Property Management

ISSN: 0263-7472

Article publication date: 1 May 2000



Waterson, G. and Lee, R. (2000), "Trespass", Property Management, Vol. 18 No. 2.



Emerald Group Publishing Limited

Copyright © 2000, MCB UP Limited


Jones and Another v. Stones (1999) IWLR 1739 CA

The interested point in this case was the basis of a defence of acquiescence or estoppel in relation to a claim of trespass to land.

The plaintiff and defendant in this case owned property, separated by a stone wall, that had once been in common ownership. The plaintiff's alleged trespass by the defendant in that he had placed an oil tank on part of the wall, placed and maintained flower pots on it, erected a fence on the plaintiff's land, a block wall closing access to the plaintiff's property and a concrete platform and a gas tank.

The defendant did not dispute the acts of alleged trespass but claimed that they were not trespasses because the wall was party wall and the fence, block wall, concrete platform and oil tank were all on his own land: alternatively, that the plaintiffs were not entitled to an injunction because of acquiescence or estoppel on their part.

At first instance the judge held that the stone wall was not a party wall but belonged to the plaintiffs and that the boundary lay on the line that they had contended. Thus the defendant had committed the act of trespasses and a declaration delineating the boundary between the properties was made and the fence, gas tank, concrete platform were all ordered to be removed. An injunction preventing further trespasses was granted. However, in relation to the oil tank and the flowerpots the judge upheld the defence of acquiesce and thus these items were excluded from the injunction. The plaintiffs appealed against this part of the judgement.

Aldous LJ examined the various precedents relating to the defence of acquiescence or estoppel and concluded that the statement of Oliver LJ in Habib Bank Ltd v Habib Bank AG Zurich (1981) IWLR 1265 represented the law on this issue. Oliver LJ stated at p. 1285b:

The most recent cases indicate, in my judgement, that the application ... of the principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of same preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.

Aldous J thus concluded that the heart of estoppel or acquiescence lies in an encouragement or allowance of a party to believe something to his detriment. Thus, applying the principle to this case three question had to be asked: first whether any action or inaction of the plaintiffs encouraged the defendant to believe that he was entitled to put the oil tank on the wall and keep the flowerpots there; second, if there was, did this cause him any detriment?; third, whether in all the circumstances it was unconscionable of the plaintiffs to assert their legal rights.

Aldous LJ held that on the evidence no action or inaction by the plaintiffs had encouraged the defendant's belief, nor had he established that he had suffered any detriment. Thus none of the essential elements had been made out and furthermore the judge had been wrong to conclude that the defence of acquiescence could succeed because of delay in making the complaint. Delay was not sufficient.

The appeal was allowed.

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