REF/2004/1283

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

(1)  	YORKSHIRE MERCHANT SECURITIES LIMITED

APPLICANT
and

(1) ALBERT ROWLAND
and
(2) ANTHONY ROWLAND

RESPONDENTS

Property Address: Land at Ford Lane, Ridgway, near Sheffield
Title Number:  DY360100

Before: Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Sheffield County Court
On: 10th and 11th October 2006

Applicant Representation: Mr Adrian Jackson instructed by Messrs Wake Smith
Respondent Representation: Mr Jason Hill instructed by Messrs Tofields 

___________________________________________________________________________

D E C I S I O N 
___________________________________________________________________________
Cases referred to in decision:

			Harper v Charlesworth (1825) 4 B & C 574 
Sze Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 
1.	On 26th March 2003 Yorkshire Merchant Securities Ltd ("YMS") applied to HM Land Registry to register a small area of land - some 145 square yards, it would seem - on the basis of claimed adverse possession since 1974.  The area in question, which I refer to as "the Disputed Land" and describe in more detail below, is coloured blue on the Notice Plan.  The land is currently unregistered, and it is common ground that the current “paper” owners are Mr Albert Rowland ("Mr Rowland Senior") and his son Anthony.  The paper owners objected to the application, and on 16th December 2004 the Chief Land Registrar referred the dispute to the Adjudicator.  

2.	YMS owns a parcel of land of approximately 35 acres, adjoining the Disputed Land, and known as Birley Hay Farm.  This land was initially acquired by Mr David Stanley Rae Watson by Conveyance dated 31st January 1974, and subsequently conveyed by him to a company known as Woodfoot Properties Ltd on 6th December 1975.  Woodfoot Properties Ltd changed its name to YMS in 1976.  As I understand it, YMS is a family company which is now largely run by Mr Watson's son.  

3.	Birley Hay Farm consists of land which runs south from Geer Lane, Ridgway, on the southern outskirts of Sheffield.  It is accessed from the public road by a made up track which runs through double gates and past the house known as Birley Hay to the right (west).  Mr Watson lives at Birley Hay and has done so since 1974.  The track continues past a barn and outbuildings to the left (to the east) and up a short incline to a five-barred gate.  After the gate the track - now unmade - forks.  One branch swings round to the right, that is in a westerly direction.  This, I am told, is a public footpath, and the whole length of the track up to this point is also a public right.  The other branch – a private way – continues in a straight line southwards.  This track runs through a narrow grass field, with woodland to the left, and the field boundary - a hedge - to the right.  There is a gate in this hedge about half way through the field.  At the bottom (southernmost) end of the field is another five-barred gate, with a stile on its right.  At this point the field tapers almost to a point.  Before the track reaches the gate, the left hand side of the field drops quite sharply away, forming a bank with the track on the top.  Below the bank is a small flattish grassed area, which becomes noticeably wet and boggy close to the woodland which lies behind it.  The grassed area forms a sort of bulge projecting into that woodland.  Where the open ground meets the wood, a rough post and barbed wire fence has been erected separating it from the woodland and enclosing it within the field.  The area is shown in detail in the Land Registry Surveyor's plan at page 130 of the Bundle.  The Disputed Land is the area between the track and the fence, namely the bulge I have referred to.  As I have said, the total area is no more than 145 square yards.

4.	Beyond - to the south - of this field lies another field, leading up to a steepish embankment.  The second field is also fenced with posts and wire, and a gate is set into it on the left (eastern) side.  The track continues through this field and climbs the embankment up to a former Mill Pond known as Lower Skelper.  The embankment is locally referred to as a dam.  Lower Skelper is within the area of Birley Hay Farm and owned by YMS.  The track takes a left turn at the top of the dam and runs along the northern edge of the pond and then almost immediately turns south again and runs along the eastern bank towards another field.

5.	I shall now describe the terrain on the eastern side of the Disputed Land.  As I have said, the fence surrounding the “bulge” is set into an area of woodland.  Within the woodland, there runs a ditch or old watercourse which, I am told, was the old millrace flowing from the Lower Skelper to the south.  This forms a clear depression in the ground a few yard behind the fence.  To the east of the depression is a bank, which on close inspection can be seen to be an ancient drystone wall running parallel (north-south) with the millrace.  This wall is heavily overgrown with ivy and undergrowth but is clearly visible.  Yet further to the east is a bank, and behind the bank a natural watercourse or stream.  It may be noted that Ordnance Survey maps of the land have continued to depict the old stone wall as a physical feature, as well of course as the stream.  I made a physical inspection of the Disputed Land, and I think it is fair to say that the entire area of woodland to the east of it, which I have described above, is heavily overgrown and very uneven, given the existence of the millrace, wall and bank referred to.

6.	To the east of Birley Hay Farm lies land which was formerly in the ownership of North East Derbyshire District Council.  In 2002, the Council decided to dispose of this land, and it was advertised for sale by agents, namely Messrs Eaton and Hollis.  Mr Watson, who is a Director of YMP, became aware of the sale and in particular the area of land being offered.  He believed that the western boundary of Lot 3 - which abutted the eastern boundary of Birley Hay Farm - enclosed an area of land to which he considered that YMS had acquired title by adverse possession.  He wrote a letter to the Council in November 2002 (see page 73) in which he pointed this out.  His then solicitors followed this up with a letter dated 9th December 2002 (page 78) together with a plan (page 79) on which they had marked with black hatching the area in question.  The plan showing Lot 3 emanated from Messrs Eaton and Hollis, the Council's agents.  It is of some significance that at this stage, both Mr Watson and the Council appeared to believe that the relevant boundary feature between the Council's land and Birley Hall Farm was the old stone wall I have mentioned, as shown on the Ordnance Survey maps (and the Land Registry Survey plan at page 130).  This wall is of course on the western side of the stream that runs between Birley Hall Farm and the Council land. At all events, Mr Watson stated that he (or rather YMS) had acquired title to the strip of land that runs between the western side of the stream and this stone wall, being the area marked on his solicitors' plan.  He said that YMP had been in continuous possession of the area for more than 25 years.  Through its solicitors, YMS tried to persuade the Council to withdraw the land from sale, but did not succeed. YMS tried to register a caution against first registration.  The Land Registry took the view that Mr Watson's various statutory declarations and accompanying plans were not internally consistent, and eventually the Land Registry surveyor was instructed to carry out a detailed survey to assist the parties.  This survey revealed that the true line of the boundary was even farther to the west than either the Company or the Council had realised. The plan at page 166 of the Bundle shows the boundary lines as plotted from the title documents, and also the boundary as originally believed to exist.  The blue line is the old stone wall, being the boundary as all parties believed it to be prior to the survey.  The red line is the line based on the documentary title, apparently referable to a boundary feature (now unknown) which was shown on an Ordnance Survey plan dated 1898.  As a result of this survey, the Company abandoned its claim to the land east of the stone wall, but renewed its claims in relation to a small area of land identified in the surveyor's sketch as "Disputed Land" and consisting of the “bulge” I have already described.

7.	The Respondent has made a great deal of the apparent changes of position by YMS with regard to the area of land to which it is claiming or has claimed possessory title.  As I have explained, the area of land originally claimed by YMS was larger than, and different to, the area of the Disputed Land.  It was essentially the entire area of land between the stone wall and the stream.  The Respondent argues that this demonstrates the insincerity of the claim.  Mr Watson was challenged with this apparent change of position.  His answer was quite simple.  He said that he had always regarded the boundary as being the stone wall.  It follows, therefore, that the Disputed Land, as far as he was concerned, fell within YMS's title; a view shared, it would appear, by the previous paper owner, the Council.  His initial claim, therefore, was to land which he knew to be outside YMS's paper title, namely to the east of the stone wall.  When he realised where the true boundary line was, after the Surveyor's visit, he took the view, rightly or wrongly, that he could not sustain a claim to adverse possession of land which he had not physically enclosed.  The only land which was physically enclosed was the Disputed Land, and YMS therefore limited its claim to that area.  It seems to me that this is an entirely understandable position to adopt, and does not in any way undermine the validity of the claim as it has ultimately been formulated.

8.	YMS's claim to the Disputed Land is based on its allegation that it has been fenced within the boundaries of Birley Hall Farm since before the time that Mr Watson acquired it in 1974: according to him, the fence was in place when he arrived and it has been maintained in the same position ever since.  The Respondent alleges that the fence has been placed in its present position more recently, specifically after November 1998 (see Paragraphs 7 and 10 of the Statement of Case).  The principal factual issue that I must resolve, therefore,  is which of these allegations is correct.   Since the burden of proof is on YMS, has YMS established on the balance of probabilities that the fence has been in the same position since 1974?  There is no issue between the parties as to the correct legal tests to be applied, and there is no Human Rights Act point since, if YMS is correct as to the period of occupation, title will have been acquired some time in the 1980s.  There is one legal issue which has been raised by the Respondents - arising out of the occupation of Birley Hall Farm by licensees - which I shall deal with once I have considered the facts.

9.	The following witnesses gave evidence on behalf of YMS: Mr Watson, who had lived at Birley Hay since January 1974: a Mrs Smith, who said that she had been fishing the Lower Skelper Dam for approximately 20 years, and had walked past the Disputed Land on a regular basis over that period: Mr Herbert Henry Bramhill and his brother Peter, who have been employed to maintain the fences on Birley Hay Farm since the date of Mr Watson's acquisition; and Mr Anthony Charles Ward, a farmer and local resident who, together with other members of his family, have taken Mowing and Grazing licences over Birley Hay Farm since 1st April 1997.

10.	The evidence of all these witnesses was entirely consistent. None of them recalled the existence of any fence or other boundary feature alongside the track, or bank, separating them from the Disputed Land, in the position contended for by the Respondents.  They all gave evidence that the fence has always been in its current position.  Mr Herbert Henry Bramhill recalled that various sections of the boundary fencing were replaced from time.  He could not say for sure whether the fence had been replaced on the Disputed Land but thought it quite possible.  However, both he and his brother inspected the Birley Hay fences once a year, in Spring, and carried out any necessary repairs and renewals.  They were both absolutely certain that the fence surrounding the Disputed Land has always been where it is today.  It was suggested to them that they were beholden to Mr Watson, whom they had known for many years, and who gave them work in the form of the fencing contract.  Their indignation at the suggestion that they were not telling the truth due to their obligation to Mr Watson was, I consider, entirely genuine.  Mrs Smith's evidence was equally clear and certain as to the position of the fence, with regard to a piece of land which she was very familiar with and had been for many years.  A rather half-hearted suggestion was put to her that she was a personal friend of Mr Watson and therefore liable to tailor her recollection to suit his case.  She denied this, and she certainly did not strike me as a person who would give untruthful evidence: quite the contrary.  There was nothing in her demeanour, nor in the answers she gave, which caused me to doubt her evidence.  Mr Ward also struck me as a patently truthful witness, who had absolutely no reason to lie in order to support Mr Watson's case.  

11.	Mr Watson himself also gave evidence as to the position of the fence, and confirmed that it had always existed in its present line.  As I have said above, although it was put to him that he had changed his position more than once with regard to the land he claimed, he gave an entirely convincing and plausible answer.  It can be seen that he has always regarded the Disputed Land as being his by reference to the Grazing Licences issued first to the Rhodes family (1990-1996) and subsequently to the Wards.  The plans on these agreements show that the Disputed Land was part of the licence land: in other words, YMS and Mr Watson considered that the land was included within Birley Hay Farm.  The licensees themselves clearly felt the same.

12.	The evidence adduced on behalf of YMS therefore amply supports the claim.  However, this claim to adverse possession is denied by the Respondents, and as I have said the burden of proof to establish adverse possession is on the Applicant.  If there is a genuine conflict of evidence, I must decide where the truth lies, on the balance of probabilities.  I shall therefore consider the evidence adduced by the Respondents to rebut the adverse possession claim.

13.	The evidence relied on by the Respondent was as follows.  Mr Rowland Senior himself very fairly accepted that he had no independent knowledge of the land which pre-dated his acquisition of it in 2002.  His entire case has been based on the recollection, or alleged recollection, of third parties, and related to him.  However, in his oral evidence he put forward a theory, which I think had not at any previous time been mentioned by him.  He said that a physical inspection of the land revealed the existence of underground or buried roots, running alongside the track and on its eastern side, that is at the top of the bank.  He inferred from this feature - which no other witness has observed - that at some point in the past there was a hedge in existence separating the track from the disputed land.   However, there is no other evidence which even begins to support the hypothesis and I reject it.

14.	Mr Rowland called three witnesses to support his claim that the post and wire fence had been moved from alongside the track, or at the bottom of the bank, to its present position.  The first of these was a Mr Blenkinsop, a local farmer who made a witness statement in which he recalled an incident in November 1998.  On this occasion, according to the statement, he said that 7 or 8 cows had escaped from one of his fields – which he had helpfully marked "1" on the first plan that he attached to the statement [page 59] – and had made their way into Mr Watson's field at the point marked "X" on the same plan.  The statement continues as follows:
"….I drove the cattle up through Birch Wood to a gateway on Ford Road from where I transported them back to my field.  I exhibit hereto a Land Registry plan on which I have indicated with an arrowed line the route that I drove my cows.  There was no fence around the land that is indicated blue on "IB2" (i.e the Disputed Land)."

15.	The path taken by him to drive his cows, as shown on that plan, was as follows.  He entered the field at the Gate from YMS’s field to the west: went southwards either on or parallel to the track: cut across the extreme south-western corner of the Disputed Land: and then turned almost due east, across the stream and along the northern side of the boundary feature on the eastern side of the stream.

16.	When Mr Blenkinsop was cross-examined, however, his evidence changed significantly.  He was initially unable to identify on his own plan (“IB 1”at page 59 of the Bundle) where his cattle had escaped from.  First he said that they were in the field numbered 3 on his plan, and escaped into the field above it and marked with a D.  His initial evidence was that they had then got into Field A through the gates at C, B and A.  He then corrected that and said that they had escaped from the field above Field 2 (not the field marked “1”), into Field C and thence into Field B.  When he found them they were still in the field (B) to the west of Gate A, but as he arrived they were “startled” and moved into the next field (where point X was drawn).  He was then powerless to control the cattle and they then took their own route, which he drew on another plan which has been identified as "IB3": this route took them right through the woodland and watercourses to the east of the Disputed Land.  These cattle then ended up in a field adjacent to the Lower Skelper Pond - a field belonging to an unknown third party.  When challenged by Counsel for the Applicant as to why he chose this exceptionally difficult and circuitous route, rather than simply driving his cattle back through Gates A and B and back into the field above Field 2, he said that the cows had a mind of their own and he was simply unable to control them.  I should also add that he seemed very uncertain as to the actual terrain over which he said that the cattle moved, and when I asked him what the salient features were he initially mentioned neither the disused stone wall or the mill race, both of which are noticeable features on the ground and likely obstacles to cattle.

17.	Furthermore, in the witness box the route which he identified on Plan “IB 3” as the route which they took ran more or less due south from the Disputed Land.  This was entirely different from the route shown on the plan attached to the Witness Statement, which went due east.  His explanation for this discrepancy was that he had not looked at the plan when he made his statement of truth, notwithstanding that he specifically referred to it in the body of the statement.   I regret to say that I found Mr Blenkinsop to be a most unreliable, if not untruthful witness.  I can only guess at his motivation, but I consider that his evidence regarding the escape of cattle is either concocted in its entirety, or alternatively that it has been tailored to fit Mr Rowland's case that there was no fence between the Disputed Land and the stream.  Quite apart from the startling inconsistency between his Witness Statement and oral evidence – on a fairly critical issue –  I think I am entitled to have regard to the inherent probabilities of the situation.  It seems to me wholly improbable that Mr Blenkinsop, an experienced cattle farmer, would allow 7 or 8 valuable cows to lead him through an area containing two watercourses, a substantial stone wall, a bank and thick undergrowth, difficult terrain at the best of times.  I do not accept that he could not simply have coaxed them back through Gate A and returned to the field whence they escaped.  Although he insisted in his cross-examination that he was quite unable to control the route that his cows took, I note that his Witness Statement refers on three occasions to “driving” his cattle, yet as I have said he insisted in cross-examination that he had simply followed his cows and was powerless to direct them.  Neither route taken by him – whether that identified in his Witness Statement or in his oral evidence – makes any sense at all.

18.	Mr White made a Witness Statement, in which he stated that he had been walking in the area for 18 years. 
"Every day I walk past the small piece of land that is coloured blue and therefore I know that area and that piece of land very well.  I ought to say that I used to work at Stafford Poyser's farm, Shady Hall Farm."
In cross-examination the following facts emerged.  First, he had stopped walking in the area in 1989, a year he recalled very well since his wife unfortunately suffered a heart attack.  Secondly, he only visited Shady Hall farm two or three times a week, to assist the owner to service 4x4 vehicles.  Thirdly, he used to take a variety of routes, one of which (he said) was through the Disputed Land.  There were other routes. However, he had exceptional difficulty in identifying the routes that he said he had taken, and when he was asked to indicate on a map where the Disputed Land was, he identified an area well to the north of the actual site.  Although I make some allowance for a witness being unfamiliar with maps and plans, his inability to identify the routes with which he claimed to be so familiar necessarily called his recollection into doubt.  Fourthly, he initially said that he had stopped walking through the Disputed Land because a fence had been erected.  On several occasions he put this event as occurring in 1989.  Subsequently, he corrected this to 1998.  He was unable to explain this discrepancy.  Having regard to the inaccuracies in his evidence, his inability to make any precise recollection as to the route, and the fundamental discrepancies in the dates he gave, I conclude that this witness is wholly unreliable.

19.	Mr Rhodes is a partner in a family farming partnership, which held a grazing licence from the Applicant between 1990 and 1996.  He gave evidence for the Respondent.  He produced the Grazing Agreement, and his witness statement deals with the line of the fence as follows.  His recollection, according to the Witness Statement, was that the fence ran just below the bank, leaving a small gap between the bottom of the bank and the fence.    The curiosity about the Grazing Agreement which he produced was that it actually included the Disputed Land within the red line marking the extent of the licence land.  It took Mr Rhodes a little while to accept this.  I do not criticise him for this, since the area in dispute is very small in comparison to the entire area comprised in the agreement, and Mr Rhodes has not used the land for about 10 years.  However, it does suggest to me that - long before this dispute arose - the licensee did not appear to notice any discrepancy between the area of land demised, and the physical boundaries thereof.  I think that a farmer who pays good money for a grazing licence, renewed over a period of 6 years, could be expected to ensure that he was actually occupying everything that he was paying for.

20.	When he came to be cross-examined, Mr Rhodes was shown some photographs [at pages 226/7] and asked to identify them, and the line of the fence which he recalled.  He had considerable difficulty in identifying the Disputed Land at all.  I asked him to look at the photograph at page 209.  Using that photograph, he indicated that the fence line he recalled followed the edge of the grassed area as shown thereon.  There is indeed a clear demarcation line between the grass, and what is a rougher, boggy area close to the woodland.  However, he also recalled that the fence itself was buried in brambles and other undergrowth (consistent with Mr Bramhill's recollection of a hedge) and ventured the opinion that the undergrowth had been cleared in the narrow belt of rough land shown on the photograph.  However, he accepted that he never actually had cause to go down into the "dell" as it has been called.   It must also be borne in mind that the photograph shown to him was taken in January, when much of the undergrowth would have died back, and that normally Mr Rhodes would have been off the land by the end of October when the annual Grazing Licence expired. 

21.	As it turned out, therefore, Mr Rhodes's evidence was the high water mark of the Respondent's case, in the sense that (at its highest) it indicated that the original fence line was slightly to the west of the present line, albeit considerably further east of the line formally contended for by the Respondent.  However, on analysis I do not think there is any real discrepancy between his evidence and that of the Applicant’s witnesses.  His oral evidence marked a clear departure from his Witness Statement, in that he placed the fence further east, nearer the line contended for by YMS.  However, he was only able to identify it by saying that it was at the edge of the grassed area.  Since he also recollected that the fence was set within brambles, it seems inevitable that the fence was not actually directly on the edge of the grass, but some way farther east, within the undergrowth which would have existed, but which would have died back by the time the January photograph was taken.   I do not therefore consider that Mr Rhodes’s recollection of the fence line differs markedly from that of the Applicant’s witnesses.  If and to the extent that there is a minor discrepancy, I prefer the evidence of both Mr Bramhills in particular, since they were actually concerned with the maintenance and renewal of the fence and can be expected to have a much more precise recollection of the actual fence line than Mr Rhodes who, as he accepted, had not worked the land for 10 years and had no reason to inspect the fence closely or even go into the Disputed Land.  

22.	For the reasons I have already given, I do not regard the evidence of Mr White and Mr Blenkinsop as at all reliable, and Mr Rowland Senior was unable to give any direct evidence as to the historical position of the fence.  The evidence adduced by YMS satisfies me that the fence has always been in its present position. Accordingly, I find as a fact that a fence has existed since at least 1974 in the position shown on the Land Registry Survey (page 130 of the Bundle) along the line A-B-C-D-E, as contended for by YMS, so that the Disputed Land has at all material times been fenced within the boundaries of Birley Hall Farm, and outside the boundaries of the land formerly owned by North East Derbyshire District Council and now by the Respondents.

23.	There is no dispute between the parties as to the relevant legal tests for adverse possession.  But for the licence issue which I refer to below, it is not seriously disputed by the Respondents that if YMS has enclosed the Disputed Land – which I have now found to be so as a fact – it will have been in adverse possession thereof for the requisite period.  It therefore follows that the Respondents’ title has been barred and YMS is entitled to be registered as proprietor.  

24.	However, an issue is taken by the Respondents as to whether Mr Watson and YMS have actually been in possession of the Disputed Land for any time after 1974.  The argument, as I understand it, runs as follows.  It is known that for many years, Mr Watson and YMS have not actually used the land directly, but have licensed others to do so for part of the year: in particular, the Rhodes family from 1990-1996 and the Ward family thereafter.  These local farming businesses have therefore held Grazing and Mowing Licences for a substantial period since Mr Watson and YMS originally acquired Birley Hall Farm.  The Respondents’ argument is that a squatter, in order to demonstrate adverse possession of another’s land, must be in exclusive possession thereof, and since licences were granted to third parties – so that possession was shared -  this cannot be shown by the Applicants in the present case.   The case of Sze Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 was cited to me in support of this proposition.  

25.	With respect to Counsel who advanced the proposition, it is manifestly unsustainable.  It has long been held by the courts – see, for instance, Harper v Charlesworth (1825) 4 B & C 574 – that occupation by a licensee is for limitation purposes to be regarded as occupation by the licensor.  The very case cited by the Respondent, to which I have referred, reiterates this point and is clear authority against the proposition advanced by the Respondent.  I have no hesitation in rejecting the argument.

26.	I shall therefore direct the Chief Land Registrar to give effect to the Applicant’s application dated 26th March 2003 as if no objection had been made.  I have heard no argument as to costs.  However, I would propose to order the Respondents to pay the Applicant’s costs on the basis that costs should follow the event.  I direct the Applicant to file and serve a Costs Statement, with a detailed breakdown of those costs within 14 days.  I will allow the Respondents 14 days thereafter to file and serve written submissions, if they wish to argue that some other order should be made, and also with regard to quantum.  If they do so, the Applicant will have 7 days to reply, also in writing.  

OWEN RHYS

DEPUTY ADJUDICATOR TO HM LAND REGISTRY

12th January 2007