Home Information Cases Albert Smith v (1) Peter Waterman (2) Julie Waterman (3) Richard Bostock (2003)

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Albert Smith v (1) Peter Waterman (2) Julie Waterman (3) Richard Bostock (2003)

Summary

It was incorrect in law to hold, in a case of alleged adverse possession, that merely by going on to the land the owner could thereby resume possession so as to interrupt the continuity of possession of the land by another where, from the evidence, that other was clearly in factual possession.

Facts

Appeal from an order made by Lloyd J at Brighton County Court on 9 May 2000 granting the claimants possession of open pasture land in West Sussex and dismissing the defendant's ('S') counterclaim for declaratory and other relief in relation to that land. The issue was whether S had acquired title to the land by adverse possession. S's defence and counterclaim rested on his assertion that he, his wife and family had occupied first one, and then two, plots on the adjoining travellers' caravan site from the second half of the 1970s and that, continuously from the late 1970s until these proceedings were brought, he had been (and still was) in exclusive possession of it. He claimed to have cleared, fenced, enclosed, used and maintained the land, keeping livestock on it since then and pleaded the Limitation Act 1980. The proceedings were issued in November 1995. The claimants' paper title was conceded. The judge held that: (i) S could not establish that he had acquired title because he could not demonstrate either twelve years of uninterrupted factual possession or a sufficient intention to possess the land; (ii) on two occasions in 1983 and 1995 the owners' agent had visited the land and this was sufficient to demonstrate that the true owners were exercising their rights of ownership and possession, and interrupt factual possession; and (iii) as to intention, S failed to establish the existence and manifestation of the necessary intention, in and around late 1982 and into 1983, that it might have been sufficiently established sometime in 1985 when, as he found, S began placing a padlock and chain on the five-barred gate into the land, but any continuity of his intention was interrupted by what happened in the course of two separate but related court proceedings which took place between December 1986 and April 1988.

Held

(1) The judge reached no explicit conclusion as to whether S was in continuous de facto possession of the land and if so over what period. Viewing his findings as a whole, together with the evidence, S was and remained in continuous de facto possession of the land from 1980 onwards. (2) It was incorrect in law to hold that merely by going on to the land the owner could thereby resume possession so as to interrupt the continuity of possession of the land by another where, from the evidence, that other was clearly in factual possession. Factual possession did not require continuous physical occupation of the land. It depended upon the nature of the land. An inspection of the land with a view to the erection of a boundary fence or its sale could not, viewed against the judge's findings elsewhere of the nature and continuity of S's physical possession of it both before and after both incidents, give rise to a break in the continuity of his possession of the land for the purpose of the 1980 Act. Were it otherwise, it would be open to any owner to cause time to start running afresh merely by walking on to the land. (3) It was for the trespasser to adduce by "clear and affirmative evidence" that he made and continued to make manifest to the world at large his intention to possess and that acts which were open to more than one interpretation would not suffice (Powell v McFarlane (1977) 38 P&CR 452). (4) So viewed, the judge was entitled to find that in 1982-3 and later S, even if he continued throughout to remain in occupation of the land, had failed to establish by clear and affirmative evidence that he was indicating to the world at large an intention to possess the land for himself and to the exclusion of all others. Even if at a later stage of his occupation of the land, S did sufficiently and continuously thereafter manifest to the world at large an intention to possess the land for himself and to the exclusion of all others, he had failed to do so sufficiently early in time to demonstrate the continuous twelve years of adverse possession necessary to enable him to establish his claim to a possessory title. This was sufficient to dispose of the appeal. (5) The material before the judge about the court proceedings fell far short of showing that there were subsequent breaches in the continuity of S's intention to possess the land.

Appeal dismissed.

Chancery Division
Blackburne J
Judgment date
6 June 2003
References

​[2003] EWHC 1266 (Ch)