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High Court of Justice in Northern Ireland Chancery Division Decisions
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Cite as: [2001] NICH 10
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Neutral Citation no.[2001] NICH 10
Ref:
COGC3480
Judgment: approved by the Court for handing down
Delivered:
03.08.2001
(subject to editorial corrections)
COGHLIN J
This is an appeal brought by Sir James Dennis Compton Faulkner ("the appellant") from an order of the Deputy Registrar of Titles who dismissed the appellant's application for an order that he be registered as owner of lands situate at Ringhaddy, Killyleagh, Co Down on 22 June 2000.
The land to which this claim relates ("the disputed land") comprises a relatively small area on the south west border of Folio No 1568 where that folio forms a common boundary with Folio No 42295. Miss Julie Elizabeth Brown is currently the registered owner of Folio No 1568 while the appellant is the registered owner of Folio No 42295. To the south west Folio No 42295 has a common boundary with Folio No 37553 currently owned by Mrs Elizabeth Brown. In 1943 the registered owner of Folio No 1568 was Thomas Marshall and Folio Nos 1567 and 1569 were registered to Thomas Farrell. On 12 January 1943 Thomas Marshall transferred part of the island of Islandmore and Rock to the appellant's brother, Brian Faulkner, while, on the same date, Thomas Farrell transferred part of Islandmore together with the islands of Dunsy, Dunsy Rock, Gull Rock, Greenisland and Greenisland Rock to the appellant. Subsequent to the death of Thomas Marshall Folio No 1568 was transmitted to Thomas Farrell and the transmission registered on 26 February 1959. On 7 December 1973 Thomas Farrell transferred approximately one acre of land out of Folio No 1568 to Noel John Garfield Brown ("Garfield Brown") and on 4 January 1974 this was registered as Folio No 37553. On 24 June 1976, in consideration of natural love and affection, the residue of Folio No 1568 was transferred from Thomas Farrell to Nancy Green. On 19 December 1978 Nancy Green transferred further land from Folio No 1568 to trustees acting on behalf of the appellant thereby creating Folio No 42295 which was registered on 2 June 1980. On 4 March 1993 Julie Elizabeth Brown was registered as the owner of the residue of Folio No 1568.
For the purposes of the hearing before me Mr Orr QC represented the appellant while Mrs Elizabeth Brown and Miss Julie Elizabeth Brown ("the objectors") were represented by Mr McCloskey QC and Mr Goode. I am grateful to both sets of counsel for their careful, well researched and economic submissions.
Background facts and evidence
It seems to me that this aspect of the appeal may be usefully subdivided as follows:
(i) The origins of the appellant's claim
In opening the appeal on behalf of the appellant Mr Orr QC stated that the Faulkners commenced their use of the disputed land "believing it to be in family ownership". In the course of giving evidence the appellant referred to the circumstances in which Islandmore and the other smaller islands were transferred to himself and his brother by Thomas Farrell and Thomas Marshall in 1943 and recounted how the family thereafter engaged in farming the islands. At this time the Faulkner family lived at Tullynakill House, about five miles away from Ringhaddy, and a large barge was kept alongside the pier at Ringhaddy Quay for the purpose of transporting labour and machinery. The appellant maintained that, when the islands were transferred the brothers or, possibly, "the family" had also acquired the disputed land for the purpose of travelling to and from the islands. However, his evidence was far from clear as to how this acquisition had actually been achieved.
The appellant accepted that Miss Julie Elizabeth Brown was the owner of the "paper title" to the disputed land and accepted that he had always been aware that there was "some doubt about the form of the legal title". However, he also stated that he believed that there was some "paper title" which had been obtained by the solicitor acting on behalf of his father although this could no longer be found. The appellant stated that during the course of conversations when transporting material to the islands Thomas Farrell always referred to the disputed land as "your little piece of ground". However, in my opinion, this assertion requires to be treated with a considerable degree of scepticism since the appellant was quite unable explain why no steps had been taken to ensure that the disputed land was formally transferred at the same time as the islands and, at this time, Folio No 1568, which contained the disputed land, was in the ownership of Thomas Marshall and did not pass to Thomas Farrell until February 1959. The appellant's original affidavit referred to the disputed land as being acquired by "my father James Alexander Faulkner" from Thomas Farrell and Thomas Marshall but, despite their obvious significance, made no reference whatever to these alleged remarks by Thomas Farrell.
The appellant also produced a map, exhibited at page 1 of Appeal Book 2, which he said that he found ten to twenty years ago and which, according to the appellant, was prepared by an architect named Jack Neill. The appellant stated that this map had been drawn to define measurements "… so that somebody would know what to fence" in relation to the piece of land which he said had been acquired at the time when the islands were transferred. However, while it does appear to refer to the disputed land, this document itself does not contain any indication that it was in any way connected with the original transfer of the islands and it bears the word "lessor" for which no explanation was forthcoming in evidence. In the circumstances, I do not propose to place any significant reliance upon this document nor to draw any inference therefrom.
(ii) Use of the dispute land by the appellant, his family and associates
The appellant left boarding school in Dublin in 1944 and thereafter, until 1947/48 he was engaged in running the farm at Tullynakill and the islands. During this period the appellant agreed that the most common means of obtaining access to the islands, whether for machinery, grain or livestock, was by way of Ringhaddy House, then owned by the Farrells, or Ringhaddy Pier. The appellant also conceded that, after stopping the farming operations in 1948/50 he himself had not used the disputed lands for sailing purposes during the 1950s, 1960s or early 1970s. During this period the appellant sailed from Whiterock and also in different parts of the world and, if sailing in the Ringhaddy area, he gained access to the lough from Farrell's land. Apart from claiming that he occasionally walked over the disputed land with his dog, the appellant's evidence in relation to use of the disputed land between approximately 1949 and 1973 amounted to "sporadically assisting his brother" and giving permission for it to be used by others.
Mr Henderson, a partner in L'Estrange & Brett, solicitors, gave evidence of using the disputed land in the course of his longstanding friendship with David Faulkner, the appellant's nephew. He identified a number of photographs and described how the disputed land had been used for the storage of dinghies and parking cars. Mr Henderson's experience of using the disputed area lasted from the early 1970s to 1983/84 when David Faulkner joined the Cruising Club and started to use the marina. Mr Henderson learnt to sail at Ringhaddy and said that from about 1973 until 1983 he would have visited the area upon virtually every summer weekend. Mr Henderson recalled the presence of a gate giving access to the disputed land and a post and wire fence to which the painters of the dinghies could be attached. The appellant was personally known to Mr Henderson but, while one or two dinghies and, occasionally, a boat were often present, the only other person that Mr Henderson was able to recall using the disputed land was Mr Ronnie Campbell.
Mrs Elizabeth Brown, the widow of Garfield Brown, also recalled the appellant's nephew David being "quite often" on the disputed land prior to the formation of the Cruising Club together with his sister and younger brother. She did not recall ever seeing the appellant on the disputed land although she did see him "very frequently" on Folio No 42295. The only other persons that she could recall using the land for dinghies or boats were James Hunsdale and Ronnie Campbell.
James Hunsdale started work as a yachtsman for the appellant's father in 1952 after returning from wartime service with the Merchant Navy. He claimed that dinghies belonging to the Faulkner family were kept on the disputed land and used to gain access to the family yacht which was moored in Ringhaddy Sound. He stated that the small shed on the left-hand margin of the photograph of Bob Dougal's boat yard taken in 1964 belonged to the Faulkner family and that both he and the shipwright used it for storage purposes. According to Mr Hunsdale the disputed land was used both by the appellant and his brother or "anyone going to the islands". He and his nephew, Ronnie Campbell, kept dinghies or boats there with the permission of the Faulkners. Mr Hunsdale confirmed that, before the Cruising Club started, the appellant's brother and his sons had used the disputed land to gain access to their boats and islands and he said that, subsequent to the opening of the Cruising Club, the only regular users were himself, the shipwright Bob Scott, and his nephew Ronnie Campbell. He also agreed that the appellant had no need to use the disputed land for sailing purposes although, according to Mr Hunsdale, the appellant "regularly walked his dog over the disputed land".
Ronnie Campbell stated that he had started to use the disputed land to store his boat and trailer from about 1979. He stated that he received permission to do so from his uncle, Mr Hunsdale, although, in cross-examination, he maintained that he had visited the appellant and his wife when he had received personal permission. However, Mr Campbell conceded that he had never previously mentioned this meeting and had not included it in his affidavit. Accordingly, while Mr Campbell may well have been told by his uncle that he had the appellant's permission I do not place any significant degree of reliance upon this part of his evidence. I am satisfied that, at some stage, the appellant was aware of and approved the presence of Mr Campbell's dingy on the disputed land since Mr Campbell built the appellant a dingy in return for the appellant's agreement not to charge Mr Campbell rent. In addition, when Julie Brown's house was being constructed Mr Campbell's dingy was moved to the appellant's ground to allow for the operation of the machinery required to build the foundations.
(iii) User by persons not associated with the appellant's family
The evidence of most of the witnesses confirmed that, over the years, the disputed land has been used as a means of access by persons travelling to and from the shore. It was also used as a means of access for people travelling from their boats to the home of Mr Scott, the shipwright. The McGarvey family, who lived on a boat, travelled over the disputed land although Mr Hunsdale said that they tried to "dishearten" the McGarvey children from doing so. Mr Hunsdale agreed that "anybody" could come up from the shore over the disputed land and Mr Campbell referred to use by children and "day trippers". Mrs Green maintained that, from her childhood, the disputed land was always part of Bob Dougal's Boat Yard and, as such, was used by anyone in the boating season who had the approval of Mr Dougal. Miss Julie Brown, who believes that the disputed land forms part of her property, stated that it was used by different types of people including the McGarveys, the Scotts, people visiting the Scott premises, divers and people looking for the Cruising Club.
(iv) Works/construction relied upon by the appellant
(a) The channel
The appellant gave evidence that in 1977/78 he arranged for a contractor, who was then engaged in the construction of the Cruising Club marina, to use his machinery to clear the foreshore and to cut a channel from the disputed land into the lough. Mr McGall confirmed that he had arranged for the work to be done by two men and an excavator which was used to bring fine stone to the foreshore and to cut the channel. Mr McGall was unable to identify from the photographs any area of stone laid by the excavator although he was "pretty sure" that such work had been done. However, the channel which is not apparent in the aerial photograph taken in 1962 is clearly shown as running roughly parallel to Ringhaddy Quay and Mr Brown's slipway in the aerial photograph of 1996. Neither Julie Brown nor her mother had any recollection of the creation of this channel.
(b) The fencing, gate and shed
There was conflicting evidence about the nature, extent and date of installation of each of these items which is hardly surprising taking into account the timespan under discussion. For example, Mr Hunsdale maintained in direct evidence that the grey gate was installed in the early 1970s whereas in, cross-examination, he said that it had been hung "for the first time" after Julie Brown's bungalow had been completed. Mr Campbell thought that the gate and post and wire fence was present when he arrived in 1979. The appellant maintained that the shed, a disused railway container, was placed by his family on the disputed land and fenced off so as to keep away cattle shortly after the acquisition of the islands although the area was re-fenced and provided with a five-bar gate in 1972/3 when relations with the Farrells "cooled" as a result, the appellant claimed, of the latter family's support of the Vanguard Party. The appellant said that he had not renewed the fence since 1972/3 and that after he acquired the lands in Folio No 42295 there seemed "little point" in so doing. Nancy Green said that her recollection from childhood was that the disputed land always formed part of what was originally known as "Bob Dougal's boat yard" and that she did not remember it ever being "fenced off" as a separate unit. She denied the suggestion of a deterioration in relations between the Faulkners and the Farrells. However, in cross-examination by Mr Orr QC, Nancy Green accepted that the map associated with the creation of Folio No 42295 in 1978 showed the disputed land to be separated by a fence from what was then "Bob Dougal's boat yard". Nancy Green emphasised that when she sold Folio No 1568 to Garfield Brown in 1980 she believed it to contain the cottages, barn, boat yard, Ringhaddy Quay and the disputed land. Mrs Elizabeth Brown confirmed that this comprised Folio No 1568 as bought by her husband, Garfield, from Nancy Green and she said that she and her husband had been aware of fencing around the disputed land when they purchased Folio No 37553 in 1973.
I remain unconvinced by the appellant's evidence that the disputed land was fenced shortly after the acquisition of the islands in 1943. There does not appear to be any indication of such fencing in either the aerial photograph of 1962 or the photograph of Bob Dougal in his boat yard in 1964. On the other hand, both these photographs do appear to show the shed or railway container present in the relevant area. The plan prepared by Mr Neill does seem to show a continuous fence separating the disputed land from what was originally Bob Dougal's boat yard although it is not possible to tell from either the 1962 or the 1964 photographs whether this fence stopped short of the railway container or actually separated it from the boat yard. I consider that the most significant evidence relating to the gate and fencing came from Mr Henderson most of whose visits to the disputed land took place between 1973 an 1983. According to Mr Henderson during this period there was both a gate and a post and wire fence. It was to the latter that the dinghies were secured and he confirmed that this was illustrated in the photographs at page 27 of Volume 2. When Miss Julie Brown's bungalow was constructed by her father the raising of the foundations coupled with the white wooden fencing effectively separated the disputed land from the bungalow site. Mrs Elizabeth Brown had no recollection of the grey gate and was unable to say when it was first installed. She accepted that, in the course of building the bungalow for Julie Brown, her husband did not appear to have left any direct means of access from the site onto the disputed land although her daughter, Miss Julie Brown, did not accept that, in so doing, her father had effectively "sealed off" the bungalow site. Miss Julie Brown was unable to say who had installed the grey gate but agreed that she had taken no steps to have it removed.
(v) The application for planning permission
In support of his case the appellant relied upon the fact that there were no objections when he obtained planning permission to erect a "net store" on the disputed land in October 1977. I note that it is not necessary for an applicant for planning permission to own the land in respect of which permission is sought and, in any event, Nancy Green, who was the registered owner of the disputed land at the time had no knowledge of the application. Furthermore, when asked about this matter in cross-examination the appellant volunteered a detailed account of how he had been "commercially" fishing for prawns at the material time and that his intention had been to install a "fast freezer unit" in the store. He went on to say that the "requirement for fishing changed" and that the "Portavogie men came on the scene using trawls" as a result of which he abandoned the project although he later installed a fast freezer unit at Ringhaddy house in 1985. This scheme was not mentioned at all in the appellant's affidavit nor was it touched upon in the evidence of Mr Hunsdale who, according to the appellant, was also fishing for prawns and anxious to participate in the scheme. Neither the location plan nor the actual planning permission made any reference to this scheme or to the proposed installation of the fast freezer unit. In the circumstances I formed the view that this part of the appellant's evidence was essentially creative rather than historical.
The law
There was no real dispute between the parties as to the applicable legal provisions and the principles.
Section 53 of the Land Registration (Northern Ireland) Act 1970 applies the Limitation (Northern Ireland) Order 1989 ("the Limitation Order") to Registered Land. Article 21(1) and (7) together with Schedule 1 paragraphs 1 and 8 of the Limitation Order relate to the concept of "adverse possession".
The basic principles relating to the concept of possession under English law were set out by Slade J in Powell –v- McFarlane and Another (1977) 38 P&CR 452 and subsequently approved by the Court of Appeal in Buckinghamshire County Council –v- Moran [1989] 2 All ER 225. These principles are as follows:
(a) In the absence of evidence to the contrary, the owner of land with paper title is deemed to be in possession, and the law, without reluctance, ascribes possession either to him or to persons who could establish a title through him;
(b) A claimant to possession with no paper title must show both factual possession and the requisite intention to possess;
(c) Factual possession signifies an appropriate degree of physical control and it must be a single and conclusive possession. An owner and an intruder cannot both be in possession of land at the same time. Acts constituting 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 and, broadly, it must be shown that the intruder has been dealing with the land as an occupying owner might have been expected to deal with it and that no one else has done so.
(d) The intention to possess (animus possidendi) is also necessary to constitute possession and involves the intention, in ones own name and on ones own behalf, to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable and so far as the processes of the law allow. The courts require clear and affirmative evidence that the intruder, claiming that he has acquired possession, not only has the necessary intention to possession but has also made such intention clear to the world. As Slade J remarked at page 472 of his judgment in Powel –v- McFarlane in relation to this intention on the part of an intruder:
"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."
Applying these provisions and principles to the facts of this case I have reached the following conclusions:
(i) In my opinion the applicant's evidence falls far short of establishing, on a balance of probabilities, that he had either factual possession or intention to possess the disputed land subsequent to the acquisition of the islands in 1943. The documents of transfer show that, while some interest in the islands was transferred to the applicant the transferor was not the owner of the disputed land at the material time. In his affidavit sworn on 18 August 1999 the applicant alleged that the islands were acquired by his father who, at the same time, also acquired the disputed land in order to obtain access to the islands. The applicant conceded that there is no documentary or other evidence to confirm such a transaction. In the course of his evidence the applicant maintained that during conversations with Thomas Farrell the latter had often referred to the disputed land as "your little piece of ground". I do not accept that evidence nor do I accept the evidence of the applicant that, at the time of the transfer of the islands or shortly thereafter, the disputed land was fenced off and a gate installed. This does not appear to be consistent with the photograph of Bob Dougal's boat yard taken in 1964 or, in particular, with the aerial photograph of the area taken in 1962. In 1943 the applicant was a 16 year old student and, by 1947/1948 the family farming activities on the island had ceased and the applicant had joined the family business. That is not to say that members of the Faulkner family did not use the disputed land from time to time during this period and both the early photographs to which I have referred do appear to show the disused railway container to which the applicant has referred. However, I am inclined to the view that any such use took place in common with a number of other people using the area of "Bob Dougal's boat yard" for various boating activities. I also bear in mind that possession exercised at different times by several members of one family cannot grow into a possessory title for one of those family members alone; Morris –v- Pinches (1969) 212 Estates Gazette 1141.
(ii) It seems clear from the authorities that the erection of fencing may provide significant evidence of both factual possession and the intention to possess – see George Wimpey and Company Limited –v- Sohn [1967] Chancery 487 at 511A, 512A. In Buckinghamshire County Council –v- Moran Slade LJ, at page 236 observed that:
"As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon –v- Smith (1877) 36 LT 168 at 169:
'Enclosure is the strongest possible evidence of adverse possession …'
Russell LJ in George Wimpey and Company Limited –v- Sohn [1967] Chancery 487 at 511 similarly observed:
'Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.'"
According to his evidence, the appellant re-fenced the disputed land and installed a five-bar gate in 1972/73 when the relationship between the Faulkner and Farrell families began to "cool" as a result of the alleged support of the Vanguard movement. As I have already noted, the latter part of the this evidence was firmly rejected by Nancy Green. However, whatever the exact circumstances of its origin, I was satisfied by Mr Henderson, whom I considered to be an impressive witness, that the disputed land was fenced, apart from the foreshore, and accessed by a gate during the course of his user from approximately 1973 to 1983. This fence, although now fairly dilapidated, remains in position and the evidence of the appellant that he was responsible for erecting both the fence and the gate, ultimately, was not contradicted. Furthermore, it appears that no objection to the fence or gate was ever raised by Thomas Farrell, Garfield Brown, Nancy Green, Elizabeth Brown or Julie Brown. Indeed, when Garfield Brown, Julie Brown and the architect designed Julie Brown's bungalow no provision was made for convenient access between the dwelling and the disputed lands with the latter being effectively separated from the former by the six feet of increase in height of the foundation and the new wooden fence.
In Powell –v- McFarlane and Buckinghamshire County Council –v- Moran Slade LJ emphasised that the question as to whether 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. In this case the boundary of the disputed land leading on to the foreshore was not fenced but, if it had been, such fencing would have defeated the primary, if not the sole, user of the disputed land which was in connection with the launching, maintenance and storage of dinghies and boats. While there was some suggestion from Mr Hunsdale that the gate was occasionally locked when cars were present on the disputed land, I am satisfied, on a balance of probabilities that, in practical terms, the gate was rarely secured. In particular, Mr Henderson was unable to recollect the gate ever being locked. In Buckinghamshire CC –v- Moran the placing of a new lock and chain on the gate was a point of fundamental importance – see Slade LJ, at page 237; "In my judgement, however, the placing of a new lock and chain and gate did amount to a final unequivocal demonstration of the defendants intention to possess the land." However, in the context of the location and general user of the disputed lands, which I deal with further below, I have reached the conclusion that failure to keep the gate locked is not of such crucial significance in this case.
(iii) Mr McGall's evidence that, upon the instructions and at the directions of the applicant, he had cut a channel from the disputed land out into the lough was also uncontradicted. This appears to have been carried out in 1977/1978 when Mr McGall was employed by Ringhaddy Cruising Club on the construction of the new marina. Nancy Green transferred the land which was to become Folio No. 42295 to the applicant on 19 December 1978 and, about six or nine months thereafter, she sold the area which had originally been Bob Dougal's boat yard to Garfield Brown. However, no objection to the excavation of the channel appears to have been raised by Garfield Brown or by Nancy Green. In the circumstances, as with the fencing, it seems to me that the cutting of the channel was a significant action and relevant both to factual possession and the intention to possess. It also seems to me to be consistent with the evidence of some of the witnesses that, at the material time neither the applicant nor his brother were particularly "positive" about the creation of the marina. When he purchased the residue to Folio 1568 from Nancy Green Garfield Brown did not intend to develop it for some time but no evidence was called to suggest that the appellant was told that was Garfield Brown's intention or that the channel could only be used on a temporary basis. Furthermore the map annexed to the transfer of Folio 42295 clearly shows the disputed land separated from what was to become Garfield Brown's property by a fence.
(iv) I am satisfied, on the balance of probabilities, that, apart from the Faulkners and those who had the appellant's permission, other members of the public did, from time to time, use the disputed land as a means of access between the foreshore and the public road. It is difficult to be certain as to the extent of such use although it probably lies somewhere between the claims made by the witnesses called on behalf of each party. However, given the rural location of the disputed land and the general goodwill that exists between those concerned in the recreation of sailing and boating, I do not consider that such use significantly undermines the appellant case. There was no evidence that, apart from the appellant, anyone else dealt with the disputed land as an occupying owner.
The appellant's actual use of the disputed land from 1973 onwards has caused me rather more concern since, in my view, the evidence establishes that, in practical terms, it was his brother the late Lord Faulkner and his family who were the primary users. However, taking into account the installation of the fencing and gate and the construction of the channel, I have come to the conclusion that this was a single possession exercised on behalf of the appellant and his brother jointly – see Slade LJ in Powell –v- McFarlane at page 470.
The appellant's brother died in March 1977 and, in cross-examination, the appellant agreed that he did not personally use the disputed land for his own purposes after he acquired Ringhaddy House in 1980. However, I am satisfied that, after his death, the family of the appellant's brother continued to use the disputed land as did Mr Hunsdale and Mr Campbell. Mr Hunsdale and, after 1979, Mr Campbell did so with the appellant's permission and I consider that it is significant that it was the appellant and not Mr Garfield Brown who asked Mr Campbell to keep his boat on the moorings for a longer period so as to enable the contractor to use the disputed land as a means of working on the foundations for Julie Brown's bungalow.
Accordingly, in the circumstances, I am satisfied that the applicant has established on the balance of probabilities both the factual possession and the intention to possess necessary for adverse possession for a period in excess of twelve years from 1973 and, accordingly I propose to allow the appeal.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND