LORD JUSTICE SLADE: This is an appeal by the Buckinghamshire County Council ("the Council") from a judgment of Hoffmann J. given on 19th February 1988, whereby he dismissed the claim by the Council to recover possession of a plot of land situated at Chenies Avenue, Amersham, Buckinghamshire ("the plot"). By a conveyance of 20th October 1955 the plot was conveyed to the Council, which indisputably still has the paper title to it. However, the learned judge held that Mr. Christopher Moran, the defendant to the action and respondent to this appeal, had been in adverse possession of it for more than twelve years before the proceedings were commenced on 28th October 1985, and that the Council's title to it had therefore been extinguished under sections 15 and 17 of the Limitation Act 1980.
I can take the primary facts of the case largely from the learned judge's judgment, where they are stated very clearly. The plot fronts on to Chenies Avenue, which runs from north to south. It is one of a number of plots of roughly equal size on the west side of the road. By 1955 houses had been built on the plots immediately to the north and south of the plot, but the plot itself remained vacant. The house immediately to the north was called Westward Way; the house immediately to the south was called Croft Edge. The Council acquired the plot for a proposed diversion of the A.404 road around Amersham, but it was contemplated that the construction of that road would not take place for many years. Meantime, the Council had no use for the land.
In 1955 there was a laurel hedge separating the plot from the garden of Croft Edge, a chain link fence and a privet hedge along the western boundary and a fence in poor condition with an old iron gate along the road frontage. There was no fence between the plot and Westward Way.
In 1962 the Council acquired Croft Edge also for the purposes of the proposed new road. It let the house to a tenant. At about the same time, Mr. Builith, the then owner of Westward Way, complained about the state of the fence on the road frontage to the plot. He said that children were using the plot as a playground and as a means of access to some recreation grounds beyond the western boundary and that they were causing him annoyance. In response to his complaint the Council put up a chestnut paling fence along the whole length of the road frontage and re-erected the gate at the road, which had fallen down. Mr. Wherry, the District Surveyor at the time, said in evidence that, when making inspections during the 1960's, he used occasionally to climb over the gate or fence; he thought that the gate was wired up, but not locked.
On 15th June 1965 Mr. Builith wrote another letter of complaint to the Council and suggested that the only solution was for the Council to fence off the plot completely from his garden. The Council, however, declined to do so. At about the same time, Mr. Builith built another house on the western side of his plot, which was Dolphin Place.
Early in 1966, Mr. Builith sold off Dolphin Place, together with most of the garden, to a Mr. and Mrs. Swabey. The southern boundary of their garden abutted the north boundary of the plot along the whole of its length. Mr. and Mrs. Swabey, in turn, conveyed Dolphin Place to a Mr. and Mrs. Wall. They took over the maintenance of the plot, mowing the grass, trimming the hedges and treating it as part of their garden. In August 1970 the Divisional Roads Surveyor noted in a memorandum to the County Surveyor that the plot was being cut and maintained in a tidy condition by Mr. Wall. Thereafter, the Road Surveyor's department, being spared the need to maintain the plot itself, did no more than inspect it regularly by looking over the fence from the road, usually from a car window. Mr. Wherry, who was responsible for these inspections in the 1960'sand early 1970's, said that so far as he knew no-one from the Council had gone upon the land since the late 1960's.
In 1971, Mr. and Mrs. Wall sold Dolphin Place to the defendant, Mr. Moran. The judge found that there had not been any substantial change in appearance of the house and garden since the time when Mr. Moran bought it. On inspection, he said, the plot would appear to be part of the garden enclosed on all sides except the north, where there is nothing to indicate any boundary between it and the garden contained within the paper title of Dolphin Place. He also found, however, that Mr. Moran was aware that the paper title to the plot was vested in the Council, and that the Council had acquired-the land in order to construct a road at some time in the future.
It seems fairly clear that at the time of his purchase of Dolphin Place, Mr. Moran and his legal advisers were well aware of the possibility that Mr. and Mrs. Wall had acquired, or were in the course of acquiring, a possessory title to the plot. They procured the making of a statutory declaration by Mr. and Mrs. Wall dated 15th July 1971, in which they said that since 1967 they had occupied the plot and cultivated it to the extent of tending and cutting the grass and trimming hedges and had from time to time parked a horse box on the plot. They said that no person had challenged their right to occupy it, and their permission had been requested for the laying of an electricity supply across it, by parties owning or occupying the tennis courts at the rear. The conveyance of Dolphin Place to the defendant dated 28th July 1971 was expressed to include not only the land comprised in the vendor's paper title, but also "all such estate, right, title and interest that the vendor's may have in or about the remaining part of the plot formerly numbered 206 as aforesaid" (that is, the plot).
Following the conveyance to him of Dolphin Place, the defendant took possession of that property and for the next eighteen months or so lived there with his mother, Mrs. Moran. After that time he moved out, but his mother has remained there ever since and he returns occasionally for week-ends and other visits. In argument on this appeal no reliance has been placed on the fact that since about 1973 the defendant has not been personally residing at Dolphin Place.
The defendant said in evidence that he thought t-hat the gate which the Council had re-erected in the early 1960's might have had a lock which had been placed upon it by Mr. Wall. Subject to this, the judge found that the state of the fences 'when the defendant bought the property was as has been described earlier in this judgment. Whether or not there was already a lock on the gate when the defendant bought the property, the judge accepted the defendant's evidence that when he moved in he bought a new lock and chain and fastened the gate; he also found that he kept the key: (see judgment at pp.4G and 7H-8A). The judge also found that since then there has been no access to the plot other than by climbing over the fences or through the hedges, except via the driveway of Chenies Avenue and through the garden of Dolphin Place.
In 1975 the local tennis club, whose courts lay over the boundary to the west of the plot, had a scheme for laying a drain which would be connected with the drainage arrangements of Dolphin Place. They applied to the Council for permission. As a result, the Council got in touch with the defendant. A telephone conversation took place between the defendant and Mr. Harris of the County Valuer's Department on 10th November 1975. Mr. Harris made an attendance note of that conversation which, so far as material, read as follows:
"Mr. Moran ..... discussed with [Mr. Harris] the use of the land immediately to the north of the property known as 'Croft Edge'. Mr. Moran indicated that he had been the owner of Dolphin Place for five years and that the land in question was incorporated within the garden of his property. He indicated that he had purchased the property from a Mr. Wall of Westward Way, in whose garden Dolphin Place was built. He stated that the previous owner had obtained a right to use the County Council land when Dolphin Place was built and that this right had been passed on to himself. He believed that the right to use this land had been arranged as part of the granting of planning permission for the erection of Dolphin Place. He also stated that he was of the opinion that he had first option to purchase the land if the road was not constructed. He believes that the County Council had asked the previous owners for permission to lay an electricity cable across the land. This was actually carried out by the Tennis Club. Mr. Moran requested details of the works proposed by the Tennis Club."
The defendant said in evidence that, while he did not remember this conversation, he had no reason to believe that it had not taken place. He did not accept some of the things which Mr. Harris recorded him as having said. The learned judge, however, thought it right to treat the attendance note as representing a substantially accurate account of the conversation and it has not been suggested that he was wrong to do so.
Correspondence between the defendant and the Council followed that telephone conversation. On 18th December 1975 the County Secretary and Solicitor wrote to the defendant a letter saying this:
"I understand from the County Valuer and Land Agent that you have been exercising certain rights over the Council's land shown coloured pink on the attached plan [the plot] and that you have laid this land to grass and planted trees thereon. Would you please let me know how long you have been exercising this right and also let me have a copy of the document granting you permission to use the same. The County Valuer and Land Agent informs me that you were going to send him a copy of the document granting you permission to use the land, but to date he has not heard from you. I await hearing from you as soon as possible."
Following a reminder the defendant, on 20th January 1976, wrote to the County Secretary and Solicitor a letter acknowledging the letter of 18th December 1975 and saying this:
"I enclose herewith a copy of the sale agreement between myself and Mr. G. Wall dated 28th July 1971, upon which I have marked the relevant part which I believe relates to the piece of land in question. I also enclose herewith, a copy of a signed statement regarding the piece of land, which I obtained from the Vendor at the time of the sale. You will notice from the Documents, that the previous owner laid the land to grass in April 1967 and ever since then either the previous owner or myself have occupied the land and it has therefore, been kept as part of the garden for the last eleven years. It was my understanding with Mr. Wall, that he had the right to this ground and that he only lost this right, if and when the Little Chalfont By-pass was built, so much so that as you can see I went to the trouble to get an extra declaration document from him. I notice your enclosed plan is to do with an Underground Cable and I believe that Mr. Wall was asked for and had given permission for this to be put under the land concerned. I do not know whether you know the property itself, but the piece of land concerned forms an integral part of the garden and the whole situation of the house itself, in fact, without it, the house I think, would be unbearable to live in. I would reiterate, that it has always been my firm understanding that the land should be kept by the owner of Dolphin Place, if and until the proposed Little Chalfont By-pass was built. Since the owner of Dolphin Place has been the occupier of the land for the last eleven years, I have never had any doubt as to the situation indeed many local functions, mainly Conservative Party ones, which local Councillors have attended, have been held there.
I have not discussed this matter with my Solicitor as yet and I await your reply before doing so."
After the defendant's signature, this letter appended the words "Without Prejudice".
On 3rd February 1976 the County Secretary and Solicitor wrote to the defendant acknowledging his letter of 20th January, and continued as follows:
"The Council purchased [the plot] in 1955, for an estate in fee simple. At no time since that date has the Council given any permission for the land to be used for any purpose whatsoever, except for the laying of an electricity cable by the Little Chalfont Sports Club. The Council totally disclaims your purported right to use the land, and admits that at no time have you been entitled to the use and occupation of the land.
I note your claim that the land has been kept as part of the garden of Dolphin Place for the last eleven years, but the statutory declaration made by Mr. and Mrs. Wall states that the land has only been used since 4th April 1967. This is, therefore, a period of nine years at the present time.
No doubt you will be consulting your Solicitor in this matter, and I await hearing from you further as soon as possible."
The defendant then consulted solicitors, who on 22nd March wrote a letter to the Council making a claim that he had acquired title to the plot by adverse possession, a claim which was debated in further correspondence during 1976.
However, the Council allowed a further nine years or so to elapse before it took any steps with a view to excluding the defendant from the plot. At last, on 28th October 1985, it issued proceedings seeking an order for possession and ancillary injunctions.
During the course of the trial a question arose as to the admissibility in evidence of the letter of 20th January 1976. The learned judge held that it was inadmissible in evidence on the basis that it was written "Without Prejudice". He gave his reasons in a short judgment on this point delivered in the course of the trial in which he said this:
"In the recent case of South Shropshire District Council v. Amos [1987] 1 All E.R. p. 340, Lord Justice Parker giving the judgment of the Court of Appeal said that the use of the words "without prejudice" prima facie meant that the letter was intended to be a part of negotiation. It would not of course be conclusive because it might be plain from the contents of the letter that it was not so intended and, in addition, the rule that "without prejudice" documents are inadmissible is qualified by, for example, the ruling in Re Daintree [1893] 2 Q.B. p.166, that a document which might prejudicially affect the recipient cannot be excluded from evidence.
The letter in question does not specifically propose any terms of settlement to the council but it is clear that Mr. Moran recognised that the council might be making claims adverse to those which he was putting forward and therefore that there was a possibility of dispute. That is, of course, confirmed by his statement that he might have to go to his solicitor.
The South Shropshire case also decided that a letter which purported to initiate some sort of negotiation ('an opening shot') is not necessarily excluded from the privilege. Negotiations have to begin somewhere. The question really is whether this letter contemplated any kind of negotiation at all. It did not, as I have said, put forward any offers or make any proposals of compromise. It merely stated what Mr. Moran, without yet having obtained legal advice, thought that his rights might be.
I do not think that a letter of that kind can be characterised as incapable of being a negotiating document. Looking at the public policy expressed in the privilege, it would seem to me advantageous that parties should, under cover of the privilege, be able to offer to discuss the case, not necessarily putting forward any immediate compromise terms for settlement but with a view to seeing whether either side can persuade the other that he is right. I think that that was what Mr. Moran was trying to do and I think it is clear from the last line of his letter that he was telling the council that, if as a result of this correspondence neither side could persuade the other, he would have to seek legal advice.
In my view, the prima facie inference that the document was intended to be a negotiating document which is derived from the 'without prejudice' label has not been displaced in this case and the document is therefore not admissible."
In his judgment on the substantive issue, the learned judge held in effect that the defendant had for more than 12 years before the institution of proceedings had sufficient physical control of the plot and sufficient animus possidendi to constitute possession in law and that such possession had been adverse within the meaning of the Limitation Act 1980 ("the 1980 Act"). He accordingly held that the defence based on sections 15 and 17 of the 1980 Act succeeded.
With the leave of the judge, the Council now appeals from his order made during the course of the trial whereby he held that the letter of 20th January 1976 written by the defendant to the Council was inadmissible in evidence. The Council further appeals from his judgment on the substantive issue relating to the 1980 Act.
The letter of 20th January 1976
In re Daintrey [1893] 2 QB 116 Vaughan Williams J., delivering the judgment of the court, stated the conditions for the application of the "without prejudice" rule as follows (at page 119):
"In our opinion the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist.
The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application."
If this statement represented the outer limits of the 'without prejudice' rule, there could be no question of its availing the defendant, since by his letter of 20th January 1976, he was not offering terms for the settlement of any dispute or negotiation subsisting between him and the Council. Later authorities, however, have expressed the principle in rather wider terms. This court in South Shropshire District Council v. Amos [1986] 1 W.L.R. 1271 held that privilege can attach to a document headed "without prejudice" even if it is merely an "opening shot" in negotiations. As Parker L.J. said (at pp.1277-1278):
"It attaches to all documents which are marked 'without prejudice' and form part of negotiations, whether or not they are themselves offers, unless the privilege is defeated on some other ground as was the case in In re Daintrey, Ex parte Holt [1893] 2 A.B.116."
More recently the House of Lords in Rush & Tomkins Ltd. v. G.L.C. [1988] 3 W.L.R. 939 has stated the general principle that the rule applies "to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence": (see at p.942 per Lord Griffiths).
I think the learned judge was right to regard the relevant question as being whether or not the letter of 20th January 1976 could properly be regarded as a negotiating document. But I respectfully disagree with his conclusion that it could. As the judge himself said, and as the letter itself indicated, the defendant was writing the letter in an attempt to persuade the Council that his case was well founded. As I read the letter, it amounted not to an offer to negotiate, but to an assertion of the defendant's rights, coupled with an intimation that he contemplated taking his solicitor's advice unless the Council replied in terms recognising his asserted rights. I cannot derive from the letter any indication, or at least any clear indication, of any willingness whatever to negotiate.
If, as is my view, the letter of 20th January 1976 cannot fairly and properly be read as an "opening shot" in negotiations, the attribution of the protection of "without prejudice" privilege to it would in my opinion go beyond the bounds of that privilege established by existing authority and would not in my opinion be justifiable. The public policy on which the privilege rests does not in my judgment justify giving protection to a letter which does not unequivocally indicate the writer's willingness to negotiate. Though I think this will make no difference to the result on the substantive issue, this head of appeal is in my judgment accordingly well founded.
The substantive issue
Section 15(1) of the Limitation Act 1980 provides:
"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."
Subject to certain irrelevant exceptions, section 17 of the 1980 Act provides for the extinction of a person's title to land after the expiration of the relevant time limit.
As is stated in section 15(6), Part I of Schedule 1 to the 1980 Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
Paragraph 1 of Schedule 1 provides:
"Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance."
It is clear that, under the 1980 Act as under the previous law, the person claiming a possessory title must show either (1) discontinuance by the paper owner followed by possession, or (2) dispossession (or, as it is sometimes called ouster") of the paper owner: (compare Treloar v. Nute [1976] 1 W.L.R. 1295 at p. 1300). "The difference between dispossession and the discontinuance of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed in by others": see per Fry J. in Rains v. Buxton [1880] 14 Ch.D.537 at p.539.
In the present case the learned judge found that the Council had never discontinued its possession of the plot, and this finding is not challenged on this appeal. The defendant's claim is that the Council had been dispossessed of the plot by him more than 12 years before it instituted its proceedings.
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"). A person claiming to have "dispossessed" another must similarly fulfil both these requirements. However, a further requirement which the alleged dispossessor claiming the benefit of the 1980 Act must satisfy is to show that his possession has been "adverse" within the meaning of the Act. Paragraph 8(1) of Schedule 1 defines "adverse possession" as follows:
"No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land."
Paragraph 8(2) of Schedule 1 provides:
"Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession."
On this appeal Mr. Douglas, on behalf of the Council, has accepted that if the plot was in adverse possession of the defendant more than 12 years before action was brought (i.e. on 28th October 1973) it has not ceased to be in adverse possession since that time. Ultimately, therefore, the crucial question will be: Was the defendant in adverse possession of the plot on 28th October 1973?
Possession is never "adverse" within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in "adverse possession" as against the owner with the paper title.
Before the passing of the 1980 Act, certain decisions of this court (in particular Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex & B.P. Ltd. [1975] 1 Q.B.94 and Gray v. Wykeham v. ^hrtin & Goode [1977] Bar Library Transcript No. 10A) were thought to have established a general doctrine that in one special type of case there would be implied in favour of the would-be adverse possessor, without any specific factual basis for such implication, a licence permitting him to commit the acts of possession upon which he sought to rely; the effect of implying such a licence would, of course, be to prevent the squatter's possession from being "adverse". That special type of case was broadly one where the acts of an intruder, however continuous and far-reaching, did not substantially interfere with any plans which the owners might have for the future use of undeveloped land.
The doctrine of implied licence, in my view, raised substantial conceptual difficulties as a matter of law for reasons which I stated in Powell v. McFarlane & Others [1977] 38 P. & C.R. 452 where I said (at p.484):
"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."
The doctrine has now been abrogated by paragraph 8(4) of Schedule 1 to the 1980 Act which provides:
"For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."
In the light of this provision,it would at first sight appear that there is now no reason why the words "possess" and "dispossess" or similar expressions should not be given their ordinary legal meaning in the context of the 1980 Act. However, Mr. Douglas, on behalf of the Council, while accepting that the implied licence doctrine is now abrogated, nevertheless submits that paragraph 8(1) (I quote from his skeleton argument) "leaves intact the special rule formulated by Bram-well L.J. in Leigh v. Jack [1879] 5 Ex. D. 264 and Sir John Pennycuick in Treloar v. Nute [1976] 1 W.L.R. 1295 that where land is acquired or retained by the owner for a specific future purpose, then acts of trespass which are not inconsistent with such purpose do not amount to dispossession". The origin of the suggested "special rule" is said to be the often cited statement of Bramwell L.J. in Leigh v. Jack [1879] 5 Ex.D. 264, where he said (at p.273):
"..... 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."
Superficial support for the existence of the "special rule" is to be found in a passage in the judgment of this court delivered by Sir John Pennycuick in Treloar v. Nute [1976] 1 W.L.R.1295 (at p.1300-1301) where he said:
"The literal application of the statutory provisions has been adapted by this court to meet one special type of case. It sometimes happens that the owner of a piece of land retains it with a view to its utilisation for some specific purpose in the future and that meanwhile some other person has physical possession of it. When that state of affairs exists, the owner is not treated as dispossessed: see Leigh v. Jack [1879] 5 Ex. D. 264, where factory materials were placed upon a strip of land intended by the owner to be dedicated as a road."
Sir John Pennycuick went on to refer to the judgment of Cock-burn C.J. in Leigh v. Jack at page 271 and cited the passage from Bramwell L.J.'s judgment cited above. He also referred very briefly to the decision of this court in Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159.
All the observations of Sir John Pennycuick to which I have referred were obiter because they were made in the absence of any evidence of "special purpose" on the part of the plaintiff (see p.l302E). The court below had found that the defendant's father took possession of the disputed land outside the limitation period, but that this possession was not adverse by reason that it caused no inconvenience to the plaintiff. The actual decision of this court was that, in the absence of any evidence of special purpose, the absence of inconvenience to the plaintiff was an irrelevant consideration, and that time began from the taking of possession by the father, whether or not the plaintiff suffered inconvenience from such possession.
The other members of this court in Treloar v. Nute were Ormrod L.J., who had been one of the majority in Wallis's case, in which Lord Denning had introduced the doctrine of implied licence, and Stamp L.J., who had dissented in that case. In giving judgment, the court referred (at p.l302F) to the considerable disadvantage which it had suffered from the absence of any legal argument on behalf of the appellant. It was faced with a further difficulty that the ratio of the majority decision in Wallis's case, so far as that ratio extended, was binding on it, since the 1980 Act had not been passed. I respectfully agree with the actual decision in Treloar v. Nute, but respectfully disagree with the obiter dicta to which I have referred.
On any footing, it must, in my judgment, be too broad a proposition to suggest that an owner who retains a piece of land with a view to its utilisation for a specific purpose in the future can never be treated as dispossessed, however firm and obvious the intention to dispossess, and however drastic the acts of dispossession of the person seeking to dispossess him may be. Furthermore, while it may well be correct to say that the implied licence doctrine (so long as it survived) itself involved the "adaptation" of the literal application of the statutory provisions "to meet one special type of case", I do not think it correct to suggest that the decisions in Leigh v. Jack or Williams v. Raftery (or indeed any other decisions prior to Wallis's case authorise or justify an application of the statutory provisions otherwise than in accordance with their ordinary and natural meaning.
In the course of my judgment in Powell v. McFarlane (at pp.472-474) I considered in some detail the decisions in Leigh v. Jack and Williams v. Raftery and Tecbild Ltd. v. Chamberlain [1969] 20 P. & C.R. 633. I do not propose
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to embark on a similar analysis in this judgment, but would venture to repeat certain conclusions about these cases which I expressed (at pp.484-485):
"I incline to the view that the ratio decidendi of all the various judgments in cases such as Leigh v. Jack, the Williams' case and Tecbild Ltd. v. Chamberlain 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 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."
On re-reading the relevant authorities, the view to which I then inclined has become a firm one. The statement of Bramwell L.J. in Leigh v. Jack (supra at p.273) on which so much reliance has been placed on this appeal was made in the context of a case in which, it would appear, the defendant would have had knowledge of the intention of the owner to dedicate it to the public as a highway. (It was marked as a street on a plan of his estate, which he hung up in his estate office and this fact was presumably common knowledge among those interested in the property). If in any given case the land in dispute is unbuilt land and the squatter is aware that the owner, while having no present use for it, has a purpose in mind for its use in the future, the court is likely to require very clear evidence before it can be satisfied that the squatter who claims a possessory title has not only established factual possession of the land, but also the requisite intention to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable and so far as the processes of the law will allow. In the absence of clear evidence of this nature, the court is likely to infer that the squatter neither had had nor had claimed any intention of asserting a right to the possession of the land. I agree entirely with the following passage from the dissenting judgment of Stamp L.J. in Wallis's case (at pp.109- 110):
"Reading the judgments in Leigh v. Jack ..... and Williams Brothers Direct Supply Ltd. v. Raftery ..... 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."
In the present case, the defendant was well aware that the Council had acquired the plot in order to construct a road on it at some time in the future and meantime had no present use for the land. This factor, which Mr. Douglas naturally stressed in the course of his argument, should make the court the more cautious before holding that the defendant had had both a factual possession and animus posidendi sufficient to confer on him a possessory title. Nevertheless, every Leigh v. Jack type of case such as this must involve questions of fact and degree. I would, for my part, reject the submission that since the 1980 Act there remains any "special rule" which requires the words "possessed" and "dispossessed" or similar words to be given anything other than their natural and ordinary meaning in the Leigh v. Jack type of case.
Thus far, therefore, I conclude that -
(1) if by 28th October 1973 the defendant had taken possession of the plot, his possession must have been adverse to the Council;
(2) the question whether or not the defendant had taken possession of the plot by 28th October 1973 falls to be decided by reference to conventional concepts of possession and dispossession and not by departing from the ordinary and natural meaning of the relevant statutory provisions merely because this is a Leigh v. Jack type of case.
I turn then to consider the first of the two requisite elements of possession. First, as at 28th October 1973 did the defendant have factual possession of the plot? I venture to repeat what I said in Powell v. McFarlane (supra at p.470):
"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession...... 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 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."
On the evidence it would appear clear that by 28th October 1973 Mr. Moran had acquired complete and exclusive physical control of the plot. He had secured a complete enclosure of the plot and its annexation to Dolphin Place. Any intruder could have gained access to the plot only by way of Dolphin Place, unless he was prepared to climb the locked gate fronting the highway or to scramble through one or other of the hedges bordering the plot. The defendant had put a new lock and chain on the gate and had fastened it. He and his mother had been dealing with the plot as any occupying owners might have been expected to deal with it. They had incorporated it into the garden of Dolphin Place. They had planted bulbs and daffodils in the grass. They had maintained it as part of that garden and had trimmed the hedges. I cannot accept Mr. Douglas's submission that the defendant's acts of possession were trivial. It is hard to see what more he could have done to acquire complete physical control of the plot by October 1983. In my judgment, he had plainly acquired factual possession of the plot by that time.
However, as the learned judge said, the more difficult question is whether the defendant had the necessary animus possidendi. As to this, Mr. Douglas accepted the correctness of the following statement (so far as it went) which I made in Powell v. McFarlane (supra at pp.471-472):
"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 paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow."
At least at first sight the following observations of Lord Halsbury L.C. in Marshall v. Taylor [1895) 1 Ch.641 at p.645 (which were referred to by Hoffmann J. in his judgment) are very pertinent to the present case:
"The true nature of this particular strip of land is that it is inclosed. It cannot be denied that the person who now says he owns it could not get to it in any ordinary way. I do not deny that he could have crept through the hedge, or, if it had been a brick wall, that he could have climbed over the wall; but that was not the ordinary and usual mode of access. That is the exclusion - the dispossession - which seems to me to be so important in this case."
As a number of authorities indicate, enclose by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v.Smith [1877] 36 L.T. 168 at p.169: "Enclosure is the strongest possible evidence of adverse possession". Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487 at p.511 similarly observed: "Ordinarily of course enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner". While Mr. Douglas pointed out that the plot was always accessible from the north where no boundary demarcation existed, it was only accessible from the defendant's own property, Dolphin Place. In my judgment, therefore, he must be treated as having enclosed it.
Mr. Douglas, however, submitted that even if enclosure had occurred, the defendant's intention must be assessed in the light of the particular circumstances of this case. The defendant knew that the Council had acquired and retained the plot with the specific intention of building a road across it at some future time. The Council had no use for the land in the interim. It was for all practical purposes waste land. None of the defendant's acts, he submitted, were inconsistent with the Council's known future intentions. He invoked (inter alia) the words of Cockburn C.J. in Leigh v. Jack [1879] Ex. D. 264 at p.271 which, he submitted, applied in the present case:
"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 conveyances; 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."
If the defendant had stopped short of placing a new lock and chain on the gate, I might perhaps have felt able to accept these submissions. Mr. Douglas submitted that this act did not unequivocally show an intention to exclude the Council as well as other people. (It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain [1969] 20 P. & C.R. 633 at p.642 per Sachs L.J.). In my judgment, however, the placing of the new lock and chain and gate did amount to a final unequivocal demonstration of the defendant's intention to possess the land. I agree with the learned judge in his saying (at page 9A):
"I do not think that if the council, on making an inspection, had found the gate newly padlocked, they could have come to any conclusion other than that Mr. Moran was intending to exclude everyone, including themselves, from the land."
The other main point which Mr. Douglas has argued in support of this appeal has caused me slightly more difficulty. In his submission there can be no sufficient animus possidendi to constitute adverse possession for the purpose of the 1980 Act unless there exists the intention to exclude the owner with the paper title in all future circumstances. The defendant's oral statements to Mr. Harris in the conversation of 10th November 1975, as recorded in the attendance note, do appear to have constituted an implicit acknowledgement by the defendant that he would be obliged to leave the plot if in the future the Council required it for the purpose of constructing the proposed new road. The letter of 18th December 1975, which I have concluded should be admitted in evidence, contains an express acknowledgment of this nature. If the intention to exclude the owner with the paper title in all future circumstances is a necessary constituent of the animus possidendi, the attendance note and the letter of 18th December 1975 show that this constituent was absent in the present case.
There are some dicta in the authorities which might be read as suggesting that an intention to own the land is quired. Lindley M.R., for example, in Littledale v. Liverpool College [1900] 1 Ch 19 at p.23, referred to the "acts of ownership" relied upon by the plaintiffs. Russell L.J. in George Wimpey & Co. Ltd. v. Sohn (supra at p. 510) said:
"I am not satisfied that the actions of the predecessors in bricking up the doorway and maintaining a lock on the gate to the roadway were necessarily referable to an intention to occupy the [land] as their own absolute property."
At one point in my judgment in Powell v. McFarlane (supra at p.478) I suggested that -
"Any objective informed observer might probably have inferred that the plaintiff 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."
Nevertheless, I agree with the learned judge that "what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess" - that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title. No authorities cited to us establish the contrary proposition. The conversation with Mr. Harris, as recorded in the attendance note and the letter of 18th December 1975, to my mind demonstrate the intention of the defendant for the time being to continue in possession of the plot to the exclusion of the Council unless and until the proposed by-pass is built. The form of the conveyance to the defendant and of the contemporaneous statutory declaration which he obtained from Mr. and Mrs. Wall are, of course, entirely consistent with the existence of an intention on his part to take and keep adverse possession of the plot, at least unless and until that event occurred.
In the light of the line of authorities to which we have been referred, beginning with Leigh v. Jack, I have already accepted that the court should be slow to make a finding of adverse possession in a case such as the present. However, as the learned judge pointed out, in none of those earlier cases, where the owner with the paper title successfully defended his title, was there present the significant feature of complete enclosure of the land in question by the trespasser. On the evidence in the present case he was, in my judgment, right in concluding that the defendant had acquired adverse possession of the plot by 28th October 1973 and had remained in adverse possession of it ever since. There is no evidence that any representative of the Council has even set foot on the plot since that date.
This appeal, which has been well argued on both sides, should in my judgment be dismissed.
LORD JUSTICE NOURSE: I agree. I add some views of my own on the substantive issue.
Under most systems of law a squatter who has been in long possession of land can acquire title to it in the place of the true owner. The Scots and continental systems, more faithful to the Roman law, have opted for prescription, a doctrine founded on the fiction that the land has been granted to the squatter. In England, prescription, although a shoot well favoured by the common law, was stunted in its lateral growth by the statutes of limitation, being confined in its maturity to the acquisition of easements and profits a prendre over another's land. Limitation, so far from being founded on some fictional grant, extinguishes the right of the true owner to recover the land, so that the squatter's possession becomes impregnable, giving him a title superior to all others.
The essential difference between prescription and limitation is that in the former case title can be acquired only by possession as of right. That is the antithesis of what is required for limitation, which perhaps can be described as possession as of wrong. It can readily be understood that with prescription the intention of the true owner may be of decisive importance, it being impossible to presume a grant by someone whose intention is shown to have been against it. But with limitation it is the intention of the squatter which is decisive. He must intend to possess the land to the exclusion of all the world, including the true owner, while the intention of the latter is, with one exception, entirely beside the point.
In order that title to land may be acquired by limitation, (1) the true owner must either (a) have been dispossessed, or (b) have discontinued his possession, of the land; and (2) the squatter must have been in adverse possession of it for the statutory period before action brought. Adopting the distinction between dispossession and discontinuance which was suggested by Fry J. in Rains v. Buxton [1880] 14 Ch D 537, at p.539, I take the first case to be one where the squatter comes in and drives out the true owner from possession and the second to be one where the true owner goes out of possession and is followed in by the squatter. In the light of that distinction, a very fine one, it is sometimes said that the intention of the true owner may be material in this way. If he intends to use the land for a particular purpose at some future date, a discontinuance of possession can be prevented by the slightest acts of ownership on his part, even by none at all. That no doubt is perfectly correct, but nothing follows from it except that the case becomes one where the true owner must be dispossessed before his title can be lost. He can only be dispossessed if the squatter performs sufficient acts and has a sufficient intention to constitute adverse possession. Those acts and that intention are no different from those which are required in a case of discontinuance, there being no practical distinction between what is necessary to exclude all the world in a case where the true owner has retained possession and in one where he has discontinued it.
By this route I have come to a belief that the intention of the true owner, although it may have some influence in theory, is irrelevant in practice. To that I would make one exception. If an intention on the part of the true owner to use the land for a particular purpose at some future date is known to the squatter, then his knowledge may affect the quality of his own intention, reducing it below that which is required to constitute adverse possession. To say that is only to emphasise that it is adverse possession on which everything depends. I think it very doubtful whether the distinction between dispossession and a discontinuance of possession can ever have decisive consequences, a consideration which is perhaps confirmed by the confusion between them which is found in some of the decided cases.
For over a hundred years the leading case on adverse possession in English law has been the decision of this court in Leigh v. Jack [1879] 5 Ex. D. 264, where, at p.273, Bramwell L.J. 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: 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."
These observations suppose that the intention of the true owner may, in the circumstances stated, defeat what would, without the intention, constitute adverse possession. They would, for example, allow a true owner to recover land, even against a squatter who had enclosed it for a garden with the intention of excluding all the world, by claiming that that use was not inconsistent with the future residential developTnent which he had always intended.
For the reasons already expressed, I cannot accept Bramwell L.J.'s observations to have been a correct statement of the law. Moreover, the decision in Leigh v. Jack can be satisfactorily explained on the grounds that there was no enclosure of the land by the defendant, that his acts of possession were trivial and, more significantly, that his knowledge of the plaintiff's intention prevented him from having a sufficient intention himself. Thus, at page 271, Cockburn C.J. said:
"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 conveyances; his acts were those of a man who did not intend to be a tresspasser, 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. If a man does not use his land, either by himself or by some person claiming through him, he does not necessarily discontinue possession of it."
At page 274, Cotton L.J. was of the opinion that there had been no dispossession of the plaintiff or her predecessors by the acts of the defendant. He went on to hold that there had also been no discontinuance of possession. Although in that he based himself in part on the fact that the land was not capable of use for the purpose intended by the plaintiff, I do not read his judgment, any more than that of the Lord Chief Justice, as subscribing to the view of Bramwell L.J. that the intention of the true owner can withstand what would otherwise be sufficient acts of possession and a sufficient intention on the part of the squatter. To that extent, and while the judgments are not at all clear, I think that the views of Bramwell L.J. were obiter.
In Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B.159, at p 169, Hodson L.J. rejected a submission by counsel that in Leigh v. Jack -
"..... 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."
For myself, I respectfully think that the submission was correct. However, it is not clear how far Hodson L.J. or the other members of the court (Morris and Sellers LJJ) relied on Bramwell L.J.'s dictum for the purpose of making a decision in that case. Again it can be satisfactorily explained on the grounds that there was no enclosure of the land, that the defendant's acts of possession were trivial and that he did not have a sufficient animus possidendi.
The decision in Williams Brothers Direct Supply Ltd. v. Raftery was given at a time when many plots of waste land had been brought under the spade in digging for victory during the second world war and afterwards. The problem was a very familiar one and this court's endorsement of Bramwell L.J.'s dictum gave county court judges all round the country a simple and straightforward basis for rejecting unmeritorious claims to squatters' titles, even, we may be sure, where the land had been enclosed. By 1976 the dictum had assumed the dignity of a special rule, although it was recognised by this court that it carried with it an adaptation of the literal application of the statutory provisions in order to meet a special type of case; see Treloar v. Nute [1976] 1 W.L.R.1295, at p.1300. Before that, it had been effectively rejected in the dissenting judgment of Stamp L.J. in Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and B.P, Ltd. [1975] Q.B. 94, at pp 109-110; a case in which Lord Denning M.R. propounded an original heresy of his own, the implied licence theory. That has now been put to rest by paragraph 8(4) of Schedule 1 to the Limitation Act 1980, a provision which did not have any wider effect. The argument of Mr. Douglas on behalf of the Council has shown us that the dictum of Bramwell L.J. rides on.
The whole of this troubled subject was carefully considered by Lord Justice Slade, then a judge of the Chancery Division, in Powell v. McFarlane [1977] 38 P. & C.R. 452. In my opinion that judgment accurately stated the law in all material respects and I speak from my own experience in saying that it has consistently been treated as having done so. There can be no doubt that the view of the difficult cases from Leigh v. Jack onwards to which the learned judge inclined at pp 484-485 is correct. Those authorities can be satisfactorily explained on conventional grounds without reliance on the dictum of Bramwell L.J. We should now say that it must no longer be followed, so that the decision of these cases can be returned to the paths of orthodoxy, without, I am confident, any increase in the success rate amongst unmeritorious claims.
For these reasons I am of the opinion that Mr. Justice Hoffmann was right to approach this case, albeit that it is in the classical Leigh v. Jack mould, by looking no further than the principles stated in Powell v. McFarlane. He correctly applied those principles to the facts which he found. I would affirm his decision accordingly. On this part of the case I do not wish to add anything to the judgment of Lord Justice Slade, with which I am in complete agreement.
I too would dismiss this appeal.
LORD JUSTICE BUTLER-SLOSS: I agree with both judgments.
Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused.
