Summary

There was no constitutional principle or rule of law that the Crown could not plead adverse possession where its original entry on to the land was unlawful.

Facts

The appellant (R) appealed against a decision ((2007) EWHC 513 (Ch), (2007) 2 P) that the respondent commissioners had acquired title by adverse possession to land forming part of the foreshore and bed of the Severn estuary. R sued as Lord Marcher of Magor, an ancient Welsh manor or Lordship Marcher acquired by him in 1997. He claimed paper title to the fee simple in parts of the foreshore and bed of the Severn estuary on the Welsh side on the basis of ancient customary or Welsh law. The commissioners' position was that, although they maintained the Crown's title to the Magor land by ancient prerogative as residual royal demesne, the court should make a preliminary ruling on their alternative case that any paper title of R had been extinguished under the provisions of the Limitation Act 1939 and Limitation Act 1980. The judge accepted the commissioners' case that under the 1980 Act the Crown enjoyed the same legal rights as its subjects in limitation matters and that on the facts it had established adverse possession, since its acts of possession and control had been accompanied by the necessary intention to possess. R submitted that there was a constitutional principle or rule of law that the Crown could not acquire title by adverse possession against a subject except where its original entry on to the subject's land was lawful, and could not base its claim to title by adverse possession on its dispossession of the subject's land. R further submitted that the Crown had failed to discharge the burden of showing that its presence on the disputed land originated otherwise than in dispossession of R's predecessors, and failed to establish the necessary intention to possess and to exclude the world at large since, on the commissioners' own evidence, they never wanted to exclude anyone who was the true owner of the Magor land.

Held

(1) The 1980 Act was the legal point of reference for the resolution of the preliminary issue in the instant case. Limitation of actions was the creature of statute, not of the common law. By s.37(1) of the 1980 Act, subject to immaterial exceptions, the 1980 Act applied to the Crown as it applied to its subjects. The origin of the possession of the person relying on adverse possession was irrelevant to the barring of an accrued right of action and adverse possession could originate in a lawful or an unlawful entry into possession, JA Pye (Oxford) Ltd v Graham (2002) UKHL 30, (2003) 1 AC 419 applied. The only way in which the alleged constitutional principle relied on by R could have survived the introduction of the 1980 Act was if the Crown was not a person in whose favour time could run under Sch.1 para.10. The alleged constitutional principle or rule of law that the Crown could not disseise a subject of his land and could not therefore plead adverse possession of land so acquired was not supported by authority, Attorney General v Tomline (No3) (1880) LR 15 Ch D 150 CA considered. Before the Crown Proceedings Act 1947 there had been a bar on a subject bringing an ordinary action against the Crown for the recovery of land claiming that the Crown had committed a wrong against a subject. Since such an action was available after the enactment of that statute, it followed that there was no possible legal basis for denying the Crown the ability to plead a limitation defence that any of its subjects could plead or for treating the Crown's ordinary possession of another's land as other than that of a person in whose favour time could run under the 1980 Act. If there ever was a principle or rule limiting the right of the Crown to acquire title to land by adverse possession it ceased to exist by reason of the combined effect of the 1939 Act and the 1947 Act. (2) The existence of a claim to part of the Magor land by a third party did not prevent the commissioners from having the relevant intention to possess. There had been no act by that third party sufficient to deny the commissioners the role of having been in exclusive possession and control of the land for the necessary period. The commissioners believed that the Magor land was foreshore and, as such, part of the Crown Estate. A person who believed himself to be the true owner, albeit mistakenly, could have the requisite intention to exclude others and acquire title by adverse possession, Hughes v Cork (1994) EG 25 (CS) CA (Civ Div) applied. The commissioners' policy not to contest claims supported by sufficient evidence and which made the Crown's title doubtful did not mean that they lacked an intention to exclude the true owner so far as they could. The fact that the commissioners did not intend to trespass on the Magor land was consistent with the necessary intention to be in possession of it.

Appeal dismissed