Neutral Citation No:  NICh 5
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Evidence before the court
Issues to be determined
(a) The test for making an order pursuant to Order 113
(b) The law relating to adverse possession
(c) Whether, on the evidence, the test for making an Order for possession under Order 113 is met.
Order 113 test
"There should be judgment for the plaintiff, if there is not a triable issue or some other reason why there ought to be a trial."
Similarly in Her Majesty's Principal Secretary of State for Communities and Local Government v Praxis Care  NI Chancery 5 Deeny J held at paragraph :
"The defendant must show an arguable case … that it has a right to remain on the land … It must be a genuine claim for possession and not a mere quibble."
"A desire to investigate alleged obscurities in the hope something will turn up on the investigation cannot separately or together amount to sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and micawberism."
The court therefore only needs to be satisfied there is an arguable case. Lord Diplock in American Cynamid v Ethicon  AC 396 in respect of the question whether there was a "serious question to be tried" stated as follows at page 407:
"…it is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to the facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which calls for detailed argument and mature consideration".
Adverse possession – relevant legal principles
"(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 prime 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. … The question what acts constitute 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 is commonly used or enjoyed. ... Everything must depend on the particular circumstances, 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, … 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 paper title … where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence of the trespasser, claiming that he has acquire possession, not only had the requisite intention to possession, 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 in not having dispossessed 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."
Further at page 476 he stated:
"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 evidence of the Plaintiff
The defendant's evidence
(a) She made a run for her dogs measuring 5 metres x 27 metres in the field shortly after she moved into her present home. This area was then subsequently enclosed when she moved the original rear fence and enclosed this area with a new fence.
(b) After she made a complaint, trees were removed from the field by a third party and she filled the holes left with hard core.
(c) She kept ponies in the field from before 2004 to date.
(d) She and Mr Ward carried out repairs to fences along the boundary of the field from 2004.
(e) She replaced a metal gate at the entrance to the lands at Martin's Lane. She also put a lock and chain on this gate.
(f) She erected temporary internal fencing consisting of plastic poles and rope to align up hedges from 2004.
(g) She cleared rubbish from the field since 2004.
Rejoinder evidence of the plaintiff
"work done on ground at Altnaveigh behind school. Cutting down trees removing scrub and levelling ground and reseeding."
(i) Taking her case at its height, I find, that she has not shown that she has been in occupation for a period of at least 12 years and
(ii) Having regard to the evidence, I am not satisfied that the acts carried out by Mrs Ward are sufficient to establish an arguable case that she was in factual possession of the field or that she had the necessary animus possidendi.
The 12 year period
"The above property had a wooden fence which ran parallel with the concrete yard to the boundary of the lands comprised within Folio 8353 … At the boundary of the property there were a number of large trees growing on the disputed lands whose branches reached over the wooden fence into the property. I was renting from the Northern Ireland Housing Executive. I cannot be certain above (sic) who removed the trees from the disputed lands but the same were removed following a complaint made by me regarding the intrusion caused by the large tree and the branches reaching over the wooden fence."
"Possession is indivisible we are told. It seems to me that [the squatter] cannot validly claim himself to be in adverse possession as against persons whom he actively requested to shoulder the responsibilities that possession has…"
Far from communicating to the true owner that she wanted to exclude him, Mrs Ward by her request indicated to the plaintiff that she treated the plaintiff as being in control of the field. I am therefore satisfied that Mrs Ward cannot establish an arguable case of adverse possession as paragraph 5 of her affidavit shows she lacked animus possidendi.
"Grazing of land by itself is equivocal. … In a number of cases the courts have considered mere grazing without other acts of possession as being insufficient to establish adverse possession. … In Powell v. McFarland the squatter at the start of the limitation period was a teenage boy, used the land to graze the family cow, took a hay crop and made rough and ready if widespread repairs to the boundary fence to make them stock proof and allowed a friend to tether a goat on the land. On occasions he shot pigeons and rabbits on the land. Slade J held that the squatter's use of the land had simply amounted to the taking of profits from the land:-
'These activities were 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 the paper owner and to occupy the land as his own property'."