West Bank Estates Ltd v Arthur
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1966 |
| Date | 1966 |
| Year | 1966 |
| Court | Privy Council |
Guyana - Land - Prescription - Land lying between lands of legal owner and claimant - Acts of cultivation - Whether sufficient to prove sole possession - Whether consistent with enjoyment by true owner - “Sole and undisturbed possession, user or enjoyment” - Whether related to physical characteristics of land - Presence of dam - Whether evidence of boundary -
The Laws of British Guiana, Chapter 184, s. 3, provide:
“Title to land … may be acquired by sole and undisturbed possession, user or enjoyment for 30 years, if such possession, user or enjoyment is established to the satisfaction of the court and was not taken or enjoyed by fraud or by some consent or agreement expressly made or given for that purpose.”
The appellants had a documentary title to a strip of land lying between their lands and those of the respondents, who claimed that they and their predecessors in title had established a title by prescription to that strip of land. In support of their claim the respondents relied on (a) acts of cultivation; (b) cutting of timber, wood and grass; (c) fishing and (d) growing rice. They also relied on the presence of a dam which they alleged constituted a boundary to the disputed land, of a type commonly known as a “side-line” dam.
The trial judge held: (a) that there was no evidence how the dam was constructed, who built it, or for what purpose and that it would be “wrong and unsafe to find that it was a side-line dam;” (b) that the respondents' acts of cultivation were not definite as to any specific areas, and that the cutting of timber, wood and grass, fishing and growing rice, although they had taken place over a considerable period, could not amount to such a dispossession and taking of adverse possession as to start time running against the true owner.
The Federal Supreme Court accepted the primary findings of fact, but held that the trial judge had misdirected himself in that: (i) he treated the respondents as trespassers ab initio in respect of the disputed land; (ii) he applied to the evidence of user the standards appropriate to proof of dispossession by user; (iii) he failed to give proper effect to the meaning of section 3 of Chapter 184 of the Laws of British Guinea and (iv) he declined to consider the respondents' acts of user as a whole both to time and to space. They took the view that the respondents had proved that they had made, what was for persons of their means and class (small peasant farmers), normal user of the land.
On appeal: —
Held, that the words “sole and undisturbed possession, user, or enjoyment” in section 3 conveyed the same meaning as possession to the exclusion of the true owner (post, p. 755E, F); that what was a sufficient degree of sole possession and user had to be measured according to an objective standard, related to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants (post, p. 756B, C); that although what constituted possession, adequate to establish a prescriptive claim, might depend upon the physical characteristics of the land, such acts as cutting timber and grass from time to time were not sufficient to prove the sole possession which was required, for they were not inconsistent with the enjoyment of the land by the person entitled, and, admitting the utility of the respondents' operations and that they did what was normal for small peasant farmers, that still did not establish a degree of sole possession and user sufficient to satisfy section 3 or to carry the matter beyond a user which remained consistent with the possession of the true owner (post, pp. 755F, G, 756A, B); and that, in its final analysis, the case became one of appraisal of the evidence as to possession on the part of the users of the disputed land itself, and the evidence justified the findings of the trial judge, which were not vitiated by any error of law and ought not to be disturbed post, p. 758D, E).
Judgment of the Federal Supreme Court of the West Indies set aside.
APPEAL (No. 40 of 1961) from a judgment of the Federal Supreme Court of the West Indies in its appellate jurisdiction for British Guiana (Hallinan C.J., Marnan and Lewis JJ.) (February 25, 1961) reversing the judgment of the Supreme Court of British Guiana (Bollers J.) (April 4, 1960) in two actions brought by the respondents, Shakespeare Cornelius Arthur (substituted for John Victor, deceased), Zacharia Layne and Gideon Layne, against the appellants, West Bank Estates Limited. Action No. 1130 of 1959 was by way of originating summons for registration in the name of the respondents of the title to the land described in the summons. Action No. 1719 of 1959 was for possession of a portion of Lot 33 occupied by the appellants.
1966. May 19, 23, 24, 25. R. E. Megarry Q.C. and Jeremiah Harman for the appellants.
E. F. N. Gratiaen Q.C., T. O. Kellock Q.C. and Walter Jayawardena for the respondents.
The following cases, in addition to those referred to in the judgment, were cited in argument: Fishar v. ProsserF1 and Convey v. Regan.F2
1966. July 11. The judgment of the board was delivered by LORD WILBERFORCE. This is an appeal from a decision of the Federal Supreme Court of the West Indies in its appellate jurisdiction for British Guiana which reversed the judgment of the trial judge in the Supreme Court of British Guiana. Although there were originally two separate actions, they were heard together and a single judgment was given in both courts. Their Lordships will deal with the matter in the same way, though they will refer separately to the two proceedings at the conclusion of their judgment.
The dispute relates to the boundary between the land of the appellants and that of the respondents, and in particular to the title to a thin strip of land over a mile long, running from east to west. At the wider, western, end it is about 100 yards in width; it tapers to about 30 yards at the narrower, eastern, end. It may be pictured as a long, thin wedge or triangle with the tip cut off: the tip itself, though not the subject of present contention, was also at one stage the subject of dispute, and will be the subject of later mention.
The land to the north of the disputed strip belongs to the appellants and is known as the...
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Naomi Iona Grigg Margaret Louisa Maron Applicants/Appellants v Leopole Smith (Caveator/Respondent)
...that the respondent was in exclusive possession from 1954. In support of his contention he referred to the cases of West Bank Estates, Ltd. v. S.C. Arthur and others (1966) 11 W.I.R. p.220 and Wuta-Ofei Danquah (1961) 3 A.E.R. 16Junior counsel for the appellants submitted that the judge co......
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Geoffrey Cobham v Joseph Frett (as personal representative of Thomas Frett, deceased)
...there to be any such error and nor do their Lordships. Their Lordships are impressed by the analogy that can be drawn between West Bank Estates Ltd. v. Arthur [1967] A. C. 665 and the present case. West Bank Estates was an appeal to the Privy Council from the Federal Supreme Court of the We......
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Roberts v Crown Estate Commissioners
...a question of undefined and disputed boundary ( Clark v. Elphinstone (1880) 6 6 App.Cas. 164, 170–171; West Bank Estates Ltd. v. Arthur [1967] 1 AC 665, 679–680), but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is encl......
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Hall and Others v Mayor of London (on Behalf of the Greater London Authority)
...required to amount to possession varies with the nature of the land and all the circumstances—see e.g. West Bank Estates Ltd v Arthur [1967] AC 665, 22 The argument advanced by Mr Luba and Mr Wonnacott on this first issue is simply stated, and is based on clear, if somewhat historical, prin......