Williams Brothers Direct Supply Ltd v Raftery

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE MORRIS
Judgment Date15 November 1957
Judgment citation (vLex)[1957] EWCA Civ J1115-2

[1957] EWCA Civ J1115-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Hodson,

Lord Justice Morris, And

Lord Justice Sellers.

Williams Brothers Direct Supply Stores, Ltd.
(Appellants)
and
T. Raftery
(Respondent)

MR D.W. HUNTER (instructed by Messrs. N.B. Wedlake, sa Royal Courts of Justice, and 2, Hew square, Linooin'a Inn, London, int & Co.) appeared on behalf of the Appellants (Plaintiffs).

MR RAPHAEL TUCK (instructed by Messrs. Alfred slater Cz Co.) appeared on behalf of the Respondent; (Defendant).

1

LORD JUSTICE HODSOH: This is an Appeal from a judgment of his Honour Judge Dare dated 2oth June, 1957, and given at the Edmonton County court.

2

The Plaintiffs are the owners of freehold and at the rear of premises known as NOS. 367, 369 and 371, Fore Street, Edmonton, and the Defendant is the tenant of a maisonette over shop premises at No.367, Fore street, his premises being known fits o.367a and his lmmidiate landlord being the London co-operative Society, who lease the premises from the Plaintiffs.

3

The action was an action for possession of land and for an order directing the removal of some fencing and sheds erected by the Defendant upon some of the land, and damages for trespass.

4

The land in question was a piece of land at the rear of the place where the defendant lived, a strip running east and west. The Judge gives the measurements of the land us 110 ft. long and 13 ft. wide.

5

The position, stated shortly, is that In 1940 a man called Haydon used that land for cultivation, the land having been previously occupied, us part of a larger area, by some cottages which had been pulled down, cottages which belonged to the Plaintiffs. The cultivation by fir Haydon was part of the Dig for Victory campaign, and subsequently, in 1943, the Defendant did the same, and continued to do so until 1948, In 1948, or immediately afterwards, he gave up the cultivation of the land and he put up, on a portion of it, a shed for breeding greyhounds, which he has been doing over since.

6

The plaintiffs' Intention all along boon, when they got the chance, to develop the land at the rear from which they had removed the cottages, and they had no intention that the land should be used for any particular purpose in the meantime. They put a gate in the fence which they erected between the land and the back roadway, and during the war they were unable to do any development. In 1948 they applied for planning permission to develop the land, and with that object in view a representative of the Plaintiffs' went on the land, went over it, and measured it. The Plaintiffs, by their representatives, have been on the land since, but I think those occasions are not important.

7

The position of the defendant was this, that he, like the tenants of the adjoining houses, cultivated the land at the back. Each house had a strip of a like kind, and although the others gave up he went on longer than the others. The others had permission from the plaintiffs – perhaps oral permission – to cultivate the land, but he had no such permission, and I think I should read the Defendant's evidence in order to show what his position was, because his defence to this action for possession and for damages as against a trespasser is that he has a squattor's title. Therefore before dealing with the law on the matter I think I could usefully read the evidence, or the gist of the evidence, which the Defendant gave.

8

Having described how he had a discussion with Haydon and how his neighbours were working on either side of him, the Defendant said that he moved into the plot of land and "put in rhubarb and bulbs from other garden before Haydon wont". He goes on: "Got no permission from anyone. Never paid rent". He said that the other two, Wood and Haydon, gave up about 1947, and he continued to work on and grow potatoes. The place was overrun with weeds and he went in for the greyhounds in 1949 and put up the Shelter first.

9

In cross-examination he refers to the cultivation of the plots by the two tenants on either side of him, and refers to the fact that Haydon, the man whom he had succeeded, did not live in those premises at all. He wanted the bit behind his maisonette and he thought, being tenant of No.367a, chat he was entitled to the bit behind it, He then wont on to say: "I knew other tenants were cultivating behind their premises. I thought entitled to same, hot trying to take over land, not really. Exercising rights I thought I had as tenant of these premises. All three cultivated bits. One by one, when war ended, these gave up. By 1948 whole place overgrown barring my strip", and he says his strip was not overgrown. He says: "Done no more than grow vegetables on site. Two-thirds of the strip down towards the concrete. I did nothing to keep the plaintiffs off". He gave evidence about some bricks which he had put down to mark the boundary of the plot of land to which he claims a statutory title. The bricks are there, crushed into the ground, and they appear to have been bricks which were lying about since the demolition of the cottages. They were used merely to make a line and. a boundary round the piece of ground which was being worked, without in any way forming any sort of fence. The land had been marked off, not by the Defendant but by Mr. Haydon, who marked off the land by laying bricks, and his phrase is "down from old cottages", as if the bricks were bricks which had formed part of the old cottages.

10

That was the Defendant's evidence, upon which he claims to have a title which is conveniently described us a squatter's title, and in order to understand what the law on the matter is I must refer to the Limitation Act, 1939. By section 4, subsection 3, of that Act, "No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person".

11

The Defendant claims that more than 12 years have elapsed since the right of action accrued to the Plaintiffs, that is to say, since 1940, when Haydon first occupied the land. By section 5, subsection 1: "Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance".

12

And by section 10, subsection 1: "No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation an run (hereafter in this section referred to as 'adverse possession') and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land".

13

I refer to section 10 because the word "'adverse' possession" is there used. That word had not appeared in the earlier Limitation Act which has been considered in earlier authorities.

14

The first question which arises is whether the Plaintiffs had, in the language of the statute, "discontinued their possession", and that question was answered by the learned county Court Judge In favour of the plaintiffs, He said: "'I am satisfied that they never Intended to discontinue their ownership or to allow anyone else to acquire ownership", in my view the evidence justified that finding that there was never any intention on the part of the Plaintiffs to discontinue their ownership. Indeed, they were doing all that they could do in the circumstances, being landlords who intended to use the land for no other purpose than to develop it, and who have been prevented by circumstances hitherto from so doing.

15

However the second question, upon which the Defendant succeeded in the Court below, depends on whether they had been dispossessed by the action of the Defendant, and that question was...

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