J Alston & Sons Ltd v Bocm Pauls Ltd

This is a case about adverse possession. It concerns an area of about 6 acres of arable farm land behind properties on the south side of Right Up Lane, Silfield, Wymondham Norfolk. A coloured plan of the land taken from the Registered Title Plan and being Plan 1 to the witness statement of Mr Alan Alston, as used in the case, should be annexed to this judgment for ease of understanding. It shows the disputed land coloured orange, so I will call it “the orange land”.

The Defendant, (“Pauls”) is the registered proprietor of the orange land (and other land) since 1999. However the Claimant (“Alstons”) claims that Pauls holds the land beneficially for Alstons pursuant to s 75 of the Land Registration Act 1925 (as preserved by Schedule. 12 para. 18 of the Land Registration Act 2002), because Pauls’ title to this land had in fact been extinguished in March 1989, when Alstons achieved 12 years of adverse possession of it. Pauls deny this claim.

Both parties are agreed that the relevant law is that under the Limitation Act 1939, as continued by the Limitation Act 1980 (see Schedule 1, paras 1 and 8, quoted below) and that the applicable principles are those examined by the House of Lords in J A Pye (Oxford) Ltd v Graham 2003 1 AC 417. They dispute the result of applying those principles.

The orange land is a “U” shaped plot; it would be more or less a rectangle, but for the end of a factory site (“the Mill”) which belongs to Pauls, and which projects southwards into it.

To the west of the Mill site, the northern boundary of the west arm of the orange land follows the rear boundary of the neighbouring property on Right Up Lane, except for a right angled triangle (“the green triangle”), which is cut off the corner created by the western boundary of the Mill site and the southern boundary of the adjacent property. There is a water tank on the green triangle and it is not claimed by Alstons.

On the east of the Mill site on Right Up Lane are four cottages which were all owned together with the Mill at the relevant time. Right Up Lane runs from NW to SE along this stretch, and the rear boundaries of the cottage gardens therefore run from a point on the eastern Mill boundary towards the SW, parallel with the Lane. The right angled triangle behind the cottage gardens, which is formed by drawing a line from the east end of the furthest cottage garden towards the west to meet the Mill site boundary at a right angle is not claimed as part of the orange land, and has been known as the “blue triangle”.

The eastern boundary of the orange land is a hedgerow running broadly south from the east end of the furthest cottage garden boundary.

There are no boundary features marking either the position or the ends of the southern and western boundaries of the orange land; that land is simply part of a larger field of about 56 acres. During the relevant periods it has been farmed as part of that field, indistinguishably from the rest.

There is remarkably little dispute of fact between the parties, although I have heard evidence from eight witnesses with one agreed statement. There are in fact only two material points of dispute. I will deal with these, therefore, where they arise. It is convenient to set out the facts in a time frame.

In 1966, land comprising the orange land, the two triangles, the Mill site and the four cottages and their gardens (ie a large “reverse L” shape on Right Up Lane) was sold by Case & Seward Ltd to an associated company which then changed its name to Barkers & Lee (Norfolk) Ltd. I will refer to this company as “Barkers”; there may have been another change of name subsequently but it is not material. Case & Seward retained the freehold of the land to the west and south of the orange land.

At that time Alstons farmed land much further to the south, known as Park Farm. J Alston & Sons Ltd is a farming company formed many years previously, and Park Farm was then being farmed by Mr Alan Alston, one of the “Sons” of the company name. For the purpose of these proceedings, Mr Alston has been treated as being the personification of Alstons.

To the north of Park Farm, between it and the Case & Seward land, was Colls Farm, which belonged to a Mr Wilkins. Part of that farm was freehold, but about 31 acres of land was held on a tenancy agreement from Case & Seward Ltd. The land the subject of this tenancy surrounded and abutted the orange land on the west, south and east. However, Mr Wilkins also farmed the orange land itself by arrangement with (by then) Barkers. The arrangement was that he farmed it rent free on the basis that Barkers could take it back, at any time, with no compensation, if they wanted to. Barkers envisaged that they might want the land for possible extension of their factory. This arrangement was therefore made so as to avoid creating an agricultural tenancy with the protections of the Agricultural Holdings Act 1948.

On 22^nd March 1974, Alston purchased Colls Farm from Mr Wilkins. The purchase had been negotiated by a Mr Philip Hall, a local land agent who, according to Mr Alston, had something approaching a monopoly on such work in the area. Mr Alston was asked if Alstons were interested in purchasing. Mr Hall then worked out what the purchase price for the freehold land should be, and trustees for the Alston family were willing to pay it. Mr Alston personally took a new tenancy of the 31 acres of Case & Seward land (the “Alston-tenanted land”) stated to be from 11^th October 2003 (the local equivalent of the 29^th September quarter day).

The arrangement regarding the orange land – in fact a little more extensive at that time - was expressly offered to continue, and this was eventually formalised by a letter acknowledgement dated 8^th March 1974, in which Mr Alston wrote to Barkers:

“I acknowledge that I am a mere licensee, paying no rent, of the land at Right Up Lane, Silfield, Wymondham (as approximately defined in Green outline on the attached map) and that I must give up possession of all or any part of the land to Barkers & Lee Smith (Norfolk) Limited without notice whenever required so to do by them.”

Not long after this, Barkers exercised their right to move the southern fence of the land further south by 40 feet, because they were planning to erect a new warehouse. Alstons of course accepted this, and continued to farm the remainder.

Mr Alston has produced his cropping records from 1974 onwards, most of which remain today. From 1974 until 1994, they show rotation of various crops on the field, mainly barley, grass and lucerne in the early ears and barley and sugar beet from the mid 1980s. These crops were planted all across the whole of the 56 (or so) acres of which the orange land was part, without distinction. The processes carried out in cultivating these crops were described in his evidence.

In the course of evidence, it became apparent (and I so find) that Alstons did not initially cultivate right up to the claimed northern boundary of the orange land on the eastern arm of the “U” shape. The occupiers of the cottages, who were workers at the Mill, had, from the early 1970s been given permission to use land outside their rear boundaries for growing vegetables and keeping chickens, when other land they had previously used was taken over for Mill purposes. Those occupiers nearer to the Mill itself were apparently more enthusiastic about this than those towards the east, and the southern extremities of their respective “new allotments” were on a line running SW-NE, from a point beside the north corner of what was known as the “Vitmin Plant” building inside the Mill up to the far eastern corner of the furthest cottage garden boundary. However, they gradually gave up this cultivation over the years until about 1980. As they did so, Alstons took their own cultivation line further north up the side of the Mill site, until it eventually reached the position of the boundary of the blue triangle land referred to above, and indeed, in later years, went still further. However, that is moving ahead.

Initially, also, the green triangle was farmed by Alstons along with the orange land. At some time a water tank was installed in the green triangle land, and Alstons thereafter cultivated only up to the hypotenuse of the green triangle. It is not clear to me when this was done. Mr Alston put it in the late 70s or early 80s, but none of Pauls’ witnesses, mentioned it, even though the Mill manager, Mr Thomson was there from 1977 onwards, and gave evidenced focussed on the uses which had been made of land outside the Mill site boundary. I am inclined, on balance, to think that the water tank was placed on the green triangle during Barkers’ ownership.

On 25^th March 1977, Barkers conveyed the Mill and the land which went with it, including the orange land and the triangles, to Pauls and Whites Foods Limited, for £97,477. Both companies, at the time, had a common parent company, but this was a perfectly genuine change of ownership. There have subsequently been both company changes of name and internal transfers within the BOCM Pauls group, none of which has been said to be material to this case, and which I will therefore ignore for simplicity, referring to all such companies as “Pauls”.

Both parties to this action are agreed that this transaction had the effect, in law, of terminating the licence agreement made in 1974. This is the crucial factor which brings about the dispute in this case. The result turns entirely on the question what, in law, was the nature of Alstons’, or Mr Alston’s use, occupation or possession of the orange land after 25^th March 1977?

In practice nothing changed at all. Mr Alston continued to cultivate the orange land along with the rest of the field as already described.

Mr Alston had no contact from, or with, either Barkers or Pauls about the change of ownership, or the continuing situation. Mr Alston agreed in evidence that he was aware that the land had been sold, (although it was not clear in oral evidence whether, initially, he thought it was the land or “the firm” which had changed hands) but he learned this simply through local intelligence and as Pauls’ presence at the Mill itself became apparent. He also says (and I accept) that he did not know that Barkers and Pauls were associated companies.

Mr Alston did not make any contact with Pauls to ask about his position either. He had had no commercial contact with Barkers. He did do business with Pauls, however, both purchasing feedstuffs and chemicals from them, and also delivering crops to them at the Mill for use as raw materials. However, nothing was said in the course of any of this about his continued farming operations on the orange land.

Pauls made no contact with Mr Alston to either confirm, withdraw or alter the arrangements for farming the orange land. They were, however, perfectly aware of his presence – indeed they could scarcely fail to be - and they knew the basis on which it had been agreed with their predecessor. Mr Thomson, who was the Mill manager at the time, gave evidence that when the sale took place, he went out to inform himself of the boundaries of the orange land, which were pointed out to him by Mill personnel who had been there since 1955 or so. Although there were no boundary features marking the south and west boundaries, there was a tree in the hedgerow at the eastern end of the south boundary, and the west end of the south boundary could be roughly located by its proximity to an electricity pole. It is not suggested that this inspection was either known to or observed by Mr Alston.

Mr Alston said that, after learning of the sale, he simply did not know what his position was; he just carried on farming.

As regards the respective parties’ activities on the orange land during the period from March 1977 to March 1989, I have already referred to Mr Alston’s continuous cultivation programme. As far as Pauls were concerned, I have already mentioned Mr Thomson’s survey of the extent of the orange land on its acquisition in 1977. He made similar walks on about five other occasions between then and 1989, although, again, there is no suggestion that Mr Alston knew this.

Also during this period, Mill staff were accustomed to walk from the Mill site through a gate leading on to the green triangle and then across the orange land and further land towards the west, in order to get access to a stopcock for the mains water supply to the mill, which was across the fields in that direction. I was told that they would sometimes return by a more circuitous route towards the south, past a lake, as it made for a more pleasant walk.

In 1980, Pauls installed a septic tank in the blue triangle land. By this time, Mr Alston was ploughing further up towards the four cottages, and when he reached roughly what is now the boundary of the orange land with the blue triangle, either in 1980 or a year or so later, one of the cottage owners came out and told him not to plough any further north in the blue triangle area, because there was a septic tank there. Mr Alston readily accepted this, and for a long time, at any rate, ploughed only up to the boundary of the orange land now claimed. (He seems, from photographs, to have ploughed further north in later years, despite any possible clash with the septic tank).

Most significant, however, was Pauls’ use of the orange land to receive surface water pumped off from the Mill site’s hardstanding areas. At times, generally in winter for obvious reasons, Pauls would find their premises flooding when their tank or other drainage was unable to accommodate accumulating surface water. On such occasions it was their practice to pump this water off, by simply projecting it over their boundary fence and on to the orange land. They did so from fixed holding tanks at the south west corner of their site, over the southern boundary, and also from portable tankers, over the eastern boundary fence.

There is a dispute as to the extent of these activities, and it is the first material dispute of fact. Mr Coldham an employee of Pauls said that it was extensive, happening as much as six times a year, and emphasised, several times how on one occasion seven tanker loads had been blown across in one single session. The water had, he said, caused ponding on the orange land that it had persisted for days and even attracted birdlife. Mr Thomson agreed that this activity had occurred, but put it at only about twice a year. He was not so emphatic about ponds caused on the orange land, reckoning they might have endured for two or three days, but did say that the drainage around the Mill was poor, citing an occasion when a metre square pit had been dug within the site, and water had gathered in it and not drained away in a week.

Mr Alston did not dispute that such water discharge might have taken place, as he did not inspect the field constantly and might not go as far as the Mill boundary when he did, but he said that he had never himself noticed it, or any ponding on the land during this period, nor had problems with his crops being waterlogged. He emphasised that the natural state of the orange land was one of light, free draining soil. He was supported in both these assertions by Mr Starkings, an agronomist who had been his agricultural adviser since 1983, and who had never noticed either water pumping activities or their consequences on the relatively frequent inspections – weekly in the growing season – which he made. Neither had anyone at Alston’s ever reported problems with waterlogged crops to him, as he was sure would have been the case if they had occurred.

Evaluating this evidence, I find that the evidence of Mr Coldham, an obviously loyal employee of Pauls, has been somewhat exaggerated with hindsight, and the exceptional incident with the seven tankers has coloured his general recollections. Mr Horney, his colleague, said that waterlogging was only a problem later (as I shall mention) and I prefer the more measured evidence of him and Mr Thomson, which I find to be generally consistent with the evidence of Mr Alston and Mr Starkings which I also accept. I find, therefore, that Pauls were accustomed, on occasions of necessity, to pump excess accumulated surface water over their fences and on to the orange land, but that this occurred only about two or three times a year, albeit more often in the later years than the earlier ones. I find that although temporary ponding may have occurred as a result, this lasted no more than a day or two (even though that would no doubt be sufficient to attract foraging seagulls and the like), and drained away sufficiently quickly and effectively not to cause any interference with Mr Alston’s crop cultivation or damage to crops on the orange land. Given that this was an outlying field for Mr Alston, and Mr Starkings inspected regularly but on nothing like a daily basis, I find this perfectly consistent with the fact that they never noticed this.

Apart from the activities above, I also accept that members of the public, and also Mill staff and the occupiers of the four cottages, would take walks, and exercise dogs on and across the orange land. Like all responsible country dwellers, whilst they might walk straight across the land in a period when it was uncultivated, they would walk around the field boundaries when it was. Pauls’ witnesses agreed that this use of the orange land was actually no different from that on any other local farmland.

The crucial 12 year period expired on 25^th March 1989. There is a difference between the parties, therefore, as to how much relevance anything which happened subsequently can have to the issues in the case. Mr Stepehn Jourdan of counsel, appearing for Alstons says that it has none. Mr John McGhee QC, who, with Mr Timothy Harry, appeared for Pauls, says that it is evidence of the position during the relevant earlier periods, because it is agreed that thing nothing changed in practice.

Indeed, nothing did change, and no particularly notable events occurred, except that in 1991 Paul’s obtained planning permission for two new grain silos, one condition of which was the planting of trees and shrubs as a screen around the outside of their extended boundary fence, which they proceeded to do. As recent accurate survey drawings show, the planting has not been very successful, particularly on the eastern side of the site. Mr Coldham said that the gaps correspond to the water pumping positions and so the saplings there stood no chance. The width of the tree belt was supposed to be 15 ft around the boundary, and from the detailed survey plans made, the centres of the tree trunks are around 7 or 8 ft from the fence, consistently with this. The orange land extends only to Mr Alston’s cultivated area, and stops around 15 ft away from the actual fence. It therefore does not include this belt.

A memorandum in May 1992 shows Pauls inquiring internally about the position with regard to the land at the rear of the Mill, noting that there was no formal agreement and that no money changed hands. However, there was no follow up.

In 1994, there was a new turn of events. The Wymondham By-pass was being constructed in the neighbourhood. The land in the vicinity, including the orange land and adjacent land, has a good deal underlying gravel and was a cost-effective source of construction materials. McAlpines, the contractors, therefore wanted to negotiate with the owners and occupiers of nearby land to extract this material from their land for use in the roadway construction, excavating what is known as a “borrow pit”, and then filling it in with waste materials before finally restoring the land when construction works were finished. One such arrangement was to be made regarding part (the east side) of the orange land, and also the land to the south and east of it, comprising part of the Alston-tenanted land (the freehold of which was by then owned by the Brewster Charity) and some land owned by the Alston Children’s Trust. Bidwells negotiated with McAlpines on behalf of both Pauls and the Brewster Charity. Alstons were represented by Mr Hall – who must by then have been getting on a bit – and who Mr Alston said rather ‘muscled in’ and assumed that he was being instructed. Mr Alston says that Mr Hall was a rather arrogant man who was used to proceeding as he thought best, and did not keep people (or Mr Alston at any rate) fully informed.

I need not go through the negotiations in detail. At an early stage, Mr Hall was asked, and agreed, to confirm Mr Alston’s position regarding the orange land to Mr Birch of Bidwells, but he never did. Mr Birch, a slightly truculent witness, commented that it was very difficult to get responses from Mr Hall or indeed from Mr Alston, who is certainly not much of a writer of letters. He was also very vehement that there was “absolutely no doubt” about the land ownership, ie that it was Pauls’.

The orange land appears to have been referred to as “the BOCM land” where necessary to identify it, both between the negotiating parties and by Mr Hall in his communications with Mr Alston. In May 1994, Mr Hall transmitted a draft agreement to Mr Falcon of Bidwells, which recorded in a recital that Mr Alston was “the yearly agricultural tenant of” certain land, which was the orange land “held from BOCM Plc”. Mr Alston says that he does not recall being asked about his status on the orange land, but said that, if asked, he would not have said he was the tenant of it, but would have said (as was the case) that he had originally occupied it on a rent free basis on the understanding that he could be asked to go on a moment’s notice, and that he had continued to farm it ever since, without paying.

This, and another agreement regarding the Alston-owned land were apparently duly executed although only the latter agreement has survived. The relevant works took place over the following two years, and the upshot was that in respect of the part of the orange land which was used, Mr Alston received only compensation for crop loss; Pauls received the royalties for the mineral extraction and infilling, in the sum of £69,926.

It is apparent from subsequent correspondence that McAlpines always regarded Mr Alston as the “tenant” of the relevant land (they had no reason to think otherwise) and that Bidwells’ view was that Mr Alston had no security of tenure, notwithstanding the description of his supposed status as “tenant” in the agreements.

When the restoration works for the land were due to be undertaken, Mr Birch of Bidwells wrote on behalf of Pauls, on 22^nd April 1996, to Mr Hall, stating that it was now time to rationalise the arrangements for Mr Alston’s occupation of the land which he understood had been historically occupied for no consideration so as to “avoid the pitfalls” of the Agricultural Holdings Act, but Pauls now had it in mind to create a reed bed on part of the land and wanted to formalise the arrangements by means of a farm business tenancy. Mr Hall’s transmission of this to Mr Alston referred only to the reed bed, and not to the proposal for a farm business tenancy. The reed bed proposal was not in the end implemented, possibly because the land restoration works proved problematic.

Mr Alston was involved in approving those works to the land, all of which, of course, he was actually farming. The borrow pit was filled in by mid 1996, but whereas Mr Alston says that the land had previously been free draining, the material used to fill in the borrow pit was not porous, and Mr Alston was not pleased with the material used as top soil, either. He grassed the land down, but there was standing water still in the depressions. Whilst “ripping” work was done to improve drainage, the problems persisted. Only after drains were laid - by McAlpines, - across all the relevant lands in 2000 did Mr Alston feel able to cultivate the land with anything more than grass. Even then, he says that the soil is not as good as it had previously been, and, as photographs show, certain patches now cannot be used.

In March 1997 Pauls once again raised with Bidwells the possibility of formalising Mr Alston’s occupation of the orange land by means of a farm business tenancy, but this was not pursued.

On 12^th January 1999, Pauls’ title to the orange land was registered, upon a transfer from Pauls Limited to the Defendant company for whom it had previously held the land in trust. I have referred to the laying of drains by McAlpines in 2000. In 2002, the Mill closed.

Otherwise, matters continued as before until 2006, when Mr Cooper of Pauls, now responsible for the Mill, wrote to Mr James Alston, Mr Alston’s son now involved in the farm, introducing himself and asking for a meeting regarding the land surrounding the Mill. This prompted a consideration of Alstons’ position, and the result was the making of a statutory declaration by Mr Alston in which he stated that he had farmed the orange land since 1974, without permission, or indeed any approach ever being made to him, by Pauls companies. A supporting statutory declaration was made by James Alston.

The orange land there identified in fact included the blue triangle, and also misplaced the boundary of the mill land, reverting to the position before the first 40 ft extension. These errors have later been rectified and the claim to the blue triangle not pursued, but Mr McGhee QC makes something of this to suggest that Alstons have not been consistent about the land they are claiming, which inconsistency casts doubt on the nature of their claim at all, and on the veracity of Mr Alston’s own evidence. Mr Alston has given various explanations of the reasons for this change. He said that at the time of his statutory declaration his solicitor had assumed that the boundary of the rear of the Mill corresponded with the Ordnance Survey plan, when it did not, because of having been moved 40 ft many years before. He said he had not noticed this when he signed the declaration. That was a bit careless, but having seen him in the witness box, I believe what he says. In relation to the blue triangle, though, he has given explanations which have not been consistent, either with each other or with his oral evidence. Initially he said he was not claiming the blue triangle because although it had been farmed originally, it had not been farmed latterly. In fact, the opposite is the case.

I will refer to that later. Mr Alston’s true understanding of the situation under which he carried on farming during this period is the second significant area of disputed fact.

Following further correspondence, Pauls served notice on 25^th June 2007, purporting to terminate Mr Alston’s licence in respect of the orange land on 29^th September 2007. Alstons thereupon commenced this claim on 25^th September 2007, withdrawing any claim to the blue triangle and claiming to have acquired title to the orange land identified on the plan by adverse possession.

The relevant statutory provisions are very familiar. The basic provision is that of s15 (1) of the Limitation Act 1980 (which continues similar provisions to those of the 1939 Act):-

“(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 or, if it first accrued to some person through whom he claims, to that person.”

Reference must then be made to Part I of Schedule 1 of the Act to determine when the relevant right of action accrued. The main material provisions are:

“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, whilst 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

Apart from noting here, that (i) the expression “a person in whose favour time can run” refers to the capacity of the squatter and not to the nature of the possession (Pye v Graham 2003 1 AC 452 at paragraph 35) and (ii) any finding of a permission under Paragraph 8 (4) must now, clearly, be of an actual permission found as a fact, I shall consider the authorities later.

The above provisions give rise to the following matters of, respectively, common ground and dispute between the parties.

As previously stated, it is common ground that the original licence under which Mr Alston farmed the orange land at Barker’s will and for no rent terminated on 25^th March 1977 upon the sale of the land by Barkers to Pauls. Thus, Alstons’ claim to the orange land identified in the Particulars of Claim is based on the proposition that, from that time on, it was in such possession of the land claimed, (which is up to the boundary of its cultivation except for the slightly more complex boundary with the blue triangle), that Pauls’ title to recover the land became extinguished after 12 years, namely on 25^th March 1989.

It is also common ground that if that is not the case, Alston’s permission to occupy the land was terminated with effect from 29^th September 2007, by notice, and the Defendant is entitled to an order for possession and mesne profits from that date at the rate of £130 per hectare per year, that being a reasonable rent.

It is further common ground that the requirements for sufficient possession on Alstons’ part so as to cause time to run against Pauls are as summarised in the Defence: Alstons must prove that they have been in factual possession (this requiring a sufficient degree of exclusive physical custody and control of the land) coupled with the manifested intention to possess the land (namely an intention to exercise such custody and control on its own behalf and for its own benefit) for the requisite period of 12 years.

It is equally common ground that if the above possession was, as a matter of fact, held under the actual (express or implied) permission of Pauls then it will not cause time to run, and that any such actual permission could only be an implied permission in this case, as there was no express one.

The disputed issues which have been argued in this case are therefore:

It is agreed that whilst the burden of proving sufficient factual possession and intention to possess is on Alstons, the burden of proving an implied permission would be on Pauls.

Again, both parties are agreed that the general law on this topic is stated in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 (“Pye”), and it is necessary to consider this case, as the most authoritative recent statement of the law, in some detail. A convenient starting point is its approval of the judgment of Slade J in Powell v McFarlane (1977) 38 P&CR 452. There, Slade J formulated four propositions, at pp 470-471

“(1)

In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2)

If 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").

(3)

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 by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent 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.

(4)

The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale v Liverpool College … as “the intention of excluding the owner as well as other people”… what is really meant … is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world a 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”

In Pye Lord Browne Wilkinson, delivering the leading speech, deprecated the reintroduction into the law of the label “adverse possession” because of its misleading connotations (Paragraph 35). In principle, “adverse” possession is simply possession in the ordinary sense of the word. It is possession which is, as a matter of description, “adverse” to the interests of the true owner in a legal sense, it does not have to be “adverse” in a factual sense. Connotations of conflict or confrontation are wrong and unhelpful;

“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.

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. …”

Emphasising the fact that no confrontational “ouster” is required, Lord Browne Wilkinson continues:

“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”

He then goes on to emphasise that “possession” is single and exclusive and, apart from the situation of joint possession, can therefore be had only by one person at a time (Paragraph 38).

At Paragraph 40, dealing with the constituents of “possession” in its ordinary sense, he approved Slade J’s first two propositions quoted above, noting that a certain mental element of intention was required in order, in effect, to lift mere occupation to the status of legal “possession”. He illustrated this distinction by reference to a person in occupation of a locked house, who might be a squatter, an overnight trespasser, or a friend taking care of the house whilst the owner was absent. The squatter, intending to be on the premises for as long as he can for his own benefit, has the necessary intention to possess. But the party who only intends to trespass for a night or who is looking after the house temporarily, does not.

I have emphasised the second illustration, because I have some difficulty with it. In the third illustration, the occupier is plainly not intending to assert occupation of the house on his own account and for his own benefit, but for his friend, such that it is easy to see that his occupation nonetheless represents his friend’s possession. In the second case, the trespasser is intending to occupy the house on his own account and for his own benefit for the night, and the only distinction from the first case is the intention that that occupation should only be temporary. However, if he changed his mind the following morning and decided to stay another night before he moved on, and this intention became more prolonged and turned into an intention to be a fully fledged squatter, then it is difficult to see why time should not run against the paper owner from the start of his occupation. What I therefore take Lord Browne Wilkinson to have had in mind is that the intention of the overnight trespasser is not so much an intention to “occupy” the house, as merely an intention to “make use of” it, not really rising to the level of occupation, much in the same way as the child in Powell was held by Slade J to have had the intention to do no more than make use of the relevant field as a trespasser, when grazing the family animals on it in the early years (see foot of page 480), and therefore not to have been in “possession” as recognised by law. The extent to which an intention to stay is either only to stay “temporarily” so as not to amount to possession, or is sufficiently permanent to amount to possession, will be one of fact and degree. It is an issue arising in this case.

Going on to consider the constituent elements in more detail, with regard to what constitutes factual possession, Lord Browne Wilkinson endorsed (at Paragraph 41) the third proposition of Slade J in Powell quoted above. With regard to what constitutes sufficient animus possidendi he first dispelled any notion that this required an intention on the part of the “adverse” possessor to own the land. All that is necessary is an intention to possess it; no associated intention to acquire title is required (Paragraph 42). This arises from the fact that the English law concept of title to land depends, ultimately on the question whose claim to possession a court will enforce by recognition of his right of action to recover the land.

Second, he recognised the fact that insofar as it was said that the squatter needed to have an “intention to exclude the owner as well as everybody else”, this does not preclude a recognition on the part of the squatter that the paper title owner will be able to recover the land from him until the full time had run. He approved Slade J’s reformulation of this requirement at the end of his fourth proposition (quoted above), as being designed to recognise that point (Paragraph 45).

He then dispelled the notion that the acts of the squatter must be inconsistent with the intentions of the paper owner, indicating that whilst Leigh v Jack 5 Ex D 264 contained statements which might suggest this, it was a heresy, and the decision itself was perfectly explicable on the grounds that the paper owner had not in fact been dispossessed by the acts of the alleged “adverse” possessor. He continued:

“The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong.”

Considering this from the standpoint of the intention of the alleged adverse possessor he said:

“The highest it can be put is that if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, this may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself, I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (Paragraph 45.)

He next considered the effect of the squatter’s willingness to pay, if asked, and ruled that this “admission which any candid squatter hoping in due course to acquire title would be almost bound to make” did not indicate any absence of an intention to possess: Ocean Estates Ltd v Pinder 1969 2 AC 19. He concluded

“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 in the meantime being in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime”

Lord Browne Wilkinson then turned to the facts of Pye themselves, and the judgments below. The facts bear some similarity to those of this case in that they concerned agricultural land, although in that case an enclosed field, used for pasture, and that the occupation of the Grahams had originated in a permission, in that Pye had granted a grazing and a hay cutting agreement which licensed their occupation until 31^st August 1984. Though they had not enclosed the land themselves, the Grahams controlled all access to it by vehicles, and they had tended it in the same way as the rest of their farm. The two perhaps most important factual distinctions between that case and this, however, are, first, that there was an express refusal by the owner, Pye, to grant a further grazing agreement to Grahams despite two requests after the expiration of their previous licences, notwithstanding which they still continued to occupy the land (militating in favour of the argument that Grahams’ possession was without permission) and, second, that after the expiration of their licence they subsequently did more acts on the land than were authorised under that earlier agreement (militating against the argument that Grahams had simply continued under a continuation of their previous permission): see Paragraph 58.

The trial judge had held that in that situation the Grahams were in possession, which was adverse possession as far as Pye was concerned, and as this had continued for over 12 years, thus extinguishing Pye’s title. His decision, reversed by the Court of Appeal, was restored by the House of Lords.

One plank of the Court of Appeal’s decision was a finding that on Mr Graham’s evidence, his intention during the relevant period had not been to possess the land, but merely to graze it as though there continued to be a grazing licence. This finding was overruled by the House of Lords on the grounds that it had considered only parts of Mr Graham’s evidence and not the whole of it, ignoring his other evidence that the disputed land was farmed simply as part of his own farm, and that there was independent evidence that he had “treated the land” as his own. It was said that the issue of the necessary quality of intention to possess had to be decided on the totality of the evidence.

With that general background account of the law, I will turn to the specific issues, and consider any further refinements of the principles and authorities as they arise there.

On the facts and the general principles of law set out above, Mr Jordan submits that Mr Alston, on behalf of Alstons, was plainly in actual, factual, possession of the orange land during the relevant 12 year period. The unchallenged evidence is that the relevant land was all ploughed and cultivated for ordinary agricultural purposes during the whole of that period, and it was accepted in Seddon v Smith 1877 36 LT 168 that such would amount to “adverse” possession. Slade J in Powell at p 477-8 approved this, as being an act which is “so drastic” as to point, in the absence of evidence to the contrary, to “an intention on the part of the doer to appropriate the land concerned”.

The word “appropriate” must of course be read in the context that an intention to own the land is not required. What is required is “possession” in fact, and by ploughing and cultivating land on one’s own account, one ipso facto excludes anyone else from it and thereby possesses it (see per Lord Hope in Pye).

Mr Jourdan submitted that enclosure of the land was not a pre-requisite to possession where, in fact, the whole of the surface of the land had effectively been taken over by the party claiming adverse possession. He also pointed out that the authorities showed that the mere fact that the paper owner did something on the land did not necessarily defeat the claim of another to be in possession: see Bligh v Martin 1968 1 WLR 804, where the owner grazed cattle on the disputed land in winter; Williams v Usherwood 1983 45 P&CR 235, where the owner used the disputed land for the purpose of doing maintenance work to her house; Burns v Anthony 1997 74 P&CR D41, where the owner used the land for sitting in a deck chair, hanging washing, letting a child play and sometimes keeping a dustbin, and Williams v Jones 2002 3 EGLR 69, where the owner had a TV aerial on the disputed land.

Mr McGhee QC submitted, although I sensed without much enthusiasm, that Mr Alston did not, in fact, have possession. He referred to various matters done by the Mill owner, at will and as of right, without consent or complaint from Mr Alston, such as the inspections of the land by the Mill manager, the use of the land for access to the distant stopcock and the water discharge. He relied on the exclusion of the blue triangle, and the installation there of the septic tank and the use of that corner made for “allotments” (although the evidence of the boundary of this use turned out to be somewhat different in evidence than had previously been assumed) and the abandonment of the claim to the blue triangle, as evidence from which it could be inferred that Mr Alston was not in factual possession of the remainder of the orange land either. (I think he may also have referred to the tank being put on the green triangle, although I have mentioned the lack of clarity as to when this occurred.) Ultimately, however, he was content to submit that it was all a matter of fact and degree.

I am perfectly satisfied that Alstons, through Mr Alston, was in factual possession of the orange land for present purposes. I observe in passing that the nature of his occupation in the first place was naturally described being “possession” in the licence agreement of 1974. As to the facts themselves, he was in full occupation, control and custody of it. The boundary of the land claimed is only so far as Mr Alston has been cultivating (apart from the period of the “borrow pit”, and the slight complication next referred to regarding the eastern arm of the U shaped plot), and I find, as a matter of fact, and hold as a matter of law, that Mr Alston on behalf of Alstons was in factual possession of that land, for the whole of the relevant period, to the exclusion of Pauls and indeed of the whole of the rest of the world, through this continuous cultivation activities.

The various acts of walking over the land by the Mill manager and Mill staff do not, in my judgment amount to taking, or being in, possession of this land. The former was a use made only for access, and the latter was not even a use. The only act of any significance done by Pauls on the orange land during this period was the discharging of water, the extent of which activity I have found above. It was relatively minor, on a small part only of the land, and I find as a fact that never interfered with Mr Alston’s operations in any way and was not even known to him. That does not, in my judgment, amount to sufficient occupation of the land as to justify a conclusion that Pauls, rather than Alstons – who were still cultivating it in accordance with usual routines at any such time – were in possession of the land. In the ordinary sense of the word it was Alstons who were in possession, and using the land “as if it were there own” for everyone to see.

The evidence disclosed, as I have mentioned, a slight difference from the previously assumed position with regard to the land immediately beside the blue triangle. I accept the evidence of Mr Coldham and Mr Horney that between 1974 and about 1980, a part of the orange land near the site boundary was still being used by the cottage occupiers for keeping chickens and planting vegetables, although this use gradually shrank. Whilst there is a possibility, therefore, that some part of this land was still being used for such purposes rather than being cultivated by Mr Alston between 1977 and 1980 or shortly after (when he was asked not to plough any further north than the septic tank) I am satisfied that he in fact cultivated the claimed land, ie up to the boundary on the plan between the orange land and the blue triangle, from 1980 onwards, until at least 1994. Consequently, if Mr Alston otherwise qualifies as being in sufficient possession, that was still of at least 12 years’ duration. This land is, in practice, therefore, in no different position from the whole of the orange land.

This issue is far more difficult. It turns on whether Mr Alston, whose state of mind is to be attributed to Alstons, was sufficient to endow the factual possession which I have found above with the necessary attributes of “adverse possession” as recognised by the law.

As I have said above, Mr Alston’s evidence was that during this period he simply did not know what his position was. It is common ground that he did not ask.

Mr McGhee QC, cross examined him forcefully about his state of mind, putting to him that he either did, or must have, thought that he was continuing to farm the orange land under a continuation of exactly the same arrangement as he had expressly agreed with Barkers, ie a licence. Mr Alston refused to agree that this was the case, resolutely maintaining that he simply did not know what his position was.

He agreed that if Pauls had told him he had to go, he would have accepted this and gone, (although he added “but they didn’t”). He agreed that he assumed he was only entitled to farm there as long as Pauls did not require the land. He said that he just did not know if the basis on which he farmed the land had changed, although he agreed that he knew where he stood under the original agreement with Barkers. He said, unsurprisingly (and obviously correctly) that he did not then know anything about “adverse possession”. He agreed that at no time up to 2006 did he consider himself to be the owner of the land. He recognised that there was some change in his thinking in 1994, when “not knowing” about the position became clear knowledge that it was (he thought) Pauls’ land. He said that “I’d never paid rent for it so I suppose I didn’t regard myself as the licensee”. It is plain from Mr Alston’s evidence that he did not (again unsurprisingly) understand the legal distinction which property lawyers would draw between a licence and a tenancy.

Mr McGhee QC submits that I should find that Mr Alston believed throughout his occupation up till 2006 that he had permission to use the land only until and insofar as not required by the Mill owner. He points to the fact that the 1974 licence agreement which said as much has survived for over 30 years as evidence that Mr Alston regarded it as of continuing importance. He submits that as Mr Alston now knows the significance of his state of mind for the purposes of establishing “adverse possession”, his answers to the questions posed by Mr McGhee have been coloured by this knowledge. He referred to the fact that Mr Alston’s evidence as to the reasons why he did not cultivate the blue triangle were very inconsistent, putting forward initially such matters as that the increasing size of farm machinery had later made it difficult, when the clear evidence was that he had never done so at all, and that it was only in oral evidence that he referred to being asked not to do so by a man from the cottages. He suggests that this shows that Mr Alston’s evidence is devious and unreliable, and submitted that his attitude to questioning was, at times, evasive.

I do not accept this last submission. Mr Alston is an old fashioned farmer, and the evidence shows that he is a practical man and not a man of letters or words. I am not sure if there is a single letter from him in all the evidence. There were moments in his cross examination when it was almost as if he and Mr McGhee were talking different languages, as he stared at Mr McGhee looking utterly perplexed. I do not find Mr Alston to have been evasive, simply not to have fully understood, and felt very uncomfortable with, the conceptual notions he was being asked to consider, being very, very wary that what he might say might somehow be twisted by a shrewd and articulate barrister, and becoming somewhat annoyed (but not wishing to lose his temper) at what he saw as repetitive questioning, designed to make him give a different answer.

As to the inconsistencies in his evidence about the blue triangle, I am not satisfied that this is evidence of any real deviousness on his part, so much as of having several different reasons, of which the same ones did not necessarily come to him first on each occasion when asked about it, (whether by his own lawyers or in court) and therefore not all always getting recorded. Overall, I did not find him to be a dishonest witness, although I accept that he was a wary one.

I find that Mr Alston’s state of mind is really quite clear. He knew he had had a licence from the previous owners. He did not know exactly what had happened. He knew there were new owners, or at least new people in charge. He did not know what their attitude was going to be, or if the arrangement still stood. However, he wanted to go on farming the land, and to do so as long as he possibly could. He did not want to risk upsetting the apple-cart by making enquiries, because he then might be asked for possession or for rent. He was therefore happy enough just to keep his head down and continue farming the orange land along with the rest of the field for as long as he could, until someone (with the right to do so) stopped him.

Certainly, if Pauls had sought to move the boundary, or had told him his farming must cease, he would have accepted this. He did so whenever the water tank was installed on the green triangle, and simply stopped using it. He did so when asked not to plough over the septic tank. In each case, he did so immediately and compliantly because he knew he did not own the land and had no right to object, and if he made a fuss, he might well draw attention to his position and provoke a situation which might work to his disadvantage. His state of mind was simply to take advantage of the position in which he could exploit the land for farming, for as long as possible, and this was indefinite, because whilst Pauls might at some time want to take back the land, there was no certainty as to when, if ever, that might happen. He was firm, though, that whilst Pauls could move him off the land, if another farmer had come with a tractor and started working the land, he would have objected.

The question is whether this state of mind on Mr Alston’s part did or did not amount to a sufficient animus possidendi to constitute his possession full legal possession.

Mr Jourdan submits that it does. As laid down in Pye the only intention necessary is to “intend to stay for as long as he can, for his own benefit” in distinction to a person who intends merely to use the land temporarily, or to do so on behalf of, or for the benefit of, the paper owner. He need not have an intention to own the land and can have the necessary intention despite knowing, or believing that another person does own the land. The intention is normally to be inferred from his actions (see Powell at pp 476-7 and Pye at para. 60) and if he uses the land in the way in which an occupying owner would do, that is enough (Pye at paras 70-71 and 75-6)

There is no requirement that he must believe his possession is unlawful; he may believe that he is in fact lessee of the land, but if the lease is void (Governors of Magdalen Hospital v Knotts 1879 4 App Cs 324), or if it does not in fact include the disputed land (Tower Hamlets LBC v Barrett) 2006 P&CR 132), he has the necessary intention to possess, notwithstanding his mistaken belief.

Indeed, he submitted that

“an erroneous belief by the occupier that he has the consent of the owner does not mean that he is not in possession of the property”:

Wretham v Ross 2005 EWHC 1259, para 41, a decision of David Richards J. That case concerned several disputed small parcels of land, but Parcel 2 is the relevant one. It was a brick stable outbuilding between land owned by the alleged adverse possessor and the adjoining owner. It had been occupied for storage, sufficiently to amount to factual possession, by an agreement with the land owner, until 1968, when the land-owner died. Thereafter, it was found, the occupier believed that that agreement continued and that his occupation was thus by permission, but this was wrong. It was held that the erroneous belief that he had permission did not negative the necessary “intention to possess”, and this was so notwithstanding a request made by the occupier in 1974 for permission to store other different items in the store. At Paragraph 44 David Richards J said

“In my judgment, the facts of Captain Warwick’s possession of the stable demonstrated an intention on his part to possess it to the exclusion of all other persons, including the owner, unless and until asked to give up possession. His possession from Mr Bedward’s death in 1968 was adverse because he did not have the owner’s consent. It follows that his erroneous belief that the agreement with Mr Bedward continued did not prevent him, or through him the appellant, acquiring a possessory title….”

Mr McGhee, on the other hand, submits that Pye did not reduce the requirements of the necessary “intention to possess” and approved the formulation of Slade J in his fourth proposition in Powell (p 471), which requires an intention to exclude the world at large including the true owner. Thus, he submits, it is necessary to have an intention to “infringe the rights of the true owner”.

He submits, therefore, that an intention to remain on the land only so long as the true owner does not need it, or does not object, is insufficient, because there is no intention to behave inconsistently with the true owner’s rights. Mr Alston did not have sufficient intention to possess, because (he invites me to infer) he still believed that he had an existing permission from the true owner, and he always intended to use the land only so long as the true owner did not need it.

As to the cases cited by Mr Jourdan, Mr McGhee submits that those involving mistaken views of the validity or extent of tenancies, such as Tower Hamlets v Barrett (above) are of no assistance because the mistaken belief of the alleged adverse possessor in each case was that he had a tenancy of the land, and therefore that he did have the right to exclude the true owner. Where the alleged adverse possessor’s possession originates in a licence or permission, the position is different.

He first referred to Trustees of the Michael Batt Charitable Trust v Adams (2001) 82 P&CR 32, where it was held by Laddie J that a tenant who had occupied additional land believing, not that it was included in his tenancy, but only that he was permitted to use it, did not believe himself to be, and did not intend to be in adverse possession, because he never had to turn his mind to that issue (para 28), and he therefore did not have the necessary intention to exclude the true owner. That, however, was a case which preceded Pye in the House of Lords and, in my judgment, it was plainly affected by the connotations of the word “adverse” which Lord Browne Wilkinson deprecated, and which lead to an erroneous approach to what is “possession”. I do not find it of assistance.

However, Mr McGhee then cites Clowes Developments (UK) Ltd v Walters 2005 All ER (D) 264, (a decision of Hart J) particularly at paras 39-40. In that case the claimants’ predecessors purchased a farm with development potential subject to a licence to the vendor to live in the farmhouse, and to join in any increased value gained from development. When he died in 1981 his widow signed a paper acknowledging her status as licensee and agreeing to give vacant possession at any time. Her daughter and son-in law moved in with her, but she moved out to a care home in 1988. They continued in occupation, and made planning applications on the footing that the claimant’s predecessor was the owner of the property. Shortly afterwards there was a transfer of the property between companies, both of whom had Mr Clowes as their alter ego, and the claimant became registered proprietor. No mention was made of the licence, but all parties were aware of it, and Mr Clowes did not intend it to determine; he in fact believed that the mother was still at the farm. In 2001, the daughter and son-in-law wrote to the claimant saying that they were not parties to the original licence, which the claimant then determined. Their defence, in possession proceedings, was that they had been in adverse possession for upwards of 12 years. Hart J rejected their claim, holding that

“a person who is in factual possession and who intends to remain in possession (and to use that possession for his own benefit) so long as the true owner continues to permit him to do so does not have the necessary intention to possess” for the purpose of starting a period of limitation running in his favour.” Paragraph 40.

His decision that there was insufficient intention to possess was based on the finding that the daughter and her husband were themselves in possession of the property as the result of some arrangement which the landowner had with their mother (Paragraph 41), and one which they never intended to repudiate. He held, therefore, that they were not in a position to say that they “ever intended to dispossess the paper owner”.

Mr Jourdan submits that insofar as this case is contrary to the position for which he contends, it was wrongly decided, and inconsistent with David Richards J in Wretham., who is to be preferred. Mr McGhee submits that the detail in Wretham is lacking, such that it is less reliable authority than Clowes which, although decided ten weeks earlier, was not cited.

I prefer Mr Jourdan’s arguments to those of Mr McGhee QC. I find that Mr Alston’s state of mind was one of sufficient animus possidendi to make Alstons’ possession “adverse possession” properly so called.

I reject the argument that there has to be an intention to “infringe the rights of the true owner” which seems to me to be reintroducing the deprecated connotations of conflict attaching to the label “adverse possession”. Pye shows that the necessary intention is simply that of possessing the property, on one’s own account and in one’s own interests, and sufficiently indefinitely and permanently, as to amount to “possession” in law, and not merely to temporary “use”. So long as one does so without any permission from the owner, in point of fact or law, one is in “adverse” possession, simply because the law makes it adverse to the true owner’s interests.

Insofar as there is a conflict between Wretham v Ross and Clowes Developments v Walters (above) I unhesitatingly prefer the former, and the expressions of principle of David Richards J, as being more in accordance with the judgments in Pye than (with respect) is the latter. In my judgment, in finding that the two occupants “never intended to dispossess the true owner” Hart J was, again, reintroducing extraneous notions of confrontation, which are inappropriate, and was converting the requirement of an “intention to possess” into one of “an intention to dispossess”, which is incorrect and unnecessary.

The decision itself is unsurprising. Had there been no transfer of the property from one company to another, the position was all too obviously that the occupants intended to remain there under the arrangement reached with the mother, and it was only the change of ownership and the fact, unknown to the licensor or the new owner, that the mother had left, which made it possible to argue that that arrangement no longer applied. There had, however, been a good deal of interaction between the parties, and I note that there appear to have been several other ways in which Hart J could, if necessary have reached a similar conclusion, whether as a result of an implied licence, or, more probably, some form of estoppel, or constructive trust, which I respectfully think would have been more satisfactory for the law of adverse possession.

Mr Alston’s intention was to occupy and possess the land as long as possible, and on his own account. He was not purporting to occupy for the benefit of anyone else, and so the only question is whether his intention was sufficiently temporary, to render his occupation less than legal possession in law. Mr McGhee relies on what he describes as an “intention to possess the premises only until the true owner needs them” as lacking the necessary quality for sufficient “animus possidendi”. However, in my judgment it is not always the case that an intention which can be thus described is not a sufficient “animus possidendi”; it depends on what that intention really is.

This alleged insufficiency of intention rests on the recognition of it as a possibility in paragraph 45 of Pye

“The highest it can be put is that if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, this may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself, I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (Paragraph 45.)

This paragraph is contrasting “possessing the land in the ordinary sense” with “only an intention to occupy it until needed by the paper owner” (emphasis added). However, the fact that Lord Browne Wilkinson considers this a highly unlikely possibility where (as here) the paper owner has been de facto excluded from physical use of the land, and that he also that refers to knowledge of some “special purpose” (emphasis added) of the paper owner, to my mind suggests that he is thinking more in terms of consistent physical uses for the premises, than full scale occupation of the premises by someone who nonetheless recognises that if the paper title owner wanted the premises and sought his removal, he would (have to) leave. The distinction can hardly turn on so refined a point as whether the adverse possessor’s frame of mind is that he will go, rather than that he will have to go.

In my judgment, the necessary intention is only negated if the recognition that one will leave if the owner “needs” the premises converts the intention to possess into one that is really only to do so temporarily, or not to exercise full control over the land. Where the intention is an intention to possess indefinitely if possible, but coupled with an acceptance that, if the paper owner demands the property back it will have to be given up, that intention is perfectly sufficient “animus possidendi” even if the possessor also thinks that the demand for the property will be made because the owner “needs” it. To say that he “intends to possess until the paper owner needs the property” is merely a shorthand way of describing the two coupled aspects of his intentions.

I have found that Mr Alston intended to possess the orange land and to farm it, for his own benefit, as long as he could and if possible indefinitely. At the same time he accepted that if he was asked to go, he would have to do so, as he believed he would have no answer to that demand for possession. He had, however, no positive intention not to use the property if Pauls “needed” it. Even if they did, he would have gone on using it until they asked him to go. The recognition that he might have to go is therefore no different from that of the “candid squatter”, and did not, in my judgment, render his intentions insufficient to support legal possession of the property. Once that possession became, in law, possession absent the permission of the paper owner, in 1977, it was “adverse” for the purposes of the Limitation Acts.

As regards the requirement of intending to exclude the true owner “so far as the processes of the law will allow”, Mr Alston had that intention too. The fact that those processes would not “allow” very much in relation to a possession acknowledged to be terminable on no notice, is, in my judgment, neither here nor there; and does not convert an intention sufficient to support true legal possession into one insufficient to cause time to run against the paper owner.

I should mention one further point, since it was explored in evidence. Mr McGhee prayed in aid Mr Alston’s attitude to the negotiations with McAlpine’s in 1994-6 as evidence of his understanding of his status earlier, because nothing had happened in the interim to change his understanding of this. Mr McGhee relied on Mr Alston’s acquiescence in Mr Hall’s description of him as a “tenant” throughout the negotiations, and the fact that he was content to accept only crop loss compensation and to let Pauls have the royalty money for mineral extraction and infilling rights, as showing that he could not, earlier, have had a sufficient “intention to possess”.

Even assuming that apparently concurring in this description was some evidence of Mr Alston’s own view of his status, this does not seem to me to get Mr McGhee very far. It was wrong, on any view, but taking the description of himself as an “yearly agricultural tenant” at face value, and assuming that did accurately express Mr Alston’s belief as to the nature of his possession, it brings the situation within the principles in Governors of Magdalen Hospital v Knotts, and Tower Hamlets LBC v Barrett (above) and actually demonstrates that Mr Alston’s intentions would have had the necessary quality.

Mr Jourdan says, and I agree, that that this is all too late even as a matter of evidence. A mistaken appreciation by Mr Alston of his rights and that Paul’s title had been extinguished, after the event, is neither here nor there on any basis. No estoppel is pleaded to arise from any impression which was gained by Pauls and McAlpines about his beliefs as to his own rights, nor indeed could one be. Pauls never at any time acted to their detriment in reliance on any apparent representation by Mr Alston that he accepted that they owned the land. In fact, they obtained the benefit of a payment of £69,926.

In fact, Mr Jourdan submits, what happened was that Mr Hall decided that it was best to conduct the negotiations with McAlpines and the other landowners on the footing that Alston was an yearly agricultural tenant of the land, and he did not explain to Mr Alston what he was doing, just as he did not mention the proposal of a farm business tenancy which was put to him in 1996. Mr Alston said that he did not recall his status being the subject of discussion.

I accept Mr Alston’s evidence about Mr Hall’s approach, and consequently that it is unlikely that Mr Alston was asked or consulted about what his status was, rather than, at best, being informed of what Mr Hall was doing. Mr Alston is also not the kind of man to question what his professional adviser might say or do, even if he might not fully understand it or think it not perfectly accurate. He thinks more slowly and less conceptually, and would not take issue unless it was extremely clear to him that some mistake operating to his disadvantage was being made. I therefore do not find it surprising that he did not question the description of his status in the 1994 agreements with McAlpines – even though it was inaccurate on any basis. Since Mr Alston’s thinking at that stage was that Pauls did still own the land, it is also unsurprising that he watched them take the money for mineral extraction and infilling. Whatever this may have conveyed to Pauls, it is impossible to see that Pauls acted in any way to their detriment as a result. Although time had already run against them, they got the compensation.

Given that I have found that Alstons were in “adverse” possession of the orange land during the relevant 12 year period, the final issue is therefore whether, notwithstanding this, that possession was held by implied licence from Pauls, as a matter of fact.

In many ways, this point is the mirror of the argument about intention to possess, only looked at from the standpoint of the paper title owner rather than the possessor, and where it is considered in the context of people who are under a misapprehension as to their legal rights, it causes many similar problems of analysis.

This is a case of someone “holding over” after the termination of an actual permission to occupy land. It is axiomatic that where a person remains in possession after the termination of such a licence by its expiry in time, time runs against the paper owner licensor, because his right to recover possession accrues at that time. It is thus clear that to constitute an implied permission, something more than merely letting the previous situation continue is required. The situation can be no different just because the reason why the permission has ceased is different. Adverse possession occurs even (apart from concealed fraud) if unknown to the owner of the land, and so the fact that the owner may not have appreciated that the permission has terminated by operation of law can, in principle, make no difference.

It is also clear, as has been emphasised, that the implied licence has to be real. Paragraph 8 (4) of Schedule 1 of the Limitation Act 1980 was inserted in order to reverse the practice which had started with Wallis’s Cayton Bay Holiday Camp Limited v ShellMex and BP Limited [1975] QB 94, by which the court had started to imply a licence in favour of the paper owner where it could be said that the possession of the alleged adverse possessor was not inconsistent with the current or future uses for the land intended by the paper owner. This deemed implied licence was a fiction. Parliament has prohibited resort to any such fiction in the 1980 Act, and the only justification for finding a licence is evidence sufficient to justify it as a finding of fact.

Mr Jourdan submits that the law relating to adverse possession has been bedevilled by judicial attempts to defeat claims based on user by implying licences on flimsy grounds. I accept that as a salutary warning that the finding of an implied licence in fact must be fully justified on the basis of evidence of substance.

Mr McGhee’s skeleton argument put Pauls’ case in summary as being that Alstons’ initial occupation from 1974 – 1977 had been permissive and not as a trespass, that that permission was never brought to an end in reality, the transfer of the property in March 1977 had been part of a corporate restructuring without any intention to bring the arrangement to an end, and that Alstons had remained in occupation on the same basis as before. Therefore, for all practical purposes, the same arrangement continued, and amounted to an implied licence.

He then referred to the several examples of Pauls’ intentions, expressed internally, and the letter written on 2^nd April 1996 by Bidwells on behalf of Pauls to Mr Hall as Alstons’ land agent, referring to “rationalising” Mr Alston’s occupation, but emphasising that there was no wish to move him off. Whilst accepting that this was after the relevant period, he argued that that attitude could be read back into the earlier period because nothing practical had changed; he said that this was therefore further evidence from which an implied licence during the earlier period could properly be inferred.

To similar, if retrospective, effect was the obvious belief of McAlpines that Mr Alston was in occupation of the orange land by some form of a consensual arrangement with Pauls. One of the tests for discerning an implied licence is whether third parties would have appreciated that one must be in existence, and so this was submitted to be yet further supporting evidence.

Lastly, he prayed in aid the conduct of Mr Alston and Mr Hall during the McAlpine negotiations, and the fact that they proceeded at all times as if Mr Alston’s occupation was permissive. These matters, he submitted all pointed to there being an implied licence in fact.

Mr Jourdan submitted that the test for whether there was a licence was whether there was a communication, by writing, by spoken words or by overt and unequivocal conduct which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass. An implied licence would therefore be the conveying of permission by non-verbal means.

He derives the above from the speeches of Lord Walker (with whom Lords Bingham and Roger agreed) in R (on the application of Beresford) v Sunderland City Council 2004 1 AC 889 at pages 75 and 79.

This was itself a prescription case, in which an issue had arisen as to whether a Council had given implied permission for the public to use a field as a sports ground, as contrasted, therefore, with that user being “as of right” (which was the critical phrase in that case) under the Commons Registration Act 1965. At first instance, ([2001] 1 WLR 1327) Janet Smith J had held that it had done so, one issue being whether any such licence had to be actual and express, or could be implied from the facts. She held that it could be implied, defining the test for such an implied licence as being

“whether a reasonable person would have appreciated that the user was with the permission of the landowner or only with his acquiescence (emphasis added) … In practice, if permission is to be shown, there will have been some overt act by the landowner, or demonstrate circumstances from which the inference can be drawn, although it may well be that the users were unaware of these matters” (Paragraph 43).

Although this decision is not an adverse possession case Etherton J, took it as a working test in London Borough of Lambeth v Rumbelow (unreported 25 January 2001) as regards an implied licence in an adverse possession context. He emphasised that some “overt act or demonstrable circumstances” were required from which an inference could be drawn that permission was in fact given but he also accepted that it was irrelevant whether or not this was apparent to the users.

Whilst the gloss that the overt act or demonstrable circumstances need not be apparent to the users is understandable in the public rights context of commons registration, it is difficult to see why it should be appropriate in a private rights context, where the issue is whether a permission was given to an identifiable person. One would have thought this would require communication, even though a permission accorded to the world at large obviously might not be for practical reasons. Leaving that aside, however, Etherton J held in Lambeth that the circumstances gave rise to an inference of fact that a permission had actually been granted by the act of the Council in withdrawing its possession proceedings.

Etherton J’s formulation of the test was then adopted in at least four more adverse possession cases. In Bath and NE Somerset District Council v Nicholson (unreported 22 February 2002) Mr Kim Lewison QC sitting as a Deputy Judge of the High Court adopted it without reference to its origins in Smith J’s judgment. That was a case in which occupation pending lease negotiations was held to be by implied permission. The test was then applied in the Court of Appeal without comment in Colin Dawson Windows Ltd v Howard [205] EWCA Civ 9, once again in the context of occupation during negotiations pending the grant of in interest in land.

In Batsford Estates (1983) Co Ltd v Taylor [2005] 2 EGLR 12, it was again applied in the Court of Appeal, but in a different context, namely that of the possession of a tenant holding over after termination of a lease. For reasons of expediency, faced with difficult legal proceedings, the claimant estate, having served a notice to quit, decided not to pursue possession proceedings and resolved to take no action to recover possession of a farmhouse whilst the three brother tenants lived there. On the death of the last brother, his son and daughter in law who lived in the farmhouse claimed that their father had acquired title by adverse possession. It was held, applying the Etherton test, that the facts justified a finding of an implied permission, Nourse LJ saying (at paragraph 25)

He rejected a submission that a permission to occupy land could not be implied unless it was communicated by words or conduct, on the grounds that a communicated permission would cease to be implied and become express, finding the concept of a communicated implied permission difficult, if not impossible to comprehend. (Paragraph 26). This would seem to lead to the conclusion that a permission can be given without the alleged permittee being aware that this either has been done, or must have been done, which seems curious.

Batsford is the high point, I think, of the cases in favour of Mr McGhee QC. The last of the cases in which this test has been invoked is Hicks Developments Ltd v Chaplin 2007 1 EGLR 1, a claim about a disputed strip of land on an estate development which was within the appellant’s title, but which had been effectively gardened by the respondents, following an agreed positioning of a fence inside the appellant’s land, to preserve a natural screen of vegetation. Whilst approving the Etherton test, (overt acts or demonstrable circumstances from which an implied licence can be inferred, not necessarily communicated to the user, and that a reasonable person would have appreciated from this that the occupation in question was by permission) Briggs J emphasised that this

“it is not enough that the demonstrable circumstances are consistent with there having been permission. They must be probative of it”

The context of this emphasis also shows that he made this distinction in order to recognise that

“there is a real difference between permission on the one hand and mere non-objection or acquiescence on the other” (Paragraph 33)

I observe that this distinction was also firmly in the mind of Smith J when she originally formulated her test, as quoted initially above. In Hicks Briggs J found that the facts and circumstances did not justify a finding of an implied permission.

The reason why Mr Jourdan urges the correctness of his own formulation rather than that now approved and applied in relation to adverse possession in the Court of Appeal is that he points out that, unbeknown to the courts in the last three cases, the judgment which was the source of the formulation (Smith J in Beresford) had gone to the House of Lords, where her decision, upheld by the Court of Appeal, had been reversed. The judgment of three of their lordships (prepared by Lord Walker) reversed the finding that the alleged “overt acts” amounted to the grant of an implied licence (Paragraph 83 of the judgment), and deprecated the finding of an implied licence as a “fiction” (Paragraph 85). Mr Jourdan submits that the Smith test, which had become the Etherton formula, is therefore discredited, and the test propounded by Lord Walker, referred to above (at my Paragraph 121) should therefore be applied by me. He submits that, if necessary I should apply the principle of in Re Northumberland Compensation Appeal Tribunal ex p Shaw 1951 1All ER 268, that when faced with inconsistent decisions of the House of Lords and the Court of Appeal, the court should follow the former as being of higher authority (p 277).

Mr McGhee QC submitted that Beresford was a decision in a different area of law, and that (as I understood him) whatever its origins, the authority of the test as used in Batsford as a case on the present subject matter, must be binding. That was even if (which he did not accept) the Beresford decision in the House of Lords had, in fact, overruled the formulation of the test for an implied licence laid down by Smith J, rather than merely dissented from the result of its application to the facts of the case, or explained it.

Mr Jourdan finally submitted, however, that in any event, even if the Smith/Etherton test was the right one, the difference between mere acquiescence and factual permission was still a difference to be borne in mind, and the facts of this case did not justify the inference of an implied licence on such a test in any event.

I do not, fortunately, need to consider the parties differing positions on the interpretation, effect of application of the House of Lords’ decision in Beresford. Left to myself, I would have preferred the test propounded by Mr Jourdan if it were open to me to do so, but it does not matter, because, in my judgment even if I apply the test as set out in Batsford, I should do so with due regard to the warnings of Briggs J in Hicks v Chaplin, and on that basis, I can find no evidence sufficient to support a finding that there was an implied, or any, permission in fact. To do so, I would have to be satisfied that there was evidence suggesting that such a permission was actually given, by implication, after 25^th March 1977, and that Alstons’ occupation was then pursuant to it.

In the course of Mr McGhee QC’s submissions, I asked him, eagerly, what were the overt acts or demonstrable circumstances which he relied on, from which the inference of an implied permission could be drawn. He referred to the placing of the water tank on the green triangle, the installation of the septic tank (and the conversation with the cottage owner) and the water discharge. He also referred to the tree planting, albeit accepting that this was after the relevant period. He submitted that the question whether overt acts near the fringe of the disputed land gave rise to sufficient inference that the use of the remainder was by implied permission was a question of fact and degree.

Otherwise he submitted that the fact that Mr Alston had been allowed to continue cultivating the land obviously in full view and proximity to the Mill itself, was a demonstrable circumstance to be taken into account. The combination of these factors was such that a reasonable person would have appreciated that Alstons’ occupation was by implied permission from the owner of the land (the Mill owner). The fact that there was no communication with Mr Alston did not matter, because communication was unnecessary. Mr Alston really could hardly fail to have appreciated himself that his occupation was being permitted by Pauls.

I do not accept Mr McGhee QC’s submissions; I am unable to find that there was, as a matter of fact, an implied permission to Mr Alston to continue his farming activities after 1977, when Pauls became the paper owners of the orange land, as opposed to mere acquiescence or non-objection by them.

In all the cases, (Lambeth, Bath, Dawson, and Batsford) where such an implied licence has been found, there has been one of two situations. Either the occupation was pending negotiation of the grant of an interest in the land (Bath and Dawson) in which drawing such an inference is relatively easy, or the history of the matter has shown that there was a specific intention on the part of the owner to seek to eject the occupier, followed by an express reconsideration and change of stance, with a good deal of communication going on between the parties, from which the obvious inference, obvious to anyone who knew the facts, was that the owner had made an express decision to permit the occupation, and the occupation was continuing for that reason, thus amounting to the giving of permission by implication.

In this case, however, neither situation is present. Plainly, the mere fact hat Mr Alston continued farming without objection or comment from Pauls is nothing but acquiescence by them. To find that that gave rise to an implied licence is to fly in the face of the basic proposition that, at law, the actual permission granted in 1974 terminated. It would also mean that in just about any case where permission to occupy expired, the continued occupation of the possessor would be taken to be by implied licence of the owner, such that time did not run. This is contrary to the established principles of law.

Beyond that, I simply do not find that the acts invoked by Mr McGhee are sufficient to bear the weight he seeks to place on them, and to give rise to any inference that a permission had impliedly, but without communication, been actually granted. The evidence is simply insufficient to be probative of this, It may be consistent with such a possibility, but that is not enough.

The siting of the septic tank in land not being cultivated by Alstons at all at the time, (nor claimed now) and the conversation with the cottage owner are simply neutral. The discharge of water on to the orange land says nothing about the basis on which Mr Alston is to be taken to be in occupation; it is consistent with the several cases where adverse possession was held to have occurred notwithstanding some activity by the paper owner on the land. That leaves only the siting of the tank on the green triangle. Even assuming that that did occur during Pauls’ ownership rather than Barkers’, it was done without any communication with Alstons. It is quite impossible to find as a fact that this individual act, done in that fashion, proves anything about the nature of Alstons’ continuing possession of the orange land, let alone that, on balance of probability, this occupation was by Pauls’ implied permission.

In fact, the overall situation (and I find this as a fact) is that Pauls suffered Mr Alston’s possession of the orange land during the relevant period, but they did not give any permission for it, in any way. To hold that an implied permission was granted in these circumstances, would be to fall into the trap of creating a fiction in order to avoid the traditionally unattractive result of title being acquired by adverse possession. I decline to do so.

Accordingly, the claim succeeds and the Defendant’s counterclaim fails.

I would add just one comment in conclusion. Limitation is not so much about the acquisition of property by long user, ie someone getting a windfall, as about the loss of a right to claim property by the person who would otherwise be the owner on paper, but who has done nothing with it. It has always been a principle of English law that a person who owned land, but who, with another in occupation of it amounting to possession, failed for upwards of twelve years either to assert his own better right to possession, or to obtain a clear recognition of his title from the party in occupation (by means of a payment or other form of plain acknowledgment) simply lost his right to possession of that land. Indeed, this principle was positively inserted into a situation where it would not operate in relation to the continuation of tenancies, under Paragraph 5 of Schedule 1 of the Limitation Act 1980. It is not a major or difficult thing to ensure that one reviews and protects one’s property interests, and the policy of the law is that if that is not done, the person making actual use of the property gains the right to keep it. The provisions of the Land Registration Act 2002, regarding notice have recently removed some of the instinctive unattractiveness of the results.

However, that is all that has happened in this case. Pauls at least have the knowledge that they gained £69,926 in 1996, as consolation.