BLIGH v. MARTIN: ADVERsE POSSESSION - U.K.

STATUTE OF LIMITATI9NS -
EFFECT OF LEASE.

The recent English case of Bligh v. Martin 1 presents a situation which is both
extraordinary in itself and which raises delicate questions pertaining to the Statute
of Limitations as applied to real property. On paper, the defendant was the owner
of the title to the land in dIspute, lot 446, but the lot was not divided from the
neighbouring estate known as Greenfields Farm. and the paper title owner was
unaware that his title included the lot. The plaintiff was the owner of Greenfields
Farm and he or his predecessors in title had been in occupation of lot 446 since

15Supra note 9 at 75. _

16Amsden v.. Rogers (1916), 26 .C.C..C. 389.
111d. at 391"
18Supra note 9 at 79.
*John R. Wrigley, B.A.. (Toronto, 1968), M.A. (Toronto, 1969), First Year, Faculty of
Law, University of Toronto.

1[1968] 1 All B.R. 1157; [1968] 1 W.L.R. 804 (ChD.. ).

.BLIGH v. MARTIN 129

February 16th, 1949. In 1960 the plaintiff leased to the defendant the whole of
Greenfields Farm which was thought by both parties to include t 446. Five years
later the defendant discovered his paper title to lot 446 and attempted to assert
his right to the land. In reply the plaintiff sued for a declaration that the defendant
had no right or title to lot 446.
The principal question in this case was whether the plaintiff had been in
adverse possession of lot 446 long enough to extinguish the defendant's paper
title under the Limitation Act of 1939..2 The English act imposes a twelve year
statutory period for real property. The plaintiff therefore had to show that the .
Statute of Limitations did not cease to run in his favour even during the period
in which the defendant title owner was occupying the lot as lessee. It is this
question alone which is the subject of this note.
"Since the case hinges on the construction to be put on the words of the
Limitation Act, 1939~ it might be convenient to set out the relevant sections
at once.
4(3) No action shall be brought by any other person to recover land after the
expiration of twelve years from the date on which the right of action accrued to
him Of, if it first accrued to some other person through whom he claims, to that
person.

10(1) No right of action to recover land shall be deemed to accrue unless the
land is in the possession of some person in whose favour the period of limitation
can run (hereafter in this section referred to as 'adverse possession') and where
under the foregoing provisions of this act any ~uch right of action is deemed to
accrue on a certain date and no person is in adverse possession on that date, the
right of action shall not be deemed to accrue unless and until adverse possession
is taken of the land.
(2) Where a right of action to recover land has accrued and thereafter, before
the right is barred the land ceases to be in adverse possession, the right of action
shall no longer be deemed to have accrued and no fresh action shall be deemed
to accrue unless and until the land is again taken into adverse possession.
(3) For purposes of this section . . . (b) receipt of rent under a lease l?Y a
person wrongfully claiming, in accordance with subsection (3) of the last fore-
going section, the land in reversion shall be deemed to be adverse possession of
the land..

The reference in section 10(3) (b) is to section 9(3) which reads:

9 (3 ) Where any person is in possession of land by virtue of a lease by which a
rent of not less than twenty shillings is reserved, and the rent is received by some
person wrongfully claiming to be entitled to the land in reversion immediately .
expectant upon determination of the lease and no rent is received by the person
rightfully so entitled, the right of action of the last-named person to recover the
land shall be deemed to have accrued at the date when the rent was first received
by the person wrongfully claiming as aforesaid and not at the date of the
determination of the lease.
Pennycuick, J., found for the plaintiff, basing his decision "on the plain
meaning of the words used" in section lO(3)(b) and 9(3).8 He held that the
plaintiff was wrongfully claiming to be entitled to the land in reversion immediately
expectant on determination of the lease and that he was receiving rent under a
21939, c. 21 (U"K.. ).,
3Supra note 1, All E.R" at 1161.
 "~"'~

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'130 FACULTY OF LAW REVIEW

lease from the defendant. This constituted adverse possession on the part 'of the
plaintiff and thus the statutory period continued to run against the rightful owner.
Pennycuick, J., was not deterred from construing the relevant sections in this .way
by what he conceded was the "altogether exceptional position in which the tenant
who pays the rent to the wrongful claimant is himself the rightful owner.. "4 Nor
could he discern any objection in principle to his decision.
The position taken by the learned judge requires scrutiny. Specifically, one
might be prompted to enquire whether Bligh v. Martin as decided is compatible
with the fundamental mechanics of adverse possession. It is submitted that the case.
as decided violates those principles of operation and, moreover, that ~ section
10(3) (b) of the Limitation Act, 1939, has been misconstrued.
In order to keep the statutory period running the land in question must
continue to be in the possession of the squatter or of someone who has privity
with him. During the period the squatter's rights derive not from bis title (he
does not have one) but from his possession. Once he leases the land, h~ no longer
has physical possession as that is what he has given away to the leaseholder. What
re,mains with the lessor is the complex of rights under the lease and the reversion~
Accordingly, if there should be a trespass to the land, the right to bring an action
would lie, not in the lessor, but in the lessee by virtue of his possession. 5 Similarly
it would be possible for a third party to gain adverse possession against the lessee
without the lessor's being allowed to interfere until he regains an immediate right
to possession by the determination or surrender of the lease. 6 During the lease-
hold, then, the squatter cannot claim through his own possession since the posses-
sion is in the lessee.. In Bligh v.. Martin the lessee turned out to be the rightful
owner, and at the time of the leasehold he not only had possession but also the
paper title. This raises a serious difficulty against the view of Pennycuick, J.: if
the defendant had both possession and the paper title, how could the statute run
against him in favour of a squatter who had neither possession nor the paper title?
Unfortunately, this is one of those difficult cases where the solution. cannot
be furthered by a facile appeal to "policy". For one thing, the precise policy which
underlies adverse po~session is not easy to ascertain. 7 Secondly, even if some
acceptable consensus could be reached on the question of purpose, there. would
remain the basic task of balancing the interest protected by advers~e possession
against the interest of the rightful owner in an unprecedented circumstance. It
would not be satisfactory in novel cases to apply automatically the, policy of
adverse possession at the expense of the true owner merely because that policy
has previously been applied to cases which are superficially similar but which may
diverge on a fundamental aspect. There is, however, one general observation which·
may assist in the process of balancing the respective interests of adverse possessor
and rightful owner. Once the latter establishes his paper title - and in the case
under discussion the defendant's paper title was not in dispute - the onus is on
the adverse possessor to show that his possession was of the kind and duration
required for a successful claim under the Statute of Limitations. 8 The imposition
4lbid.
5FLEMING, THE LAw OF TORTS 41 (3rd ed. 1965).
6Fainveather v. St. Marylebone Property Co. Ltd., [1963] A.C. 510, [1962] 2 All E.R. 288,
[1962] 2 W.L.R. 1020.
7CALAHAN, ADVERSE POSSESSION 79 if. (1961).
8So11ing v. Broughton, [1893] A.C. 556 (P.C.); Kingston Race Stand v. Mayor and Council
of Kingston, [1897] A.C. 509 (P.C.); Dominion Improvement and- Development Co. v.
BLIGH v. MARTIN 13.1

of this onus on the adverse possessor indicated that when the arguments are equally
balanced, preference should be given to the rightful owner..
It ,is difficult to formulate arguments supporting the principle in Bligh which
avoid the taint of circularity. One might argue, for instance, that the lessee is
entitled to his reversion and that the decision at hand protects the reversionary
_interest. But whether the reversion of the adverse possessor should be protected
from the claim of the rightful owner is a question which can only be properly
answered on the basis of whether or not' the statutory period has elapsed.. The
very viability of the reversion depends on the passage of the statutory period so
that the reversion in itself cannot be used to keep the Statute running.
A similar objection arises if one approaches the problem from the aspect of
privity. It is accepted that the adverse possessor can transmit his possessory interest
without the statutory period as against the true owner beginning to run anew. 9
But to invoke this concept in the Bligh situation, where the transferee was himself
the rightful owner, is to assume what must be proved. There is no warrant for
thinking that under the banner of privity the lessee who is rightful owner can keep
the Statute running against himself just because the existence of a lessee who is
not the true owner would do so.
Counsel for the plaintiff in Bligh tried to provide his case with itS much-
needed theoretical underpinning by arguing that "the landlord and the tenant have
each, in the correct legal parlance, possession of the land, though in' different
senses".10 His argument apparently found favour with the court. One regrets that
the report of the case provides no clue as to the manner in which this mysterious
and important argument was formulated. It is difficult to see how the landlord
has possession in any sense that is relevant to the question at hand. Counsel may
hav~ had in mind the Law of,Property Act, 1925, s.. 205(1) (xix) which states
that " 'possession' inc~udes receipt of rents and profits or the right to receive the
same, if any." This definition, however, applies only for the purposes of that
particular statute and has nothing to do with the issue of limitations. Another
possibility is that reference was made to Wakefield and Barnsley Union Bank,
Limited v. Yates where the court held, speaking in the context of the Statute of
Limitations, that "an 'estate in fee simple, though subject to a lease is an estate
in possession and not an estate in reversion or remainder."11 That doctrine, how-
ever, was politely but :firmly repudiated by the House of Lords in Fairweather
v. St. Marylebone. 12 And the very reliance of the plaintiff on the wording of
sections 10(3)(b) and 9(3) of the Limitation Act, 1939, shows that he regarded
himself as having an estate in reversion rather than an estate in possession.
The Bligh decision, by allowing an occupier of land to keep the Statute fun-
ning against himself, does not fit easily into the usual notions of adverse possession.
This becomes more evident when one considers the well-established principle that
the effect of the Statut~ of Limitations is only to extinguish the title of the rightful

Lally (1911),24 O.L"R. 115 at 118 (C..A.); Burch v. TOlvaer (1922),69 D"L.R. 739 at
740 (B"C. Co. Ct.); Washington and Gt. N. TOlvnsite Co. v. Holbrook, [1924] 1 D.L.R.
818 (B.C.S.C..); Nanailno Ice and Cold Storage Ltd. v. Blyth, [1946] 4 D . .L .R. 524 at
531 (B.C.C.A.); Brown v. Phillips (1964),42 D.L.R. (2d) 38 at 41 (Dnt. C.A.); Walker
v. Russell, [1966] 1 O.R. 197 at 208 (H.C.)~
9MEGARRY AND WADE, THE LAw OF REAL PROPERTY 1006-7 (3rd ed. 1966).
10Supra note 1, All E.R. at 1162.
11[1916] 1 Ch. 452 at 457.
12[1962] 2 All E.R. 288 at 292, cf. p.. 297.
132 FACULTY OF LAW REVIEW

owner, and not to transfer title to the adverse possessor. IS In his case, then, the true .. ~
owner's possession of the land is the very factor which operates to keep the Statute .J
running and eventually to extinguish his own title. One may wonder whether it is -
desirable for the law to countenance such a peculiar and perverse operation of the
statute. Long ago the principle was laid down that "possession is never adverse if
it can be referred to a lawful title" .14 There has never been occasion to extend this
principle to the case where the lawful title is that which belongs to the person
actually in possession but such an extension is in easy harmony with the concepts
which underlie the operation of the Statute.. At any rate, it avoids the strange·
paradoxes which flow from the Bligh decision.
Pennycuick, J., based his decision, however, not on abstract concepts but
"on the plain meaning of the words used" in sections 10(3) (b) and ;9(3) of. the
Limitation Act, 1939. He held that the plaintiff was covered by these words
inasmuch as he was a wrongful claimant to the reversion who was re.ceiving rent
under a lease. He readily acknowledged that the section was designed· to cover the
situation where the diversion of rent by the squatter from the true owner to himself
is the first act of dispossession rather than where the squatter's receipt of rent is
subsequent to an earlier act of dispossession. The judge stated the intent of section .'
10(3) (b) tersely and accurately:

''That provision is no doubt primarily addressed to the state of affairs in which the
land is already in the possession of a tenant when the adverse possession begins,
that is to say; the first act of adverse possession is the receipt of rent by the wrong-
ful claimant from the tenant The provision woWd have no particular significance
in the ordinary case where the wrongful claimant first takes physical possession
himself and then lets the land to a tenant, since in that case the possession of the
tenant is no less adverse to that of the rightful owner than is the possession of the
wrongful claimant."15

Nevertheless the learned judge was of the opinion that the section sufficed to
cover the situation at hand.
This extension of section 10(3) (b), it is submitted with respect, cannot be
maintained. The. purpose of section lOis' to lay down a nec~essary condition for
the operation of the statutory period. It is not sufficient that there has been ~ act
of dispossession and that the true owner has remained out of possession. There
must also be, in addition to absence of possession on the part of the rightful owner,
actual possession on the part of someone else. Want of the latter withjn the statu-
tory period automatically restores the rightful owner to his status as it was before
the act of dispossession. This provision codifies the position arrived at judicially by .
Trustees, Executors, and Agency Company Limited and Templeton v. Short~16
Section 10 deals with the question of whether the Statute can continue to ~ but
it does not deal with the equally crucial question of when the statute begins to

13Limitation Act, 1939, c. 21, s. 16 (UK.); cf. the cases of TichboTne v. Weir (1892),
67 L.T. 735, and Taylor v. TWinberrow, [1930] 2 K.B. 16. The Ontario Limitation Act
has the same effect; see Gray v. Richford (1878), 2 S.C.R. 431; Gahagan v•. Sisson et al.,
[1943] O.W.N. 619 (C.A.); and Brown v. Phillips (1964), 42 D.L.R. (2d) 38 (Ont.
CA.)"
14Thomas v. Thomas (1855), 2 K. & J. 79, 69 ER. 701.
15Supra note 1, All ER. at 1161.
16(1888) 13 App. Cas. 793. For the history of section 10, ~ NEWSOM AND ABEL-SM1'l1t
PRESTON AND NEWSOM ON LIMITATION OF ACTIONS 86-89 (3rd ed. 1953) ..
BLIGH v. MARTIN 133

run; i.e., when the right of action accrues. In Bligh v. Martin the court rightly noted
that section 10(3) (b) concerns a wrongful claimant under 9(3) but it overlooked
the fact that the right of action accrues to a claimant under that section "at the
date when the rent was first received by the person wrongfully claiming". Accord-
ingly, if the plaintiff wished to invoke section lO(3)(b), he would have had to
~argue that the true owner's right of .action did not accrue, and the Statute did. not
begin to run until the plaintiff had begun to receive rent in 1960. This of courset
aside from being an untenable assertion, would have been fatal to the plaintiff's'
case as it would have brought the defendant's repossession within the statutory
period.. Since the plaintiff was claiming that the true owner's right of action had
accrued in 1949t section 10(3) (b) was completely inapplicable. The judge erred
in neglecting the time for the accrual of the action and in thinking that the plaintiff
would automatically be covered by sections 10(3) (b) and 9(3) if he was "some
person wrongfully claiming to be entitled to the land in reversion immediately
expectant on the determination of the lease.n
A more satisfactory course would have been for the decision to have been
in favour of the defendant under section 10(2). The statutory period began to run
with the accrual of the defendant's action in 1949, but when the defendant took
. possession of lot 446 pursuant to the lease in 1960, the land c~ased to be in adverse
possession before the true owner's right had been extinguished. Thus the defendant
acted within his rights when he repossessed the land in his own name in 1965.
One final question: how would Bligh v. Martin have been decided in Ontario?
Here the different wording of the Ontario statute of limitations would have estab-
lished the defendant's claim beyond all doubt. The Limitations Act of Ontario11
contains no equivalent to the English section 10, and the equivalent to the English
section 9(3) is section 5(1) which reads as follows:
5 (1) Where the person claiming such land or rent, or some person through
whom he claims, hast in respect of the estate or interest claimed, been in possession
or in receipt of the profits of the land or in receipt oj the rent. and has, while
entitled thereto been dispossessed, or bas discontinued such possession or receipt,
the right to make an entry or distress or bring an action to recover the land or rent
shall be deemed to have first accrued at the time of the dispossession or discontinu-
ance of possession, or at the last time at which any such profits or rent were so
received. (Emphasis added,,)
_ Bef,?re this section can be invoked there must be a person who has previ-
ously been "in receipt of the rent", and it is the interrnption by the squatter of
rent already being received that sets the Statute running. In contrast, the English
Statute makes no mention of actual receipt. The Ontario section thus provides a
less ambiguous description of the situation for which both statutes were trying to
provide and which was accurately elucidated by Pennycuick, J. (quoted above).
As a result, the plaintiff in Bligh, who was not diverting rent already being paid
to the rightful owner but was instituting a lease many years after the Statute had
begun to run, would :find no support for his position in the Ontario act. IS
Nor does the absence of an equivalent to the English section 10 impair the
effectiveness of the Ontario statute.. As was said above, section 10 was an attempt
l1R"S.O. 1960) c. 214.
lSThis in itself suggests that the decision was wrong, since the English Statute does not
embody a different policy but merely a variation in the wording.
134 FACULTY OF LAW REVIEW.

to codify the result arrived ~t judicially in Trustees, Executors, and Agency Coin..:.
pany Limited and Templeton v.. Short which laid down the rule that for the
Statute to continue to run, riot only must the rightful owner be out of possession,.
but the squatter'must be in possession. Ontario courts have explicity and, repeatedly:
accepted the Short decision,19 and although the resulting rule is not included 4i
the Ontario legislation, it is ·none the less recognized as forming an elemental part
of the law on adverse possession. ~
E. J. WEINRIB*

19McDonald v . McDonald (1890), 17 O.A.R. 192; Robillson v.. Osborne (1913), 27 O.L.R.
248 (D.C..); Pflug and Ppug v. -Collins) [1952] O.R. 519, [1952] 3 D ..L.R. 681, [1952]
O.W.N. 357; afPd [1953]. 1 D.L.R. 841, [1953] O.W.N. 140 (Ont. C..A.. ); Bruce v..
Johnson, [1953] O.W.N. 724 (Co" Ct.).. -.
*E. J . -Weinrib, B.A. (Tor~nto, 1965), PhD. (Harvard, 1968), First Year, Faculty of
Law~ University of Toronto.

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