England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
on appeal from the High Court of Justice
Manchester District Registry
(The Hon Mr Justice Lloyd,
Vice-Chancellor of the County Palatine of Lancaster)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 October 2004

Lord Justice Jonathan Parker :

INTRODUCTION

1. This is an appeal by Topplan Estates Ltd, the claimant in the action, against an order made on 23 October 2003 by Lloyd J as Vice-Chancellor of the County Palatine of Lancaster, in the Manchester District Registry.
2. In the action, which was commenced on 17 September 1996, the appellant claims against Mr David Townley possession of some 13 acres of freehold land at Scotforth, Lancashire, registered at H. M. Land Registry under title number LA693538, of which the appellant is the registered proprietor (“the disputed land”). Mr Townley is the respondent to the appeal. He claims to have been in adverse possession of the disputed land for a continuous period of 12 years prior to the commencement of the action. He counterclaims a declaration that he is the owner of the disputed land, and an order that the Register be rectified by excluding the disputed land from the appellant's title.
3. The judge upheld the respondent's adverse possession claim, save only in respect of a narrow strip of land identified in the order.
4. The judge granted both parties permission to appeal. In the event the appellant has appealed, but there is no cross-appeal by the respondent.

THE FACTUAL BACKGROUND

5. The disputed land consists of some 13 acres of agricultural land lying to the south-west of Scotforth, between the A6 (to the east) and a railway line (to the west). It is broadly rectangular in shape, its eastern and western boundaries being the longer sides of the rectangle. Its southern boundary is somewhat shorter than its northern boundary, with the result that the shape of the disputed land tapers slightly towards the south. The southern part of the disputed land consists of a field of 8 acres or thereabouts, referred to as OS9162. OS9162 is enclosed by boundary hedges, the hedge along its southern boundary forming the southern boundary of the disputed land. On the easterly boundary of OS9162 (which is also the easterly boundary of the disputed land) there is a gate which leads onto the A6, and which has been referred to as Gate A.
6. The land immediately to the south of the disputed land is owned by Lancaster City Corporation (“the City”).
7. Lying immediately to the north of OS9162 is a field of more or less the same size, referred to as OS0092. OS0092 is also enclosed by boundary hedges. There is a gate in the hedge which separates OS9162 from OS0092. There is also a gate in the eastern boundary of OS0092 which leads onto the A6 and which has been referred to as Gate E. Only the southerly part of OS0092 (comprising some 5 acres, and including Gate E) forms part of the disputed land. The reason for this has nothing to do with any physical boundary crossing OS0092 at this point (for there is none), but merely reflects the extent of the appellant's registered title and hence the extent of the land in respect of which an adverse possession claim is made in this action. The land lying immediately to the north of the disputed land (including the northerly part of OS0092) is also owned by the City.
8. The acts of possession on which the respondent relies in support of his adverse possession claim to the disputed land were not limited to the disputed land but extended to the entirety of OS0092 and to the field lying immediately to the north of OS0092 (which is also owned by the City). However, no issue arises in this action as to any land owned by the City.
9. To the west of the disputed land, on the other side of the railway line, lies a farm called Whinney Carr Farm. Access to the disputed land from Whinney Carr Farm may be had either via the A6, through Gate A or Gate E; or via a bridge over the railway line to the north of the disputed land known as Lawson's Bridge.
10. Whinney Carr Farm, which comprises some 147 acres, has been farmed by the respondent or members of his family since 1964. The respondent's father, Reginald Townley, initially occupied Whinney Carr Farm as tenant under an agricultural tenancy granted by the City. At that time the City was the registered proprietor not only of the land adjoining the disputed land to the north and to the south, but also of the disputed land itself. The City was, however, unwilling to include in the tenancy any part of the disputed land or the land to the north, since it had earmarked that land for future development. It was only willing to grant Mr Townley a grazing licence over it.
11. On 2 February 1972 the City served notice on Reginald Townley terminating his grazing licence as at 31 May 1972. Later in 1972 the City transferred the disputed land to J. E. Lesser (Properties) Ltd (“Lesser”). In the Transfer, Lesser covenanted to obtain planning permission for, and to build, a hotel on the disputed land. Following a dispute with the respondent's father, Lesser allowed another farmer to graze the disputed land. However, Lesser later relented, and on 1 May 1975, for a consideration of £400, it granted Reginald Townley a grazing licence over the disputed land, expiring on 25 December 1975. The licence agreement allowed Reginald Townley, described as 'the Licensee', 'to graze with cattle and mow' the disputed land. It also contained covenants by Reginald Townley to keep in repair all fences, walls, gates and ditches; to keep the disputed land in a neat and tidy condition; and to use it for the purpose of grazing and mowing only.
12. In 1977 Reginald Townley formed a partnership with his two sons, Philip and the respondent. On 14 September 1978 the partnership bought Whinney Carr Farm. The purchase did not include the disputed land, which continued to be occupied by the Townley family under a series of grazing licences granted by Lesser. In 1979 the annual licence payment was increased from £400 to £600. In early 1981 the respondent was sent a form of licence agreement for that year. He did not complete the agreement, but he did pay the £600. The same happened in 1982. On 29 April 1982 Reginald Townley died.
13. Since the death of Reginald Townley, no further licence agreements have been entered into and no further licence payments have been made. The respondent's evidence (which the judge accepted) was as follows:

“In 1983, I wrote to Lesser asking for an agreement …. I received no reply. As Lesser no longer seemed interested in the land, I decided not to bother paying that year, although I knew quite well that the owner would be able to remove me at any time, as I had no form of agreement. However, in the next couple of years, thinking that Lesser might give a licence or a tenancy and require payment, I did make provision for some rent of the land. I heard nothing from them. The owner (whoever he was) never reappeared until 1996 …. I merely carried on as if I owned the land, treating it as part of my farm, for the following years.”

14. From 1982 onwards, the respondent continued to use the disputed land in the same way as it had previously been used by himself and his family. In relation the period from 1982 onwards, the judge said this (in paragraphs 19 to 21 of his judgment):

“19. He would take two or three crops of grass for silage off the fields in summer. After the last crop he would put cattle out on it to pasture, and from November or thereabouts to April, while the cattle had to be kept indoors and were producing a lot of slurry, he would spread slurry on the fields. The slurry had a fertilising effect, but he would also apply manure and other fertiliser to the fields. Normally, he was able to take two or three crops off field 0092, including the part owned by the City, and two at least, and sometimes three, off 9162. When he had use of field 0004 and 8946 [lying to the North and to the South, respectively, of the disputed land], he used them only for grazing but he did apply some fertiliser to them.

20. He was the only person to make any use of the land in these ways or any other way, subject to the question of the road-widening works [to which further reference is made below]. Other persons were indeed physically excluded throughout the period. The thirteen acres were surrounded by physical boundaries on all sides except for the north, where the legal boundary runs through 0092. That field itself has a physical boundary, as do fields 0004 to the north, and 8694 to the south.

21. On the west there is no way into the thirteen acres except via land to the north or the south and through the boundary fence. To the north and south there are gates in the fences but these were closed and secured except for part of the time when all the land was in common use. To the east there are gates at the points that I have mentioned, denoted as A and E, but the Defendant says that these are padlocked and that he was the only person who had and has the keys to the padlocks. He said he renewed the padlocks as necessary, as he has also maintained and from time to time renewed the fences, hedges and gates. No-one, even of the Claimant's witnesses, has gained access to the land, apart of course from the Defendant and his employees, except by climbing over a locked gate, apart from the road-widening operation.”

15. In 1991 Lesser went into liquidation, and the liquidator took steps to sell the disputed land.
16. In December 1991 Mr Isaac Pels, a director of the appellant, inspected the land. His evidence was that on that occasion he “saw no sign of occupation and gained no impression that the [disputed land] was occupied or indeed used in any way”. It is, however, common ground that the cattle were taken off the disputed land in November in each year.
17. Mr Pels also gave evidence to the effect that on this occasion and on a subsequent occasion when he visited the disputed land he was able to gain access to the disputed land without having to climb a gate. However, in paragraph 22 of his judgment the judge rejected that evidence, saying this:

“Mr Pels, a director of the Claimant, said that he was able get access in late 1991, and later, at the northern point without climbing the gate, but the Defendant, who gave evidence first, was not challenged on his evidence in cross-examination that the gates were padlocked and I do not accept the accuracy of Mr Pels' evidence in this respect.”

18. In due course the appellant bought the disputed land from the liquidator of Lesser. On 13 March 1992 the appellant was registered as proprietor of the disputed land.
19. In early 1993, Lancashire County Council (“the County”) as local highway authority, resolved to widen the A6 along a stretch which extended from a point to the south of the disputed land to a point to the north of Gate A. The road widening works involved incorporating into the A6 and its surrounding earthworks a strip of land some 230 metres long and 7.5 metres wide lying immediately within the then eastern boundary of OS9162 (“the Road Strip”). The County accordingly approached the appellant, and on 15 March 1993 the appellant transferred the Road Strip to the County. The County also sought, and was granted by the appellant, a licence to use an additional strip of land forming part of OS9162 and lying immediately to the west of the Road Strip as a temporary working area while the road widening works were being carried out (“the Working Area”).
20. The road widening works were duly carried out. They involved the physical removal of the hedge which had previously formed the boundary of OS9162 along the eastern edge of the Road Strip, together with Gate A and its stone gateposts. On completion of the road works at about the end of April 1993 a new boundary hedge was established, and a post and rail fence erected, along the western edge of the Road Strip, and Gate A and its gateposts were re-erected to form part of that new boundary. The new boundary so established forms the existing eastern boundary of OS9162 (and hence of the disputed land) between its south-eastern corner and the northern end of the Road Strip.
21. While the works were continuing the Working Area was used as such by the County, primarily for the parking of machinery. It was separated from the rest of OS9162 by a temporary post and wire fence, which was removed on completion of the works. Since then, the Working Area has once again, in physical terms, formed part of OS9162 and hence of the disputed land.
22. The works were carried out under the supervision of Mr George Ireton, as supervising foreman. Mr Ireton provided a witness statement and gave oral evidence as to what happened in April 1993. The judge had no hesitation in accepting his evidence. In cross-examination, Mr Ireton was asked by Mr Paul Morgan QC (for the respondent) why the County had thought it necessary to put up the temporary fence along the western edge of the Working Area. He replied:

“Because it is something [the County] pay for us to do and if you put a physical barrier there, if you've got machines working, if you've got a physical barrier there, then it retains them within the working area; but if you don't have a physical barrier, then machines can travel anywhere within that field . If there is damage, then obviously you've got to pay the costs of reinstatement, so that keeps that down to a minimum. …. Primarily it is done …. to reduce the cost [of reinstatement].”

23. Later in his cross-examination, Mr Ireton gave evidence that all those engaged in the works (including himself) would arrive at the site in vehicles with 'Lancashire County Council' clearly marked on the side.
24. The respondent was fully aware of the fact that the road widening works were being carried out, but he chose not to protest or complain since he did not want to draw the owner's attention to his occupation of the disputed land. As the judge said in paragraph 46 of his judgment:

“The Defendant did not himself have any contact with Mr Ireton, or anyone working for him, or anyone involved in the road works, but he knew it was happening once it had started. He had no prior notice of it and he was irritated, but he chose not to protest or complain because he did not want to draw attention to his occupation of the land. He took no steps to query or to check the authority of the men or the County to do what they were doing. In cross-examination he said he thought the clock was ticking, meaning that he believed that if he continued in occupation for long enough he might acquire ownership of the land, but he did not believe himself to have any rights at that time.”

25. Since the events of April 1993 are central to this appeal, it is appropriate to refer in some detail to the respondent's evidence about them. In paragraph 33 of his first witness statement, the respondent said this:

“In about 1993, the A6 was widened. The first I knew about it was when diggers appeared and started working on the verge. They erected a temporary fence. At the time I had stock in the field. None of this was discussed with me and I was irritated, but I let it happen, because I did not want to draw attention to my occupation of the land – I was conscious that I had no right to be there.”

26. The relevant passages from the respondent's cross-examination by Mr Jonathan Gaunt QC (for the appellant) are as follows:

Q: Let's see what happened. You received no prior notice, I gather, that anything was going to happen?

A: I did not.

Q: And what happened was that some roadmen turned up with mechanical diggers?

A: That's correct.

Q: And they ripped up the existing hedge [along] about 130 yards of the boundary, didn't they?

A: I do not know the exact figures but I take your word that is the correct figure but, yes, they certainly did on the boundary, yes.

….

Q: They [removed] Gate A?

A: They certainly did.

Q: They removed the stone gateposts?

A: Yes.

….

Q: And they widened the road by moving the kerb back between 6 and 7 metres, didn't they?

A: Yes. As I say, I don't know the exact dimensions. …. I'm sure your measurements are correct.

Q: And they put up temporary posts?

A: Yes.

Q: …. [t]hey ultimately erected a new fence, didn't they?

A: Yes.

Q: I think it was probably about another 5 metres back?

A: Approximately.

Q: So the inroads into your land were between 10 and 12 metres?

A: On that basis, yes.

Q: So along come some workmen, without any warning, and they rip up you fence and your hedge and they appropriate a strip over 100 yards long of land, and they remove your gate posts. What did you do about it?

A: Absolutely nothing.

Q: You didn't protest?

A: I wasn't particularly amused. There was nothing I could do in the circumstances.

Q: Did you go and speak to the foreman?

A: No, but I believe that, if my memory serves me correctly, that the chap that worked for me at the time did.

….

Q: But you knew what was going on?

A: Yes.

Q: You didn't check with anybody by what authority these workmen were proceeding to do this work?

A: No.

Q: You didn't go and find out whether the Highway Authority had in fact acquired the land that they were working on?

A: I didn't do anything.

….

Q: So why did you just let it happen and do nothing about it?

A: Because I didn't want to draw any attention to my occupation of the land.

Q: So you didn't want the owner to know about your occupation?

A: Absolutely.

Q: And what was the reason for that?

A: …. Because, in layman's terms, I saw the clock was ticking, as it were. We were so far down what initially didn't turn out to be in the early …. Well, only in the later years did we realise the rights that we perhaps had if we allowed a 12-year period to elapse….

Q: You say the clock was ticking?

A: Yes.

Q: Do you mean by that that, at this stage at any rate, you were well aware of the provisions of the Limitation Act and were hoping to hang on to the land for 12 years?

A: Absolutely, yes.

Q: And so when these people came along, complete strangers, to you, the authority you knew nothing about, rather than challenge them in any way or assert any rights you have against them, you just lay down because you didn't want anybody to know about it?

A: I let it happen because at that stage I didn't feel I had any rights.”

27. While the road widening works were being carried out, the respondent continued to use the disputed land (save for the Working Area) in the same way as he had previously used it; and on completion of the works he continued his user of the disputed land (including, once again, the Working Area), without interruption, until after the expiry of 12 years from 1 January 1983.
28. In 1996 a number of visits to the disputed land were made by representatives of Barratt Homes Ltd, with whom the appellant was at that time in negotiation for the sale of the disputed land.
29. As noted earlier, the action was commenced on 17 September 1996.

THE RELEVANT STATUTORY PROVISIONS

30. I turn at this point to the relevant statutory provisions.
31. Section 15 of the Limitation Act 1980 is in the following terms (so far as material):

“15 Time limit for actions to recover land

(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, …

….

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

….”

32. Part I of Schedule 1 to the Act provides as follows (so far as material):

“1. Where the person bringing an action to recover land …. 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.

….

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.

(2) 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.

….”

33. It is also relevant to note that section 32 of the Act provides for the postponement of the limitation period in cases where any fact relevant to the claimant's right of action has been deliberately concealed from him by the defendant. It is not necessary for present purposes to refer to the detailed terms of the section.
34. By virtue of section 75(1) of the Land Registration Act 1925, on the expiry of the limitation period in relation to registered land, the registered proprietor is deemed to hold the land on trust for the person with possessory title.
35. Finally, so far as the relevant statutory provisions are concerned, it is to be noted that (as the judge points out in paragraph 55 of his judgment) the events in issue in the instant case took place prior to the coming into effect of the Land Registration Act 2002, and that Act accordingly has no application in this case.

THE RELEVANT AUTHORITIES

36. The two authorities of primary relevance in the instant case are the decision of Slade J in Powell v. Macfarlane (1979) 38 P & CR 452 (“Powell”) and the decision of the House of Lords in J A Pye (Oxford) Ltd v. Graham & Anor. [2003] 1 AC 419 (“Pye”). In his speech in Pye, Lord Browne-Wilkinson reviews Slade J's judgment in Powell in considerable detail, and quotes extensively from it. In the circumstances, it is not necessary for me to refer directly to Powell.
37. In paragraph 40 of his speech in Pye, Lord Browne-Wilkinson quotes a passage from the judgment of Slade J in Powell (at p.470) in which Slade J concluded that:

“…. [i]f 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').”

38. Lord Browne-Wilkinson continues:

“Counsel for both parties criticised this definition as being unhelpful since it used the word being defined – possession – in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. …. What is crucial to understand is that, without the requisite intention, in law there can be no possession. …. there has always, both in Roman law and common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such an intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. ….”

39. In paragraphs 32 to 39 of his speech, Lord Browne-Wilkinson discusses the nature of the intention (animus possidendi) which a squatter in possession must demonstrate. In paragraphs 35 and 36 he says this with reference to paragraph 8(1) in Part I of Schedule 1 to the Limitation Act 1980 (quoted in paragraph 32 above):

“35. …. Paragraph 8(1) in Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of someone in whose favour time 'can run'. It is directed not to the nature of the possession but to the capacity of the squatter. ….

36. Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to 'oust' the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; …. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

40. Lord Hope of Craighead, in Pye, says this about the requirement of intention (at paragraphs 69 to 71):

“69. It is plainly of some importance, both now and for the future, to understand what the use of the word 'adverse' in the context of section 15 of the Limitation Act 1980 was intended to convey. At first sight, it might be thought that the word 'adverse' described the nature of the possession that the squatter needs to demonstrate. It suggests that an element of aggression, hostility or subterfuge is required. But an examination of the context makes it clear that this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner or, in the case of registered land, the registered proprietor. The context is that of a person bringing an action to recover land who has been in possession of land but has been dispossessed or has discontinued his possession: paragraph 8 of Schedule 1 to the 1980 Act. His right of action is treated as accruing as soon as the land is in the possession of some other person in whose favour the limitation period can run. In that sense, and for that purpose, the other person's possession is adverse to his. But the question whether that other person is in fact in possession of the land is a separate question on which the word 'adverse' casts no light.

70. The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases there two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner. Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue. But it can be transferred from one person to another, and it can also be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. The acquisition of possession requires both an intention to take or occupy the land ('animus') and some act of the body ('corpus') which gives effect to that intention. Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice the best evidence of intention is frequently to be found in the acts which have taken place.

71. The nature of the intention that has to be demonstrated to establish possession was controversial, particularly among jurists in Germany …. But it is reasonably clear that the animus which is required is the intent to exercise exclusive control over the thing for oneself …. The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word 'adverse' in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. …. So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”

41. Lord Hutton reaches a similar conclusion, saying this (at paragraph 76):

“76. I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

42. Lord Hutton goes on (at paragraph 77) to cite with approval a passage from Slade J's judgment in Powell, where he said (at p.472):

“If [the occupier's] 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 the requisite animus possidendi and consequently as not having dispossessed the owner.”

43. In the same paragraph, Lord Hutton also cites with approval a further passage from the judgment of Slade J in Powell (at p.471-472) where Slade J said this:

“…. 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 processes of the law will allow.”

44. At paragraph 42 Lord Browne-Wilkinson considers whether it is necessary for the squatter to demonstrate an intention to own the land in order to be in 'adverse' possession, and endorses Hoffmann J's observation in Bucks County Council v. Moran [1990] Ch 623 (“Moran”) at 643 that what is required is “not an intention to own or even an intention to acquire ownership but an intention to possess”. He goes on (in paragraph 43) to cite as a correct statement of the law the passage from Slade J's judgment in Powell at pp.471-472 quoted in the preceding paragraph.
45. In paragraphs 44 and 45 of his speech Lord Browne-Wilkinson addresses the question whether, in order to amount to 'adverse' possession, the acts of the squatter must be inconsistent with the intentions of the paper owner, saying this:

“44. The decision of the Court of Appeal in Leigh v. Jack (1879) 5 Exch Div 264 has given rise to repeated troubles in later cases. In that case the plaintiff's predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being 'bounded by' Grundy Street and Napier Place: therefore the intention to use the adjoining land for streets was known to all parties. Within the 20-year limitation period, both Mr Leigh and the defendant had carried out work on a fence separating Grundy Street from other land of Mr Leigh, Regent Road. From 1854 onwards the defendant had placed on Grundy Street and Napier Place old graving dock materials, screw propellers, boilers and refuse from his foundry. In 1872 (four years before action brought) the defendant completely enclosed Grundy Street and Napier Place. The Court of Appeal held that the defendant had not acquired title to the enclosed land under the Limitation Act 1833.

45. The decision on the facts is not a surprising one. Quite apart from anything else, during the 20-year limitation period relied on, the paper owner (Mr Leigh) carried out works on the fence separating Grundy Street from Regent Road. This was inconsistent with a claim that he had either discontinued possession or been dispossessed. Unfortunately, other reasons were given. Cockburn CJ said that the defendant's storage of goods on the disputed land was not 'done with the view of defeating the purpose of the parties to the conveyances'. It will be noted that the defendant was well aware of Mr Leigh's intention to use the land as a public road since he was party to the conveyance so stating. Cotton LJ relied solely on the repair of the fence by Mr Leigh which I have mentioned as showing that there had been possession by him during the limitation period. The real difficulty has arisen from the judgment of Bramwell LJ. He said, at p.273:

'I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it….'

The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. Bramwell LJ's heresy led directly to the Wallis's Cayton Bay line of cases …., which heresy was abolished by statute. It has been suggested that the heresy of Bramwell LJ survived this statutory reversal but in [Moran] the Court of Appeal rightly held that however one formulated the proposition of Bramwell LJ as a proposition of law it was wrong. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could properly be drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.”

46. In paragraph 41 of his speech, Lord Browne-Wilkinson considers the requirement of factual possession. He cites as a correct statement of the law a passage from the judgment of Slade J in Powell at p.470-471 where Slade J said:

“…. Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on his land 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. …. 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.”

47. I should also refer to the decision of this court in Lambeth LBC v. Blackburn (2001) 82 P & CR 494 (“Blackburn”), which was approved by the House of Lords in Pye. The facts of Blackburn are not material, but Mr Gaunt seeks to draw support for his submissions from certain passages in the leading judgment, which was delivered by Clarke LJ. In paragraph 18 of his judgment, when referring to the need to establish intention as an element of adverse possession, Clarke LJ said this:

“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 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 had intended to keep others out.”

48. In paragraph 20 of his judgment, Clarke LJ said this:

“It is thus of crucial importance that the trespasser's acts must be unequivocal. They must make it clear to the owner, if present at the land, that he intended to exclude the owner, as Slade J put it 'as best he can' [a reference to the passage from the judgment of Slade J in Powell at p.472 quoted with approval by Lord Hutton in Pye at paragraph 77: see paragraph 42 above].”

49. In paragraph 36 of his judgment, Clarke LJ said this (a passage quoted with approval by Lord Hutton in Pye, at paragraph 79):

“…. I would not for part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that there be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention.”

THE JUDGMENT

50. After setting out the facts, the judge, at paragraph 55 of his judgment, turned to the law, referring to Powell, Pye, Blackburn and Leigh v. Jack.
51. In paragraph 70 of his judgment the judge referred to passages from Slade J's judgment in Powell which had been cited to him by Mr Gaunt, and which referred to cases in which a trespasser had entered on land and allegedly taken possession of it. The judge continued (in paragraph 71):

“Here, by contrast, as in [Pye], the alleged possessor started using the land under lawful title, and what converted that use into trespass was, as it were, holding over, that is to say, continuing to use the land as before, despite the expiry and non-renewal of the owner's temporary agreement. The difference is of legal importance since such a case involves a dispossession at the outset: see paragraph 38 of Lord Browne-Wilkinson in [Pye]. In a [Powell] type case, by contrast, the trespasser has to prove dispossession or discontinuance in other ways and this may be difficult as the cases show.”

52. As to Leigh v. Jack, on which Mr Gaunt had also relied, the judge said this (in paragraph 79 of his judgment):

“I, of course, accept the decision in the light of what was said subsequently about it, in particular in Pye, but it is significantly different on the facts from the present. It seems to me plain that, apart from what happened at the time of the road-widening works in 1993, and so far as relevant, Barratt's visit to the site in 1996, not the smallest act of any kind was done by the owner or on behalf of the owner, or with the authority of the owner, at or on this land at any time between the end of 1982 and the issue of the proceedings, and the owner was well aware of that.”

53. The judge then reviewed the detailed arguments which had been addressed to him and expressed his conclusions on them. In paragraphs 81 to 93 of his judgment, the judge said this:

“81. There is a question as to impact on the Defendant's possession of the use by the County of the working area during the month, at most, when the works were under way. Mr Morgan argues that this did not amount to a taking of possession by the Claimant and, therefore, did not limit the Defendant's possession of the whole of the land retained by the Claimant. At worst, however, he said that it had no effect on the Defendant's possession of the rest of the thirteen acres.

82. Mr Gaunt attacks this claim in two ways, both of them focussing on the requirement that the acts relied upon must be unequivocal. One argument is that the use of the land could be attributable just as well to a licence or profit a prendre, as to an intention to possess the land. As regards a licence, no doubt what the Defendant was doing could have been explained by an agreement such as existed before 1982 if there had been one, but there was not. Moreover, in my judgment, the farmer did have possession under those agreements, so the point gets the Claimant nowhere.

83. As regards a profit a prendre, that might be a legally possible, but practically bizarre explanation, for what the defendant was doing. I do not see that such a theoretical possibility of such a right makes the Defendant's acts equivocal or open, in realistic terms, to more than one explanation, namely that he was seeking to exercise custody and control to the exclusion of all others for his own benefit and on his own behalf. The profit a prendre theory would not account for the exclusion of others by locking the gates.

84. Mr Gaunt's more powerful argument is based on taking as part of [the] Defendant's relevant conduct his silent acquiescence in relation to the road-widening works in 1993. He submits, fairly, that in considering for these purposes the conduct of the person who claims to be in possession of the land, one must take the whole of the relevant conduct. He fastens particularly on passages already cited which refer to the intention to possess the land being manifested, so that if the owner were present at the property he would be aware that the trespasser had taken possession of it and intended to keep others out. See, in particular, [Blackburn], paragraph 18.

85. In my judgment, apart from the effect and implications of what happened in 1993, the Defendant's conduct does satisfy both elements in Lord Browne Wilkinson's formulation of the test in Pye at paragraph 40. Even someone unaware of farming practice would realise, looking with any care at the land, that all access points were locked, and the owner would know, if he gave any thought to it, that he did not have a key to any of the locks.

86. Such a person might not realise what was being done on the land unless he happened to attend on the day when some activity was being undertaken. There were, no doubt, many days on which no activity was being undertaken, the grass was simply growing. But an observer who knew something about farming, and this is after all agricultural land, would realise by looking at the land that it was not wild, derelict or abandoned, but was being used for a grass crop. The fact that this might not be realised by someone such as Mr Pels, does not seem to me to make the farmer's conduct other than manifest to the owner and the world.

87. How is this affected by what happened in 1993? Mr Gaunt's submission is that the Defendant could not pass the test of intention, because, when someone encroached on the land and moved the boundary, he did precisely nothing, which is not at all what an occupying owner might have been expected to do. He says that it shows that he was not attempting to exclude all others from the land. Realistically, as the cases show, a trespasser's intention in this regard has to be limited to what is practicable and what is allowed by the processes of the law. As against the true owner and anyone authorised by him, the trespasser cannot resist within the twelve year period and, therefore, no inference should be drawn from the fact that he does not.

88. Nor can this aspect of the test be posed in such a way as to reinstate the fallacious idea that the intention has been to own the land, and that that would have to be shown by acts as if of an owner. Mr Gaunt submits that, however one looks at it, in 1993, the Defendant submitted without protest to the owner's entry on the land. By not resisting, he deliberately chose not to manifest an intention to exclude the owner. He argues that if a trespasser chooses not to resist whenever the owner comes along and does something inconsistent with exclusive possession on his part, it would be wrong in principle, and unjust to deprive the owner of his title to the land.

89. He points to Lord Browne-Wilkinson's use of the phrase “control and custody” and asked rhetorically “What is more essential to control and custody of the land than maintaining and defending its boundaries?” He says, moreover, that by not defending this part of the boundary, he was manifesting an absence of intention to exercise custody and control in relation to any part of the thirteen acres.

90. Mr Gaunt constructed an attractive argument, but in my judgment, it is wrong and plainly so, in seeking to negative the Defendant's possession of the whole of the rest of the land by reference to his submission to the works in relation to the road strip and the temporary working area. The Defendant was in possession up to April 1993 of the whole of the land, as I have held, in the sense explained by Lord Browne-Wilkinson in Pye, paragraph 40.

91. During the works, he was excluded from the road strip and working area, two defined areas marked by the temporary fence on the fringe of the land, and very small in area in proportion to the whole. After completion of the works, he was only excluded from the road strip. He was able to, and did, use the former working area. During this period and afterwards, he continued to use the area available to him for the time being in exactly the same way as before. He renewed the gates and, as necessary, the padlocks. After May 1993, apart from the very slight realignment of part of the boundary, the position was the same on the on the ground as it had been before.

92. In my judgment, Mr Morgan is right to argue that what happened in 1993 did not affect the Defendant's possession, in Lord Browne-Wilkinson's sense, of the remainder of the land. If the manifestation of the intention to the world and the owner is a separate requirement from the existence of the intention to exercise custody and control to the exclusion of others, and for one's own benefit, then I hold that, in regard to the rest of the land, it was and continued to be, manifested by what the Defendant did and went on doing by way of operations on the land, and exclusion at the, by then, slightly adjusted boundaries.

93. The point appears to be new, in that no case cited to me has dealt with a situation in which a squatter has dispossessed the owner and thereafter, the owner resumes possession, but of part only of the relevant land. In principal however, given that the area affected was at all times defined on the ground, the effect of the owner's resumption of possession is limited to the area of which possession is resumed. It is not a case of entry on part in the name of the whole, in any sense. It was a precisely and deliberately limited operation in terms of its area and extent.”

54. The judge then addressed the issue whether the respondent's adverse possession claim succeeded in relation to the Working Area, saying this (in paragraphs 94 and 95 of his judgment):

“94. The further point which also arises is whether the County's use of the temporary working area, part of the Claimant's land, by the Claimant's licence, for up to a month in 1993, to facilitate and accommodate their works, has the effect of preventing the Defendant from making good the necessary twelve years' continuous adverse possession of that area. Cases such as Leigh v. Jack, where there was found never to have been a dispossession, do not help because here there had been. Once a third party is in passion, the owner may well have to do more than “the smallest act” to re-establish or resume possession. Here, however, the County's acts with the permission of the Claimant, count as the Claimant's own acts.

95. They amounted to defining an area, the working area, marking it out, enclosing it, and using for the time being to the exclusion of all others, albeit for only a few weeks. It seems to me that just as the Defendant remained in possession of the area outside the temporary fence, he clearly ceased to be in possession, for the time being, of the area outside the temporary fence. He therefore cannot satisfy the requirement of the statute, that he remain in adverse possession continuously for twelve years in respect of the working area.”

55. The judge accordingly concluded (in paragraph 98 of his judgment) that the respondent is entitled to be registered as proprietor of the whole of the land comprised in the appellant's title, save for the Working Area.

THE ISSUES ON THIS APPEAL

56. Although the appellant's grounds of appeal appeared to range somewhat more widely, in the event the appellant advances only two contentions in support of its appeal.
57. First, the appellant contends, relying on the grazing agreements, that the acts of the respondent on the disputed land following the expiry of the last of those agreements (that is to say as from 1 January 1983) did not amount to 'possession' of the disputed land or any part of it, within the meaning of Part I of Schedule 1 to the 1980 Act. I will refer to this issue as “the Possession Issue”. Secondly, if (contrary to the appellant's primary contention) the respondent can establish adverse possession of the disputed land from 1 January 1983 onwards, it is contended that the events of April 1993 amounted to an interruption in his adverse possession which, by the operation of paragraph 8(2) of Part I of Schedule 1 to the 1980 Act (quoted in paragraph 32 above), had the effect stopping time running. I will refer to this issue as “the Interruption Issue”.

THE ARGUMENTS

58. Mr Gaunt prefaces his submissions by reminding us that, as the House of Lords recognised in Pye, a party seeking to establish title by adverse possession must prove both factual possession and the requisite intention to possess, throughout a continuous 12-year period before action brought.
59. As to factual possession, he submits (adapting the words of Slade J in Powell at pp.470-471 in the passage cited with approval by Lord Browne-Wilkinson in paragraph 41 of his speech in Pye: see paragraph 46 above) that the respondent must establish that he was dealing with the land as an occupying owner might be expected to deal with it, and that no one else had done so.
60. As to intention, he reminds us (once again adapting the words of Slade J in Powell, this time at p.472, in the passage cited with approval in Pye by Lord Browne-Wilkinson (at paragraph 43) and by Lord Hutton (at paragraph 77)) that the respondent's conduct must manifest an intention, throughout the relevant period, to exclude the world at large, including the true owner, so far as is practicable. In support of his submission that the intention must be manifest, he relies also on the passages from the judgment of Clarke LJ in Blackburn quoted in paragraphs 47, 48, and 49 above.
61. Turning first to the Interruption Issue, Mr Gaunt submits that during April 1993, while the road widening works were being carried out, the respondent cannot be said to have manifested an intention to possess the disputed land (that is to say, any part of the disputed land) since, on his own frank admission, he deliberately laid low in order that the true owner should not become aware of his occupation. Far from manifesting the requisite intention, he submits, the respondent deliberately concealed it. Mr Gaunt submits that a person in possession will be expected to challenge anyone other than the true owner, and that the respondent's failure to challenge the workmen when they entered the land to start the roadworks undermines his contention that he was in adverse possession. He submits that by not challenging the contractors, the respondent was not dealing with the disputed land as an occupying owner might be expected to do.
62. Mr Gaunt further submits that even if the respondent was in factual possession of the disputed land prior to April 1993, the physical activities of the County's workmen in removing part of the boundary of OS9162 and replacing it in a different position, in cutting down trees, and in using the Working Area and erecting the temporary fence around it, constituted the most substantial interference with, and interruption of, his possession. He accordingly submits that even if time was running in favour of the respondent prior to April 1993, it ceased running in April 1993 pursuant to paragraph 8(2) of Schedule 1 to the 1980 Act.
63. In support of his submissions Mr Gaunt seeks to rely (as he did before the judge) on Leigh v. Jack. He submits that the facts of the instant case are a fortiori the facts in that case. The wholesale removal of the boundary along the length of the Road Strip (including Gate A and its stone gate-posts) and its reinstatement some 7.5 metres back from its former position, and the erection of the temporary fence marking the edge of the Work Area are, he submits, far more substantial and significant acts than the act of Mr Leigh in merely carrying out repairs to the fence at the end of Grundy Street.
64. Mr Gaunt submits that the judge made an error of law when he said (in paragraph 71 of his judgment, quoted in paragraph 51 above) that the difference between cases involving holding over, on the one hand, and cases involving trespassory entry, on the other, is “of legal importance”. He submits that there is no difference in law between the two categories of case, and that the required elements of adverse possession are the same in each.
65. He submits that the acts of the County's workmen on the Road Strip and the Working Area (including the erection of the temporary fence) are to be attributed to the entirety of the Disputed Land. He accepts that there is no absolute proposition of law to that effect, but he submits that that is the only true interpretation of the facts in the instant case.
66. Turning to the Possession Issue, Mr Gaunt relies on the terms of the grazing agreements for the submission that the respondent's continuing activities thereafter in relation to the disputed land (being the same as those which he carried out pursuant to the grazing agreements) did not amount to possession of the disputed land, since they were equally consistent with the existence of further grazing agreements. He submits that the respondent is in a weaker position by reason of his holding over following the expiry of the last of the grazing agreements than he would have been in had he entered upon the disputed land for the first time as a trespasser in January 1983. The reason for this, he submits, is that, properly interpreted, the grazing agreements did not confer on the respondent a right to possession of the disputed land, but merely a licence to carry out certain prescribed activities on it. Ergo, he submits, the mere fact that the respondent continued to carry out those same activities (and no other activities) following the expiry of the last grazing agreement does not establish that he was in possession of the disputed land.
67. On the Interruption Issue, Mr Morgan submits, relying on Pye, that a squatter is not required to draw the attention of the true owner to his occupation: such a proposition would, he submits, be contrary to principle and authority. He adopts the observations of Slade J in Powell (approved in Pye) as to the nature of the requisite intention. He reminds us that in a case where the squatter's possession is deliberately concealed from the true owner the provisions of section 32 of the Limitation Act 1980 may come into play. He submits that there is no question of deliberate concealment in the instant case in that the respondent's possession was entirely open. In this connection Mr Morgan relies strongly on the fact, as found by the judge, that the gates leading onto the disputed land were kept padlocked. He also relies on the judge's finding (in paragraph 86 of his judgment) that:

“…. an observer who knew something about farming, and this is after all agricultural land, would realise by looking at the land that it was not wild, derelict or abandoned, but was being used for a grass crop.”

68. Mr Morgan further submits that there is no factual basis for treating the activities which took place in April 1993 on the Road Strip and/or the Working Area as attributable in any way to the remainder of the disputed land. He points out that the temporary fence was erected by the County for the specific purpose of preventing workmen and machines from trespassing on the remainder of OS9162 while the works were in progress.
69. On the Possession Issue, Mr Morgan submits that the fact that a series of grazing agreements were entered into prior to January 1983 is wholly irrelevant. In any event, he submits, the grazing agreements do not help to resolve the Possession Issue, since they are entirely equivocal as to whether they had effect in law to confer the right to possession of the disputed land.

CONCLUSIONS

70. In the light of Powell and Pye, the following general propositions, relevant to the instant case, may in my judgment be stated.
71. First, the epithet 'adverse' in the expression 'adverse possession' in paragraph 8 of Part I of Schedule 1 to the Limitation Act 1980 refers not to the quality of the possession but to the capacity of the party claiming possessory title (“the squatter”) as being a person 'in whose favour the period of limitation can run' (per Lord Browne-Wilkinson at para 35: see para 39 above). In particular, it does not connote any element of aggression, hostility or subterfuge (per Lord Hope of Craighead at para 69: see para 40 above), nor does it throw any light on the question whether the squatter is in possession of the land (ibid.).
72. Second, the word 'possession' in the expression 'adverse possession' means no more than 'ordinary possession of the land' (per Lord Browne-Wilkinson at para 36: see para 39 above). However, in order to establish possession in this context, the squatter must prove (a) sufficient objective acts to constitute physical possession (“factual possession”) coupled with (b) an intention to possess (animus possidendi). “Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action” (per Lord Hope of Craighead at para 70: see para 40 above).
73. Third, an intention to possess must be distinguished from an intention to own: it is only the former which is relevant in the context of adverse possession (per Lord Browne-Wilkinson at para 42: see para 44 above). An intention to possess may be, and frequently is, deduced from the objective acts of physical possession (per Lord Browne-Wilkinson at para 40 (see para 38 above) per Lord Hope of Craighead at para 70 (see para 40 above) and per Lord Hutton at para 76 (see para 41 above)). However, where the acts relied on as objective acts of physical possession are equivocal, further evidence of intention may be required (see, e.g., per Lord Hutton ibid.) An intention to possess means, in this context, “an intention to occupy and use the land as one's own” (per Lord Hope of Craighead at para 71: see para 40 above). It is not necessary for the squatter to establish that he had a deliberate intention to exclude the true owner (ibid.): it is enough that he intends to exclude the owner “as best he can” (per Slade J in Powell at p.472: see para 42 above); or, to put it another way (as Slade J did in Powell at pp.471-472: see para 43 above), “to exclude the world at large, including the owner with the paper title if he be not the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”. The intention to possess must be manifested to the true owner, but where the objective acts of physical possession are clear and unequivocal, those acts themselves will generally consititute a sufficient manifestation of the intention to possess (per Lord Hope of Craighead at para 71 (see para 41 above) and per Lord Hutton at para 76 (see para 41 above)).
74. Fourth, as to factual possession, as Slade J said in Powell (at p.470-471) in the passage cited with approval by Lord Browne-Wilkinson in paragraph 41 (see paragraph 46 above):

“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.”

75. In general, therefore, a squatter will establish factual possession if he can show that he used the land in the way one would expect him to use it if he were the true owner and in such a way that the owner is excluded (per Lord Hope of Craighead at para 71 (see para 40 above) and per Lord Hutton at para 76 (see para 41 above)).
76. To the above propositions I would venture to add one further proposition. Just as the issue as to factual possession depends crucially on the facts of the particular case, so also, in my judgment, must the issue as to the existence of the requisite intention to possess. In particular, whether the existence of factual possession is sufficient in itself to establish the existence of the requisite intention to possess, or whether some further evidence of intention is required, must depend on the particular facts of the case.
77. On that footing, I turn first to the Possession Issue (which must logically be the prior issue, for if the respondent was at no time in factual possession of the disputed land, the Interruption Issue does not arise).
78. As indicated earlier, Mr Gaunt challenges the judge's finding that the respondent's activities on the disputed land constituted factual possession on the single ground that such activities did not differ from those of himself and other members of his family under the grazing agreements (which, he submits, did not in law confer any right to possession), and hence did not in the circumstances amount to possession of the disputed land.
79. In my judgment the earlier grazing agreements can have no impact whatever on the issue whether the respondent's activities on the disputed land during the relevant period amounted to factual possession. A submission similar to that which Mr Gaunt makes was accepted by this court in Pye but rejected by the House of Lords. However, in Pye the activities of the defendant, who, like the respondent in the instant case, had held over following the expiry of a grazing agreement, were found to be in some respects more extensive than his activities under the grazing agreement (see per Lord Browne-Wilkinson at paragraph 58), whereas in the instant case the respondent did no more and no less during the relevant period than he had done pursuant to the earlier grazing agreements. So it may be that, given this factual distinction, the point is still in some sense open. In my judgment, however, it would run wholly contrary to their Lordships' observations in Pye to hold that objective acts which would otherwise amount to factual possession during the relevant period can somehow be diluted or denatured by reference to dealings between the squatter and the true owner which, by their own terms, relate exclusively to some earlier period. Nor, in the light of Pye, can I see any basis for the proposition that a squatter who holds over after the expiry of an earlier consensual arrangement with the true owner is somehow in a weaker position in relation to his continuing activities on the land than a person who enters on the land for the first time as a trespasser and proceeds to carry out precisely the same activities.
80. In any event, like Lord Browne-Wilkinson in Pye, I am unable to derive any assistance from the terms of the earlier grazing agreements in the instant case. As Lord Browne-Wilkinson pointed out (at paragraph 56) it made no difference to the parties to the grazing agreements whether or not they created a tenancy or a licence, since in neither case would the agreements have conferred security of tenure. The same consideration applies in the instant case. If anything, I would agree with the judge (see paragraph 82 of his judgment, quoted in paragraph 53 above) that on their true interpretation the grazing agreements do confer a right to possession of the disputed land; but, for reasons already expressed, that issue does not in my judgment arise.
81. Accordingly I agree with the judge that the appellant fails on the Possession Issue.
82. I turn, then, to the Interruption Issue. In my judgment Mr Gaunt's submissions on this issue must also be rejected.
83. So far as factual possession is concerned, the County's activities on the Road Strip and the Working Area in April 1993 had, on the facts, no effect whatever on the respondent's continuing activities on the remainder of the disputed land. He continued to use it as he had done previously. On the particular facts of the instant case it would, to my mind, represent the height of artificiality and unreality to conclude that acts done on a specific (and relatively very small) part of the disputed land for a specific purpose unconnected in any way with the remainder of the disputed land somehow altered the quality of the respondent's continuing activities on the remainder of the disputed land. The facts of the instant case are in my judgment far removed from those of Leigh v. Jack. I agree with the judge that Leigh v. Jack is of no assistance in the instant case.
84. As to Mr Gaunt's submission that the respondent's conduct in April 1993 in not challenging the workmen when they entered on OS9162 manifested the absence of an intention to possess (i.e. to possess the entirety of the disputed land), once again that seems to me to fly in the face of reality. On the facts, the only effect of the road widening works on the disputed land was to enclose the Working Area for a period of about a month. I can see no basis for the suggestion that the fact that the respondent did not protest, or attempt to prevent the County's workmen from appropriating the Road Strip or occupying (temporarily) the Working Area, means that he did not intend to continue his factual possession of the remainder of the disputed land. Plainly, on the facts, he did so intend.
85. Generally, so far as the respondent's conduct in 'lying low' is concerned, in my judgment (and leaving aside the Land Registration Act 2002, which does not apply in this case) there can be no obligation in law on a squatter to draw the true owner's attention to the fact that time is running against him. As Neuberger J (as he then was) pointed out in Purbrick v. Hackney LBC [2004] 1 P & CR 553 at 560, it would be otherwise if the squatter had acted dishonestly; but in the instant case there is no suggestion of that. As Neuberger J said:

“…. it is to some extent implicit in the present law of adverse possession that an owner of property who makes no use of it whatever should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years is a long period during which to neglect a property completely.”

86. Of course, the activities of the squatter on the land must have been open and apparent to anyone who had eyes to see; but, as the judge correctly found, in this case they were.

RESULT

87. I would dismiss this appeal.

Lord Justice Hooper:

88. I agree.

Lord Justice Pill:

89. I also agree.