Gayadeen and another v The Attorney General of Trinidad and Tobago

At common law, a public highway requires both dedication by the landowner and acceptance by the public. The scope of any dedication depends on the wording of the relevant instrument and the surrounding circumstances. A land-acquisition notice identifying a road does not, without more, dedicate all acquired land as a public highway. A proclamation describing a route may dedicate the constructed road without extending to unused reserved land.

Where land is not a highway, adverse possession requires both intention to possess and factual possession involving sufficient physical control. A commercial car park need not be fenced where occupiers maintain it, control its use and allow customer access. Temporary parking by others does not necessarily displace possession.

Land was acquired in Trinidad and Tobago in 1945 for the Churchill-Roosevelt Highway. The appellants’ predecessors occupied premises and developed a building, garden and car park on part of the acquired land from about 1953. The State claimed that the 1945 Gazette notice, or alternatively a 1950 proclamation, had dedicated the whole acquired strip as a public highway.

The High Court dismissed the appellants’ adverse-possession claim and ordered possession for the State. The Court of Appeal dismissed the appeal, holding that a highway had arisen through dedication and public acceptance and, alternatively, through the 1950 proclamation. The central issues before the Board were the extent of any public highway and whether occupation of the car park established title by adverse possession.

Appeal allowed. The orders of the High Court and Court of Appeal were set aside, and title was declared in the appellants to the building and enclosed land behind it and to the paved car park shown on the survey plan. The triangular area was not included.

1. At common law, a public highway is a permanent public right of passage over a defined route. It requires dedication by the landowner and acceptance by the public. Dedication may be express or inferred, while acceptance may be shown by public use or by acceptance by highway authorities having statutory power to act: Director of Public Prosecutions v Jones [1999] 2 AC 240; Man O’ War Station Ltd v Auckland City Council [2002] UKPC 32; Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd (2000) 80 P & C R 324.
2. The 1945 notice under section 5 of the Land Acquisition Ordinance 1941 vested the land for the stated public purpose, but did not dedicate a public right of way. The reference to the highway’s name was not decisive. Section 2(4) required the stated public purpose to be construed in its statutory and factual context. The road had been reserved exclusively for United States forces, and there had been no public acceptance through user.
3. The January 1950 proclamation did dedicate a public right of way, but its description of a road running between identified points referred to the road constructed by the United States forces, not the whole wider strip acquired for possible development. There was no evidence that the Government intended a significant expansion of the public highway. The principle that a dedicated highway remains such across its whole dedicated width, despite narrower later use, did not answer the prior questions of dedication and extent. Turner v Ringwood Highway Board (1870) LR 9 Eq 418 was distinguishable because it concerned statutory marking out and fencing under the General Inclosure Act 1801.
4. Adverse possession required animus possidendi and factual possession involving a sufficient degree of physical control, assessed in context: J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The construction, concreting, maintenance and cleaning of the car park, together with efforts to exclude non-customers, established both elements. Fencing was inappropriate because customer access was intended. Temporary parking by others was ephemeral use and did not amount to factual possession. The evidence supported only the conclusion that the appellants and their predecessors had possessed the car park.

• Privy Council — [2014] UKPC 16: appeal allowed; the orders below were set aside and title was declared to the specified land.
• Court of Appeal of the Republic of Trinidad and Tobago — appeal dismissed on 29 July 2013; it held that a public highway arose through the 1945 acquisition and public acceptance and, alternatively, under the 1950 proclamation.
• High Court of Justice — appellants’ adverse-possession claim dismissed and the State’s counterclaim for possession allowed on 17 April 2012.