England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE-ON-TRENT COUNTY COURT
(MR RECORDER WEBB)

		Royal Courts of Justice Strand London, WC2 Friday, 8th November 2002

1. LORD JUSTICE ALDOUS: This is an appeal with permission of this court from the judgment and order of Mr Recorder Webb on 13th December 2001.
2. The action was brought by the Inglewood Investment Company Ltd who were the paper owners of an unregistered triangular piece of land in Staffordshire just off the A34. The particular incident which brought these proceedings into being was the appearance of Portakabins used as lavatories for people attending car boot sales which he started in 1996 on the defendant Mr Baker's land.
3. Inglewood alleged that the defendant, Mr Baker, had trespassed on that land. They relied upon the appearance of these Portakabins. In his defence Mr Baker claimed ownership by reason of adverse possession.
4. That defence is based upon section 15 of the Limitation Act 1980, which provided:

"15.(1) 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. ...

(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights to recover land in the cases there mentioned."

Schedule 1 paragraph 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."

Schedule 1 paragraph 8 provides:

"8.(1) 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. ...

(4) For the purposes 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."

5. As I have said, the disputed land is triangular and on the map which was considered by the judge it is delineated by the letters A, B and C. To the north-west of the line AB is Mr Baker's land. The contiguous field is marked 585. The line AC is along a path, which extends westward to a point marked D on the A34 road. Along the line BC is a deer-proofed fence placed by the Forestry Commission. It extends eastward from point B, thereby dividing the land leased by the Forestry Commission to Inglewood from field 585, and eastward along from point C.
6. The judge visited the disputed property which he described in his judgment (starting at page 10H):

"The relevant area was approached along the A34, southwards from the village of Brockton, past Bednall Head. A short distance south of Bednall Head, there is a pathway or track on the left which runs east south-east, and can be seen clearly on the plans annexed to the particulars of claim and at page 289 of the trial bundle.

To the east of the A34, immediately prior to the left turn, is a field. On the plan to which I have just referred, that is at page 289. This is the field 585 which I already mentioned and it belongs, indisputably to Mr William Baker snr. For a short distance, this field runs parallel with the pathway or track. There is a hedge between the field and the pathway which historically marks the southern border or boundary of field 585. Inside that hedge -- that is, on the field side of the hedge -- there is a fence, an eight-strand netting fence erected by the defendant. It is this fence which was erected from the corner of field 585 and the A34 -- that is point D, referred to in evidence -- which continued through point A and to point C. This entire fence was, it is now accepted, erected at the same time and the date is agreed at September 14th and 15th 1984.

Running south-east, from point B to point C, is a different kind of fence. It is a higher deer fence which was erected by the Forestry Commission, it seems, some time in the early 1980s. This fence runs at least from point B to point C on the plans and then deviates sharply eastward, parallel to the path. There is also, it seems, a continuation of that fence north and east of point B, although there was some confusion in the evidence as to where, in fact, Mr Baker snr had erected a fence and where the Forestry Commission had erected it. It does not seem to me, however, in the context of the issues I have to decide, that that is an important dispute to resolve.

There is similar deer fencing on the south side of the path or track but again, it is not, I believe, necessary to describe that in any detail.

Finally, along the line A-B, I saw a number of recently inserted fencing posts to which was attached some fairly new barbed wire at a very low and, at places, almost ground level. At one location near to point A, tufts of sheep wool could be seen on the barbs. At point A, there was a small gap between the triangular and section of the post for the barbed wire fence, A to B, and the nearest post for the fence which the defendant erected in 1984 which runs D-A-C.

There is also a gap between the triangular section of the barbed wire fence post at B and the deer fence, but a smaller gap than in the south-western corner. ..."

7. The judge went on to place the disputed land in context. He said:

"At the southern end of the triangle, between points A and C, is obviously the fence erected by Mr Baker snr on September 14th and 15th 1984 and south of that is the path or track-way, obviously, from the plans to which I have referred.

On the east, between points B and C, as I have already indicated, is the Forestry Commission deer fence and to the east of that fence is the beginning of a considerable area of land owned by Inglewood which then extends north and south, as the plan annexed to the particulars of claim clearly shows. That land was, I am told, leased to the Forestry Commission in 1921. To the west and north of the line A-B is field 585, which belongs to the defendant. ... The land within the disputed triangle slopes downwards, at times quite sharply (a) from the field 585 and (b) towards the path. A number of trees grow on it, they are all deciduous, and the ground, at least when I went there in December, was heavy with fallen leaves. In one or two places, there was a covering of hay and in addition, there were sheep feeders containing hay, two I am told, a few yards into the disputed triangle, at a mid-point approximately between points A and B.

There was also a small amount of rubbish just inside the notional A-B line which comprised a wooden frame, which was very rotten, at least one 45-gallon barrel, pieces of metal, which I was told were the remnants of a chassis. There was additionally a Portakabin which, certainly on December 10th, seemed to be positioned mostly on the defendant's undisputed land -- i.e. on the edge of field 585 -- but which may have encroached beyond the notional line A-B. There was also indication of older barbed wire, signs of an older fence no longer standing.

The ground within the disputed triangle is clearly very different, in my judgment, from the nature of the ground in field 585. The disputed land is a coppice. It has little or no obvious grass, although, as I say, it was heavily covered with leaves, but for the most part, it is at a lower level than the field and it is more uneven. It would probably be an ideal place for children to play, especially when accompanied by adults. It would seem wholly unsuitable for farming but would provide shelter for sheep in very warm or very cold weather and would be a useful spot to do some shooting.

The land in the disputed triangle has more in common, it seems to me, with the land leased to the Forestry Commission, notwithstanding the absence of evergreen trees. The trees beyond the line B-C were mixed evergreen and deciduous for a short distance but the further from the pathway one looked, the greater were the proportion of evergreen trees. In fact, a short distance beyond the fence, between B and C, nearly all the trees seem evergreen.

I should add that running through the disputed parcel of land, towards the path or track-way off the A34, is a second pathway. That pathway is covered or was covered with leaves and was, for me at least, impossible to identify within the disputed triangle itself but if one looks beyond the Forestry Commission fence, linking points B and C, this second path becomes more obvious by reference to the evergreen tree line. ...

Finally, I should say that the disputed triangle of land is not cultivated; is relatively small and situated literally off the beaten track. There would be limited reasons for going to it. The obvious one is for adventure -- either shooting or children's play."

8. Two important issues of fact arose concerning the erection of the two fences. It had been the defendant's case that the fence from the points D-A-C had been erected prior to 1984. As the judge held, it had been agreed by the trial that it was a netting fence which had been erected on 14th and 15th September 1984. That became apparent from a diary that was produced.
9. The second issue related to the fence between points A and B. The defendant's evidence was that from 1963 onwards there had been a rusty old fence made of barbed wire, but it was not such as to prevent a person walking into the disputed land. One witness described it as a two-strand barbed wire fence, not in great condition but attached to trees and hard wood posts. It was sagging but still a fence. It would have kept cattle in but not sheep. Another witness described it as barbed wire, not in repair but significant and continuous. The judge concluded:

"I find that there was a fence, perhaps not in good condition, but an obvious fence nevertheless between points A and B up to some time in 1996. I accept the evidence of Mr Follows and Mr Parris about that. ...

That fence was sufficient to deter cattle but not sufficient to prevent access, certainly by young men determined to get into the land and enjoy motorcycling. Once the Portakabins were installed, the fence was lowered or removed until, by December 1996, it had effectively been removed altogether."

10. There was also dispute as to the erection of a sign stating "trespassers will be prosecuted". The judge reviewed the evidence as to that sign. Mr Baker's evidence was that he saw his solicitor, Robert Tedstone, and queried the ownership of the land. He said that his solicitor advised him that if he fenced the land and used it he should put up a sign such as "trespassers will be prosecuted". His evidence was that he did that when he put up the fence. It was about eight to ten feet into the coppice, facing in a south-westerly direction towards agricultural holding buildings and the A34. He estimated that it was up for a few years. In his witness statement and in his evidence he assessed the period as being about eight to 10 years.
11. Mr Baker's son's evidence was not to the same effect. He said that sometime after his father erected the fence which ran from D to A to C he saw some people climb over it and onto the land and he told them it was private. The people said that there was no sign and he accepted in evidence at that time that there was no sign. He said, however, that he had seen initially signs, but quickly corrected himself to a sign. He had no recollection for how long the sign was up. The judge's finding of fact was in these terms:

"At the time of the fence's erection, I do not find that a sign was erected but I do find that a sign was erected at some time later, after William Baker jnr had encountered people on the land. There is no cogent evidence of precisely when that was. ...

I find that that sign did not last for many years. It was not present in 1993 when Mr Parris visited the site with his children. I also consider that in the circumstances of this case and this piece of land, a clear sign was necessary to manifest the dispossession of the paper owner with a claim to possession of the trespasser."

12. The judge also held that there had been other activities upon the land, which included shooting by a witness who gave evidence, children had played on the land and that there had been rubbish which had been taken away by the Bakers. The judge said this:

"Rubbish as I have already described was deposited in the coppice. Sometimes it was Mr Baker's rubbish; sometimes, it seems, rubbish others left there. According to Mr Baker, he reversed a lorry and loaded it up, although I doubt that he went beyond the line A-B. He and his son collected wood which had fallen and chopped it up. A lorry chassis had remained there since the 1960s. His children and grandchildren played in the coppice. His son rode a motorbike in it. Friends and acquaintances had shot rabbits and foxes from the coppice. None of these acts is sufficient, it is accepted, to constitute the elements of adverse possession. It is, as Mr Stockhill says, background."

13. Upon those findings of fact, the judge concluded:

"I accept that Mr Follows and Mr Parris [witnesses called on behalf of the claimant] rarely visited the land but that when they did, they accurately told me what they had done and what they had seen. And I find, as I have already indicated, that Mr Parris did visit the land in 1993 and 1995 with his daughters.

I accept that it was not manifest to either of them in 1993, 1995 or 1996 that the defendant was claiming adverse possession of Inglewood's property and, in my judgment, the act of putting the fence from A to C was not unequivocal. In my judgment, this claim for adverse possession therefore has to fail because: (a) the defendant has failed to establish that he did possess exclusively, against all others, for the continuous 12-year period; and further, that any possession was sufficiently manifest to either a reasonable onlooker or to the interested party, Inglewood, on the occasions when servants or agents of Inglewood actually attended the site.

(B) The defendant did not have the requisite animus possidendi in September 1984 because his intention, when he erected the fence, was simply to keep his sheep in and it was not to keep the paper owner out.

I should add that I reach these conclusions with some sympathy for Mr Baker snr but I feel driven to them on the evidence that I have heard."

14. Against that background I come to consider the law.
15. At the time of the judgment the House of Lords had not given their decision in JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221. Even so, the judge did in my view correctly set out the law using as his guide the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452. That judgment was described by Lord Browne-Wilkinson in the Pye case as "a remarkable judgment". He said that:

"... for the most part the principles set out by Slade J as subsequently approved by the Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch 623 cannot be improved upon."

16. With that in mind, I turn to certain passages of Slade J's judgment in Powell which were set out by Lord Browne-Wilkinson. First, at page 233 Lord Browne-Wilkinson cited this passage from Slade J's judgment:

"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to the 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')."

17. Lord Browne-Wilkinson agreed with the explanation as to what is factual possession given by Slade J. In paragraph 41 of Pye, he quoted this passage:

"(3) Factual possession signifies an appropriate degree of physical control. It must be a single [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot be both 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... 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."

18. As to the intention to possess, Lord Browne-Wilkinson said this at page 235E:

"Slade J reformulated the requirement (to my mind correctly) as requiring an '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 processes of the law will allow'."

19. I think it is convenient at this stage to go back to the judgment of Slade J in Powell and quote this passage from his judgment at page 472:

"The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with a right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."

20. To that it is worth adding a passage from the judgment of Clarke LJ in Mayor and Burgesses of the London Borough of Lambeth v Blackburn [2001] EWCA Civ 912; (2001) 82 P & CR 39 at page 499:

"It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession. It seems to me that the answer lies in the fact that the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the adverse possession is apparent to the owner; that is if it is manifest to the owner that the trespasser intends to maintain possession against the whole world including the owner. That does not mean that it must in fact be known to the owner, but that it must be manifested to him so that, if he were present at the property he would be aware that the trespasser had taken possession of it and intended to keep others out."

21. It is clear from the authorities that to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to possess. That has two elements. First a subjective element requiring the person, the trespasser, to establish that he intended to possess the land, and also an objective element, namely an establishment of what Clarke LJ referred to as a possession which was apparent or would be apparent to the owner if he visited the site.
22. To establish possession and intention to possess, the defendant relied in the main upon the placing of the wire mesh fence between the points D-A and A-C in September 1984. To that he added a number of features. First, the fact that sheep grazed in the paddock, 585, and did use the coppice for feeding if not grazing, at least from hay and sheep feeders. Second, the rubbish clearance, the shooting, the playing by the children and the motorbike riding. Third, the sign, to which I have already referred.
23. Clearly, the fence was the basis for establishing: (1) intention to possess; (2) the manifestation of the intention; and (3) the actual possession. I will come to the submissions that have been made, but I do think it pertinent in this respect to bear in mind this passage from the judgment of Laddie J in Batt v Adams [2001] 2 EGLR 92, at page 95:

"34. The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired the fence separating the disputed land from Rushymead. ... A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination, there is nothing in this case that suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others."

24. Mr Stockhill, who appeared for Mr Baker, accepted that the judge had correctly set out the law. He assisted us by referring to the passages in Powell, to which I have referred, and to the speech of Lord Browne-Wilkinson in Pye. The crux of his case was that the judge had come to the wrong conclusion both as to possession and intention, because of his failure to appreciate the importance of the findings of fact to which he had come. His notice of appeal states:

"... his [the judge's] finding that the fence was erected for a purpose other than to claim ownership was artificial and unjustified. It is also at odds with Mr Baker having acted on his solicitor's advice all those years ago."

25. Mr Stockhill drew attention in this respect to the conclusion of the judge at page 27, to which I have referred:

"The defendant did not have the requisite animus possidendi in September 1984 because his intention, when he erected the fence, was simply to keep his sheep in and it was not to keep the paper owner out."

Mr Stockhill accepted that the fence was intended to keep sheep in. It was a mesh fence designed for that purpose. But he submitted that that did not mean that it did not also delimit the area of the land that Mr Baker intended to possess, nor did it mean that it was not a manifestation of the possession. The judge, he submitted, should have taken the fact of the fence erected in 1984 and its purpose as one part of the evidence. He should also have had in mind the sign, the activities to which I have referred that took place on the disputed land, together with the use that had been made. When taken together, Mr Stockhill submitted that they established a clear case of intention to possess. He invited us to imagine that we walked down the lane in 1984 and there we would see a brand new fence going from points D-C, passing through point A. He submitted that the only reasonable conclusion to be drawn by a person taking such a walk was that the other side belonged to someone and the fence was there showing the boundary of his land and it was a clear indication of an intention to possess. That was consistent, he submitted, with Mr Baker's evidence which established his subjective intention. The fence was a clear manifestation of the act of possession.

26. The judge's conclusion as to the intention of Mr Baker was arrived at after seeing him give his evidence. The judge also visited the site. He concluded, having seen Mr Baker give his evidence, that he was a bad historian. There was ample evidence to support such a finding, as is quite clear from reading his cross-examination. His original defence, which was handwritten by him and certified to be true, contained many errors which were important to the issues between the parties. The same can be said of a statutory declaration that he made. However, the judge seems to have paid particular attention to two answers given in re-examination by Mr Baker:

"Q. I suppose I could follow on from the last point, Mr Baker, that if there was a barbed wire fence between A and B and you were going to use that field for cattle, would you have fenced the coppice?

A. Probably not.

Q. And just to reiterate, of course, barbed wire doesn't keep sheep in?

A. No.

Q. I think that's what you said, isn't it?

A. That's right.

Q. So you would have needed to have fenced the wire netting fence to keep sheep in?

A. Yes."

27. Before commenting upon that re-examination, I should just refer to two questions and answers to which Mr Stockhill referred us which came later on in the re-examination. At page 50 the judge asked:

"Q. And what do you say was the point of continuing it from A to C?

A. From A to C was continued after I'd had the advice from Mr Tedstone in which we'd always thought -- I'd always thought that the land might belong to the Forestry Commission. In fact when they said they didn't own it, following his advice I fenced it to use for my own -- and used it as my boundary; continued it on.

Q. So you're saying, are you, that the purpose of the fence was one thing from D to A, but another thing from A to C, is that what you're saying?

A. I am, yes. It was done at the same time but there were two different purposes. That's why I was so sure, yesterday, that it was the same netting, eight rows, because it's very rare."

28. The judge madde no finding as to the conversation with Mr Tedstone. It is quite clear that Mr Baker was not correct in his historical background to this dispute, and in those circumstances it was open to the judge to reject that part of his evidence.
29. However, the answers given in re-examination are, in my view, relevant. Mr Keith Rowley QC, appearing for Inglewood, rightly in my view submitted that the answers showed that the fence had not been intended as a boundary fence showing ownership. That being so, the words which I have quoted of Slade J from Powell at page 472 do become relevant. There he said (I quote them again for convenience):

"If his acts [the trespasser] are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."

30. In this particular case, the purpose of the fence appeared to be, and Mr Baker said it was, to keep sheep in. It does not seem that he would have put that fence up if he had been grazing cattle rather than sheep. In those circumstances it was open to the judge to conclude that there was no intention of Mr Baker to possess the land.
31. Mr Rowley also drew our attention to the fact that the arrival of the Portakabins on the disputed land triggered the dispute. It was not the erection of the fence that caused Inglewood's concern. He referred us to the way the judge relied upon the evidence of Mr Follows and Mr Parris as to what they saw in 1993 and 1995. I have already read the passage. Clearly, that was a conclusion that the judge was entitled to reach having heard the evidence and after the site visit. He concluded that here was a case in which people have attended in 1993, 1995 and 1996, and it was not clear to them that the fence was intended to be a boundary fence seeking to exclude the paper owner from the land. In fact the evidence showed that he did not do so, as Mr Parris went on to the land together with his children.
32. These cases are never simple, involving, as they do, events that happened many years ago. This court has to take that into account and is very conscious of the advantages that a trial judge has. In the particular case, it seems to me that there was evidence upon which the trial judge was entitled to conclude that Mr Baker did not have the requisite intention because his intention when he erected the fence was simply to keep his sheep in.
33. The other element of intention is the objective one, the showing of a manifestation of that intention. In my view he was entitled in coming to his conclusion to rely upon the lack of subjective intention, the lack of objective intention having regard to the nature of the fence, the evidence of Mr Follows and Mr Parris, and of course the barbed wire fence that ran along the line A-B.
34. That conclusion of course resolves the appeal. To a large extent it resolves the appeal on the first issue, namely whether Mr Baker established an intention of 12 years' adverse possession from 14th September 1984.
35. In any case, the events that happened do not establish possession during this period. I take them together. Firstly, the placing of the fence from A-C. I take into account the rubbish, the children playing, the shooting of rabbits and foxes, which were all intermittent and did not demonstrate continuous adverse possession, anymore than the visits by Mr Follows and Mr Parris demonstrated to the contrary.
36. Once the judge had decided that the mesh fence which ran from A-C was equivocal and was not erected with an intention "to keep the proper owner out", then in my view he was entitled to conclude that the appropriate degree of control had not been established for the full 12-year period.
37. It is for those reasons that I believe the judge was entitled to come to the conclusion that he did and this appeal should be dismissed.
38. LORD JUSTICE DYSON: I agree.

ORDER: Appeal dismissed with costs assessed summarily at £11,000.

(Order not part of approved judgment) ______________________________