3. A Puzzling Case about Possession

Lord Hope of Craighead

One of Robert Rennie’s skills as an academic commentator was to identify cases that were worth drawing attention to because he thought that something might have gone wrong. Not infrequently he did this by means of an article in the Scots Law Times. One such case which was the subject of an article which he wrote in 1994 is Hamilton v McIntosh Donald Ltd.1 It was a case about an area of rough peat moss in Aberdeenshire known as the Moss of Balqhuarn, part of a larger area known as Portlethen Moss. There were no buildings on it, and it was not in use for any kind of agriculture. It was just scrub land, which one might have thought was of no real value to anybody. It was also not fenced off, so anyone who wanted to could get access to it. As so often in cases of this kind, nobody paid much attention to what, if anything, was going on there or to whom the land belonged. The landowner was doing nothing to show to anyone who might have had a competing title that the land belonged to him. As far as the defenders who did have a competing title were concerned, there was no reason to think that objection would be taken if they were to make use of the land for their own purposes. That was the situation which, after the expiry of the prescriptive period, gave rise to a dispute about its ownership. On the one hand there was Mr Hamilton, who had a recorded title to the area of land but was making no use of it. On the other were the defenders, whose titles were derived from a disposition which had been granted in favour of one of their predecessors a non domino. It was habile to include the dominium utile of the disputed area. But the defenders needed to rely on the operation of prescriptive possession under section 1 of the Prescription and Limitation (Scotland) Act 1973 if they were to defeat the claim to ownership of Mr Hamilton.

The defenders succeeded in persuading the Lord Ordinary, Lord Prosser,2 that various activities which had taken place over the area on their behalf or with their authority during the relevant period were enough to establish that they had a right of ownership. They were also successful in the Inner House, where the Second Division, by a majority (Lord Murray dissenting) held that there was just sufficient evidence of the necessary prescriptive possession to entitle the defenders to succeed, in the absence of any challenge by the pursuer or any adverse possession by him during that period. But, on any view, it was a narrow case. It might have gone either way. Both Lord Justice Clerk Ross and Lord Wylie, who constituted the majority, expressed hesitation in coming to the opinion that the Lord Ordinary had reached the correct conclusion on the evidence that was before him.3 Lord Murray agreed that the case was a very narrow one. But in his view there was insufficient evidence to enable the necessary inference to be drawn.4

There were two features about the case that attracted Professor Rennie’s attention. The first was the fact that the evidence about possession which the judges other than Lord Murray accepted was, as he put it,5 “absolutely minimal.” It amounted to little more than some seasonal rough shooting which took place mainly on Saturdays, and some dumping of rubbish which took place on and off throughout the year and on only a small part of the disputed area. Other actions such as three weeks’ peat cutting and the carrying out of ground investigation work in relation to proposed road works were not in themselves sufficient because they were localised and transient. But they were held by the majority to point in the same direction as an assertion of ownership rights by the defenders. The second was a point of more general interest. It was about the risks to which the owner of a piece of scrub land of this kind was exposed by a party claiming prescriptive possession of it on the basis of a disposition that was granted a non domino, if all that was needed to make good that claim were acts of the kind that were regarded as sufficient in this case. Of course, the owner of an estate extending to thousands of acres could not be expected to pace round the estate every week or month looking for evidence of possession by other parties. But the implication of this decision was that a failure to keep an eye on what was going on there, however minimal, could have unfortunate consequences. As Robert Rennie put it at the end of his article, with a characteristic turn of phrase, landowners needed to be vigilant “lest there be a land rush based on all manner of queer goings on in the middle of the night designed to establish possession.”6 He did not, one gathers, approve of the decision.

I was attracted to his article by one other comment that appears at the end of it. There had, it seems, been a suggestion that the case might go to the House of Lords. “If so,” said Professor Rennie, “it will be interesting to see what their Lordships will make of it.”7 Remarks of that kind always excite interest. As it happened, the case did not go to the House of Lords after all. So their Lordships never had a chance to deal with the case. There was no further appeal. But the question, what their Lordships would have made of the case, is still worth a second look, even after an interval of more than twenty years.

There are two preliminary points that need to be made before one looks at the substance. The first is that the issue between the parties was, at least at first sight, an issue of fact rather than one of law. As Professor Rennie himself recognised,8 in such cases there is always a natural reluctance on the part of the appellate court to interfere with a view which has been formed on the evidence by the judge who has heard it. In this case that point is strengthened by the fact that there were concurrent findings of fact both at first instance and in the Inner House. This means that the hurdle that would have had to have been overcome in the House of Lords was that much greater. This leads to the second point. As the decision was always bound to turn on the particular facts and circumstances, it would appear that there was no real principle of law flowing from the decision. In 1994 an appeal to the House of Lords (and now, to the Supreme Court) was available as of right. It would not have been necessary to obtain permission, as will be required when section 117 of the Courts Reform (Scotland) Act 2014 is brought into force.9 The test for permission is whether the case raises a question of general public importance which is appropriate for further consideration on appeal. Given these two preliminary points it seems to me to be most unlikely that permission would have been given either by the Inner House or the House of Lords, had it been necessary at that time. But, writing as he was in 1994, Robert Rennie did not have to trouble with that point. So the question what their Lordships would have made of the case was not an idle one. There would have been no procedural obstacle in the way of an appeal.

Of course, these two preliminary points would not have disappeared just because the appeal would have to proceed as an appeal as of right. There is no shortage of cases where, both in the House of Lords and in the Supreme Court of the United Kingdom, their Lordships have made it clear that it would be a misuse of the right of appeal to bring cases there which turned purely on their own facts and raised no issue of general public importance at all.10 But from time to time cases which at first sight seemed to have nothing to be said for them at all have turned out, on further examination, to raise points of real interest.11 As this was a Scottish case, everything would be likely to have depended on whether the two Scottish Law Lords found something in the appeal that caught their interest. That is especially so as the issue was one about property law, as to which the laws on either side of the border are so different. That having been said, cases about loss of title to land to acts of competing possession through inadvertence are not unknown in the English courts. So, if they had been interested in the case, the Scottish Law Lords would not have found it difficult to carry their colleagues with them to the point of at least listening to the argument and then trying to make something of the case when it come to the point of writing a judgment.

The two Scots Law Lords who were sitting on the Appellate Committee of the House of Lords in 1994 were Lord Keith of Kinkel and Lord Jauncey of Tullichettle. I had not yet reached the House of Lords, so I do not have much of a feeling for what they would have made of the case if they had had to deal with it. It is possible that counsel would have been able to persuade them that it did raise an issue that was worth further consideration. On the other hand, they might well have felt that there were no grounds on which they could properly interfere with the decision of the Inner House. In that event their judgment would not have added anything of interest to what had already been said by the judges in the Court of Session. It can be assumed that their attention would have been drawn to Professor Rennie’s article. But I think that is unlikely that his name would have meant anything to either Lord Keith or Lord Jauncey. They came from a generation of judges who paid little attention to the views of the academic branch of the profession, and it can be assumed that they would have adopted that approach in this case too. Speculation as to what they would have made of his comments is, for this reason, a rather sterile exercise. But my impression, much as I admired and respected both of them, is that they were not inclined to push out the frontiers of the law beyond its established boundaries. So I think that the chances of their reversing the decision of the Inner House must be regarded as rather slim. In that situation Mr Hamilton was probably wise not to take the case any further.

So I would prefer to assume that I would have been sitting on the Appellate Committee when the appeal reached the House, and that my colleague from Scotland on the committee would have been Lord Rodger of Earlsferry. There are several reasons for thinking that this is a happier assumption to make. Like Alan Rodger, I welcomed the opportunity to explore issues of Scottish private law whenever they came our way when we were sitting in London. In our experience, there was not infrequently something in those cases which had not been spotted before, or at least something new about them that was worth saying. For us, the fact that Robert Rennie had thought it worth commenting on the case would at least have attracted our interest. It would also have presented a challenge too, as we would have felt that we could not ignore his comments when we were writing our judgments.

One of the advantages of sitting in London is the opportunity that it gives for comparing the Scots approach to a problem with that which is adopted in similar circumstances in England. As it happens, an appeal which presented a problem not all that distant from that raised by Hamilton v McIntosh Donald came before the House of Lords in March 2002. I had been sitting as a member of the Appellate Committee for over five years by then. I had recently been joined by Lord Rodger, although he was not asked to sit with me on this occasion. The appeal was in the case of J A Pye (Oxford) Ltd v Graham.12 It was an English appeal which, like the Hamilton case, raised an issue about adverse possession. The landowner, Pye, sought to recover possession of the land, to which it held a paper title, from the defendants who had been using it for over twenty years. The defendants’ argument was that inaction of the kind that caused the problem for the landowner in Hamilton had resulted in the loss of the right to recover possession by the operation of the Limitation Act 1980. This was because they had been in “adverse possession” of the land within the meaning of paragraph 11 of Schedule 6 to the 1980 Act. The acts which were said to have amounted to adverse possession consisted, to begin with, of using the land for grazing and cutting hay. But as time went on the defendants carried out various other operations such as harrowing and spreading dung on the land to ensure its fitness for grazing in the following season, and later on changed their use of the land to arable. Various witnesses who had observed these activities said that they thought that the defendants were the owners, while it was clear that Pye showed no interest in its agricultural management. The case really turned on what was meant by the expression “adverse possession,” not on the extent or quality of the defendants’ use of the land. Their use of it was, of course, more than enough to establish a right of ownership by the operation of prescriptive possession if the land had been in Scotland and if they had had a title to it which was habile to include the dominium utile. They had been conducting their farming operations there openly, peaceable and without any judicial interruption for more than the prescriptive period. But was this “adverse possession” within the meaning of the English statute?

That was not an uninteresting question. As Lord Browne-Wilkinson observed,13 the apparently straightforward provisions of the Limitation Act 1980 had given rise to considerable difficulties. The problem was that the expression “adverse possession” had become linked to the idea that a squatter’s use of the land had to conflict with the intentions of the paper title owner as to his present or future use of the land. He had to be shown to have acted adversely to the paper title owner, in the sense that his use of the land was inconsistent with any use, present or future, of it by the true owner. The Court of Appeal had found that the problem for the defendants, on this approach, was that they had been using the land in exactly the same fashion as Pye had agreed to their using it under a grazing let in the past in the hope that, should this be necessary, they would be able to obtain Pye’s agreement to its being used in the future.14 This analysis of the facts was found not to be entirely sound. The better analysis was that of the trial judge, Neuberger J,15 who held that the defendants had established title by possession because they had treated the land as their own for the necessary period. So the defendants succeeded in their appeal, and Pye were deprived of their title to it by the operation of the statute. Pye complained that this result was incompatible with their rights under article 1 of the First Protocol to the European Convention on Human Rights, but it was held by a Grand Chamber of the Strasbourg Court that the fair balance required by A1P1 was not upset.16

I took the opportunity in my speech in that case to comment on the concept of adverse possession and the apparent injustice of the result.17 It seemed to me that the concept of possession required both an intention to take or occupy the land (animus) and some act of the body (corpus) which gives effect to that intention. As for the intention, I said that the animus which was required was the intent to exercise exclusive control over the subjects for oneself.18 It was not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word “adverse” as used by the statute did not carry that implication. The only intention that had to be demonstrated was an intention to occupy and use the land as one’s own. It is worth quoting the way I linked this approach to that taken in Scots law:19

This is a concept which Rankine, The Law of Land-Ownership in Scotland, 4th edn (1909), p 4, captured in his use of the Latin phrase cum animo rem sibi habendi (see his reference in footnote 1 to Savingy, Das Recht des Besitzes, translated by Perry (1848), paras 1-11). It is similar to that which was introduced into the law of Scotland by the Prescription Act 1617, c 12 relating to the acquisition of an interest in land by the operation of positive prescription. The possession that is required for this purpose is possession “openly, peaceably and without any judicial interruption” on a competing title for the requisite period: Prescription and Limitation (Scotland) Act 1973, section 1(1)(a). So I would hold that, if the evidence shows that the person was using the land in a way that one would expect him to use it if he were the true owner, that is enough.

I agreed with my colleagues on the Appellate Committee that the only conclusion that could reasonably be drawn from the evidence was that the defendants had occupied and used the disputed land as their own for the necessary period before the action to remove them was brought. I noted that the unfairness in the system laid down by the Limitation Act 1980 lay in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.

A feature of our system of case law, at least at the appellate level where there is room for the law’s development, is that one case tends to feed off another. Pye v Graham was an English case which dealt with a different statute. But the examination of the concept of adverse possession in that case might be thought to have some bearing on the points that Robert Rennie was making in his article about the Hamilton case. Did the judges in the Court of Session pay sufficient attention to the nature and quality of the possession that was required? As he noted,20 in Montgomerie Bell’s view it had to be of the highest description of which the subject is capable.21 Neither the Lord Ordinary nor the Judges in the Inner House make any reference to this test. Lord Justice Clerk Ross did, when he was setting out the principles to be applied, say that whether particular acts constitute possession for the purposes of prescription depends upon the nature of the subjects claimed.22 But two of the authorities to which he referred might have justified a formulation that was closer to that suggested by Montgomerie Bell. In Buchanan and Geils v Lord Advocate Lord Mure said that the foreshore was in the occupation of the pursuer “in every way that a foreshore admits of being used.”23 In Young v North British Railway Co Lord Watson said that test would be satisfied if the pursuer “has had all the beneficial uses” of the foreshore that a grantee of the Crown would naturally enjoy.24 In Aitken’s Trustees v The Caledonian Railway and the Lord Advocate Lord Moncrieff put the matter in much the same way as the Lord Justice Clerk when he said that, when judging the sufficiency of the possession, regard must be had to the nature of the subject and the uses to which it can be put.”25 But only a few sentences earlier he had quoted the same words from Lord Watson’s speech in Young, and the point in Aitken was that the possession that had been established by the evidence was of a small portion only of the part of the foreshore over which a right of ownership was being claimed. That was held to be insufficient to establish a prescriptive right to the whole of it. In such a narrow case as Hamilton plainly was, small differences matter when the test to be applied is being formulated. Would it have made a difference to the result if the judges had had in the forefront of their minds the test that Montgomerie Bell had suggested instead of the somewhat weaker way of expressing it which, following Lord Moncreiff in Aitken, was adopted by the Lord Justice Clerk? Would it have made a difference if reference had been made to my way of putting the point in Pye, when I said the question was whether the person was using the land in a way that one would expect him to use it if he were the true owner?

One has, of course, to twist the chronology a bit to bring the speeches in Pye, which were delivered in March 2002, into the argument in a supposed appeal to the House of Lords in Hamilton. But that would be necessary anyway if one is to assume that Lord Rodger had been sitting with me in the appeal, as he did not become a Lord of Appeal in Ordinary until October 2001. Supposing then that Lord Rodger had been sitting with me sometime after March 2002, one has to ask whether he would have been interested in pursuing the questions which I posed at the end of the preceding paragraph. Would he have thought that something might be gained from looking at an English case which was concerned with a different issue under a different statute when addressing an issue of Scots law in an appeal from Scotland? Without his support I would have been unlikely to have made much progress in persuading my English colleagues that there was something in the point that was worth thinking about. With his support there would have been every chance that I would have been able to do so.

I must move the calendar on quite a bit more to get a feel for what Lord Rodger would have thought of the point if he had been given the opportunity. The answer can be found in a judgment which he delivered in March 2010 in an appeal to the UK Supreme Court on which we both sat. It raised an issue, which has given rise to much litigation in England in recent years, about the test to be applied in determining whether land is appropriate for registration as a town or village green under section 15 of the Commons Act 2006.26 This was the case of R (Lewis) v Redcar and Cleveland Borough Council.27 The question was whether the local inhabitants had done enough to show that they had made use of the area in question “as of right” for a period of at least 20 years. One has only to mention this test to appreciate that the questions that are likely to arise on the evidence are not dissimilar to those that have to be addressed where a claim to ownership by the operation of prescription is made under the 1980 Act. In the Redcar case the land in question had been used for many years as a golf course. The local inhabitants had been using it too, regularly and in large numbers, for a variety of sports and pastimes including jogging, children’s play and dog-walking which was tolerated and not objected to by those playing golf on the golf course. The question was whether the inhabitants were doing these things as of right.

Lord Rodger was sufficiently interested in this issue to add a judgment of his own based on his own researches,28 although he agreed with the leading judgment which was given by Lord Walker. He referred to the Digest29 when he was exploring the meaning of the phrase “as of right,” in the light of Lord Hoffmann’s observation in an earlier Commons case30 that it was to be construed as meaning nec vi, nec clam, nec precario. His point was that it would be wrong to suppose that the Latin word vi meant that some kind of physical force was required. He referred, by way of further support, to Lord Jauncey’s observation in a case about a claim to a public right of way in Scotland31 that there is no principle of law which requires there to be conflict between the interests of users and those of the proprietor, and to an observation by Lord Sands in another public right of way case in Scotland32 in order to make the point that most people who walk their dogs or play with their children on the disputed land know nothing about the legal character of their right to do so. The way in which he slipped so easily to and fro across the border in his use of these authorities suggests quite strongly that he would have been quite happy to do the same if he had been hearing the appeal in Hamilton. So it is not an unreasonable assumption that he, like me, would have wanted to look quite closely at the question whether the Inner House really did direct their minds to the correct test as to the nature and quality of the possession that had to be shown to establish the defenders’ case when they refused Mr Hamilton’s reclaiming motion. If we had been satisfied that this was not so, this would have enabled us to form our own view as to whether the test was satisfied by the evidence.

There, however, my reaction to Robert Rennie’s article must stop. There was no appeal, and it would not be fair for me to express a concluded view as to what would have happened if there had been and if, on my rather extended hypothesis, Lord Rodger and I had had the pleasure of hearing it. What I can properly say, however, is that Robert’s article did raise a very interesting issue which, although perhaps slightly ahead of its time, focused on a point that was very much in need of attention. The balance between the interests of the landowner and those of the party claiming prescriptive possession needs to be struck in the right place. One is left with an uneasy feeling that in Mr Hamilton’s case that was not so. I think that Robert Rennie was quite right to draw attention to this point in the way he did in his article. I confess to a feeling of some regret that I was not given an opportunity to respond to it.