The plaintiff’s predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being ‘bounded by’ Grundy Street and Napier Place, therefore the intention to use the adjoining land for streets was known to all parties. Within the 20-year limitation period, both Mr Leigh and the defendant had carried out work on a fence separating Grundy Street from other land of Mr Leigh, Regent Road. From 1854 onwards the defendant had placed on Grundy Street and Napier Place old graving dock materials, screw propellers, boilers and refuse from his foundry. In 1872 (four years before action brought) the defendant completely enclosed Grundy Street and Napier Place.
Held: The defendant had not acquired title to the enclosed land under the Limitation Act 1833.
Bramwell LJ said: ‘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.’
Cockburn CJ explained the rationale for the presumption: ‘It is presumed that those who were seised of the neighbouring land devoted the surface of their soil to the public, in order to confer a common benefit on all those desirous of using the highway, without, however, parting with the ownership of the soil itself.’
Bramwell LJ, Cockburn CJ
(1879) 5 Ex D 264, (1879-80) LR 5 Ex D 264,  UKLawRpExch 53
Limitation Act 1833
England and Wales
Applied – Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd CA 10-Jul-1974
A strip of land between a holiday camp and a garage had been conveyed as an intended roadway. It had not been fenced. A plot of land was sold by the previous farmer to the garage. Later the plaintiffs bought the farm, excluding the roadway, and the . .
Disapproved – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Disapproved – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Mayor and Burgesses of London Borough of Hounslow v Anne Minchinton CA 19-Mar-1997
The defendant asserted title to a strip of land by adverse possession. The judge had held that the occupation by the claimant had been insufficient to establish possession.
Held: The use of the land as a garden for compost heaps and similar . .
Heresy – Topplan Estates Ltd v David Townley CA 27-Oct-2004
The registered proprietor of land appealed a finding that the defendant had established adverse possession of their land. The claimant had occupied it as part of his farm. Originally there had been a grazing tenancy. The tenancy was terminated, and . .
Cited – Chambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2021; Ref: scu.180920