REF/2005/1307/1309

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN:

JANE HAMILTON HOLLAND
Applicant
and

JOHN STEPHEN BATE
Respondent

Property Address: Land adjoining Woodside Cottage, Smithy Lane, Mottram St Andrew, Cheshire SK10 4QJ

Title Numbers: CH533968, CH349814

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Manchester Employment Tribunal, 14-22 The Parsonage, Manchester M3 2JA

On: 3 October 2006

Site inspection: 2 October 2006

Applicant’s Representation:	Mr Ian Foster of counsel.
 
Respondent’s Representation:	Mr Richard Chapman of counsel.

DECISION

Private road – formerly part of an estate which had been split up – claim by registered proprietor of land on both sides of part of the road to ownership of that part - construction of earlier conveyances - ad medium filum presumption - adverse possession – Was that part of the road subject to a right of way?

Holmes v Bellingham (1859) 7 CBNS 329; Smith v Howden (1863) 14 CBNS 398; Frost v Richardson (1910) 103 LT 22, 416; Giles v County Building Constructors (Hertford) Ltd (1971) 22 P&CR 978; Commission for New Towns v JJ Gallagher Ltd [2003] 2 P&CR 24; Re White’s Charities [1898] 1 Ch 659; Ray v Hazeldine [1904] 2 Ch 17; Powell v McFarlane (1977) 38 P&CR 452; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; Smith v Waterman [2003] EWHC 1266 (Ch). 

Introduction

1.	The references before me concern the title to part of Smithy Lane, Mottram St Andrew, Cheshire.  Smithy Lane is a turning off the A538 Wilmslow Road, between Prestbury and Wilmslow.  At its western end, where it joins the A538, Smithy Lane is a made up road. By the time it terminates at its eastern end, a dead end leading to fields, it has become a muddy track.  Smithy Lane is about 800 metres long.

2.	The definitive map maintained by the highway authority does not show Smithy Lane to be a public highway. It is common ground, however, that there are some public footpaths which lie along or cross Smithy Lane.

3.	Mrs Holland, the applicant, is the registered proprietor of Woodside Cottage, Smithy Lane.  Mr Bate, the respondent, is the registered proprietor of the fields at the eastern end of Smithy Lane (“the eastern fields”).

4.	The whole of Smithy Lane is unregistered land. The questions which arise are:

(1)	Is Mrs Holland, entitled to be registered as the first proprietor of certain sections of Smithy Lane, and, if so, with what class of title?  Mrs Holland asserts that when she bought Woodside Cottage from Mr and Mrs Carden in 1991, paper title of those sections of Smithy Lane was transferred to her.  Alternatively, she relies in part on the ad medium filum rule, and in part on adverse possession.  Mr Bate says she is not entitled to the registration she seeks.

(2)	If Mrs Holland is entitled to be registered as the first proprietor of those sections of Smithy Lane, is Mr Bate entitled to have:

(a)	the benefit of a right of way over those sections of Smithy Lane 		registered on his title?  

(b)	the burden of that right of way registered on Mrs Holland’s title?

Woodside Cottage

5.	Woodside Cottage, which is registered under title number CH349814 and lies on both sides of Smithy Lane, is made up of 4 separate parcels of land.  I shall call them respectively “the mauve land”, “the blue land”, “the pink land” and “the yellow land”.  They are marked by the appropriate colours on the plan annexed hereto. These colours are taken from the title plan of Woodside Cottage at page 358 of the trial bundle.

The eastern fields

6.	The eastern fields, which are registered under title numbers CH509365 and CH509367, are described in the respective property registers as land on or lying to “the west side of River Bollin, Mottram St Andrew”. The western edge of the eastern fields is hatched red on the plan.
	
Mr and Mrs Carden

7.	Mr and Mrs Carden, who live at Woodside Farm, Smithy Lane, are the neighbours of both Mrs Holland and Mr Bate.  Prior to 1991, Mr and Mrs Carden were the registered proprietors of all the land now owned by Mrs Holland and Mr Bate, as well being the registered proprietors of Woodside Farm. In 1991, Mr and Mrs Carden sold off Woodside Cottage to Mrs Holland.  In 2003, Mr and Mrs Carden sold off the eastern fields to Mr Bate. Mr and Mrs Carden play a very important part in the history of the references before me, but they are not parties to them and were not called as witnesses.

Woodside Farm

8.	Woodside Farm also lies on both sides of Smithy Lane. Mr and Mrs Carden are the registered proprietors, under title numbers CH1377932 and CH152772, of land and buildings lying to the south of Smithy Lane, described in the respective property registers as “part of Woodside Farm”.  I shall refer to this part of Woodside Farm as “the green land” and the northern part of it is shown edged green on the plan.  

9.	Mr Carden is also the registered proprietor, under title number CH331860, of land lying to the north of Smithy Lane, described in the property register as “land on the north side of Smithy Lane, Mottram”.   I shall refer to this as “the orange land” and it is coloured orange on the plan.  The orange land has now been incorporated into Woodside Farm.

The De Vere land

10.	De Vere Hotels & Leisure Ltd (“De Vere”) is the registered proprietor, under title number CH265424, of a very substantial area of land and buildings lying to the north of Smithy Lane, described in the property register as “land on the east side of Blackhurst Brow, Mottram”. I shall refer to this as “the De Vere land”.  The southern part of it is shown edged brown on the plan.

Smithy Lane

11.	I shall have to set out the geography of Smithy Lane is some detail and to clarify this I have divided Smithy Lane into 6 sections.  I shall describe the sections by numbers rather than by colour, as different colours have been used for the same section in different documents over the years.  The different sections are shown numbered on the plan.

12.	In outline, Smithy Lane has been divided up as follows:

	(1)	section 1 lies to the west of Woodside Farm;

	(2)	section 2 runs through Woodside Farm;

	(3)	section 3 runs through Woodside Cottage;

(4)	section 4 is bounded by Woodside Cottage only to the south (by the mauve land principally);

(5)	section 5 is bounded by Woodside Cottage only to the south (by the yellow land);

(6)	section 6 lies to the east of Woodside Cottage and ends at the eastern fields.

13.	Mrs Holland seeks to be registered as proprietor of sections 3,4 and 5.

An outline of the conveyancing history

14.	In summary, the position today is as follows:

(1)	Mrs Holland is the registered proprietor of Woodside Cottage, which consists of the mauve land, the blue land, the pink land and the yellow land.

(2)	Mr and Mrs Carden are the registered proprietors of Woodside Farm, which consists of the green land and the orange land.

(3)	Mr Bate is the registered proprietor of the eastern fields.

(4)	De Vere is the registered proprietor of the De Vere land.

(5)	No one is the registered proprietor of Smithy Lane.

15.	In 1922, all of the above land was part of the Mottram Estate (“the estate”).  The estate began to be broken up and, in 1923, the De Vere land, the pink land, the orange land, the blue land and the mauve land were conveyed to Mr Pownall. The green land, the yellow land and the eastern fields were retained in the estate.  Apart from rights of way, no conveyance was made to Mr Pownall of any part of Smithy Lane. 

16.	In 1979, the estate sold to Mr and Mrs Carden the green land, the blue land, the yellow land and the eastern fields.  Mr and Mrs Carden were registered as first proprietors of that land, the whole of which was known as Woodside Farm.  At that time there was also conveyed to them a paper title of sections 2-6 of Smithy Lane. Mr and Mrs Carden continue to have a paper title to section 2 and section 6.  This title has never been registered.

17.	This sale in 1979 was pursuant to a conveyance dated 25 January 1979 (“the 1979 conveyance”).  The various parcels were denoted by ordnance survey field numbers.  Smithy Lane was field 255.  As only sections 2-6 were being conveyed it was described as part of field 255 containing 0.776 acres or thereabouts.

18.	The habendum reads:

	“TO HOLD the same unto the Purchasers as to part of Field Number 255 [ie sections 2-6] for all the estate and interest therein of the Vendors [my emphasis] and as to the remainder of the land in fee simple …”

19.	In 1985, Mr Carden bought the mauve land, on which Woodside Cottage stands, and became the registered proprietor. In 1998, Mr Carden bought the pink land and the orange land, and became the registered proprietor.

20.	In 1991, Mr and Mrs Carden agreed to sell certain land to Mrs Holland.  This consisted of:

	(1)	the mauve land;

	(2)	the blue land;

(3)	the pink land (Mr and Mrs Carden retaining the orange land which had been carved out of it);

(4)	the yellow land (Mr and Mrs Carden carved this out of the green land in order to sell it);

(5)	a right of way over part of section 2 to give access to the pink land;

(6)	sections 3-5 of Smithy Lane.

21.	The sale was carried out by means of a number of transfers. By one transfer, dated 15 November 1991 (“the 1991 transfer”), Mr and Mrs Carden transferred to Mrs Holland, amongst other things:

	“SECONDLY all that yard and track coloured yellow on the plan bound up within and annexed to a Statutory Declaration … sworn by the said JOHN CARDEN on the 15th day of November 1991.”

22.	Mr Carden’s statutory declaration dated 15 November 1991 (“Mr Carden’s 1991 statutory declaration”) had a plan attached to it, which is at page 23 of the trial bundle.  The yard and track coloured yellow consists of sections 3-5 of Smithy Lane. Unlike all the other land being transferred, sections 3-5 were still unregistered land and Mr Carden’s 1991 statutory declaration purported to establish title by adverse possession to the whole of sections 3-5.

23.	The 1991 transfer concluded:

“THERE ARE implied in this Transfer on the part of each Transferor the like covenants as if each were expressed to be Transferring as beneficial owner.”

It will be noted that, unlike the 1979 conveyance, the 1991 transfer contains no qualification that sections 3-5 were only being transferred for all the estate and interest of the transferors.

24.	Mrs Holland was subsequently registered as proprietor of all the land transferred to her, apart from sections 3-5 of Smithy Lane.  Land Registry refused to register her as first proprietor of sections 3-5, as insufficient evidence of adverse possession was supplied.

25.	In 2003, Mr and Mrs Carden sold Mr Bate the eastern fields, and purported to grant him an express right of way over Smithy Lane.

Mrs Holland’s applications

26.	Mrs Holland has made 2 applications to Land Registry in respect of her claim to be registered as the proprietor of sections 3-5. Mr Bate has objected to both applications.  These 2 disputes have been referred to me by Land Registry under section 73(7) of the Land Registration Act 2002.  The 2 references have been consolidated and dealt with together. 

27.	The first application to Land Registry made by Mrs Holland (“the first original application”) is based on the ad medium filum rule.  It was made in a letter, dated 4 November 2004, at page 374 of the trial bundle.  It is an application for Mrs Holland to be registered as proprietor of the land coloured yellow on the plan with the letter.  That plan is at page 374A of the trial bundle.  The land coloured yellow is plainly section 3, and only section 3, of Smithy Lane.

28.	The first original application points out, correctly, that Mrs Holland owns plots of land opposite each other which are separated by section 3.  It is said that the assumption under the ad medium filum rule suggests that in such circumstances those plots should each include half the width of section 3.  Land Registry is asked to alter title number CH349814 to include section 3 within the title.
 
29.	The second application to Land Registry made by Mrs Holland (“the second original application”) is based on adverse possession.  It was made in prescribed form FR1 dated 5 April 2005 at pages 409-411 of the trial bundle.  It was sent under cover of a letter from Mrs Holland’s solicitors, dated 6 April 2005. A plan was also enclosed which is at page 412 of the trial bundle.

30.	The land in respect of which the application was made is described as “the “yard and track coloured yellow, Woodside Cottage, Smithy Lane, Mottram St Andrew and part of Woodside Farm, Mottram St Andrew”.  On the plan enclosed with the second original application the land coloured yellow is plainly section 5, and only section 5, of Smithy Lane.

31.	Mrs Holland swore a statutory declaration on 9 November 2004 (“Mrs Holland’s 2004 statutory declaration”). This supports the claim to ownership based on adverse possession and refers to the land coloured yellow on the plan annexed thereto. That plan is at page 27 of the trial bundle.  The land coloured yellow is plainly section 5, and only section 5, of Smithy Lane.

32.	It would therefore seem that whilst Mrs Holland has applied to be registered as proprietor of section 3 and section 5, she has not applied to be registered as proprietor of section 4 in between them.

33.	However, Mr Foster drew my attention to the contents of the letter from his instructing solicitors, dated 6 April 2005, which accompanied the second original application.  It says, “With regard to the ad medium filum rule my client’s title should also include one half of the land abutting field number 6373 shown X-Y on the plan”.

34.	The ad medium filum rule was, of course, the basis for the first original application and Mr Foster submits to me that this should be regarded as an amendment to the first original application.  The plan attached to that letter shows the line X-Y along the whole of the southern boundary of sections 4 and 5.  I accept that submission.  The precise applications before me are accordingly:

(1)	an application for first registration of the whole of section 3 and the southern half of sections 4 and 5 under the ad medium filum rule;

(2)	an application for first registration of the whole of section 5 by adverse possession.

35.	In addition to these 2 grounds for first registration, Mrs Holland relies in paragraph 2 of her statement of case on an assertion that she has had transferred to her a good documentary or paper title to the whole of sections 3-5 of Smithy Lane.  She relies upon the wording of the 1991 transfer, which is set out at paragraph 21 above.  It is common ground that it is open to Mrs Holland to advance her case on this ground even though it was not an argument put to Land Registry in either of the original applications. 

Mr Bate’s objections

36.	Mr Bate objected to the first original application, by his solicitors’ letter dated 16 March 2005.  The grounds given were that he had a right of way over Smithy Lane.  He also asserted that Smithy Lane might be a public highway. Mr Bate objected to the second original application on similar grounds, by his solicitors’ letter dated 24 May 2005.

37.	It is common ground that I should not deal with the public highway issue.  If necessary, I can give directions as to how that issue is to be dealt with in due course.

38.	When he was registered as proprietor of the eastern fields in 2004, Mr Bate sought to have the benefit of the right of way he claims over Smithy Lane registered with his title.  Land Registry refused.  There has been no further such application by Mr Bate and no dispute regarding any right of way in favour of Mr Bate has been referred to me.

39.	Apart from his claim to a right of way, Mr Bate does not assert any title to sections 3-5 himself.  But he denies that Mrs Holland is entitled to be registered as proprietor.  He says in his statement of case that she does not have a good paper title to any part of sections 3-5, that the ad medium filum rule does not assist her and that she has not been in adverse possession of section 5.

40.	Mr Bate is perfectly entitled to oppose Mrs Holland’s original applications.  This is because section 73(1) of the Land Registration Act 2002 provides that, apart from for 2 irrelevant exceptions, anyone may object to an application to the registrar.

41.	It was common ground before me that an assertion by Mr Bate that he has the benefit of a right of way over Smithy Lane cannot, in itself, be a reason for objecting to the 2 original applications.  It was agreed with counsel that I should consider Mr Bate’s claim to a right of way if, but only if, I found for Mrs Holland.  In those circumstances I could, if appropriate, direct that Mrs Holland be registered as the proprietor of sections 3-5 or part of them, but subject to the right of way in favour of Mr Bate.

42.	I shall now set out in more detail the geography of Smithy Lane.

Smithy Lane: section 1

43.	The first section of Smithy Lane (“section 1”) starts at its western end where it meets the A538.  This is at a crossroads called Mottram Cross.  The Bull’s Head public house stood here for several generations.  It has recently become the Osteria Mauro.  Over half way down the southern side of Smithy Lane, the western edge of the green land is reached.  This is the beginning of Woodside Farm and is where section 1 ends.

44.	Section 1 consists of made up road and there are a number of private residences along it.  They are substantial well kept homes as is to be expected in this part of Cheshire. The references before me are not concerned with section 1.  Neither counsel was able to tell me who, if anyone, owns section 1.

Smithy Lane: section 2

45.	The second section of Smithy Lane (“section 2”) contains 2 sets of gates across its width, which can be seen in the photograph at page 431 of the trial bundle.  The first gate is now redundant and is kept open.  The second set gives access into Woodside Farm.  There is a separate pedestrian side gate, through which a public footpath runs.

46.	Woodside Farm lies predominantly to the south of Smithy Lane (that is the green land).  However, a small but important part of it, the farmyard, is actually situated on Smithy Lane itself, a few metres east of the gates. Section 2 consists of made up road, on which stand the gates, and of the farmyard. 

47.	On the south side of the farmyard, on the green land, stand the farmhouse and other buildings.  The farmhouse has been the home of Mr and Mrs Carden ever since they bought the green land in 1979.  Mr Carden used to practice as a solicitor from the farmhouse.  He was also very interested in keeping racehorses and in National Hunt riding.  Sadly, he sustained very serious injuries some years ago in a riding accident and is now disabled.

48.	On the north side of the farmyard is the orange land.  This is a field and is now the only part of Woodside Farm to lie to the north of Smithy Lane.  Surrounding the orange land on 3 sides is the pink land, which Mrs Holland owns as part of Woodside Cottage.  A semi-circular track has been constructed on the pink land. This enables traffic going to Woodside Cottage to by-pass the farmyard.

49.	At the eastern end of the farmyard, Smithy Lane is completely blocked to vehicular traffic by a post and rail fence.  Section 2 ends here.  Any vehicle wishing to proceed along Smithy Lane needs to take the semi-circular track on the pink land at the rear of the orange land.  Because there is a public footpath along this part of Smithy Lane, a stile has been placed in the post and rail fence.

Smithy Lane: section 3

50.	The third section of Smithy Lane (“section 3”) begins at the post and rail fence. Woodside Cottage is situated on both sides of section 3.  On the north side lies part of the pink land and the whole of the blue land.  The blue land is a long nineteenth century barn. The semi-circular track on the pink land joins section 3 immediately to the west of the barn. 

51.	On the south side of section 3, lies a small western triangle of the yellow land and the mauve land.  The mauve land and this part of the yellow land contain Woodside Cottage itself and its garden of about two thirds of an acre, which is the home of Mr and Mrs Holland. Woodside Cottage is a charming period country cottage, built in brick in 1740.

52.	Section 3 itself is an area of open land, much of which lies between Woodside Cottage and the barn.  Outside the barn a gate was put up in 1992, across the whole width of Smithy Lane.  There is pedestrian access through the gate because the public footpath continues along section 3.  Section 3 ends at the eastern end of the barn.  There is no boundary feature here.

53.	Land Registry surveyed and photographed section 3 in December 2004.  It is described as, “mainly grass in front of the house [Woodside Cottage], outside the garden and between the house and the barn/shed.”  

Smithy Lane: section 4

54.	The fourth section of Smithy Lane (“section 4”) begins immediately east of the barn.  From here on there are no more buildings along Smithy Lane.  Mrs Holland does not own any land on the north side of Smithy Lane to the east of the barn.  This is the De Vere land on which is situated Mottram Hall hotel.  The hotel golf course abuts the north side of section 4.  

55.	To the south of section 4 lies part of the mauve land, which here is the garden of Woodside Cottage, and the beginning of the large eastern part of the yellow land, which is a paddock.  Just to the east of the end of the mauve land, there is a gate across most of the width of section 4.  This is the end of that part of section 4.  However, the gate does not extend across the whole of Smithy Lane.  There is a stile at the north of the gate which enables those using the public footpath to continue for a short distance along a fenced off finger of section 4.  This finger provides access to a stile in the boundary with the golf course.  

56.	At this point, the public footpath changes direction by ninety degrees approximately, to cross the golf course in a northerly direction.  There is no further public footpath east along Smithy Lane from this point. Section 4 is grassy.

Smithy Lane: section 5

57.	The fifth section of Smithy Lane (“section 5”) begins immediately east of the gate at the end of section 4, but excludes the finger. The hotel golf course, on the De Vere land, lies to the north.  To the south lies the eastern part of the yellow land, a paddock. 

58.	Land Registry surveyed and photographed section 5 in December 2004.  It is described as, “… wooded and very overgrown with weeds and brambles.  The land to the south [the yellow land] is higher than [section 5] which is somewhat marshy.”  

59.	There is no boundary feature at all between section 5 and the yellow land, but there is a steep drop in level down from the yellow land, through some trees, onto section 5.

60.	Section 5 finishes at the eastern end of the yellow land.  Smithy Lane here is blocked by a wooden fence which continues south of the yellow land.  This fence was only erected in 2002.  Smithy Lane is by now quite wild in appearance, and very different in its nature to section 1. 

Smithy Lane: section 6

61.	The sixth section of Smithy Lane (“section 6”) begins immediately east of the fence erected in 2002.  Section 6 continues as a wild track until it terminates at a gate leading onto the eastern fields (“the east gate”). 

62.	The hotel golf course, on the De Vere land, lies to the north.  The green land lies to the south, save for the last few metres where a small section of the eastern fields lie to the south and west of the end of Smithy Lane. 

63.	There is a gate to the west of the east gate, just to the south of Smithy Lane, where the eastern edge of the green land meets the western edge of the eastern fields.  So it is possible for access to be obtained to the eastern fields from the green land without the need to use Smithy Lane.  

The witnesses

64.	Mr Foster called Mr Holland and Mrs Holland to give oral evidence. Mr Bate did not give oral evidence.  Mr Chapman called 2 witnesses of fact:

(1)	Ms Armstrong-Lee, an enthusiastic walker, who has used the public footpaths running along and off Smithy Lane for a number of years.

(2)	Mr Woodfinden-Lewis, who has kept a horse on Woodside Farm since 2001.

The issues

65.	The issues, distilled from the original applications and the statements of case, are as follows:

(1)	Has Mrs Holland acquired title to section 5 of Smithy Lane by adverse possession?

(2)	Has Mrs Holland acquired title to section 3 and the southern half of sections 4 and 5 of Smithy Lane under the ad medium filum rule?

(3)	Has Mrs Holland had transferred to her by the 1991 transfer a good title to the whole of sections 3-5 of Smithy Lane.

(4)	Does Mr Bate have a right of way over sections 3-5 of Smithy Lane?

66.	I propose to deal with the second and third of the above issues first, and to do so in conjunction with the detailed conveyancing history.

The ad medium filum rule

67.	There are 2 separate presumptions relating to the ownership of land adjoining a highway, which are known as usque ad medium filum viae.  This literally means “up to the middle line of the road”.  These presumptions also apply to private or occupation roads (Holmes v Bellingham (1859) 7 CBNS 329; Smith v Howden (1863) 14 CBNS 398; Frost v Richardson (1910) 103 LT 22, 416).

68.	The law is set out in 21 Halsbury’s Laws 98 and 99, 4(1) Halsbury’s Laws 920 and Emmet on Title paras 17.025 and 17.025.1.  The first presumption has nothing to do with any particular conveyance or transfer.  It is a presumption that the owner of land adjoining a highway, in the absence of any evidence to the contrary, is owner also of the soil as far as the middle of the road.  

69.	The second presumption is entirely concerned with a particular conveyance or transfer.  It has been described by Brightman J in Giles v County Building Constructors (Hertford) Ltd (1971) 22 P&CR 978, 981 as “more in the nature of a cannon of construction”.  Where a conveyance of land adjoining a highway is made by a grantor owning land on one side of it, then if he can be proved, or presumed, to own also the soil of the highway up to the half way line there is a presumption of law, rebuttable in the particular circumstances of any case, that the soil of one half of the highway is included in the grant.

70.	The presumption arises even though the parcels in the grant are described as adjoining or bounded by the highway in question, and even though the measurements and plans appear to exclude any part of the highway.  The presumption may be rebutted if there is anything in the language of the deed or in the nature of the subject matter of the grant, or in the surrounding circumstances, sufficient to show an intention to exclude the highway.

71.	An important recent case on this presumption is the decision of Neuberger J in Commission for New Towns v JJ Gallagher Ltd [2003] 2 P&CR 24.  This case is cited in the passage in Emmet referred to above, to which Mr Foster directed my attention.  The importance of this case is that the grantor owned the whole width of the highway next to the relevant land.  The learned judge held, following an observation of Romer J in Re White’s Charities [1898] 1 Ch 659, 666, that in those unusual circumstances the presumption applied to the whole of the highway, not just an arbitrary half.  The learned judge said (at page 32):

	“It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice … vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the highway.  It is in the interest of the parties to a conveyance that the purchaser takes the adjoining highway land, essentially for the same reason.  On that basis, if the adjoining owner happens to own more than half the width of the adjoining road, even all the adjoining road, it would seem logical that the presumption should lead to his being deemed to convey away the whole of his interest in the adjoining road.” 

A detailed conveyancing history

72.	In the mid nineteenth century, the Reverend Henry Wright settled very substantial amounts of real property in the counties of Chester and Lancashire.  This land included the estate. Smithy Lane ran through it.

The 1922 auction

73.	On 27 July 1922, the estate was put up for sale by auction. The estate included Mottram Hall, an early eighteenth century country house, situated well to the north of Smithy Lane.  It is now the hotel and golf course on the De Vere land, which lies to the north of sections 4, 5 and 6 of Smithy Lane.

74.	Mottram Hall itself, with 326 acres, was lot 1.  Lot 1 included the De Vere land, the pink land, the orange land and the blue land, all to the north of Smithy Lane. Also included within lot 1 was the mauve land, then the only land known as Woodside Cottage.  It was part of the home farm, and was described as part of field 252 and as a cottage of 0.280 acres. The mauve land was the only part of lot 1 lying to the south of Smithy Lane. The Bull’s Head public house and land adjoining, to the south of Smithy Lane and to the west of Woodside Farm, were lot 3.

75.	Woodside Farm was lot 4. In 1922, this consisted of the green land, the yellow land and the eastern fields.  Lot 4 also included the whole of Smithy Lane, which was coloured purple along its whole length on the auction plan, being the colour designating lot 4. This plan is at page 704 of the trial bundle. Smithy Lane was described as part of field 255 and as a lane of 1.599 acres.  At that time, the trustees of the estate clearly believed that the estate included Smithy Lane, and intended that the purchaser of Woodside Farm would own Smithy Lane.

76.	It was also intended that there would rights of way over Smithy Lane for the benefit of 2 other lots.  First, rights of way were reserved for lot 1.  The auction particulars stated that “A Right-of-Way for all purposes as at present enjoyed over the Roadway, Pt Ord. No. 225 in Lot 4 is reserved to the owner for the time being of Lot 1 upon the payment of a proportionate part of the cost of upkeep.”  The whole of the north side of Smithy Lane was bounded by lot 1 and the mauve land was to the south of Smithy Lane.  Clearly, the owner of lot 1 would require such a right of way.

77.	Secondly, rights of way were reserved for lot 3.  A right of way in similar terms to that reserved for lot 1 was set out in the auction particulars. It is common ground that lot 1 and lot 4 did not sell at the auction in 1922.

78.	It appears from condition 6 of the conditions of sale, at page 700 in the trial bundle, that there was no recent conveyance by which title to Smithy Lane could be deduced.  The Reverend Henry Wright’s will dated 1859 was the root of title.  A statutory declaration would be furnished to any purchaser requiring it to show that lot 4, amongst others, had been enjoyed in accordance with the title deduced under the will for 15 years or upwards preceding the sale.

79.	I have reached the clear view that the estate did own the whole of Smithy Lane in 1922. There has been no suggestion that anyone else might have been the owner.  Either it could prove title in accordance with condition 6 of the conditions of sale.  I have not seen any of those documents.  Alternatively, the estate could have relied upon the first ad medium filum presumption, as it owned the whole of the both sides of Smithy Lane. In my judgment, this ownership in 1922 is the key to understanding the transactions occurring in the 84 years since then.

The 1923 conveyance

80.	Although I have not had sight of it, it is common ground that by a conveyance, dated 14 September 1923 (“the 1923 conveyance”), the trustees of the estate conveyed the mauve land (then the only land known as Woodside Cottage) to Mr Pownall, together with a right of way over Smithy Lane.

81.	According to the answer to requisitions on title raised in 1939, at page 338 of the trial bundle, the right of way was a right in common with others for all purposes over Smithy Lane leading from Mottram Cross (the beginning of section 1) to Woodside Farm (sections 2 to 6), so far as co-extensive with the mauve land, and subject to an obligation to the cost of the repair.

82.	The 1923 conveyance is referred to in the next conveyance of the mauve land, which is dated 4 August 1939 (“the 1939 conveyance”).  The vendor is Mr Pownall, who is described as being formerly of Mottram Hall.  This suggests that by the 1923 conveyance, Mr Pownall purchased much more than the mauve land.  Indeed, in the 1939 conveyance, it is said that the earlier conveyance was of the mauve land “with other heriditaments.”

83.	In his chronology, Mr Foster says that the 1923 conveyance comprised all or the majority of what had been lot 1 in 1922.  This included the De Vere land, the pink land, the orange land and the blue land.  I believe he is correct.  This is because there was a subsequent auction, in 1939, in which the majority of the land which had been lot 1 in 1922, including the De Vere land, the pink land, the orange land, the blue land and the mauve land, was offered for sale. It appears from condition 5 of the conditions of sale, at page 711 of the trial bundle, that title to virtually all the land being sold was deduced from the 1923 conveyance.

84.	It would, therefore, appear that all or most of the land north of Smithy Lane, including Mottram Hall, was lost to the estate by 1923.  None of the land south of Smithy Lane (except for the mauve land) or Smithy Lane itself was offered at auction in 1939.  It appears likely that Mr Pownall did not purchase in 1923 either Smithy Lane itself or any land to the south of Smithy Lane, except for the mauve land. 

85.	I am satisfied that in 1923 there was no intention to convey any part of Smithy Lane to Mr Pownall.  The estate retained Woodside Farm, consisting of the green land, the yellow land and the eastern fields, and would have wanted to retain ownership of Smithy Lane for access purposes.  I find that the south side of Smithy Lane, abutting the mauve land, did not pass to Mr Pownall in 1923 under the second ad medium filum presumption.

The 1926 deed

86.	Although the land north of Smithy Lane and the mauve land had been sold off in 1923, Woodside Farm, consisting of the green land, the yellow land and the eastern fields, remained in the estate.  Following an order of the Chancery Division made in 1924, a vesting deed dated 9 June 1926 (“the 1926 deed”) vested the remaining estate in Mrs Wisden under the Settled Land Act 1925. 

The 1939 auction

87.	On 11 July 1939, Mr Pownall put up his land for sale by auction. The mauve land was put up for sale as lot 21. The auction particulars stated that “A Right of Way for all purposes over the Roadway, Smithy Lane, Pt Ord. No. 225, leading from Mottram Cross to Woodside Farm, is granted in favour of this Lot, subject to an obligation to contribute to the cost of repair.”

The sale of the mauve land in 1939 

88.	On 4 August 1939, Mr Pownall conveyed the mauve land to Mr and Mrs Powell together with a right of way “over and along the roadway known as Smithy Lane … leading from the main road from Wilmslow to Prestbury [the A538] (inter alia) to the premises hereby conveyed…”.

89.	At the time of this conveyance Mr Pownall owned no part of Smithy Lane.  So the second medium filum presumption did not arise.

The 1966 assent 

90.	Mrs Wisden died in 1960.  The Public Trustee was appointed her personal representative in respect of her settled land. By a vesting assent dated 12 April 1966 (“the 1966 assent”), the Public Trustee vested the remaining estate, which included Woodside Farm, in Mrs Bowlby. 

The conveyance of the mauve land in 1975 

91.	Mr and Mrs Pownall held the mauve land on trust for themselves as beneficial joint tenants.  In 1975, they decided to make a gift of one third of the beneficial interest to their daughter, Mrs Couzens, and this was achieved by an appropriate conveyance dated 21 April 1975.  This had no effect on the ownership of Smithy Lane.

 The 1978 conveyance 

92.	In 1978, the estate was still vested in Mrs Bowlby.  By a conveyance and deed of discharge dated 15 June 1978 (“the 1978 conveyance”), Mrs Bowlby conveyed the Mottram Estate to certain trustees on the trusts there set out.

93.	What property was so conveyed? The property included Woodside Farm (consisting of the green land, the yellow land and the eastern fields) as well as some chief and ground rents.  The estate is set out in the second part of the schedule and included Woodside Farm, described as: 

“FIRST ALL THOSE pieces or parcels of land situate at and known as Woodside Farm Mottram St Andrew in the Macclesfield District of the County of Chester comprising 79.24 acres or thereabouts as more particularly described below and which are for the purpose of identification shown numbered 1 on Plan A annexed hereto and thereon edged red”.

94.	On my copy of plan A, at page 85 of the trial bundle, the blue land is edged in black but not in red. Edged in red are the green land, the yellow land and the eastern fields. The mauve land is excluded because it had been conveyed out of the estate in 1923, as already explained.

95.	The 79.24 acres are broken down in a schedule of numbered fields from the 1909 ordnance survey.  The blue land is in field 260.  It is not within the schedule.  

96.	Smithy Lane is not edged in red on plan A.  The red edging starts immediately to the south of Smithy Lane, except where Smithy lane abuts the mauve land.  There the red edging starts immediately to the south of the mauve land.  Nor is parcel 255 mentioned in the schedule.  This is the ordnance survey number of Smithy Lane.

97.	I therefore find that neither the blue land nor Smithy Lane was expressly conveyed to the trustees by the terms of the 1978 conveyance. 

  Mr Bridgford’s statutory declaration 

98.	On 17 October 1978, Mr Bridgford, a chartered surveyor, made a statutory declaration (“Mr Bridgford’s statutory declaration”).  This is at pages 17-19 of the trial bundle.  His firm had acted as land agents for the estate for 50 years.  He had no doubt that Woodside Farm comprised 79.784 acres and was as delineated on a map annexed to the statutory declaration.  He confirmed that this land was within the 1926 deed and the 1966 assent.

99.	The plan appears to show both the blue land and sections 2-6 of Smithy Lane within Woodside Farm.  Mr Bridgford’s statutory declaration fails to set out any activity said to have taken place on sections 2-6 of Smithy Lane or to explain how, if at all, sections 2-6 of Smithy Lane had ever been enclosed so as to make it physically part of Woodside Farm.  It also fails to explain why Smithy Lane was not included as part of the estate in the 1978 assent or the 1978 conveyance. 

100.	From the point of view of adverse possession, I regard Mr Bridgford’s statutory declaration as unhelpful.  But it confirms that sections 2-6 of Smithy Lane were treated as part of Woodside Farm.  This is not surprising, as sections 2-6 are the means of access to the farmyard, the farmhouse on the green land and to the eastern fields.

101.	I have already held that the estate owned the whole width of Smithy Lane in 1922.  In 1978, Mrs Bowlby conveyed to the trustees the whole of what was left of the estate.  It is inconceivable that she intended to retain any interest in sections 2-6 of Smithy Lane.  I do not know why the 1978 conveyance did not mention sections 2-6 of Smithy Lane expressly.  But I find that the whole width of sections 2-6 of Smithy Lane was conveyed to the trustees under the second ad medium filum presumption, as explained in Commission for New Towns v JJ Gallagher Ltd.  As stated above, where the grantor owns the whole of the adjoining highway, then the whole of the highway passes.

The 1979 conveyance 

102.	Mr Ritchie and Mr Poland were 2 of the trustees to whom the estate had been conveyed by the 1978 conveyance. I have already mentioned the 1979 conveyance in paragraph 17 above. By the 1979 conveyance, at pages 8-13 of the trial bundle, which was drawn up by Mr Carden’s firm, Mr Ritchie and Mr Poland conveyed to Mr and Mrs Carden:

	“ALL THAT land at Mottram in the County of Chester being part of the land described as [the estate] in the Second part of the First Schedule attached to [the 1978 conveyance] and in particular containing the following fields …”.

103.	It will be recalled that the 1978 conveyance included Woodside Farm (consisting of the green land, the yellow land and the eastern fields) but not the blue land or Smithy Lane.  The 1978 conveyance had listed 16 fields as forming Woodside Farm.  These did not include field 255 (Smithy Lane) or field 260 (in which the blue land is situated). 

104.	It is plain that only part of Woodside Farm was being conveyed by the 1979 conveyance.  This is because only 6 fields are mentioned by number, instead of the 16 mentioned in the 1978 conveyance.  The first 5 fields listed were the same as the first 5 listed in the 1978 conveyance.  Then something interesting happens.  There is expressly conveyed to Mr and Mrs Carden, “and Part of Number 255 containing [0.776] acres or thereabouts”.  So, part of Smithy Lane has expressly found itself into the 1979 conveyance, even though it never featured expressly in the 1978 conveyance.

105.	The plan attached to the conveyance is at page 11 of the trial bundle.  It is for the purposes of identification and includes both sections 2-6 of Smithy Lane and, astonishingly, the blue land, which is not even mentioned by description in the parcels clause.  The land conveyed was conveyed in fee simple except for sections 2-6 of Smithy Lane which were conveyed “for all the estate and interest therein of the Vendors”, as I have already mentioned at paragraph 18 above.

106.	I have already found that the whole width of sections 2-6 of Smithy Lane had been conveyed to the vendors, the trustees, by the 1978 conveyance. Accordingly, I hold that the 1979 conveyance validly expressly conveyed sections 2-6 of Smithy Lane to Mr and Mrs Carden.

107.	Mr and Mrs Carden were registered on 22 March 1979, under title numbers CH137932 and CH152772, as the first proprietors of the blue land, the green land and the yellow land. Despite what I have said about the blue land in paragraph 105 above, it appears that Land Registry accepted that the 1979 conveyance did convey the blue land to Mr and Mrs Carden.  So they acquired a statutory title to the blue land.  

108.	By a separate conveyance of about the same time, which I have not seen, the estate conveyed the eastern fields to Mr and Mrs Carden. They were registered on 22 March 1979, under title numbers CH137933 (now title number CH509365) and CH137934 (now title number CH509367), as the first proprietors of the eastern fields.

109.	But sections 2-6 of Smithy Lane were not registered by Land Registry. Mr Bate’s statement of case asserts in paragraph 4.1 that an application for registration of sections 2-6 of Smithy Lane was rejected by Land Registry because the sellers had no title.  Of course, by comparing the express terms of the 1978 conveyance with the express terms of the 1979 conveyance, this is true.  But this ignores the presumptions that the estate owned Smithy Lane in 1922 and conveyed it to the trustees by the 1978 conveyance. Until the first original application, no attempt appears to have been made to rely upon the presumptions.

The 1981 planning and footpath decisions

110.	In 1981, Mr Carden was successful in diverting one of the public footpaths away from the farmyard.  But he failed to obtain planning permission to convert the barn into a dwelling.

The sale of the mauve land in 1985

111.	By 1985, the mauve land was registered under title number CH239935.  The registered proprietor was Mr Couzens, presumably the successor to Mr and Mrs Pownall and Mrs Couzens. On 21 January 1985, Mr Couzens transferred the mauve land to Mr Sturrock, together with the rights referred to in the conveyance dated 4 August 1939, namely the right of way over Smithy Lane.  At the time of this transfer, Mr Couzens owned no part of Smithy Lane.  So the ad medium filum presumption did not arise.  

The sale of the mauve land to Mr Carden 

112.	Some time later, Mr Sturrock sold the mauve land to Mr Carden. The transfer, at pages 30-31 of the trial bundle, is undated.  Mr Sturrock owned no part of Smithy Lane.  So the ad medium filum presumption did not arise.  Mr Carden already owned sections 2-6 of Smithy Lane.

The 1985 and 1987 planning decisions

113.	In 1985, Mr Carden again failed to obtain planning permission to convert the barn into a dwelling.  In 1987, Mr Carden was further disappointed when he was refused permission for a change of use of Woodside Farm from agriculture to part agriculture and part racehorse training establishment.   He was also refused a further application to convert part of the barn into a dwelling.

The pink land and the orange land

114.	On 10 October 1998, De Vere sold the pink land and the orange land (then one parcel) to Mr Carden.  Mr Carden was registered as proprietor of the pink land and the orange land, on 4 October 1990, under title number CH331860. De Vere Hotels Ltd never owned Smithy Lane.  So the ad medium filum presumption does not arise. Mr Carden already owned sections 2-6 of Smithy Lane.

Title to the blue land

115.	On 1 October 1990, the blue land was removed from title number CH137932 (which also then contained most of the green land and the small western part of the yellow land).  On 5 November 1990, Mr and Mrs Carden were registered as proprietors of the blue land under title number CH332990.

The 1991 contract

116.	In about 1988, Mr Carden decided to sell some of the land he had acquired.  Perhaps he was disappointed by thrice failing to obtain planning permission for development.  

117.	Mr and Mrs Holland wanted to buy the mauve land (on which stood Woodside Cottage) and the blue land (on which stood the barn).  They also wanted other surrounding land as well. There were protracted negotiations.  It was agreed that a small part of Woodside Farm on the south of Smithy Lane would be sold to them.  This was the yellow land, which was carved out of the green land.  

118.	It was also agreed that Mr Carden would sell some more of his land on the north of Smithy Lane.  He wished to retain ownership of the land immediately opposite the farmhouse.  So he carved the orange land out of the land he had bought from De Vere and retained that. The remainder of the land bought from De Vere, the pink land, was included in the sale.  

119.	Because Mr Carden did not want Mr and Mrs Holland taking vehicles onto the farmyard situated on section 2 of Smithy Lane, the semi-circular track was constructed on the pink land as described in paragraph 48 above.

120.	Eventually, by 1991, it was agreed that Mr Carden would transfer the 5 parcels, including sections 3-5 of Smithy Lane, and grant a right of way as is set out in paragraph 20 above.  The contract, dated 11 October 1991 (“the 1991 contract”), is at pages 181-184 of the trial bundle. The description of sections 3-5 of Smithy Lane is as follows:

	“SIXTHLY ALL THAT yard and track shown coloured yellow on the plan annexed hereto and more particularly referred to in [Mr Bridgford’s statutory declaration] in respect of which the Sellers will if required confirm by Statutory declaration that they have maintained free and uninterrupted use of the land since 17th October 1978”.

121.	I must also set out part of the description of the mauve land in the 1991 contract:

	“FIRSTLY ALL THAT plot of land edged red … and hatched purple on the plan annexed hereto but excluding any rights of way whatsoever affecting the property (my emphasis)”.  

122.	Mr Chapman says the words emphasised should be construed as an express reservation to Mr and Mrs Carden of a right of way over sections 3-5 of Smithy Lane.  The word “excluding” should be read as “reserving”.  This was to enable Mr and Mrs Carden to reach section 6 of Smithy Lane and the eastern fields, which they still owned.  Mr Foster says the words emphasised did no more than to bring to an end the rights of way for the benefit of the mauve land which were set out in the 1923 conveyance.  I prefer Mr Foster’s submissions on this point.

123.	Mrs Holland’s then solicitors appreciated that only a possessory title was being offered in respect of sections 3-5.  On 22 August 1991, they wrote to Mr Carden’s firm asking for indemnity insurance to support the possessory title of the track.  This did not materialise but at the time of the 1991 transfer there was produced Mr Carden’s 1991 statutory declaration, at pages 22-23 of the trial bundle, which was mentioned in paragraph 22 above.

124.	Mr Carden’s 1991 statutory declaration says that since 25 January 1979 he had enjoyed undisturbed exclusive possession of sections 3-5 of Smithy Lane for his own use and benefit, and that he had always regarded this area as belonging to him.  During such period he was openly in exclusive occupation of sections 3-5 without the consent or the payment of any persons or body corporate.

125.	In my judgment, Mr Carden’s 1991 statutory declaration is a worthless document.  It fails to give any proper particulars of acts sufficient to constitute the taking and enjoyment of possession.  Worse than that, it is patently wrong.  Mr and Mrs Carden did not buy the mauve land until 1985, at the earliest.  Until then, only 6 years before, Mr and Mrs Carden would have been sharing part of section 3 with the owner of the mauve land and his licencees. 

126.	The suggestion that Mr and Mrs Carden needed to show title to sections 3-5 by adverse possession was a red herring.  As I have endeavoured to explain, their title can be justified by use of the ad medium filum presumptions and the wording of the 1979 conveyance.  This red herring has continued to bedevil matters.

The 1991 transfer

127.	On 15 November 1991, Mr Carden transferred to Mrs Holland by a series of transfers:

(1)	the mauve land;

	(2)	the blue land;

(3)	the pink land (Mr and Mrs Carden retaining the orange land which had been carved out of it);

(4)	the yellow land (Mr and Mrs Carden carved this out of the green land in order to sell it);

(5)	a right of way over part of section 2 to give access to the pink land;

(6)	sections 3-5 of Smithy Lane.

128.	I have already set out, at paragraph 21 above, the relevant parts of the 1991 transfer dealing with sections 3-5 of Smithy Lane. Mr and Mrs Carden owned sections 2-6 of Smithy Lane in 1991 so the 1991 conveyance was effective to pass title of sections 3-5 to Mrs Holland.

129.	After Mrs Holland bought the 5 parcels of land from Mr Carden in 1991, 4 of the parcels (the mauve land, the blue land, the pink land and the yellow land) were registered under a new title, number CH349814. 

130.	On 21 September 1992, Land Registry wrote to Mrs Holland’s then solicitors that sections 3-5 of Smithy Lane had been excluded from the title and that Mr Carden’s 1991 statutory declaration provided no information on the nature and occupation of the land.  On 6 October 1992, Mrs Holland’s then solicitors wrote to Land Registry asking whether the application would be successful if the deponent confirmed that he had occupied sections 3-5 of Smithy Lane as a driveway.  

131.	On 12 November 1992, Mr Carden swore a second statutory declaration (“Mr Carden’s 1992 statutory declaration”), which is at pages 20-21 of the trial bundle.  He says that sections 3-5 of Smithy Lane had been used exclusively by himself and his wife, with and without vehicles, as a driveway between section 1 of Smithy Lane and Woodside Farm and Woodside Cottage.

132.	In my judgment, Mr Carden’s 1992 statutory declaration is also worthless.  Using a piece of land as a driveway cannot, without more, amount to possession of it.  It is no more than evidence going to establish a right of way by prescription. It was also a red herring because the reason why Mrs Holland had acquired title to sections 3-5 had nothing to do with adverse possession.

133.	On 20 November 1992, Mrs Holland’s then solicitors sent to Land Registry an application for first registration of sections 3-5 of Smithy Lane and both of Mr Carden’s statutory declarations.  On 26 February 1993, Land Registry wrote to Mrs Holland’s then solicitors, at pages 272-273 of the trial bundle, refusing registration of sections 3-5 of Smithy Lane.   A physical inspection of the land had failed to confirm occupation by Mrs Holland. Mr Carden’s 1991 statutory declaration gave no detail of the nature of the claimed occupation.  Mr Carden’s 1992 statutory declaration appeared to relate to the exercise of a right of way.

134.	By 1993, any attempt on behalf of Mrs Holland to register title to any part of sections 3-5 of Smithy Lane on the basis of adverse possession had ended in failure.  It deserved to do so.  No application was made invoking the ad medium filum presumptions.

The 2003 transfer

135.	Nothing more was then heard about title to sections 3-5 being registered. By 2003, Mr Carden had encountered serious financial difficulties and, on 17 October 2003, he sold off the eastern fields to Mr Bate.  The transfer (“the 2003 transfer”) is at pages 97-100 of the trial bundle.

136.	In panel 12 of the 2003 transfer, Mr and Mrs Carden purported to grant to Mr Bate a right of way over Smithy Lane.  It was the benefit of this right of way which Land Registry refused to register when Mr Bate was registered as proprietor of the eastern fields in 2004.

137.	In 2004, disputes arose between Mr Bate, Mrs Holland and Mr Carden as to what, if any, rights of way Mr Bate has over Smithy Lane in order for him to be able to reach the eastern fields.  I am not directly concerned with those disputes.  But they are one reason why Mrs Holland was prompted to make the original applications.

Title to sections 3-5 of Sandy Lane

138.	For the reasons set out above, I find that Mrs Holland has good title to sections 3-5 of Smithy Lane.  This is not a possessory title. It is a title which was vested in Mrs Bowlby at all times up to 1978, was impliedly conveyed by her to the trustees in 1978, was expressly conveyed to Mr and Mrs Carden in 1979 and was expressly conveyed to Mrs Holland in 1991.

Has Mrs Holland acquired title to section 5 of Smithy Lane by adverse possession?

139.	Mrs Holland in the second original application makes an application for first registration of the whole of section 5 by reason of adverse possession.  In the light of my findings above this application is not necessary for my decision, but I consider it none the less as it has been argued.  

140.	I must begin by setting out the law on adverse possession.  The relevant statutory provisions are as follows. Section 15 of the Limitation Act 1980 (so far as material) provides:

(1)	No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, … 

(6)	Part 1 of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned. But like so much that has been said about adverse possession, it is misconceived.  Section 5 is the least occupied part of sections 3-5, so it is a very artificial application.

141.	Paragraph 1 of Schedule 1 to the Act provides as follows (so far as material): 

Where the person bringing an action to recover land …. has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.

142.	Paragraph 8 of Schedule 1 to the Act provides as follows (so far as material): 

(1)	No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

143.	The 2 most important authorities on adverse possession are the decision of Slade J in Powell v McFarlane (1977) 38 P&CR 452 and of the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.

144.	As Lord Browne-Wilkinson said in Pye at paragraph 36 “The question is simply whether the … squatter has dispossessed the … owner by going into ordinary (my emphasis) possession of the land for the requisite period without the consent of the owner”. 

145.	Possession, however, itself contains 2 separate elements namely:

(1)	Factual possession consisting of a sufficient degree of physical custody and control. 

(2)	An intention to possess (“animus possidendi” in Latin) being an intention to exercise such custody and control on one’s own behalf and for one’s own benefit.

Factual possession

146.	Lord Browne-Wilkinson expressly agreed at paragraph 41 with the attempt by Slade J to define this in Powell v McFarlane, where he said:

“The question what acts constitute a sufficient degree of 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. ... 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.”

The intention to possess

147.	In Pye Lord Browne-Wilkinson said at paragraph 42 that once it is accepted that the word “possession” in this context has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess.  It is wrong to suggest that an intention to own the land or to exclude the owner as well as other people was required.

148.	In Pye Lord Hope of Craighead said at paragraph 71:

	“The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor.  The word “adverse” in the context of section 15(1) of the Limitation Act 1980 does not carry this implication.  The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own. … So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”

149.	The intention to possess has 2 elements (1) a subjective intention to possess and (2) some outward manifestation of the trespasser’s subjective intention which makes clear that intention to the world at large  (see Blackburne J in Smith v Waterman [2003] EWHC 1266 (Ch) paragraph 19).

150.	The second original application is dated 5 April 2005.  Mrs Holland will need to demonstrate that she had been in possession of section 5 of Smithy Lane from 5 April 1993.  It will be recalled that on 26 February 1993, Land Registry refused registration of sections 3-5 of Smithy Lane.   A physical inspection of the land had failed to confirm occupation by Mrs Holland. Mr Carden’s 2 statutory declarations gave no details of the nature of the claimed occupation, save for the exercise of a right of way.

151.	The further evidence as to adverse possession, now relied upon by Mrs Holland, is as follows:

(1) 	Mrs Holland’s 2004 statutory declaration, referred to in paragraph 31 above, at pages 25-27 of the trial bundle;

(2)	Mrs Holland’s statutory declaration dated 24 February 2005 at pages 28-30 of the trial bundle;

(3)	paragraphs 46-50 of Mrs Holland’s witness statement at page 115 of the trial bundle.

Mrs Holland describes section 5 of Smithy Lane in her statutory declarations as “the yellow land”.  So there is no confusion, I must make it clear that in this judgment “the yellow land” means that part of Woodside Cottage coloured yellow on the title plan.

152.	Mrs Holland explains that:

(1)	along the north side of section 5 (the border with the De Vere land) there is a hawthorn hedge with wire up to 6 metres in height which has existed since before 1991;

(2)	at the western end of section 5, there is a gate which has been in place since before 1991;

(3)	the finger of section 4, along which a footpath leads into the De Vere land, has been fenced off since before 1991;

(4)	at the eastern end of section 5, access was originally barred by oil drums used as a barrier, but Mr Holland replaced them with a fence in 2002;

(5)	along the south side of section 5 there has never been any boundary feature with the yellow land because Mrs Holland owns the yellow land.

153. 	Mrs Holland says that section 5 of Smithy Lane is comprised of uncultivated land with substantial trees, shrubs, plants and brambles, which in practice since 1991 has formed part of “our land and garden”.  She also states that she and her family have “been in full, free and undisturbed possession and enjoyment” of section 5 until May 2004 when Mr Bate claimed his right of way. It is, “clearly ours exclusively and we occupy it.”  She and her family grazed horses on the yellow land, and on section 5, until Easter 2002.  Section 5 is described as “overgrown, boggy and uneven”.

154.	However, in her witness statement Mrs Holland admits that, for an undisclosed period, there was no fence on the southern border of the yellow land with the green land.  Mr and Mrs Carden’s horses, on that part of the green land, were invited to graze on section 5.  It would therefore seem that section 5 was not enclosed at all on its southern side, as the yellow land to its south was itself unenclosed on its southern side.

155.	Moreover, I find as a fact that the fence at the end of section 5, which was only erected in 2002, was the first proper boundary feature at the eastern end of section 5.  I accept Mr Woodfinden-Lewis’ evidence that he was able to ride along section 5, and onto section 6, without difficulty. 

156.	I therefore conclude that Mrs Holland has never acquired title to section 5 of Smithy Lane by adverse possession.

Does Mr Bate have a right of way over sections 3-5 of Smithy Lane?

157.	Mr Chapman does not rely upon the express right of way in the 2003 transfer. Mr Chapman also accepts that at the time of the 1991 transfer there was no reservation of a right of way along sections 3-5 in favour of Mr and Mrs Carden by implication for necessity.  This is because the eastern fields were adjacent to the green land, which was retained by Mr and Mrs Carden.  This permits access (see Gray, Elements of Land Law 4th ed paragraph 8.200 and Ray v Hazeldine [1904] 2 Ch 17, 20-21).

158.	But Mr Chapman submits there was a reservation of a right of way along sections 3-5 in favour of Mr and Mrs Carden by implication to give effect to a common intention.  The rare circumstances in which such a reservation can occur are set out in Gray at paragraph 8.201. In my judgment, Mr Bate has not begun to discharge the heavy onus of proof he bears on this issue.  I find no reason why such a reservation should be implied in favour of Mr and Mrs Carden, to which he is the successor in title.  

159.	In 1991, I have found that Mr and Mrs Carden owned both sections 2-6 of Smithy Lane and the eastern fields.  There was accordingly no right of way for the benefit of the eastern fields along sections 2-6.  When Mr and Mrs Carden sold off various parcels of land to Mrs Holland in 1991, the intention of both Mr and Mrs Carden and Mr and Mrs Holland was clear.  Sections 2-6 of Smithy Lane would cease to be used for access.  Section 2 would become enclosed as a private farmyard of Woodside Farm.  Sections 3 and 4 would become the private courtyard of Woodside Cottage.  There was no question of sections 3-5 being used by Mr and Mrs Carden for access to the eastern land.

160.	Mr Bate’s claim for a right of way fails.

Direction and costs

161.	I shall direct the Chief Land Registrar to give effect to the first original application by registering Mrs Holland with an absolute title to sections 3-5 of Smithy Lane. I shall direct the Chief Land Registrar to cancel the second original application. 

162.	I appreciate that the route by which I have found for Mrs Holland does not coincide entirely with the way in which she put her case.  However, I do not consider that Mr Bate has been prejudiced because it was common ground that Mrs Holland was claiming title to the whole of sections 3-5 on the ground that it had all been transferred to her by the 1991 transfer.  In the end, that is something with which I agree.

163.	I note that the adverse possession claim has ended in failure and that much effort has been wasted on the red herring of adverse possession. I have the power to make a costs order to reflect the fact that Mrs Holland has not succeeded in all her arguments.  However, my present view is that any discount to reflect this would be a modest one. The parties will no doubt wish to make written submissions on costs as well as to submit detailed cost schedules, if this has not already been done.  These should be sent to the Adjudicator by 4.0pm 8 December 2006.

Dated this 20th day of November 2006

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY