“9. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. … The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the evidence that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The position is binary. There is no room for ‘maybe’. 10. Next there is the question of the standard of proof. Civil judges do not find facts on the basis of what is scientifically certain, nor even of what is beyond reasonable doubt. Instead, they find facts on the basis of what is more likely than not to have happened, the so-called “balance of probabilities”
“First All those pieces or parcels of freehold land situated in the Parish of Feock in the County of Cornwall and containing in the whole 35 acres one rood and 16 perches or thereabouts together with the dwelling house cottages and outbuildings erected thereon and known as Penhale and the boathouse and quay at Pill which said pieces or parcels of land and premises are more particularly described in the First Part of the First Schedule hereto and are for the purpose of identification and not that of limitation delineated in the plan annexed hereto and thereon coloured blue…”
“Secondly All those pieces or parcels of freehold land situated in the Parish of Feock aforesaid and containing in the whole Ninety-six acres one rood and one perch or thereabouts Together with the farmhouse and outbuildings erected thereon and known as ‘Pill Farm’ which said pieces or parcels of land are more particularly described in the Second Part of the said First Schedule hereto and are for the purpose of identification and not of limitation delineated on the said plan and thereon coloured green Together with such rights as the Vendors have in the Foreshore abutting on the said lands lastly described Except nevertheless and reserving out of this conveyance (i) to the Vendors their heirs and assigns owners of the cottages and premises at Pill Creek shown on the said plan and all others having the light right the right as hitherto enjoyed of access to and taking water from the spring on the piece of land Numbered 1512 on the said plan (ii) to the Vendors their heirs and assigns owners of the piece of land containing Two acres and thirteen perches and coloured mauve on the said plan the right as hitherto enjoyed of passing and repassing along the South-West of the pieces of land respectively numbered 1409 and 1510 on the said plan…”
“ALL THOSE pieces or parcels of freehold land situated in the Parish of Feock in the County of Cornwall and containing on the whole Three hundred and fifty nine acres one rood or thereabouts together with the Mansion House cottages and outbuildings erected thereon and known as ‘Trelissick House’ and the pleasure grounds, gardens, parklands, Home Farm, Woodlands, Boathouses and quays and Yacht Anchorage which said pieces or parcels of land and premises are more particularly described in the first part of the first schedule hereto and are for the purpose of identification and not of limitation delineated in the plan annexed hereto and thereon coloured red Together with such estate and interest only as the Vendors may have in the said foreshore …”
“FIRST ALL THOSE pieces or parcels of land forming part of Pill Farm Feock Truro in the County of Cornwall comprising 127.45 acres or thereabouts shown for the purpose of identification only edged red on the attached plan (“the Plan”) [ … ]”
“Right of Access to Spring in No. 1512 on Plan is reserved out of this Lot to the Cottages and all others at Pill Creek. Also a Right of way along the South-West of Nos. 1409 and 1510 on Plan for Lot 71”
“ALL THOSE pieces or parcels of land situate at Pill Creek in the Parish of Feock in the County of Cornwall lying to the South East at the termination of the road leading from Trevilla to Pill Creek aforesaid which said pieces of land forming part of the closes of land Numbered 1427 and 1522 on the Ordnance Survey Map for the said Parish and are for the purposes of identification and not by way of limitation or enlargement delineated on the plan next to the said Conveyance dated the Twenty Seventh day of July One thousand nine hundred and seventy three and thereon verged Pink and Green … ”
“The boundaries are ill-defined except between Carrick and Pentire [sic], where a hedge exists which is mutually maintained, and a Cornish hedge on the northern boundary … ”
“It is believed that Mr Mills, a previous owner of the property, surfaced the top road for his own use, but there is no agreement regarding its maintenance”
“We regret that we do not understand the reference … to the roadway referred to running in a North Westerly direction but possibly this is because the plan supplied is only an extract from a much larger plan”
“A lease is held for use of the Private Quay at a payment of£20 per annum. A turning space to the rear of the property is rented for the sum of£1 per annum.”
“Subject to the Purchasers contributing a fair proportion of the cost of maintaining such roadway in a reasonable state of repair and condition”
“My family have been the owners of the main part of the Property [coloured red on the plan below] for many years (although in 2004 they acquired the secondary area of land currently comprised within registered title number CL 205991 [ie the Driveway]) and are therefore very familiar with it. My grandmother inherited the Property on her husband’s death in 1967. When my grandmother died, the Property passed from her to my parents and eventually passed to myself and my registered co-proprietor.”
“35. … Para 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 the possession but to the capacity of the squatter. Thus a trustee who is unable to acquire a title by lapse of time against the trust estate (see section 21) is not in adverse possession for the purposes of para 8. … 36. … 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. 37. It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their ordinary meaning. 38. … There will be a ‘dispossession’ of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner for the purposes of Schedule 1 para 1 … Therefore in the present case the relevant question can be narrowed down to asking whether the Grahams were in possession of the disputed land, without the consent of Pye, before30 April 1986 . Twelve years before the first issue of proceedings by the claimant. If they were, they will have ‘dispossessed’ Pye within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.”
“For a claimant to establish the necessary intention by his conduct, that conduct must be unequivocal in the sense that his intention to possess has been made plain to the world. If his conduct is equivocal and that intention has not been made plain, his claim will fail.… It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the world including the paper owner, if present at the land, for the requisite period that he was intending to possess the land. The claimant must of course be shown to have the subjective intention to possess the land but he must also show by his outward conduct that that was his intention.”
“ … the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the adverse 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 intended to keep others out.”
“46. In a number of cases (such as the present case) squatters have given evidence that if they had been asked by the paper owner to pay for their occupation of the disputed land or to take a lease they would have been prepared to do so … Once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime.”
“72. An entry charge of this sort can aptly be described as carrying with it an implied licence. The entrant who pays and the man on the gate who takes his money both know what the position is without the latter having to speak any words of permission (although he may qualify the permission by saying that no dogs, or bicycles, or radios are allowed). Similarly (especially in a small village community where people know their neighbours' habits) permission to enter land may be given by a nod or a wave, or by leaving open a gate or even a front door. All these acts could be described as amounting to implied consent, though I would prefer (at the risk of pedantry) to describe them as the expression of consent by non-verbal means. In each instance there is a communication by some overt act which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass.”
“79. Acquiescence, by contrast, denotes passive inactivity. The law sometimes treats acquiescence as equivalent in its effect to actual consent. In particular, acquiescence may lead to a person losing his right to complain of something just as if he had agreed to it beforehand. In this area of the law it would be quite wrong, in my opinion, to treat a landowner's silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons. To do so would be to reward inactivity; despite his failing to act, and indeed simply by his failure to act, the landowner would change the quality of the use being made of his land from use as of right to use which is (in the sense of the Latin maxim) precarious.”
“The respondents' claim to possession can be stated in a few words. They are the fee simple owners of No. 315, including the site of the shed, so far as it is on that land; they have cleared off the lease which stood between them and their present right to possession; and, although the appellant as squatter was entitled to hold possession against the lessee, he had held no adverse possession against them until by the surrender of the lease, which took place on December 14, 1959, their right to claim possession from him accrued for the first time. As they began their ejectment proceedings in August 1960 their right is not statute barred.”
“If a man makes an offer to purchase freehold property, even though the offer be subject to contract, he is quite clearly saying that as between himself and the person to whom he makes the offer he realises that the latter has a better title, and that would seem to be the plainest possible form of acknowledgment. Mr. McCulloch, however, has ingeniously argued that when an intending purchaser makes an offer to purchase he does not thereby acknowledge that the vendor can prove or establish the title which the purchaser is entitled to have on a sale and purchase of land. He says that the letters, properly understood, mean merely: ‘If you can prove your title in a manner which I am bound to accept, then I will buy,’ and accordingly, so the argument proceeds, there is no acknowledgment of the vendor's title. We are quite unable to accept that argument. Of course an intending purchaser does not acknowledge that the vendor has a marketable title when he makes an offer to purchase. That is a matter for inspection of title and requisitions at a later stage. But he does acknowledge that as between himself and the vendor the vendor has the better title to the land, and that seems to us to be all that is required. True, the plaintiff did not know the identity of the owner, but he knew that he was dealing with the owners' agent, and that, in our judgment, is sufficient (see section 24 (2)).”
“76 On the other hand, I agree with the Court of Appeal [in the present case] on the issue of whether the offer to purchase the freehold of the property, as contained in the letter, was an acknowledgement sufficient to satisfy section 29, subject to the fact that it formed part of without prejudice negotiations. While any statement has to be construed by reference to its context, an offer to purchase an interest, even if made expressly ‘subject to contract’, will, at least in the absence of special facts, amount to an acknowledgement of the offeree's title to that interest. The decision in Edginton v Clark[1964] 1 QB 367 was, in my view, correct on this point.”
“PART 9 ADVERSE POSSESSION 96 Disapplication of periods of limitation (1) No period of limitation undersection 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered. (2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge. (3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him. 97 Registration of adverse possessor Schedule 6 (which makes provision about the registration of an adverse possessor of an estate in land or rentcharge) has effect [ … ] SCHEDULE 6 REGISTRATION OF ADVERSE POSSESSOR Section 97 Right to apply for registration 1(1) [A] person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application. (2) [A] person may also apply to the registrar to be registered as the proprietor of a registered estate in land if— (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and (c) the eviction was not pursuant to a judgment for possession. (3) However, a person may not make an application under this paragraph if— (a) he is a defendant in proceedings which involve asserting a right to possession of the land, or (b) judgment for possession of the land has been given against him in the last two years. (4) For the purposes of sub-paragraph (1), the estate need not have been registered throughout the period of adverse possession. 2(1) The registrar must give notice of an application under paragraph 1 to— (a) the proprietor of the estate to which the application relates, (b) the proprietor of any registered charge on the estate, (c) where the estate is leasehold, the proprietor of any superior registered estate, (d) any person who is registered in accordance with rules as a person to be notified under this paragraph, and (e) such other persons as rules may provide. (2) Notice under this paragraph shall include notice of the effect of paragraph 4. 3(1) A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5. (2) The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide. 4 If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate. 5(1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met. (2) The first condition is that— (a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and (b) the circumstances are such that the applicant ought to be registered as the proprietor. (3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate. (4) The third condition is that— (a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application. (5) In relation to an application under paragraph 1(2), this paragraph has effect as if the reference in sub-paragraph (4)(c) to the date of the application were to the day before the date of the applicant's eviction. 6(1) Where a person's application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection. (1A) […] (2) However, a person may not make an application under this paragraph if— (a) he is a defendant in proceedings which involve asserting a right to possession of the land, (b) judgment for possession of the land has been given against him in the last two years, or (c) he has been evicted from the land pursuant to a judgment for possession. 7 If a person makes an application under paragraph 6, he is entitled to be entered in the register as the new proprietor of the estate.”
“41. On that basis, reading conditions (a), (b) and (c) together, it is clear that the exception is to the effect that the applicant was justified in believing that the true position of the boundary was where he believed it to be. The exception is necessarily to do with the position of the boundary, and not simply giving effect to a reasonable belief of the applicant as to ownership, otherwise conditions (a) and (b) would be otiose. It would otherwise be bizarre that Parliament should intend to allow the proprietor to be dispossessed after only 10 years’, without warning, if part of the disputed land adjoined the applicant’s land but not if it did not, and not in a case where the boundary had been fixed, even if the claim to adverse possession had nothing to do with the general boundary between the applicant’s land and the disputed land. 42. This construction in my view does no violence to the language of the statute and does not need to be justified on that basis. Condition (a) is that ‘the land to which the application relates’ is adjacent to the applicant’s land. That is clearly a reference to the whole (or possibly substantially the whole) of the disputed land, not simply part of it. Thus, the whole (or substantially the whole) of the disputed land would have to be capable of being described as ‘adjacent to’ the applicant’s land for the condition to be satisfied. That is clearly the case when the land in dispute is land within what would be regarded as the general boundary area between the two parcels of land, but it is not the case where only a small fraction of the land in dispute adjoins the applicant’s land, as is the case here. The claim to adverse possession of the greater part of disputed land that does not adjoin the boundary can have nothing to do with the position of the boundary between the two parcels.”
“65 Alteration of register Schedule 4 (which makes provision about alteration of the register) has effect. [ …] SCHEDULE 4 ALTERATION OF THE REGISTER Section 65 Introductory 1 In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which— (a) involves the correction of a mistake, and (b) prejudicially affects the title of a registered proprietor. 2(1) The court may make an order for alteration of the register for the purpose of— (a) correcting a mistake, (b) bringing the register up to date, or (c) giving effect to any estate, right or interest excepted from the effect of registration. (2) An order under this paragraph has effect when served on the registrar to impose a duty on him to give effect to it. 3(1) This paragraph applies to the power under paragraph 2, so far as relating to rectification. (2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor's consent in relation to land in his possession unless— (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made. (3) If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so. (4) In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land. 4 Rules may— (a) make provision about the circumstances in which there is a duty to exercise the power under paragraph 2, so far as not relating to rectification; (b) make provision about the form of an order under paragraph 2; (c) make provision about service of such an order.”
“52. It will be noted that both of these formulations focus on the position at the point in time that the entry or deletion is made. That, so it seems to me, must be right. If a change in the register is correct at the time it is made it is very hard to see how it can be called a mistake. 53 It does mean, however, that, as the editors of Megarry & Wade: The Law of Real Property noted, a distinction must be drawn between a void and a voidable disposition. On this analysis, an entry made in the register of an interest acquired under a void disposition should not have been made and the registrar would not have made it had the true facts been known at the time. By contrast, a change made to the register to reflect a transaction which is merely voidable is correct at the time it is made. [ … ] 59 In my judgment, the registration of a voidable disposition such as that with which we are concerned before it is rescinded is not a mistake for the purposes of Schedule 4 to the LRA 2002. Such a voidable disposition is valid until it is rescinded and the entry in the register of such a disposition before it is rescinded cannot properly be characterised as a mistake. It may be the case that the disposition was made by mistake but that does not render its entry on the register a mistake, and it is entries on the register with which Schedule 4 is concerned. Nor, so it seems to me, can such an entry become a mistake if the disposition is at some later date avoided. Were it otherwise, the policy of the LRA 2002 that the register should be a complete and accurate statement of the position at any given time would be undermined. [ … ] 60 The second issue is whether, in a case such as the present, the register can be brought up to date once the voidable disposition has been rescinded. In my judgment, it plainly can. Paragraph 2(1)(b) of Schedule 4 confers on the court a power to make an order for the alteration of the register by bringing it up to date; and paragraph 3(3) provides that if in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so …”
“3. A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. 4. … Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out. 5. As Lord Goff said in Cambridge Water Co v Eastern Counties Leather plc[1994] 2 AC 264 , 299, liability for nuisance is ‘kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”: see Bamford v Turnley (1862) 3 B & S 66, 83, per Bramwell B’.” ‘kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”: see Bamford v Turnley (1862) 3 B & S 66, 83, per Bramwell B’.”