COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
(Mr Recorder Timothy Lamb QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
SIR PAUL KENNEDY
| JULIE STRACHEY
|- and -
|FRASER THOMAS RAMAGE
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Mr Robert Sheridan (instructed by Nigel Pullen Solicitors) for the Respondent
Hearing date: 21 January 2008
Crown Copyright ©
Lord Justice Rimer :
The conveyancing history and relevant facts
"ALL THAT land together with the dwellinghouse and other buildings erected on part thereof situate in the United Parish of Gwinear and Gwithian in the County of Cornwall and comprising enclosures Nos. part 263 part 264 part 265 and part 266 on the Ordnance Survey Sheet for the former parish of Gwinear (Second Edition 1908) and known as 8 Trenawin Lane Gwinear aforesaid as the same is for the purpose of identification only edged red on the plan together with [various rights]."
"The Vendors hereby covenant with the Purchasers for the benefit of the property [Trenawin] to maintain and repair in good and stockproof condition the boundary fence between the property and the retained land [the fields] and which is between the points marked A and C on the plan and also the two gates which are between the points marked C and D and E and F on the plan and it is hereby agreed and declared between the parties that the said fence and gates belong in all respects to the Vendors."
"ALL THOSE closes of land formerly forming part of Trenawin Farm Trenawin Lane Gwinear Hayle in the County of Cornwall being part of enclosure numbere 265 and the whole of enclosures 266 267 and 319 on the Ordnance Survey map for the Parish of Gwinear – Gwithian (2nd edition 1908) and for purposes of identification only edged red on the plan attached hereto together with the buildings in the area hatched black thereon and the fences and gates mentioned in the Second Schedule hereto [that Schedule referring to the clause 4 covenant in the February conveyance]."
"(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.
(2) In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer fence, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any proportion of any adjoining road or stream. …" (Emphasis added).
The judge's judgment
"I see a boundary forming, between points A B and C, 2 sides of a rectangle. I have no difficulty in saying that the shorter side of the rectangle is at its greatest extent at least 2 and getting on for 3 times the width of Mr RAMAGE's barn. I find myself agreeing with Mr Eustice in the passage quoted above. The boundary is certainly not where the Claimant says it is."
"It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed."
"When, here, I imagine myself standing in the mowhay alone [the area between Ms Strachey's barns and the fence] and with only the Penrose/Stocks transfer [sic] and the incorporated plan to guide me it would be clear that point A was the eastern end of the Cornish hedge, point B the north Eastern corner of the Southern Dutch barn, where the granite stone stands, and point C is the metal gate post – all as shown on Mr Ramage's plan attached."
"When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that that intention must be ascertained."
"I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan 'for the purpose of identification only' is the sole means which the conveyance affords to indicate where the boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words 'for the purpose of identification only' should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained."
"… the starting point is that extrinsic evidence is not admissible as an aid to [the transfer deed's] construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. … Where description of the parcels is totally imprecise, and there is no explicit definition of the division of the house to be found in the description of the parcels, it is appropriate to examine the rest of the instrument to see if there is to be found any aid to the meaning of the deed in relation to the division of the house."
"… it may even be that if another method of measurement were adopted, the extent of the divergence would be substantially greater. Since the whole frontage to Oakleigh Park South is only 42 feet, it can be seen at once that this is not a mere trifling divergence."
"I would go with [leading counsel for the defendant] this far, that a boundary dispute and a property dispute may be two things quite different. It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase 'boundary dispute' and becomes something else. But applying the common sense test if, as [counsel] invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively. I think, for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property. What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision.
I agree with [leading counsel for the plaintiff] that s 19 and s 69 are directed to bringing registered land into the general scheme of the property legislation of 1925, and are not concerned with the sort of question which arises in this case. I further agree with [counsel] that section 76 and the rules provide, and I think provide clearly enough, that in the case of a general map or filed plan the boundaries are not intended to be more than indicated and not to be precisely defined."
"2. (1) The court may make an order for alteration of the register for the purpose of –
(a) correcting a mistake; …
(2) An order under this paragraph has effect when served on the registrar to impose a duty on him to give effect to it.
3. (1) This paragraph applies to the power under paragraph 2, so far as relating to rectification.
(2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor's consent in relation to land in his possession unless –
(a) he has by his fraud or lack of proper care caused or substantially contributed to the mistake; or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) if in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so.
(4) in sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land."
Sir Paul Kennedy :
Lord Justice Sedley :
little patch of ground
That hath no profit in it but the name.
In the present case a poorly drawn conveyance left in doubt the ownership of a patch of ground a fraction of an acre in size. Neither party, so far as one can tell, needed to own it in order to enjoy the use of the rest of their land, though both found its use convenient. Whichever of them held title to it, an easement of use or access should have satisfied the other's needs. But instead of reaching a compromise along these lines, war was declared. Unlike Old Caspar after Blenheim, we can now tell who won; but whether the expenditure on law and lawyers, vastly exceeding the value of the piece of land, has been worthwhile one has to doubt.