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You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> (1) Graham Frederick Mellstrom (2) Beverley May Mellestrom v Badgworthy Land Company (Adverse possession : Common land) [2010] EWLandRA 2009_0953 (21 July 2010) URL: http://www.bailii.org/ew/cases/EWLandRA/2010/2009_0953.html Cite as: [2010] EWLandRA 2009_953, [2010] EWLandRA 2009_0953 |
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REF/2008/1498, 2009/0290, 2009/0953
The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
(1) GRAHAM FREDERICK MELLSTROM
(2) BEVERLEY MAY MELLESTROM
and
BADGWORTHY LAND COMPANY LIMITED
RESPONDENT
Property Address: Land at Ilkerton, Barbrook, Lynton
Before: Mr Rhys, Deputy Adjudicator to HM Land Registry
Sitting at: Crescent House, Temple Back, Bristol
On: Wednesday 26th, Thursday 27th and Friday 28th May 2010
Applicant representation: Ms Stephanie Tozer of Counsel instructed by Blake Lapthorn LLP Solicitors
Respondent representation: Mr Malcolm Warner of Counsel instructed by Messrs Slee Blackwell Solicitors
D E C I S I O N
KEYWORDS – Conveyance of sporting and manorial rights – whether it includes the freehold of the waste – claimed adverse possession of a common – effect of registration as owner of common land under Commons Registration Act 1965
CITATIONS
Littledale v Liverpool College [1900] 1 Ch 19
McDonell v Giblin (1904) 23 NZLR 660 at 662
George Wimpey & Co Ltd v Sohn [1967] Ch 487
St Edmundsbury v Clark (No 2) [1975] 1 WLR 468 at 477 C-F,
Red House Farms (Thorndon) Ltd v Catchpole (1976) EG 295
Powell v McFarlane (1977) 38 P & CR 452 at 480
Corpus Christi College Oxford v Gloucestershire CC [1983] 1 Q.B. 360 (CA)
Loder v Gaden and Gaden 78 P & CR 22
Hampshire County Council v Milburn [1991] 1 AC 325 at 338C
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896
Alan Wibberley Building v Insley [1999] 1 WLR 894
J A Pye (Oxford) Ltd v Graham and others [2003] 1 AC 419
Ali v Lane [2006] EWCA Civ 1532
REF/2008/0315 Whitehurst & others v Dickinson (Stephen Jourdan QC)
Halsbury’s Laws Vol 12 (1) at paragraph 708
Jessel’s The Law of the Manor (1998) at pp. 115-117, 156-163, and 426
Chapter 2 of Megarry & Wade’s The Law of Real Property (7th ed.)
Rights of Way Law Review, by Ms Zara Bowles, at section 9.3
Ruoff & Roper on Registered Conveyancing at para.9.013
Ubhi on the Law of Commons (2nd ed.) at para. 10
DEFRA Guidance Note (March 2010) on Adverse Possession of Common Land at para.10
DEFRA Guidance Note (January 2010) on the Commons Registration Act 1965 – How the registers were prepared at para.6..
Land Registry’s Practice Guide relating to Manors, at paragraph 4.1.
THE APPLICATIONS
1. Three applications have been referred to the Adjudicator by the Chief Land Registrar, all of which relate to the same parcel of land. This is known as Ilkerton Ridge, neafr Lynmouth, North Devon, consisting of an area of 725 acres of Exmoor lying between the Devon-Somerset county boundary to the south, and the village of East Ilkerton to the north. I shall describe the exact area in more detail later in this decision. The first application in time is that of the Applicants. On 8th June 2004 they applied to register the freehold of Ilkerton Ridge by virtue of a Conveyance dated 27th May 2004 (“the 2004 Conveyance”) and made between Sir Rivers Carew and Gerald Carew (1) and the Applicants (2). The basis of the Applicants’ application was that they had acquired the Lordship of the Manor of Woolhanger, together with all lands attached thereto, under the 2004 Conveyance, and that Ilkerton Ridge formed part of the waste of the ancient Manor of Woolhanger. Although the application was made as long ago as 2004, for various reasons notice was not given to the Respondent until 2006 and it objected to the registration in January 2007. Shortly afterwards, on 1st February 2007, the Respondent itself made application to the Land Registry to be registered as absolute proprietor of the sporting and manorial rights over Ilkerton Ridge. This claim was made in reliance on a Conveyance dated 25th October 1958 (“the 1958 Conveyance”) and made between the Public Trustee (1) and the Respondent (2). The Applicants objected to this application. The Applicants’ application was referred to the Adjudicator in October 2008, under section 73(7) of the Land Registration Act 2002 (“LRA 2002”) and the Respondent’s application was referred in February 2009. Having regard to certain issues which arose during the course of the adjudication, on 26th June 2009 the Respondent made a further application to the Land Registry, for registration of the freehold absolute title, also by reference to the 1958 Conveyance. In other words, this application was not limited to registration of rights over the land, as in its earlier application, but was a claim to the title to the land itself. Again, the Applicants objected, and the third dispute was referred to the Adjudicator on 29th July 2009. All three references have in effect been consolidated and were heard together. Although adverse possession was not formally raised in the Respondent’s most recent application, permission was given to it to add this claim to its pleaded case, and in the event most of the evidence was directed to this issue. The Applicants were represented at the hearing by Ms Stephanie Tozer, and the Respondent by Mr Malcolm Warner, both of Counsel. A summary of my cvonclusions can be found in Paragraph 51 below.
THE PARTIES
2. I should say a little about the parties themselves. The Applicants are the owners of farmland, known as Thornworthy Farm, which lies to the west of and adjoins Ilkerton Ridge. They also own additional land known as the Somerset or Exmoor Allotments, being land immediately to the south of the county boundary line described above. They purchased this land from a Mr Chugg in 1989. This land carries with it certain rights of common over Ilkerton Ridge. These rights are registered in the Rights Section of the register established under the Commons Registration Act 1965 (“the 1965 Act”), and are essentially rights of pasturage. The Applicants are also the owners of the house known as Woolhanger Manor, which is situated close by. This is an historic house, which boasts a magnificent music room, built on the 19th Century and recently renovated by the Applicants. For what it is worth, it seems that the Applicants are very substantial farmers and own considerable land holdings throughout England. The Respondent is a charitable company, which was established in 1926. Sir Robin Dunn MC, a former Lord Justice of Appeal, who was Chairman between 1985 and 1999, made a witness statement which includes this description of the Respondent:
“The Badgworthy Land Company is the largest private landowner on Exmoor, owning over 800 acres. It was formed in 1926 with the purchase of the Deer Park, part of the Badgworhty Valley and Brendon Common. Since then in addition to the land acquired from Captain Slater’s estate, it has acquired two farms and woodlands on the west side of Exmoor. In the 1960’s the Company started acquiring hunting rights, and now owns hunting rights over about 60,000 acres of Exmoor. All the shares in the Company were transferred to Badgworthy Trust for the Preservation of Exmoor, its objectives being the preservation of Exmoor and its heritage including the encouragement of recreation. Since then conservation has formed a large part of the management of the Company.”
Thus it owns considerable land in the area, including the freehold of nearby Brendon Common, and a large portfolio of sporting rights. It is also registered as owner of Ilkerton Ridge in the Ownership Section established under the Commons Registration Act 1965 (“the 1965 Act”), and the effect of this registration forms one of the issues in the case. Generally, the Respondent works very closely with the Exmoor National Park and other public authorities in preserving and protecting the local environment, for which it manifestly has a strong sense of responsibility. It seems that in the past, and for a variety of reasons, Mr Mellstrom and the Respondent have not seen eye-to-eye in regard to the management of Ilkerton Ridge, which might go some way towards explaining this dispute. It did not appear to me that the soil of Ilkerton Ridge, subject as it is to rights of common, and third party enjoyment of the sporting and manorial rights, could have much intrinsic value.
THE PAPER TITLES
3. I shall now describe the parties’ respective paper titles. The Applicants, as I have said, rely on the 2004 Conveyance as forming their root of title. This contains (inter alia) the following recital:
“(1) Dame Frances Gertrude Carew was seised of the Manor or reputed Manor of Woolhanger otherwise known as Woolanger or Wolhanger or otherwise known as Lyn and Linton in the County of Devon including the Lordship of the said Manor or reputed Manor and all rights property and privileges attaching thereto in fee simple”.
The devolution of title from Lady Gertrude Carew to the vendors Sir Rivers Carew and his son Gerald is then recited. The operative part of the conveyance reads as follows:
“In consideration of the sum of Eight Thousand Pounds paid by the Mellstroms to Gerald Carew at the request of Sir Rivers Carew…Sir Rivers….and Gerald Carew….hereby convey to The Mellstroms all that the Manor or reputed Manor of Woolhanger otherwise known as Woolanger or Wolhanger or otherwise known as Lyn and Linton in the County of Devon together with the Lordship of the said Manor or reputed Manor and all other rights property and privileges attached to the said Manor or reputed Manor and Lordship to hold the same unto The Mellstroms in fee simple”.
The Applicants’ case is that Ilkerton Ridge has always formed part of the manorial waste of the ancient Manor of Woolhanger. It is said to be waste, rather than demesne land, since it is acknowledged to be subject to rights of common. In order to succeed on their application, therefore, the Applicants must first establish, as a matter of fact, that Ilkerton Ridge does form part of the Manor of Woolhanger. If this fact is established, the Applicants also have to show, on the balance of probabilities, that Lady Gertrude Carew was (as the 2004 Conveyance recites) seised of the Manor, and that she had not disposed of it prior to her death.
4. The Respondent’s title derives from the 1958 Conveyance, by the Public Trustee, who was appointed as the executor of the Will dated 10th May 1946 of one Sam Slater, a former Master of the Exmoor Foxhounds. The operative part of the 1958 Conveyance is as follows:
“In consideration of the sum of SEVENTY-FIVE POUNDS….the Vendor as Personal Representative……hereby conveys unto the Company ALL THOSE sporting and manorial rights hitherto enjoyed over certain land …..known as Ilkerton Ridge TO HOLD the same unto the Company in fee simple”.
By clause 2 there is an acknowledgment for production of a Conveyance by Lady Gertrude Carew (1) to Sam Slater (2) dated 20th June 1905 (“the 1905 Conveyance”), which formed the Respondent’s root of title. No copy of the 1905 Conveyance is available to either party, and its contents have been based on the abstract of title prepared in 1958, two copies of which have survived. The material parts of the abstracted conveyance are as follows. The conveyance to Sam Slater from Lady Getrude Carew related to
“ALL THOSE Manors, lands, messuages, farms, tenements, hdts and premises situate in the Parish of Lynton in County of Devon and in Parish of Brendon in County of Somerset and known as the Woolhanger Manor Estate more parly descb in Schedule thereunto written and delineated on plan thereof drawn thereon and edged red”.
The words “inter alia” appear underneath “The Schedule”, suggesting that other land was included in the 1905 Conveyance, but not referred to in the abstract. The Schedule refers to three parcels of land. First, Thornworthy Farm. Secondly “Sporting and other Manorial rights on Ilkerton Ridge”, the occupier whereof is stated to be Lady Carew. Finally, the Exmoor Allotment. It is also apparent that the “Woolhanger Manor Estate” – which, I suggest, was a marketing shorthand rather than a legal description – included more than one ancient Manor.
5. It will be seen that, on the face of it, the Respondent only acquired “Sporting and other Manorial rights over Ilkerton Ridge” as opposed to the land itself. That is the Applicants’ case. Indeed, as I have stated, the Respondent’s original application to the Land Registry was limited to “sporting and manorial rights”. However, the Statutory Declaration in support, made by Mr Jeremy Holtom, a Chartered Surveyor and former Company Secretary of the Respondent company, declared that: “The Company’s attitude is that it is the de facto owner of the manorial waste of Ilkerton Ridge and that effectively the only rights owned by other parties over Ilkerton Ridge are those various Commons Rights which belong to adjoining landowners…….I verily believe that the land shown edged red on the said plan is the land that is the subject of the Conveyance of the 25th October 1958 and that the Company is the proper owner of the Manorial and Sporting Rights over this.” This statement embodies the Respondent’s case that the grant of all the sporting and manorial rights – effectively, the full beneficial enjoyment of Ilkerton Ridge – necessarily carries with it the freehold title to the land as manorial waste. The Respondent’s root of title – the 1905 Conveyance – predates the Applicant’s title. If the Respondent is right, and Sam Slater acquired the freehold of Ilkerton Ridge in 1905, clearly the Applicants could not have acquired it in 2004. Accordingly, the dispute between the parties also requires me to construe the 1905 and 1958 Conveyances, and to reach a conclusion as to their true meaning and effect.
THE ISSUES - TITLE
6. Counsel have helpfully co-operated in formulating an agreed list of issues and sub-issues, which divide into four separate categories. These are: (a) title; (b) known transactions with Ilkerton Ridge; (c) adverse possession, and (d) the effect of registration under the 1965 Act. The Respondent seeks to argue that that an additional issue should be determined, namely whether the Applicants are the Lords of the Manor of Woolhanger, or whether the Lordship was conveyed to Sam Slater in 1905. The Applicants contend that this is not an issue before me and I should not determine it. The title of Lord of the Manor is not registrable under the LRA 2002, and neither party has sought to register it. The Applicants’ case does not depend on their being the Lords of the Manor of Woolhanger – merely on being the owners of the waste land of the Manor. In the circumstances, I do not consider that it is necessary to determine the ownership of the title, as opposed to the land, and indeed such an exercise would represent an unnecessary diversion. Rather than repeat Counsel’s formulation, it seems to me that the issues as to title can be further simplified. With regard to the Applicants’ title, they are relying entirely on the 2004 Conveyance of “the Manor or reputed Manor of Woolhanger……..together with the Lordship of the said Manor…and all other rights property and privileges attached to the said Manor..”. They contend that Ilkerton Ridge forms the waste land of the Manor and in that capacity alone passed under this conveyance. The 2004 Conveyance does not purport to convey or even refer to Ilkerton Ridge as such - if it passes at all, it can only pass as an adjunct to the Manor of Woolhanger. The Applicants must therefore satisfy me with regard to two matters. First, that the grantors under the 2004 Conveyance had a good title to the Manor. This necessarily requires the Applicants to prove that Lady Carew had title to the Manor , and that it devolved to the Grantors under the 2004 Conveyance. Secondly, they must prove that Ilkerton Ridge forms part of the waste land of the Manor and did so at the time of the 2004 Conveyance. These represent the first two issues.
THE ISSUES - ADVERSE POSSESSION AND COMMONS REGISTRATION
7 If the Respondent is unable to rely on a paper title to Ilkerton Ridge, it also seeks to rely on the Limitation Act 1980. Although Counsel have broken the issue of adverse possession down into 6 separate sub-issues, essentially there are only two. First, has the Respondent been in factual possession of the Property for a continuous period of at least 12 years expiring before 13th October 2003? Mr Warner, for the Respondent, accepts that he must prove that the paper title had become barred prior to the coming into force of the LRA 2002. Secondly, and assuming that the Respondent can prove factual possession, did it have the necessary animus possidendi for the same period? I shall consider the relevant law in due course. This represents the third issue. Further, as previously stated, in 1968 the Respondent applied for registration of Ilkerton Ridge in the Ownership Section of the Commons Register, established under the 1965 Act. The application was unopposed, and the provisional registration dated 6th June 1968 was made final on 1st October 1970. The Respondent contends that this registration is final and conclusive, and that it is not possible to go behind it for the purposes of this adjudication. On the other side, the Applicants argue that, on the true construction of the relevant sections of the 1965 Act, the Respondent’s registration is defeasible by a registration of title under the LRA 2002. Accordingly, there is a fourth issue between the parties, as to the effect of the registration under the 1965 Act.
ISSUE ONE - DID LADY CAREW OWN THE MANOR OF WOOLHANGER IN 1905?
8. The Grantors under the 2004 Conveyance are claiming through the estate of Lady Gertrude Frances Carew. Sir Rivers Carew, one of the Grantors, made a Statutory Declaration on 27th February 2004 which was designed to reinforce his title. In this document he sets out a little of the history of the Manor of Woolhanger, and how it came into the ownership of Lady Carew. He then describes the descent through the family, and concludes "….I verily believe that I and my son are entitled to the freehold title to the Lordship of the Manor of Woolhanger". Although he refers to the "Lordship of the Manor", in the context of the document as a whole I think that he is actually referring to the Manor itself, of which the title to the Lordship may or may not remain part. There is other evidence which bears on this issue, to which I refer below. In order to succeed, therefore, the Applicants must satisfy me, on the balance of probabilities, (a) that Lady Carew at some point in time became the owner of the Manor, and (b) that she did not dispose of it before her death in 1955. The Respondent's Statement of Case conceded, in terms, that the Applicants have acquired the ownership of the Manor of Woolhanger – see paragraph 19.1. This must necessarily include a concession that Lady Carew owned the Manor of Woolhanger in 1905, and did not dispose of it during her lifetime. However, my understanding of Mr Warner's submissions before me was that he was seeking to resile from this concession. Given that it is for the Applicants to prove their title, I shall not hold the Respondent to it. However, the fact that such a concession was made, after extensive research had been carried out (as detailed in the Statement of Case, settled by Counsel) does to my mind somewhat undermine the Respondent's present stance. The Respondent's title to Ilkerton Ridge, if any, is derived from the 1905 Conveyance to Sam Slater. It is common ground between the parties that Lady Carew was the owner of Ilkerton Ridge in 1905 – although the Respondent does not concede that she was the owner by virtue of her ownership of the Manor of Woolhanger, a submission I shall explain below. For these purposes, however, it matters not. Obviously, if Lady Carew sold Ilkerton Ridge to Sam Slater in 1905, in whatever capacity, the property cannot have remained in her ownership until her death, and cannot have passed to the Applicants in 2004. Accordingly, in considering this aspect of the Applicants' title, it will be necessary to construe the 1905 Conveyance, on the agreed footing that Lady Carew owned Ilkerton Ridge at that time, with a view to ascertaining if it was intended to be included in the sale, whether as manorial waste or otherwise.
ISSUE TWO – WAS ILKERTON RIDGE WASTE OF WOOLHANGER MANOR?
9. With regard to the second point, and assuming that the Applicants are able to establish that Lady Carew owned the Manor of Woolhanger and did not dispose of Ilkerton Ridge in 1905, they must also establish that Ilkerton Ridge forms part of the waste of the Manor. Although, as I have said, the Respondent concedes (as it is bound to so, since its own title derives from her) that Lady Carew was the owner of Ilkerton Ridge in 1905, it does not concede that she held the land by virtue of her ownership of the Manor of Woolhanger. Mr Warner, for the Respondent, has put forward alternative suggestions as to how the land could have become vested in her, essentially by her family's prior purchase of adjoining lands and/or Manors. Accordingly, the Applicants must prove that Ilkerton Ridge is comprised within the Manor of Woolhanger.
THE CORRECT APPROACH
10. Before I turn to the evidence relating to these title issues, I should explain, in brief, the approach which I believe to be correct in the circumstances of this case. Establishing title to a Manor is of necessity a somewhat hybrid exercise. Since title to a Manor carries with it ownership of land and rights over that land, it must be proved in the same way as any other title to land. On the other hand, in view of the ancient origin of Manors, it is rarely possible to identify their boundaries and composition merely by reference to previous documents of title. As this case itself demonstrates, it will be necessary to look at other sources of historical and related information in order to ascertain whether any particular parcel of land is included within an historic Manor or reputed Manor. That is certainly the approach adopted by both parties in this case and urged by them upon me. Accordingly, in seeking to resolve whether Lady Carew was the owner of Woolhanger Manor, and whether Ilkerton Ridge formed part of it, I have had regard to the wide range of information that has been placed before me through the diligent researches of the parties and their lawyers. However, such an approach is not of course appropriate, or permissible, when dealing with the construction of known documents of title. In particular, the three principal documents of title in this case, being the 1905 Conveyance (in abstract form), the 1958 Conveyance and the 2004 Conveyance. In construing documents of title I may of course have regard to the surrounding circumstances - including evidence of reputation - and factual matrix. However, it is only if the document is unclear or ambiguous that I am entitled to have regard to extrinsic or extraneous evidence, as defined in the relevant authorities. I shall discuss the ambit of "surrounding circumstances" and "extrinsic evidence" later in this Decision. I think it is necessary to make this point, since it appeared to me from the way that the case was presented, on both sides, that the parties were in danger of losing sight of this important distinction.
THE APPLICANTS’ TITLE
11. The Applicants rely principally on the researches published in book form in 1906 by the Rev J.F Chanter ("Chanter"): in the words of Counsel's Skeleton Argument "The history of this manor is summarised in [Chanter's book]. The key point is that, in 1803, the manor was sold to Walter Lock, and it passed from there to the Roe family and then to the Carew family". It seems that this book constituted the Reverend Chanter’s historical research for the Devonshire Association, which was the publisher. Both parties rely on this book as setting out the relevant history of the Manor of Woolhanger. The material passages read as follows:
"The manor of Woolhanger or Willanger, as it was generally called till the last century, is practically identical with the "Domesday" manor of Incrinton. Incrinton is a variant of Ilkerton, a holding which formed the principal part of the manor; but later, as Ilkerton became much subdivided, the name of Willanger was given it from the then largest holding. It lies in the angle formed by the stream that comes down through Ranscombe to Cherrybridge and the Fursehill stream to Cherrybridge, though part of Sparhanger, which lies on the other side of Fursehill water, was also part of the manor. The members of it being Great Willanger, Little Willanger, East Ilkerton, West Ilkerton, Barham, High Bullen, Low Bullen, Thornworthy or Thornhay, Radespray now Ratsbury, and Sparhanger…………….Rober Harding, the survivor, sold the manor in 1801 to Charles Pugsley, and in 1803 it was sold by Pugsley to Walter Lock, and by the Locks settled on Mrs Roe and her children, came by this settlement to Frances Gertrude, youngest daughter of Robert Roe, who married Sir Henry Palk-Carew, Bt., and it has recently been sold by them to Mr.Slater."
12. Leaving aside for the moment whether Ilkerton Ridge actually falls within the geographical boundaries of Woolhanger Manor as described by Chanter, his conclusion that the manor came into the ownership of Lady Carew is unequivocal. In support of this piece of historical research, the Applicants rely on the following documents:
12.1 An agreement dated 1758 relating to the Manor of Woolhanger and Lynton, which suggests that the total area of the manor was 2150 acres;
12.2 A partial Abstract of title which appears to relate to the Manor of Lynton;
12.3 A draft of the 1803 Conveyance from Pugsley to Lock, which is consistent with Chanter's reference to this transaction;
12.4 A tithe record of 1839 which relates to some 600 (unidentified) acres in the ownership of the Reverend Roe
12.5 A Statement to the Inhabitants and Visitors of Lynton dated 1858, obtained from the Devon Public Record Office. This relates to a proposed scheme for the inclosure of part of Lynton Common, then in the ownership of the Reverend Roe. I shall consider this document further when dealing with the second issue, namely whether Ilkerton Ridge is included within Woolhanger Manor. This document refers exclusively to the Manor of Lynton, not Woolhanger, and does not assist in determining the ownership of the Manor of Woolhanger.
12.6 The will dated 17th October 1871 of Robert Lock-Roe. This does not contain any reference to Woolhanger Manor as such, although there is reference to "…leasehold and freehold manors…situated in the parishes of Lynton and Countisbury and elsewhere……".
12.7 Draft Mortgage dated 1897. This does not identify or refer to Woolhanger Manor.
13. In addition to these title documents, or other historical records, the Applicants rely on four additional documents, namely:
13.1 Auction particulars dated August 18th 1897.
This relates to an Auction of land in the Parishes of Lynton and Exmoor at the direction of Lady Carew. This is accompanied by a detailed plan showing the Lots, the plan being entitled "East Ilkerton Estate". Lot 7 is described as follows: "ALL THAT COMPACT FREEHOLD FARM KNOWN AS EAST ILKERTON…….together with the Rights of Pasturage and Turbary and the MANORIAL RIGHTS over the adjacent Common of 607a.2r.5p., or thereabouts." In the Schedule to Lot 7 the acreage is related to the OS field numbers, and there is a reference to "Manorial Rights over" numbers 354 and 27. It is apparent from the Plan that OS 354 is the northern section of Ilkerton Ridge, and OS 27 the southern and largest section. It is apparent from a contemporaneous newspaper article provided by the Applicants that Lot 7 did not find a buyer at this auction.
13.2 Auction particulars dated 17th July 1903.
The Auction relates to "…….AN EXCEPTIONALLY ATTRACTIVE Sporting and Residential Estate known as Woolhanger Manor". Lot 4 consists of "A DESIRABLE PROPERTY Situate in the Parish of Lynton, and adjoining the main road leading from Cherry Bridge to Simonsbath. It includes Sporting and Manorial Rights on Ilkerton Ridge, Extending over an area of about 728a.3r.36p…..". In addition to this parcel, the Lot also included the area of 200 acres, to the south of Ilkerton Ridge, and known as the Exmoor Allotment. The Summary of Lot 4 refers to "Sporting and Manorial Rights" over 728 acres. The Plan attached to the Auction Particulars identifies Lot 4 as Ilkerton Ridge, although the parcel is more than 100 acres larger than that which was offered for sale as Lot 7 in the abortive 1897 sale. In this sense, the description of Lot 4 is not consistent with that contained in Lot 7 of the 1897 Auction Particulars. In 1897 two parcels were offered, OS 354 (64 acres or so) and OS 27 (542 acres), making a total of 607 acres. In 1903 three separate parcels are offered. OS 354 is shown as having 121 acres, OS 23 with 64 acres, and OS 27 with 542 acres. Looking at both plans, the total area of Lot 3 and Lot 7, as regards the manorial rights, appears identical. This discrepancy does not necessarily make any difference to the issue, but demonstrates the difficulty of resolving title issues where the available material is both old and indirect.
13.3 The 1905 Conveyance
I have already referred to this document, which is only available in abstracted form, and which is relied upon by both parties. In the present context, the Applicants say that it evidences a grant, by Lady Carew, of manorial rights over Ilkerton Ridge, which is described as being part of the "Woolhanger Manor Estate". It follows, they argue, that Lady Carew owned the Manor of Woolhanger at that time.
13.4 The Statutory Declaration of Sir Rivers Carew
I have already described the material contents of this document, which forms part of the Applicants' title.
ILKERTON RIDGE – THE GEOGRAPHY
14. Based on Chanter's book, as supported by the documents I have referred to, the Applicants contend that Lady Carew was, as at 1905, possessed of the Manor of Woolhanger. They must also establish that Ilkerton Ridge was included within the Manor of Woolhanger when it vested in Lady Carew, and that there was no subsequent disposal of it prior to her death. They rely on the documents that I have identified above, and other evidence. Principally, however, they rely on the description of Woolhanger Manor in Chanter's book. Before I consider the evidence provided by the Applicants, I shall describe the geographical location of Ilkerton Ridge itself. The land consists of open, internally unfenced moorland, forming part of the northern edge of Exmoor, and lying just to the north of the Devon-Somerset county boundary. Ilkerton Ridge, which is fenced on all sides, is an elongated triangle. The apex of the triangle is to the north, and is formed by a Cattle Grid on the road between Cherrybridge and Shallowford immediately to the east of High Bullen. The western side of the triangle continues past High Bullen, West Ilkerton and Thornworthy, at which point the boundary meets the Cherrybridge-Shallowford road. This side of the triangle is then formed by the road, which runs south past Thornworthy (to the west), Shallowford, Thornworthy Common (part of Ilkerton Ridge) and as far as a feature known as Saddle Stone lying on the county boundary line. Immediately to the south of the county boundary lies the holding owned by the Applicants and known as the Exmoor Allotment. From Saddle Stone the southern side of the triangle follows the county boundary eastwards until it meets a stream known as Warcombe Water. Initially, the eastern side of the triangle more or less follows the course of Warcombe Water, which runs in a north-westerly direction until it enters West Lyn River. Close to South Furzehill the boundary fence begins to run to the west of the stream, and then continues in a generally north-westerly direction, past North Furzehill, Radsbury, and South Sparshanger, until it meets the apex at the Cattle Grid referred to above.
CHANTER’S DESCRIPTION
15. I have already set out the geographical description of Woolhanger Manor which was given by Chanter in his book. As the Respondent points out, Chanter's description does not coincide with the present-day location of Ilkerton Ridge. It is true that there is some consistency in regard to the northern portion of Ilkerton Ridge. According to Chanter the Manor "…. lies in the angle formed by the stream that comes down through Ranscombe to Cherrybridge and the Fursehill stream to Cherrybridge, though part of Sparhanger, which lies on the other side of Fursehill water, was also part of the manor. The members of it being Great Willanger, Little Willanger, East Ilkerton, West Ilkerton, Barham, High Bullen, Low Bullen, Thornworthy or Thornhay, Radespray now Ratsbury, and Sparhanger." Although the Cattle Grid is some distance south of the confluence of the two streams at Cherrybridge, the northern section of Ilkerton Ridge abuts the places specifically referred to. However, Chanter does not mention any location south of Thornworthy and Radsbury. By my (rough) estimate, some four-fifths of Ilkerton Ridge lies to the south of these places. Chanter does not mention any other names or places which might identify the southern section of Ilkerton Ridge. Shallowford, and North and South Furzehill, are if anything closer to Ilkerton Ridge than the locations mentioned by Chanter. Barham Hill, for instance, is some distance from Ilkerton Ridge. As a result of this discrepancy, Mr Warner, for the Respondent, argues that no part of Ilkerton Ridge is included within Woolhanger Manor. He submits that the description given by Chanter more readily applies to the land surrounding the northern end of Ilkerton Ridge, both to the west and to the east, in the area occupied by the villages of East and West Ilkerton. Ms Tozer, for the Applicants, submitted that the “Thornhay” mentioned by Chanter could refer to “Thorn Hill”, which lies on the Devon-Somerset boundary, but this cannot in my view be correct. Chanter himself refers to “Thornworthy or Thornhay” – so Thornhay is merely an alternative form or Thornworthy. Accordingly, it is a fact that none of the place names mentioned by Chanter appears to relate to the principal section of Ilkerton Ridge. It may or may not be of significance that both sets of Auction Particulars identify two separate sections of Ilkerton Ridge, numbered OS 354 (64 acres (1897) or 121 acres (1903), being the northernmost section) and OS 27 (542 acres) being the southern section. This fact might suggest that the land was at one point in separate ownership. It is the northern section of Ilkerton Ridge, corresponding to OS Field 354, which most closely follows Chanter’s description of Woolhanger Manor.
THE APPLICANTS’ CASE
16. In support of the Applicants’ case, Ms Tozer also relies on two other matters. First, the contents of the Letter described at paragraph 12.5 above. In particular, this extract from the letter written on April 10th 1850 by Reverend Thomas Roe (owner of the Manor of Woolhanger) to Mr Charles Bailey, who was trying to gain support for the enclosure of local common land. The passage in question reads as follows:
“If you will have the goodness to look at the map of Lynton you will see that the largest quantity and the most valuable parts of [the commons of Lynton] are private property, belonging to different estates and would not be under the influence of the Commissioners. This, to begin from the west – there is ground belonging to Caffins, which is the best part of Lynton Common – then that belonging to New Mill. To the eastward of these, the Commons of West Ilkerton and Woolhanger – further to the east, the Common of Thornworthy – the valuable Commons belonging to the two Furzehills – and lastly the Common of Stock. These all being private grounds belonging to the estates, there would remain for division under the Commissioners – the portion of Lynton Common not belonging to Caffins or New Mill, which is but small in quantity and of a poor quality – Ilkerton Common, from which for a long series of years, so much turf has been cut for fuel as to render ground, originally poor, of no use for cultivation from the village of Ilkerton almost to Shallowford. From thence, up to the boundary of my allotment on Exmoor, there is some good land. We next come to Lyn Down, which like Ilkerton Common, originally poor, has been so skinned over for fuel, that it also is of little value for purposes of cultivation.”
Ms Tozer’ submissions are as follows. She begins by pointing out that – according to Chanter – Reverend Roe was the owner of Woolhanger Manor at this time. She highlights his distinction between the land described as “private property” – firstly described – and the remaining land secondly described, including Ilkerton Common. She submits that the land firstly described is demesne land – not subject to common rights and not capable of inclosure – and the land secondly described is waste land, subject to the Inclosure Acts. She further submits that, by implication at least, Reverend Roe is asserting ownership of the whole of Ilkerton Ridge, by reference to the following passage: “Ilkerton Common, from which for a long series of years, so much turf has been cut for fuel as to render ground, originally poor, of no use for cultivation from the village of Ilkerton almost to Shallowford. From thence, up to the boundary of my allotment on Exmoor, there is some good land “. She invites me to read this as indicating that the area from Shallowford to the county boundary forms part of Ilkerton Common, in the ownership of Reverend Roe, as part of Woolhanger Manor. I would make four points in relation to this document. First, it is not easy to explain why the alleged demesne land is described as being part of the Commons of Lynton – the essence of demesne land being that it is not subject to common rights. Secondly, Reverend Roe does not in terms state that he is the owner of Ilkerton Common. He is making a general point that the land available for inclosure is of poor quality, and this land includes for example, Lyn Down which on any footing is not within the Manor of Woolhanger. Thirdly, as Mr Warner point out, at the date of this letter Reverend Roe, or his wife, owned more than one Manor. Finally, Reverend Roe refers to Thornworthy Common. On the present-day Ordnance Survey map, and indeed on the Plans attached to the Auction particulars, this is shown as forming the south western portion of Ilkerton Ridge itself.
17. The second matter which Ms Tozer draws to my attention concerns the registration of rights of common over Ilkerton Ridge under the 1965 Act. The Register unit CL151 consists of “The tract of land called Ilkerton Ridge, including Thornworthy Common, in the Urban District of Lynton…..”. 26 separate rights of common have been registered over Ilkerton Ridge, including grazing rights, turbary and estovers. Ms Tozer points out that the lands benefited by these rights of common are almost identical to the places named by Chanter as falling within Woolhanger Manor. There are exceptions – South Stock farm, for example, which appears to be in the manor of Lyn – but generally the point is valid. However, it may also be noted that these farms are geographically contiguous to Ilkerton Ridge, and it is perhaps unsurprising that they have acquired the benefit of rights over it. Furthermore, the doctrine of vicinage, to which I refer below, may qualify the situation.
18. On the basis of the documents and other evidence which I have set out above, the Applicants therefore contend that they have established that Ilkerton Common has always formed part of the waste land of the Manor of Woolhanger. They also contend that Lady Carew was seised of the Manor during her lifetime, and did not dispose of it, or of Ilkerton Ridge separately, at any time prior to her death. If this is right, on the face of it they are entitled to be registered as proprietors of the freehold estate. However, it is known that in 1905 Lady Carew disposed of some of her land holdings in the area, by sale to Sam Slater. This instrument is the Respondent’s claimed root of title to the freehold of Ilkerton Ridge. I must therefore construe this document, in the course of deciding both the Applicants’ and the Respondent’s claim to the freehold. When I have concluded my analysis of the parties’ respective paper titles, I shall give my conclusions.
RELEVANT LAW RELATING TO MANORS
19. Before I consider the documents of title, it might be helpful if I summarise, very briefly, the relevant law relating to Manors. In this connection, Ms Tozer referred me to Jessel’s The Law of the Manor (1998) at pp. 156-163, and 426, and to Chapter 2 of Megarry & Wade’s The Law of Real Property (7th ed.), which provides an historical survey of land tenures since the Norman Conquest. She also referred me to the Land Registry’s Practice Guide relating to Manors, at paragraph 4.1. In turn, Mr Warner relied on a speech of Lord Templeman in Hampshire County Council v Milburn [1991] 1 AC 325 at 338C, which contains a useful summary of the law of Manors, and to a passage in Halsbury’s Laws Vol 12 (1) at paragraph 708, which discusses the method of conveying manors and land comprised therein. Both Counsel also drew my attention to the provisions of section 6(3) of the Conveyancing Act 1881, re-enacted as section 62(3) of the Law of Property Act 1925. It is in these terms:
“A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, undrwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quit-rents, rentcharge, rents seck, rents of assize, fee farm rents, services, royalties, jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and herditaments whatsoever, to the manor appertaining or reputed to appertain, or at the time of conveyance demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof.”
Section 6(4) of the 1881 Act (section 62(4) LPA 1925) reads as follows:
“This section applies only if and so far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.”
20. Having regard to the above, and for the purposes of this adjudication, I think that I can summarise the relevant propositions of manorial law as follows:
20.1 A Manor is a bundle of various items of property, both corporeal and incorporeal;
20.2 In terms of corporeal property, it will normally include demesne land and waste land.
20.3 Demesne land is in effect land enjoyed by the Lord of the Manor free of any third party rights.
20.4 Waste land will include land subject to rights of common, and also any residue of land in the manor, such as roadside verges, to which no-one can make a better title.
20.5 In terms of incorporeal property, these include sporting rights, the right to mines and minerals, and a variety of additional rights such as the right to hold markets and fairs. The list of rights set out at section 62(3) of the LPA 1925 is comprehensive.
20.6 A conveyance of a Manor will, by the general words implied by statute, but subject always to a contrary intention being expressed, carry with it any land comprised within the Manor, including waste land.
20.7 Land and rights comprised within a single Manor may be severed and disposed of separately. The title of Lord of the Manor may also be disposed of in isolation from the Manor itself.
20.8 The same parcel of land may form part of two manors.
These are the propositions that I shall have in mind when I construe the title documents in this case.
THE 1905 CONVEYANCE
21. I have already set out the material terms of the conveyance to Sam Slater from Lady Carew, as abstracted. It will be recalled that it related to “ALL THOSE Manors, lands, messuages, farms, tenements, hdts and premises situate in the Parish of Lynton in County of Devon and in Parish of Brendon in County of Somerset and known as the Woolhanger Manor Estate more parly descb in Schedule thereunto written and delineated on plan thereof drawn thereon and edged red”. The Schedule refers to three parcels of land, including “Sporting and other Manorial rights on Ilkerton Ridge”, the occupier whereof is stated to be Lady Carew. Ms Tozer’s straightforward submission is that the conveyance does no more than it says – it is a conveyance of sporting and manorial rights over the land, and not a conveyance of the land itself. She points to the fact that the Schedule also includes two other parcels, namely Thornworthy Farm and Exmoor Allotment, and contrasts their description with that of that of “…. rights on Ilkerton Ridge…”. She submits that it was clearly intended to limit the conveyance to the grant of certain rights over the land, and if it had been intended to convey the soil in the land itself the Schedule would have referred to “Ilkerton Ridge”, as opposed to “rights on Ilkerton Ridge”. The general words of the parcels clause do, of course, refer to “ALL THOSE Manors, lands, messuages, farms, tenements, hdts and premises ……..known as the Woolhanger Manor Estate”, which would be sufficient to convey the freehold of any land comprised in the conveyance. Ms Tozrer’s answer is that these general words must be qualified by the following words, namely “more parly descb in Schedule” – i.e more particularly described in the Schedule. This would be sufficient to amount to a contrary intention for the purposes of section 6(4) of the 1881 Conveyancing Act. She argues that the Schedule limits the scope of the general grant and that only rights over Ilkerton Ridge passed under the Conveyance. She also refers me to the 1903 Auction Particulars which, she submits, is sufficiently connected with the conveyance itself to be regarded as part of the admissible background. The Particulars, of course, refer to Sporting and Manorial rights on Ilkerton Ridge, a formulation that is reflected in the Schedule to the conveyance.
THE RESPONDENT’S CASE ON THE 1905 CONVEYANCE
22. Mr Warner, on behalf of the Respondent, makes a number of submissions in relation to the 1905 Conveyance. His principal submission as regards construction is that a grant of Sporting and Manorial rights over waste land of a Manor is a grant of all beneficial enjoyment of that land and, accordingly, is equivalent to a grant of the fee simple. He also points to the general words in the parcels clause – “ALL THOSE Manors, lands, messuages, farms, tenements, hdts and premises ……..known as the Woolhanger Manor Estate” – and submits that this carries the soil of the waste land as well as the rights over it. However, his primary submission is that the meaning and effect of the 1905 Conveyance can be ascertained from a document that came into existence some five years later. Before I explain this submission in more detail, I ought to set out my understanding of the relevant principles of construction. The correct approach to construction is summarised by Lord Hoffman in the well-known passage at page 913H in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 as follows:
"Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract".
Accordingly, it is possible to have regard to the “background knowledge” available to the parties at the time of the agreement, or other transaction, in question. In the case of a conveyance, this would necessarily include, I consider, the physical situation of the land in question, and evidence of reputation and reputed ownership. The remarks of Sir John Pennycuick in St Edmundsbury v Clark (No 2) [1975] 1 WLR 468 at 477 C-F, in relation to the need to consider the surrounding circumstances when construing a conveyance, are also in point, a view which was strongly supported in Alan Wibberley Building v Insley [1999] 1 WLR 894.
ADMISSIBILITY OF EXTRINSIC EVIDENCE
23. Where the instrument to be construed is itself uncertain in meaning, or otherwise ambiguous, extrinsic or extraneous evidence may be admitted to assist in ascertaining the intentions of the parties. This may, in appropriate circumstances, include events occurring after the date of the conveyance itself, provided that these are of probative value and assist in identifying the intentions of the parties to the instrument. In the recent case of Ali v Lane [2006] EWCA Civ 1532 Carnwath LJ considered the authorities and concluded as follows:
“36. The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to the evidence being of probative value in determining what the parties intended.
37. The qualification is crucial. When one speaks of “probative value” it is important to be clear what needs to be proved. In this case the issue concerns the line of a boundary which was fixed not later than 1947. Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related to, physical features which were in existence in 1947. Similarly, evidence of Mr Attridge Senior’s understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value , even if admissible. Such evidence begs the question whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, having regard to the disused state of the disputed land during that period.
38. I would add that in principle reference to the intentions of the parties means the parties to the original conveyance. …….In none of the cases reviewed above was account taken of the conduct of subsequent owners. Megarry J might possibly have been willing to go further. Where the evidence of the intentions of the original parties is unclear, long and unchallenged usage may, as he said, be “…good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done..” I do not read that as necessarily confined to long usage by the original parties. We do not need to decide if that is a permissible extension of the Watcham principle. It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary. That is not this case. The unilateral actions of the owner of one side (Mr Attridge) could not be relied on as binding on the owner of the other.”
It is true to say that the modern tendency is to admit extrinsic evidence, if it is not possible to ascribe a meaning to the instrument from within the four corners of the document itself. Equally, however, as the passage in Ali v Lane makes clear, the admissibility of such evidence will depend on its probative value.
THE FIELD BOOK ENTRIES – FINANCE ACT 1910
24. In the present case, Mr Warner relies heavily on certain Field Book entries made pursuant to the Finance Act 1910. In the words of the Respondent’s Statement of Case – “If anything was compelling to prove the Respondent’s case and set at nought the Applicants’ – it is these documents” – at paragraph 50. Mr Warner has helpfully referred me to an article from the Rights of Way Law Review, by Ms Zara Bowles, at section 9.3, which explains the purpose of the Finance Act 1910 and the valuation machinery set up thereunder. For those whose practice includes consideration of public rights of way, the citation of Finance Act 1910 survey results is very familiar, since it is one of the recognised ways of proving the existence or non-existence of such public rights. The Act provided for the levying of a tax upon the incremental value of land, such tax to be paid every time that the land changed hands. It might be characterised as a precursor to Capital Gains Tax, although the Act was repealed in 1920. In order to provide a base value for all land in the UK, the Board of Inland Revenue was required to ascertain the site value of all such land as at 30th April 1909. To that end, local Valuers were instructed to inspect all land in their area, to plot and record that land, to give every holding a number, and to enter ownership and occupation details for each parcel. This information was entered in Field Books. Before the valuation details were finalised, the individual owners were given a chance to object. The evidential values of these records in relation to rights of way has been recognised by the Divisional Court in Loder v Gaden and Gaden 78 P & CR 223. In the present case, research has been carried out into the Field Books relating to Ilkerton Ridge, which are available for inspection at the Public Record Office. Ilkerton Ridge is given the reference 566. It is described thus:
Situation Ilkerton Ridge
Description Common
Extent 729. 2. 4
Occupiers Commoners
Owner S Slater Esq
Interest of owner
Superior Interests
Particulars, description and notes made on inspection
Lot 4 at Woolhanger Manor Sale Particulars Sale held 17th July 1905
A big tract of common being a good run for sheep and Exmoor Ponies. Plenty of water. Adjoining owners have rights of pasturage and turbary
Under the valuation section, a net annual value of £325 is given, calculated by adding the total value of the Sporting and “Lord of Manor’s rights” and deducting the value of the commoners’ rights. Mr Warner submits that the ownership of Ilkerton Ridge in 1909 can be ascertained from this record, and the owner was Sam Slater, and not Lady Carew. Accordingly, he concludes that the 1905 Conveyance was sufficient to convey the soil of Ilkerton Ridge as well as the manorial and other rights over it.
25. In making this submission I fear that Mr Warner has give insufficient attention to the basic principles of construction, as set out above. In particular, this type of evidence is simply inadmissible, unless the intentions of the parties to the 1905 Conveyance are unclear having regard to the terms of the document. In the case of a claimed public highway, historical and archival material (Tithe Maps are another example) is readily admitted in order to establish whether a particular road or way was at some time regarded as in public use. This is essentially an exercise in historical research, based on the legal maxim “Once a highway always a highway”. However, where a person’s title to land is based on a known transaction, the purpose of the exercise is to construe the title document in accordance with the usual principles. Before the Finance Act 1910 material becomes admissible, I must first decide if it possible to ascertain the parties’ intentions under the 1905 Conveyance without reference to it. Is it ambiguous or unclear?
THE TRUE CONSTRUCTION OF THE 1905 CONVEYANCE
26. In my judgment the 1905 Conveyance – albeit that the full document is not available, and it is necessary to rely on an abstract prepared by a conveyancer who had inspected the original – is clear on its face. Although the parcels clause opens with the words “ALL THOSE Manors, lands, messuages…….”, the generality of this introduction is cut down by the words “more particularly described” in the Schedule. Clearly, Lady Carew was disposing of a considerable amount of land, situated both in Lynton and Brendon Parishes, and there may well have been other Manors included in the sale. It is clear from Chanter that the Roe family owned several Manors in the area. What is inescapable, however, is that the parties chose to identify the parcel relating to Ilkerton Risge as “Sporting and Manorial Rights on Ilkerton Ridge”. I agree with Ms Tozer’s simple point that if it had been intended to dispose of the soil in Ilkerton Ridge, in contradistinction to rights over it, these words would not have been used. In my judgment there is no tension between the opening, general, words and the terms of the Schedule. Accordingly, there is no ambiguity in the conveyance, and on that basis it is not permissible to introduce extrinsic evidence as an aid to construction.
28. Again, if I should be wrong about that, and the Field Book entries are admissible, do they assist me in reaching a conclusion as to the parties’ intentions in 1905? The Applicants draw attention to a particular omission in the entry for unit 566, Ilkerton Ridge. Mr Steel, the Applicant’s solicitor, has produced a sample of other entries relating to land owned by Sam Slater in the vicinity of Woolhanger, which he exhibits to his witness statement. He points out that in all of these Field Book entries the section “Interest of owner” has been completed – either with the letter “F” to denote freehold, or with either “Freehold” or “Leasehold”. The one exception, as far as Mr Steel could ascertain from his researches – which he accepted were not exhaustive – related to unit 566, Ilkerton Ridge. Here, although the Owner is stated to be S. Slater Esq, the “Interest of Owner” section has been left blank. The Applicants invite me to infer that this omission is significant, and demonstrates that Mr Slater was not considerdd to be the freehold owner of Ilkerton Ridge. Mr Warner, for the Respondent, has an answer to this. He draws my attention to the fact that in all but one of these cases, the land is occupied by a tenant. Ilkerton Ridge was occupied by Commoners. Accordingly, he argues that there was no purpose in Mr Slater completing the “Interest of Owner” section since he was clearly the freehold owner.
29. In my judgment, the use of the Field Books as an aid to construing the 1905 Conveyance demonstrates the difficulties that attend such an approach. On any footing, Mr Slater was as at 1909 the owner of the Sporting and Manorial rights over Ilkerton Ridge. The valuations contained in the Field Book relate to the rights of common, to sporting rights, and to “Lord of Manor’s rights”. The “Market Value of Fee Simple in possession” of the property is stated to be £325. This is a multiplier of annual sporting rights – 5 x £15 – and a multiplier of the Lord of the Manor’s rights – 10 x 25. Of course, the valuation purports to be a valuation of the fee simple in possession – which supports the Respondent’s case. On the other hand, the only values shown are the values of rights over the land – whether common rights, sporting rights, or manorial rights. This would be consistent with the Auction Particulars – referred to in the Field Book – which only refers to rights over Ilkerton Ridge, as opposed to the freehold of the land itself. My conclusion is that the Field Book entry for Ilkerton Ridge is itself equivocal. There are indications that Mr Slater was treated as the owner of the soil. Equally, the absence of a completed entry for the “Interest of owner” section, and the absence of any separate valuation for the soil, as opposed to rights over it, may indicate that Mr Slater was merely treated as the owner of the Sporting and Manorial rights. A situation where the soil of the waste has been severed from the manorial and sporting rights derived from it, is somewhat unusual, and it is not a situation which readily fits into the scheme of the Field Books. All in all, and assuming for the moment that the Field Book entry is admissible as extrinsic evidence, I do not consider that it takes the process of construing the 1905 Conveyance any further. I do not believe that it casts a great deal of light on the intentions of the parties to that conveyance. It falls short of an unequivocal assertion by Mr Slater that he was the owner of the freehold of the soil of Ilkerton Ridge, and is equally consistent with an understanding that he was no more than the owner of the Sporting and Manorial Rights over it. It is of course possible that Mr Slater and the valuer were proceeding on the basis that the freehold itself was worthless and therefore he was the “de facto” (to use Mr Holtom’s phrase) owner of the soil.
CONCLUSIONS WITH REGARD TO PAPER TITLE
30. I do not think there that there can be any real doubt that Lady Carew was the owner of the Manor of Woolhanger in 1905, and that she did not part with the Manor prior to her death. I have held that the 1905 Conveyance did not convey either the Manor of Woolhanger, nor Ilkerton Ridge itself, as opposed to sporting and manorial rights over it. In my judgment, it therefore follows that if Ilkerton Ridge has always been comprised within the Manor of Woolhanger, it will have passed to the Applicants under the 2004 Conveyance. That deals with the first issue identified by me in Paragraph 8 of this Decision. That leaves the second issue relating to the Applicants’ title, namely whether Ilkerton Ridge forms part of the Manor of Woolhanger. Incidentally, although the 2004 Conveyance purports to effect a conveyance of the following: “……Manor of Woolhanger otherwise known as Woolanger or Wolhanger or otherwise known as Lyn and Linton…..”, it is accepted on both sides that there is no evidence that Ilkerton Ridge forms part of any entity known as Lyn or Linton Manor. Certainly, Chanter’s description of Lynton Manor, which is detailed, does not include Ilkerton Ridge. In considering this issue, I bear in mind the guidance given by at pages 115-117 of Jessel’s Law of Manors. This indicates that boundaries between Manors are often indistinct, and a single Manor may extend across more than one Parish. In relation to waste of the Manor, boundaries between one Manor and another were often of little significance, since the cattle of tenants of one Manor were allowed to stray onto the waste of another Manor under the doctrine of vicinage. Generally, Jessel recognises the difficulties that exist in attempting to ascertain precise boundaries of ancient Manorial waste land.
31. In the present case, the following factors might suggest that Ilkerton Ridge is comprised in Woolhanger Manor. First, the fact that Ilkerton Ridge, being subject to rights of common, must inevitably once have formed the waste of a manor. Second, the terms of the 1905 sale, and preceding Auction particulars, indicate that Ilkerton Ridge was subject to manorial rights owned by Lady Carew. Third, the letter from Revd Roe to Mr Bentley appears to refer to Ilkerton Ridge as forming part of Ilkerton Common – “Ilkerton Common, from which for a long series of years, so much turf has been cut for fuel as to render ground, originally poor, of no use for cultivation from the village of Ilkerton almost to Shallowford. From thence, up to the boundary of my allotment on Exmoor, there is some good land”. Fourth, the rights of common registered over Ilkerton Ridge under the 1965 Act relate to properties which are largely referred to by Chanter as forming part of Woolhanger Manor. Fifth, the name Ilkerton is common to both Ilkerton Ridge and Ilkerton Common, and according to Chanter the ancient name for Woolhanger Manor was “…Incrinton, a variant of Ilkerton…”. Sixth, Chanter does not otherwise refer to Ilkerton Ridge as forming part of any other Manor. Seventh, the 1903 Auction Particulars refer to the Woolhanger Manor Estate. On the other hand, as I have explained, the most detailed available description of the components of the Manor, given by Chanter, and based on the terms of the draft 1803 Conveyance, does not refer in terms to any geographical feature to the south of Shallowford and Furzehill. Furthermore, I note that Chanter says this about the name of the Manor: "The manor of Woolhanger or Willanger, as it was generally called till the last century, is practically identical with the "Domesday" manor of Incrinton. Incrinton is a variant of Ilkerton, a holding which formed the principal part of the manor; but later, as Ilkerton became much subdivided, the name of Willanger was given it from the then largest holding" (my underlining). This does not seem to support the submission that Woolhanger Manor includes a defined area of approximately 725 acres, namely Ilkerton Ridge. That would represent a very substantial component of the Manor - certainly larger than the areas which bear the name Woolhanger itself. I also note that the 2004 Conveyance of Woolhanger Manor makes no mention of Ilkerton Ridge. Furthermore, Sir Rivers Carew, the Grantor under the 2004 Conveyance, did not consider that Ilkerton Ridge formed part of the Manor. This appears from his Statutory Declaration dated 30th April 2010, to which no objection was taken, as I understood it, by the Applicants. Although, as I indicated to Counsel, I was not prepared to use this declaration as an aid to the construction of the 2004 Conveyance, for reasons which have been explained above in a different connection, I think I am entitled to have regard to it as part of the corpus of evidence directed to identifying the components of Woolhanger Manor itself. The Applicants have relied on the earlier statutory declaration by Sir Rivers, in which he states that he has carried out considerable research into the history of Woolhanger Manor. They rely on this evidence to support their case that, as a matter of reputation, he believed that his grandmother was the owner of Woolhanger Manor, and retained it in her ownership until her death. I do not see why I should not refer to the later Statutory Declaration, on the same basis, but in relation to the area of the Manor, as opposed to its ownership. I think it has some significance that Sir Rivers – whose family has owned Woolhanger Manor for well over one hundred years – does not believe that Ilkerton Ridge forms part of Woolhanger Manor and never has done. I also bear in mind that, according to Chanter, historically the Manor of Woolhanger has been treated as lying within the Parish of Parracombe, to the west of the Parish of Lynton. This may be indicative of the fact that Ilkerton Ridge itself forms part of a Manor that is not situated within Lynton Parish at all – and Chanter’s research as referred to me relates to the Parish of Lynton, not Parracombe. Taking all these factors into account, I have concluded that the Applicants are unable to satisfy me, on the balance of probabilities, that Ilkerton Ridge was comprised within the Manor of Woolhanger, and therefore that they are entitled to be registered as proprietors thereof. For the reasons that Mr Warner has submitted, it is entirely possible that Ilkerton Ridge formed part of a different Manor, which came into the ownership of Lady Carew by a different route.
32. As to the Respondent’s title, it is in my judgment quite clear that the 1905 Conveyance, whether construed with or without reference to the available extraneous evidence, is not capable of passing anything other than sporting and manorial rights, and not the freehold of the soil itself. The Respondent's claim to a paper title therefore fails, subject to two issues. First, it may be that the Respondent is able to establish a title based on adverse possession. Secondly, it may be that the Respondent's registration as owner under the 1965 Act is, despite any deficiencies in its title, conclusive as to its ownership. It is therefore necessary to consider both these issues.
ADVERSE POSSESSION
33. The Respondent claims, in the event that it cannot make out a paper title to Ilkerton Ridge, that it has acquired a title by way of adverse possession. The legal framework is straightforward. Mr Warner, for the Respondent, has accepted that he must establish that title had been obtained no later than the coming into force of the 2002 Act, namely 13th October 2003. The reason for this cut-off date is said to be that the Applicants’ title – on first registration - would override any interests that were not protected by actual occupation. This is the effect of section 11 of and Schedule 1 to the LRA 2002. Actual occupation for these purposes requires physical possession. Mr Warner, for the Respondent, appeared to accept that the Respondent could not be regarded as being in physical possession. If that is correct, any squatter’s rights (if in the course of acquisition) would not override the Applicants’ title on first registration. I hope I have understood the Respondent’s position correctly. On this basis, the Respondent must establish that it went into adverse possession no later than 13th October 1991 and remained in adverse possession continuously since that date. It would thus have acquired a title prior to the coming into effect of the LRA 2002. In practice, the Respondent claims to have been in adverse possession more or less from 1958 onwards, when it acquired the sporting and manorial rights over the land. I should add that Mr Warner’s concession, if that is what it is, does lead to a curiosity, if I may call it that. In order to succeed in a claim based on adverse possession, the squatter must demonstrate that he has been in factual possession of the land. If the Respondent is accepting, for these purposes, that it was not in physical possession of the land on 13th October 2003, I am not sure what implications it has for the claim generally. This point was not however taken by Ms Tozer, and I have heard no submissions on it, and I think it best to ignore it for present purposes.
34. Ilkerton Ridge is unregistered land, so the relevant legal test is that applicable to unregistered land - a simple application of section 15 of the Limitation Act 1980. Counsel were agreed on the legal principles, as summarised by Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham and others [2003] 1 AC 419. Essentially, the Respondent must show both (a) factual possession, and (b) intention to possess. The following passages at paragraphs 41 to 43 of Pye v Graham illustrate the meaning of these expressions:
“Factual possession
41 In Powell's case Slade J said, at pp 470-471:
"(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.
Intention to possess
(a) To own or to possess?
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 Sir Nathaniel Lindley MR referred to the plaintiff relying on "acts of ownership": see also George Wimpey & Co Ltd v Sohn [1967] Ch 487, 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 LGR 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 Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners "could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi; i e, 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, 471-472 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".
Although of course there are nuances within these general principles, the essence of the matter is clear.
THE NATURE OF ILKERTON RIDGE
35. Before considering the evidence put forward by the Respondent in support of this aspect of its case, there are two preliminary points to be made. First, as regards the nature of Ilkerton Ridge itself. It is of course subject to extensive rights of common, as the twenty-six entries in the Commons Register demonstrate. These are rights of pasturage, turbary and estovers. The commoners are therefore entitled to enter the land, graze their sheep on it, and remove wood, shrubs and turf. Mr Warner submitted that, in principle at least, it is possible to acquire a title to a common by adverse possession. He has referred me to a decision in this jurisdiction, by Deputy Adjudicator Mr Stephen Jourdan QC, in REF/2008/0315 Whitehurst & others v Dickinson, which is reported on the Adjudicator’s website. In that case, a common was subject to a Scheme of Management under the Commons Act 1899, administered by the local authority. Part of the common had been enclosed by the squatter – whose land adjoined it – and it was found as a fact that there had been adverse possession of the enclosed piece of the common for in excess of 30 years. However, it was argued that the existence of rights of common, and the fact that the local authority was the administrator of the Scheme of Management, meant that time never began to run against the paper title owner of the common. It was also argued that section 194 of the Law of Property Act 1925 prevented the acquisition of a title, since it makes unlawful the erection of any fence or building (which doubtless for these purposes includes a hedge) which prevents or impedes access to common land. Mr Jourdan QC reviewed the authorities relating to the issue, and concluded that it was possible to acquire a title by limitation to land that was subject to a statutory scheme of management under the 1899 Act. Any title so acquired would, of course, be subject to the rights protected by the Scheme of Management. Mr Warner submitted, and I accept, that the position would be the same under the 1965 Act. However, it must be noted that the squatter in REF/2008/0315 had actually enclosed part of the common, and had fenced it within the curtilage of her own property. Factual possession had therefore been established in a fairly traditional way. The second feature of Ilkerton Ridge which needs to be mentioned is that it is actually land which is open to public access under the Countryside and Rights of Way Act 2000 and its statutory predecessors. Accordingly, members of the public are free to enter the land from the public road that runs across it. This is the factual background to the Respondent's claim to a title based on adverse possession.
EVIDENCE OF ADVERSE POSSESSION
36. The Respondent relied on the evidence of Sir Robin Dunn (Witness Statement only), Mr Holtom, and two local farmers and commoners, Mr Eveleigh and Mrs Bowen. However, the primary evidence of adverse possession is supplied by Mr Holtom, a Chartered Surveyor, who was the Respondent’s Land Agent and Secretary from 1993 to 2007. The Respondent relies on the following acts in support of its claim:
36.1 Registration as owner under the 1965 Act;
36.2 Consenting to the replacement of Shallowford Bridge in 2006;
36.3 Enforcing Exmoor National Park by-laws and liaising with regard to illegal access [1993-2007];
36.4 Negotiating with interested parties with a view to establishing an Environmentally Sensitive Area agreement with commoners and adjoining landowners in order to achieve payments from DEFRA [1996-2001];
36.5 Authorising local hunts' use of Ilkerton Ridge;
36.6 Dealing with arguments concerning rights of commoners before the Commons Commissioners in 1981;
36.7 Dealing with a boundary issue relating to an adjoining owner ;
36.8 Regulating requests for camping on Ilkerton Ridge [1986];
36.9 Permitting military exercises across Ilkerton Ridge [1985];
36.10 Regulating the use of Ilkerton Ridge for an organised charity walk [2003];
36.11 Regulating the use of Ilkerton Ridge for riding clubs and charity;
36.12 Preventing or sseeking to prevent illegal motorcycling;
36.13 Resolving the illegal burning of scrub on Ilkerton Ridge;
36.14 Granting wayleaves and easements over Ilkerton Ridge.
37. Mr Holtom was subjected to a very thorough cross-examination, in the course of which he gave additional evidence as to his own visits to Ilkerton Ridge. He pointed out that, in order to liaise with the Fire Service with regard to unauthorised fires, or with the National Park and police authorities with regard to unlawful motorcycling, both by way of example, it was necessary for him to meet representatives of these agencies on site. He himself lives close to Ilkerton Ridge and would visit the land when required. On closer questioning, he accepted that these visits did not occur very frequently, perhaps every few months during the period that he was associated with the Respondent, between 1993 and 2007. He also accepted that his task of managing the Respondent’s land holdings – which are very extensive – was largely “desk-based”, that is, largely consisted of writing letters and making telephone calls from his offices. He also accepted that he had searched the archive of documents held both by his firm, and the Respondent, relating to Ilkerton Ridge, and was unable to provide any further documentary evidence to support the adverse possession claim beyond that which he had exhibited to his witness statement.
THE WAYLEAVE ISSUE
38. One particular matter aroused a considerable degree of controversy, not so much during the hearing, but afterwards in the form of an additional written exchange between Counsel, which was forwarded to me. This relates to the issue of wayleaves said to have been granted by the Respondent to utility companies. In the event, evidence of only one specific wayleave was given, relating to BT cables. Mr Holtom first raised this matter in his 3rd Witness Statement served in January 2010. He did not give specific details of the wayleaves until he came to give his oral evidence at the hearing. In chief, he was asked to produce certain new documents, one of which (marked H4) was a copy of a plan dated 31st December 1991 relating to a wayleave granted to BT. The plan is headed “ROUTE PLAN SHALLOWFORD MOOR BARBROOK” and shows a stretch of underground cabling running for the most part alongside the public road which skirts Ilkerton Ridge between Shallowford and Thornworthy. Mr Holtom himself in his evidence had explained that the policy of the Exmoor National Park had been to insist that utilities laid their services underground as far as possible, and at some point the overground telephone wires had been laid underground. It seems that the 1991 wayleave related to this. The fact that the cables were underground was confirmed by Mr Holtom, and is evident from document H4 which refers to “PROPOSED UNDERGROUND TELEGRAPHS” and whose key indicates that the broken line showing the proposed route relates to “UNDERGROUND TELEGRAPHS”. The cable, as I have said, runs alongside the public road save for a short stretch where it diverges from the line of the road, immediately adjacent to Thornworthy. In her closing submissions, Ms Tozer submitted, among other things, that save for the actual period when the trenches were being dug and filled in, once the cable had been laid underground it would not be visible to the paper title owner,. She also submitted that the paper title owner may well have assumed that the work had been authorised by the highway authority, since the cable ran along the edge of the highway. These submissions were largely directed to the point that in order to amount to adverse possession, a squatter’s presence on land had to be visible to the paper title owner if and when he inspected the land. During those submissions, Mr Warner took issue with the first point, and reminded me that a small section of cabling deviated from the line of the road.
39. Subsequently, Mr Warner initiated a further exchange between Counsel with regard to Ms Tozer’s submissions. It was his perception that Ms Tozer had purported to give evidence on an issue – namely, whether there was anything visible on the ground to alert the paper title owner to the existence of the cabling and, therefore, the wayleave itself. His view was that the only evidence available was that of the wayleave plan (H4) itself coupled with Mr Holtom’s evidence. Mr Holtom was not, he said, cross-examined as to the visibility or non-visibility of the cabling, there had been no site view, and it was not therefore open to Ms Tozer to state – as a fact, according to Mr Warner - that there were no visible indications of the BT cable. Accordingly, any suggestion by Ms Tozer that the cables were invisible was no more than speculation, and potentially misleading. I hope I am able to give comfort to Mr Warner and his client. I did not understand Ms Tozer, in her closing submissions, to be doing anything other than making what is a fairly obvious and – I would suggest – uncontroversial point, namely that the BT cabling was laid underground. With underground cabling, there might be physical indications of the cabling on the surface, by the presence of surface manholes or inspection hatches, for example. However, the plan H4 does not show any manholes, albeit that the key allows for the marking of the location of manholes. According to the plan, the only item subject to the wayleave apart from the “underground telegraphs” is “JOINT BOX”, of which three are shown, all of them in or under the public road. I heard no evidence as to the nature of a joint box, but they are clearly not the same thing as a manhole, i.e a visible surface access point to the cabling. I assume that they do what they say, namely join sections of cable. Since the cable is underground, I assume that the joint boxes are also underground. Certainly, as Ms Tozer has pointed out in the subsequent written exchanges, the burden of proving adverse possession is on the Respondent. It is the Respondent which has produced the BT wayleave plan in support of its case – very late in the day, I may add. If it is now being suggested that the underground cabling was in fact visible by some means, in my view it was for the Respondent to adduce evidence of that fact. In the absence of such positive evidence, and in the light of the plan, Ms Tozer is entitled to submit that the BT cabling was underground and therefore invisible on the surface, and I am entitled to draw that inference. That is what document H4 shows, on any reasonable interpretation, and I so find.
THEMES IN THE RESPONDENT’S EVIDENCE
40. Before I set out my conclusions on the evidence, I ought to draw attention to certain themes that run through it. First, and notwithstanding that the Respondent was registered under the 1965 Act as the owner of Ilkerton Common, there is a consistent undercurrent of doubt within the company as to its status. I shall give some examples.
40.1 The Minutes relating to the acquisition of Ilkerton Ridge in 1958 have been produced. These merely echo the formulation in the 1958 Conveyance itself, and refer to the purchase of manorial rights over Ilkerton Ridge, as opposed to the freehold of the land.
40.2 In 1982 an adjoining landowner, Mrs Hill, wished to sell a small plot of land at Lynton. This land was, however, included within the Respondent’s registration as owner of Ilkerton Common. Mrs Hill’s solicitors wrote to the Respondent’s solicitors, stating that “…it is quite clear from our client’s title Deeds and Documents that they owned the land and they go on to say that from their knowledge of your Company that Company did not own the land on Exmoor but merely held hunting rights over the land”. This resulted in an exchange between Mr Humphreys, the then Company Secretary, and its solicitors, which included this comment from Mr Humphreys: “You will see…that the Company obtained the sporting and manorial rights over Ilkerton Ridge. Whether this provides Title to the ownership of the land I must admit that I am not certain….”.
40.3 The Minutes of a meeting of the Respondent dated 13th April 1992 record the following: “The Chairman informed the Directors that he had been approached by Mr.Mellstrom who had offerd to gift the hunting rights over Somerset Allotment (200 acres) to the Company in return for the freehold of Ilkerton Ridge (750 acres) to Mr.Mellstrom. The Chairman told the Directors that although Ilkerton Ridge was registered in the name of the Company, in fact the Company only held the Manorial Rights.”.
40.4 The Respondent’s original application to the Land Registry was not for a freehold title to be registered, but for Sporting and Manorial rights to registered. It was supported by a Statutory Declaration by Mr Holtom already referred to, which contains this passage: “The Company’s attitude is that it is the de facto owner of the manorial waste of Ilkerton Ridge and that effectively the only rights owned by other parties over Ilkerton Ridge are those various Commons Rights which belong to adjoining landowners…….I verily believe that the land shown edged red on the said plan is the land that is the subject of the Conveyance of the 25th October 1958 and that the Company is the proper owner of the Manorial and Sporting Rights over this”.
Under cross-examination Mr Holtom accepted that, in his mind at least, there was some uncertainty as to what was included within a grant of Sporting and Manorial Rights, and whether it actually included the freehold itself. Indeed, this is made manifest by the Statutory Declaration I have referred to.
41. Secondly, in the Respondent’s dealings with regard to Ilkerton Ridge, its actions often appear to be consistent with its status as owner of the sporting and manorial rights, and guardian of the environment, rather then adverse possessor. Again, I shall give some examples:
41.1 On 7th November 1985 Mr Humphreys wrote to a Peter Cox, in relation to the proposed replacement of a fence between Ilkerton Ridge and part of Furzehill Common. It includes the following statement: “The Exmoor National Park have been in touch with me saying they wish to carry out improvements to the boundary fence between Ilkerton Ridge and their property being part Furzehill Common……….I do not know this hedge, but I expect you know it well. Apparently it is a mature beech hedge standing on a broken doen bank. The national Park wish to make the fence stockproof so as to prevent sheep straying from Ilkerton Ridge, which is a common, straying onto their land. The Badgworthy Land Company owns the sporting and manorial rights over Ilkerton Ridge and I must confess I do not know is this means that they own the land as well. However, the National Park says that, according to their Deeds, the ownership of the Bank runs with Ilkerton Ridge, but as Ilkerton Ridge is a common they are prepared to do this work. I though before the matter proceeds any further I ought o get your opinion of what effect a stockproof fence along this boundary would have on hunting…..”
41.2 This seems to have been followed up in January 1986 by a letter from the Respondent to the Exmoor National Park Department, stating that it had no objection to the proposed work, but offering to pay for a new gate in the replaced boundary structure. The letter (dated 20th January) concludes: “Mr Dallyn is the Hunt Harbourer for that area and he would be able to advise on the sort of gate which the Company would find acceptable”.
41.3 Correspondence from Mr Holtom in 2003, in regard to unauthorised motorcycling on Ilkerton Ridge, suggests that the primary concern related to the effect on riders and hunt participants.
FINDINGS OF FACT
42. In conclusion, I accept Mr Holtom’s evidence as to the Respondent’s activities with regard to Ilkerton Ridge over the period covered by the documentation and his own evidence, namely from the early 1980s to 2007. For the reasons I have explained, however, a considerable part of the Respondent’s activities can be explained by, or are attributable to, its position as owner of the sporting and manorial rights over Ilkerton Ridge, and a charity whose object is “the preservation of Exmoor and its heritage including the encouragement of recreation” with particular reference, no doubt, to fox and stag hunting. It is a very well-known local landowner. This fact, coupled with its status as registered owner of the common under the 1965 Act, explained why public authorities such as the National Park would collaborate with the Respondent in relation to the stewardship of Ilkerton Ridge. However, there are certain aspects of the Respondent’s activity which extend beyond this role. In particular, the granting of the wayleave to BT, and the licensing of military and recreational activities over Ilkerton Ridge, as explained in paragraph 21 of Mr Holtom’s January 2010 witness statement.
HAS THERE BEEN FACTUAL POSSESSION?
43. However, the real question is whether any of these activities can be said to constitute “factual possession” of Ilkerton Ridge within the meaning of those words as explained in Pye v Graham. Mr Warner asks me to focus on the words “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. …”. (my emphasis). He submits that the activities of the Respondent are, in the very exceptional circumstances, sufficient to amount to factual possession. Given that the public has access to the land, and given that commoners have rights over it, it is his submission that it did as much as any owner could be expected to do. He cited the case of Red House Farms (Thorndon) Ltd v Catchpole (1976) EG 295 in support of this argument. In that case, a small piece of marshy land (OS 319) became detached from an adjoining field by the construction of a ditch or cut, so that access to the land could only be obtained by means of a bridge. OS 319 and the field were in the same ownership. However, by 1945 the bridge had disappeared, so that OS 319 was physically detached from the adjoining field. The Defendant, however, had regularly shot on OS 319, both before and after 1945, and she had authorised a third party to fish from its banks. It was held that the Defendant had acquired a possessory title to OS 319 by 1964. Waller L.J in the course of his judgment (page 127K-M) said this:
“The evidence of the change of the nature of this land was, in my view, most important. While it had been used for agricultural purposes, first of all, before the cut was made, and secondly, after the cut was made, and during the war, there was no question but that from the end of the war onwards the land was of an entirely different character and could only be used for shooting. There was clear evidence given by Mrs Catchpole that considerable use for shooting had been made of the land either by her or by a syndicate for which she was responsible, and that had gone on throughout the years from 1947 up to and including 1964, although in the latter years she had not personally shot so mush. Mr Browne-Wilkinson submitted that that was equivocal and mere shooting could not be sufficient to amount to taking possession. But, in my view, it is clear from the authorities that when considering what is required to amount to possession the court should look at the nature of the land which is being considered, and, as I see it, if the only purpose for which the land can be used is shooting, and that is the actual use made in this case by the defendant, then that is an act of possession which is quite sufficient for the judge to draw the inferences which he did.”
In relation to this case, Ms Tozer drew my attention to what Cairns LJ described as “a matter of vital importance”, and “highly relevant” to the issue of adverse possession, namely the fact that OS 319 had become inaccessible from the owner’s adjoining land. This factor was central to the decision in the case.
44. Ms Tozer has cited two passages in Stephen Jourdan QC’s “Adverse Possession”, at paragraphs 8-12 to 8-19, and 9-34 to 9-38. The first passage is entitled “The possession must be obvious to a person who visits the land”, which is self-explanatory. The author cites a number of well-known authorities in support of the proposition, including this passage from Slade J’s judgment in Powell v McFarlane (1977) 38 P & CR 452 at 480: “In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present on the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.”. In another case from New Zealand – McDonell v Giblin (1904) 23 NZLR 660 at 662 – Cooper J used this formulation: “……[possession] …… must be sufficiently open and manifest that a man reasonably careful of his own interests would, if living in the locality and passing the allotment from time to time, by his observation have reasonably discovered that some person had taken possession of the land.”. The second passage in Mr Jourdan’s book relates to animus possidendi, rather than factual possession, and is entitled “The relevance of the squatter’s pre-existing rights to use the land”. In the author’s words “Where the squatter has an existing right which entitles him to make use of the land, then it will generally be harder for him to show that his use of the land amounted to the manifestation of the animus possedendi, rather than simply the exercise of his pre-existing rights.” Authorities, such as Littledale v Liverpool College [1900] 1 Ch 19 and George Wimpey & Co Ltd v Sohn [1967] Ch 487 are cited, in which it had been held that even actions such as enclosure, or the locking of access gates, were equivocal when carried out by a squatter who already had limited rights over the land in question. Ms Tozer argues that the Respondent did no more than might be expected from the owner of all sporting and manorial rights over Ilkerton Ridge, which negates any sufficient animus possidendi. Further, and in any event, nothing done by the Respondent ever amounted to factual possession.
CONCLUSIONS WITH REGARD TO ADVERSE POSSESSION
45. In my view, it is at least theoretically possible to acquire a title to common land, as the decision of Mr Jourdan QC cited above makes clear, albeit that it was a case where there had been an enclosure of the common land. However, in the absence of physical enclosure, in general terms it will be more difficult to establish exclusive factual possession of a common, as opposed to land free of such rights, particularly one which is public access land, simply because the squatter must necessarily share possession of the land with others. In assessing whether the activities of the squatter are sufficient to amount to factual possession, one must not lose sight of the underlying legal framework of which adverse possession forms a part. Adverse possession is a particular application of the law of limitation of actions. Before time runs against the paper title owner, it must be demonstrated that a cause of action for the recovery of possession of the land has arisen. The Respondent’s activities on the land clearly do not amount to possession in any conventional sense of occupation. There is at least one case – the wrongful receipt of rent in the case of a reversion – where occupation by the squatter is not required. These are special cases under the Limitation Act 1980, which are not applicable in the present case. At most, the Respondent has authorised certain temporary uses of the land (subject to the wayleave discussed below) and has on occasions purported to act as an owner might do. Having considered the full range of the Respondent’s activities on the subject land, as disclosed by Mr Holtom’s evidence and the supporting documentation, I am unable to conclude that they ever amounted to a taking of exclusive possession of Ilkerton Ridge, sufficient to allow the paper title owner to sue for the recovery of possession. Obviously, no single activity mentioned amounts to exclusive possession on its own. However, if one takes the full extent of its activities on the land, even cumulatively this does not amount to possession. Furthermore, the Respondent’s involvement with the land – with the exception of the wayleave, and the occasional licences – is equally consistent with its status as the owner of the sporting and manorial rights. Accordingly, even if factual possession was obtained, there was never a sufficient animus possidendi. As to the wayleave, this did authorise a permanent trespass on the land in the form of the underground cables. If it is assumed that the right to grant this wayleave rests with the owner of the soil, the Respondent had no right to make the grant. The presence of the cables might therefore ground an action in trespass, although the trespass would affect only a tiny proportion of Ilkerton Ridge. However, as explained previously, the cabling ran underground and was invisible. This falls foul of the requirement that the adverse possession must be visible to the paper title owner – see Stephen Jourdan QC’s “Adverse Possession”, at paragraphs 8-12 to 8-19 referred to above – and is not capable of amounting to adverse possession. In the case of common land, open to public access, where the squatter already has very extensive rights over the subject land, the bar to establishing adverse possession is set very high. In my judgment, the Respondent has failed to surmount it on the basis of the evidence that it has adduced.
THE EFFECT OF REGISTRATION UNDER THE COMMONS REGISTRATION ACT 1965
46. As previously stated, the Respondent became registered as owner of Ilkerton Common under the 1965 Act, and thereby contends that its status as owner is now indefeasible and conclusive. Mr Warner relies on Corpus Christi College Oxford v Gloucestershire CC [1983] 1 Q.B. 360 (CA) for the proposition that a registration under the 1965 Act, once made final, cannot be challenged. In order to understand this submission, it is necessary to set out the relevant parts of the 1965 Act.
“1. — (1) There shall be registered, in accordance with the provisions of this Act and subject to the exceptions mentioned therein,—
(a) land in England or Wales which is common land or a town or village green;
(b) rights of common over such land; and
(c) persons claiming to be or found to be owners of such land or becoming the owners thereof by virtue of this Act;
and no rights of common over land which is capable of being registered under this Act shall be registered under the Land Registration Acts 1925 and 1936.
3. — (1) For the purpose of registering such land as is mentioned in section 1(1) of this Act and rights of common over and ownership of such land every registration authority shall maintain—
(a) a register of common land; and
(b) a register of town or village greens
7. — (1) If no objection is made to a registration under section 4 of this Act or if all objections made to such a registration are withdrawn the registration shall become final at the end of the period during which such objections could have been made under section 5 of this Act or, if an objection made during that period is withdrawn after the end thereof, at the date of the withdrawal.
(2) Where by virtue of this section a registration has become final the registration authority shall indicate that fact in the prescribed manner in the register.
10. The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only
12. The following provisions shall have effect with respect to the registration under the Land Registration Acts 1925 and 1936 of any land after the ownership of the land has been registered under this Act, that is to say—
(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) if the registration authority is notified by the Chief Land Registrar that the land has been registered under the Land Registration Acts 1925 and 1936 the authority shall delete the registration of the ownership under this Act and indicate in the register in the prescribed manner that it has been registered under those Acts.
13. Regulations under this Act shall provide for the amendment of the registers maintained under this Act where—
(a) any land registered under this Act ceases to be common land or a town or village green; or
(b) any land becomes common land or a town or village green; or
(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed;
47. The register established under the 1965 Act consists of three sections, namely (a) the Land Section – identifying the land subject to common rights; (b) the Rights Section – identifying the individual rights of common; and (c) the Ownership Section, identifying the owner of the register unit. In respect of Ilkerton Ridge, the chronology is as follows. On 12th September 1967 Ilkerton Ridge became provisionally registered in the Common Register as register unit C.L.131, in consequence of an application by a Mr Beggs of Hill Cottage to register rights of pasturage and turbary. The registration of C.L.131 became final on 1st October 1970, being undisputed. The Respondent applied to be registered as the owner of C.L.131 on 6th June 1968, and was provisonally registerered as such on that date. The registration, being undisputed, became final on 1st October 1970. Accordingly, the final registration of the Respondent, with effect from October 1970, did not involve any examination of its title to Ilkerton Ridge, but was an essentially administrative act. By contrast, some of the applications to register rights of common over Ilkerton Ridge were disputed, which resulted in an enquiry by the Commons Commissioners and a judicial determination of the issue. The Respondent, by its Statement of Case, contends that the combined effect of sections 10 and 12 of the 1965 Act is that once an ownership registartion in the commons register has become final, it is “conclusive evidence” of that ownership, good against the whole world.
48. Ms Tozer seeks to deconstruct the individual elements of the Respondent’s submissions on this point. First, she points out that section 10 of the 1965 Act does not, in terms, apply to the Ownership Section, as opposed to the Land and Rights Sections – “The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered…..” (my emphasis). Secondly, she submits that this is entirely consistent with section 12, which provides for the deletion of an entry in the Ownership Section if title to the land is subsequently registered under the Land Registration Act 1925. Thirdly, she draws attention to the provisions of section 13 of the 1965 Act. This section permits the amendment of the registers kept under the Act, but only, she submits, in relation to the Land and Rights Sections – not the Ownership Section. From this she argues that there was no need to provide for the amendment of the Ownership Section, since it is nowhere provided that an entry as to ownership is regarded as “conclusive evidence”. Fourthly, she points to the scheme established under section 1(1)(c) of the 1965 Act, in relation to owners, which refers to “….persons claiming to be or found to be owners of such land or becoming the owners thereof by virtue of this Act…..” This formulation covers three different situations. First, a person who claims to be the owner and who is registered as such where the application is undisputed. Secondly, a person whose ownership is challenged, who is “found” to be the owner as a result of an inquiry by the Commons Commissioners. Thirdly, where the common land is vested in the local authority under section 8 by default, where there is no claim to ownership or where such a claim is rejected – this is the meaning of the expression “becoming the owners by virtue of this Act…”. Ms Tozer submits that this emphasises the distinction to be drawn between an undisputed application and a determined application or a statutory vesting. She also distinguishes the Corpus Christi College Oxford case cited by Mr Warner, since it relates not to the Ownership Section but to the conclusivenenss of the Land Section. Finally, she draws my attention to a number of texts which are said to support the Applicant’s case on this point. These are Ruoff & Roper on Registered Conveyancing at para.9.013; Ubhi on the Law of Commons (2nd ed.) at para. 10; DEFRA Guidance Note (March 2010) on Adverse Possession of Common Land at para.10, and DEFRA Guidance Note (January 2010) on the Commons Registration Act 1965 – How the registers were prepared at para.6.2.
49. In my judgment, Ms Tozer’s submissions are correct. I agree with her that section 10 of the 1965 Act does not purport to make an ownership registration conclusive or otherwise indefeasible, and the Corpus Christi College Oxford case is not in point since it relates only to the Land Section of the register which is clearly within the ambit of section 10. I accept her submission that the structure of the Act in general, and the provisions of section 12 in particular, lead to the conclusion that registration of title under the Land Registration Acts “trumps” an undisputed registration in the Ownership Section under the 1965 Act. It seems to me that, as a matter of principle, it would be quite wrong for the legitimate paper title owner of common land to be denied his title, merely because at some earlier date another party, without title, succeeded in becoming registered in the Ownership Section in default of objection. In the Corpus ChristiCollege Oxford Oliver L.J. (as he then was) described the effect of the 1965 Act as “offensive”, insofar as it punished the accidental failure to lodge an objection to the registration (in the Lands Section) of the land, at the same time as an objection to the registration of common rights. It would be doubly offensive to deprive the legitimate owner of his title. Indeed, I question whether such a reading of the 1965 Act would be compatible with the European Convention on Human Rights. Fortunately, this question can be avoided, since I take the view that the 1965 Act does not interfere with the rights of the true owner, for the reasons given by Ms Tozer, and accordingly the fact that the Respondent is registered as owner would not prevent the Applicant being registered as proprietor under the Land Registration Act 2002 if title could be made out. If that happens, the Respondent’s registration under the 1965 Act will be expunged. However, this question is now academic, since I have already held that neither the Applicant nor the Respondent is entitled to be registered as proprietor of Ilkerton Ridge under the LRA 2002.
CONCLUSIONS
50. In relation to the four issues which were identified at the beginning of this Decision, my conclusions are as follows:
50.1 Lady Carew was, in 1905, the owner of the Manor of Woolhanger, and the Grantors under the 2004 Conveyance conveyed the Manor to the Applicants.
50.2 Ilkerton Ridge does not form part of the Manor of Woolhanger.
50.3 The Respondent does not have a paper title to Ilkerton Ridge – it is however the owner of sporting and manorial rights over it.
50.4 The Respondent cannot make out a title to Ilkerton Ridge based on adverse possession.
50.5 The fact that the Respondent is registered as owner of Ilkerton Ridge in the Ownership Section of the Commons Register does not entitle it to be registered as such under the LRA 2002.
50.6 Accordingly, the Applicants fail in their application to be registered as owners of Ilkerton Ridge, as does the Respondent.
50.7 I shall direct the Chief Land Registrar to give effect to the Respondent’s application for its sporting and manorial rights to be registered.
51. That leaves the question of costs to be determined. The outcome of the adjudication is a partial victory for the Respondent, and it would seem to follow that the Applicants should pay its costs, to be subject to a detailed assessment on the standard basis. That is the order I propose to make. However, I will give the Applicants the opportunity to make written submissions on my proposed order, to be lodged and served no later than 4 pm on 6th August 2010. The Respondent may reply, no later than 4pm on 13th August 2010.
Dated this 21st day of July 2010
By Order of The Adjudicator to HM Land Registry
