To understand the comments made by Young J in Shaw v Garbutt (1996) 7 BPR 14 at 816, it is necessary to discuss the doctrine of adverse possession, it’s requirements and the history of how this law has been interpreted.
Philosophy of adverse possession
The basic underlying philosophy for the doctrine of adverse possession is that historically land use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to “reward the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his rights…” .
At common law, the possession of land raises a prima facie presumption that the possessor is the owner, and modern cases concentrate on possession as the basis of proprietary interest. What this amounts to is that a person may acquire property without the consent of the actual titleholder if he or she possesses it long enough and meets the legal requirements.
Situations may arise where a person who is not the rightful owner of land occupies the land without the permission of the rightful owner. This kind of occupation of land may be deliberate, for example by a squatter who is intentionally trespassing on the land, or it may be inadvertent, for example by a neighbouring landowner who unwittingly occupies the property.
The person wrongfully dispossessed of the land has a right to bring proceedings against the occupier to recover the land. However, in certain circumstances, limitation law operates after a period of time to deny the rightful owner the opportunity to bring such an action. When this happens, the occupier is able to continue in occupation undisturbed except by anyone who can prove a better legal right to possession of the land.
To seek a title by adverse possession, both the satisfaction of the common law requirements in relation to adverse possession and expiration of the relevant limitation period must be established.
Requirements of an adverse possessor
The Real Property Act 1900 s 45D (1)(b) provides that a person in possession of land may apply at any time to the Registrar General to be recorded as the registered proprietor of the land if:
“the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land”.
In NSW the current legislation on limitation of actions is governed by the Limitation Act 1969. S.27(2) of the Act states that the limitation period for an action to recover land is 12 years.
S 45D(4) of the Act prevents the lodgement of a possessory application unless the whole of the period of adverse possession (in this case, twelve years) is expired. S.28 of the Act provides that the cause of any action accrues on the date of dispossession or discontinuance.
To dispossess a rightful owner of land, actual possession of land without notice must exist. Actual possession consists of the following two elements:
*factual possession – the appropriate degree of exclusive physical control of the land in question; and
*animus possidendi – an intention to possess that land to the exclusion of all others including the true owner.
One without the other will not be sufficient. To amount to adverse possession the acts of possession must be inconsistent with the documentary owners intended use.
In Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270, 13,283, Bryson, J stated possession must be “actual, open, visible, notorious, continuous and hostile to the title of the true owner” to exist.
In Mulcahy v Curramore  2 NSWLR 464, however, Bowen, CJ stated that to amount to possession the inclusion of the requirements “peaceful, not by force” must exist.
In analysing this, Young J in Shaw v Garbutt posed the question “Is it a requirement that adverse possession be “peaceful, not by force”.”
Adverse possession – inclusion of peaceful and not by force requirements
Young J carefully considered the above judgment of Bowen CJ in Mulcahy v Curramore in light of the particular circumstances of Shaw v Garbutt and closely researched the definition of “peaceable” at common law. He did this in two ways; firstly he considered other judges definition of “peaceable” (including internationally); and secondly, he considered how precedence within Australia dealt with the interpretation of an aggressive act to protect one’s property whilst in adverse possession.
Young, J detailed the literal translation of words used by Bowen, CJ to be “without force, without stealth, and as of right” .
The Statute of Forcible Entry 1381 provides that entry into any lands except where entry is given by law must be peaceable and easy in manner. Contrary to this, is punishable by imprisonment. In Australia, the modern equivalent replacements provide ‘that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, provided bodily harm is no caused”.
Despite this offence of forcible entry, it was found in Hemmings v Stoke Poges Golf Club Ltd  1 KB 720 that ” a person retaining possession of land has no civil action for damages against the rightful owner who forcibly enters the premises unless more force is used than is reasonably necessary”. The bench further observed that “it will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the reply that he used more force than was necessary if the jury can be induced to find it.”
In Shaw v Garbutt many authorities are cited with varying interpretations of peaceable possession. Generally peaceable possession is seen as possession that is continuous and is not interrupted. That is it is equated not with the use of force or threats to defend possession of the land or disturbed by the commencement of a suit for possession.
Clearly where violent and unlawful force is used in defending land criminal action can be pursued.
Whether the possessor has been peaceable or not is a pure question of fact.
Forcible or threatening conduct in warning people off property can be characterised as an act going to establish possession of the land.
In Beever v Spaceline Engineering Pty Limited, the person in possession warned other persons off land by threatening with a shotgun. This was held to be “very unsatisfactory behaviour” however it was “an act of possession, in that it asserted a right to control the presence of the other person” .
Young J in Shaw v Garbut t also stated that if the ‘warning off’ of the property was found to not be ‘peaceful’ at common law, the outcome of the case could have been different.
In Bartlett v Ryan  NSWSC 807 (16 August 2000) the specific facts of the circumstances were considered and in this case the acts of force were determined such that the plaintiff was “deprived of the benefit of their adverse possession because it could not be said to have been nec vi nec clam nec precario, and particularly that it could not be said that it was peaceably and not by force that they had obtained and maintained possession” . As unlawful force was found an injunction was granted.
I return to the philosophy of the doctrine of adverse possession, which is fundamentally to protect property rights. The intention is not to encourage the wrongful taking of possession of land. To do so would only promote violent and unlawful acts, which would naturally occur between the parties disputing ownership of land.
A person’s right to acquire real property by adverse possession begins with the wrongful occupation of another person’s property. In the event that an action is made to recover the possession of land by the rightful owner gives a circumstance where each party can exercise the rights to possession of that land.
Whilst possession must be considered in every case with reference to the peculiar circumstances it is a requirement that all acts of possession be peaceable and without force, where peaceable infers uninterrupted and without force infers without violence. Protests and argument may not prevent the finding of adverse possession but obstruction and the use of unlawful physical force would.