IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
B e f o r e :
LORD JUSTICE LATHAM
|DOUGLAS WILLIAM TURNER|
|PEARL ELIZABETH TURNER|
|PAUL JOHN TURNER|
|MARK FRANCIS TURNER||Claimants/Appellants|
|DAVID ALAN WAKEFIELD|
|MRS SALLY WAKEFIELD||Defendants/Respondents|
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MR S DIN (instructed by Messrs David Irving, Melton Mowbray, Leics) appeared on behalf of the Respondents
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(a) The property and land conveyed by the first conveyance and registered under title LT332245 is shown coloured yellow. The yellow land contains most but not all of the dwelling-house, No 9 Melton Road, and some part of the stable, and the corner where the stable adjoins the workshop. It also includes part of the yard and a small part of the dwelling house No 3 Melton Road.
(b) The property and land conveyed by the second conveyance and registered under title LT346485 - that is to say so much of the land conveyed by the second conveyance as was not conveyed on to Mr Nicholas O'Shaughnessy in 1989 - is shown coloured blue. The blue land includes some but not all of dwelling-house No 3 Melton Road, some part of the yard, most of the carport, garage and workshop, and part of the stable. (c) The property and land conveyed by the third conveyance and registered under title LT332243 is shown coloured pink. The pink land includes the whole of the dwelling house at No 5 Milton Road, most of the yard, including the covered access from Melton Road itself, and a small strip along the western edge of the brick barn building - where that building abuts the yard.
"The claimants' claim concerns the following parts of the complex, as shown for the purposes of identification only on Plan 2 annexed hereto:
(a) The Yard, which is coloured yellow on Plan 2.
(b) The Inside Toilet, which is coloured green and hatched red on Plan 2.
(c) The Store, which is coloured purple on Plan 2.
(d) Part of the stable. The stable is coloured orange on Plan 2. The Claimants make no claim in respect of that part of the first floor of the stable which was partitioned off by or for Mrs Margaret Turner for use as a toilet and utility area; references in the remainder of these particulars for claim to 'the stable' are to the remainder of the stable (including the whole of the ground floor thereof).
(e) The Outside Toilet, which is coloured red on Plan 2."
In that context Plan 2 is the land registry illustrative plan at page 76 in the appellant's revised appeal bundle to which I have already referred.
"In my judgment the plan clearly shows that the stable was clearly excluded from the conveyance for Mr Turner. Anyone looking objectively at the plan would say that the rectangle represents the whole of the Barn including the stable. The area to the south of the rectangle represents additional ancillary buildings. This area is L-shaped as the plan to the 2nd Deed of Gift shows more clearly. The shape and proportions are completely wrong for the stable whose depth is the same as the garage next to it. This interpretation of the plan accords with common sense. The Barn was originally a single building, part of a farm which was known as No 3 Melton Road. It was Elizabeth to whom No 3 was conveyed in the 2nd Deed of Gift."
But the judge forgot, when he referred to the Barn in that paragraph, that the rectangle shown on the conveyancing plan represented not just the brick barn; it included the workshop. Once it is appreciated that the rectangle shown on the conveyancing plan includes the workshop - and that the southern wall of the workshop was (and lay at the time) to the north of the southern wall of the barn, the judge's reasoning cannot be supported.
ORDER: Appeal allowed with costs, subject to detailed assessment; order for costs below to be set aside; payment out of £20,000 paid into court by the appellants with no other order as to costs below; leave to appeal to House of Lords refused.