Bibby v Stirling, Court of Appeal - Civil Division, June 12, 1998, [1998] EWCA Civ 994

Resolution Date:June 12, 1998
Issuing Organization:Civil Division
Actores:Bibby v Stirling

IN THE SUPREME COURT OF JUDICATURE CCRTF 97/0366/2COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM WORKSOP COUNTY COURT(MR RECORDER DEAVE)Royal Courts of JusticeStrand, London, WC2A 2LLFriday, 12 June 1998B e f o r e :LORD JUSTICE MILLETTLORD JUSTICE PILLLORD JUSTICE MAY- - - - - - MRS LORNA BIBBY Appellant - v - MRS MARGUERITE STIRLING Respondent - - - - - - - (Handed Down Transcript of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183 Official Shorthand Writers to the Court)R SOOFI P.I. DIN (Instructed by Hickmotts, 34 Mansfield Rd., Rotheram) appeared on behalf of the AppellantMISS ROSALIND COE (Instructed by The Law Partnership, City Plaza, 2 Pinfold St., Sheffield, S1 2GU) appeared on behalf of the Respondent - - - - - - J U D G M E N T (As approved by the Court) - - - - - - ©Crown CopyrightLORD JUSTICE PILL:This is an appeal by Mrs Lorna Bibby ("the appellant") against a decision of Mr Recorder Deave at Worksop County Court on 17 February 1997 whereby he held that Mrs Marguerite Stirling ("the respondent") had an equitable interest in a strip of land at the rear of numbers 11 and 13 Ryton Road, North Anston, Sheffield. The respondent, now 74 years old, moved into 11 Ryton Road with her husband in 1948 and has lived there ever since. It was a council house which she and her husband rented until they purchased it in 1983. Their three daughters were brought up at the premises. Mr Stirling died in 1992. Attached to the house, is a small garden and beyond the garden is the disputed land, a strip about 50 ft wide and 100 to 150 ft long the boundaries of which are not in issue. The disputed strip was part of a large field which was conveyed to Mr George Holmes in May 1956 for £150. It had previously been offered to Mr Stirling. Because of its potential for development the strip and field are now worth a vastly higher sum. Mr Holmes, the village postmaster, built a new post office and a bungalow on the field. He was a married man but the appellant lived with him for many years before his death in 1984. There was then a dispute between her and the widow which was resolved in September 1993 with the appellant receiving a 40% share of the estate. With the help of a loan, she bought out at least a part of the widow's share so that she could continue living in the bungalow and the legal title to the strip was transferred to her in March 1994. The respondent claimed title to the strip by adverse possession. By a subsequent alternative claim, it was alleged that Mr Holmes "by his conduct represented to the [respondent] and/or to her late husband that they and each of them could continue to enjoy the occupation of the [strip] for so long as they and each of them should continue to occupy No 11". The appellant claimed that the strip was let by Mr Holmes to Mr Stirling and, a notice to quit having been served, the respondent sought possession of the strip. Evidence was given by many witnesses, members of the two families, friends and neighbours. They gave evidence about the use of the land over the years. No one claimed to be present when arrangements with respect to the strip were made between Mr Stirling and Mr Holmes in 1956. It was agreed between the parties that the judge could take into account hearsay in deciding what arrangement or arrangements were made. The judge considered the evidence in considerable detail and made findings upon the credibility of witnesses. He found that the evidence of the appellant was "untruthful and unreliable" and that she was "untrustworthy". He found that the respondent was a careful witness. The respondent's claim based on adverse possession was rejected by the judge who held that permission to use the strip had been given by Mr Holmes in 1956. Further, he found that from about 1968 until about 1985, Mr Stirling paid rent of £4 for the use of the strip. This was added to an annual payment of £2 by way of ground rent for other land of Mr Holmes on which Mr Stirling had built a garage in 1968. The judge found that Mr and Mrs Stirling had occupied the strip from 1956. Relying on evidence from the respondent that she understood her husband "had the land for use as a garden", the judge held that "there was an agreement between Mr Holmes and Jock that he, Jock, could use the strip as his own. Mr Holmes "never talked about having the land back." There was a conversation between them I think the conversation was in the spring or summer of 1956". From 1956, "the family used this strip as their own as an adjunct to the house". They planted two hedges, six apple trees and a pear tree. An area for chickens was enclosed. They used it as a garden and the children played on it. Of considerable significance in this case, is the substantial structure which Mr Stirling erected on the strip. The judge found that a greenhouse was erected in 1958, that is within about two years of the Stirling occupation. The structure was obviously intended to last and has remained in good condition during the subsequent 40 years. It is 30 ft long and has a 2½ ft wall built on foundations. It is supplied with mains electricity and water. It has its own boiler and heating system. Mr Stirling built the brick base and the frame was professionally constructed. The judge found that from 1956 Mr Holmes orally told Mr Stirling that "he could use the strip as his own". "I find that either actually or certainly impliedly he, Mr Holmes, allowed Jock [Mr Stirling] to use the strip for the period 1956 to 1984, a period of some 28 years. He allowed him to develop it as I have already described with a substantial greenhouse. He allowed that to go on knowing exactly what was happening and I find, and this is my principal finding, that although the legal estate must remain with [the appellant], that he, Mr Holmes, agreed that Jock and his family and the [respondent] in this case could use the strip as their own as long as they...

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