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    36. Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to "oust" the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter's use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

    37. It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their ordinary meaning.

    38. It is sometimes said that ouster by the squatter is necessary to constitute dispossession: see for example per Fry J in Rains v Buxton (1880) 14 Ch D 537 at p 539. The word "ouster" is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land

    but the squatter's subsequent occupation of it in law constitutes possession the squatter must have "dispossessed" the true owner for the purposes of Schedule 1 para 1: see Treloar v Nute [1976] 1 WLR 1295, 1300; Professor Dockray (supra). Therefore in the present case the relevant question can be narrowed down to asking whether the Grahams were in possession of the disputed land, without the consent of Pye, before 30 April 1986. If they were, they will have "dispossessed" Pye within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.

    39. What then constitutes "possession" in the ordinary sense of the word?

    40. In Powell's case Slade J said, at 38 P & CR 452, 470:

"(1)  In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2)  If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi")."

Counsel for both parties criticised this definition as being unhelpful since it used the word being defined— possession— in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession:

1.  a sufficient degree of physical custody and control ("factual possession");

2.  an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess").

What is crucial is to understand that, without the requisite intention, in law there can be no possession. Remarks made by Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 499 ("it is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession") provided the starting point for a submission by Mr Lewison QC for the Grahams that there was no need, in order to show possession in law, to show separately an intention to possess. I do not think that Clarke LJ was under any misapprehension. But in any event there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.

    41. In Powell Slade J, at pp 470-471, said this:

"(3)  Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before 30 April 1986.

    42. There are cases in which judges have apparently treated it as being necessary that the squatter should have an intention to own the land in order to be in possession. In Littledale v Liverpool College [1900] 1 Ch 19, 24 Lindley MR referred to the plaintiff relying on "acts of ownership": see also George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 510. Even Slade J in Powell, at pp 476 and 478, referred to the necessary intention as being an "intention to own". In the Moran case (1988) 86 LQR 472, 479 the trial judge (Hoffmann J) had pointed out that what is required is "not an intention to own or even an intention to acquire ownership but an intention to possess". The Court of Appeal in that case [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct. Once it is accepted that in the Limitation Acts, the word "possession" has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters on to land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title.

    43. A similar manifestation of the same heresy is the statement by Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, p 23 that the paper owners "could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi— ie, occupation with the intention of excluding the owner as well as other people". This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell's case 38 P & CR 452, 471 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an "intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."

    44. The decision of the Court of Appeal in Leigh v Jack (1879) 5 Ex D 264 has given rise to repeated trouble in later cases. In that case the plaintiff's predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being "bounded by" Grundy Street and Napier Place: therefore the intention to use the adjoining land for streets was known to all parties. Within the twenty year limitation period, both Mr Leigh and the defendant had carried out work on a fence separating Grundy Street from other land of Mr Leigh, Regent Road. From 1854 onwards the defendant had placed on Grundy Street and Napier Place old graving dock materials, screw propellers, boilers and refuse from his foundry. In 1872 (four years before action brought) the defendant completely enclosed Grundy Street and Napier Place. The Court of Appeal held that the defendant had not acquired title to the enclosed land under the Limitation Act 1833.

    45. The decision on the facts is not a surprising one. Quite apart from anything else, during the twenty year limitation period relied on, the paper owner (Mr Leigh) carried out works on the fence separating Grundy Street from Regent Road. This was inconsistent with a claim that he had either discontinued possession or been dispossessed. Unfortunately, other reasons were given. Cockburn CJ said that the defendant's storage of goods on the disputed land was not "done with the view of defeating the purpose of the parties to the conveyances". It will be noted that the defendant was well aware of Mr Leigh's intention to use the land as a public road since he was party to the conveyance so stating. Cotton LJ relied solely on the repair of the fence by Mr Leigh which I have mentioned as showing that there had been possession by him during the limitation period. The real difficulty has arisen from the judgment of Bramwell B. He said, at p 273:

"I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it."

The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. Bramwell B's heresy led directly to the heresy in the Wallis's Cayton Bay line of cases to which I have referred, which heresy was abolished by statute. It has been suggested that the heresy of Bramwell B survived this statutory reversal but in the Moran case the Court of Appeal rightly held that however one formulated the proposition of Bramwell B as a proposition of law it was wrong. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.

    46. In a number of cases (such as the present case) squatters have given evidence that if they had been asked by the paper owner to pay for their occupation of the disputed land or to take a lease they would have been prepared to do so. In Ocean Estates Ltd v Pinder [1969] 2 AC 19, 24 Lord Diplock giving the advice of the Privy Council said that an admission by the squatter to that effect "which any candid squatter hoping in due course to acquire a possessory title would be almost bound to make" did not indicate an absence of an intention to possess. In my judgment in the present case the Court of Appeal did not give full weight to that decision. In my judgment the decision of the Court of Appeal in R v Secretary of State for the Environment, Ex p Davies (1990) 61 P & CR 487 (the decision in Pinder not having been cited) was wrong. The decision in Pinder is to be preferred because it is consistent with principle. Once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime.

    47. The learned judge in a very full and careful judgment set out all the facts I have stated above. There are two points which I need to stress. First, although the judge referred to the grazing agreement of 1 February 1983, he did not set it out or indeed appear to treat it as being of major importance beyond showing that, during its continuance, the Grahams were in possession with permission of the paper owner. As will be seen, the Court of Appeal took quite a different view of the importance of that agreement. Second, the judge found that the Grahams "never vacated the disputed land" but "just kept farming all the year round". In addition to grazing the 80 to 140 head of cattle from February to November in every year, as I have said, the Grahams overwintered dry cattle and yearlings on the disputed land. In addition, in the years 1984/85 they dunged the land and in 1985 harrowed, rolled and fertilised the disputed land.

    48. After considering the law and, broadly, directing himself in accordance with the decisions in Powell and Moran the judge first held that, because of the hay-cutting agreement, the Grahams had been on the disputed land with permission of Pye until 31 August 1984: time therefore could not start to run until after that date. He then dealt with the question (which is no longer in issue) as to when time ceased to run. Thirdly, he considered whether the Grahams had been in possession ie. factual possession with an intention to possess. He held that the acts done by the Grahams on the land from 31 August 1984 onwards and in particular the exclusion of the whole world from any access to the disputed land save on foot constituted factual possession. As to the intention to possess, the judge reviewed the evidence and in particular took into account six factors. First, what the Grahams had done on the land. Second, for many years before 1984 the disputed land had been used for grazing purposes ie. grazing was a normal farming use of that land. Third, that although the Grahams had not themselves enclosed the disputed land in fact the whole world (including Pye) was excluded from it save on foot: the Grahams controlled all vehicular access to it. Fourth, the Grahams tended the land in the same way as the rest of their farm by rolling, harrowing, fertilising and maintaining the hedges and ditches. Fifth, the emphatic refusal by Pye to grant a further grazing licence prevented Pye from alleging that anything done on the land thereafter by Graham had been done with the intention of obtaining a further grazing licence. Sixth, the judge dealt with the argument that since the Grahams knew of Pye's intention to obtain planning permission, the Grahams should be taken as not intending to be in possession. The judge pointed out that the Grahams had been refused a further grazing licence expressly on the grounds that Pye did not want anyone using the land at that time when planning permission was to be applied for and that accordingly any agricultural use of the land by the Grahams thereafter was inconsistent with such intended future use by Pye.

    49. Considering all these factors together, the judge with considerable reluctance held that the Grahams had the necessary intention to possess and had accordingly obtained title under the Limitation Act.

    50. The Court of Appeal attached great importance to the grazing agreement of 1 February 1983 which Mummery LJ (giving the lead judgment) described as a contemporaneous and irrefutable record of the common intention of Pye and the Grahams regarding possession of the disputed land. Given that importance, I must follow the example of the Court of Appeal and set out the agreement virtually in full.

    51. By the agreement Pye agreed to grant to John Graham ("the Grazier") and he agreed to take a "right to graze" the disputed land on the following terms:

"1.  The grazier shall have the right to occupy and graze or mow the said land from 1 February 1983 until 31 December 1983 and shall have the use of the said land only for grazing or one cut of grass.

2.  The grazier shall pay to the owner the sum of £2,000 in respect of the period of occupation mentioned in clause 1 above ….

3.  The grazier shall use the said land for the purpose only of grazing or mowing the same.

4.  The grazier shall use only sheep/cattle/horses and/or ponies for the purpose of grazing the said land and shall not allow the said land to be entered upon or in any way used by goats, pigs, poultry or any diseased animals.

5.  The grazier agrees to the following conditions (a) that he will not permit any trespass upon the said land (b) that he will keep the said land clean and free from [weeds] (c) that he will keep the gates, fences and ditches in good order (d) that he will not pasture on the said land any but his own animals (e) that he will graze and use the said land in a good and husband-like manner (f) that he will not assign the benefit of this agreement or part with possession of the land.

8.  This Agreement is not a contract of tenancy for the purposes of the Agricultural Holdings Act 1948.

9.  It is expressly agreed and understood that the owner does not undertake to repeat this grazing licence for another period but if he agrees to do so a fresh agreement will have to be entered into by the grazier to operate from a date subsequent to the agreed period such fresh agreement to operate as a new and distinct contract.

10.  The owner reserves the right to terminate this agreement and gain possession of the land on service of six months' notice at any time during the period of the agreement with a proportional refund of the licence fee to the tenant but without any other form of compensation."

    52. The Court of Appeal considered that this agreement constituted a licence, not a tenancy, and that it did not give possession of the land to the Grahams. In reciting the facts, they stated that there was little change in the use of the land from the date of the expiry of that licence and the expiry of the cutting agreement right down to 1999: the Grahams continued to graze between 80 and 140 cattle on the land for 9 or 10 months. They then set out the "seven" factors which the judge relied upon in finding that the Grahams had an intention to possess. It is not clear to me where the Court of Appeal discerned the seventh factor beyond the six enumerated by the judge. They held that the judge significantly underestimated certain uncontradicted oral evidence as to the Grahams' intentions which consequently led him to a conclusion justified neither by the facts nor by a proper application of the 1980 Act.

    53. In outline their process of reasoning was as follows. The parties to the grazing agreement "plainly did not intend that the Grahams should have exclusive possession of the disputed land". When that agreement came to an end on 31 December 1983 and the right to cut the grass had been exhausted by August 1984 the Grahams' intention in relation to the land did not change: their intention remained to continue to graze, fertilise and maintain the land in just the same way as under the licence, ie. not as possessors of the land of which Pye remained in possession. Although their occupation was no longer permissive it still lacked the intention to possess. In finding that this was the intention of the Grahams, the Court of Appeal relied on evidence given in the witness statement of Mr Michael Graham. He said of the year 1984:

"My intention was to carry on using the land for grazing until I was requested not to. However, no request was ever made to me or my father to vacate the land or to pay for the grazing which was taking place. Had Pye requested payment I would have happily paid them. In short I took advantage of the ability to use the land as no one challenged me …. I farmed the land during the autumn of 1984 through to the spring of 1985 in the same way as I had in the previous year…. I was aware that there was a risk that I would not obtain the benefit of that work as again in 1984 like 1983 there was no formal grazing licence or an agreement to take a cut of hay. I would have paid Pye for a grazing licence or a cut of hay but in the absence of any formal agreement I was willing to take a chance that an agreement would be forthcoming later. In light of the lack of interest shown by Pye during the 1984 grazing season I continued to use the land [for] what I considered to be its best use …. During the spring of 1985 I believe I made one or two telephone calls to Tim Evans to ask for a grazing licence for the 1985 season. I would have preferred to have obtained a formal agreement but in the absence of one I continued to farm the land in the same fashion as I had in the 1984 and 1983 seasons. I did not receive a response from Tim Evans to my request and after a couple of attempts I gave up trying and decided to leave matters until I heard from him or from Pye directly. I believed at that time that it was possible to obtain ownership of land after it had been occupied for a sufficient number of years which I mistakenly thought was a period of seven years."

    54. The Court of Appeal expressed their conclusions:

"In my judgment, Mr Michael Graham's account of his state of mind when considered in the context of the circumstances of an initial permissive use under licence and the continuation of the same use after the expiration of the licence, is not that of a person who is using the land with the intention of possessing it to the exclusion of Pye. It is that of a person who, having obtained the agreement of Pye to the limited use of the land in the past, continues to use it for the time being in exactly the same fashion in the hope that in the future Pye will again be willing to accede to his requests to enter an agreement authorising him to use it.

In brief, there was no direct evidence that the Grahams ever changed their intentions regarding the use of the land after the end of August 1984 from what it had been when they first started to use it under licence in September 1982. That initial use was on the basis of a common intention that Pye should retain possession of it (ie. as part of a land bank for future development, if planning permission were granted) and that the Grahams should use it only for the limited purpose of grazing it and without any intention to possess it to the exclusion of Pye. After 31 August 1984 they did not do anything on the disputed land which they could not have done, and had not in fact done, under the grazing agreement. Their attitude to the land remained the same. Such direct evidence as there was on the intention issue positively indicated there was probably no change in the intentions of the Grahams or of Pye."

    55. It will be seen that the chain of reasoning of the Court of Appeal is as follows: first, the grazing agreement of 1 February 1983 "plainly" did not give possession to the Grahams; second, after the expiry of the grazing agreement the Grahams continued to use the land for grazing in the same way. They said that "both the nature and extent of the Grahams' use of the disputed land, which did not amount to factual possession of it during the period of the licence, remained the same"; third, that Mr Michael Graham made admissions against interest that he continued to farm the disputed land in just the same way as in 1983.

    56. In my judgment each of the steps in that reasoning is suspect. First, did the Grahams obtain possession under the grazing agreement? It is important to construe that agreement against its background. In allowing the Grahams to use the land it was essential to Pye that the Grahams did not obtain security of tenure under the Agricultural Holdings Act 1948. Such security would have been obtained in any case where the rights granted over the land (whether by way of tenancy or licence is irrelevant) endured for a full year. Accordingly, in the present case it was of minor importance to the parties whether the Grahams were given possession of the land: what was important was that they did not enjoy whatever rights they had for a full year. Hence the grant of the grazing right for eleven months only and the express provision in clause 9 that a further term would only be granted by a new and distinct contract starting after the termination of 1 February 1983 agreement. It is against this background that the question whether the Grahams obtained possession or not has to be determined. The fact that clause 5 contains a covenant by the Grahams "not to part with possession" and clause 10 expressly makes Pye's right to regain "possession" during the term dependent on serving a notice does not provide a promising basis for the holding of the Court of Appeal that the "parties plainly did not intend that the Grahams should have exclusive possession". However I accept that there are substantial arguments that the document did create only a licence. Under the agreement the right granted is only a "right to graze"; the land could only be used for grazing or mowing; the right is described as a "grazing licence" in clause 9 and the payment for the grazing is described in clause 10 as a "licence fee".