J Alston & Sons v BOCM Pauls Ltd (2008)
In order to succeed in a claim for adverse possession, an intention to infringe the rights of the paper owner was unnecessary; the claimant's recognition that he might have to go if asked to do so was not inconsistent with the requisite intention to possess.
The claimant family company (J) brought proceedings against the defendant registered owner of certain land (B) claiming to have acquired title to it by adverse possession.
J, through one member of the family (X), had farmed the land rent-free under a licence from the former owner which had expired 30 years before, on the sale of the land to B. X had continued to farm the land thereafter without objection or comment by B. At the same time, B had used the land to receive surface water pumped from its adjacent mill site at least twice a year. The mill manager had inspected the land every few years, and mill staff had walked over the land when necessary to shut off the water supply to the mill. X's evidence was that he did not know what J's position was when B bought the land, and he did not ask. He acknowledged that if B had asked him to go, he would have accepted it and gone. B ultimately served notice purporting to terminate J's licence in respect of the land, and J brought the instant proceedings.
B submitted that (1) J was not in factual possession of the land during the relevant 12-year period, given the acts carried out by B without consent or complaint by X; (2) an intention to behave inconsistently with the true owner's rights was necessary to establish the requisite intention to possess; an intention to remain on the land only so long as the true owner did not need it, or did not object, was insufficient; (3) J had occupied the land under an implied licence which could be inferred from overt acts near the fringe of the land, including the water discharge, together with the fact that X had been allowed to continue farming the land in full view of the mill.
(1) For the whole of the relevant period, J had been in factual possession of the land to the exclusion of B through its continuous cultivation activities. The activities of mill staff did not amount to taking or being in possession. B's discharge of water onto the land was a relatively minor use, affected a small part only and had not interfered with J's operations. It did not amount to sufficient occupation to justify a conclusion that B rather than J was in possession of the land. (2) An intention to infringe the rights of the true owner was unnecessary. The necessary intention was simply that of possessing the property on one's own account and in one's own interests, and sufficiently indefinitely and permanently to amount to possession in law and not merely to temporary use. X had no positive intention not to use the property if B needed it; he would have continued to use it until B asked him to go. X's recognition that he might have to go did not render his intentions insufficient to support adverse possession. X also had the requisite intention to exclude the true owner so far as the processes of the law would allow. The fact that those processes would not allow very much in relation to a possession acknowledged to be terminable on no notice was irrelevant, Wretham v Ross  EWHC 1259 (Ch),  N.P.C. 87 applied, Clowes Developments (UK) Ltd v Walters  EWHC 669 (Ch),  1 P. & C.R. 1 doubted and JA Pye (Oxford) Ltd v Graham  UKHL 30,  1 A.C. 419 followed. (3) The evidence relied on by B was insufficient to give rise to an inference that implied permission had been granted for J to continue its farming activities when B became the paper owner of the land, rather than mere acquiescence or non-objection on B's part, Batsford Estates (1983) Co Ltd v Taylor  EWCA Civ 489,  2 P. & C.R. 5 and Hicks Developments Ltd v Chaplin  EWHC 141 (Ch),  1 E.G.L.R. 1 considered.
Judgment for claimant
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28 Nov 2008
Judge Hazel Marshall QC
LTL 13/2/2009 :  1 EGLR 93 :  EWHC 3310 (Ch)
John McGhee QC