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References: [1974] 3 All ER 575; [1974] 3 WLR 387
COURT OF APPEAL
Wallis's Cayton Bay Holiday Camp Ltd. -v- Shell-Mex And B.P. Ltd
Coram: Lord Denning M.R., Stamp and Ormrod L.JJ.
July 10 1974
Cur. adv. vult.
Judgement:
July 10 1974.
LORD DENNING M.R. This case concerns a small piece of land - only one-and-a-third acres - in Yorkshire. It is near the sea at Cayton Bay. It has a frontage to the main road from Scarborough to Filey. Nearby there is a big holiday camp with hundreds of caravans. Next door to it there is a garage. Now there is a dispute as to who owns it. The plaintiffs, Wallis's, the caravan company, claim a squatter's title by 12 years' possession.
In 1957 the disputed land was part of the farm. But the county council were proposing to build a big new road behind the garage and the disputed land. They had actually bought the site of the proposed road from the farmer. The garage proprietor thought it would be a good thing to have a stretch of land next to the new road. Se he bought the disputed piece (1.33 acres) from the farmer for £1,000.
In April 1961, Wallis's too thought the time appropriate to get more land. They had their big holiday camp with caravans beside and behind the garage. So they bought up the rest of the farm from the farmer. It was the farm-house and 107 acres. They bought it for £35,700. But the conveyance clearly excluded the line of the proposed new road (which had been sold to the county council) and the disputed land of 1.33 acres (which had been sold to the garage proprietor). But there was nothing on the land itself to mark the boundaries. No fences. Nothing. If cattle were put in the fields, they could stray without hindrance on to the line of the proposed new road and on to the disputed land.
In September 1961, the defendants, Shell-Mex and B.P. Ltd., also saw good prospects ahead. They bought the disputed land (1.33 acres) from the garage proprietor for £5,500. So in four years its value had gone up from £1,000 to £5,500. Shell, too, had an interest in the garage. They supplied all the petrol and oil for it.
But neither the county council nor Shell-Mex had any immediate use for their pieces of land. So they did not put up any fences. The Wallis's having bought the farm (through their family farming company) farmed it as before. Seeing that there were no fences, they cut the grass, not only on their own land, but also on the site of the proposed new road, and on the disputed land. They put their cattle out on to their own fields and let them stray on to the site of the proposed new road and on to the disputed land. (In one subsequent year they even ploughed up the fields and cropped them with wheat.) They got a licence to do all this - on the site of the proposed new road - from the county council. But they did not ask Shell-Mex for a licence for the disputed land. They just treated it as if it was their own. Indeed they came to think it was their own.
That went on for 10 years from April 1961 to 1971. Then the Wallis's (through their caravan company) took over the whole area. They treated it as if it was a playground for the holiday camp. They cut the grass, they collected litter, they put a football field on the proposed new road, they used the disputed land as a visual frontage amenity for their holiday camp, they painted the old outer fence (next to the main road) white, like the other outer fences of the camp.
But 12 years had not yet elapsed. After only 11 years, in 1972, the county council abandoned their proposals for a new road. So Shell-Mex revised their plans. They thought they would not want the disputed land. It was surplus to their requirements. So they decided to sell it. On October 20, 1972, the secretary to Shell-Mex wrote this letter to Wallis's:
"I have pleasure in enclosing a plan showing, edged red, an area of land owned by this company and adjoining your own property which is surplus to requirements.
"I should be pleased to learn whether your company would be interested in purchasing the land, and, if so, to receive your best offer for consideration."
They enclosed with that letter a plan which clearly showed the disputed land (1.33 acres) and that it was owned by Shell-Mex.
On receiving that letter, Wallis's went to their solicitor and received legal advice. We do not know what that advice was. But it is easy to guess. The solicitor looked up the deeds and told Wallis's that on the title deeds the disputed land belonged to Shell-Mex and not to Wallis's. The solicitor also told them, so we may assume, that if they remained in possession for 12 years, they might get a squatter's title. At any rate, as a result of the lawyer's advice, Wallis's did not reply to the letter from Shell-Mex.
On December 14, 1972, Shell-Mex wrote again. They asked for a reply to their earlier letter and wished to learn whether Wallis's would be interested in purchasing the land. Still Wallis's did not reply. The 12 years had not yet run. On April 5, 1973, Shell-Mex wrote again on the same terms. Still no reply. There were then only nine days to go to complete the 12 years. These nine days passed before Shell-Mex got wise to what was happening.
Two months later, in June 1973, Shell-Mex began to wonder what Wallis's were up to. They smelt a rat. They took action. Out it came. So on June 27, 1973, they begun to fence off their boundary on the disputed land. On the very next day, Wallis's came at last into the open. Their solicitor wrote claiming the disputed land. He said that his clients "have a possessory title to the same."
If this contention be right, Wallis's have done exceedingly well by not replying to the letters. They have acquired this valuable strip of land -next the main road - for nothing. It is now worth over £8,000. Yet by lying low since October 1972 they have acquired an absolute title to it -when they knew perfectly well that it did not belong to them, but belonged to Shell-Mex. The judge put it neatly when he said:
"I cannot believe they were too busy to answer and on balance of probabilities can only conclude they were playing for time to sit out the final months of the 12-year period."
The judge rejected Wallis's claim to the land. Wallis's appeal to this court.
Wallis's stake their claim on actual possession for 12 years. They farmed the land as their own for 10 years and used it as their own for another two years. They say that Shell-Mex ought to have brought an action for possession during those 12 years: and that not having done so, Shell-Mex are barred: and Wallis's have a possessory title under the Limitation Act 1939.
There is a fundamental error in that argument. Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession 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 temporary 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 (1879) 5 Ex.D. 264; Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159; and Tecbild Ltd. v. Chamberlain (1969) 20 P. & C.R. 633. 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, knowing 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 1939. They do not amount to adverse possession: see Cobb v. Lane [1952] 1 T.L.R. 1037; British Railways Board v. G. J. Holdings Ltd., March 25, 1974; Bar Library Transcript No. 81 of 1974 in this court.
Take this very case. In October 1972, Shell-Mex wrote to Wallis's asking them if they would like to buy this land. If Wallis's had written back in October 1972, as any good neighbour would: "we know it is your land but do you mind if we go on using it until you want it" Shell-Mex would have replied: "Of course, we don't mind. You can use it until we sell it." The subsequent user would be by licence. Wallis's would get no title. Or if Wallis's had written back the truth, and said: "We know it is your land but we are going to use it for another six months so as to oust you and get a possessory title" Shell-Mex would at once have put up a fence and stopped them acquiring a title. But Wallis's simply did not reply at all. I cannot think that Wallis's can get a good title by deliberately not replying to letters. By not replying, they put themselves in the wrong. Even if they were in possession for 12 years, a court of equity would not allow them to enforce their strict rights under the Limitation Act 1939. There is a broad principle of equity dating back for at least 100 years that where a person, by his words or conduct, leads another to believe that his strict rights at law will not be enforced - and the other acts on it - the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have taken place between the parties: see Hughes v. Metropolitan Railway Co. (1877) 2 App.Cas. 439, 448, per Lord Cairns L.C. That principle carries out the very object for which equity was first introduced - to mitigate the rigours of the law. It has been applied in recent years so as to preclude a party to a contract from enforcing his strict rights under it: see Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130. I see no reason why it should not be applied so as to preclude a squatter from enforcing his strict rights under the Limitation Act 1939. By not replying to the letters Wallis's were plainly doing wrong. They were deliberately trespassing on the land of Shell-Mex - lying low and saying nothing - so as to acquire a title for themselves. They knew full well that it was not their land. Yet they seek to take advantage of their own wrong to say that it is now their land. The judge would not allow them to do this. He said that it was "contrary to equity and natural justice." I agree with him. I would dismiss this appeal.
STAMP L.J. Had you in April 1961 passed along the main road from Scarborough to Filey known as the A165 you would as you went through the Parish of Cayton have come to a large caravan site to your right on the southern side of the main road. It belonged to the plaintiffs. You would have then come to a garage, still on your right, called the Killerby Garage situate on a more or less rectangular site about 150 feet in depth from the main road. Beyond the garage, still on your right, there was a fence dividing the main road from the fields beyond it. This fence continued, with a gap where a farm road joined the main road, to a length of about 1, 200 feet and the two fields beyond it might accurately have been described as "having a frontage to the Scarborough-Filey High Road." There were the two fields having a frontage to the road divided from each other at a point some 396 feet from the garage boundary by a fence and farm road - a stone fence I think but it does not matter - running at right angles to the road. The first of these fields was within O.S. No. 194 on the 1923 Ordnance Survey Sheet for Yorkshire (North Riding) and save that the garage site may also have been part of that O.S. number, formed the whole of that O.S. No. 194. At the point at which the two fields were divided (the second of which comprised O.S. No. 196) there was the farm road going to the house which, as I understand it, was the Farm House of High Killerby Farm. It is common ground that by far the greater part of both these fields were part and parcel of High Killerby Farm to which the plaintiffs are entitled.
On January 17, 1961, the plaintiffs entered into a contract for the purchase from a Mr. Samuel Herbert Brown, described in the contract as of High Killerby Farm, of that farm. The property so agreed to be purchased was described in the contract as
"all that dwelling house farm buildings farm cottages and land situate at Cayton Bay near Scarborough in the North Riding of the County of York and known as High Killerby Farm, Cayton Bay aforesaid and now in the occupation of the vendor which said property contains in the whole 106 acres or thereabouts. . .."
The purchase price for the land was £32,130 - something over £300 per acre - £1,000 was payable in respect of the tenant right and £6,800 for disturbance. So the plaintiffs paid just under £40,000 for the 106 acres.
The contract was completed by a conveyance dated April 14, 1961, whereby Brown, in consideration of £35,700, conveyed to the plaintiffs
"all that private dwelling house and farm house and farm buildings with the several outbuildings and the closes or pieces of land known as High Killerby Farm situate in the Parish of Cayton . . . having a frontage to the Scarborough-Filey High Road and containing in the whole 107.562 acres or thereabouts and which premises are more particularly described in the Schedule hereto and more particularly delineated in the plan annexed hereto. . ."
Had one incautiously read that description without referring to the plan one might have thought that the whole of the two fields to which I have referred, which did have a frontage to the Scarborough-Filey High Road and which to all appearance formed part of High Killerby Farm, were included in the conveyance.
The plan showed quite clearly that this was not so. There was a plan to construct a roadway behind the Killerby Garage running parallel to the Scarborough-Filey High Road and across the two fields on O.S. Nos. 194 and 196. The strip of land being the site of the projected roadway, which I should say at once has not in fact been constructed, had, as the plan on the conveyance showed, been conveyed to the North Riding County Council in 1950. The plan also showed that the part of the field O.S. No. 196, lying between the site of the proposed new roadway and the Scarborough-Filey High Road was included in the conveyance, but that the part of the field on O.S. No. 194 lying between the site of the proposed new roadway and the High Road to which it had a frontage - a rectangular piece of land of a length of about 396 feet and a depth of about 143 feet - was not included.
It is not difficult, in view of the facts I have recounted, to understand that, as the county court judge found, the plaintiffs believed that they were the owners of the last-mentioned piece of land (which I will call "the disputed land") having an area of about one and one-third acres. From about April 1961 until October 20, 1972, when the defendants wrote a letter offering to sell it to them, they treated it as theirs. They had had some kind of permission - its nature does not matter - from the highway authority, to use the strip of land destined to be a road, and they treated the whole of the two fields as if they were their own. There were no fences or other markings either bounding the site of the roadway or marking any division between the disputed land and the site of the roadway. From April 1961 until July 1973, there was nothing on the ground to show that field O.S. No. 194 was otherwise than a single unit. The disputed land remained fenced against the High Road and there was no access to it except over the plaintiffs' land, or the garage site.
There was a farming company called Noel Wallis & Sons Ltd., which the judge described as the plaintiffs' farming company, which took over the farm in April 1961, and paid therefor an annual sum of £3 per acre at first, later rising to £5 per acre. From May 1961 onwards until 1971 the disputed land together with the other land forming part of field O.S. No. 194 was cut for hay and silage, young stock was grazed on it and the farming company repaired the fences, cut the hedges and cleaned the ditches. It was kept mainly down to grass but one year it was ploughed out and cropped with wheat. From 1971 until June 27, 1973, the farming activities came to an end and during that period the plaintiffs cut the grass, painted the fences white (including part of the fence between the disputed land and the High Road), collected the litter and used the disputed land as what was described as a visual frontage amenity for their holiday camp.
The judge found - and I do not think on the evidence before him he could have done otherwise - that he was satisfied that the plaintiffs had been in de facto possession of the disputed land from April/May 1961 to June 27, 1973 - "two months at the most over the 12-year period." The farming company or the plaintiffs were, so it appears to me, as much in possession of the disputed land as they were of the rest of field O.S. No. 194 and the other fields on their farm of which they were the undisputed owners. Their occupation and use of the land was continuous, exclusive of the true owners and was exercised with the animus possidendi of an owner: see Convey v. Regan [1952] I.R. 56; Littledale v. Liverpool College [1900] 1 Ch. 19.
Nevertheless, it is contended that the defendants were throughout in possession of the disputed land. They were, so it is said, never dispossessed or, if they were, the possession of the plaintiffs was interrupted by the letter dated October 20, 1972, to which I have referred. And so I turn to consider the defendants' position in relation to the disputed land.
The same Samuel Herbert Brown who conveyed the farm to the plaintiffs in April 1961 had, by a conveyance dated November 20, 1957, conveyed the disputed land to the then owner of the Killerby Garage, one George Glen Avis, and at the date of the conveyance to the plaintiffs on April 14, 1961, Avis was the owner of the disputed land. About five months later [on September 19, 1961] Avis conveyed the disputed land to the defendants, Shell-Mex and B.P. Ltd. From April 13, 1961, until June 27, 1973, neither Avis nor the defendants is shown to have done any physical act in relation to the disputed land. No representative of theirs came upon the land to mark off its boundaries or stepped upon it. No gap was made in the fence to enable the defendants' agents or servants to enter upon the land which they had purchased.
Were it not for the two decisions of this court which I will have to consider I would be content to leave the matter there, holding that on the facts which I have related the plaintiffs or the farming company were throughout for upwards of 12 years in possession and enjoyment of the land not only, as the judge called it, de facto but also within the meaning of the Limitation Act 1939. De facto possession is what the statute is about, and there were in my judgment facts upon which the judge could properly find, as he did, that the plaintiff company was in de facto possession for the full period of 12 years. Possession cannot be divided and if the plaintiffs or the farming company was in possession, the defendants were not.
The county court judge, however, found that the defendants' intention in purchasing the land was to extend the garage filling station once the new road was constructed; and, as I understand it, the submission that the defendants were for the purposes of the Limitation Act 1939 never out of possession rests upon that foundation. Since the defendants did not acquire the land until after May 1961, it is not clear to me how the existence of that intention could operate to put the defendants into possession of the land they bought; but I am prepared to assume that Avis had that same intention.
There are passages in the judgments in Leigh v. Jack, 5 Ex.D. 264, and cases which followed it which, taken out of their context, might lead to the conclusion that where an owner of land has acquired it for a particular purpose and does not immediately require it for that purpose, he is not, so long as that intention remains in existence and cannot be carried into effect, to be taken, as against a squatter, to be out of possession of the land for the purposes of the statute.
I agree, however, with counsel on behalf of the plaintiffs that to understand the judgments in Leigh v. Jack it is necessary to call attention to the facts of that case. The period of limitation was then 20 years and the plaintiff brought his action against the squatting defendant in April 1876. In 1854 Leigh conveyed to Jack a piece of land in a township lying to the south of Grundy Street and to the west of a triangular piece of land called "Napier Place." Grundy Street and Napier Place were portions of waste land belonging to Leigh which he had contemplated dedicating to the public as streets. Leigh in 1857 conveyed the land to the north of Grundy Street to the Mersey Dock Trustees. The northern boundary of Grundy Street was fenced off. From 1854 down to 1872, Jack, by placing a quantity of waste from his foundry - old graving dock materials, screw propellers and boilers and other refuse - rendered the surface of Grundy Street and Napier Place, which were, as the court held on the construction of the deeds, Leigh's property, impassable for horses and carts. In 1865 (less than 20 years before action brought) Jack enclosed part of Grundy Street and in 1872 enclosed the rest of it and Napier Place. It is to be noted first that there the disputed land was waste land which could not be put to any beneficial use by Leigh, second, that there was no enclosure by Jack until less than 20 years before action brought, third, that the facts relied on by Jack as constituting possession were the placing of his waste materials on the disputed land and that in this regard Cockburn C.J. took the view that these acts were those of a man who did not intend to be a trespasser or to infringe upon another's rights. "The defendant," he said at p. 271, "simply used the land until the time should come for carrying out the object originally contemplated." The facts were thus widely different from those in the present case. Here the disputed land was throughout the 12-year period enclosed. Here the disputed land was not waste land but land which the owner could, as did the North Riding County Council, in respect of their strip of fields O.S. Nos. 194 and 196, obtain payment for its use as part of field 194. Here the acts relied on are not the mere dumping of waste materials. Here, unlike the case of Leigh v. Jack, the disputed land was occupied as of right and with animus possidendi.
It was in the context of the facts of that case that Bramwell L.J. in Leigh v. Jack made the remarks on which so much reliance is placed by the defendants in this case. He said, at p. 273:
"I do not think that 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 former 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. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment."
Cockburn C.J., as I have already indicated, took a similar view, remarking, at p. 271: "If a man does not use his land, . . . he does not necessarily discontinue possession of it."
The facts in Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159, which followed Leigh v. Jack, 5 Ex.D. 264, were also widely different from those in the instant case. Williams Brothers bought some land at Edmonton in 1937. They put up a row of shops with maisonettes above them. At the back of the shops they made a roadway and between the roadway and the remaining land they put up a fence. They intended to develop the land at the rear but the outbreak of war interrupted their plans. In 1940, one Heydon during the "dig for victory campaign" marked out with a line of bricks and cultivated a patch of land which was not adjacent to nor part of any land of his and was 13 feet wide and 110 feet long. Others did the same thing, some with permission of Williams Brothers. Raftery in 1943 took the place of Heydon. He occupied a maisonette in the block and he thought he was entitled in right of this occupation to use the little strip of land.
He put in shrubs and bulbs. Two of his neighbours gave up in 1947, but he continued to grow potatoes. Then in 1949 when the place had become overrun with weeds he went in for greyhounds, first putting up a shelter, and later built sheds and a fence to beep the dogs in. He said in his evidence (see p. 162): "Not trying to take over land, not really. Exercising rights I thought I had as tenant of these premises . . . I did nothing to keep the plaintiffs off."
It was held first (accepting the conclusion of the judge in the court below) that the plaintiffs had not "discontinued" their possession, Hodson L.J. taking this view that they had done all that they could do in the circumstances (see p. 167), being landlords who intended to use the land for no other purpose than to develop it, and who had been prevented by circumstances hitherto from so doing. Morris L.J. taking the same view called attention at p. 171 to the fact that in 1953 the plaintiffs had actually dumped "some rubbish, on the land, which they were saying was their land" and that it had been pointed out in Leigh v. Jack that the smallest act was sufficient to negative a discontinuance. It was held, second, that there was no evidence on which the judge in the could below could properly find that the defendant had dispossessed the plaintiffs. Applying the test laid down in Leigh v. Jack, Hodson L.J. said, at p. 169:
"I cannot see that any act which the defendant did is capable of being treated as sufficient to dispossess 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, so far as I know, had any intention, nor claimed any intention, of asserting any right to the possession of this piece of ground."
Hodson L.J. said he would have left the matter there but for Marshall v. Taylor [1895] 1 Ch. 641 which had been relied on by the judge; and after referring to the facts of that case he continued, at p. 170:
"I think it is sufficient, to distinguish this case, to point out that in that case the defendant had completely enclosed the property in question by a hedge and made it entirely part of his garden, which was a property of the same kind and of the same nature as the garden of the plaintiff alongside. The plaintiff was excluded from access to the defendant's garden unless he had chosen, as Lord Halsbury pointed out [1895] 1 Ch. 641, 645, to creep through the hedge; whereas in this case there was nothing of the kind. No attempt was made by the defendant here to fence off his piece of ground so as to exclude anyone from it; all he did was to work the ground in the period before the sheds were built, and in 1949, within the 12-year period, be put up these sheds which have been, in the end, the reason why this action has been brought."
Morris L.J. also thought that the evidence showed that there was user of the land, but not user amounting to dispossession (see p. 173).
Reading the judgments in Leigh v. Jack, 5 Ex.D. 264, and Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159, I conclude that they establish that in order to determine whether the acts of user do or do not amount to dispossession of the owner the character of the land, the nature of the acts done upon it and the intention of the squatter fall to be considered. Where the land is waste land and the true owner cannot and does not for the time being use it for the purpose for which he acquired it, one may more readily conclude that the acts done on the waste land do not amount to dispossession of the owner. But I find it impossible to regard those cases as establishing that so long as the true owner cannot use his land for the purpose for which he acquired it the acts done by the squatter do not amount to possession of the land. One must look at the facts and circumstances and determine whether what has been done in relation to the land constitutes possession.
One of the facts that distinguishes this case from those cases is the fact that here, as in Marshall v. Taylor [1895] 1 Ch. 641, the property in question was enclosed, and, to apply the words used by Hodson L.J. in Williams Brothers Direct Supply Ltd. v. Raftery, at p. 170, made "entirely part" of the squatter's field or farm. The defendants were excluded from access to it unless one of their representatives had, as Lord Halsbury pointed out in Marshall v. Taylor, chosen to creep through the hedge or fence, whereas in Leigh v. Jack, 5 Ex.D. 264, and Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159 there was nothing of the kind. Here the land was not waste land. Here it was land believed by the plaintiffs to be owned by them, occupied as of right and with the necessary animus possidendi.
Nor in my judgment does Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633 take the matter any further. As Sachs L.J. remarked in that case, at p. 641, "each case naturally depends on the nature of the land in issue and the circumstances in which it is held," while Cairns L.J. described the use of the land, at p. 646, "as trivial acts of trespass." It is the undoubted fact as pointed out by Lord Denning M.R. that acts done under licence do not amount to adverse possession, but here I can detect no licence.
Holding, as I do, that, immediately prior to the writing of the letter by the defendants offering to sell the disputed land, the plaintiffs were in possession of it, did the writing of that letter operate to interrupt that possession? I think not. So to hold would in my judgment be to fly in the face of authority.
Pennycuick J. in Bligh v. Martin [1968] 1 W.L.R. 804, 812 I think summarised the law correctly, when, discussing a contention that whenever the true owner puts foot on the land in the possession of another then he is to be treated as having taken possession so that adverse possession ceases, he said that in the ordinary case of adverse possession one has to find that "the true owner took possession in the ordinary sense of that word, to the exclusion of the wrongful occupier." See also, e.g., Doe d. Baker v. Coombes (1850) 9 C.B. 714. Once a wrongdoer is in possession a claim by the true owner that he is the rightful owner unaccompanied by the retaking of possession does not operate to interrupt the wrongdoer's possession.
It was faintly argued that when in 1971 the farming company's occupation gave way to that of the plaintiffs there was a break in the adverse possession which operated as an interruption and prevented the statute from running in favour of the plaintiffs. In face of the passages from Megarry and Wade, The Law of Real Property, 3rd ed. (1966), pp. 1006 and 1007, which I have always understood to state the law, this submission was not pursued. If a squatter who has been in possession for less than the full statutory period transfers the land, he can give the transferee a right to the land which is as good as his own and the latter can add the former's period of possession to his own. It is for this reason that I have not thought it necessary to consider whether during the first 10 years the possession was that of the plaintiffs or the farming company.
There was in my judgment ample evidence upon which the county court judge could properly find as a fact that the plaintiffs (or the farming company) were in de facto possession of the disputed land for the full 12-year period and he was, in my view, in coming to his further conclusion, misled by his understanding of the true effect of Leigh v. Jack, 5 Ex.D. 264, and Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159.
Some hard things have been said regarding the failure of the plaintiffs to answer the letters of October 20 and December 14, 1972, and that of April 5, 1973, and I accept the implication that having looked at their title deeds and discovering for the first time that the disputed land had not been conveyed to them, they hoped that the full statutory period of 12 years would run before the defendants brought an action or moved in and expelled them. I am, however, not wholly without sympathy for a party who having had in the full light of day the full and exclusive use of property for some 11 1/2 years in the belief that it was his, discovers that another has a lawful claim to it. Had the full period of 12 years elapsed before the letter of October 20 was written it could hardly have been suggested that the plaintiffs were acting inequitably in relying on a statute designed by Parliament to confer a good title upon them. And whatever may be said about their conduct I cannot see that it was more inequitable than that of any defendant in an action for tort or breach of contract who lies low or plays for time in the hope that the appropriate limitation period will expire before action brought: a course which, however reprehensible, is adopted very often.
We know not all the circumstances giving rise to the belief of the plaintiffs that they had purchased the disputed land. It cannot, however, be doubted that if, when the defendants did purchase it, they had taken the elementary step of inspecting it and insisted either on marking out its boundary or on some acknowledgement of its rights in the form of some, perhaps trivial, annual payment, the plaintiffs would have then appreciated the mistake. And it may be - I do not suggest for the moment that it was so - that the plaintiffs would then have had some action, now long since statute barred, against one of those who advised in relation to its purchase.
But however reprehensible you may characterise the conduct of the plaintiffs, I cannot share the view either that the plaintiffs are to be regarded as getting a good title by not replying to the letter or that their failure or refusal to do so led the defendants to believe that the plaintiffs would not rely on the Statute of Limitations. It was not in my judgment because they failed to reply to the letter that they got a good title but because they remained in possesion until the end of the statutory period of limitation. I cannot accept that the plaintiffs' silence raised any equity in the defendants such as to preclude the plaintiffs from setting up the statute. No such equity was pleaded or relied upon in argument.
I would allow the appeal.
ORMROD L.J. The essential facts out of which this appeal arises are as follows. In 1957 High Killerby Farm was owned by Mr. Brown. The farm was situated on the Yorkshire coast, adjoining the main road between Scarborough and Filey. In November 1957, Mr. Brown sold a strip of his land, amounting to about 1.33 acres, with a frontage of about 396 feet along the main road to a Mr. Avis who at that time owned the Killerby Garage which adjoined one end of the strip. In April 1961, Mr. Brown sold the remainder of the farm to the plaintiffs who were developing a large holiday camp to the north and west of the farm. Mr. Avis had not taken any step to fence of or otherwise mark the strip of land which he had bought, which therefore appeared to be part of a pasture field belonging to the farm. The plaintiffs were, apparently, unaware that they had not purchased this strip of frontage to the main road: in other words, their solicitors had not informed them that this parcel of land had been excluded from the conveyance of the farm to them by Mr. Brown, although this appears plainly from the plan attached to the conveyance. In May 1961, the plaintiffs gave an agricultural licence to a subsidiary company of theirs, Noel Wallis & Sons Ltd., to farm the land, and, thereafter, this company carried out normal farming operations on the High Killerby land, and on the strip belonging to Mr. Avis, treating it as part and parcel of the farm, as it appeared to be. On September 19, 1961, Avis sold the strip to the defendants, Shell-Mex Ltd., but no step was taken to fence off this land which continued to be used by Noel Wallis & Sons Ltd. for farming purposes up to 1971 when their licence to farm High Killerby Farm and the strip which is the land in issue in this appeal was terminated by the plaintiffs. Thereafter the farm and the disputed land was occupied by the plaintiffs who used the strip as "a visual frontage amenity for the holiday camp," which means that they left it as a grass space in front of their other premises. No action was taken by the defendants in relation to this land until October 20, 1972, when they wrote to the plaintiffs offering to sell it to them. No reply was made to this letter and the defendants wrote again on December 14, 1972, repeating the offer. Again the plaintiffs made no reply although there was a meeting between representatives of the two companies in January 1973. Later, in June 1973, the defendants fenced off the disputed land and the plaintiffs wrote demanding the removal of the fence and claiming ownership of the land under a possessory title, relying on the Limitation Act 1939, section 16.
There is one other important fact which provides an explanation for much in this case. At some time before the conveyance of the farm to the plaintiffs, the North Riding County Council had decided to construct a new road, parallel to, but set some way back from, the existing main road, leaving a strip of land between the existing and the proposed roads. This was the strip originally purchased by Avis and later sold by him to the defendants. It was, obviously, an ideal site for a filling station or garage, providing a frontage to both roads. Hence its attraction to the defendants and their willingness to pay £5,500 for it. This is, of course, the disputed land. The plaintiffs bought the farm with knowledge of the interest of the North Riding County Council. In the event, however, the county council did not proceed with their plans to construct the new road and their strip remained unaltered and unfenced. Sometime in about 1961 they granted a licence to the plaintiffs to farm it together with the rest of the High Killerby land. In the result, therefore, the appearances of the land remained unchanged, apparently an undivided, unaltered pasture field forming part of the farm land belonging to Killerby Farm, whereas in fact it consisted of three separate holdings, the disputed land running along the main road, the North Riding County Council's strip immediately adjacent to that, and the rest of the field belonging to the plaintiffs.
The inference from these facts is quite plain. Both the plaintiffs and the defendants were interested in the development of this land but neither were ready to proceed with any development work, the defendants waiting for the new road to be constructed, the plaintiffs waiting until the opportune moment arrived to extend their holiday camp. In the meantime the sensible thing to do was to farm the land, although neither party were concerned with farm land as such. Accordingly, Noel Wallis & Sons Ltd. cut the grass over the whole area, turned out cattle to graze which were free to wander over the whole area comprising their land, the North Riding County Council land and the disputed land. On one or possibly more occasions they ploughed the whole area and saw to the fences and ditches when necessary.
The extent to which they actually used this land was not gone into in much detail in the court below but it is clear that they did not alter or interfere in any permanent or semi-permanent way with the land belonging to the defendants; they used it when it was convenient to them, as they used their own land and the strip belonging to the North Riding County Council.
In order to succeed in establishing a possessory title to the disputed land under the Limitation Act 1939, the plaintiffs had to prove that they had been in adverse possession of it for a continuous period of 12 years. Mr. Heath, for the plaintiffs, in his careful and helpful argument, referred the court to a number of cases under this section and its predecessors. He submitted that if he could establish that the plaintiffs had acquired possession of the disputed land in May 1961, the statute began to run in their favour and there was no evidence that their possession had been interrupted or terminated before the expiry of the 12-year period. This, he submitted, could only be achieved by the title holders resuming possession themselves, that is, by dispossessing the plaintiffs. In this context the offers to sell of October and December 1972, while a clear indication of assertion of ownership by the defendants, did not amount to dispossession of the plaintiffs. In support of this submission he relied on section 13 of the Act of 1939 which reads:
"For the purposes of this Act, no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon, and no continual or other claim upon or near any land shall preserve any right of action td recover the land."
He also referred to Doe d. Baker v. Coombes, 9 C.B. 714, in which it was held that a trespasser who had enclosed a part of the manorial waste and built himself a hut upon it more than 20 years earlier, had not been dispossessed by the lord of the manor who, in order to assert his ownership, had entered on the land with his steward in the absence of the trespasser himself and removed a stone from the hut and part of the enclosing fence. Cresswell J. said, at p. 718, that "from a feeling of kindness to the incroacher," the lord had "abstained from doing enough to secure his rights. " In my judgment, Mr. Heath's submission on this part of the case is right. The letters of October and December 1972, offering to sell the disputed land to the plaintiffs while providing them with an opportunity to behave with normal commercial decency, an opportunity which they, acting, we are informed, on legal advice, chose to ignore, in the hope that nine months or so would slip quietly past so that they could then pop up and confront the defendants with a possessory title and obtain the land for themselves without paying anything for it, are not enough to amount to a dispossession.
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 1939, section 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 authorities is that the courts have always been reluctant to allow an incroacher or squatter to acquire a good title to land against the true owner, and have interpreted the word "possession" in this context very narrowly. It is said to be a question of fact depending on all the particular circumstances of the case (Bligh v. Martin [1968] 1 W. L.R. 804) but, to the relatively untutored eye, it has acquired all the appearances of a difficult question of law.
The general principle appears to be that, until the contrary is proved, possession in law follows the right to possess. Kynoch Ltd. v. Rowlands [1912] 1 Ch. 527, 534. Lindley M.R. in Littledale v. Liverpool College [1900] 1 Ch. 19, 21 put it in these words:
"In order to acquire by the Statute of Limitations a title to land which has a known owner, that owner must have lost his right ta the land either by being dispossessed of it or by having discontinued his possession of it: . . ."
The same point was made by Bramwell L.J. in Leigh v. Jack, 5 Ex.D. 264, 272, where he said, referring to the Statute of Limitations: "Two things appear to be contemplated by that enactment, dispossession and discontinuance of possession." If this is the right way to approach the problem, the question becomes "Has the claimant proved that the title holder has been dispossessed, or has discontinued his possession, of the land in question for the statutory period?" rather than "Has the claimant proved that he (through himself or others on whose possession he can rely) been in possession for the requisite number of years?" It certainly makes it easier to understand the authorities if one adopts the first formulation.
Discontinuance cannot be relied on in this case because, as Bramwell L.J. went on to say in Leigh v.Jack, at p. 272: "the smallest act would be sufficient to show that there was no discontinuance." The letters offering to sell the land must, in my judgment, be sufficient for this purpose. Moreover, mere non-user does not amount to discontinuance of possession: Littledale v. Liverpool College [1900] 1 Ch. 19, 22 and Leigh v. Jack, 5 Ex. D. 264, 271.
The next question, therefore, is what constitutes dispossession of the proprietor. Bramwell L.J. in Leigh v. Jack, said, at p. 273, that to defeat a title by dispossessing the former owner "acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it." In that case, Jack, who owned a foundry on adjacent land, had dumped large quantities of scrap and refuse for many years on a strip of land belonging to Mrs. Leigh, obstructing it and occupying it more or less completely. But Mrs. Leigh had no use for the land herself and intended eventually to dedicate it to the public as a street. It was held that she had not been dispossessed of the land by Jack.
In Lord Advocate v. Lord Lovat (1880) 5 App.Cas. 273, 288, Lord O'Hagan said that possession
"must be considered in every case with reference to the peculiar circumstances. . . . The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, . . . are to be taken into account in determining the sufficiency of a possession."
This passage was cited with approval by Lord Macnaghten in Johnson v. O'Neill [1911] A.C. 552, 583 and by Lord Shaw of Dunfermline in Kirbey v. Cowderoy [1912] A.C. 599, 603.
In my judgment, when the land in question is being held primarily for its development potential, the most important of the phrases used by Lord O' Hagan in this passage is that in which he refers to "the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests." This appears clearly from the judgments of this court in Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159, in which Morris L.J., at p. 173, said that it was:
"impossible to say that there was actual possession in the defendant of a nature that ousted the plaintiffs from possession, or excluded them from possession: there was no intention on the plaintiffs' part to do other than keep the land until they could use it, . . ."
It was land waiting to be developed when the time was opportune. In the same case Sellers L.J. said, at p. 173:
"The true owners can, in the circumstances, make no immediate use of the land, and as the years go by I cannot accept that they would lose their rights as owners merely by reason of trivial acts of trespass or user which in no way would interfere with a contemplated subsequent user."
Triviality is relative. The same act or acts of trespass may be highly significant to the owner of a house and garden, yet utterly trivial to a property developer or an industrialist who has no immediate use for the land affected. Thus in Kynoch Ltd. v. Rowlands [1912] 1 Ch. 527, the trespass relied upon was insignificant to the true owners and they were justified in taking no action to restrain it. In Leigh v. Jack, 5 Ex.D. 264, viewed in isolation, the trespass was massive, yet it in no way prejudiced the purposes which Mrs. Leigh had in mind for her land. Similarly, in Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159, Raftery's trespass amounted to a virtual occupation of the strip of land in question, but it in no way affected the owners' practical as opposed to their legal, interests in the property. 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.
I can find nothing inconsistent with this view in the cases in which the claim to a possessory title has succeeded. In Seddon v. Smith (1877) 36 L.T. 168 the claimant had farmed a strip of land over which he had only a right of way, for over 20 years, and the lord of the manor stood by and did nothing. The case was tried by a jury who found adverse possession. The only question for the Court of Appeal was whether there was evidence on which they could so find, and the court held that there was. In Norton v. London and North Western Railway Co. (1879) 13 Ch.D. 268, Malins V.-C. had found that the defendants had abandoned the land in question. That meant in James L.J.'s words, at p. 273:
"not merely that they had no occasion for the time to make, and therefore did not make, any beneficial or practical use of it, but that they abandoned the actual and legal possession of it to the occupiers, . . ."
Marshall v. Taylor [1895] 1 Ch. 641 was another case of discontinuance or abandonment of possession by the proprietors, rather than of dispossession. It was another example of the owner planting a hedge near his boundary, leaving a strip of land belonging to him on the other side for which he had no use. In this case, he effectively cut himself off from the strip, his only means of getting to it being to go through the hedge. If, however, it is to be regarded as a case of dispossession, the defendant, the owner of the adjoining land, literally incorporated the strip into his own garden, paving part of it, laying cinders on part of it and planting rose trees on another part. His trespass effectually prevented the plaintiff from using the land in any foreseeable way. The latest in this group of cases in Bligh v. Martin [1968] 1 W.L.R. 804, but in that case adverse possession was conceded and the case turned on the issue of re-possession by the proprietor.
Finally, in West Bank Estates Ltd. v. Arthur [1967] 1 A.C. 665, another land development case, in giving the opinion of the Privy Council, Lord Wilberforce, at p. 677, approved the approach of the trial judge who had concluded that the acts relied upon were "not inconsistent with the enjoyment of the land by the person entitled."
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 purposes 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 opposite conclusion might have been reached had the defendants been interested in using their land for purposes which would have been interfered with by such user as the plaintiffs actually made of it, or if the plaintiffs had built chalets or other structures upon the land which might have jeopardised the proposed development as a filling station or garage.
There is one other point to which little attention seems to have been paid. Proof of possession for the requisite period in this case involves proof of dispossession of Mr. Avis, for he owned the land between May and September 1961, and the plaintiffs must rely on this period as part of their 12 years. There was little or no evidence referable to this period except that the plaintiff cut the grass in May 1961, and some of their cattle may have wandered on to the land for grazing during this period. It would be difficult on any view to hold that this amounted to proof of dispossession of Mr. Avis.
For these reasons I hold that this appeal fails and should be dismissed.
ORDER
Appeal dismissed with costs.
Leave to appeal granted.
SOLICITORS
Solicitors: A. F. and R. W. Tweedie for Cook, Fowler & Outhet, Scarborough; Jaques & Co. for Bedwells, Scarborough.