Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and B.P. Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP,LORD JUSTICE ORMROD |
| Judgment Date | 10 July 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0710-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1974 |
Appeal by plaintiffs from judgment of His Honour Judge Nevin on 10th October 1973 at Scarborough County Court.
[1974] EWCA Civ J0710-1
The Master of the Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Ormrod.
In The Supreme Court of Judicature
Court of Appeal
Mr. CHRISTOPHER HEATH (instructed by Messrs. A.F. & R.W Tweedle, agents for Messrs. Cook, Fowler and Outhet of Scarborough) appeared on behalf of the Appellant Plaintiffs.
Mr. M.R. RUSSELL DAVIES (instructed by Messrs. Bedwells) appeared on behalf of the Respondent Defendants.
This case concerns a small piece of land only one and a third acres — in Yorkshire. It is near the sea at Cayton Bay. It has a frontage to the main road from Scarborough to Filey. Nearby there is a big holiday camp with hundreds of caravans. Next door to it there is a garage. Now there is a dispute as to who owns it. Wallis's, the caravan company, claim a squatter's title by 12 years' possession. To understand the problem, it is best to have a plan (see attached). I have drawn a very inadequate plan of my own,
In 1957 the disputed land was part of the farm. But the County Council were proposing to build a big new road along the line shown. They had actually bought the site of the proposed road from the farmer. The garage proprietor thought it would be a good thing to have a stretch of land next the new road. So he bought the disputed piece (1,33 acres) from the farmer for £1,000.
In April 1961, Wallis's too thought the time appropriate to get more land,. They had their big holiday camp with caravans on the area shown. So they bought up the rest of the farm from the farmer. It was the farm-house and 107 acres. They bought it for £35,700. But the conveyance clearly excluded the line of the proposed new road, (which had been sold to the County Council) and the disputed land of 1.33 acres (which had been sold to the garage propristor), But there was nothing on the land itself to mark the boundaries. No fences. Nothing, if cattle were put in the fields, they could stray without hindrance on to the line of the proposed new road and on to the disputed land.
In September 1961, the Shell-Mex Company also saw good prospects ahead. They bought the disputed land (1.33 acres) from the garage proprietor for £5,500, So in four years its value had gone up from £1,000 to £5,500. Shell, too, had an interest in thegarage. They supplied all the petrol and oil for it.
But neither the County Council nor Shell-Mex had any immediate use for their pieces of land. So they did not put up any fences. The Wallis's having bought the farm (through their family farming company) farmed it as before. Seeing that there were no fences, they cut the grass, net only on their own land, but also on the site of the proposed new road, and on the disputed land. They put their cattle out on to their own fields and let them stray on to the site of the proposed new road and on to the disputed land. (In one subsequent year they even ploughed up the fields and cropped then with wheat). They got a licence to do all this — on the site of the proposed new road — from the County Council. But they did not ask the Shell-Mex for a licence for the disputed land. They just treated it as if it was their own. Indeed they came to think it was their own.
That went on for ten years from April 1961 to 1971. Then the Wallis's (through their caravan company) took over the whole area. They treated it as if it was a playground for the holiday camp. They cut the grass, they collected litter, they put a football field on the proposed new road, they used the disputed land as a visual frontage amenity for their holiday camp, they painted the old outer fence (next the main road) white, like the other outer fences of the camp.
But twelve years had not yet elapsed. After only eleven years, in 1972, the County Council abandoned their proposals for a new road. So Shell-Mex revised their plans. They thought they would not want the disputed land. It was surplus to their requirements. So they decided to sell it. On 20th October 1972, the secretary to Shell-Mex wrote this letter to Wallis's; "I have pleasure in enclosing a plan showing, edged red, an area of land owned by this company and adjoining your own property which is surplus to requirements.
I should he pleased to learn whether your company would be interested in purchasing the land, and, if so, to receive your best offer for consideration".
They enclosed with that letter a plan which clearly showed the disputed land (1.33 acres) and that it was owned by Shell-Mex.
On receiving that letter, Wallis's went to their solicitor and received legal advice. We do not know what that advice was. But it is easy to guess. The solicitor looked up the deeds and told Wallis's that on the title deeds the disputed land belonged to Shell-Mex and not to Wallis's, The solicitor also told them, so we may assume, that if they remained in possession for 12 years, they might get a squatter's title. At any rate, as a result of the lawyer's advice, Wallis's did not reply to the letter from Shell-Mex.
On 14th December 1972, Shell-Mex wrote again. They asked for a reply to their earlier letter and wished to learn whether Wallis's would be interested in purchasing the land. Still Wallis's did not reply. The twelve years had not yet run. On 5th April 1973, Shell-Mex wrote again on the same terms. Still no reply. There were then only nine days to go to complete the 12 years. These nine days passed before Shell-Mex got wise to what was happening.
Two months later, in June 1973, Shell-Mex began to wonder what Wallis's were up to. They smelt a rat. They took action. Out it came. So on 27th June 1973, they begun to fence off their boundary on the disputed land. On the very next day, Wallis's came at last into the open. Their solicitor wrote claiming the disputed land. He said that his clients "have a possessory title to the same", If this contention be right, Wallis's have done exceedingly well by not replying to the letters. They have acquired this valuable strip of land — next the- main road — for nothing. It is now worth over £8,000, Yet by lying low since October 1972 they haveacquired an absolute title to it — when they knew perfectly well that it did not belong to them, but belonged to Shell-Mex. The Judge put it neatly when he said: "I cannot believe they were too busy to answer and on balance of probabilities can only conclude they were playing for time to sit out the final months of the twelve-year period".
The Judge rejected Wallis's claim to the land, Wallis's appeal to this Court.
Wallis's stake their claim on actual possession for twelve years. They farmed the land as their own for ten years and used it as their own for another two years. They say that Shell ought to have brought an action for possession during those twelve years: and that not having done so, Shell are barred: and Wallis's have a possessory title under the Limitation Act 1939.
There is a fundamental error in that argument. Possession by itself is not enough to give a title. It Mastbe adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must; be something in the nature of an ouster of the true owner by the wrongful possessor. That is shown by a series of cases in this Court which, on their very facts, show this proposition to be true.
When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary surpose, like stacking materials; or for some seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years, or more: see Light v. Jack (1879) 5 Ex. D.264; Williams Bros, v. Raftery (1958) 1 Q.B. 159; Tecbild Ltd. v. Chamberlin (1969) P. & C.R.633 The reason is notbecause the user does not amount to actual possession. The line between acts of user and acts of possession is too fine for words. The reason behind the decision is because it does not lie in that other person's mouth to assert that he used the land of his own wrong as a trespasser. Rather his user is to be ascribed to the licence or permission of the true owner. By using the land, knowing that it does not belong to him, he impliedly assumes that the owner will permit it: and the owner, by not turning him off, impliedly gives permission. And it has been held many times in this Court that acts done under licence or permitted by the owner do not give a licensee a title under the Limitation Act 1939. They do not amount to adverse possession, see Cobb v. Lane (1952) 1 T.L.P. 1037; British RailwaysBoard v. Holding in this Court (25th March 1974).
Take this very case. In October 1972, Shell-Mex wrote to Wallis's asking them if they would like to buy this land. If Wallis's had written back in October 1972, as any good neighbour would: "we know it is your land but do you mind if we go on using it until you want it"; Shell-Mex would have replied: "Of course, we don't mind. You can use it until we sell it". The subsequent user would be by licence, Wallis's would get no title. Or if Wallis's had written back the truth, and said; "We know it is your land but we are going to use it for another six months to as to oust you and get a possessory title", Shell-Mex wrould at once have put up a fence and stopped them acquiring a title. But Wallis's simply did not reply at all. I cannot think that Wallis's can get a good title by deliberately not replying to letters. By...
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