Gott v Lawrence & Ors

These proceedings involve a dispute about the title to a strip of land (“the Disputed Strip”) near the village of Nether Kellet in a rural part of Lancashire. The Disputed Strip forms the site of an old occupation road. The Claimant is the personal representative of the estate of his father, the late Walter James Gott (“the Deceased”), who passed away on 10^th July 2013. In that capacity, he is the freehold owner of the land to the western side of the Disputed Strip. The Defendants are the freehold owners of the land to the eastern side of the Disputed Strip.

Over the years, the occupation road fell into disuse. It is apparent from the historical photographs that, at its northern end, it became overgrown with grass and dense foliage. There are also signs that, at one point, the remains of an old tree and other vegetative detritus were placed across the site of the road to impede access (3/12/208).

During the Summer of 2009, the Deceased applied for planning permission for the construction of a large agricultural shed for free-range hens. It was envisaged that, whilst the shed would be constructed on land to the West of the Disputed Strip, it would be accessed from a newly constructed road on the Disputed Strip itself. Although planning permission was apparently obtained in September 2009 or thereabouts, preliminary works were commenced prior to the grant of planning permission, including the removal of a hedge (3/8/39).

The works were substantially completed during 2010. Land was excavated in preparation for the construction of the new shed, spoil was deposited on the Disputed Strip and the site of the old road was re-surfaced with compacted hard-core. A gate was installed on the new road and secured by lock. During the works, the Deceased’s contractors caused damage to the dry stone wall on the eastern side of the Disputed Strip.

In April 2012, the parties entered into correspondence in which the First Defendant requested a key and evinced an intention to carry out works of repair to the wall with a request for a financial contribution from the Claimant. No such works were commenced. However, following the Deceased’s death, the Claimant arranged for the re-construction of part of the wall. He also embarked on the removal of a long section of the wall and, in its place, the construction of a stock proof fence. This culminated in the dispute which has given rise to these proceedings.

Suing as “the executor of the estate of WJ Gott Estate”, the Claimant initially brought these proceedings against the First Defendant only. Having obtained a limited grant of representation, Messrs Gardner and Jump were substituted as claimants. In due course, the Second, Third and Fourth Defendants were added as defendants. Having obtained a grant of representation himself in substitution for the earlier grant, the Claimant was formally re-substituted as claimant under a court order dated 6^th March 2015.

The case was tried before me on 2^nd-4^th and 11^th December 2015. On the opening day of the trial, I visited the site in the presence of the Claimant, the First Defendant and Third Defendants and their legal advisers. At the end of the trial, I heard counsel’s oral closing submissions. However counsel also provided me with additional written submissions dated 18^th December and 23^rd December 2015 for which I am grateful. I am also grateful to them for their help during the trial and, more specifically, for the skill and discretion with which their submissions were presented.

The Claimant gave evidence himself as a witness. On his behalf, I also heard evidence from some five other witnesses of fact, Suzanne Pearson, Glenn Haggart, Peter Gott, Derek Bull and Matthew Gott.

None of the Claimant’s witnesses could be characterised as independent witnesses. They each have a family or employment connection with the Claimant. It is also an unfortunate aspect of the case that, although solicitors were instructed on his behalf, the Claimant took it upon himself to obtain the witness statements, introducing the witnesses to the issues and liaising with them in connection with the preparation of the witness statements themselves.Initially, the Claimant denied, in cross examination, that he liaised with the witnesses for this purpose but this was difficult for him to maintain when referred to his witness statement dated 19th May 2015 (1/2/174). Once referred to the witness statement, the Claimant accepted that he “briefed” the witnesses on “the situation”. Whilst, in cross examination, the Claimant sought to minimise the extent of his involvement, it is difficult to avoid the conclusion that he discussed at least some issues of evidence with the witnesses-in particular with Peter Gott, Derek Bull and Matthew Gott. This is reflected in the contents of their witness statements and it is an aspect of the case to which I shall refer later.

The quality of the evidence of the Claimant and his witnesses was mixed. The Claimant himself was at times evasive and prone to argument. With the exception of Glenn Haggart, they were unwilling to make factual concessions however implausible their evidence.

On behalf of the Defendants, I heard the oral evidence of the First Defendant only. The First Defendant was at times prepared to make concessions where he perceived it right to do so. However, he was also an obstinate witness whose perceptions were by no means infallible and, at times, his recollection of events was unreliable.

In these circumstances, I have reluctantly come to the conclusion that it is necessary for me to regard all the oral evidence before me with a measure of caution and to look for corroborative evidence, where available, on the more contentious factual issues.

I have read the witness statement dated 7^th July 2015 of the Third Defendant (1/5/318). Unfortunately, having attended the first two days of the trial, he was taken ill during the third day suffering from heart palpitations and was thus unable to give evidence orally. It is not suggested his absence was without good reason. However, in view of the fact that his evidence was not tested in cross examination, I shall give only limited weight to the aspects of his evidence that are in issue.

I also heard expert evidence from Messrs Michael Mashiter and Simon Mair, chartered surveyors on behalf of the Claimant and the Defendants. In addition, I was provided with expert reports from Mr Andrew Lynch, a chartered land surveyor, Dr Ralph Sibley, an engineering geologist, and Mr Alistair Johnston, an expert veterinarian.

Documentary title and Rights of Way

The Disputed Strip and its surroundings were once part of an extensive area of common land. There was a manorial waste and the lord of the manor was one Alexander Butler. However, by 1810, other landowners had acquired interests in the land. In 1810 a private Inclosure Act was enacted providing for the appointment of Commissioners to divide, allot and procure the inclosure of the land with a view to improving the agricultural yields. In the preamble to the Act, Alexander Butler was named as lord of the manor; Thomas Green and Joshua Lodge were named as two of the landowners.

On 20^th August 1815, the Commissioners’ Award was proclaimed. The Commissioners divided and allotted the land with reference to a plan on which they made provision for roads and highways. Allotment 22 was allotted to the devisees of Thomas Green and Allotment 30 was allotted to Joshua Lodge. To the South, Allotment 52 was allotted to the Trustees of Haversham School and Allotment 48 was allotted to Thomas Croft.

To the North, Allotments 22 and 30 were bounded by a road to be called and known by the name of Hornby Road. In order to provide Allotments 52 and 48 with access to Hornby Road, an occupation road-to be known as Latrigg Road-was to be created between Allotments 22 and 30. The operative provisions were as follows.

“…we the said commissioners do set out and appoint one other private or occupation road or way of the width of twenty feet as the same is delineated in the said general map or plan annexed to this our award and deposited herewith branching from the said Hornby Road hereinafter by us the said commissioners and set out and appointed in a southerly direction to the north east corner of an allotment by us the said commissioners allotted and set out to the Trustees of Haversham School which said private road we the said commissioners have and do order and direct shall be called and known by the name of Latrigg Road and we do award order and direct that the same private or occupation road shall be forever hereafter used by the owners and proprietors of the land adjoining thereto the Trustees of Haversham School and Thomas Croft their Heirs Successors and Assigns and no other persons and by the said Devisees of the said Thomas Greene and the said trustees of Haversham School and Thomas Croft, their Heirs and Assigns shall be from time to time repaired and kept in repair in the proportions following namely eighty yards thereof commencing at the Hornby Road aforesaid by the Devisees of the said Thomas Green one hundred and ten yards thereof by the Trustees of the Haversham School and one hundred and forty yards being the Residue thereof by the said Thomas Croft…”

It was provided separately in the Award that the devisees of Thomas Greene and Joshua Lodge would “…make and from time to time and at all times hereafter repair and amend all the Fences on every side…” of their respective allotments, ie Allotments 22 and 30 save, in the case of Allotment 30, for a section of the boundary with Allotment 48 to the South.

The land designated as Latrigg Road was marked in a straight line from Hornby Road to the Northern boundary of Allotment Numbers 52 and 48. It formed the site of the Disputed Strip which was, until quite recently, bounded on each side by dry stone walls. In the absence of evidence to the contrary, I shall infer that the walls were first built following the Award so as to stand immediately to each side of the land earmarked for the occupation road. I shall also infer that this land is coterminous with the Disputed Strip.

Two related questions immediately arise. These are as follows.

My answer to the First Question is that the Award allotted the Disputed Strip for the use of the owners of Allotment Numbers 22, 30, 48 and 52. The Award conferred rights of user on “the owners and proprietors of the land adjoining” the occupation road and on “the Trustees of Haversham School and Thomas Croft their Heirs Successors and Assigns”. The reference to the owners and proprietors of the adjoining land should be taken as a reference to the owners of the allotments on each side of the occupation road for its full length. It thus included Joshua Lodge and the devisees of Thomas Greene. Having conferred rights of user on these persons, the Award imposed repair obligation on the devisees of Thomas Green, the trustees of Haversham School and Thomas Croft only. This was achieved by the device of employing the preposition “by” so as to introduce the reference to the persons on whom the repair obligations were to be imposed.

The freehold title to the relevant allotments is now vested in the Claimant (Allotment No 22), the Defendant (Allotment 30) and a local farmer, Mr Halhead (Allotment Nos 48 and 52).

In his submissions for the Claimant, Mr Darton construed the operative provisions of the Award so as to create an allotment for the use only of the Trustees of Haversham School (Allotment 52), Thomas Croft (Allotment 48) and the devisees of Thomas Greene (Allotment 22). This was on the basis that the reference to “the owners and proprietors of the land adjoining…” for whose use the land was being allotted was intended to denote only the “Trustees of Haversham School and Thomas Croft their Heirs Successors and Assigns…and the said devisees of…Thomas Green”. He observed that this could be achieved by adding a colon after the initial reference to the owners and proprietors of the adjoining land in a document which contained very little punctuation. In support of his submissions, he submitted that it would be anomalous for the Award to grant rights of user to Joshua Lodge without also imposing repair obligations on him.

Whilst Mr Dartons’ submissions were persuasively presented, they are inconsistent with the natural meaning of the words used in the operative provisions of the Award and, indeed, the obvious sense of provisions elsewhere in the Award.

The Second Question requires me to identify the freehold owner or owners of the Disputed Strip subject to the Claimant’s adverse possession claim. My answer to it is that the respective freehold titles of the Claimant and the Defendants to the land adjoining the Disputed Strip each extend to the centre of the Disputed Strip itself so that the Claimant and the Defendants are the freehold owners of one half of the Disputed Strip divided longitudinally.

It is first necessary to consider the Award. The Award allocated Allotment No 22 to Thomas Greene and Allotment 30 to Joshua Lodge. As we have seen, the intermediate land was allocated for the use of the owners of Allotment Nos 22, 30, 48 and 52. However it was silent as to ownership. There is no suggestion that the Statute of Uses had any application.

In Halsburys Laws of England (5^th edn) Vol 13, Para 420, the editors observe as follows.

“The soil of the roads set out under an enclosure award remained in their previous ownership, unless the owner’s right and interest in the soil had been compensated by an allotment. Where such an allotment had been made, the ownership of the soil of the roads was in the allottees of the lands on either side”.

These propositions are consistent with the authorities on which the editors rely, including inter alia the judgment of Lindley LJ in Haigh v West [1893] 2 QB 19. In Haigh v West, Lindley LJ stated as follows at 29.

“Having regard to the fact that the allotments to the lord and to the owners of the common field and to the commoners were expressly made in satisfaction of all their respective former rights not expressly reserved to them, the soil in the lane set out would not remain in its former owners, but would prima facie pass to the allottees of the land abutting on the lane; the allotments on each side extending to the middle of the land, although described as bounded by the lane”.

This principle was applied by Cozens Hardy J in Neaverson v Peterborough RDC [1901] 1 Ch 22. Cozens Hardy J’s judgment in Neaverson was successfully appealed at [1902] 1 Ch 557 but, on a different issue, namely whether it was possible to presume a lost grant in respect of pasturage.

In the preamble to the Inclosure Act of 1810, Alexander Butler was recorded as Lord of the Manor. Joshua Lodge and Thomas Greene were recorded as landowners. The Act provided for existing rights were to be valued. Land was to be allotted to Joshua Lodge for a dam. After making provision for public stone quarries and ascertaining the necessary roads, the Commissioners were to award Alexander Butler “one twenty-fourth part…of the said Tracts or Parcels of Moor, Common and Waste Ground, hereby meant and intended to be inclosed in Compensation and Satisfaction for his Right (except as hereinafter mentioned) in the Residue of the said Tracts or Parcels of Moor, Common and Waste Ground respectively and for his Content to the Division and Inclosure of the same as Lord of said Manor or Lordship of Nether Kellet”. The residue was to be allotted to Alexander Butler and the other owners in proportions that accorded with the Land Tax assessment.

By the time that the Award was proclaimed, Alexander Butler and Thomas Greene had passed away. By the Award, the Commissioners allotted land to the devisees of Alexander Butler and Thomas Greene. Land was allotted to Joshua Lodge. The land allotted to the devisees of Thomas Greene and to Joshua Lodge included Allotment numbers 22 and 30. In the absence of evidence to the contrary, it is to be inferred that such land was allotted in accordance with the Act.

In the present case, there is no specific evidence in relation to ownership of the Disputed Strip prior to the Award. Howeverit is overwhelmingly likely that, by the Award, the original owner or owners were compensated for their right or interest in the soil with the provision of an allotment or allotments. It follows that the principle stated by Lindley LJ in Haigh v West (above) applies and the Award should be taken to have allocated to the owners of Allotment numbers 22 and 30, the soil of the Disputed Land measured to the centre line.

In his submissions before me, Mr Darton referred me to Giles v County Building Constructors (1971) 22 P&CR 978, Pardoe v Pennington (1998) 75 P&CR 264 andPaton v Todd [2012] EWHC 1248. In view of the fact that the title of the parties can be traced back to the Award itself, he submitted that any presumption is no more than a canon of construction which is rebuttable by indications of a contrary intention in the Award. Whilst the context is different, I accept this proposition. It makes obvious sense and it is consistent with the observation of Lindley LJ in Haigh v West that the presumption applies on a prima facie basis. However, in view of the fact that the presumption is historically well established and it is at least conceivable that properties have been sold and conveyed in reliance upon that presumption, cogent evidence of a contrary intention is required before the presumption is rebutted. Having found that the Disputed Land was allotted for the use inter alia of the owners of Allotment Numbers 22 and 30, I am not satisfied that a contrary intention can be gathered from the Award itself of the Act under which it was made. In his Addendum to Closing Submissions dated 23^rd December 2015, Mr Darton identified four factors in rebuttal but, if factually sustainable at all, none of them is convincing. It is submitted that “the transferors…would have wished to retain ownership…to restrict the classes of users”. However, in this respect, there is no obvious point of distinction from the other occupation roads in the Award. If there was an element of inconsistency in providing for a landowner to acquire rights of user and ownership without corresponding repair obligations, this inconsistency was present elsewhere in the Award, for example in relation to Swarthbeck Road. In my judgment, it would be wrong, in principle, to focus, in isolation, on rights of ownership in Latrigg Road without a comprehensive assessment of the rights being acquired and given up by the landowners as a whole. There is no evidence of any anomaly in the rights given up and acquired by Joshua Lodge, or, indeed, the neighbouring landowners as a whole, to warrant rebuttal of the ad medium filum presumption.

I am thus satisfied that, by the Award, the Disputed Land was allotted for use, as an occupation road, by the owners of Allotment Numbers 22, 30, 48 and 52, so as to include Joshua Lodge and his successors in title. It was not submitted before me nor was evidence adduced to suggest that the rights of user might have been extinguished. It follows that the rights of user are now vested in the freehold owners of the land originally comprised in each Allotment.

I am also satisfied that, by the Award, the documentary title to the soil of the Disputed Land was vested in the owners of Allotment Numbers 22 and 30 as to amount to one half each divided longitudinally. It was not submitted before me that the rights of user have been extinguished. Since the freehold title to Allotment Numbers 22 and 30 are now vested in the Claimant and the Defendants respectively and there is no evidence of severance of title, the documentary title to the Disputed Land is vested in the Claimant and the Defendants. On that basis, the rights of user are also vested in the Claimant and the Defendants in their capacity as freehold owners.

The Claimant relies on Section 98 of the Land Registration Act 2002 so as to defend the Counterclaim by advancing a case based on adverse possession under Schedule 6 to the 2002 Act. In order to resolve any doubt as to my jurisdiction to entertain such a case, on 11^th December 2015, I gave the Defendants permission to amend the Defence and Counterclaim so as to add a formal claim for possession. I dispensed with service on the basis that their statement of case could be deemed to include such a claim with effect from that date.

To establish his case, the Claimant must show first that his late father took possession of the Disputed Strip and, having done so, his late father and his personal representatives were in adverse possession of the Disputed Strip, without interruption, for a period of not less than ten years ending on the date of the Amended Counterclaim, ie at the latest on 11^th December 2015. He must also satisfy the third condition of the statutory requirements in Schedule 6. This condition is set out in Paragraph 5(4) of Schedule 6 and imposes four sub-conditions of which only one is in issue here, namely the sub-condition requiring the Claimant and his personal representatives to have continuously and reasonably believed that the Disputed Strip belonged to him during the relevant ten year period.

In JA Pye (Oxford) Ltd v Graham [2000] Ch 676, Lord Browne-Wilkinson stated, at Paragraph 36, that the initial question is “…simply whether the [Claimant] has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner”. He then clarified “…the two elements necessary for legal possession:

In Powell v McFarlane (1977) 38 P&CR 452, Slade J gave some guidance in relation to the requirement of “actual possession”. At 470-471 he said:

“Factual possession signifies an appropriate degree of physical control…The question what acts constitute a sufficient degree of 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”.

The Claimant contends that his late father, Walter Gott, took possession of the Disputed Land shortly after he initially purchased the adjoining land. The adjoining land was conveyed to him by a conveyance dated 10^th January 2001. It is the Claimant’s case that, having purchased the adjoining land, his late father asked him to erect a gate on the Disputed Land as a barrier to people entering from the road to the North, which is now known as Birkland Barrow Road. He gave evidence that, in February 2001, he and his brother thus “erected a gate complete with a padlock some 30m south from where the land meets with Birkland Barrow Road...” (1/4/275(Para 1)).

In addition to erecting a gate to enclose the Disputed Land, the Claimant maintained, in his witness statement, that during March 2001 an old stone wall and coppiced hedging was removed. He also contended that the Disputed Land was then maintained using a flair mower, nettles and weeds were sprayed, bracken and briars removed and there was regular tree surgery. In addition, he stated that the Disputed Land was used to provide shelter for race horses, for harvesting firewood and for exercising dogs and “shooting the odd pheasant during the permitted season when the horses were in training”.

The Claimant’s brother, Matthew, gave a similar account indicating, in his witness statement, that “in early 2001 my brother Adrian and I erected a gate some 30m up the track from the road. We installed it there because it seemed to fit naturally in a bit of an opening between bushes”. He assisted “in the merging of the land when using a flail mower to reduce the thickness of the overgrown vegetation in March 2001” and that he knew “that the horses which came from Ferdy Murphy’s racing stables…during the summer months from 2001 to 2009 use (sic) to like grazing in amongst the trees to attain shelter from the sum as well as from the rain”.

For his part, Derek Bull stated, in his witness statement that he knew “…that following Walter’s purchase of the land in 2001 the Deceased’s sons “erected a gate c30 metres from the Birkland Barrow Road up the abandoned track and I understand that MD Hanafins removed the remains of the old stone wall separating fields A&B with the track on the plan attached”. He went further than this in his oral evidence stating that the Deceased’s sons had asked him for help in connection with the construction of the gate.

In his witness statement, Peter Gott confirmed that “there was a gate 30m from the road which always remained locked” and, in his oral evidence, he stated that he repeatedly observed it when driving along Birkland Barrow Road. In his oral evidence, Glenn Haggart stated that there was a gate 30 metres from the main road albeit 30 metres as a guess. However when asked about this at the end of his evidence, he stated that he only observed the remnants of an old gate; there may not have been a gate there at all.

On these issues there was a sharp conflict between the evidence of the Claimant and his witnesses-in particular, Matthew Gott, Peter Gott and Derek Bull-on the one hand and the First Defendant on the other. The First Defendant was adamant that there was no gate towards the northern end of the Disputed Strip prior to the construction of the metal gate that was constructed as part of the recent redevelopment. His evidence was based on his observations on the single occasion he walked along the Disputed Strip during the relevant period and when walking around the perimeter of his own land although he confirmed that it was consistent with the observations of others. He also stated that the wall on the Claimant’s side of the Disputed Strip was not removed until 2009-2010 or thereabouts and that, on the outside of the wall, there was a continuous fence to keep out the Claimant’s animals.

Some features of the evidence of the Claimant and his witnesses-in particular the evidence of the Claimant, Matthew Gott and Derek Bull in relation to the construction of the gate in 2001-are consistent and specific. They cannot be dismissed in their entirety as a mere error or lapse of memory. Whilst the burden of proof is on the Claimant, their evidence is not to be dismissed lightly where it is consistent and specific in nature.

Nevertheless, having assessed the evidence as a whole, I am reluctantly driven to the conclusion that there is no factual foundation for three critically important aspects of the Claimant’s case on adverse possession, namely the construction of the gate in 2001, the removal of the wall on the western side of the Disputed Strip and the use of the Disputed Strip for the grazing of racehorses. I am also satisfied that, if and in so far as any works of clearance or tidying up were carried out on the Disputed Strip prior to 2009, such works were insubstantial and certainly did not suffice to give rise to a successful claim for adverse possession. I have reached these conclusions for a number of reasons.

If there are no foundations for the Claimant’s case in relation to the construction of the gate, the removal of the wall on the western side of the Disputed Strip and the use of the Disputed Strip for the grazing of racehorses, I am satisfied that there is insufficient evidence for him to base an adverse possession claim prior to 2009. It is conceivable that the Deceased and persons connected with him sporadically entered the Disputed Land; this may have included shooting. However this would not have been enough to take possession nor would it have involved exercising custody and control so as to give rise to a successful claim for adverse possession. There is also no convincing evidence that, during this period, the Deceased acted with the intention of taking custody and control. Almost certainly, things changed during the course of 2009 when the Deceased submitted his planning application and commenced the initial works of clearance. However, this would not leave sufficient time for the Claimant to successfully rely on the statutory ten year period.

Similarly, the Claimant has not established before me that he satisfies the statutory condition in Paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002. This required him to show that for the whole of the relevant ten year period, the Deceased and, following his death, the Claimant reasonably believed that the Disputed Strip belonged to them.

The Deceased originally engaged as his solicitors, Messrs Bannister Bates and Son, as his solicitors in connection with the purchase of the relevant land. By a transfer dated 10^th January 2001, the vendors, Philip Edward Miles Oglethorpe and Alexander George Sayer conveyed to the Deceased the “six acres of grazing land…containing 38.849 acres or thereabouts…more particularly described in a conveyance dated 18^th February 1950…” (3/9/127). The parcels of the 1950 conveyance were “more particularly described in a plan…and thereon coloured round with red”. The land edged red only extended as far as the western wall. It did not include the Disputed Strip.

The Claimant has not disclosed the Deceased’s purchasing file. No attendance notes have been disclosed in connection with the advice that the Deceased was given on the transaction. No pre-contract inquiries or requisitions on title have been disclosed. However the Claimant relies on a letter dated 22^nd December 2000 from Ms Lyn Glading of Bannister Bates to the Deceased (2/7/176A and B, 182-183) in which Ms Glading advised that the full extent of the land he was purchasing was as shown on one of two enclosed plans denoted as “Plan A”. Plan A showed the relevant boundary to run diagonally across the Disputed Strip. The Plan was drawn to a small scale of 1:10000 and may have been distorted though photocopying. However, according to the Plan, the boundary was aligned with the eastern edge of the Disputed Strip at its northern end and the western edge of the Disputed Strip at its southern end. It thus showed the Claimant’s title to comprise part only of the Disputed Strip tapering from the whole of the Disputed Strip at its Northern end to no part at all at the Southern end.

Although there is no direct evidence of the Deceased’s understanding as to the extent of the land that he was acquiring, the Claimant sought to rely on “Plan A” in a letter dated 16^th April 2012 (3/11/152) from the Deceased to the First Defendant in which the Deceased asserted his title to the Disputed Land. It is apparent that, when the Deceased entered into the tenancy agreement dated 30^th September 2009 with WA Agriculture Limited, he purported to demise the whole of the Disputed Strip. However there is nothing to suggest that, at that time, he had been furnished with any reason to believe that he owned the Disputed Land in its entirety.

Putting the Claimant’s case at its highest, there is evidence to suggest that the Deceased believed he was entitled to part of the Disputed Strip only, namely the land shown to be encompassed in his title by Plan A. However if that was his belief, I am not satisfied, on the available evidence, that his belief was reasonable without further inquiries of his solicitors. Plan A was drawn to a small scale which was stated to be “approximate”. The parcels to the 1950 conveyance-the Deceased’s root of title-delineated the land comprised in his title with reference to a plan drawn to a larger scale which clearly excluded the Disputed Strip. When, on 23^rd January 2001, the Deceased was registered as first proprietor, his registered title was shown, on the filed plan, so as to extend no further than the western wall. No doubt, the general boundaries rule applied to the filed plan but that ought to have led the Deceased and his legal advisers back to the plan that was originally appended to the 1950 conveyance.

If the Claimant believes or has at any time believed that he is the legal owner of the whole of the Disputed Strip, his belief is no more reasonable than that of the Deceased.

It follows that the Claimant’s adverse possession claim must be dismissed.

The Claim originally advanced against the First Defendant was for the sum of £4,801.60 as a 50% contribution towards costs incurred in connection with works on the boundary. The Claim was never properly particularised and the cause of action was obscure. On the first day of the trial, Mr Darton confirmed that the Claim was not being pursued.

The Defendants’ putative causes of action are based on trespass and nuisance. In the light of my above conclusions in relation to their title and their rights of way over the Disputed Strip as a whole, I am satisfied that they are entitled to the following causes of action.

The factual foundations of these causes of action are barely in issue but there are substantial issues in relation to the Defendants’ rights to relief and the quantum of their recoverable losses.

In support of his submission that the Defendants are barred from relief by acquiescence, Mr Darton relied upon Gafford v Graham (1999) 77 P&CR 73. In that case, the defendant carried out building works in breach of a restrictive covenant. With knowledge of his legal rights, the plaintiff made no complaint or objection at the time but was prompted to issue proceedings some three years later when, in breach of covenant, the defendant constructed an indoor riding school on the land. On appeal, the leading judgment was delivered by Nourse LJ who considered that the test was whether, by then, it was unconscionable for the plaintiff to enforce his rights. He found that it was only possible to answer this question in the affirmative and concluded that, having acquiesced in the initial building works, the plaintiff was barred from all relief in respect of such works.

In Cobbe v Yeomans Row [2008] 1 WLR 1752, Lord Walker commented, at Paragraph 92, that “unconscionable” denotes “an objective value judgment on behaviour (regardless of the state of mind of the individual in question).” However, at least in the context of acquiescence, the behaviour of a person should no doubt be assessed in the context of his knowledge. It will be unconscionable for him to enforce his prima facie legal rights if he is thereby acting inconsistently with his previous stance in a manner that is dishonest or unfair. However in assessing dishonesty or unfairness, his previous stance is to be assessed in the light of his knowledge at the time. This is consistent with the observation of Lord Evershed MR in Armstrong v Shepherd and Short [1959] 2QB 384 at 396 that “…a proprietor will not be debarred from asserting his legal right, against one who is shown to have infringed it, on the ground of acquiescence, unless it is also clear that, that at the time he did so acquiesce, the proprietor was aware of his proprietary rights”.

For Nourse LJ in Gafford v Graham, the critical considerations were that the plaintiff “knew what his rights were” but “never made any complaint or objection to the defendant at the time”.

In the present case, there was a change of ownership in the Defendants’ property. Prior to 13^th April 2010, when the property was finally registered in the proprietorship of all four Defendants, it was in the sole ownership of the First Defendant. However the Defendants do not rely on this as an issue and, in my judgment, it is not material.

Applying Gafford v Graham, the test is whether, in broad terms, it would be unconscionable for the Defendants to be given relief owing to their failure to assert their claim until after the issue of these proceedings. For this purpose, there is obviously a distinction between the claims in respect of the works in 2009-2010 and 2014. Whilst the First Defendant may have complained about the damage caused to the eastern wall (1/5/313, Para 14), none of the Defendants made any contemporaneous objections or representations, of a general nature, to the works in 2009-2010. By contrast, in 2014, they promptly objected, through their solicitors, to the Claimant’s works removing sections of the eastern wall and, in doing so, persuaded the Claimant to cease such work. There is thus no room for the Claimant to maintain that relief in respect of the 2014 works is barred by acquiescence.

However, I have also reached the conclusion that it would not be unconscionable for the Defendants to assert their rights in relation to the works of 2009-2010. In my judgment, the critical point of distinction with Gafford is that, in the present case, the Defendants did not, at any material time, have full knowledge of the rights upon which their present claim is based. The Defendants did not become aware that they might have rights in the Disputed Strip until after they instructed solicitors in January 2014 or thereabouts, and they did not become aware of the Inclosure Award until after the issue of proceedings. Whilst, in his letter dated 13^th April 2012 to the Claimant (3/11/150), the First Defendant stated that the “the original lane….had three existing openings into our land for access purposes”, that letter was not written on the basis that he had rights of way over the land. In that letter he requested a key to the gate but the key was apparently sought “in the spirit of good neighbourliness”. At that stage, the Defendants did know or, at least they must be taken to have known that they owned the eastern wall, whether as sole owners or as a party wall. They also knew that, by heaping spoil against the eastern wall, the Deceased had damaged it. This much is apparent from the First Defendant’s letter dated 13^th April 2012 in which he stated that parts of the wall had been “…severely damaged as a result of your groundworks”. However, this is material to only one aspect of the case and there is evidence that the First Defendant complained about it at the time (1/5/313 Para 14).

I also consider that there is nothing compelling in the rest of the circumstances to render it unconscionable for the Defendants to seek relief. It is true that the Defendants did not take any steps to advance their claim until after the issue of proceedings, upwards of four years from the commencement of the Deceased’s original works. It is also true that they were dilatory in attending to correspondence and, having evinced, by their letter dated 13^th April 2012, an intention to carry out their own works to the eastern wall, they failed to do so. These matters are significant in assessing the appropriate remedies. However, in principle, they do not suffice to bar the Defendants from relief.

It follows that the Defendants are not barred from relief by acquiescence.

The Defendants seek wide ranging relief. This includes injunctions restraining the Claimant from entering their land otherwise than in accordance with their rights under the Inclosure Award. It also includes mandatory orders requiring the Claimant to reinstate the eastern wall, remove the deposited spoil, reinstate the original track, remove the new fence and remove the gate.

Whilst the jurisdiction to grant prohibitive relief is discretionary, landowners are prima facie entitled to an injunction to restrain acts of trespass if their title is undisputed even if the application is for interim relief only, Patel v WH Smith [1987] 1 WLR 853. Of course, where mandatory relief is sought, wider considerations must be taken into account at the outset even where, as in the present case, the relief is restorative in nature. In Snells Equity (33^rd edn)(2015) at Para 18-031, the editor observes that “the grant of a mandatory injunction is always discretionary. Important factors include the extent of the damage which would accrue to the claimant if relief is withheld, the cost to the defendant if it is granted, and the conduct of the defendant in rushing on with building works after notice of the claimant’s objections. Accordingly, if a restrictive covenant has been broken knowingly and after notice from the claimant, the general rule is that a mandatory injunction will be granted to restore the status quo. The fact that an interim injunction was refused or perhaps not even sought, does not necessarily preclude a claimant from obtaining a final mandatory injunction”.

The Court has jurisdiction to award damages in substitution for injunctive relief under Section 50 of the Senior Courts Act 1981. The statutory jurisdiction is expressly exercisable by the Court of Appeal or High Court only. However, the County Court has all the jurisdiction of the High Court to hear and determine equity proceedings under Section 23 of the County Courts Act 1984. In Jaggard v Sawyer [1995] 1 WLR 269 at 277A, Lord Bingham MR observed that “despite the repeal of Lord Cairns’s Act, it has never been doubted that the jurisdiction thereby conferred on the Court of Chancery is exercisable by the High Court and by county courts”.

In Coventry v Lawrence [2014] AC 822, the Supreme Court recently considered the principles governing the jurisdiction of the courts to award damages instead of an injunction. The courts are to be taken to have a wider discretion than allowed by AL Smith LJ’s “working rule” in Shelfer v City of London [1895] 1 Ch 287. However “…the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not”, Coventry v Lawrence, Para 121 (Lord Neuberger).

In the present case, I have concluded that the Defendants are, and have been at all material times, the owners of one half of the Disputed Strip divided longitudinally and they are entitled to rights of way over the full width of the Disputed Strip by virtue of the Inclosure Award. It is not open to me to make an order divesting them of their estate. I should also be wary of withholding relief in a way tantamount to doing so. Nor should the Defendants be encouraged to resort to self-help. However there are compelling reasons for me to limit the Defendant’s injunctive and mandatory relief to the bare minimum consistent with these considerations.

Nevertheless, the Defendants are legally entitled to use and enter the Disputed Strip as an incident of their estate and it is not open to me to make an order expropriating their estate or denying them the use of it. If this is potentially causative of damage or disruption to the Claimant’s business, that is a matter which the Deceased brought on himself, and his successors, by building the agricultural shed and incorporating it into his business without first clarifying his rights of ownership in respect of the road affording access to it.

For these reasons, I shall make no order in respect of the claims for mandatory and injunctive relief save that, subject to further submissions, I am inclined to make an order requiring the Claimant to unlock the gate or, alternatively, to provide the Defendants with keys. I shall also award the Defendants damages in addition to or in lieu of injunctive relief underSection 50 of the Senior Courts Act 1981. In withholding prohibitive injunctive relief in respect of future acts of trespass, I am mindful of the fact that, until now, there has been no judicial determination in relation to the parties’ respective estates in the land. Now that there has been a determination, the Claimant can reasonably be expected to respect the Defendants’ established rights. However I shall provide in the final order for each of the parties to have liberty to apply.

The Defendants seek restitutionary and compensatory damages. Although each class of damages is sought in relation to different aspects of the case, it is important to ensure that there is no duplication in my award.

During the course of the development works in 2009-2010, the Deceased deposited large quantities of spoil on the Disputed Strip as part of a substantial engineering scheme. Although the Claimant may subsequently have carried minor works of a similar nature, the works were substantially complete by the end of March 2010. By virtue of his rights under the Inclosure Award, the Deceased and, through him, the Claimant were entitled to carry out works of improvement to the access road on the Disputed Strip. This would have included laying hard-core. However, in my judgment, it did not authorise the deposit of large quantities of spoil. The context in which the Deceased deposited the spoil is significant. It was necessary for him to excavate spoil from his adjoining land as part of the preliminary works before constructing the new agricultural building. Depositing it on the Disputed Strip enabled him to avoid the expense of transporting and disposing of it elsewhere. In Appendix C to his Report, Dr Sibley calculated this at some £61,916.40. Conversely, raising the height of the Disputed Strip has interfered with the Defendants’ convenient access to the road. If, at some point in the future, he wishes to obtain vehicular access, it is likely that he will need to build a ramp. This is un-costed.

In these circumstances, the Defendants are entitled to equitable compensation based on the amount that the parties might reasonably have been expected to arrive at in a hypothetical negotiation immediately before the commencement of the works for the grant of a licence authorising the Deceased to deposit the spoil on the Disputed Strip and thus raise the level of he road. The jurisdiction for the Court to award such compensation was authoritatively established by the House of Lords in Attorney General v Blake [2001] 1 AC 268 and it has been explored in a number of other cases, including Wrotham Park Estate Co Ltd v Parkside Homes [1974] 1 WLR 798, Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 1 EGLR 81 and Sinclair v Pearson [2007] EWHC 2256.

It would not have been necessary for the Defendants to negotiate to convey their estate in the Disputed Strip or release their rights of user but, having authorised the Deceased to deposit the spoil on the Disputed Strip, they could not have required him to remove it. Moreover, following the works, it would have been understood that it would no longer be possible for the Defendants to access the road on the Disputed Strip as conveniently as before. By that stage, the eastern wall would be subject to a certain amount of lateral pressure from the adjoining embankment but, although the wall was in dilapidated condition, the Defendants would not be taken to have authorised the Deceased to damage the wall during the course of his works.

Such a licence would be of significant value to the Deceased since he would be relieved of the need to transport and dispose of the spoil elsewhere. Conversely, the Defendants would be disadvantaged in their convenient access to the Disputed Strip and the eastern wall would be subject to lateral pressure.

In his Report dated 5^th June 2015, Mr Mair, on behalf of the Defendants, addressed the possibility of a hypothetical negotiation on a wider basis providing for the release of the Defendants’ rights of user. On that basis, he assessed the likely price at £55,000 (2/6/089). Mr Mashiter also contemplated the release of the Defendants’ rights of user. However, unlike Mr Mair, he contemplated that the hypothetical negotiation would take place before the Deceased was committed to his final scheme and on the basis that the Deceased could have accommodated his requirements elsewhere on his land. Whilst, in my view, the hypothetical negotiation should be deemed to have taken place immediately before the commencement of the works, I agree with Mr Mashiter that the Deceased is not to be deemed to have been committed to his final scheme at that stage. In principle, this means that he would have been able to take alternative options into account, including accommodating the access elsewhere on his land. Unfortunately, however, there was no convincing evidence before me about the scope and efficacy of such options or the costs of implementation. In Mr Mashiter’s expert opinion, the parties would have negotiated a fee of £15,000 stating that this reflected the fact that the Defendants would thereby be relieved of their responsibility for the maintenance of the eastern wall (2/6/137). However the Defendants were not and are not under any enforceable obligation to maintain the eastern wall.

During his submissions on the Claimant’s behalf, Mr Darton pointed out that, during any hypothetical negotiations, the parties would have been mindful of the fact that a third party, Mr Halhead also had rights of way over the access road. He submitted that the Deceased could thus have been expected to allocate no more for the Defendants than they did for Mr Halhead. On this point, I do not accept his analysis. There is at least a possibility that Mr Halhead has rights of user which have not been released or otherwise extinguished. Indeed there is nothing to suggest otherwise. However no evidence was adduced before me that he has ever asserted such rights. It is inherently unlikely that he has done so. Moreover, if Mr Halhead does have such rights, they are rights of user only. He is not a part owner of the Disputed Strip. If and when the contemplated works were carried out, they could only furnish him with a cause of action in nuisance for the temporary obstruction of his rights of user. They would not furnish him with a cause of action in trespass. It follows that, whilst a modest adjustment should be made to reflect Mr Halhead’s rights and the possibility that the Deceased would have to reach a compromise with him, this is on the basis that there was only a remote prospect of Mr Halhead asserting his rights and that, if he did so, he would have less leverage than the Defendants.

In the light of these considerations, I am satisfied that the Defendants are entitled to the sum of £20,000 by way of equitable compensation for their licence authorising the Deceased to deposit the spoil on the Disputed Strip and thus raise the level of the road. This amounts to a little less than one third of the disposal costs identified by Dr Sibley. It is also likely to be more than enough to compensate the Defendants for the cost of building a ramp or ramps to enable them to access the road on the Disputed Strip if they wish to avail themselves of their right to do so. In the hypothetical negotiations, the parties should be taken to have been mindful of the long term pressures to be applied to the eastern wall. However the wall was already in dilapidated condition and the parties can be taken to have contemplated that, in the long term, it would be replaced by an alternative structure. Whilst the Claimant has not produced detailed costings, it seems to me unlikely that the sum of £20,000 will be disproportionate to the costs of the project as a whole.

Mindful of the importance of avoiding duplication, I shall now turn to the Defendants’ claims for damages at common law. In Scutt v Lomax (unreported, 25^th January 2000), Clarke LJ identified the following principles.

“…Where trespass by the defendant has caused damage to the claimant's land, the claimant may be entitled to the diminution in value of the land or the reasonable cost of reasonable reinstatement, or in some cases a figure in between. All will depend upon the circumstances of the particular case, but the authorities seem to me to establish the following general propositions.

1.

The claimant will ordinarily be entitled to the diminution in value of the property unless the reasonable claimant would have reinstated the land at less cost.

2.

The claimant who has in fact reinstated the property will ordinarily be entitled to recover the reasonable cost of doing so, even if the cost is greater than the diminution in value, unless he has acted unreasonably in reinstating the property.

3.

Where the claimant has not in fact yet reinstated the property, (subject to 4 and 5 below) he will ordinarily be entitled to recover the reasonable cost of reasonable reinstatement, even if it is greater than the diminution in value.

4.

In assessing what is the reasonable cost of reasonable reinstatement, the court will consider whether the amount awarded is objectively fair; that is fair to both parties. In particular, the court will not award a sum which is out of proportion to the benefit conferred on the claimant.

5.

In assessing what steps it is reasonable to take by way of reinstatement, the court will take account of the cost of the reinstatement. Thus it may not be reasonable fully to reinstate the property because the cost of doing so may not be justified. All will depend on the circumstances of the particular case.”

In connection with the fourth and fifth of these principles, Mr Darton referred me to CR Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 1 WLR 659 and Farmer Giles Limited v Wessex Water Authority [1990] 1 EGLR 177.

Firstly, the Defendants claim compensation for the losses incurred owing the damage caused to the eastern wall by the Deceased’s contractors during the course of the relevant works. Since the Deceased’s notional licence would not have authorised the Deceased to cause damage to the wall during the course of his works, this is separately recoverable. To that extent, it is distinct from Defendants’ claim in respect of the long term damage attributable to the lateral pressure from the raised land abutting the eastern wall. In Appendix C to his Report, Dr Sibley assessed the costs of repairing the damage at £17,101.61 (2/6/129). However Dr Sibley did not have the opportunity to observe the wall in its pre-existing condition and he has made no allowance for its dilapidated condition prior to the works. I am satisfied that, by 2009, the eastern wall had not been maintained for many years and it was in a dilapidated condition. However, the Defendants could at least expect to be compensated for the damage attributable to the Deceased’s works. Having visited the site and, doing the best that I can, on the limited evidence available, I shall assess the cost of reinstatement for such damage in the sum of £2,500.

Secondly, the Defendants claim the costs of removal of the spoil from the Disputed Strip (Re-Amended Defence and Counterclaim Paragraph 19(iv)) and “the costs of effecting works to strengthen or support the wall so that it will satisfactorily resist the increased lateral pressures…” (Paragraph 19(iii)). Somewhat illogically, the latter is claimed in the alternative to the cost of removing building materials deposited on the rest of the Defendants’ land. They also claim “the cost of making good damage to the pasture land” (Paragraph 19(v)).

I am not satisfied that, before me, the Defendants have substantiated their claim in relation to the deposit of spoil on land East of the eastern wall or their claim in relation to the damage to the pasture land and the same has have not been properly quantified. I shall thus decline to award damages in respect of these parts of the claim.

Moreover, whilst the Deceased and, subsequently, the Claimant are liable in damages for trespass for depositing large quantities of spoil on the Disputed Strip itself, I have already provided for the Defendants to be compensated for this in my award of equitable damages under the Section 50 of the Senior Courts Act 1981. This encompasses the losses attributable to the continuing lateral pressure on the eastern wall. In any event, in his Report dated 5^th June 2015, Dr Sibley estimated the costs of excavation and removal at some £70,591.91 (2/6/128) of which upwards of £60,000 was attributable to removal costs. He also estimated the cost of construction of a new retaining wall in order to withstand the current lateral pressures at some £47,000 (2/6/108). In my judgment, the nature, complexity and cost of the works of removal and reinforcement would be grossly disproportionate to the benefits that they would confer on the Defendants. The Defendants are not entitled to any additional damages in respect of these items.

Thirdly, the Defendants claim damages for the Claimant’s acts of trespass and conversion, in January and February 2014, removing significant sections of the eastern wall and, thereafter, in March 2014 constructing a replacement fence on the Defendants’ land.

In his Report dated 5^th June 2015, Dr Sibley estimated, in the sum of £107,577.30, the costs of removing the fence and replacing it with a wall (2/6/110). At the hearing, I was advised that Messrs Mashiter and Mair were in agreement these costs were excessive and a revised figure of £14,000 had been agreed. I take this to be the reasonable cost of reinstatement. However Mr Darton emphasised that there was no concession in relation to the need for reinstatement, if any. Applying Clarke LJ’s guidance in Scutt v Lomax, I must thus ask whether it would be objectively fair to award damages to the Defendants in this amount for the removal of the relevant sections of wall. On balance, I am satisfied that the answer to this question is in the affirmative. Prior to removal, the eastern wall was in dilapidated condition. The Claimant has replaced it with a fence. There is no complaint in relation to the quality or specification of the fence nor is it challenged on objective grounds in relation to the management of the Defendants’ holding. It is also inherently unlikely that, if the removal of the wall has led to any diminution in value, the diminution is as high as £14,000. However, in Scutt v Lomax, Clarke LJ accepted that the aggrieved party will ordinarily be entitled to recover the reasonable cost of reasonable reinstatement regardless of whether it is greater than the diminution in value. It seems to me that, faced with the wrongful removal of the wall, the Defendants ought not to be presented with a fait accompli and denied compensation. If it is possible for the Defendants to replace the fence with a wall at a cost of no more than £14,000, it would not be unreasonable for them to do so given the character of the locality and the use and value of their holding. I am thus satisfied that an award of damages in this amount would be objectively fair to both parties and, for this item, the Defendants are entitled to judgment in that amount.

The Defendants claim damages in the sum of £3,250 for the value of the stone removed by the Claimant’s contractors and appropriated from the eastern wall in January and February 2014. The value of the removed stone has been agreed in that sum by Mr Mair and Mr Mashiter. Since there is no evidence on which I can reasonably rely that this stone has been incorporated in the wall subsequently constructed towards the northern end of the Disputed Strip, the Defendants are entitled to damages in this amount.

Finally, in Paragraph 4.7 (vi) of his Report (2/6/86), Mr Mair refers to a claim for the value of “…any land ‘lost’ by virtue of the Defendants having to create an alternative lane over their land if they are no longer able to use the lane”. A sum has been agreed between Mr Mair and Mr Mashiter in respect of the “loss of ownership of half of the lane” (2/6/136). In my judgment, there is no room for any compensation in respect of this item. The Defendants have rights of user in respect of the whole of the Disputed Strip and they are owners one half of the Strip severed longitudinally. Since the Disputed Strip was raised in height, it cannot be accessed from the rest of the Defendants’ propertyas conveniently as before. However it remains accessible from the rest of the Defendants’ property and, if they so wish, it will be open them to carry out works on their land to improve their access, funded from their equitable compensation.

My conclusions are as follows.

I shall hear counsel further in relation to consequential relief and costs together with the formulation of the provisions to be embodied in the Court order.