“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.”
“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.”
“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.”
“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].”
“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.”
“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.”
“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. ….”
“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. ….”
“…. [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’).”
“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. ….”
“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.”
“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 ofsection 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 ofsection 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.”
“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 theLimitation 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.”
“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.”
“…. 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.”
“…. 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.”
“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.”
“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].”
“…. 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.”
“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.”
“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.”
“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?”
“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.”
“…. 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 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.”
“…. 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.”