England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE BARHAM)

		Royal Courts of Justice Strand London, WC2
		20th March 2003

1. THE VICE CHANCELLOR: This, the second of the two unfortunate disputes between neighbours, concerns the eastern boundary of the property of Mr Konstantinidis, No 6 Further Granary Cottages, of which he is the registered proprietor under title No NK 94208. It will be recalled that Mr Townsend is the registered proprietor of Wood Dalling Hall and other land under title No NK 93226.
2. Both parties' title stems from that of Sudemoor Ltd which owned all the relevant land, and more, in the late 198Os. On 17th August 1990 No 6 Further Granary Cottages was conveyed to a Mr Longstaff. Mr Longstaff sold to Miss Colgan in 1994. Miss Colgan sold to Mr Konstantinidis in December 1999. Wood Dalling Hall and other land was conveyed to Mr Townsend by conveyances or transfers dated 22nd August 1990 and 4th October 1993.
3. Thus the relevant conveyance is that from Sudemoor to Mr Longstaff. Unfortunately, it was not adduced in evidence. The best evidence of what was transferred is the proprietorship register of Mr Konstantinidis's title. This provides: 

"The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being Further Granary Cottage, Wood Dalling Hall, Hall Lane, Wood Dalling, (NR11 6SG)."

4. The relevant plan shows that the property conveyed is rectangular in shape, the long sides running from west to east, with the cottage, also rectangular shaped, lying more or less centrally between the eastern and western boundaries of the plot. It appears from the plan that the eastern boundary of the plot lay some distance from the eastern flank wall of the cottage so as to block off an old driveway. No dimensions for the plot are specified, and there is no note in the property register so as to exclude the provisions as to boundaries contained in Land Registration Rules 1925, r.278.
5. The evidence before the judge established that in the late 198Os Sudemoor was considering the development of the outlying buildings, formerly part of Wood Dalling Hall. They instructed an architect, Mr Furze, to draw up plans. One of the plans, as explained by Mr Furze in his evidence, showed a wall ("the 1988 wall") built in extension of the southern flank wall of 6 Further Granary Cottages to the east in about 1988. It terminated at a pillar from which was hung one half of the pair of gates over the driveway to Wood Dalling Hall.
6. The evidence also showed that in 1990 there was a line of posts with hooks from which to hang chains extending from the 1988 wall in a northerly direction to the east of No 6 Further Granary Cottages. It is the contention of Mr Townsend that the line of posts form the eastern boundary of No 6 Further Granary Cottages.
7. In 1994 Mr Townsend built another wall ("the 1994 wall") running north from the 1988 wall and terminating at a pillar at a point approximately intersecting with a line drawn along the northern boundary at No 6 Further Granary Cottages. The line of posts to which I have referred was to the west of the 1994 wall by some 792 mm or 2.5 feet. The 1994 wall required planning permission which Mr Townsend sought and obtained. The application and the plans submitted in support of it, though not to scale, are relied upon by counsel for Mr Konstantinidis as indicating that the boundary was where Mr Townsend wished to build the wall.
8. In 1998 there was a dispute between Mr Townsend and Miss Colgan, the predecessor in title of Mr Konstantinidis, as to the line of the northern boundary of No 6 Further Granary Cottages. This was resolved by agreement, and an order was made by District Judge Hayes on 8th July 1998 ("the 1998 order") fixing the northern boundary by reference to the yellow line on a plan attached to the order. This plan showed the eastern end of the northern boundary as terminating at the western face of the pillar at the northern end of the 1994 wall. The District Judge directed that his order should be noted on the titles of both Mr Townsend and Miss Colgan, and it duly was.
9. As I have already mentioned in connection with the dispute as to the water rights, these proceedings were instituted on 17th July 2001. Mr Konstantinidis claimed that the eastern boundary had been determined by the 1998 order. That issue was tried by Mr Recorder Evans at the same time as he dealt with the water rights dispute. He concluded that the 1998 order merely determined the northern boundary, not the eastern. He then went on to consider the effect of that order. Later, he said that the 1998 order in no way determined the eastern boundary. He concluded the issue in these terms:

"So -- in so far as I can make a declaration -- then the declaration that I make is in reality in the terms of the judgment which I have already given and which is not really in the terms of the declaration sought, save, I think, that in the submissions in the skeleton arguments at least I am invited to declare the extent of the northern boundary to the east though that is not actually what the declaration seeks in the particulars of claim. If somebody takes any issue with my giving any declaration other than the one sought within the particulars of claim, well then Mr Dutton is indicating he does not, so the declaration that I make is that the northern boundary is that which is shown marked yellow on the plan which was annexed to the order of, and I really cannot go any further than that."

10. There was no appeal from that order. Counsel for Mr Townsend accepts that the yellow line on the plan attached to the 1998 order shows that the eastern end of the northern boundary of No 6 Further Granary Cottages lies along the western face of the pillar at the northern end of the 1994 wall and that that conclusion is binding on Mr Townsend.
11. One consequence of the Recorder's order was that the line of the eastern boundary of No 6 Further Granary Cottages still had to be determined. The Recorder gave directions for the trial of that issue, one of which was that Mr Townsend was to be treated as the claimant. In due course that question came before His Honour Judge Barham. Both sides adduced oral and documentary evidence. The documentary evidence included Mr Furze's plans dating from 1988, the application of Mr Townsend for planning permission for the 1994 wall, and a number of photographs taken both before and after the construction of the 1994 wall.
12. Judge Barham gave judgment on 22nd July 2002. He recorded the rival contentions of the parties and referred to the 1988 order and that of the Recorder. He then considered the evidence adduced by the parties in his description of the background. In doing so he accepted the evidence of Mr Furze, who because of ill-health was not cross-examined, to the effect that he and Sudemoor had always regarded the gate pier at the east end of the 1988 wall as marking the boundary, and that a dotted line that he had drawn on a plan showed the boundary between the hall and No 6 Further Granary Cottages.
13. The judge then turned to what he described as significant evidence that Mr Townsend had always regarded the eastern boundary as being marked by the eastern pier in the 1988 wall. This comprised plans attached to Mr Townsend's application for planning permission for the 1994 wall, a letter Mr Townsend wrote in April 2000 to the agents instructed by Mr Konstantinidis to sell No 6 Further Granary Cottages, in which no mention was made of Mr Townsend's present claim that the eastern boundary is not marked by the 1994 wall, and a statement made by Mr Townsend to a Mr Gibson on 26th May 2000. The judge concluded that Mr Townsend had been motivated by the rejection by Mr Konstantinidis of his offer to buy No 6 Further Granary Cottages to make life as difficult as he could for Mr Konstantinidis.
14. The judge then considered Mr Townsend's claim based on the line of posts. He said:

"The defendant relies on some wooden posts to indicate the true position of the boundary. He claims that when he purchased the hall in 1990 there were wooden posts with attached chains which marked the boundary. In 1994, when Miss Colgan purchased what is now the claimant's cottage, he decided to build a wall near the boundary. The wall was built on his land leaving a small gap between the wall and the posts. The defendant produced photographs which were taken after Miss Colgan moved in. That is indicated on the photographs by the presence of her partner's blue van. The photos show two wooden posts. Attached to one of the posts is a hook. The witnesses Bert Ellis and Karen Stokes support the defendant in stating that these posts were there before the wall was built in 1994 and remained there after the wall was built. I am prepared to accept that there may have been posts in the vicinity of those posts at least as early as 1990. The defendant says the posts were removed by Miss Colgan after the wall was built."

15. Mr Bert Ellis had been the gardener at Wood Dalling Hall between 1990 and 1995. Miss Stokes had worked there as a cleaner and babysitter. Both of them identified the line of posts from photographs taken before the construction of the 1994 wall. It is not disputed that the 1994 wall at its southern end was built about 792mm to the east of that line. The judge observed that, though he accepted the evidence of both Mr Ellis and Miss Stokes, "they are unable to say that the posts marked the boundary."
16. The judge then considered the evidence of Mr Konstantinidis's predecessor in title, Miss Colgan, as to her understanding of where the boundary was and how many cars could be parked to the east of the cottage. The judge rejected the evidence of the chartered surveyor called to give evidence by Mr Townsend and the evidence of Mr Townsend whom he described as "unimpressive". He added:

"I felt at the conclusion of his evidence, and even more strongly at the conclusion of the trial, that I was unable to rely on anything he said unless it was confirmed by other reliable evidence."

The judge's conclusion is in these terms:

"I conclude that he [that is Mr Townsend] would not have built a wall marking the boundary on land other than that which he believed marked the boundary. Although it is for the defendant to prove where the boundary lies, he has failed to discharge the burden of proving it. It was said that, in the absence of a finding based on the posts and chain marking the boundary, it is impossible to define where the boundary lies. I reject that submission. The inference which can safely be drawn is that the boundary lies where Mr Furze said it lay. That contention is supported in my judgment by the defendant's own action. The claimant does not seek a declaration that the boundary lies where Mr Furze said it did. He seeks only a direction that it lies along the western face of the defendant's wall. I accept the claimant's contention. I grant the claimant the declaration that is sought and I reject and dismiss the defendant's counterclaim."

17. Counsel for Mr Townsend submits that the judge failed to ask himself the right question, namely what, on the true construction of the conveyance to Mr Longstaff as evidenced by the entry in the property register, was the extent of the property thereby conveyed, failed to ascertain the surrounding circumstances on the ground in 1990 in the light of which the conveyance was to be construed, and he failed to appreciate that at that time the only physical features by which the eastern boundary could have been delineated were the line of posts and chain relied on by Mr Townsend. Instead, he submits, the judge considered at length the opinions of others as to where the boundary lay, and the views and motivation of Mr Townsend, all of which are irrelevant to the issue he had to decide.
18. Counsel for Mr Konstantinidis never really met this case. Both in his written and oral argument he supported the judge's findings on the evidence. He invited us to conclude that until Mr Konstantinidis rejected Mr Townsend's offer to buy No 6 Further Granary Cottages in late April 2000, Mr Townsend believed that the 1994 wall was built along the eastern boundary and, being a meticulous man, had got it right.
19. In my view, the judge's approach was erroneous. He made no reference to the conveyance to Mr Longstaff, the property register of Mr Konstantindis's title or the file plan. He considered at length where various individuals considered the boundary to be which was irrelevant. The only consideration he gave to the surrounding circumstances on the ground existing as of the date of the conveyance to Mr Longstaff, namely the existence and position of the line of posts and chain, was in the context of the case for Mr Townsend, not the construction of the conveyance to Mr Longstaff or the property register. If on the proper construction of the conveyance to Mr Longstaff or the property register the eastern boundary to No 6 Further Granary Cottages lay where Mr Townsend claimed it did, neither the veracity nor the motivation of Mr Townsend could alter it.
20. It is unfortunate that the conveyance to Mr Longstaff was not produced at the trial, but its terms will have been the basis for the first registration of the title to No 6 Further Granary Cottages on 17th September 1990. Accompanying the application for that registration there will have been "sufficient particulars, by plan or otherwise, to enable the land to be fully identified on the ordnance map": see Land Registration Rules 1925, rule 20. There will then have been made all those inquiries, searches and examinations as are prescribed by rules 25 to 35 before the title was registered. Accordingly, in my view the property register of title No NK 942O8 is the best evidence of what was conveyed to Mr Longstaff. That refers to the file plan which, in accordance with Land Registration Rule 278, is not precise as to the boundaries. In these circumstances, it was and is essential to ascertain what physical features existed on the ground in 1990 capable of delineating the relevant boundary.
21. The evidence, as accepted by the judge, showed clearly that there was only one such feature, namely the line of posts and the chain. The judge appears to have accepted that the posts and chain were there in August 1990. Certainly, there was no evidence that they were not. They were inherently capable of delineating the boundary and were a relevant consideration to the construction of the conveyance to Mr Longstaff; indeed, there were no others.
22. The photographs to which I have referred show clearly the point at which the line of posts intersected with the 1988 wall. It is common ground that the 1994 wall was built 792mm to the east of that line. In these circumstances it seems to me to be clear that the eastern boundary of the land conveyed to Mr Longstaff in 1990 was formed by the line of posts and chain, and the contrary opinions of the witnesses to whom the judge referred are simply irrelevant.
23. The construction of the 1994 wall could have affected the position had there been any claim by Mr Konstantinidis for title to the land to the west of the 1994 wall by adverse possession or in consequence of some estoppel, but no such claim has been made. Thus, a strip of land to the west of the 1994 wall is still the property of Mr Townsend. But it is also necessary to consider the effect of the 1998 order.
24. The 1998 order only fixed the northern boundary by reference to the yellow line on the plan attached to it. The Recorder concluded that it did not fix the eastern boundary save "to the extent of the northern boundary to the east". Thus the 1998 order did fix the northern point of the eastern boundary, ("point X"). Photographs to which I have referred clearly fixed the southern point ("point Y") by reference to the junction of the line of posts with the 1988 wall. There is no evidence to show with any precision the exact path of the line of posts to the north of the area shown in the photograph.
25. In these circumstances, counsel for Mr Townsend invited us to conclude that the line of posts continued in a northerly direction so as, notionally, to intersect with the yellow line drawn on the plan attached to the 1998 order at a point to the west of point X equal to the distance between the southern end of the 1994 wall and point Y, ie 792mm.
26. The justification for this submission is that the property register and the filed plan suggest that the land conveyed to Mr Longstaff was rectangular in shape. In those circumstances, counsel suggest, the boundary must be measured off from the 1994 wall by the same amount from point X as point Y is from the southern end of the 1994 wall, and indeed at all points in between.
27. I do not accept that submission for a number of reasons. First, the assumption that the land conveyed to Mr Longstaff was a precise rectangle is inconsistent with the general boundaries rule contained in rule 278. Second, the exercise for which counsel contends also assumes that the 1994 wall was erected throughout its length precisely parallel to the line of posts and chain. There is no evidence to that effect and it is inherently unlikely. Third, it is necessarily inconsistent with the 1998 order. If the eastern end of the northern boundary is marked by the yellow line on the plan attached to the order, that point is point X. It cannot be 792mm to the west of point X.
28. In my view, on the basis of

(1) the entries in the property register of Mr Konstantinidis's title.

(2) the finding of the judge as to the existence of the line of posts and chain in 1990.

(3) the photographs showing the point at which the line of posts and chain intersected with the 1988 wall, ie point Y, and

(4) the terms of the 1998 order and the plan attached to it showing the eastern end of the northern boundary to be the west face of the northern pillar in the 1994 wall, ie point X,

the eastern boundary between No 6 Further Granary Cottages and Wood Dalling Hall is a straight line between points X and Y.

29. For these reasons I would allow the appeal, set aside the order of the judge and declare the boundary to be a straight line from point X to point Y.
30. LORD JUSTICE KAY: I agree.
31. LORD JUSTICE SEDLEY: I also agree.

ORDER: Appeal allowed; order of judge set aside; boundary declared to be a straight line from point X to point Y; no order for costs in the water rights matter either here or below; in the boundary dispute no order for costs in the court below but Mr Konstantinidis to pay 25% of Mr Townsend's costs as assessed of the appeal and to repay with interest from the date of payment to the date of repayment the amount of £9,664.07 paid under the interim order for payment of costs made in the court below; counsel to agree and lodge a minute of order with the court.