HIGH COURT APPEAL CENTRE BRISTOL
ON APPEAL FROM THE BRISTOL COUNTY COURT
2 Redcliff Street, Bristol BS1 6GR
B e f o r e :
| (1) FOOD CONVERTORS LIMITED
(2) THOMAS OSBORNE ROTHSCHILD
- and –
|(1) PETER TERENCE NEWELL
(2) MARILYN CONSTANCE DIANE NEWELL
Mr John Sharples (instructed by Middletons) for the Respondents
Hearing dates: 11 April 2018
Crown Copyright ©
MR JUSTICE MORGAN:
The work done along the blue line
(1) the work in question was carried out in late 1989 or late 1990 but in any event before October 1991;
(2) the principal item of work was the placing of hardcore, clay and topsoil so as to form a bund along the blue line;
(3) the bund was between 4 and 5 feet high when constructed and had settled further over time;
(4) the bund ran the length of the blue line;
(5) Mr Rothschild removed a fence which existed along the blue line when he began the work to create the bund;
(6) the bund was to the south of the pre-existing fence;
(7) Mr Rothschild replaced the pre-existing fence with a new stock proof post and wire fence; the posts were 6 feet high;
(8) Mr Rothschild did not erect a fence to the south of the bund;
(9) Mr Rothschild planted laurel bushes on the top of the bund along its length; as planted, the bushes were not much more than whips about 1 foot high; there were considerable gaps between the position of the bushes;
(10) Mr Newell was aware of the above work being carried out; at the time he believed that the bund was constructed on Mr Rothschild's land; it seems to have been the case that Mr Newell believed that the pre-existing fence marked the boundary between his land and Mr Rothschild's land; on that basis, Mr Newell believed that the new fence, erected on the line of the pre-existing fence, marked the boundary;
(11) Mr Newell did not object to the work done by Mr Rothschild and he acquiesced in it;
(12) the disputed land was the land within Mr and Mrs Newell's registered title between the blue line and the red line;
(13) the disputed land was said to be approximately 44 metres from west to east; if that measurement only applied to the length of the blue line within Mr and Mrs Newell's registered title then the length of the bund was greater than 44 metres;
(14) the width of the disputed land was 12 metres at its widest point and 4.5 metres or less at its narrowest point (presumably on the eastern boundary of the disputed land).
The judgment of the Recorder
"59. I do conclude that the combination of the bund and the improved stock-proof fence on its northern line were features which were capable of forming part of acts which, taken overall, were sufficient to prove exclusive possession. Individually they were not perhaps "impenetrable" as the Claimant asserted, and neither did they prevent some trespassing by travellers who came onto the land at some stage in the early 1990's, as discussed below, and who, I accept from Mr Newell's evidence, came through the bund, the trees and the fence onto this land causing a nuisance when they did so. But I do not think that the test which applies to a boundary feature is one to be measured by "impenetrability" to a determined trespasser (or for example a burglar) who is able to surmount it. Similarly I would not have regarded the line of laurel trees as sufficient in themselves and neither do I find that they were at any time an impenetrable barrier. But taken together the bund and the northern fence (which I will collectively describe as the combined boundary feature) were as I find an act which was capable of supporting both the fact of possession and the manifestation of the requisite intention.
61. The difficulty for the Claimant's case lies in [the] fact that firstly the combined boundary feature did not enclose the disputed land, secondly nothing else defined or excluded access to the disputed land on its western or southern boundaries of the disputed land, thirdly there is generally a dearth of reliable evidence as to this use of the land over the relevant period, and fourthly there is evidence, which I accept, of extensive and regular continued use of the land by the Defendants and others. I have identified the first difficulty already and I will discuss each of the remaining points in turn."
(1) Mr Rothschild's work to create the bund and the new fence did enclose the disputed land because that land became part of a larger field where the rest of the land in the field was owned by Mr Rothschild and where the whole field was enclosed;
(2) the existence of a small gap on the western side of that field did not prevent the disputed land being effectively enclosed;
(3) Mr Rothschild had dispossessed Mr and Mrs Newell in relation to the disputed land;
(4) the lack of evidence as to Mr Rothschild's use of the disputed land did not weaken his case for adverse possession given that the disputed land had been enclosed by Mr Rothschild, that Mr Newell believed that the disputed land belonged to Mr Rothschild and that Mr Newell allegedly admitted that he had not crossed the disputed land at any time before 2006;
(5) when Mr and Mrs Newell entered the disputed land, they did so as trespassers as they had to cross Mr Rothschild's land to get to the disputed land;
(6) the lack of use by Mr Rothschild of the disputed land and the fact that Mr and Mrs Newell walked their dogs on that land did not deprive Mr Rothschild of possession of that land; in any case, Mr Rothschild used the disputed land as an occupying owner might have been expected to deal with it;
(7) the Recorder did not deal adequately with the question of Mr Rothschild's intention to possess the disputed land;
(8) the Recorder did not resolve issues which now needed to be resolved and the matter should be remitted for hearing before a different judge.
(1) there is a presumption that the owner of land with a paper title is in possession of the land;
(2) if a person who does not have the benefit of this presumption wishes to show that he is in possession of the land, the burden is on him to show that he is in factual possession of the land and that he has the requisite intention to possess the land;
(3) for a person to show that he is in factual possession of the land, he must show that he has an appropriate degree of physical control of the land, that his possession is exclusive and that he has dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so;
(4) whether a person has taken a sufficient degree of control of the land is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed;
(5) the person claiming to be in possession may be in possession through his tenant or licensee, if that tenant or licensee has, on the facts, sufficient control of the land to amount to factual possession;
(6) the person seeking to show that he has had possession of land must show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title;
(7) the relevant intention is an intention to possess and need not be an intention to own;
(8) the intention to possess must be manifested clearly so that it is apparent that the person now claiming to have been in possession was not merely a persistent trespasser;
(9) if the acts relied on are equivocal then they will not demonstrate the necessary intention;
(10) it is possible in some cases for a person in possession to add to his own period of possession, the period of time during which his predecessor was in possession; this applies in particular where the predecessor relinquishes possession to a person who then takes possession.
"In relation to their use of the disputed land Mr Newell and his wife both described that they walked with their dogs "most mornings" over the disputed land and have done so throughout the relevant period and since. In doing so they both used the gap in the hedge created by the travellers onto the yellow section of the disputed land."
In this paragraph, the Recorder referred to "the relevant period" which would seem to be a period of 12 years prior to October 2003. He also referred to Mr and Mrs Newell using the gap in the hedge to gain access to the disputed land. However, earlier in his judgment, the Recorder had referred to a gap which was created in 1992 and therefore not as early as October 1991.