Tecbild Ltd. v. Chamberlain was thus again
clearly based on the footing that the defendant failed because she did
not manifest the requisite animus possidendi, inasmuch as her intent
as shown was merely to derive some enjoyment from the land
"wholly consistent with such use as the true owner might wish to
make of it."
These are some examples of many judgments in which claims to
possessory titles by trespassers have been rejected on the grounds
that they have not sufficiently evidenced the requisite intent. Two
other such cases are the Court of Appeal decisions in Littledale v.
Liverpool College 2 4 and George Wimpey & Co. Ltd. v. Sohn. 25 As
Lindley M.R. said in the former case 2 6 "When possession or dis-
possession has to be inferred from equivocal acts, the intention with
which they are done is all-important: see Leigh v. Jack." 2 7
Similar phraseology is to be found in the judgment of Harman L.J.
in George Wimpey & Co. Ltd. v. Sohn. 28 Mr. Lyndon-Stanford pointed
out that in each of these two cases, the alleged adverse possessors had
at all material times had an easement over the relevant land (in the
former case, an easement of way and, in the latter case, an easement
to use it as a garden) so that their acts were equivocal in the sense
that they were possibly referable to an exercise of the relevant
lIS [1967] Ch. 487; [1966] 2 W.L.R. 414; [1966] 1 All E.R. 232, C.A.
114 [1900] 1 Ch. 19.
2Ii [1967] Ch. 487.
28 [1900] 1 Ch. 19,23.
27 (1879) 5 Ex.D. 264.
28 [1967]Ch. 487, 506.
easement. He submitted that the principle expounded by Lindley
M.R. has no relevance in a case such as the present where there is no
possibility of the acts done by the claimant being referable to any
actual or supposed right. I can, however, see no ground for concluding
that the rule does not apply merely on this account.
In my judgment it is consistent with principle as well as authority
that a person who originally entered another's land as a trespasser,
but later seeks to show that he has dispossessed the owner, should be
required to adduce compelling evidence that he had the requisite
animus possidendi in any case where his use of the land was equivocal,
in the sense that it did not necessarily, by itself, betoken an intention
on his part to claim the land as his own and exclude the true owner.
The status of possession, after all, confers on the possessor valuable
privileges vis-a-vis not only the world at large, but also the owner of
the land concerned. It entitles him to maintain an action in trespass
against anyone who enters the land without his consent, save only
against a person having a better title to possession than himself.
Furthermore it gives him one valuable element of protection even
against the owner himself. Until the possession of land has actually
passed to the trespasser, the owner may exercise the remedy of self-
help against him. Once possession has passed to the trespasser, this
remedy is not available to the owner, so that the intruder's position
becomes that much more secure; if he will not then leave voluntarily,
the owner will find himself obliged to bring proceedings for possession
and for this purpose to prove his title.
Against this background, it is not in the least surprising that over
many years in cases such as Leigh v . Jack, 29 the Williams case SO and
Tecbild Ltd. v. Chamberlain 31 the courts have been reluctant to infer
the necessary animus possidendi on the part of a squatter, even where
the acts relied on could have sufficed to constitute factual possession.
I would add one further observation in relation to animus possi-
dendi. Though past or present declarations as to his intentions, made
by a person claiming that he had possession of land on a particular
date, may provide compelling evidence that he did not have the
requisite animus possidendi, in my judgment statements made by
such a person, on giving oral evidence in court, to the effect that at a
particular time he intended to take exclusive possession of the land,
are of very little evidential value, because they are obviously easily
capable of being merely self-serving, while at the same time they may
be very difficult for the paper owner positively to refute. For the same
reasons, even contemporary declarations made by a person to the
effect that he was intending to assert a claim to the land are of little
evidential value for the purpose of supporting a claim that he had
possession of the land at the relevant date unless they were specifically
brought to the attention of the true owner. As Sachs L . .J. said in
29 (1879) 5 Ex.D. 264.
30 [195811 Q.B. 159.
31 (1969) 20 P. & C.R. 633.
Tecbild Ltd. v. Chamberlain, 32 " In general, intent has to be inferred
from the acts themselves."
In the light of these principles, which I have tried to summarise,
I now revert to the facts of the present case. The character of the
disputed land in 1956 when the plaintiff began his activities was, as I
have in effect found already, poorish agricultural land of some three
and a half acres in area; probably not capable of development by
building in the foreseeable future; containing a few relics of Mr.
McFarlanes' Christmas trees but otherwise not for the time being
used in any way; surrounded by some kind of fencing, most of which
was in a poorish condition; suitable for pasturage and haymaking but
not suitable for ploughing or planting with cereal crops.
In summary the plaintiff's activities on the land in 1956 and 1957
were the following: He cut and took the hay-crop; he did some rough
and ready, but quite widespread repairs to the boundary fences, to
the extent required to make them stock-proof; he cut back a fair
quantity of brambles and other growth, including the remaining 50
or so Christmas trees, with a view to increasing the hay area for the
future; he put the family cow and goat (or subsequently two or three
cows) in the field to pasture; he connected some sort of water supply
to the land; he also did a bit of shooting on it.
As one alternative line of argument, Mr. Hoffmann submitted that
the relevant acts on the disputed land in 1956 and 1957 should not in
law be regarded as the acts of the plaintiff, but rather as the acts of
his grandfather, Mr. Bishop (who, on the evidence clearly did not
himself have the requisite animus possidendi). In support of this
submission, he pointed out that there is no evidence that Mr. Bishop
had ever transferred the legal ownership of the cow Kashla to the
plaintiff, even though the family called it f' Ted's cow": that the hay
was cut with Mr. Bishop's tractor and was taken back to his small-
holding to feed the cow; and that the fence mending and clearing
operations were in a sense ancillary to providing for the family cow.
I would have been inclined to accept this submission, if I had been
satisfied that the relevant acts were done by the plaintiff at his grand-
father's instigation or even with his consent; but as I have indicated
earlier, I do not think that they were. Accordingly I do not accept it.
In my judgment, the relevant acts were for all relevant purposes the
independent acts of the plaintiff, done on his behalf rather than on
behalf of his grandparents or Mr. Bishop alone, even though he was
only a boy of 14 or 15 at the time-which means, of course, that I
must reject the alternative claim introduced by paragraph lA of the
statement of claim, as reamended at the trial. Did these acts suffice
to transfer the possession of the land from Mr. McFarlane to the
plaintiff in 1956 or 1957?
There are a few acts which by their very nature are so drastic as to
point unquestionably, in the absence of evidence to the contrary, to
32 Ibid. at p. 643.
an intention on the part of the doer to appropriate the land con-
cerned. The ploughing up and cultivation of agricultural land is one
such act: compare Seddon v. Smith.
33
The enclosure of land by a
newly constructed fence is another. As Cockburn C.J. said in Seddon
v. Smith 34 "Enclosure is the strongest possible evidence of adverse
possession," though he went on to add that it was not indispensable.
The placing of a notice on land warning intruders to keep out,
coupled with the actual enforcement of such notice, is another such
act. So too is the locking or blocking of the only means of access.
The plaintiff however, did none of these things in 1956 or 1957. The
acts done by him were of a far less drastic and irremediable nature.
What he did, in effect, was to take various profits from the land, in
the form of shooting and pasturage, hay and grass for the benefit of
the family cow or cows and goat, and to effect rough repairs to the
fencing, merely to the extent necessary to secure his profits by making
the land stockproof. On many days of the year neither he nor the
animals would have set foot on it. These activities, done, as they
were, by a 14-year-old boy who himself owned no land in the neigh-
bourhood, were in my judgment equivocal within the meaning of the
authorities in the sense that they were not necessarily referable to an
intention on the part of the plaintiff to dispossess Mr. McFarlane and
to occupy the land wholly as his own property. At first, surely, any
objective informed observer might probably have inferred that the
p1aintiff was using the land simply for the benefit of his family'S cow
or cows, during such periods as the absent owner took no steps to
stop him, without any intention to appropriate the land as his own.
In these circumstances the burden must fall fairly and squarely
on the plaintiff affirmatively to prove that he had the requisite intent
in 1956-57. I adopt the approach followed in Convey v. Regan, 85 an
Irish decision to which Mr. Wakefield, on behalf of the second
defendant referred me. Black J. said 36:
The basis of the principle seems to be that when a trespasser seeks
to oust the true owner by proving acts of unauthorised and long
continued user of the owner's land, he must show that those acts
were done with animus possidendi, and must show this un-
equivocally. It is not, in my view, enough that the acts may have
been done with the intention of asserting a claim to the soil, if
they may equally have been done merely in the assertion of a
right to an easement or to a profit a prendre. When the acts are
equivocal-when they may have been done equally with either
intention-who should get the benefit of the doubt, the rightful
owner or the trespasser? I think it should be given to the rightful
owner.
In the course of his evidence, the plaintiff said on a number of
occasions words to the effect that, when he began to use the disputed
33 (1877) 36 L.T. 168, C.A.
34 Ibid. at p. 169.
35 [1952] I.R. 56.
38 Ibid. atp. 59.
POWELL V. MCFARLANE AND ANOTHER 479
land, he intended to make it his own. Mr. Lyndon-Stanford invited me
to accept these statements of his intention, on the basis that he was
an honest witness and that they had not been refuted in the course
of cross-examination; indeed I do not think he was cross-examined
on them. Mr. Hoffmann submitted that I should generally treat his
evidence with some reserve, relying in particular on a statutory
declaration which the plaintiff swore on March 2, 1971, in support of
a claim to have acquired a statutory title by adverse possession both
to the disputed land and to certain land on the other side of the drive.
The plaintiff is litigating the claim to this other land, to which Mr.
Ransom now has the paper title, in separate proceedings. This
statutory declaration contains a number of manifest inaccuracies,
which were freely admitted by the plaintiffs in his evidence before me.
His explanation was in effect that the fault lay with the solicitors who
prepared the statutory declaration on his behalf and who must have
misunderstood his instructions. I think the plaintiff though highly
intelligent, is not a very literate man, who might well have found
difficulty in following the somewhat technical language of a draft
statutory declaration presented to him by his solicitiors. I am not
therefore prepared to find that he is an unreliable witness simply
on the basis of this statutory declaration. In general, I regard him as a
reliable witness on questions of straightforward fact. However, he is
also a man who is obviously very determined to get what he wants and
the statutory declaration is, in my judgment, relevant for another
reason. It shows that by early 1971, the plaintiff was, with the
assistance of lawyers, already asserting a statutory title by adverse
possession to two pieces of land. Indeed it emerged from his evidence
that he also encouraged and helped his mother, while she was the
owner of Nutwood Farm, to pursue a claim to a possessory title to a
third piece of land, adjoining Nutwood Farm. Accordingly by the time
he gave evidence in these proceedings, he must, through frequent
contacts with his lawyers over the years, have become very familiar
with the essential characteristics of possession under English law,
both in relation to fact and state of mind.
For these particular reasons, in addition to those reasons of general
principle to which I have already referred, I regard the plaintiff's
statements in evidence as to his past intentions as being of minimum
probative value in the present case. I set them against his age at the
relevant time and his own evidence that he and his grandmother tried
to obtain Mr. McFarlane's permission to use the land before he
entered it, but received no reply. On the evidence it seems to me
inherently possible, if not likely, that as at 1956-57 he entered it
simply with the idea of taking what he needed from it by way of
grazing, etc. until he was stopped, and with no real thought at that
time of establishing a permanent dominion over it. Very probably by
1962, when he was older and had established his own business and
had already been using the land for several years, his intentions had
hardened, just as his activities (for example his parking of vehicles and
lorries and the erecting of a sign board) had become more unequi-
vocally those of a person asserting ownership. It is, I think, quite
possible that he did effectively take possession of the land in 1962 by
sufficient acts and manifestations of animus possidendi. However, this
does not assist him for the purposes of the present proceedings. Nor
in my judgment do his activities of 1962 provide any useful guide as
to his intention in the very different circumstances of 1956 and 1957.
There were indications in the evidence given on behalf of the
plaintiff by Mr. Jeffries that, in the course of conversations at the
relevant time, the plaintiff appeared to be treating the land as his
own. Again, however, I regard such evidence as being of little signi-
ficance, because Mr. McFarlane neither knew what the plaintiff was
saying to Mr. Jeffries, nor could have known it, even if he had visited
the land every day. I accept that, as Mr. Lyndon-Stanford submitted
for the purpose of the Limitation Act 1989, in the absence of concealed
fraud, it is irrelevant that an owner is ignorant that he has been
dispossessed: Raina v. Buxton. 3 7 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 intentions 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.
On the facts of the present case, it follows that the plaintiff's
intentions in 1956 and 1957 must be interpreted primarily from his
own acts. These acts do not in my judgment go far enough to prove
the requisite animus possidendi, particularly on the part of a 14- or 15-
year-old boy. It is of some significance that of all the many authorities
cited to me, in which possessory titles have been established, in no
one has the successful claimant been an infant who has esta.blished his
title by virtue of possessory acts done by him on his own behalf.
I thus conclude that the plaintiff did not acquire possession in law
of the land from Mr. McFarlane in 1956 or 1957. I am supported in
this conclusion by the following considerations. If his case be correct
in law, then, as a 14-year-old boy, he would have had a cause of
action in trespass against all persons entering on the land without his
authority, other than Mr. McFarlane or persons authorised by him.
Though this is, of course, to beg the question, I hardly think that the
court would have regarded such an action as maintainable on the
basis of the facts before me. Correspondingly, I think that, if Mr.
McFarlane had learned all the facts in 1957 and had brought an
action in ejectment a.gainst the plaintiff, the court would have
regarded him as pursuing the wrong cause of action; it would have
taken the view that his proper cause of action against this youthful
intruder was simply in trespass.
If my conclusions so far be correct, then the plaintiff's claim based
on the Limitation Act 1989, must fail, quite apart from those three
37 (1880) 14 Ch.D. 537.
recent decisions of the Court of Appeal already referred to which
place additional obstacles in his way. I must however now turn to
these decisions.
In the Wallis case, 38 the question arose as to whether the plaintiffs
had acquired a possessory title to a strip of vacant land, which had
been left unoccupied by its owners, for the purposes of eventual use
in connection with a proposed road. It seems to have been accepted
by all members of the Court of Appeal that they or their predecessors
had had "possession" of the land in the ordinary sense for the
requisite statutory period; and on these grounds Stamp L.J. in a
dissenting judgment held that they had acquired a statutory title.
Lord Denning M.R., however, held they had not, the ratio of his
decision appears from the following passage 3 9:
Possession by itself is not enough to give a title. It must be
adverse possession. The true owner must have discontinued posses-
sion or have been dispossessed and another must have taken it
adversely to him. There must be something in the nature of an
ouster of the true owner by the wrongful possessor. That is shown
by a series of cases in this court which, on their very facts, show
this proposition to be true.
When the true owner of land intends to use it for a particular
purpose in the future, but meanwhile has no immediate use for it,
and so leaves it unoccupied, he does not lose his title to it simply
because some other person enters on it and uses it for some tem-
porary purpose, like stacking materials; or for some seasonal
purpose, like growing vegetables. Not even if this temporary or
seasonal purpose continues year after year for 12 years, or more:
see Leigh v. Jack 40; Williams Brothers Direct Supply Ltd. v.
Rafter 41; and Tecbild Ltd. v. Chamberlain. 4 2 The reason is not
because the user does not amount to actual possession. The line
between acts of user and acts of possession is too fine for words.
The reason behind the decisions is because it does not lie in that
other person's mouth to assert that he used the land of his own
wrong as a trespasser. Rather his user is to be ascribed to the
licence or permission of the true owner. By using the land, know-
ing that it does not belong to him, he impliedly assumes that the
owner will permit it; and the owner, by not turning him off,
impliedly gives permission. And it has been held many times in
this court that acts done under licence or permitted by the owner
do not give a licensee a title under the Limitation Act 1989. They
do not amount to adverse possession ....
Ormrod L.J. agreed with Lord Denning M.R. in allowing the
appeal. The ratio decidendi of his decision is, I think, to be found in
three passages of his judgment. He said 43:
38 [1975] Q.B. 94; (1974) 29 P. & C.R. 214.
39 [1975] Q.B. 94, 103; (1974) 29 P. & C.R. 214, 217-218.
40 (1879) 5 Ex. D. 264.
41 [1958] 1 Q.B. 159.
42 (1969) 20 P. & C.R. 633.
4S [1975] Q.B. 94,114; (1974) 29 P. & C.R. 214,229.
PCR-38 31
The case, therefore, turns on whether or not the plaintiffs can
establish that they were in possession of the disputed land for
the statutory period, within the meaning of the Limitation Act
1989, s. 10. The qualifying words, in my opinion, are of crucial
importance, for it appears to me that the word "possession"
in this section and its predecessors has acquired a special and
restricted meaning. The overall impression created by the authori-
ties is that the courts have always been reluctant to allow an
encroacher or squatter to acquire a good title to land against the
true owner, and have interpreted the word " possession" in this
context very narrowly.
Then after referring to certain authorities, including Leigh v. Jack
and the Williams case, Ormrod L.J. said 44 that the defendant's
trespass in the latter case amounted to a virtual occupation of the
strip of land in question, but in no way affected the owner's practical
as opposed to their legal, interests in the property. He continued:
... Time, therefore, does not run against them.
This seems reasonable since the interests of justice are not
served by encouraging litigation to restrain harmless activities,
merely to preserve legal rights, the enjoyment of which is, for
good reason, being deferred ...
In my judgment, the acts of the plaintiffs in cutting the grass
or hay, grazing cattle and occasionally ploughing the defendants'
strip of land, in no way prejudiced the defendants' enjoyment of it
for the purpose for which they had originally acquired it, namely,
for development as a garage or filling station when the time was
ripe. In the context of this case it seems to me immaterial whether
or not the plaintiffs had an animus possidendi, or that they believed
the land to be theirs and treated it as such. Their trespass, relative
to the defendants' practical interest in this land, can properly be
regarded as trivial. This may be tested by considering their probable
response to a request by the plaintiffs for permission to do what
in fact was done on the land. The overwhelming inference is that
the defendants would have responded in the same way as the
North Riding County Council in respect of their strip, by readily
agreeing and asking, at most, a nominal consideration, so long as
no sort of protected tenancy was created. In my judgment,
therefore, the plaintiffs have not proved adverse possession
against the defendants.
The ratio decidendi of the majority in the Wallis case therefore
seems to have been as follows: Where a squatter occupies the land of
another, in circumstances where the occupation is not inconsistent
with the owner's enjoyment of the land for the purposes for which the
owner intends to use it, such occupation, even though amounting to
possession in all other senses, will not be treated as " adverse posses-
sion " for the purpose of the Limitation Act 1989, because, for the
purpose of applying that Act, it will be treated as having been
enjoyed by the licence of the owner, even though no licence has been
44 Ibid. at pp. 116; 232-233.
given and even though no licence could be implied on the facts for any
purposes other than those of the Act.
Shortly after the Wallis case 4 Ii had been reported, the Gray case 4 6
fell to be decided at first instance by Goulding J. who delivered his
judgment therein on November 21, 1975. I need not recite the facts
of that case. It appears from the judgment that they were such
that, if Goulding J. had regarded himself as being at liberty to apply
the Limitation Act 1939 uncontrolled by judicial authority, he would
have been disposed to think that the occupation by the plaintiff
claiming a possessory title and her other activities on the relevant
land constituted a dispossession of the occupier and accordingly
became adverse possession. Goulding J., however, read the passage
from the judgment of Lord Denning M.R. in the Wallis case and the
various passages from the judgment of Ormrod L.J. which I have
quoted and concluded:
.. what is binding on me is the principle on which the Wallis
case was decided and from the extracts which I have read that
principle seems to me tolerably clear. Lord Denning M.R. put it
as one of implied licence on the part of the true owner because he
does not take action against the trespasser. Ormrod L.J. put it
more as a matter of hypothetical licence because it is to be
assumed that the true owner would have given permission on
reasonable terms if asked.
Let me try to apply that principle to the facts of the present
case. What do I find? A small piece, certainly not more than half
an acre, on a farm of about 140 acres, useless in its existing condi-
tion except as a shelter for stock in bad weather and as a covert
for game. The use of the disputed land by the plaintiff as a
poultry run and other things she did on it in no way interfered
with the present utility of the disputed land or with the possible
future improvement of the farm by throwing the disputed land
into the larger adjoining fields. Thus consistently with the reason-
ing of the majority in the Wallis case, as I understand it, I ought
in my judgment to dismiss the action and so I do.
I read this passage from Goulding J.'s judgment as embodying
substantially the same interpretation of the ratio decidendi in the
Wallis case as that which I have set out above.
In Treloar v. Nute
47
the Court of Appeal in a unanimous judgment
delivered by Sir John Pennycuick expressed the view that the
principle of the Wallis case is confined to the" one special type of
case" where" the owner of a piece of land retains it with a view to its
utilisation for some specific purpose in the future and . meanwhile
some other person has physical possession of it." Sir John Penny-
cuick, however, reaffirmed the principle that, save in that one special
case, the question will turn on whether the squatter has acquired and
remained in possession of the land for the statutory period. He said:
45 [1975] Ch. 94; (1974) 29 P. & C.R. 214.
46 (Unreported), November 21,1975.
47 [ 1976] 1 W.L.R. 1295, 1300; (1976) 33 P. & C.R. 41.
The law, as we understand it, always apart from that special type
of case, is that if a squatter takes possession of land belonging to
another and remains in possession for 12 years to the exclusion
of the owner that represents adverse possession and accordingly
at the end of the 12 years the owner's title is extinguished. That
is the plain meaning of the statutory provisions which I have
quoted and no authority to the contrary has been quoted to us.
The simple question is, " Did the squatter acquire and remain in
exclusive possession? "
Since Treloar v. Nute,48 however, the Gray case 49 has been heard
and determined by the Court of Appeal, which not only dismissed
the appeal, but expressly accepted Goulding J.'s interpretation and
application of the ratio of the Wallis case 50: see per Lawton, Geoffrey
Lane and Megaw L.JJ. Furthermore, Lawton and Geoffrey J ... ane L.JJ.
expressly rejected an argument that the principle of the Wallis case is
limited to the situation where the owner of the relevant land has some
specific purpose in mind for its future use.
Thus the law stands at present. Very broadly, on the basis of the
recent authorities, it would appear that in any case where the acts of
an intruder, however continuous and far-reaching, do not substantially
interfere with any present or future plans which the owners may have
for the use of unbuilt land, the court will not treat the intruder as
having dispossessed the owner for the purpose of the Limitation Act
1989 because it will treat him as having been there under some
implied or hypothetical licence.
I confess that, with great respect to the court which decided them,
I find some difficulty over the majority Court of Appeal decision in
the Wallis case and the subsequent Court of Appeal decision in the
Gray case. I do not find it easy to see how the words" possession" or
" dispossess" can properly be given anything but their ordinary
meaning in the context of the 1989 Act and I doubt whether this has
been done in any decisions before the Wallis case. I am not sure how
one can justify the imputation of an implied or hypothetical licence
for the purpose of applying or defeating the provisions of that Act in
circumstances where the facts would not admit the imputation of a
licence for any other purposes. I incline to the view that the ratio
decidendi of all the various judgments in cases such as Leigh v.
Jack, 51 the Williams case 52 and Tecbild Ltd. v. Chamberlain 58 was
either (a) that the necessary animus possidendi had not been shown
or (b) that the acts relied on had been too trivial to amount to the
taking of actual possession; some members of each court seem to have
relied on the first ground and others on the second. I venture to think
48 [1976] 1 W.L.R. 1295; (1976) 33 P. & C.R. 41.
49 (Unreported.) Court of Appeal (Civil Division) Transcript No. lOA of 1977,
pp. 13A-D, 14E.
50 [1975] Q.B. 94; (1974) 29 P. & C.R. 214.
51 (1879) 5 Ex. D. 264.
62 [1958] 1 Q.B. 159.
53 (1969) 20 P. & C.R. 633.
POWELL V. MCFARLANE AND ANOTHER
485
that all these three decisions are readily explicable, not so much on
the basis of any imputed licence, but merely on the grounds that in
circumstances where an owner has no present use for his land but has
future plans for its use (for example by development or by dedication
to the public as a highway), then the court will, on the facts, readily
treat a trespasser, whose acts have not been inconsistent with such
future plans, as having not manifested the requisite animus possidendi
or alternatively, as not having acquired a sufficient degree of exclusive
occupation to constitute possession.
Be this all as it may, however, the ratio decidendi of the Gray case, 54
interpreting and applying the ratio decidendi of the majority decision
in the Wallis case, 55 is in my judgment binding on me. Mr. Lyndon-
Stanford submitted that the Gray case was inconsistent with Treloar
v. Nute
56
and the Red House Farms case 57 and that I am accordingly
at liberty not to follow it. Since, however, Treloar v. N ute was expressly
considered by the Court of Appeal in the Gray case, along with the
Wallis case, I cannot accept this submission.
When the ratio decidendi of the two last mentioned decisions is
applied to the facts of the present case, in my judgment it inevitably
destroys the plaintiff's claim even if, contrary to my view, he suc-
ceeded in " dispossessing" Mr. McFarlane, in the ordinary sense of
that word, in 1956 or 1957. At the time when he began his activities
on the disputed land, there was for practical purposes no present
use of the land, because by that time, on the plaintiff's own evidence,
all but a sprinkling of Mr. McFarlane's Christmas trees had dis-
appeared and he himself was away in Germany. Nothing which the
plaintiff did, therefore, substantially interfered with any present
utility of the land. Mr. McFarlane at the time had no definite specific
purpose in mind for its future use; but this, on the authority of the
Gray case, makes no difference. None of the plaintiff's activities were
substantially inconsistent with any use to which its owner might have
wished to put it in the future. Mr. McFarlane could have returned
from Germany at any time in 1956 or 1957 and resumed actual user
of the land for any purposes which he might have had in mind,
without finding himself prejudiced to any appreciable extent by what
the plaintiff had done.
In these circumstances even if, contrary to my view, the plaintiff
had succeeded in obtaining possession of the land in 1956 or 1957, I
think I would be constrained on the authority of the Gray and Wallis
cases to hold that his possession was not "adverse" within the
meaning of the 1939 Act, because I would be obliged to hold that it
was enjoyed under a licence imputed by law.
In the result, and by either of these two alternative routes, not-
withstanding Mr. Lyndon-Stanford's able arguments on behalf of
54 (Unreported.) Court of Appeal (Civil Division) Transcript No. lOA of 1977.
65 [1975] Q.B. 94; (1974) 29 P. & C.R. 214.
58 [1976]1 W.L.R. 1295; (1976) 33 P. & C.R. 41.
57 (Unreported.) Court of Appeal (Civil Division) TraJlscript No. 411 of 1976.
the plaintiff, I feel bound to dismiss this action as against both
defendants.
This leaves it necessary to consider only how the respective counter-
claims should be dealt with in the light of my judgment and also the
question of costs. I will now hear submissions in relation to these
issues.
[His Lordship then heard submissions of counsel and said:]
Slade J. I think it will be convenient to deal separately with the
position of the plaintiff's claim in relation to Mr. McFarlane and in
relation to Mr. Ransom.
In relation to Mr. McFarlane it is accepted that the plaintiff's
claim must be in the light of my judgment dismissed with costs, and
so I dismiss it.
In relation to Mr. McFarlane's counterclaim I think that he has
established his right to nominal damages and I make an order of 2
nominal damages. But, bearing in mind that this is all that Mr.
McFarlane has achieved by virtue of his counterclaim, the scope of
which has been vastly reduced first of all by the amendment on Mr.
McFarlane's pleadings, and secondly by the fact that knowing that
he was not going to establish a claim for anything more than nominal
damages, I make no order as to costs in relation to this counter-
claim.
As regards the plaintiff's claim against Mr. Ransom, it is likewise
accepted that this must be dismissed in the light of my judgment,
but Mr. Lyndon-Stanford has submitted that no order for costs
should be made in relation to Mr. Ransom. This submission is sub-
stantially based on a letter dated February 27, 1974, written by Mr.
Lyndon-Stanford's instructing solicitors to Mr. Ransom in which it
was suggested that he should agree to abide by the result of the
action. Mr. Ransom did not agree to abide by the result of the action.
Mr. Lyndon-Stanford submits that he was unreasonable in failing so
to agree, and that it was only because of his unreasonable failure to
agree that the plaintiff found it necessary upon advice to join him as
the second defendant.
I cannot accept that Mr, Ransom was unreasonable in refusing to
abide by the result of the action, He clearly had a substantial interest
in its result, and it seems to me that it was perfectly reasonable for
him to say to the plaintiff's advisers in effect as he did that he would
not agree to be bound by proceedings to which he was not a party and
they must join him if they thought fit. The plaintiff did join him as a
second defendant, and it seems to me that inevitably having joined
him, that is the plaintiff's own risk as to costs.
In those circumstances I think that Mr. Ransom who has success-
fully defended this action on his own behalf is entitled to his costs as
against the plaintiff.
There remains the matter of Mr. Ransom's counterclaim in which
he seeks possession of the land. At the time when Mr. Ransom's
defence and counterclaim were served, it was I think manifest that
the plaintiff was at least claiming possession of the land whether or
not he was in fact in possession of the land in the sense of possession
recognised by the law. In these circumstances Mr. Ransom was, in
my judgment, fully justified in adding a counterclaim seeking posses-
sion of the land as against the plaintiff, because in the absence of an
order made on such counterclaim he could have no certainty that a
successful defence to the action would have enabled him to recover
exclusive occupation of the property in question. In these circum-
stances I propose to make the order for possession asked for by Mr.
Ransom's counterclaim and I think it must inevitably follow that
Mr. Ransom is entitled to the costs of his counterclaim.
Order accordingly
Solicitors-Mole, Metters & Forster, Reigate; Nabarro, Nathanson;
H. Montlake & Co.
[Reported by Akhtar Razi, Barrister.]

(1979) 38 P. + C.R. 452

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452 PROPERTY AND COMPENSATION REpORTS

Powell v. McFarlane and Another

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