Powell v McFarlane




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Powell v McFarlane (1977) 38 P & CR 452, Ch D

Powell claimed to have been in adverse possession of a three acre field in Reigate, Surrey, since 1956 when, as a 14 year old boy, he had started to graze the family cow there. McFarlane was the registered proprietor of the field. He had bought the fee simple absolute in 1952 for £470. He disputed Powell’s claim.

Powell lived with his grandparents on their smallholding near the disputed field. His grandfather had farmed the disputed field (and other land in the area) as a tenant, but had given the tenancy up when Powell was aged five because of ill-health. Powell was a precocious child who by the age of eight was driving tractors, expected to earn his own money to buy clothes, and had taken over responsibility for the family cow. In 1956 when Powell was 14 he decided the disputed field would be useful as additional grazing. He found out that McFarlane was the owner, and persuaded his grandmother to write to him asking for permission to use it. There was no evidence that McFarlane ever replied to, or even received, this letter but nevertheless, and despite the disapproval of his grandparents, Powell began to use the field. He cut and took away the hay from the field, increased the mowing area by clearing brambles and cutting trees, carried out rudimentary but quite extensive work on the boundary fences and hedges to make the field stockproof, installed a water supply by connecting a hose pipe to a stand-pipe on neighbouring land, and grazed his cow and his half-brother’s goat there. He also shot pigeons and rabbits on the land. These activities continued to varying extents until 1973. The grazing increased between 1957 and 1960 when the cow had two heifers, but ceased altogether in 1968 when the cow finally died. Meanwhile, however, Powell had gone into business as a tree surgeon and in 1962 he erected a double-fronted sign board in the field advertising his business and from 1962 to 1970 (when he found other premises) he also used the field for parking vehicles and storing timber in connection with his business.

Throughout this period, McFarlane was quite unaware that anyone was using his land. The field was poor quality land, on the edge of the Metropolitan Green Belt in an area of outstanding natural beauty and near to National Trust land; there was little prospect of ever obtaining planning permission for development. When McFarlane bought the field in 1952 he had no definite plans for it. He was a civil servant living and working in London. He had arranged for his vendor to plant Christmas trees on the field before he purchased it and he had some hopes of harvesting them in due course, but over the years most of them died or disappeared (Powell eventually cleared the last of them in 1957). McFarlane also had plans, later abandoned, to build a house on an adjoining building plot he had bought, and to move down there with his family, using the field as part of the grounds.

In 1955, just before Powell started to use the field, McFarlane was posted to Bonn by his ministry for an assignment initially intended to last for a year but which in fact lasted for eleven years. Before he left he sold the adjoining building plot and also made attempts to sell or let the field, but they came to nothing. He did not see the field again until he returned to England in 1967. His wife made one visit in 1960 to check up on the Christmas trees, noticed that they had all disappeared but saw no sign of any activity on the land. Between 1967 and 1972 the McFarlanes made three or four visits a year to the field, but their inspections were not “either detailed or careful” (often not even getting out of the car) and they noticed nothing apart from the signboard, which they thought “was doing no harm”. It was not until 1972, when they saw new fencing on one of their visits, that they realised what had been happening. Powell then brought this action for a declaration that he had been in adverse possession for more than 12 years. In order to succeed, he had to prove that he had acquired possession of the field more than 12 years earlier:

Slade J . . . Possession of land . . . is a concept which has long been familiar and of importance to English lawyers, because (inter alia) it entitles the person in possession, whether rightfully or wrongfully, to maintain an action of trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession. In the absence of authority, therefore, I would for my own part have regarded the word “possession” . . . as bearing the traditional sense of that degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of tres­pass in relation to the relevant land . . .

It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:

(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 prima 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 conclusive 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 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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. . . . It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession. On the particular facts of Cadija Umma v. S. Don Manis Appu [1939] AC 136, PC the taking of a hay crop was held by the Privy Council to suffice for this purpose; but this was a decision which attached special weight to the opinion of the local courts in Ceylon owing to their familiarity with the conditions of life and the habits and ideas of the people (ibid at pp 141-142). Likewise, on the particular facts of the Red House Farms case, mere shooting over the land in question was held by the Court of Appeal to suffice; but that was a case where the court regarded the only use that anybody could be expected to make of the land as being for shooting . . . 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 M.R., in Littledale v. Liverpool College [1900] 1 Ch 19, 23, CA . . . as “the intention of excluding the owner as well as other people.” This con­cept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title [see Chapter 11 below] he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at 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.

The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dis­possessed the owner.

A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass. . . In Tecbild Ltd. v Chamberlain (1969) 20 P & CR 633 CA a possessory title was claimed to certain plots of land which were vacant and uncultivated, though they were ripe for development. The acts relied on by the defendant to establish adverse possession were that her children had played on the two plots as and when they wished, the family ponies had been tethered and grazed on them and there was a rough old fence on one boundary. The Court of Appeal dismissed her claim. Sachs LJ said (at pp 642-643):

. . . As regards adverse possession in cases such as the present, it is of no use relying only on acts which are equivocal as regards intent to exclude the true owner. If authority were needed for that proposition, it could be found in the judgment of Harman LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487; indeed, in that case it was pointed out that even all-round fencing is not unequivocal if other explanations exist as to why it may well have been placed round the land in ques­tion, as, for instance, to protect the ground from incursions of others.

Here again, everything depends on the nature of the property and the nature of the acts. To my mind, the acts relied on in this case by the defendant were not even equivocal in that they did not appear to provide an equal balance between intent to exclude the true owner from possession and an intent merely to derive some enjoyment from the land wholly consistent with such use as the true owner might wish to make of it. The scales tipped clearly toward the latter conclusion.

It follows that this impudent attempt to gain £l,000-worth of property without having any right to it in law rightly failed; . . .”

. . . In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. The status of possession, after all, confers on the possessor valuable privileges vis-a-vis not only the world at large, but also the owner of the land concerned. It entitles him to maintain an action in trespass against anyone who enters the land without his consent, save only against a person having a better title to possession than himself. Furthermore it gives him one valuable element of protection even against the owner himself. Until the possession of land has actually passed to the trespasser, the owner may exercise the remedy of self-­help against him. Once possession has passed to the trespasser, this remedy is not available to the owner, so that the intruder’s position becomes that much more secure; if he will not then leave voluntarily the owner will find himself obliged to bring proceedings for possession and for this purpose to prove his title.

Against this background, it is not in the least surprising that over many years in cases such as . . . Tecbild Ltd v Chamberlain the courts have been reluctant to infer the necessary animus possidendi on the part of a squatter, even where the acts relied on could have sufficed to constitute factual possession.

I would add one further observation in relation to animus possi­dendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute. For the same reasons, even contemporary declarations made by a person to the effect that he was intending to assert a claim to the land are of little evidential value for the purpose of supporting a claim that he had possession of the land at the relevant date unless they were specifically brought to the attention of the true owner. As Sachs LJ said in Tecbild Ltd v Chamberlain (at p 643): “In general, intent has to be inferred from the acts themselves.”

In the light of these principles, which I have tried to summarise, I now revert to the facts of the present case. The character of the disputed land in 1956 when the plaintiff began his activities was, as I have in effect found already, poorish agricultural land of some three and a half acres in area; probably not capable of development by building in the foreseeable future; containing a few relics of Mr McFarlane’s Christmas trees but otherwise not for the time being used in any way; surrounded by some kind of fencing, most of which was in a poorish condition; suitable for pasturage and haymaking but not suitable for ploughing or planting with cereal crops [He described Powell’s activities on the land, and rejected the argument put for McFarlane that these should in law be regarded as acts of his grandfather]

There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act: compare Seddon v Smith (1877) 36 LT 168 CA. The enclosure of land by a newly constructed fence is another. As Cockburn C.J. said in Seddon v Smith (at p 169) “Enclosure is the strongest possible evidence of adverse possession,” though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access. The plaintiff however, did none of these things in 1956 or 1957. The acts done by him were of a far less drastic and irremediable nature. What he did, in effect, was to take various profits from the land, in the form of shooting and pasturage, hay and grass for the benefit of the family cow or cows and goat, and to effect rough repairs to the fencing, merely to the extent necessary to secure his profits by making the land stockproof. On many days of the year neither he nor the animals would have set foot on it. These activities, done, as they were, by a 14 year old boy who himself owned no land in the neighbourhood, were in my judgment equivocal within the meaning of the authorities in the sense that they were not necessarily referable to an intention on the part of the plaintiff to dispossess Mr McFarlane and to occupy the land wholly as his own property. At first, surely, any objective informed observer might probably have inferred that the plaintiff was using the land simply for the benefit of his family’s cow or cows, during such periods as the absent owner took no steps to stop him, without any intention to appropriate the land as his own.

In these circumstances the burden must fall fairly and squarely on the plaintiff affirmatively to prove that he had the requisite intent in 1956-57. I adopt the approach followed in Convey v Regan [1952] IR 56 an Irish decision to which Mr. Wakefield, on behalf of the second defendant referred me. Black J. said (at p 59):

The basis of the principle seems to be that when a trespasser seeks to oust the true owner by proving acts of unauthorised and long continued user of the owner’s land, he must show that those acts were done with animus possidendi, and must show this un­equivocally. It is not, in my view, enough that the acts may have been done with the intention of asserting a claim to the soil, if they may equally have been done merely in the assertion of a right to an easement or to a profit a prendre. When the acts are equivocal - when they may have been done equally with either intention - who should get the benefit of the doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.

In the course of his evidence, the plaintiff said on a number of occasions words to the effect that, when he began to use the disputed land, he intended to make it his own. Mr. Lyndon-Stanford invited me to accept these statements of his intention, on the basis that he was an honest witness and that they had not been refuted in the course of cross-examination; indeed I do not think he was cross-examined on them. Mr. Hoffmann submitted that I should generally treat his evidence with some reserve, relying in particular on a statutory declaration which the plaintiff swore on March 2, 1971, in support of a claim to have acquired a statutory title by adverse possession both to the disputed land and to certain land on the other side of the drive. The plaintiff is litigating the claim to this other land . . . in separate proceedings. This statutory declaration contains a number of manifest inaccuracies, which were freely admitted by the plaintiffs in his evidence before me. His explanation was in effect that the fault lay with the solicitors who prepared the statutory declaration on his behalf and who must have misunderstood his instructions. I think the plaintiff though highly intelligent, is not a very literate man, who might well have found difficulty in following the somewhat technical language of a draft statutory declaration presented to him by his solicitiors. I am not therefore prepared to find that he is an unreliable witness simply on the basis of this statutory declaration. In general, I regard him as a reliable witness on questions of straightforward fact. However, he is also a man who is obviously very determined to get what he wants and the statutory declaration is, in my judgment, relevant for another reason. It shows that by early 1971, the plaintiff was, with the assistance of lawyers, already asserting a statutory title by adverse possession to two pieces of land. Indeed it emerged from his evidence that he also encouraged and helped his mother . . . to pursue a claim to a possessory title to a third piece of land . . . Accordingly by the time he gave evidence in these proceedings, he must, through frequent contacts with his lawyers over the years, have become very familiar with the essential characteristics of possession under English law, both in relation to fact and state of mind.

For these particular reasons, in addition to those reasons of general principle to which I have already referred, I regard the plaintiff’s statements in evidence as to his past intentions as being of minimum probative value in the present case . . . On the evidence it seems to me inherently possible, if not likely, that as at 1956-57 he entered it simply with the idea of taking what he needed from it by way of grazing, etc. until he was stopped, and with no real thought at that time of establishing a permanent dominion over it. Very probably by 1962, when he was older and had established his own business and had already been using the land for several years, his intentions had hardened, just as his activities (for example his parking of vehicles and lorries and the erecting of a sign board) had become more unequi­vocally those of a person asserting ownership. It is, I think, quite possible that he did effectively take possession of the land in 1962 by sufficient acts and manifestations of animus possidendi. However, this does not assist him for the purposes of the present proceedings. Nor in my judgment do his activities of 1962 provide any useful guide to his intention in the very different circumstances of 1956 and 1957.

. . . I accept that . . . for the purpose of the Limitation Act 1939, in the absence of concealed fraud, it is irrelevant that an owner is ignorant that he has been dispossessed: Rains v Buxton (1880) 14 Ch D 537. In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actual seeking to dispossess him.

On the facts of the present case, it follows that the plaintiff’s intentions in 1956 and 1957 must be interpreted primarily from his own acts. These acts do not in my judgment go far enough to prove the requisite animus possidendi, particularly on the part of a 14 or 15 year old boy. It is of some significance that of all the many authorities cited to me, in which titles have been established, in no one has the successful claimant been an infant who has established his title by virtue of possessory acts done by him on his own behalf.

I thus conclude that the plaintiff did not acquire possession in law of the land from Mr McFarlane in 1956 or 1957 . . .

Fowley Marine (Emsworth) Ltd v Gafford [1968] 1 All ER 979 CA

Fowley Marine (Emsworth) Ltd claimed to be the owner of Fowley Rythe, a navigable tidal creek in Chichester harbour. The creek was used by pleasure boats for navigation and mooring, and also by fishing boats, and there were public rights of navigation over it. Fowley Marine brought this action claiming that a permanent mooring for a yacht maintained in the Rythe by the defendant Gafford without its permission was a trespass. Because trespass involves an interference with possession rather than with ownership (see Section 4 below), Fowley Marine had to prove that it was in possession of the Rythe. If it could have proved its title to the creek, then it would have been presumed to have been in possession (because fee simple ownership of land carries with it the right to possession, so proof of title is also prima facie proof of possession). However, it was unable to do this: title to sea bed and foreshore prima facie vests in the Crown, and anyone else claiming title to such land must be able to demonstrate either that there was a grant of title by the Crown or that title had been acquired by adverse possession against the Crown (which requires 60 years adverse possession) and Fowley Marine failed to demonstrate either of these. It could still have succeeded in its trespass action against Gafford if it could demonstrate that, whoever held title to the Rythe, Fowley Marine was actually in possession of it. But how do you demonstrate exclusive physical control of a tidal creek over which there are public navigation rights? Fowley Marine relied largely on the fact that it and its predecessors had either laid moorings in the Rythe or licensed others to do so, but it admitted that there were other moorings in the Rythe which had been laid without their permission. On this basis the trial judge held that Fowley Marine was not in exclusive possession of the Rythe, but shared possession with Gafford and the others who had unauthorised moorings. Consequently he held that Fowley Marine’s trespass claim failed. On appeal the Court of Appeal reversed his decision:


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