Treloar v Nute

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE STAMP
Judgment Date07 Jul 1976
Judgment citation (vLex)[1976] EWCA Civ J0707-3

[1976] EWCA Civ J0707-3

In The Supreme Court of Judicature

Court of Appeal

Civl Division

On appeal from Order of Judge Chope:

Before:

Lord Justice Stamp,

Lord Justice Ormrod

and

Sir John Pennycuick.

Joanna Treloar (Widow)
Plaintiff
and
E. R. Nute (Male)
Defendant

The Appellant Defendant (Mr E. R. Nute) appeared in person.

Mr P.R. DUNKELS (instructed by Messrs Thrall Llewellyn & Pearce) appeared on behalf of the Respondent Defendant.

1

SIR JOHN PENNCUICK: This is an appeal from an Order made on the 5th August, 1975, by Judge Chope in the Penzance County Court. The Plaintiff is Mrs Johanna Treloar who claims an injunction restraining trespass by the Defendant, Mr B. R. Nute, upon a small plot of land in the parish of Wendron, Cornwall, The Defendant sets up a possessory title. The action was commenced on the 5th September, 1974, so that the twelve year period of limitation must be treated as running from the 5th September, 1962, I will refer to this period as the "limitation period". The judge held that the Defendant had failed to establish the necessary adverse possession over the limitation period. The Defendant appeals from that decision.

2

I will state summarily the facts as they appear from the notes of evidence and the judgment. This statement must be read in conjunction with one of the plans based on the Ordnance Survey which have been put in evidence.

3

In 1961 the Plaintiff, who is now a lady of 88, was the freehold owner of a number of parcels of land at Halwin in the parish of Wendron. These parcels included a plot numbered 2817 containing.316 acres lying to the east of the junction of two minor roads. There was some question as to whether the Plaintiff herself had a paper title or a possessory title to No. 2817 but the question turned out to have no practical importance since under one or other title she indisputably owned the fee simple of No. 2817 in 1961.

4

In 1961 the Defendant's father purchased a number of parcels lying to the east of the Plaintiff's land. It appears that his purchase and the subsequent conveyance dated September 1962 were expressed to include the eastern part of No. 2817,which in fact belonged to the Plaintiff. This part contained very approximately half the area of No. 2817, about 1/7th of an acre. I will refer to this part of No. 2817 as "the disputed land".

5

In 1961 the disputed land had some sort of shed in its south-west corner. There was no other building upon it. Across the centre in an arc from west to east ran a broad depression or gully, eight to ten feet in width.

6

The land had previously been used by the Plaintiff in connection with her farm but in 1961 was derelict and was not in use for any purpose.

7

At the time of his purchase in 1961 the defendant's father believed the disputed land to be included in the purchase.

8

During the period between the purchase and the commencement of the limitation period in September 1962 the Defendant's father and members of the family including the Defendant did certain acts upon the disputed land, namely, as found by the judge.

9

(i) A couple of cows and a yearling were grazed upon it.

10

(ii) Spoil taken from a well dug on land of the Defendant's father to the south of the disputed land was placed in the gully, thus partially filling it up.

11

(iii)Some unspecified work was done upon the northern boundary.

12

(iv) Materials such as timber and stone were stored upon it.

13

(v) The Defendant and his brother rode motor-bicycles upon it.

14

Between the Defendant's father's purchase in 1961 and the commencement of the limitation period the Plaintiff did no acts upon the disputed land.

15

In the summer of 1963, i.e. after the commencement of the limitation period, the Defendant's father erected a fence along the western boundary of the disputed land. The Plaintiff protested "by letter dated 14th August 1963 and had the fence removed. The Defendant's father re-erected it and it remains in position.

16

In 1965 the Defendant's father conveyed the disputed land to the Defendant by way of gift.

17

Nothing further seems to have happened between 1963 and 1966, when the Plaintiff through her solicitors protested at the dumping of earth on the disputed land. A correspondence ensued in the course of which the Defendant claimed to be the owner of the disputed land. Again the matter was allowed to slide until 1974, when the Defendant, having by now completely filled up the gully, set about the erection of a bungalow on the disputed land.

18

The Plaintiff did no acts upon the disputed land during the limitation period apart from pulling down the fence in 1963.

19

On 3rd September, 1974, after some correspondence, the Plaintiff commenced the present action. The Plaintiff claims (1) An injunction restraining the Defendant from trespassing on the Plaintiff's said land as aforesaid or at all. (2) An order that the Defendant do forthwith remove all deposits of earth and other materials which he has deposited or brought onto the Plaintiff's said land. (3) Damages for trespass limited to £750. (4) A declaration that the Plaintiff is the owner in fee simple absolute in possession of the said property".

20

The Defendant originally relied on ownership under a paper title, but by Supplemental Defence and Counterclaim set up a possessory title.

21

The action was heard by Judge Chope on the 5th August, 1975. A considerable part of the evidence was concerned with the paper title to the disputed land which is not now a live issue. There was evidence as to pulling down and re-erection of the fence in 1963; no reliance was placed on these activities in the argument before us. There was no evidence as to any purpose which the Plaintiff may have had in mind with regard to the future use of the disputed land. The Defendant and his father and brother, also one Tremayne, gave evidence as to the acts upon the disputed land which we have already summarised.

22

We turn next to the notes of judgment. After dealing in an eminently sensible way with the question of title, the judge proceeds as follows: "The Defendant establishes that his father went into possession in 1961 and the condition of the land was derelict and that in 1961 a couple of cows and yearlings were grazed by the Defendant on the disputed land and that some work was done by the Defendant to the northern boundary and it is also established that whensa well was dug on the Defendant's property on the other side of the road some of the spoil was taken and placed upon the disputed land to fill in a gully in the land. The Defendant also establishes that the land was used by himself and his brother for riding motor cycles in 1961 but the Defendant and the father and his brother all accept the state of the land as it was and no-one putting it to any use at all these acts of grazing cattle and riding motor cycles and storing some materials prior to October 1962 these acts would clearly not have inconvenienced the owner. In other words they were not acts adverse to the possession by the Plaintiff. They could have been called actsindicating the Defendant in possession "but not exclusive and not adverse to the Plaintiff's title and therefore I find the Plaintiff was at that period the true owner whether or not by the paper title or as the person in possession". He goes on to deal with the fence and concludes: "At the end of the day, the Plaintiff has established title before the Defendant entered into possession in 1961. Because of the derelict way in which the land had been allowed to remain it is for the Defendant to prove adverse possession By the very reason that it was left fallow it was much more difficult for the Defendant to show that the acts were adverse to the Plaintiffs That is why the Defendant's evidence of acts such as the riding of motor cycles, storage of goods, etc. in my judgment do not amount to possession, adverse to the Plaintiff, and she scrambles home as a matter of time simply by virtue of the fact that the Defendant most cogent acts of adverse possession were not over a sufficient period of time".

23

The findings in the judgment with regard to possession are in one critical respect unclearly expressed. As we understand these passages, what the judge is saying is that the Defendant's father did go into possession in 1961 but...

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