Roberts v Crown Estate Commissioners [2008] EWCA Civ 98

[2008] EWCA Civ 98Case No A3/2007/0970
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue CARDIFF DISTRICT REGISTRY
MR JUSTICE LINDSAY
5CF20113
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/02/2008
Before
LORD JUSTICE MUMMERYLORD JUSTICE JACOBMR JUSTICE MANN
Between
MARK ANDREW ROBERTSAppellantTHE CROWN ESTATE COMMISSIONERSRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR MARK WONNACOTT (instructed by Darwin Gray) for AppellantMR FRANK HINKS QC and MR THOMAS BRAITHWAITE (instructed by Farrer & Co) for RespondentHearing Hearing dates : 18 th and 19 th December 2007
JudgmentLord Justice Mummery :Introductory
[1]This appeal is brought with the permission of the judge (Lindsay J) from his order dated 24 April 2007 following a trial of preliminary issues. One of the issues relates to the Crown’s contention that it had acquired title by adverse possession to many acres of land forming part of the foreshore and bed of the Severn Estuary.[2]The order declared that the Crown Estate Commissioners (the Commissioners) had by adverse possession extinguished whatever title the claimant, Mr Mark Roberts , might otherwise have to the area of the estuary called “the Magor Land”, as marked on an annexed plan (there mis-spelt “Maygor”). The order also contained declarations relating to the title of nearby areas of estuary land which were the subject of contested claims between Mr Roberts and other parties to the litigation. This appeal by Mr Roberts is only concerned with title to the Magor Land.[3]Mr Roberts sued in his capacity as Lord Marcher of Magor, an ancient Welsh manor (or Lordship Marcher) acquired by him in 1997. He claimed paper title to the fee simple in the adjacent parts of the foreshore and the fundus of the Severn Estuary up to the centre of the deep water channel. He contended that this has been the legal position on title since the Norman Conquest, the parcel or bounds of the manor being determined according to ancient customary or Welsh law.[4]The Commissioners, against whom he sought a declaration of title to the Magor Land, constitute a statutory corporation responsible for the management of the Crown Estate on behalf of the Crown. The Commissioners’ position is that, although they maintain the Crown’s title to the Magor Land by ancient prerogative as residual royal demesne, the court should make a preliminary ruling on their alternative case that any paper title of Mr Roberts to the Magor Land has been extinguished under the provisions of the Limitation Acts 1939 and 1980. It is common ground that the parties’ money and the court’s time would be saved if a ruling on the adverse possession issue is made ahead of the trial. A finding of adverse possession in the Crown’s favour would make it unnecessary to examine the relative strengths of the historic titles upon which both sides would, if necessary, rely. The ruling could also affect other litigation between the same parties about a long stretch of the Pembrokeshire coastline. The trial of that action is due to take place this Spring.[5]The principal point raised by Mr Wonnacott, who appears for Mr Roberts, is that, as a matter of law, the Crown cannot acquire title by adverse possession against a subject except where its original entry on to the subject’s land, by its servants or agents, was lawful e.g. by holding over after a lawful entry. This legal impediment is based on a supposed fundamental constitutional principle, which successive Statutes of Limitation over the last 400 years and the Crown Proceedings Act 1947 (the 1947 Act) have not removed. The principle is that, as the Crown cannot commit a wrong against one of its subjects, it cannot base a claim to title by adverse possession on its dispossession of the subject’s land. This, it was submitted, was the corollary of the principle that a subject could not bring an action for ejectment claiming that the Crown had disseised him of his land.[6]According to Mr Wonnacott’s argument the Crown has to discharge the burden of proving that its presence on the Magor Land originated otherwise than in dispossession of the predecessors of Mr Roberts. It has not discharged this burden. He accepted that the principle is an historical anomaly. He added that it was difficult to think of any part of English land law in which its application to the Crown was not based on historical anomaly.[7]The judge rejected Mr Wonnacott’s submissions. He accepted the Crown’s case that under the express provisions of the 1980 Act it enjoyed the same legal rights as its subjects in limitation matters and that in the case of any person, including the Crown, pleading adverse possession under the 1980 Act, the nature of the possession was irrelevant. What mattered was that the person relying on the 1980 Act had been in ordinary possession of the disputed land for more than 12 years after the right of action to recover the land had accrued.[8]The judge rejected submissions that the Crown did not in other respects establish adverse possession under the 1980 Act by showing the appropriate intention to possess (animus possidendi) the Magor land. Mr Roberts’s case was that the intention to possess the disputed land required an intention to exclude the world at large, including the true owner, and that in this case the requisite intention was not established, the Commissioners’ own evidence being that it never wanted to exclude anyone who was the true owner of the Magor Land. On that aspect of the case, which involves consideration of the judge’s findings of fact on the preliminary issue, I granted permission to appeal on 11 July 2007.

General Background

[9]Mr Roberts’s Claim Form issued on 7 July 2005 (in which he sues under the name of Mark Andrew Tudor, Lord Marcher of Trelleck) stated that his claim was made in his capacity as Lord Marcher of Magor. This is only one of about 60 or so manors acquired by Mr Roberts over the years. He acquired the Lordship of Magor on 15 October 1997 and with it, he asserted, parts of the adjoining foreshore and bed of the tidal estuary of the River Severn on its Welsh side. The area in question lies to the south west of the first Severn Road Bridge. He claimed that the paper title of the manor dates back to the law applicable in the Marches of Wales following the conquest of the Principality of Wales by Edward 1 in 1282. The law was as stated in the Law Codex or Liber Cardiff de Confuetudinibus Walliae.[10]The land in question consists of thousands of acres of sand, mud flats and similar land running seaward from the Welsh shoreline up to the deep water channel of the Severn. The channel is close to the English shore. It once formed the historical boundary between England and Wales. As the judge observed, whatever the future may hold for the Severn Estuary (e.g.wind farms or a barrage for the generation of electricity from the extreme tides), the chief uses of the disputed land in the periods with which this case is concerned were dredging sand, which is the most remunerative use being done under licence, fishing (commercial fishing involving fixtures to stakes or poles driven into the soil), wildfowling and shooting. Even at high tide the sea on the Welsh shore is not deep. At low tide it is possible to walk in Wellington boots from the shore to roughly half way between the English and Welsh shorelines.[11]In order to protect his claim Mr Roberts set about registering a caution against first registration at HM Land Registry. In view of the conflicts between the rival claimants the Land Registry directed that there should be proceedings to resolve the dispute. The Crown asserted that it is the owner of Magor’s foreshore and river bed by ancient prerogative right, alternatively by adverse possession. There were also claims of adverse possession of parts of Magor by another defendant to the proceedings, Mr John Hanbury-Tenison. The Commissioners compromised his claim to part of the Magor Land.[12]The preliminary issues were directed to be tried on an assumption favourable to Mr Roberts. The assumption, which was made only for the purposes of the hearing and judgment on the preliminary issues, was that Mr Roberts and his predecessors had the claimed capacities that entitled them to ownership of the claimed estates, rights and interests.[13]Most of the legal argument before Lindsay J and in this court was whether there was a general legal principle that the Crown cannot base a title to adverse possession against a subject on an act of dispossession or disseisin.[14]There were also factual and legal disputes between Mr Roberts and the Commissioners about the acts of possession and the relevant intention relating to the Magor Land, on which the judge heard evidence and made findings of fact. The judge found that the Magor Land had “a common area of locality” and that no-one except the Commissioners seemed to have exercised control or to have enjoyed possession of it throughout the period between the 1960s and 1997 in any way likely to be apparent to others. Throughout that period there had been uninterrupted dredging on repeated and frequent visits by vesselsauthorised by the Commissioners and paid for to the Commissioners by various licensees. The judge concluded that “ 214 ….by 1980 and, a fortiori, by 1990 there had been such unbroken, obvious and exclusive control and possession by the Commissioners over Magor as was sufficient in duration and kind to have barred the title of Mr Roberts’ predecessor in title. Were it necessary to do so I would have held that such unrivalled possession had been continued at least until Mr Roberts’ acquisition of Magor in October 1997.”[15]On the question whether the Commissioners’ acts were accompanied by the necessary animus possidendi the judge accepted the evidence of the Commissioners. The evidence established that the Crown owns virtually the entire seabed in the United Kingdom out to the 12 mile limit; that, as a result, it is also the owner of the material that lay on the seabed; that the Commissioners deliver management of the Crown Estates marine assets; that the Crown uses foreshore agents and has regular meetings with local authorities and national government on the Crown Estate’s behalf; that the Crown Estate “as landowner” granted licenses to dredge in Magor and has done so at least since 1958; and that the Commissioners have obligations to maintain and enhance the value of the Crown Estate. He concluded:
“221. In these circumstances, I am unable to find any general policy or practice of the Commissioners which, of itself, by denying the existence of an appropriate animus, negates their claim to adverse possession of Magor. In particular Mr Jacobson’s answer that the Commissioners would not intentionally trespass on another’s land does nothing, in my view, to deny the appropriate animus in a case where, as the 1957 memorandum itself states, the Crown believed it was prima facie entitled to every part of the area concerned.”
[16]Lindsay J reviewed the evidence as to the required animus and concluded that at all material times- “223 … the Crown has, in relation to Magor, accompanied its acts of possession and control with the animus possidendi of a putative owner.”[17]His overall conclusion (in paragraph 224) was that given his findings on the Commissioners’ acts of possession and control over and their animus with respect to the Magor Land, their claim to have barred Mr Roberts’ title by adverse possession and limitation succeeded.[18]It will be necessary to deal with the factual aspects of the case in more detail when considering the narrow and broader aspects of Mr Roberts’ second ground of appeal. It is first necessary to consider the provisions of the 1980 Act, which are relevant to both grounds of appeal.

The 1980 Act and its interpretation

[19]The 1980 Act, which replaced the Limitation Act 1939, has been in force since 1 May 1981. The Limitation Acts 1939 and 1980 set the limitation period for actions, including actions for the recovery of land. I shall refer to the provisions of the 1980 Act, which are not materially different from the 1939 Act under which the Crown claimed that the limitation period had expired and the paper title to the Magor Land been extinguished before the 1980 Act came into force. The provisions applying to an action for the recovery of land have been explained and interpreted by the House of Lords in the leading case of J APye (Oxford) Ltd v. Graham [2003] 1 AC 419; [2002] UKHL 30 (Pye).[20]Mr Wonnacott’s legal submissions on limitation followed historical chronology. They started with the common law origins of land law and traced the legislative history of adverse possession both generally and as it affected the Crown down the centuries to the present day. The 1980 Act was approached as the product of an historical process. Of course legal history explains how the law came to be what it is, but from a practical point of view, the 1980 Act is the legal point of reference for the resolution of the preliminary issues in this case. Limitation of actions is the creature of statute, not of the common law. The 1980 Act is the current statute in force.[21]Section 37 (1) of the 1980 Act does not support the argument that, in the limitation of actions for the recovery of land, there is a difference in the treatment of the Crown and its subjects. On the contrary, it provides- “Except as otherwise expressly provided in this Act, and without prejudice to section 39, this Act shall apply to proceedings by or against the Crown in like manner as it applies to proceedings between subjects.”[22]The section is subject to immaterial exceptions (proceedings for the recovery of tax and certain forfeiture proceedings.) The 1980 Act makes no other special provision for the Crown in respect of limitation, either generally or, in particular, for actions for the recovery of land, save for Part II of Schedule 1.[23]The general rule is that no action for the recovery of land may be brought by any person after the expiration of 12 years from the date on which the right of action accrued to him or to the person through whom he claims: section 15. Part I of Schedule 1 to the 1980 Act contains provisions for determining the all-important date of accrual of rights of action to recover land in various cases mentioned: section 15(6).[24]The provisions in paragraph 1 of the Schedule relate to dispossession and discontinuance of possession and when a right of action to recover land is treated as accruing:
“1. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.”
[25]Paragraph 8(1) of Part I is critical to the rival arguments on the requirement of adverse possession by the Crown. It provides that “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.”[26]Section 17 provides for the extinction of the title to the land at the expiration of the limitation period for bring an action to recover the land. “Subject to (a) section 18 of this Act….at the expiration of the period prescribed by this Act for any person to bring an action to recover land ….. the title of that person to the land shall be extinguished.”[27]The supposed constitutional principle did not find its way into the 1980 Act nor, for that matter, in any of the earlier legislation. In the course of oral argument I suggested to Mr Wonnacott that it might be possible to make his main submission on the application of the 1980 Act in the following way: assuming that the Magor Land was in the possession of the Crown for 12 years, paragraph 8 is not satisfied because the effect of the constitutional principle proposed by him was that the Crown was not “a person in whose favour the period of limitation can run.” Accordingly, there was no “adverse possession” of the Magor Land by the Crown within paragraph 8, no right of action was treated as accruing to his client and time did not begin to run against him. Mr Wonnacott accepted that, although the constitutional principle did not find specific expression in the 1980 Act (or its predecessors), this was how his main submission could be fitted into the legislative framework of the 1980 Act.[28]The judicial interpretation of the 1980 Act in Pye identifies the principles underlying the rival submissions on adverse possession and their application to the facts of this case. Pye was not, of course, a case of adverse possession by the Crown. No mention is made of the position of the Crown, special or otherwise. It is, however, the leading case on the limitation of actions for the recovery of land between subjects. In accordance with section 37(1) of the 1980 Act, it applies to this case.[29]In his opinion Lord Browne-Wilkinson traced the history of limitation of actions for the recovery of land in the successive statutes and in the case law down to and after the 1980 Act. His interpretation of the 1980 Act, in which the other members of the Appellate Committee concurred, confirmed that the person claiming adverse possession must establish the two elements of factual possession of the relevant land and an intention to possess on his own behalf and for his own benefit.[30]Lord Browne-Wilkinson also explained how the doctrine of “non-adverse possession” developed by the courts in their interpretation of the earlier legislation had not survived the 1833 Act, adding that from then on “the only question was whether the squatter had been in possession in the ordinary sense of the word.” The 1939 Act re-introduced the expression “adverse possession” which was carried over into the 1980 Act, but it was defined in such a way that it related to the capacity of the person in possession rather than to the nature of the person’s possession of the land. The person in possession must be a person in whose favour time can run. Time begins to run in that person’s favour from the moment that a right of action for the recovery of the land accrues to the paper title owner.[31]Lord Browne-Wilkinson said - “35. From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. From 1833 onwards the only question was whether the squatter had been in possession in the ordinary sense of the word …Paragraph 8(1) of 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 a person in whose favour time ‘can run.’ It is directed not to the nature of possession but to the capacity of the squatter. …Although it is convenient to refer to possession by a squatter without the consent of the true owner as being ‘adverse possession’ the convenience of this must not be allowed to re-introduce by the back door that which for so long has not formed part of the law. 36. 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.”[32]Pye confirmed thatexclusive ordinarypossession of land with the necessary intention by a person, in whose favour time can run, is “adverse possession” without more. For the right of action to accrue to the paper title owner and for time to run against him there is no need for any further inquiry, for example into how the person in possession originally acquired possession of the land, whether it was in consequence of an unlawful act of trespass or was initially lawful, as under a licence. There will be a “dispossession” of the paper title owner where a person assumes possession of the relevant land in the ordinary sense of the word (paragraph 38).[33]Numerous general propositions of the law relating to adverse possession were discussed in the court below. They feature in Lindsay J’s comprehensive judgment. Most of the propositions are neither controversial nor directly relevant to the grounds of this appeal. Bearing in mind that this is a judgment and not a text book or a law journal article on limitation, it is only worth mentioning the legal propositions briefly as general background to the law relevant to the grounds of appeal: what is possessed by the person in possession is the fee simple in the relevant land; with some obvious exceptions possession is against the fee; there can only be one person in possession of the fee simple at any one time, joint tenants counting as one person; the paper title owner is deemed to be in possession of the fee simple unless and until someone else acquires possession of it; there is a difference (“a bright line” as Mr Wonnacott put it) between persistent acts of trespass to land and exclusive enjoyment of the fee simple, usually in the presence or absence of the animus possidendi; a person does not acquire possession until he obtains exclusive enjoyment; what amounts to exclusive enjoyment of the fee simple depends on the nature of the property; a person claiming title by adverse possession must enjoy the fee simple for the full limitation period and, if there are breaks, possession reverts to the paper title owner and time starts running again; someone must be in possession of the land, the default position being that the paper title owner is in possession of the fee; and an act which is lawful as against the paper title owner cannot be an act of possession against his title, even if the person doing the act does not know that it is lawful.

Crown Proceedings Act 1947 (the 1947 Act)

[34]Before 1947 claims against the Crown for the recovery of land were by petition of right, not by ordinary action. The 1947 Act abolished the petition of right (section 1) and made it possible for a subject to sue the Crown by ordinary action for the recovery of land and for tort generally: section 17.[35]Section 2(1)(a) provided that- “Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :- (a) in respect of torts committed by its servants or agents....” (a) in respect of torts committed by its servants or agents....”[36]The rule that the Crown could not be liable in tort has been abolished. Like any other corporate body it can be vicariously liable for the acts of its servants or agents.

The judgment

[37]Mr Wonnacott’s principal legal submission was that the Crown was and is still a special case in the limitation of actions for the recovery of land. It is submitted that, in the case of a claim by the Crown to adverse possession of a subject’s land, it crucially matters how the Crown’s possession of the subject’s land originated. For reasons to be found in the special and historic legal standing of the Crown its possession of the disputed land must, it is asserted, be shown to have had a lawful origin.[38]Starting out from Magna Carta the judge dealt in detail with the various authorities and texts cited in support of general propositions that the Crown could do no wrong and that it could not be sued in its own courts without its consent and for the particular propositions that Crown cannot be disseised of its land, or disseise a subject of his land so as acquire title to land by adverse possession. He dealt with the submission that, in claiming the benefit of the law on limitation of actions, the Crown can only rely on limitation in the case of “deforcement.” This unfamiliar expression covers, for example, the case of lawful possession following a discontinuance of possession by the paper title owner.[39]The judge considered the impact of the statutes of limitation, in particular the Real Property Limitation Act 1833, the Limitation Act 1939 and the 1980 Act, as well as the 1947 Act.[40]The judge noted that the importance of the points made by Mr Wonnacott was that the Commissioners did not claim that their entry onto the Magor Land began by way of “deforcement”, such as a vacancy or as a person holding over after the expiration of a lease or licence granted to the Crown by a predecessor in title of Mr Roberts. If the Crown’s right to plead limitation in response to an action for recovery of land is limited to such cases and it does not make out such a case, then it fails on the preliminary issue of adverse possession.[41]On the particular submission that the Crown cannot disseise a subject and cannot be heard to say that it came into possession of the Magor Land by an act of disseisin or dispossession of a subject, the judge reached the conclusion on which the main ground of appeal is based - “123 ….I hold that at no time material to the Commissioners’ claim to adverse possession of Magor or Caerleon has it been the case that they or their predecessors have been unable to assert their possession against the Claimant, even if it was possession acquired by way of disseisin or that which, before 1834, would have been a disseisin. More broadly, I have found it impossible to accept that the rule that the King can do no wrong that served to underline the advantage and privileged position of the Crown, should have been capable of mutating, without first dying, into a rule that would after the Act of 1947, put the Commissioners at a disadvantage not suffered by the ordinary citizen. It is striking that Mr Wonnacott has been able to find no authority truly on all fours with his argument and that there is no hint of it in the comprehensive review of the law in Pye. Moreover, as a form of comment available now that the Law Reports proper are in computerised form, Mr Braithwaite tells me that nowhere does the word “deforcement” appear in them.”[42]The judge added that, if he was wrong on that point and the Commissioners could only assert adverse possession in a “deforcement” case, he would accept that they had failed to prove relative to the Magor Land that they entered by way of deforcement and their adverse possession plea would fail.

Appellant’s submissions: the constitutional principle point

[43]Mr Wonnacott cited many texts and precedents in support of his basic submission that prior to the 1833 Act it was not legally possible for the Crown to disseise a subject of his land, that possession of land cannot pass in law to the Crown by a disseisin and that the Crown was unable to claim title by adverse possession by relying on the passage of time since a disseisin of the disputed land by a servant or agent of the Crown.

Pre-the 1833 Act

[44]The legal materials include chapter 29 of Magna Carta, which provided that “no Freeman shall…be disseised of his Freehold ..but by lawful judgment of his Peers, or by the law of the Land.” This sets the tone of much that follows, but it is not, and cannot be, relied on for the existence of a special constitutional rule limiting the ability of the Crown to rely on statutes of limitation, which were not then, but are now, part of the law of the land.[45]Mr Wonnacott cited passages from the Year Books and from Holdsworth’s History of English Law for the proposition that the Crown could not commit disseisin. As to possession of a subject’s land passing to the Crown by disseisin he placed particular reliance on a passage in Christopher St German’s Doctor and Student (1530), which he described as a work of great authority, Selden Society Edition (1974) at p 65 [text in modern spelling]- “Also there is a maxim in the law of England that the king may disseise no man, and that no man may disseise the king and that no man may disseise the king in such wise that a freehold could pass by such disseisin from the king to another, or vice versa, nor pull any reversion or remainder out of him. Also the king’s excellency is so high in the law that no freehold may be given to the king nor be derived from him but by matter of record.”[46]Mr Wonnacott relied on the Case of the Duchy of Lancaster (1561) 1 Plow 213 at 326-327 for the proposition that seisin can only pass to the Crown as a matter of record. Seisin could not therefore pass to the Crown either by livery of seisin or by the disseisin of a subject’s land by a Crown servant. The case arose from the wish of Queen Elizabeth I to know whether a lease granted by Edward VI of some land within the Duchy while under the age of 21 (“ during his nonage”) was voidable. The judges, sitting first at Serjeant’s Inn and then in Spooner’s Hall in Fleet Street, unanimously held that it was not voidable. Their decision was based on two grounds. The principal reason, which is not relevant to the present case, was that the king’s natural body was inseparable from his body politic (a corporation sole), which was never under age. The second ground was that the king could not acquire seisin, save as a matter of record. He could not acquire land by livery of seisin.[47]Noy’s Dialogue and Treatise on the Law of Tenures (9th edition) includes the following passage at p 339 “And further, nothing can pass from the king, nor for the most part to the king, but by matter of record, viz: by letters-patent under the great seal; and that the king cannot pass any thing by livery of seisin, nor by matter in fait; nor cannot desseise, nor be disseised.”[48]Friend v. Duke of Richmond (1667) Hardres 461 was decided by Hale CB and then affirmed by the full Court of Exchequer on a pleading point. It was an action for ejectment between two subjects. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant (usually called “Mr Doe” or in this case “Mr Friend”). In that case there could not be an entry, as the Crown had already obtained a judgment based on an information of intrusion and a person could not enter against the Crown. The claimant responded that he was not bound by the judgment, as he was not a party to that action and so he could allege an entry. In overruling the objection Sir Matthew Hale observed obiter at p462 that “the King cannot gain any thing by wrong; so that he cannot be a disseisor, but [only] they that enter.”

The 1833 Act

[49]The 1833 Act came into force at the beginning of 1834. It abolished the forms of action relating to land (the real actions, the assize of novel disseisin and so on). Only the action of ejectment survived for the recovery of land. The limitation period for the recovery of land was 20 years. (It was reduced to 12 years by the Real Property Limitation Act 1874.)[50]Time was deemed to run from the date that the person in possession had been dispossessed or had discontinued possession. The doctrine of non-adverse possession of land did not survive the 1833 Act. Mr Wonnacott accepted that, although the Crown was not expressly mentioned in the 1833 Act, the discontinuance provision meant that the Crown could plead adverse possession in cases where its possession had a lawful origin, as in cases of discontinuance (“deforcement”). Discontinuance occurred in cases where the paper title owner abandoned possession followed by the actual possession of another person in whose favour or for whose protection the Limitation Act could operate. See Mc Donnell v. Mc Kinty (1847) 10 ILR 514, 526 per Blackburn CJ.[51]Mr Wonnacott submitted that the 1833 Act did not reverse the constitutional rule that the Crown could only acquire possession as a matter of record and could not acquire possession by doing an act that amounted to a disseisin.[52]The case of A-G v. Tomline (No 3) (1877) 5 Ch D 750 (Fry J), reversed by the Court of Appeal (1879) 15 Ch D 150, was cited as the first (and, it seems, the last) reported case in which the Crown successfully claimed adverse possession of land against a subject. For more than 20 years the Crown had been in possession of land forming part of a manor in Suffolk owned in fee simple by Colonel Tomline, who entered the land in order to dig out mineral material (coprolites-fossilised dinosaur dung). The Crown had entered the land upon the expiry of a licence granted to the Lieutenant-Governor of a nearby fort, Alexander Mair, for life if he so long continued governor, which he ceased to be in 1811. The Crown was in possession of the land for more than forty years and claimed possessory title.[53]On the Crown’s complaint of intrusion against Colonel Tomline, he admitted that the Crown had acquired title by adverse possession, but contended that it was only a copyhold title, rather than a fee simple, by reason of encroachment from land held by the Crown on an adjoining manor. The reason behind this contention was that the minerals belonged to the lord of the manor who owned the land in fee simple, not to the copyholder.[54]The Court of Appeal unanimously held that the Crown had acquired a fee simple by adverse possession, and not simply a copyhold title. The minerals belonged to the Crown. No-one in the litigation raised the point that the Crown had taken possession of the disputed land by disseisin. There was no investigation into the question whether the Crown’ entry onto the disputed land was lawful or unlawful. James LJ, however, touched on this point (at page 158) “From the time of the determination of Mair’s tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before [the Real Property Limitation Act 1833] it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute.”[55]According to Mr Wonnacott, James LJ was wrong in treating the wrongful possession of the land by the Crown as not excluding the operation of the Limitation Acts and in regarding it as unnecessary to inquire into whether the origins of the Crown’s possession of the disputed land were lawful. However, Mr Wonnacott accepted that the decision was plainly right if viewed as a decision on the Crown acquiring title to land by deforcement, which was sufficient after the 1833 Act, rather than by disseisin. On this point there was disagreement. In my judgment, an analysis of the facts of the case supports the view that it was probably not a case of deforcement or discontinuance. The Crown was never in lawful possession of the land. The licence by the lord of the manor was to The Lieutenant Governor, Mair. The Crown taking of possession of the land after Mair’s vacation of office in 1811 may have been a case of disseisin by the Crown rather than a case deforcement and lawful entry by the Crown. (see the argument p.754 before Fry J and p.155 in the Court of Appeal).

Limitation Act 1939

[56]Mr Wonnacott submitted that the 1939 Act consolidated and amended the law. It did not change the substantive law, the ingredients of the causes of action or the procedures for the recovery of land which, in the case of a claim against the Crown, was still by way of petition of right. Nor did the 1939 Act contain anything about the circumstances in which possession could be transferred to the Crown.[57]Unlike the 1833 Act, there were some provisions in the 1939 Act affecting the position of the Crown in matters of the limitation of actions. As far as limitation against the Crown was concerned this was previously governed by the Nullum Tempus Acts, which were repealed. The provisions of the 1939 Act applied to proceedings by or against the Crown in like manner as to proceedings between subjects (section 30). In the case of a petition of right, which remained as a remedy until its abolition by the 1947 Act, the proceeding was deemed to have commenced on the date on which the petition was presented.

The 1947 Act

[58]As for the 1947 Act, it abolished the petition of right, substituted an ordinary action for the recovery of land against a government department (the Commissioners being an authorised department under section 17(1)) in which the remedy is by way of declaration rather than order for possession of the property. The 1947 Act also made the Crown, like any other corporate body, vicariously liable for the torts committed by its servants or agents in the course of their service.[59]It was submitted by Mr Wonnacott that the 1947 Act did not abolish or change the rule that the King could not commit a wrong, such as the dispossession of the land of a subject. It is therefore still necessary for the Crown’s original entry on the land to have been lawful if the Crown is seeking to invoke the doctrine of adverse possession against a subject. As the Crown could not acquire possession by dispossession, the only way it could acquire title by adverse possession was by proving a discontinuance (deforcement). He accepted that a Crown servant or agent can acquire a fee simple by adverse possession, whether the original entry was by disseisin, or deforcement, as in the case of an original lawful entry on the land.

Discussion and conclusion on constitutional principle point

[60]Looking first to the 1980 Act as the indisputable current law on adverse possession of land, a serious obstacle in the way Mr Wonnacott’s submissions is the provision (section 37(1)) that the 1980 Act applies to the Crown as in the case of subjects of the Crown. The Crown is treated in the same way as a subject. Subject to the exceptions defined in s.37(2) it is neither better off nor worse off.[61]As between subjects, the law laid down in Pye is that the origin of the possession of the person relying on adverse possession is irrelevant to the barring of an accrued right of action. This means that adverse possession can originate either in an unlawful entry into possession dispossessing the paper title owner or in a lawful entry, as under a licence or tenancy, followed by a discontinuance of possession by the paper title owner. What matters is that a right of action has accrued to the paper title owner and that the person claiming adverse possession is in ordinary exclusive possession of the disputed land for more than 12 years.[62]Mr Roberts’s case on the 1980 Act has to be that it left intact, without any express saving provision, a constitutional principle placing the Crown at a disadvantage not shared by its subjects. In my judgment, the only way in which this could have occurred in the face of section 37(1) was through the requirement of Schedule 1 paragraph 10 that the person in possession of the land must be a person in whose favour time can run and that the Crown’s unique and continuing constitutional handicap in cases of possession originating in disseisin of a subject’s land prevented it from “being a person in whose favour time could run.”[63]This possible application of the 1980 Act means that it is necessary to consider the authorities and texts relied on for the existence of the supposed constitutional rule.

The authorities and texts

[64]Legal materials spanning a period of 500 years were cited for a substantive constitutional principle or rule that the Crown could not in law disseise a subject of his land and could not, therefore, plead adverse possession of land so acquired. Conspicuously absent from the cited materials is any binding judicial decision to that effect.[65]Neither the Duchy of Lancaster case nor the citations from St German’s Doctor and Student and Noy are about limitation or adverse possession. The Duchy of Lancaster case is about Crown conveyancing practice. Transfer must be by record, not by way of livery of seisin. The Duke of Richmond case contains only dicta about disseisin in the context of a technical pleading point in ejectment.[66]More important, no argument was raised in Tomline that there was a legal impediment to the Crown acquiring title to the claimant’s land by adverse possession and with it the minerals in the land. The arguments focused on other aspects of the case, namely the difference between copyhold and freehold title and the rules affecting encroachment. I agree with Lindsay J that Tomline is not authority for the proposition that after the 1833 Act the Crown could not disseise a subject of his land. The alleged distinction between deforcement and disseisin is not even referred to in the case. As already observed, the facts stated in the report seem to disclose a case of disseisin by the Crown, which took possession after the cesser of Mair’s licence. The passage cited from the judgment of James LJ is weighty dicta against the existence of the distinction at the centre of Mr Wonnacott’s submissions.[67]I agree with Mr Frank Hinks QC appearing for the Commissioners that the supposed constitutional principle that the Crown could not disseise a subject of his land is not established by the authorities cited. The submission for it appears to be based on a misunderstanding of a procedural bar on actions against the Crown in the courts for recovery of land and on any other actions alleging that the Crown had committed a wrong.[68]It was common ground that pre-1947 in a case involving the Crown the paper title owner of the land in question had the following rights of action to recover land:(a) an action could be brought by a subject against the Crown servant or agent personally and the Crown servant could plead that the right of action against him was statute barred; and(b) there was available to a subject the remedy by petition of right for the recovery of land in the possession of the Crown, though not for a wrong committed in the taking of the land from the subject.[69]The pre-1947 bar was on a subject bringing an ordinary action against the Crown for the recovery of land claiming that it had committed a wrong against the subject. Now, however, that such an action is available against the Crown post-1947, it follows, in my view, that there is no possible legal basis for denying to the Crown the ability to plead a limitation defence that any of its subjects can plead or for treating the Crown’s ordinary possession of another’s land as other than that of a person in whose favour time can run under the 1980 Act. As Mr Hinks commented, there would be no point in making the Crown liable to an action in tort and to an action for the recovery of land in its possession if it remained, as Mr Wonnacott submitted it did, constitutionally incapable of committing a wrong by taking possession of the subject’s land and wrongfully retaining possession of it.[70]In addition the provisions of the 1980 Act, its underlying policy and the general principles that can be extracted from it are all against acceptance of the constitutional principle. Quite apart from the express provision putting the Crown on the same footing as its subjects in matters of limitation, the general purpose and policy of setting time limits on actions for the recovery of land by the paper title owner (the protection of long continued possession of land in the public interest of certainty and stability, and the protection of defendants against the injustice of stale claims, which become more difficult to rebut with the loss of evidence in the passage of time) apply to land in the possession of the Crown as much as they apply in the case of land in the possession of another subject.[71]Mr Hinks rightly observed that the practical consequences of Mr Wonnacott’s submission, besides being contrary to public policy in the protection of possession, were repugnant to common sense in that the longer the period of the Crown’s possession of land the more difficult it would be for it to establish a limitation defence by proving that its possession of the disputed land had a lawful origin, as in the case of discontinuance, rather than an unlawful origin in taking possession “as of wrong.” This is, however, subject to the fact that, if it is possible to do so, the law may infer a lawful origin from long possession: see, for example, Goodman v. Corporation of Saltash (1882) 7 App Cas 633.[72]As indicated earlier, Mr Wonnacott’s special constitutional principle is not consistent with the general principle applicable to actions for the recovery of land between subjects that the law’s concern is with the fact of ordinary possession of another’s land rather than with the nature of the possession, or whether it had a lawful origin.[73]In summary I conclude that, if contrary to my opinion, there ever was a constitutional principle or rule limiting the right of the Crown to acquire title to land by adverse possession, it ceased to exist by reason of the combined effect of the 1947 Act and the 1939 Act. As against another subject, a subject can obtain adverse possession of land having a root in an unlawful entry into possession. The same law that applies between subjects applies as between the Crown and its subjects. There was no express provision in the 1939 Act or the 1947 Act preserving or saving a rule. Nor can one be implied, as it would be inconsistent with the express provision that the same law applies to the Crown as applies to a subject.[74]I would dismiss this ground of appeal.

Appellant’s submissions: intention point

[75]As to factual possession in the ordinary sense of the word, Lindsay J explained that what acts constitute sufficient physical exclusive control of the relevant land depended on the circumstances, including the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Thus fishing could, on appropriate facts as to the way the fishing was carried out, be taken as a possessive act against the paper owner.[76]It was accepted by Mr Wonnacott before Lindsay J that the dredging of the Magor Land under licence from the Commissioners was an act which could be attributed to possession by the Commissioners of the area covered by the licence. The judge assumed in favour of Mr Roberts that such acts required that the consideration payable under the licences, if not clearly waived, is indeed paid.[77]The other acts of possession on the Magor Land included acts of regulation and management and, besides continuous unbroken dredging licences from 1958 to date and some fishing, authorising prospecting by boreholes, licensing the dumping of spoil, archaeological and related use and, most dramatically of all, military use in the Second World War by consenting to use of part of the Magor Land as an RAF bombing range, air firing range and gunnery practice area.[78]The judge held that there was ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that there is “such a common character of locality as would raise a reasonable inference “that, if a person were possessed of one part of it as owner then he would so possess the whole of it.”[79]The grounds of appeal concentrated on the element of intention to possess. The general principle is that no-one is in possession of land unless accompanied by the intention to possess it in one’s own name and on one’s own behalf and to exclude the world at large, including the owner with paper title, “so far as is reasonably practicable and so far as the processes of the law will allow” : Powell v. McFarlane (1979) 38 P & CR 452 at 471 per Slade J, approved in Pye at 437 and 447.[80]It was argued that the Crown has failed to prove this exclusive possession in the case of the Magor Land. It was submitted that the person invoking the doctrine of adverse possession must actively intend to exclude the whole world, not just the paper title owner, so far as the process of the law allows.[81]Lindsay J found that the Commissioners resolutely believed that they were the true owners of the Magor Land of which they claimed title by adverse possession (paragraph 52). He held that, as a matter of law, this belief did not negate the intention to possess.[82]Lindsay J’s judgment on this aspect of the preliminary issues was criticised on two grounds, one narrow based on the existence of a claim to a paper title of the Magor Land or part of it by Mr Hanbury-Tenison and the lack of an intention on the part of the Commissioners to exclude him from the Magor Land, the other of broader application based on the Commissioners’ own evidence about their intentions generally and their lack of intention to exclude the true owner or anyone who might have a better title than the Crown..[83]The important fact on the narrow ground was that there was a rival claim to part of the Magor Land by the third defendant, Mr Hanbury-Tenison, as Lord of the Manor of Porton. It was argued by Mr Wonnacott that the Crown did nothing to exclude him or his predecessors from the Magor Land. It was never made plain by the Crown that it would do its best to exclude him from the Magor Land.[84]Mr Wonnacott also advanced a broader ground of appeal based on general statements in the evidence of Mr Jacobson on behalf of the Commissioners that the Crown never wanted to exclude from the Magor Land anybody who might have a better claim than the Crown; that they valued integrity and would never intentionally trespass on someone else’s land. Mr Wonnacott argued that the requirement of an intention to possess must be present and unconditional and that it is not satisfied if the person in ordinary possession intends to possess only until the paper title owner appears and demonstrates his superior title.

Discussion and conclusion on intention point

[85]As for the narrow ground, the judge was entitled to conclude that the Commissioners did not have to do anything to exclude the Lord of the Manor of Porton from the Magor Land for the period of 12 years of possession by the Commissioners, as there was no act of possession by Porton over the Magor Land during that period (paragraph 209). The claim was withdrawn in a Deed of Compromise in January 2007 shortly before the trial of the preliminary issue. Mr Hanbury-Tenison abandoned the claim to adverse possession of part of the Porton/Magor Land[86]The judge was entitled to conclude that there were insufficient acts of Porton relating to the Magor Land such as to “deny the Commissioners the role of having been in exclusive possession and control of Magor at least from the 1960s to the 1990s.”[87]As for the broader ground it has not been demonstrated, in my judgment, that the judge was wrong in ruling in favour of the Commissioners. There was evidence that they believed that the Magor Land was foreshore and, as such, part of the Crown Estate. As Saville LJ explained in Hughes v. Cork (14 February 1994 unreported) it is obvious that it is possible for a person who (albeit mistakenly) believes himself to be the true owner to have the requisite intention to exclude others and to acquire title by adverse possession. Adverse possession is not confined only to those who think or know that they are trespassing on someone else’s land. All that matters for limitation purposes is that the person claiming adverse possession is in factual possession together with an intention to exclude everyone else. There is no sensible reason why a person who mistakenly believes that he is the true owner of land and behaves accordingly should be denied the benefit of a limitation defence, which is available to a person who commits the wrong of taking and retaining possession of land which he knows belongs to another person.[88]There was evidence that the Commissioners treated and managed the Magor Land in accordance with their statutory duties and powers, as manifested in physical acts from which the requisite intention could be inferred to occupy and use the land as their own (see Pye at paragraph 71 per Lord Hope), for example, the grant of dredging licences. The Magor Land is prima facie foreshore, as to which there is a common law presumption that it is in the ownership of the Crown.[89]There was evidence that the Commissioners considered that, in order to establish title against the Crown’s presumed entitlement, a claimant would have to prove express grant or evidence supporting the presumption of a grant based on acts of ownership. The Commissioners would not contest by legal proceedings claims supported by sufficient evidence and which they were advised made the Crown’s title doubtful. This policy of the Commissioners was consistent with an intention to occupy and use the land as the Crown’s own. It did not mean that the Commissioners lacked an intention to exclude the true owner in so far as they could. The fact that the Commissioners did not intend to trespass on the Magor Land is consistent with the presence of the requisite intention to be in possession of it.

Result

[90]I would dismiss the appeal. The alleged historic and constitutional distinction between disseisin of land by the Crown, in which case it could not plead limitation, and deforcement, in which case the Crown could plead limitation, has not been established by Mr Roberts. The Crown has the same right as its subjects to rely on the law of limitation, which was enacted for a purpose which applies as much to the case of the Crown itself as it does to the Crown’s subjects. Even if the position were possibly different at some remote period in legal history, which would be surprising as the Crown was treated as a favoured litigant, modern legislation (the 1947 Act and the 1939 and 1980 Limitation Acts) have put the matter beyond doubt. On this point the same law of limitation applies to both Crown and citizen.

Lord Justice Jacob:

[91]I agree. Mr

Justice Mann:

[92]I also agree.