Roberts v Swangrove Estates Ltd & Anor

Adverse possession requires both factual possession and an intention to possess. Factual possession must involve single and exclusive physical control, assessed in light of the nature and ordinary use of the land. Acts on part of a defined area may evidence possession of the whole where the locality has a common character and the inference is reasonable.

The squatter’s intention need not be an intention to acquire ownership or to dispossess a known paper owner. Possession through a tenant or licensee may count, provided the relevant acts were sufficiently obvious and consideration was paid where required. The Crown was not subject to a special restriction preventing adverse possession acquired by disseisin.

The claimant asserted paper title to extensive areas of the foreshore and bed of the River Severn. Swangrove Estates Limited claimed adverse possession of Mathern and Caerleon. The Crown Estate Commissioners claimed adverse possession of Magor. John Hanbury-Tenison claimed adverse possession of the Porton Green Area, while accepting that he held at least a several fishery there.

The court tried adverse possession as a preliminary issue on assumptions favourable to the claimant. The principal questions concerned the elements of adverse possession, whether acts on part could establish possession of the whole, whether the Crown could acquire title by adverse possession, and whether the evidence established the necessary possession, intention, exclusivity and limitation period in each area.

1. General principles. The defendants bore the burden of proving factual possession and animus possidendi for an unbroken limitation period. Factual possession required single and exclusive control, judged by the nature of the land and the manner in which land of that kind was ordinarily used. The acts had to be sufficiently clear that an objectively informed reasonable owner would appreciate that possession was being asserted.
2. Animus possidendi meant an intention to possess for the time being to the exclusion of others so far as reasonably practicable. It did not require an intention to own, an intention to acquire ownership, or knowledge that another person held the paper title. A belief that the squatter was the true owner did not prevent adverse possession.
3. Acts on part of a defined area could support possession of the whole where the areas had a common character of locality and the evidence reasonably supported that inference. The proposed wider unum quid principle was rejected, subject only to exceptional circumstances in which a powerful and notorious reputation for unity would reasonably alert the paper owner to acts outside his title.
4. Possession could be established through a tenant or licensee, but the actual licensed acts had to be sufficiently visible. Acts authorised under a licence counted as possession by the licensor where the licence consideration had been paid. Lawful possession as against the paper owner could not be adverse possession.
5. The argument that the Crown could not acquire title by adverse possession where possession began by disseisin was rejected. The Commissioners were entitled to rely on adverse possession on the same basis as an ordinary citizen.
6. On the evidence, Swangrove failed as to Mathern because no sufficient acts of possession were proved there. It succeeded as to Caerleon and the Welsh sliver, principally through frequent, visible and continuous dredging supported by other acts of control. The Commissioners succeeded as to Magor and the Eastern sliver for substantially similar reasons.
7. As to the Porton Green Area, the claim depended on whether the admitted several fishery carried ownership of the river bed. If it did, the acts proved were consistent with that right and did not establish adverse possession of a greater estate. If it did not, the fixed engines, temporary wharf and other qualifying acts were sufficient for adverse possession. The final outcome therefore awaited determination of the competing paper titles in the main action.

First-instance decision on preliminary issues. The judgment directed that the remaining issue concerning the Porton Green Area should await determination of the competing paper titles in the main action.