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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Moncrieff v Brugge & Anor [2001] EWCA Civ 555 (5 April 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/555.html
Cite as: [2001] EWCA Civ 555
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(His Honour Judge Dickinson)
Strand London WC2 Thursday, 5th April 2001 |
||
B e f o r e :
____________________
| MARGERY LILA MONCRIEFF | ||
| Claimant/Respondent | ||
| -v- | ||
| NICOLAAS BRUGGE and MARY BRUGGE | ||
| Defendants/Applicants |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent Claimant did not appear and was not represented.
____________________
Crown Copyright ©
- LADY JUSTICE HALE: This is a defendants' application for permission to appeal against orders made by District Judge Dickinson, sitting as a circuit judge in the Worcester County Court on 4th January 2001, in a boundary dispute.
- The claimant and the defendants were owners respectively of Eye Manor and Eye Manor Cottage. Both of these properties were previously in the ownership of a Mr Sandford and then his widow, Mrs Sandford. In September 1983 Mrs Sandford sold Eye Manor to the Moncrieffs. She retained the Cottage for herself. She died in 1993 and her children inherited the Cottage. They sold it to the defendants in October 1995. The dispute is about the precise demarcation of the boundary between the two properties and the extent of the Cottage's right of way over the Manor drive. The defendants had erected a fence where they said the boundary lay. The claimant wanted that removed. The claimant's husband, Mr Moncrieff, had died shortly before the proceedings began.
- The difficulty for the defendants, and it is one in which I have great sympathy for them, was that everything depended upon what had happened and been agreed in 1983, when the Manor had been sold. Anything that the defendants had been told when they bought the Cottage in 1995 could not affect that. Unfortunately, and as happens all too often, the plan attached to the 1983 conveyance was not very detailed. It was, as the judge found, in one respect seriously inaccurate; and in any event it was, as is usually the case, expressed to be for identification purposes only.
- Originally there were three areas of dispute over the boundary. The first was as to the southern edge of the Cottage land. This had been marked A to B on the original plan. It was more or less a straight line. Although that plan suggested that the boundary went right up to the then existing sheds on the Manor land, it appears to be common ground - it was certainly supported by the solicitor acting at the time - that in fact it lay some four feet to the north (that is, the Cottage side of those sheds) in order to allow access. Mrs Sandford erected a fence along that boundary. Then the claimant and her husband built a greenhouse and reordered the sheds. Part of the greenhouse wall encroached on a small triangle of Mrs Sandford's land, so they gave her a corresponding triangle of their land. It meant that the boundary now had a dog leg, rather than being a straight line. Subject to that, it was meant to remain in the same place, still leaving a gap between the shed and the Cottage boundary. The pleadings allege a deed of variation. The amended defence agrees to a declaration to that effect, although the judge said that the precise line remained to be clarified. So that part of the dispute was largely sorted out.
- The second area of dispute was as to the eastern edge of the Cottage land. It was the claimant's case that the original boundary line, marked from B through C to D on the conveyance plan, was level with the back of a shed on the Cottage land which has been referred to as "the looseboxes". It extended south to meet the line on the southern boundary at point B, and it extended north to meet point D, which was at the fence of the orchard. The claimant's case was that she and her husband had been shown a fence over part of it when they walked the proposed boundaries with Mrs Sandford. The defendants' case was that the boundary was some feet further east of this, leaving a gap behind the looseboxes, and that the established yew hedge to the north of the shed was wholly in the Cottage land and not either forming the boundary or being in the Manor land.
- The judge accepted the evidence of the claimant's deceased husband and of the claimant as to what Mrs Sandford intended. He accepted the existence of the fence and he expressly rejected the evidence of Mrs Sandford's son to the contrary effect. He found that evidence not credible.
- The third area of dispute was in the north-east corner, where the original boundary line B to D met point D. Mrs Sandford had planted a small yew hedge with an ornamental gate in it at an angle to the other boundary line, thus cutting off a triangle of land from her garden. The claimant's case was that thereafter she and her husband had possessed this triangle of land: they had mown the grass, and it had become theirs by adverse possession, although it had not been included in the conveyance to them. The defendants' case was that the hedge and the gate were purely ornamental and that the triangle remained part of the Cottage land.
- The judge accepted that, although the triangle was not conveyed to the claimant and her husband, it was what Mrs Sandford intended to be the boundary when she erected the hedge and the gate, and that their mowing the grass meant that they had acquired it by adverse possession.
- As far as the driveway was concerned, the claimant's case was that the right of way was limited to the area of the drive coloured green on the original conveyance plan and now tarmacked, but that the defendants had been reversing out of the Cottage entrance onto part of the drive which proceeded on to the Manor over which they had no right of way. The defendants' case was that their right of way covered all of this part of the drive. To some extent it may be dependent upon their view of the extent of the southern boundary at that stage, which subsequently was compromised. In any event, their view was bolstered by the evidence of Mrs Sandford's solicitor at the time that he had not meant the colouring on the plan to be definitive of the exact extent of the right of way, but simply an indication that reasonable use should be allowed over that area of the drive.
- However, the judge accepted the evidence of the claimant that when Mrs Sandford had lived in the Cottage she had kept to the area coloured green. He could appreciate that there might be problems with a large pantechnicon getting out of the Cottage grounds and onto the drive, which is at something of an angle to the Cottage entrance, but he accepted that Mrs Sandford had had no problems and that she had been able to turn her vehicles round on the Cottage land before coming out. He also said that it was perfectly apparent on the ground where the boundary between the two areas of the drive lay. The judge had, of course, had the benefit of a visit to view the property before the trial.
- The arguments which the defendants wish to advance on appeal come down basically, it has to be said, to the complaint that the judge was wrong to believe the claimant's evidence and wrong to reject the evidence of Mr Sandford for the defendants. As to the eastern boundary, the defendants rely on a solicitor's letter dated 10th November 1995, which points out that the conveyance plan shows a gap between the looseboxes and the boundary. The defendant is quite right that the conveyance plan shows a gap between the looseboxes and the boundary. The regrettable fact is that that is almost certainly the plan the defendants were shown when they bought the Cottage from the young Sandfords. However, Mrs Boll, Mrs Sandford's daughter, had written to the claimant on 26th February 1995 saying that, "We agree that the boundary runs along the back edge of the looseboxes." The judge pointed out in his judgment that some confusion had been caused because the Ordnance Survey plan used for the conveyance showed the looseboxes or shed in a quite different position, somewhat closer to the Cottage and at a different angle, from the position in which it now was. But he accepted that the plans which had been relied upon in the case now showed the shed in the right place in comparison to where it was on the conveyance plan. The defendants also rely on Mr Sandford's evidence that the line would run outside the existing yew hedge, while the solicitor says that the hedge would form the boundary.
- The difficulty facing the defendants is that the judge heard all this evidence. He accepted that the shed was now in a different position from that which had been shown on the Ordnance Survey plan, which was used simply to identify the boundaries. He accepted the evidence that was before him that the boundary intended by Mrs Sandford was along the back edge of the looseboxes. It is quite impossible for this court to retry the case on the basis that the judge was wrong to accept some evidence and reject other evidence. It is not the function of the Court of Appeal to decide that the judge was wrong to believe one witness rather than another. So it would be quite impossible for the Court of Appeal to overturn the judge's findings on this point; particularly when there is such an obvious explanation for the misunderstanding. It is very unfortunate for the defendants, but it is quite clear what that was.
- As far as the driveway was concerned, the defendants face a similar difficulty. They argue that there was no tarmac on the drive originally; that the 1983 sale particulars which referred to a tarmac drive up to the Manor and the claimant's witness statement were untrue. They allege that the claimant and her husband had laid the tarmac in accordance with their view of the right of way in 1995.
- The green line on the conveyance which was coloured in by the solicitor, as I have said, is not very precise and, of course, one can understand that it was not intended to be very precise. Nevertheless, it does appear to stop some way short of the corner between the southern and the eastern boundaries of the Cottage property represented by point B. If so, that supports the differentiation on the plans used on the pleadings between the area of the drive which is coloured green and the area of the drive which is coloured pink.
- Moreover, we are back to the same problem: the judge believed the claimant. If the defendants had wanted to make this allegation of what amounts to deception on the claimant's part, they should have made it then and they should have called any relevant evidence then. Again, this court does not allow the case to be tried afresh. There are strict rules or principles governing the introduction of fresh evidence. Generally speaking, evidence which could with reasonable diligence have been made available at the trial, but which, for whatever reason, was not made available at the trial, cannot be admitted on appeal. It is therefore one of those sad cases in which the Court of Appeal cannot interfere with the judge's findings as to the credibility of the witnesses and cannot admit fresh evidence.
- There is, therefore, no prospect of an appeal in this case succeeding; although I understand, as I hope I have explained, why the defendant feels that he ought to have succeeded because he took the view that he did about the boundaries. Accordingly, I have to refuse the application.