Eden v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 29 October 1979
• Court: Grand Court (Cayman Islands)
• Date: 29 October 1979

Grand Court

(Summerfield, C.J.)

EDEN (S.) and EDEN (R.) v R.

T.M. Bodden for the appellants;

D.E. Ritch for the respondent.

Case cited:

(1) Levy v. Administrator, 1952–79 CILR 42, applied.

Legislation construed:

Land Adjudication Law, 1971 (Law 20 of 1971), s.4(1):

‘ . . . [T]he Administrator shall appoint a Land Adjudication Tribunal for the Adjudication area consisting of an Adjudicator, and two Assessors having local knowledge of the adjudication area. The Adjudicator . . . shall consult with the assessors and record their opinions on local matters, customs and conditions, but shall not be bound to follow them.’

s.16: ‘In preparing the adjudication record-

(a) if the Records Officer is satisfied that a person-

(i) is in open and peaceful possession of a parcel and has been in such possession by himself or by his predecessors in title for an uninterrupted period of twelve years or more; or

(ii) has a good documentary title to the land and that no other person has acquired a title thereto under any law relating to prescription or limitation, and that he would succeed in maintaining or defending such possession or title against any other person claiming the land or any part thereof,

the Records Officer shall record that person as the owner of the parcel and declare his title absolute;

(b) if the Records Officer is satisfied that any land is entirely free from private rights, or that the rights existing in or over it do not amount to full ownership and are not such as to enable him to proceed under paragraph (d) of this subsection, he shall subject to the provisions of paragraph (e) record the land as Crown Land . . . .

(2) For the purpose of this section-

(a) a person is deemed to be in possession of land if he does not acknowledge the title of any other person to that land and by himself, his agent, tenant or servant, actually uses or has used the land to the exclusion of the public:

Provided that where it is established (whether by local custom or otherwise) that any parcel of land includes an area of swamp or cliff land, occupation or use of other areas of such parcel shall be deemed to imply possession of the swamp or cliff land also;

(b) “good documentary title” means a title evidenced by documents which establish that a person is entitled to land in fee simple and commencing with a grant, conveyance, assignment, mortgage or other good root of title which is more than twelve years old.’

s.17(1): ‘All unclaimed and unoccupied land shall be deemed to be Crown Land.’

s.21: ‘At any time before the adjudication record becomes final, the Adjudicator-

(a) may correct in the record any error or omission not materially affecting the interests of any person; and

(b) after taking such steps as he thinks fit to bring to the notice of every person whose interest is affected his intention to make any material alteration in the record which he considers necessary, and after giving such person an opportunity to be heard, may make such alteration.’

Land Law-land adjudication-good documentary title-extrinsic evidence admissible to relate boundaries recited to area of land claimed

Land Law-land adjudication-good documentary title-root of title not impeached by subsequent conveyance purporting to specify different boundaries-later belief cannot enlarge or diminish land conveyed

Land Law-Crown land-reception of English law-common law of England introduced into Cayman Islands by original settlers-common law rule that all land originally vested in Government subject only to estates granted to others

Land Law-land adjudication-local custom-essential characteristics-general right replacing general common law in limited locality-to have uninterrupted existence from time immemorial

Land Law-land adjudication-local custom-proof-to be strictly proved unless so notorious that judicial notice can be taken of it-assessor”s role under Land Adjudication Law, 1971, s.4(1) limited to expressing opinion to adjudicator-may not give evidence or make declaration of custom

The appellants appealed from the decision of an adjudicator in a land dispute.

The first appellant was the executor of the estate of a deceased person which laid claim to an interest in land and also claimed in his personal capacity as a transferee of part of the land. The second appellant claimed as a beneficiary under the will of the deceased. Several other parties and the Crown made competing claims to the land and to contiguous parcels, and the court undertook in the present proceedings to comment on all the claims.

The land claimed by the appellants was described in their root of title (a conveyance of 1913) as dry land in the south and swamp extending ‘to the sea’ in the north. The ‘sea’ was in fact North Sound, an inland bay. A conveyance in 1945 from a beneficiary under the will to the first appellant of part of the land claimed originally described it as ‘bounded on the north by mangroves’ (presumably referring to the inner edge of the swamp), these words having been altered in different handwriting and ink to ‘to the sea.’

The adjudicator awarded the appellants the area of dry land claimed

but, with regard to the swamp, concluded that the 1913 conveyance was ambiguous and not a good root of title because it did not recite the extent or acreage of the area conveyed. Moreover, he ruled that the 1945 conveyance cast doubt on the validity of this earlier deed by suggesting that the parties believed that the land extended only to the inner edge of the swamp.

The assessors gave evidence of local custom around North Sound to the effect that title to swamp or cliff land was shared equally between the owners of the land at the opposite ends of the feature. Applying this custom, the adjudicator awarded half the swamp to the appellants and the other half to the Crown as trustee for the inhabitants of the Cayman Islands, by virtue of its ownership of North Sound and its foreshore. The decision was upheld at the petition stage of the proceedings.

The appellants appealed to the Grand Court, relying on the conveyance of 1913 as their root of ‘good documentary title’ to the whole of the area described therein. They submitted that the Crown”s rights were now governed by s.17(1) of the Land Adjudication Law, 1971 and that since the land in question was not ‘unclaimed and unoccupied’ within the meaning of that sub-section, the Crown was required to establish its title under s.16(1)(a) and (b), which it had failed to do.

Held, allowing the appeal:

(1) The original conveyance of 1913 under which the appellants sought to establish their claims was a good root of title. The absence of any reference to the acreage conveyed did not make it ambiguous, since extrinsic evidence could have been admissible, if necessary, to relate the boundaries recited to the area concerned. Moreover, the 1945 conveyance could not in any way impeach the 1913 deed, since it did not matter what the parties subsequently believed to be the boundaries of the land-whatever their belief it could not enlarge or diminish what had been conveyed. Consequently, the appellants could show ‘good documentary title’ under s.16(1)(a)(ii) of the Land Adjudication Law, 1971, to the whole of the land claimed, i.e. as far as North Sound including the whole of the swamp. No alleged ‘custom’ could limit this title or form the basis for the Crown”s claim to any part of the swamp encompassed within the lands in the documentary title. The appellants” claims would therefore be upheld subject to all claimants” reaching agreement on the nature of the estate or interest to be recorded (page 412, lines 19–29; page 413, lines 25–32; page 414, lines 6–27; page 417, lines 6–11).

(2) None the less, it was not the case that the Crown in this or any other suit had to prove its title to land under s.16(1)(a) and (b) of the 1971 Law when the land was ‘unclaimed and unoccupied.’ The ownership of all land in the Cayman Islands was vested in the Crown by the common law of England introduced by the settlers of the early 17th century. It was subject only to later interests acquired either by grant from the Crown, or by prescription, adjudication or registration. Section 17(1) of the 1971 Law did not therefore limit the Crown”s claims to land

to cases in which it was ‘unclaimed and unoccupied’; in all cases, it could claim a common law title unless that title was shown to have been displaced (page 414, line 30 – page 415, line 18).

(3) Although a local custom could not derogate from a ‘good documentary title’ within the meaning of the Land Adjudication Law, 1971, s.16(1)(a)(ii), it could have significance in relation to title acquired by ‘open and peaceful possession’ under s.16(1)(a)(i), but then only to the limited extent recognized by s.16(2)(a), proviso, i.e. whether a parcel of land by custom includes a swamp or cliff. To be recognized at all, a local custom has to be a general right which displaces the general common law in a distinct, limited locality of the Islands. It has to be proved to obtain in that locality, where it will affect the property of an indeterminable number of people connected with that locality, and does not attach to a particular person. It must have existed...