COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HH Judge McCahill QC
Chancery Division, Birmingham District Registry
Lower Court Ref. No: BM330154
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MAURICE KAY
| LIAQUAT ALI
|- and -
|ROBERT LANE & ANR
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Jonathan Gaunt QC & Stephen Jourdan (instructed by The Wilkes Partnership) for the Appellants
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Lord Justice Carnwath :
i) The "claimed boundary" (blue);
ii) The "1985 conveyance boundary" (red); and
iii) The "extrinsic evidence boundary" (magenta).
Mr Ali argues for the blue boundary. The Lanes' primary case is for the magenta boundary. The red boundary is their fall-back position. This follows the boundary shown on the plan attached to the conveyance to them in 1985, which was in turn based on the 1979 Ordinance Survey map. As I understood the submissions of Mr Gaunt QC (for the Lanes) this was relied on, less as an alternative line in its own right, than as evidence undermining the blue boundary. The principal contest therefore is between the blue and magenta boundaries.
The disputed land and its surroundings
"Immediately to the north of the disputed land are the house and land known as The Croft. To the east, the disputed land is bordered by the Birmingham bound carriageway of the Alcester Road, the A435. To its west, lie some old ponds. Immediately to the south of the disputed land is "Greenacres", the Defendants' bungalow and outbuildings from which they run their cattery and dog kennel business. Greenacres is currently undergoing extensive development. The Defendants' new home is in the course of construction on Greenacres and, when it is ready for habitation, the existing bungalow will be demolished and three new houses built on the site of the former bungalow.
The Claimant has paper title to the disputed land and, in addition, to just over 10 acres of land adjoining the western boundary of the disputed land."
Further to the north on the A435 is a property known as Pretoria Cottage.
The judge's reasoning
"the sewer or drain laid in or under the land hereby conveyed and the adjoining land formerly of the Vendor in the position indicated on the said plan hereto annexed by green lines and marked ABC…"
The small-scale plan attached to this conveyance did not contain any such hatched area or line marked ABC. The judge accepted that this was a "simple omission", and that the reference was intended to be to the same indications as in the conveyance of 24th March (para 50-1).
"I am perfectly satisfied that great care went into the laying out and measuring of these three plots forming the 'T' section and, at the same time, the surveyor measured the frontage of The New House (subsequently to become The Croft) and the disputed land, having had the advantage of considering the original conveyances and the plans. They were drawn to a scale of 1:500. They were plainly drawn professionally and after a measurement of the dimensions shown on those plans…."
The judge's conclusions as to the boundary
i) All the plans appeared to show the disputed boundary running in a straight line. If this was a correct indication, the only problem was to fix the end points of the boundary to east and west.
ii) To the east, the starting point for Mr Worley's analysis was his Point A. This represented the northern boundary of the disputed land where it abuts the road. It corresponded to a hedge feature forming the southern boundary of the property known as The Croft (not owned by either party). As I understand, there is no dispute about the position of Point A.
iii) Mr Worley's Point B lay 31 yards to the south of Point A, along the road frontage. This measurement was taken from the 1947 plans. As a matter of measurement, it was agreed that Point B was accurately identified. Accordingly, if the 1947 plans were accurate, there could be no serious dispute about the eastern end of the boundary.
"… Mr Worley assumed that the boundary line started with the rear most oak tree in the line of mature oak trees and he called this Point C. He took a straight line through from Point C to Point B. Roughly this line passed through the centre or along the line of the oak trees, skirting the north wall of the kennel and through to Point B and the low wall. He concluded that this was the correct line of the boundary, along the line C, D, B. He then set out to check whether this assumption was internally consistent. He found Point Z an original fence post, on the boundary next to Pretoria Cottage which was in line with a mature hawthorn hedgerow. He then measured from this Point Z to Point Y, a fixed dimension shown on the marked plan of 27th March 1947. It was 76 yards 2 feet which corresponded with the length of the cross bar on the letter 'T' shown in the 1946 conveyance. Finally, he measured from Point Y (The Croft/disputed land boundary point) travelling north south across the rear of the disputed land to Point D where it intersected the line drawn between the last oak tree and Point B. He measured the distance Y to D as 48 metres which he calculated was the distance shown on the conveyance plan of 27th March 1947 between these two points. It should be noted that the conveyance itself did not express what the dimension was between Points Y and D. Mr Worley measured the distance on the conveyance and calculated it using the scale on the plan of 1:500. He then checked to ensure and confirm that Point A had been correctly identified as the starting point."
The judge described this analysis as:
"…internally consistent, consistent with the land features, and consistent with the dimensions shown on the 1947 conveyances".
"Mr Worley had no reason to know that this line would intersect the boundary wall at the time he prepared his first report postulating the true boundary line along the line C,D,B. It is either a coincidence that this line, when projected, did intersect this turning point in the boundary wall or it is some support for the proposition that his calculations are correct." (para 80)
For reasons which will become clear, I would not myself have attached any significance to this point, which begs the question of Mr Attridge's knowledge when building the wall. However, that does not detract from the force of the judge's conclusions on Mr Worley's overall analysis.
The magenta line
"This line is derived from extrinsic evidence, namely the remnant of a hawthorn hedge on The Croft side of the line of mature oaks, some barbed wire in the remnant of a hedge, a line of remnants of concrete godfather posts and a seven feet stretch of old fencing discovered by Mr Mitchinson close to the A435. This line, and the 1985 boundary line, are further promoted by the independence because it would result in remnants of an old track, a manhole cover and a line of conifers all being positioned within the ownership of Greenacres". (para 59)
(Mr Mitchinson is a civil engineer, who was commissioned by the Lanes in 2002 to carry out some demolition and rebuilding works at Greenacres. He had no direct knowledge of the site prior to that time.)
"…. At one time it was thought it was permissible to assess the extent of land conveyed by one conveyance by reference to later conveyances: see Neilson v Poole  20 P&CR 909, following Watcham v Attorney General of East Africa Protectorate  AC 533, but later decisions have shown that to be incorrect: L Schuler AG v Wickman Machine Tools Sales Limited  AC 235, Beale v Harvey  2 P&CR 18."
"The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used."
That case concerned the construction of an ordinary commercial contract. Lord Wilberforce recognised that there were exceptions to this general rule.
"… in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none." (p 915)
"It was said, as long ago as 1969, by no less an authority than Megarry J in Neilson v Poole (1969) 20 P&CR 909 at 912, that the then modern tendency was towards admitting evidence in boundary disputes and assessing the weight of that evidence rather than excluding it. That tendency has, in my experience, not diminished in the intervening years."
In that case the plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went out together and staked out the boundary. A subsequent purchaser of the field sought to challenge the agreed line, on the basis that it conflicted with the plan attached to the conveyance. This argument was rejected. Peter Gibson LJ said:
"I have to say that it would seem to me to be somewhat absurd, in a case where there is no verbal description of the land such as would serve to identify its boundary accurately and where the plan is imprecise in showing the boundary as following a vegetation line in 1977, and where both vendor and purchasers agree its exact position, if the court were then to shut its eyes to evidence of what they agreed was the true boundary."
Similarly, in Hillman v Rogers (1998, unreported), having found that the only conveyance plan was ambiguous, Robert Walker LJ said:
"It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make use of all the help it can get, from extrinsic evidence: see the observations of Megarry J in Neilson v Poole at page 915."
On any view of the scope of this exception, I have no doubt that the judge was entitled for the purpose of construing the 1947 conveyance of the dispute land, to have regard to the measurements shown in the other related conveyances, and to evidence relating to physical features on the land at that time.
"Title deeds come to little without evidence of actual enjoyment, for otherwise anyone might pretend to give away the lands of anybody else. Parchment, of itself, comes to little; the real question is as to actual enjoyment…"
That may have been a fair way of summing up the particular case; and no doubt Lord St Leonards was entitled to the verdict which the jury duly awarded. However, it cannot on any view be taken as a useful expression of the law as it is today. Even Bramwell B might have been surprised to know that his words to the Sussex jury would be cited 135 years later as a definitive statement on the subject. In the modern law the conveyance (parchment or not) is undoubtedly the starting point. It is only to the extent that it is unclear that extrinsic evidence may have a place.
"The principle that when an instrument contains an ambiguity evidence of user under it may be given in order to show the sense in which the parties used the language employed, applies to a modern as well as to an ancient document, and where the ambiguity is patent as well as where it is latent."
As a statement applicable to modern instruments generally, this cannot of course stand with the law as since established by Wickman Tools. As a statement applicable to conveyances of land, it may still have value.
"A decision of the Privy Council is not binding on this court and I decline to follow it on this point." (para 30)
The other members of the court (Hale and Rix LJJ) agreed.
"One may accept to the full that it does not apply to commercial contracts or, for that matter, to any language of obligation, whatever the document. If the question is what one party is obliged to do under some document, the effect of measuring the obligation by what in fact that person has done under the document is to convert into a binding obligation what may have been done as of grace or to promote good relations or to avoid argument….
In the Watcham case itself, as in Neilson v Poole, the matter in dispute was a matter of boundaries; and the application of the doctrine in this field involves very different considerations. Parcels clauses and plans in a conveyance not infrequently give rise to disputes on the application of what appears on the piece of paper to what lies physically on the ground. Even if there is no uncertainty as to the meaning of the words used or the ambit of what is coloured on the plan, there may still be serious problems of application. Furthermore, in these problems of application the passage of time often brings its own cure: the passing of 12 years may stifle an incipient boundary dispute, whereas it would do nothing to resolve the extent of a contractual obligation. In such circumstances, it seems to me that the doctrine may still play a useful part."
He illustrated this by reference to the instant case:
"Where for some 25 years or more the parties have acted on the footing that the disputed strip had passed to Mr. Clark, then even though the full period of limitation has not run (the period for a spiritual corporation sole is 30 years), this seems to me good reason for tending to construe the 1945 conveyance as having done what the parties appear to have treated it as having done, and as what by the passage of a sufficient period of time would by another means ripen into right. The application of the doctrine in territory such as this does not seem to me to be necessarily affected by the rejection of the doctrine in its application to far less suitable terrain…" (St Edmundsbury and Ipswich Diocesan Board of Finance and Another v Clark (No 2)  1 WLR 1572, 1585-6)
"I find strange the notion that the true intention of the parties to Mrs Harvey's Transfer as to what they intended to be the boundary line between their properties should be ascertained by reference to what the parties did in the first few months after the Transfer at a time when it had not been pointed out, nor had it occurred to either of them, that the wall and fence had been wrongly positioned." (para 30)
"… good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done…"
I do not read that as necessarily confined to long usage by the original parties. We need not decide whether that is a permissible extension of the Watcham principle. It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary. That is not this case. The unilateral actions of the owner of one side (in this case Mr Attridge) could not be relied on as binding on the owner of the other.
Mr Gaunt's 8 points
i) The 1985 conveyance.
ii) The hawthorn hedge at the west end.
iii) A track to the north of the kennel block.
iv) The remains of concrete godfather posts to the north of the kennel block.
v) A drain and inspection chamber north of the kennel block.
vi) Mr Unwin's evidence about the footings of the kennel block.
vii) A section of fence close to the A435.
viii) A row of conifers to the east of the kennel block.
(i) The 1985 Conveyance
(ii) The hawthorn hedge at the western end.
"The photograph attached to this statement shows the piggery building with mature trees directly behind what is possibly the remnants of a hawthorn hedge beyond. Mr Rock believes that the hedge remains are the old OS feature. Mr Worley believes that the OS feature was the tree line."
The judge preferred Mr Worley's evidence on this:
"I accept that there was at one stage a hawthorn hedge which ran parallel with the line of mature oak trees but on The Croft side of the line of mature oak trees. There is no evidence as to the age of that hedge or as to the age of the mature oak trees.
However, having visited the site, I was impressed by the line formed by these substantial oak trees. Whilst their age remains unknown, I am satisfied from the aerial photographs they were clearly established and mature trees well before the earliest of the aerial photographs in the middle of the 1970's. Those oak trees show clear evidence having had barbed wire passing alongside them not only because of the remnants of barbed wire found in them but also because of the gouge marks created by the line of the barbed wire as it bit into the tree or as the tree grew around it." (paras 62-3)
This conclusion, arrived at after hearing the evidence and viewing the site, is unimpeachable in this court.
(iii) The hard core track.
"…a temporary use which constituted a trespass on the disputed land and did not represent a boundary line separating Greenacres from the disputed land" (para 74)
"…a rough brick roadway in that position some 12-13 feet wide and that the far side of the roadway was separated from the adjacent land by a wire fence about 3 feet high consisting of big mesh and barbed wire, and towards the rear of the block a more substantial fence with 6 foot high concrete posts and chain link fencing"
This evidence, if accepted, would have thrown considerable doubt on Mr John Attridge's evidence that the kennel block was built by his father right up against the trees.
(iv) The concrete godfather posts.
(v) The drain and inspection chamber.
"I inspected the manhole in place at the rear of the kennel building and in my opinion this manhole is of similar age to the adjacent buildings which I understand were built in the 1970's. There is no evidence of any old drains entering the manhole from across the land claimed by adverse possession. In my opinion it is clear that this manhole was originally installed in its current position to serve buildings within Greenacres and has not had any other purpose"
(vi) Mr Unwin's evidence.
"Mr Unwin referred to trial pits dug to the north west of the kennel block on Greenacres. These revealed a neatly shaped concrete footing for the kennel block at about 0.5 metres depth, extending about 0.4 metres north west from the kennel wall. Mr Unwin said that this must have been poured into a trench at least 0.5 m deep and extending about 0.45 m north west of the buildings elevation. It was highly unlikely that a trench with such even sides could have been dug with trees nearby."
Mr Unwin concluded:
"…Based on the trial pit evidence, it is likely that an oak tree (or trees) were located several metres from the kennel block"
(vii) Fencing near the A435.
(viii) The conifers.
"I do not think that Mr Attridge applied his mind to whether he was planting these trees off or on the disputed land. The fact is they provided a convenient screen against the A435 and they were planted in the area immediately adjacent to the eastern end of the kennel building. I am satisfied that no reliable inference or conclusion can be drawn from these conifers either on their own or in conjunction with any other extrinsic evidence upon which the defendants rely." (para 75)
"….the work recently carried out by Mr Kelly…included excavating parts of the disputed land. The excavations undertaken by Mr Kelly's workmen have revealed that there was no drain running immediately to the north of the Worley boundary, but there was an old drain, a 6 inch clay pipe, which was located about 4.5 metres to the north of the Worley boundary, running towards the main road. That is exactly the place one would have expected to have found an old drain if the magenta line….was the true boundary. In the course of Mr Kelly's works, I saw workmen excavating trenches from the manhole heading in a straight line towards the main road and at no point was any old drain revealed by those excavations…."
Lord Justice Maurice Kay:
Lord Justice Waller: