IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(MR RECORDER LAMBERT)
B e f o r e :
LADY JUSTICE HALE
LORD JUSTICE RIX
|GARETH FREDERICK BEALE|
|VIVIEN LEE HARVEY||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR MARK TRENEER (instructed by Vine Orchards of Exmouth) appeared on behalf of the Respondents
Crown Copyright ©
"12 In the alternative, and should the court find that on its true construction that the Defendant's contract did not include all of the said land to the North of the said fence, then the Defendant pleads as follows:
b. i. [Countrywide] erected the said fence purportedly as a boundary fence. Immediately following the erection of the said fence, in February, March and April 1999, and with the consent of the Developer during the period prior to completion of the Defendant's purchase, the Defendant/her servant or agents dug out a strip of land immediately to the North of the said fence and there planted flower beds.
ii. The Defendant's said activities and the products thereof were observed on numerous occasions by ..... Mr Perkins who raised neither comment, complaint nor query upon the same and made no reference to any defect in the position of the said fence until September 1999.
iii. In the circumstances the Developer cannot, as against the Defendant, in good conscience assert the position of the boundary as being other than that marked by the said fence, and, as the Developers' successors in title, neither can the claimants."
"The transfer is concerned to differentiate between three parcels of land ..... and it does so exclusively by reference to the plan on the transfer and the colouring on that plan ..... the colouring on the plan is thus the dominant description of each parcel ...... where parcels in a conveyancing document as described by reference to a plan attached to the documents, the natural inference is that it was the intention that anyone should see from the documents alone, which means from the plan on it what land the document was purporting to pass."
"The map is referred to not for the purpose of shewing the site either of the house or the bound-stone. The facts as to the true position of the house and the bound-stone are ascertained by other means. The use of the map is to clear up what, without it, was uncertain, namely, from what part of the house the line was to be drawn; and for that purpose its exact site is immaterial."
Lord Cranworth said that it was for the jury, strictly, to say where the boundary line was drawn on the map, but because it was so plainly drawn from the north-east corner of John Vincent's house the jury would have had so to find. The problems which arose in that case differ from those of the present case. However, the Recorder, performing the function of the jury, had, in my view, to find, as he rightly did, where the boundary line ran.
"a case which has been long under suspicion of the gravest kind from real property lawyers."
In Wickham Tools v Schuler AG  AC 235 at page 261, Lord Wilberforce described Watcham as -
"a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate."
"Whether in its own field, namely that of interpretation of deeds relating to real property by reference to acts of possession, it retains any credibility in the face of powerful judicial criticism is not before us."
Watcham on this point runs counter to the decisions of the House of Lords that subsequent actions cannot legitimately be used to interpreet a written agreement (see John Miller & Partners v Whitworth Street Estates (Manchester) Ltd  AC 572 and the Wickham case). In Chitty on Contracts 28th Edn (1999) at paragraph 12-124 note 36 the authors say of Watcham:
"The authority of this case is now extremely fragile."
A decision of the Privy Council is not binding on this court and I decline to follow it on this point.
Order: Appeal dismissed with the costs as claimed by Mr and Mrs Beale to be assessed summarily.