The Gazette 1986

GAZETTE

JULY/AUGUST

that in order to constitute adverse possession against the

owner "acts must be done which are inconsistent with

his [the owner's] enjoyment of the soil for the purposes

for which he intended to use it: that is not the case here,

where the intention of the Plaintiff and her predecessors

in title was not either to build upon or cultivate the land,

but to devote it at some future time to public purposes."

Egan J. also referred to the decision by the English

Court of Appeal in

Wallis's Cay ton Bay Holiday

Camp

Ltd.

-v-

Shell Mex and B.P. Ltd.*

in which Lord

Denning M.R. stated that "where the true owner of

land intends to use it for a particular purpose in the

future but meanwhile leaves it unoccupied, he does not

lose his title to it simply because some other person

enters it and uses it for some temporary purpose like

stacking of materials." Because of what he described as

a dearth of modern Irish authority on the matter and,

since the relevant English statutes are close enough in

wording to the 1957 Act, Egan J. regarded the English

authorities as strong persuasive precedents in this

jurisdiction. He therefore concluded that "adverse

possession" within the meaning of the 1957 Act had not

been established by the Defendant and he accordingly

granted a decree for possession to the Corporation.

Egan J. was not altogether correct in speaking of a

dearth of modern Irish authorities on the matter. The

principle formulated by Bramwell L.J. in

Leigh

-v-

Jack

had been applied in

Convey

-v-

Regan.

In the latter case

the Plaintiff, who had been in exclusive and

uninterrupted occupation and possession of the

Defendant's bog for upwards of thirty years, during

which time he had cut and taken away turf for sale, was

claiming a declaration that he had acquired a fee simple

interest in the bog and was seeking an Order directing

rectification of the Register of Freeholders in the

County of Mayo. Black J., who regarded the book-law

upon some aspects of the problem as somewhat

nebulous, believed, however, that there were certain

points on which the law was fairly clear and one of these

was that there must be dispossession of the owner by

acts inconsistent with his enjoyment of the soil for the

purpose for which he intended to use it, for which

proposition he cited

Leigh

-v-

Jack.

Black J. went on to

say that his main consideration was the principle that

the party relying on acts of user over a long period to

establish title against the owner must show that the acts

were done with

animus possidendi

and he adopted the

statement in

Lightwood*

that "there is no such

animus

possidendi

where the acts can be referred to some right

short of ownership, as where they only involve a claim

to an easement." Black J. held that the acts of cutting

and taking away turf from the Defendant's bog were

equivocal since though they might have been done with

the intention of asserting a claim to the soil they may

equally have been done merely in the assertion of a right

to an easement or to a

profit a prendre

such as a right of

turbary.

It would thus have been virtually impossible

for an intruder to acquire title in these circumstances

since the only feasible use of the disputed bog was that

made of it by the Plaintiff, i.e., the cutting and taking

away of turf.

All cases of intrusion are not so easily resolved,

however, and Black J . 's reasoning in

Convey -v- Regan

together with Egan J . 's adoption of the English

authorities in the

Cork Corporation

case lead to the

interesting consequence that even though the owner fails

to initiate action to recover his land from an intruder for

upwards of twelve years he may recover the land if he

can satisfy the court that the intruder's use of the land is

not inconsistent with his, the owner's ultimate purpose

for the land. The question of adverse possession will

accordingly vary with the circumstances of each

particular case and, at first blush, the element of

uncertainty implicit in this approach would seem to me

inconsistent with the rationale of the principle of

limitation in its application to actions for the recovery

of land which is the quieting of titles.

The policy

objective underlying successive Statutes of Limitation,

however, has been counterbalanced by a reluctance to

allow an intruder or squatter to acquire good title

against the owner which has led the courts to interpret

the words "adverse possession" in Statutes of

Limitation very narrowly. Ormrod L.J. put it thus in

Wallis's Holiday Camp

-v-

Shell-Mex

"The overall

impression created by the authorities is that the courts

have always been reluctant to allow an encroacher or

squatter to acquire a good title to land against the true

owner, and have interpreted the word "possession" in

this context very narrowly. It is said to be a question of

fact depending on all the particular circumstances of the

case

(Bligh -v- Martin

)

but, to the relatively untutored

eye, it has acquired all the appearances of a difficult

question of l aw."

While the answer to the question of adverse

possession in the particular case is thus not nicely

solvable, or easily predictable, the dictates of common-

sense would suggest that the use of another's land for

some temporary, transient, purpose should not

constitute adverse possession such as would deprive the

owner of title. Examples of such uses, instanced by

Lord Denning in

Wallis's Holiday Camp

-v-

Shell-

Mex,

are the stacking of materials on the disputed land

or the use of it for some seasonal purpose such as the

planting of vegetables. In

Williams Brothers

Direct

Supply Ltd. -v- Raftery

the use of the disputed land

for the breeding of greyhounds, the erection of some

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