Perry v Clissold

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Citation: Perry v Clissold (1907) AC 73

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 152-3 [2.72]

Contents

Background facts

  • The Plaintiff [Clissold] took possession of land in 1881 without title and fenced it (adverse possession).
  • The Plaintiff peaceably maintained possession and conducted his business, without anyone bringing a better title.
  • The Defendant [Perry, Minister of Public Instruction in NSW and representing the Crown] compulsorily acquired the land to build a school.
  • The Plaintiff wanted compensation. The Defendant refused.

Argument

  • The Plaintiff argues that he is due compensation because he has rights as an adverse possessor.
  • The Defendant argues that the Plaintiff is a trespasser, and has no rights. Thus, no compensation is due.

Legal issues

Judgement

  • A person in possession of land as its owner and exercising peaceably the ordinary rights of ownership (an adverse possessor) has a perfectly good title against all the world but the rightful owner.
  • If the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations (Imp) applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.
  • Note: This means that a jus tertii defence does not apply to land. The existence of a third party with superior rights has no effects on the ability of a party with only a possessor title to bring actions against dispossessors.
    • This goes against Doe d Carter v Barnard[1]. This is because Doe d Carter v Barnard is wrong - Cockburn CJ’s judgment in Asher v Whitlock overrules the authority in Doe d Carter v Barnard by stating that possession is good title against all the but true owner. That is the law.
  • In this case, the owner had not come forward within the time specified. Accordingly, the Plaintiff acquired title through adverse possession.

References

  1. (1849) 116 ER 1524
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