England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES COUNTY COURT
His Honour Judge Winstanley
Case No: 7CL07757

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/05/2010

Lord Justice Rimer :

Introduction

1. This is an appeal by the claimants, Joy Huntley and her son Graham, against an order made by His Honour Judge Winstanley in the Kingston-upon-Thames County Court on 4 March 2009 following his 109-page reserved judgment delivered after a five-day trial. The issue before the judge was as to the line of the boundary separating the claimants' house at 38 Simmil Road, Claygate, Surrey from the neighbouring house to its west at No 39 owned by the defendant, Simon Armes.
2. Paragraph 1 of the judge's order contains an elaborate declaration as to the line of the boundary, its overall length being some 104 feet. The line runs south from a designated point at the northern end of the properties (fronting Simmil Road) in a straight line to the north-east corner of Mr Armes's garage; then, after a slight easterly kink, along the eastern flank wall of the garage; and then, after a slight westerly kink, in a straight line to the rear of the properties along the eastern face of three wooden panels, the eastern side of a single concrete fence post standing at the north-west corner of a wooden shed near the bottom of No 38's garden and the western side of the shed. The line is shown in green ('the green line') on the plan used at the trial.
3. The boundary line asserted by the Huntleys, but rejected by the judge ('the red line'), runs from the same northern starting point (as to which there was and is no dispute) in a straight line to the rear of the properties such that there is a steadily increasing divergence to the west of the green line, the difference at the most southerly point being some five feet. The disputed land is therefore in the nature of a triangle ('the disputed triangle') formed by the red and green lines, save that the green line is kinked as I have described. The red line passes through Mr Armes's garage, so that the Huntleys are asserting that part of the garage is on their property. It is, however, no part of their case that, if they are right as to the boundary, any part of the garage must be demolished, nor do they make a proprietary or possessory claim to any part of it.
4. The practical reason underlying the Huntleys' bid in this unfortunate, and no doubt very expensive, litigation to establish the red line as the boundary is because they say it will assist them in manoeuvring, and opening the doors of, a normal sized family car on their driveway at the front of No 38. At present the parties' adjoining driveways are unfenced, and until 2005, when the dispute erupted, there was a neighbourly element of give and take on both sides which made the precise demarcation of the boundary unnecessary: to the extent that the opening of car doors involved a crossing of it, the parties were able to live with such moments of transient trespass. But Mr Armes now intends to erect a fence along this front section of the boundary, although he has not done so yet. If he is entitled to erect it on the green line, the Huntleys' assessment is that it will materially impair their motoring manoeuvres, although it also appears that their difficulties in this respect may have been aggravated by their construction a few years ago of a new porch for No 38. If, however, they are right that the red line rather than the green line marks the boundary, they will have an extra 35 centimetres or so in the material part of the driveway. Although at the rear of the properties the divergence between the competing boundaries becomes ever wider, it is only the problems at the front that have led to this litigation.
5. The essence of the judge's decision was that when Nos 38 and 39 were built (which was in 1935), the boundary between them was marked by a post and wire fence running the whole length from north to south. Although over the years that fence had been removed and, in part, replaced by substitute boundary features, he found that it had been so replaced by features that – with certain variations - followed the line of the original fence. That line was and is the green line, which he held to be, and to have always been, the line of the boundary.
6. The Huntleys' challenge to the judge's decision is based on the assertion that his starting point should have been, but was not, to consider where the 1935 conveyance of No 39 shows the boundary to be. It is said that it shows it as following a straight line – the red line - between definitively identifiable points; and that the probabilities are that the original post and wire fence followed that line rather than the green line. The boundary found by the judge is not, however, a straight one, but is twice kinked, and it leads to a point at the southern end of the properties that is some five feet adrift of the terminus identified by the conveyance.
7. Mr Armes's responsive argument is that, contrary to that contention, the conveyance does not show the boundary line to be the red line. It is said that the boundary was, from the outset, identifiable only by reference to the different line of the original fence that was erected when Nos 38 and 39 were built; and that the judge made impeccable findings that the green line followed the line of that fence and its later substitutes.
8. Alternatively, Mr Armes asserted that if, contrary to that contention, the conveyance does show the red line to be the boundary, the judge's findings show that the original fence was not erected along that line but along the green line. It followed that by about the 1950s at the latest, the paper title of the Huntleys' predecessors to the disputed triangle was extinguished by the adverse possession of Mr Armes's predecessors; and that the judge's boundary declaration correctly reflected the line of the fence that has resulted in such extinguishment.
9. The judge made no finding of adverse possession, although Mr Armes had pleaded and argued such a case. On the judge's approach, which I shall explain, no question of adverse possession arose. Nor did Mr Armes serve a respondent's notice seeking to affirm the judge's order on this alternative basis. In the event, however, the Huntleys did not submit to us that Mr Armes was precluded from making that case. I regard that as having been a proper concession: it was not suggested that the absence of a respondent's notice had prejudiced the Huntleys, who were forewarned of the point. Their main answer to it is that the judge was wrong on the facts to find that the green line was the line of the original fence erected in 1935. They say that his findings were insufficient to sustain the case that their title to the disputed triangle had been extinguished by adverse possession.
10. The appeal therefore raised three main issues. First, whether upon its correct interpretation the relevant conveyance shows definitively that the boundary is the red line. Second, if yes, whether the judge was right to find that the original fence was on a different line, namely the green line, and that the subsequent boundary features followed that line. Third, if the Huntleys are right on the first issue and the judge was right to find that the original fence was on the green line, whether the Huntleys have lost their title to the disputed triangle by adverse possession.
11. Mr Stephen Smith QC and Ms Emily Gillett (neither of whom appeared below) represented the Huntleys. Mr Guy Fetherstonhaugh QC (who also did not appear below) and Mr Marc Glover (who did) represented Mr Armes.

The interpretation of the 1935 conveyance of No 39

12. It was agreed, and the judge found, that the estate of houses in Simmil Road was laid out and developed in 1935 by a firm of builders, Messrs Milham. No 38 (the Huntleys' house) was sold by a conveyance dated 15 October 1935 between the builders and Frank Dickman. The original of that conveyance has not survived, nor has any copy. No 39 (Mr Armes's house) was sold by a conveyance dated 21 October 1935 made between the builders and Thomas Woods, and a copy is in evidence. Nos 38 and 39 front on to Simmil Road, which is to their north. No 38 is to the east of No 39. The titles to Nos 38 and 39 are now both registered but the 'general boundaries' rule means that the filed plans provide no conclusive guidance as to the precise line of the boundary and it follows that recourse must be had to the pre-registration deeds to see what, if any, light they shed on the question.
13. I must describe the material provisions of the conveyance of No. 39. The relevant part of its parcels clause is as follows:

'ALL THAT piece or parcel of land situate on the South side of and having a frontage of Twenty-seven feet six inches to a new road called or intended to be called Simmil Road at Claygate in the Parish of Thames Ditton in the County of Surrey and coloured pink on the plan drawn hereon AND ALSO ALL THAT messuage or dwellinghouse erected on the said piece or parcel of land or on some part thereof and known or intended to be known as Number 39 Simmil Road aforesaid TOGETHER with [various immaterial rights I need not describe]'.

14. The plan referred to is immediately below the parties' signatures and shows Simmil Road (described as a 'PROPOSED ROAD') running east from a T- junction with Aston Road. On the south side of the western section of the proposed road there is a rectangular tract of land described as 'EXISTING COTTAGES'. Running east from that, also on the south side of the proposed road, there are shown, by way of a diagrammatic builder's layout plan, the 10 semi-detached houses that were either already built or were to be built. Starting from the western end, they are numbered 46 to 37. No 39 is coloured pink and the plan includes a measurement of 27'6" for each of its northern and southern boundaries. No 39's western boundary runs through the middle of Nos 39 and 40, its semi-detached twin. There is a T-mark on the inside of the eastern boundary of No 39, indicating an existing boundary feature belonging to No 39 (Seeckts v. Derwent [2004] EWCA Civ 393, paragraph [28], per Carnwath LJ). No measurements are shown for any other boundary.
15. As Mr Smith submitted, the western and eastern boundaries of No 39 are apparently shown on the plan as straight lines. There was before the judge a joint experts' report identifying the issues on which they were and were not agreed. They were agreed that one of each property's straight-line lateral boundaries was intended to pass through the central party wall of each pair of semis and that the starting point for the measurement of the 27'6" (or 8.38 metres) dimension for the front boundary at the northern end of No 39 was where that extended party wall line struck the rear of the public footpath at the front of No 39. As for the rear boundary of No 39, they were agreed that the starting point for the like measurement was the point at which the extended party wall line struck the rear boundary feature. They were agreed that the performance of that exercise on the ground showed the red line as the most probable paper-title line of the boundary between Nos 38 and 39. The judge recorded (on page 63 of his judgment) that the parties did not dispute that.
16. Mr Smith's submission was that the exercise performed by the experts was the one required in order to identify the boundary between Nos 38 and 39. The parcels clause described No 39's land as having a frontage of 27'6" to Simmil Road and as 'coloured pink on the plan drawn hereon'. The plan included the two measurements I have mentioned. The combined effect of the parcels clause and plan was, he said, directed at enabling the identification of the eastern boundary of No 39 otherwise than by reference to any eastern boundary feature that existed at the time of the conveyance; and the experts had carried out just the sort of exercise that the conveyance required for the purpose of such identification. Mr Smith submitted that it is the boundary so identified that is the true eastern boundary of No 39. If, at the time of the conveyance, there had existed on the ground a fence in the region of that boundary that did not follow the red line, it would have been in the wrong place and it could not, and would not, have achieved a change of the true line of the boundary. He recognised, however, that such a circumstance might with the passage of time lead to the making of an adverse possession claim.
17. Mr Fetherstonhaugh submitted that these propositions do not work. The conveyance and plan did not, he said, provide sufficient information to tell the purchaser what land he was getting, where it was or how large it was. The parcels clause gave no more than the frontage measurement. The plan showed Simmil Road merely as a 'proposed road', with Nos 39 and 40 as the fourth pair of semi-detached properties from the west. Mr Fetherstonhaugh accepted that the frontage measurement of 27'6" was definitive. But he said that the inclusion of the rear measurement of 27'6" on the plan was curious because of the absence of any mention of it in the parcels clause; and he submitted – admittedly by way of speculation – that the draftsman may have included it in error. The proposed road on the plan also showed a kink in it close to Nos 39 and 40, whereas the road as laid out had no kink at that point, but instead kinked at a point further west, at the point at which the line of the party wall between Nos 43 and 44 met the road. The layout of the houses on the road therefore departed from the scheme shown on the conveyance plan.
18. In addition, as Mr Fetherstonhaugh emphasised, the plan shows no measurements for the side boundaries. It is, he said, no more than a hasty, diagrammatic sketch plan from which it is impossible to derive the size of the plot being conveyed. For that purpose it was essential to see how the plot was marked out on the ground. Further, whilst the line of the party wall between Nos 39 and 40 as projected north to Simmil Road is apparently straight, the boundary fence now on the ground and running south angles slightly to the east. Overall, the plan cannot, he said, be regarded as having been intended to do more than inform the purchaser in which pair of buildings his house was to be found. He said that the Huntleys' argument in favour of the red line assumes that the side boundaries shown on the plan are of the same length, but that can be no more than an assumption. If they were of different lengths, then the rear boundary – even if 27'6" in width – will not be parallel to the front boundary and something will therefore have to give. Given the inherent uncertainty as to the width and location of the southern boundary, the only certain way of identifying it was by reference to the physical boundaries in place when No 39 was sold. Mr Fetherstonhaugh submitted that an original purchaser of No 39 would not regard the rear measurement on the plan – as compared with the front measurement – as intended to provide any definitive guidance as to the width of the rear boundary; and that such purchaser would regard the eastern boundary of No 39 as intended to be marked by the line of the fence that existed at the time of completion.
19. The judge did not accept that the red line necessarily marked the line of the boundary between Nos 38 and 39. His view, expressed at page 63, was that it would only do so in default at the date of the conveyance of a physical feature purportedly marking the boundary. If there was such a feature, he held that the red line must yield to it as marking the boundary. In this case, he found that in 1935 the developer had erected a post and wire fence ostensibly marking the boundary between the properties and that it was the line of that fence (if and to the extent that it departed from the red line) that marked the boundary. He held that the red line did not provide any evidence as to the line of that fence.
20. The judge's approach was – whilst not so explained – implicitly in line with that so persuasively urged upon us by Mr Fetherstonhaugh. If, as Mr Fetherstonhaugh submitted, the rear boundary measurement of 27'6" shown on the plan can be ignored as having been included by error, I would accept that the line of the disputed boundary could only be identified by reference to the line of the fence purportedly marking it at the time of completion. I do not, however, see how that measurement can simply be ignored. True it is that, unlike the frontage measurement, it was not referred to in the parcels clause. But it was included in the plan that that clause incorporated and I see no basis for a conclusion that it was so included by mistake. In my judgment, it must be as definitive as to the width of the rear boundary as is the measurement for the front boundary.
21. With respect to the judge, I therefore consider that he was wrong to regard the line of the boundary between Nos 38 and 39 as being other than the red line. I see no escape from the conclusion that upon the ordinary interpretation of the parcels clause of the conveyance, read together with the plan, what was being conveyed to Mr Woods was a piece of land with front and rear boundaries each of a defined width, namely 27'6", with the eastern boundary being capable of being measured from the identifiable base line upon which both experts were agreed. I of course accept that, until the houses at Nos 39 and 40 were actually built, no-one armed with a plan such as that on the conveyance could have identified that base line. But once they were built, the exercise could be done, as it was by the experts.
22. The contrary case is that the conveyance and plan were together intended to do no more than identify the approximate position of the eastern boundary of No 39, the line of the boundary being intended to be that of the fence in existence at completion. The conveyance, however, neither says nor indicates that. So to interpret it and, in consequence, to regard the eastern boundary as exclusively identified by the fence actually on the ground at the time of completion is to deprive the boundary measurements in the parcels clause and on the plan of all utility. What would be the position if, for example, at the time of completion, No 39's eastern fence was erected along a line merely 25 feet from the median line between Nos 39 and 40? On what basis can the conveyance be interpreted as meaning that such fence must instead mark the boundary? I can identify none. In such an event the owner of No 39 would in principle have been entitled to claim the extra 2'6" (I ignore the possibility that the vendor might earlier have conveyed the disputed strip to the purchaser of No 38). I do not therefore accept that there is a sound basis upon which the judge was entitled to reject the red line as the boundary but to prefer the view that (if and to the extent it followed a different line) the post and wire fence then in existence marked the boundary.
23. To this extent, therefore, I would accept Mr Smith's criticism of the judge's judgment. That, however, does not resolve the appeal in the Huntleys' favour. Mr Armes's case is, in short, that the judge correctly found that at all times since 1935 Nos 38 and 39 were physically separated by a post and wire fence and its various successor boundary features which had always either been on the green line or, as to certain of them, had departed from it to an identifiable extent. It is said that at least by about 1950, therefore, the Huntleys had lost their title by adverse possession to the disputed triangle. It followed that, even if the judge was wrong as to the significance of the red line, he arrived at a correct result. The Huntleys' answer to that is that they challenge the correctness of the judge's factual findings about the line of the original fence.
24. I must therefore deal with that challenge. To that end, I must first summarise the judge's findings. The judge's judgment is manifestly an immensely conscientious and painstaking one, involving a close consideration of the history of almost every section of the boundary over a period of more than 70 years. It comprises a nine-page introduction, a two-page index and 44 chapters. It is also, however, and I say this with great respect having regard to the care obviously devoted to it, not the easiest of judgments to summarise. That is because the material findings in relation to particular issues are not gathered together in one place but are spread out over the judgment, which at regular episodic intervals identifies key factual questions that remain to be answered in order to determine the particular issue just discussed, but then defers the answers till later. As a result, the collecting together of the judge's findings in relation to particular issues is something of a challenge. My summary has, however, attempted it.

The early years: 1935 to the 1950s

25. Frank Dickman, the first owner of No 38, lived there until his death in 1979. His son Gordon was born at No 38 in 1938 and lived there until 1964, when he married and moved away to Ashford although he continued to visit his father at No 38 and moved back to the road in 1977. He gave evidence which was important to the judge's findings. So did Douglas Drury, who lived at 33 Simmil Road from his birth in 1936 to 1963, having since then lived at No 16. Both witnesses were able to speak of the early years of the road's development and produced photographs from those years. The judge regarded them as witnesses of truth and accuracy.
26. The judge found that when the Simmil Road houses were built, the front boundary between each plot and the road was marked by a low brick wall with a paling fence on top. Such wall and fence ran in a continuous line along the road, broken only by front gates giving pedestrian access to a path leading to the front door of each house. None of the houses had a driveway.
27. He also found that the boundary between Nos 38 and 39 was originally marked by a concrete post and three-wire fence running from the front to the rear boundary; and that the rear boundaries of each of the Simmil Road houses were also marked by like post and wire fences. He found that such fences were erected by the developer of the estate in 1935. During a site visit, he saw two (as he found) original posts on or near the boundary between Nos 37 and 38 and described them as 'pyramid' posts, their top forming a four-sided pyramid. One post was close to the rear of the properties, the other was 1.42 metres to its north. The posts were square in section below the top, tapering from four-inch sides at the bottom to three-inch sides at the top. They had three holes in them running in a north/south direction, with bolts running through them with an unclosed ring on one side. He also saw a lone pyramid post towards the rear of the disputed boundary which became central to the debate as to the line of the original post and wire fence. This is the post I referred to in paragraph [2] when describing the line of the boundary declared by the judge.
28. The judge found that the original post and wire boundary fence remained in position and unchanged until 1950. The only modification to it was that some time before then Frank Dickman had attached a split chestnut paling fence to his (No 38's) side of it. He also found that in 1950 Frank Dickman built a concrete shed on the western side of No 38 at a point approximately one third of the way along the boundary from the northern end. Its western flank wall was, said Gordon Dickman, on the boundary with No 39. In carrying out that construction, Frank Dickman removed that part of the fence that ran the length of the new shed, but the remainder of the boundary continued to be marked by the original post and wire fence and the subsequently attached paling fence. The judge found that Frank Dickman and the then owner of No 39 regarded the western wall of the shed as on the line of the former post and wire fence. Some time after 1950, Frank Dickman planted a privet hedge about one foot deep and about three feet from, and parallel to, the northern side of the shed. Its function was to conceal the dustbins he kept in front of the shed. It was planted on what the judge called 'the hedge bed'.

The 1960s: driveways are laid and a garage is built

29. In 1964 Frank Dickman laid a concrete driveway in the front and side garden of No 38 and removed part of the wall and paling fence on his front boundary. The driveway extended from the edge of the pavement southwards to the privet hedge in front of the shed. Frank Dickman used it to provide off-road parking for his Isetta bubble car, the only car he ever owned. The car was 2.3 metres long and 1.4 metres wide, with access to its interior being via a front opening door. When the driveway was constructed, the northern section of the post and wire fence (running from the pavement to the north-west corner of the shed) was still in place. Gordon Dickman's evidence was that it would have prevented the opening of the doors of a conventional car.
30. In 1967 the owner of No 39 (Mr Truelove) erected the garage that remains in place to this day. It was built slightly under half way along the boundary, just to the south of No 38's concrete shed. The evidence of Gordon Dickman (a regular visitor to No 38 at this time) was to the effect that, for the length of the eastern flank wall of the garage, the post and wire fence was removed and the boundary became represented by that wall, which was erected up to the boundary. The judge found that there was no evidence of any complaint by Frank Dickman that the wall did not follow the line of the former fence or that it encroached on to No 38's land; and that Mr Truelove and Frank Dickman 'regarded the eastern flank wall of the garage as being on the line of the pyramid post and wire fence where it had been removed' and as marking part of the boundary.
31. When No 39's garage was built in 1967, a concrete driveway serving it was also laid. At the same time, the section of post and wire fence running between the north-east corner of the new garage and Simmil Road was removed. The new driveway extended from the front door of the garage down to the pavement of Simmil Road, where part of No 39's front fencing was also removed; and it was laid up to and abutted the driveway that Mr Dickman had laid in 1964, the join between the two new driveways being visible and apparent in a photograph of a cat taken in about 1986. The join extended southwards from the pavement to the front of the privet hedge. At that point No 38's driveway stopped, whereas No 39's continued to the front of the garage. No 39's driveway necessarily continued alongside No 38's shed.
32. The judge found that, in 1967, both Frank Dickman and Mr Truelove 'regarded the join as … being on the line where the pyramid post and wire fence had run before it had been removed … [and] as marking the boundary'. Gordon Dickman's evidence was that he regarded the join as marking the boundary. There was no record of any complaint made about the matter. The judge recorded (page 83) that it was not disputed that the join and the red line had 'a just about identical starting point where the front of the properties meets the pavement', where he also found that as 'a matter of coincidence for part of its length the red line ran on or close to the join'. The judge found that the join followed the line of the former post and wire fence and so marked the boundary.
33. The Huntleys challenged the assertion that the garage's eastern flank wall followed the line of the former post and wire fence. In considering that issue, the judge focussed on the alignment of shed and garage relative to each other. Although the shed was demolished in 2005, that was during the ownership by the parties of their respective houses and so they were able to speak to the matter. Mrs Huntley's evidence was that the shed lay about six inches to the north of the garage. Mr Armes's oral evidence was that there was a slight overlap between shed and garage. The judge preferred and accepted Mrs Huntley's evidence, finding that the rear (southern) wall of the shed was a few inches to the north of the front (northern) wall of the garage. He also found that the western flank wall of the shed was set inside (that is, a few inches to the west of) and thus overlapped the line of the eastern flank wall of the garage on an east/west line. By 1973 (as shown by a photograph taken from No 16 Simmil Road), the hedge in front of the shed was of substantial height, extending well above No 39's garage.
34. The judge recognised that his finding as to the overlap of the western flank wall of the shed and the eastern flank wall of the garage was apparently inconsistent with his findings (a) that when Frank Dickman built the shed in 1950 he and the owner of No 39 regarded its western flank wall as being on the line of the section of the post and wire fence that was removed when the shed was built and as marking part of the boundary; and (b) that the outer surface of the eastern flank wall of the garage ran on the same line as the former post and wire fence and also marked, or was regarded as marking, the boundary. He resolved that conflict as follows. He derived from the T-mark on the 1935 conveyance plan that the post and wire fence was within No 39's title. He concluded that when the shed and garage were respectively built, each was built up to the line of the far side of that fence, the pyramid posts being four inches wide at their base. He further concluded, therefore, that the western flank wall of the shed did not mark the boundary because it was built up to the line of the western faces of the posts of the original fence and so was on No 39's land. That left a further question as to whether the eastern flank wall of the garage ran along the same line as the eastern faces of the posts of the original fence. The judge found that it did and that it therefore marked part of the boundary between Nos 38 and 39.
35. The judge's findings so far were therefore to the effect that by 1967 the whole of that section of the original post and wire fence erected in 1935 running north from the southern end of No 39's garage had been removed; that the western flank wall of the concrete shed did not mark the boundary, but encroached (presumably to the extent of about four inches) on to No 39's property; that the eastern flank wall of the garage did mark the boundary; and that the join marked the northern section of the boundary running up to Simmil Road.

The 1980s: changes of ownership

36. Following Frank Dickman's death in 1979, Ann Chapman bought No 38 from his estate. She lived there until August 1985 when Mrs Huntley (now 74) and her husband Alan (now 76) bought No 38 as joint owners. Mr Armes bought No 39 in 1986. Mr and Mrs Huntley separated in 2003 but Mrs Huntley continued to live in No 38, as she still does. Her son Graham (now 49) has in the meantime acquired his father's interest in No 38 and is a joint owner with his mother. He has never lived at No 38. The join between the two front driveways was there for the Huntleys to see when they bought in 1985. Alan Huntley's evidence was that it was on a line 'on or close to' the red line, the boundary line which the Huntleys were asserting. So it was.

More activity at the front of the properties

37. Between May 1986 and July 1987 Mr Armes constructed a six foot wooden panel fence along a line running north from No 38's shed. By then the privet hedge had extended some 12 to 18 inches to the west of the shed and Mr Armes cut it back flush with the western side of the shed. He erected the panel on a line running towards the road along part of the edge of the hedge bed. The Huntleys' complaint at the trial was that Mr Armes had aligned this so that it was as far as possible into No 38's property without going inside the western side of the shed. No complaint was made either at the time or subsequently that he had erected it on No 38's land. The panel remained until 2005 when it was replaced with new fencing.
38. Between 1996 and 1999 Mr Armes made arrangements with the Huntleys to relay both driveways of Nos 38 and 39 in a uniform type of red brick. He also instructed the contractor to install a broken line of yellow bricks but accepted that he did not first agree with the Huntleys where it was to be. His evidence was that it was intended to mark the line of the join; and that, at the time of installation and for a considerable time afterwards, he considered that it did follow the join and so marked the boundary. The judge found that Mr Armes instructed the contractor to lay edging bricks right up to the western face of the front wooden panel and to the western flank wall of No 38's shed. He also found that Mrs Huntley instructed the contractor to resurface No 38's driveway.
39. The judge summarised the expert evidence from Mr Powell in relation to the line of yellow bricks laid as being to the effect that:

'… on any calculation of the position of the boundary from a point just past the end of the close boarded fence marked as "C/B" on the December plan the yellow line diverged in increasing width into the front drive of [No 38]'.

Mr Armes accepted in cross-examination that the yellow line did not follow the line of the join and that it diverted onto No 38's side of it. Alan Huntley said in evidence that he complained to Mr Armes at the time that, if the yellow line was intended to signify any sort of boundary, he disagreed with it; and said that Mr Armes declined to engage in discussion about it. Mr Armes said he did not recall Mr Huntley raising that matter with him. The judge found that the mis-laying of the line of yellow bricks was 'caused at the very least by a failure of supervision on Mr Armes' part of the contractor's work'.

August 2005; new extension to No 38; the first new front fence

40. In August 2005 Mrs Huntley's builders began work on an extension to No 38. As a first step they removed the concrete shed, the privet hedge in front of it, the hedge bed and (with Mr Armes's agreement) the front panel. Mrs Huntley's intention was to erect a new close boarded fence and gateway to enclose part of No 38's front garden. Her builders embarked on its erection in the same month. The judge found that the fence was set back towards No 38 from the line of the outer surface of the western flank wall of the shed and that Mr Armes was instrumental in instructing the builders where it should be.

The second new front fence

41. The parties disagreed as to whether the first fence was erected too far into No 38. So it was taken down in the same month, August 2005, and replaced by the second 2005 fence, which remains in place today. It too is a close boarded fence supported by three posts. It is the same length as the first one but higher. The Huntleys determined its position. Neither side accepts that it is in the right position. It is in a compromise position pending the resolution of their dispute.

The section of boundary running south from the garage: the position in the 1980s

42. By the time the Huntleys bought No 38 in 1985, a greenhouse had been built on No 39's land to the south of the garage. The judge found that it had been built some time between 1967 and 1985 on to the southern wall of No 39's garage. Mrs Huntley's evidence was that it was set a short distance in from the edge of the garage's eastern flank wall. Graham Huntley said much the same. So did Alan Huntley, saying it was set a foot or two back from the south east corner of that flank wall.
43. As for the boundary running south from the rear of No 39's garage, Mrs Huntley said that in 1985 it was heavily overgrown but that she could see on No 39's side of such vegetation a broken series of concrete posts with two or three wires running through them, such fence being something over three feet high. Graham Huntley and Alan Huntley also referred to there being such a post and wire structure at the rear. The judge found that they were all referring to what remained of the original post and wire fence erected in 1935. He also found that at some uncertain time before June 1985 a previous owner of either No 38 or 39 had fixed some plastic coated chain link fencing to part of the fence, a finding derived from a surveyor's report commissioned by Mr and Mrs Huntley before they bought in 1985. Mrs Huntley's further evidence was to the effect that for the last third of the length of the properties, the wires had disappeared although some of the posts remained. Graham Huntley's evidence was that about half to two-thirds of the way down the garden the posts ran out, leaving just the odd one or two and a few wires on the ground.
44. As to the line of that remaining part of the original fence, I preface my discussion of this by pointing out that, whilst the Huntleys' case is that the red line should be declared to be the boundary, their somewhat imprecise evidence as to the line of the boundary features in existence when Mr and Mrs Huntley bought No 38 in 1985 did not support a finding that those features followed the red line. It tended to suggest that they were on a line between the red and green lines. Mrs Huntley's evidence (based on an incident in 1988 when she had to climb over it) was that the fence started from the rear wall of the garage at a point a foot or more to the west of its eastern flank wall. Graham Huntley said the fence ran roughly along the line of the red line, meaning what he regarded as the median line between Nos 38 and 39. Alan Huntley said it was on a line a foot or two to the west of the garage's eastern flank wall, but he could not remember if it ran right up to the garage or joined the greenhouse, which was itself aligned a foot or two inside that flank wall. By contrast, Mr Armes's evidence was that in 1986 the post and wire fence ran from a post near the rear wall of the garage and was either flush with, or very slightly set back from, the outer surface of the eastern flank wall of the garage and went thence to the bottom of the gardens of Nos 38 and 39. He said that the eastern side of the greenhouse was slightly inset from the eastern flank wall of the garage, as it had to be if it was to accommodate the fence.
45. The judge rejected the suggestion (advanced, somewhat uncertainly, only by Alan Huntley) that the fence had ended at the greenhouse. The relevant section of the fence had been removed (on the Huntleys' case) by 1989 at the latest and so the witnesses were casting their minds back over 20 years; and the area was very overgrown. Nor had the matter been regarded as of significance to the Huntleys until Graham Huntley first wrote to Mr Armes in anger in October 2006 alleging that he had moved the fence eastwards. Mrs Huntley's evidence was given by reference to the red line, a concept not explained to her until Mr Powell produced his report in July 2007. Graham Huntley's evidence was that the greenhouse was set slightly back from the eastern flank wall of the garage. If that meant four or five inches, and the post and wire fence touched the garage, then the fence would be flush with the outer surface of the eastern flank wall of the garage. Mr Armes's evidence was that the wooden fence now in position to the immediate south of the garage is where the post and wire fence originally was.
46. Most compellingly, said the judge, the evidence of Gordon Dickman and Mr Drury supported the conclusion that when the garage was built, its eastern flank wall was regarded by the owners of Nos 38 and 39 as marking the boundary; it was inconceivable that it would have been built so as to encroach a foot or more on to No 38. Such a trespass would have been obvious because the remaining section of the fence to the south was still in place. The result was that the judge found that when the garage was built in 1967, the fence running south was flush with the outer surface of the eastern flank wall of the garage at the point where the fence touched the garage. That remained the position in 1985.

The four rear wooden fence panels

47. No 39's greenhouse was knocked down in 1987. Mr Armes's evidence was that a contractor he had retained erected two wooden fence panels in place of a section of the post and wire fence running south from the south-east corner of his garage, an exercise involving the removal of two pyramid posts. He said the new panels were attached to fence posts in the same position as the pyramid posts. The judge found that the two new panels (the 'first' and 'second' panels) were erected between January 1987 and February 1989. No complaint was made that their erection involved an encroachment into the garden of No 38. The judge found that Mr Armes erected them with the outer face of the fence post almost touching the corner of the garage and set back slightly inside the eastern flank wall of the garage. There is no doubt that they were on No 38's side of the red line.
48. The judge turned to consider the evidence relating to the erection of two further new wooden fence panels that Mr Armes said his contractor erected in March 1990 in place of the original concrete posts (these formed a southern extension of the first and second panels and I will call them the 'third' and 'fourth' panels). His evidence was that they were erected on the line of the two pyramid posts that could be seen in the so-called winter photograph and that, at Alan Huntley's request, they were five rather than six feet high. Mrs Huntley's evidence was that they were not erected until about 1995 or 1996. Graham Huntley's evidence was to the like effect and that they were not in a straight line but were on No 38's side of the previous fence. Again, it is plain that they were on No 38's side of the red line. The judge made no finding as to when the third and fourth panels were erected save that Mr Armes had not proved that it was before 12 October 1991 (a date relevant for limitation purposes, to which I shall come).

The single pyramid post

49. As for the remainder of the southern section of the original fence, there was a major dispute at the trial and before us as to the positioning of a lone pyramid post, which the judge noted on his site visit and which he found to be one of the original fence posts. It raised a crucial issue, because if it was in its original position it showed that the original fence did not follow the red line, but (at any rate at this section of boundary) followed the green line. This issue involves introducing three new features: a wooden shed, some large 'square mesh fencing' and an elderberry tree.
50. By mid-1997 Mrs Huntley and her husband had erected a wooden garden shed towards the bottom of No 38's garden. It remains there to this day. She said it was installed by workmen who cleared around it and laid foundations. Her evidence was that by then some of the pyramid posts were missing and the shed was deliberately set back by at least two feet from the wires lying on the ground. She said there was no pyramid post by the new shed when the workmen were erecting it. Alan Huntley said that the shed was set back a foot from what he said was the boundary. Mr Armes's evidence was that the boundary continued to be marked by the original post and wire fence, some of which remains in place.
51. On the site visit the judge saw the lone concrete post in this area. He found it to be one of the original pyramid fence posts. There were three north/south holes in it, with a bolt running through each of the lower two holes, each being secured by a nut on the southern side of the post; and an unclosed ring on the northern end of each bolt. He found that metalwork of this nature was a feature of all the apparently original pyramid posts he saw on the site visit and found that its purpose was to facilitate the fixing and tightening of the wire running through the posts. This single post stands just to the south of an elderberry tree. It is at the north-west corner of the wooden shed, leaning towards No 39's garden. The green line boundary declared by the judge passes its eastern face. At that point, the red line lies some three feet to its west.
52. On the site visit, the judge also saw a section of fencing with 'large square mesh' standing about half the height of the single pyramid post and running from the southern end of the fourth fence panel 'through' the elderberry tree and ending near the single post at the corner of the shed, at which point it was fixed to the corner of the shed. The Huntleys' evidence was that this fencing was not in place in 1986, when Mr Armes bought No 39, but reflected a more recent attempt by him to push the boundary into the garden of No 38. Mrs Huntley, Alan Huntley and Graham Huntley said that the elderberry tree had originally stood well on No 38's side of what they considered to be the boundary and that Mr Armes had pulled it through the trunk of the tree by drilling holes in it though which he pulled the wires.
53. Whilst the judge saw, and found, that 'the mesh appears to be growing through the trunk of the tree', he also found that drilling holes in the tree would not permit the mesh to pass through its trunk. He found that the mesh fencing was installed by Mr Armes some time after March 1986 by way of a replacement of the plastic coated chain link fencing that there was there in 1986. He was not satisfied that Mr Armes had installed it before 12 October 1991 (that again was relevant to the limitation point). He found that Mr Armes did not drill holes in the tree in order to pull the fencing through it. He found that the tree had grown and that its branches had thickened and closed around the fencing.
54. Returning to the single fence post, Mr Armes's evidence was that it stands in the same position as it did when he bought No 39 in 1986. By contrast, the Huntleys' case was that it did not but that Mr Armes had much later moved it to its present position. Their evidence was that it was not in its present position when their new shed was erected. Graham Huntley said in his oral evidence that all bar one of the concrete posts had been taken down about 10 to 12 months after the greenhouse was taken down in 1987. The orphan post was left 'floating about' in the middle of the garden. He said that it was in 2003 that he first saw it abutting the north-west corner of the new shed. It had not been there before. He did not say that his mother had pointed it out to him on Mothers' Day 2007 as something that had just appeared (see the summary of her evidence below). Alan Huntley said he did not instruct the workmen to put the shed as close as possible to the pyramid post because there was no such post there then. He said that some time after his separation from Mrs Huntley in 2003 he also noted that one of the concrete posts that had previously marked the boundary had been pushed up against the corner of the shed, facing No 39's garden.
55. Mrs Huntley's evidence was that the post was not in its present position until after she had had a blackberry bush cleared in January 2007 and that it appeared in its present position some time between then and Saturday 17 March 2007. She remembered that because Graham visited her the following day, Mothers' Day, the day after she had noticed the post, and she showed it to him. She said it was similar to one she had seen in Mr Armes's back garden, one that was not fixed to anything but was just standing there. If she did tell Graham Huntley about this, the judge noted that when Mr Huntley wrote to Mr Armes on 19 March 2007 complaining that he had attempted to move the wire mesh fence a few inches into the garden of No 38 by pinning it to the side of the shed, he made no mention of the moving of the pyramid post that his mother said she had told him about the day before. Nor had he ever complained about it even though it was his habit to make lengthy and forceful epistolary complaints to Mr Armes. In contrast to all that, Mr Armes's evidence was that the post was in the same position as it had been when he first saw it in 1986.
56. The judge reviewed the opposing cases and found that the single pyramid post was set in the ground today in the same position as the builders had placed it in 1935. He said it was 'just about inconceivable' that Graham Huntley would have failed to mention the installation of the post next to the shed in his letter of 19 March 2007 if his mother had mentioned it to him the day before. The judge regarded this failure as capable of being determinative of the issue.

The alleged movement of the first two wooden fence panels

57. Mrs Huntley's evidence was that some time between November 1991 and the end of 1992, Mr Armes cut back more vegetation and moved the first and second panels east by a further few inches. Mr Alan Huntley claimed to have complained about this to Mr Armes, who was said always to have found a reason to end the conversation and retreat into his house. Mr Armes denied this, claimed that the two panels remain today where they have always been and denied the raising of any complaints about them. The judge found that sometime between July 1996 and February 2008 Mr Armes replaced the second wooden panel. He rejected the case that Mr Armes had moved either of the two original panels into No 38's property. He so concluded because of his finding that the panels are in the same position today as they were when they were originally installed.

Further alleged movements of the four wooden fence panels

58. Mrs Huntley asserted that in 2003 Mr Armes engaged in yet more pruning of vegetation so as to move one or more of the four panels a few inches eastwards. She said that she realised in that year (when she and her husband were separating) that the third and fourth panels were pointing straight at the elderberry tree, which she regarded as standing clearly on No 38's side of the boundary. She added in her oral evidence that the panels were moved again in September 2003, shortly after the separation. Mr Armes had replaced two of them and gave her the old panels for firewood. She saw that the panels had again been moved towards the elderberry tree. Graham Huntley supported this evidence by saying that he noticed at the same time that the panels appeared to have shifted 'with the last two now appearing to point slightly inwards, into No 38's garden'. Mr Armes agreed that in 2003 or 2004 he replaced the third and fourth panels, broke them up and gave them to Mrs Huntley but said he did not move the supporting posts. The judge found that in about 2003 Mr Armes did replace a panel or panels and gave the old panels to Mrs Huntley for use as fire wood.
59. The alleged movement of one or other of these panels was the subject of debate at the trial, turning on a comparative scrutiny of photographs of the rear garden of No 38 taken in July 1996 and February 2008. The focus of this part of the argument was as to the fourth panel, which appeared to be different in the two photographs. Whilst Mr Armes could offer no explanation for that, saying that he had done no more than add an additional top bar to these panels, the judge found that at some point between the taking of the two photographs Mr Armes did replace that panel.
60. Having found that the boundary was a straight line between the south-east corner of the garage and the western side of the wooden shed, the judge found that the large square mesh fencing (which Mr Armes had installed) and the fourth fence panel were on No 38's side of the boundary; and that Mr Armes had thereby enclosed what the judge described as a 'long flat triangle' of No 38's land, the apex being the southernmost fence post of the fourth panel. The judge found that the eastern faces of the first, second and third panels followed the green line.
61. The judge then considered whether Mr Armes had acquired a title to that 'long flat triangle' by adverse possession. It was agreed that he had to show uninterrupted possession of it for at least 12 years expiring before 13 October 2003. The judge found that Mr Armes had not proved that he had erected the third and fourth panels before 12 October 1991 or that he had installed the large square mesh fencing before then. His claim to this triangle by adverse possession therefore failed.

The challenge to the judge's findings of fact

62. Mr Smith focussed first on a challenge to the judge's finding that the orphan post standing at the north-west corner of the wooden shed was in the same position it had occupied since 1935. He said that the judge's finding did not include a sufficient analysis of all relevant evidence. He said the finding was perverse and that the judge was wrong not to have found that the post had been moved from its original position. If so, his erroneous finding had important repercussions on his finding as to the line of the original post and wire fence.
63. Mr Smith suggested that the fact that the post was leaning provided some indication that it was not an original installation, although he did not overstate that point, recognising that the evidence was to the effect that the post was firmly installed. He moved on to direct three main attacks at the judge's reasoning. First, although the judge had described what he called 'the metalwork' of the post, including that there was a ring at the northern end of the bolt running through its central hole, he said he made no findings as to its significance. Logically, said Mr Smith, if (as is the inference) the fence wire went through such rings, one would expect them to be on the east or west side of an intermediate boundary post, not on its north or south side. The judge made no finding as to why the ring on this post was on the north side.
64. Second, he said there was clear evidence in chief, not apparently dented in cross-examination, from Alan Huntley that he supervised the installation of the new shed in 1997 and recalled that it was set back a foot or so from the apparent boundary and that he was 'absolutely sure' that it was not pushed up onto any boundary feature. It was for that reason that he was surprised when visiting No 38 following the 2003 separation to see one of the old posts pushed up against the corner of the shed (paragraph 12 of his witness statement of 24 April 2008). Alan Huntley stood firmly by that in cross-examination, emphasising that at the time of the shed's installation there was no concrete post there. If there had been, he said, the builders could not have moved freely around the shed when installing it.
65. Mrs Huntley's evidence was, said Mr Smith, to the like firm effect. She said in her witness statement that the shed was installed about two feet from the wires on the ground, and that 'more recently, and since this dispute arose in mid-2005, I have noticed that one of the old concrete posts appears to have been pushed up against the front corner of the shed facing No 39's garden' (paragraph 28 of her witness statement of 20 March 2008). She too stood by that in cross-examination, explaining that she first noticed the post at the corner of the shed following the clearing of some vegetation in January 2007.
66. Mr Smith's criticism of the judge's treatment of that evidence was that the judge does not appear to have considered it. The judge summarised it accurately at page 47 of his judgment but there made no finding on it. In the manner typical of the structure of his judgment, he there deferred till later the question of whether the concrete post was or was not in its original position. He returned to that question at page 52 but still did not decide it. He returned to it again at page 69, where he did decide it. However, in none of his discussion at pages 52/53 and 69/70 did he make any reference to, or any findings on, the evidence from Alan Huntley and Mrs Huntley as to the shed being erected at least a foot or so from the apparent boundary. The closest he ever came to dealing with that matter was on page 94, where he made a finding that the whole length of the western side of the shed marked part of the original boundary, although he did not there deal expressly with the claimants' evidence that it had not been erected near any ostensible boundary feature.
67. The judge did of course focus expressly on the question of whether the fence post had been moved to its present position or was where it had always been since 1935. At page 52 he summarised the claimants' evidence about it, including (i) Graham Huntley's evidence that all the posts had been taken down following the removal of the greenhouse in 1987, save for one post that was left 'floating about' in the middle of the garden; that he first noticed the post abutting the shed in 2003; and that it had not been there before; (ii) Alan Huntley's evidence that it was after 2003 that he first noticed that a post had been pushed against the corner of the shed; and (iii) Mrs Huntley's evidence (in part summarised above), including that she first saw the post on 17 March 2007 and that she told Graham Huntley about it the following day, Mothers' Day, when he visited her.
68. At page 69 he then made his findings about that evidence. He pointed out that Graham Huntley had not said in evidence that his mother had pointed the fence post out to him on Mothers' Day, 18 March 2007: his evidence was that he had first seen it in 2003. The judge said that he did not place too much weight on inconsistencies of date when witnesses were trying to recall distant events. But he then said that the factor that he did find determinative was that Mr Huntley had nowhere in the pre-action correspondence referred to this concrete post. In particular, he referred to his omission to mention it in his full letter to Mr Armes of 19 March 2007, even though on Mrs Huntley's evidence she had told him about it the day before. He said it was 'just about inconceivable' that he could have omitted to do so if his mother had so told him. Earlier he had made the point that Graham Huntley had not said that his mother had told him about it on Mothers' Day, and he appeared then to suggest that the witnesses may have been confused as to dates, being something he would not hold against them.
69. Mr Smith's third submission was that the judge's route to his finding that the post was in its original position therefore rested wholly on the fact that Graham Huntley did not mention the alleged moving of the post in his letter of 19 March 2007, when he might have been expected to do so. He said that was an insufficient factual basis for such an important finding; and it was one whose soundness was questionable having regard to the judge's own point about the witnesses having perhaps given inconsistent dates as to material matters. It paid no regard to the evidence from both Alan Huntley and Mrs Huntley to the effect that the post was not in its current position when the shed was erected in 1997. In addition, the omission to mention the post in the letter of 19 March 2007 was not even put to Graham Huntley in cross-examination; and the judge had not factored into his consideration his apparently dim view of aspects of Mr Armes's evidence, or the fact that Mr Armes had a track record of land encroachment, of which there were four examples: (i) the laying of the yellow stones at the front, (ii) the siting of the fourth panel, (iii) the siting of the first 2005 panel at the front, and (iv) the siting of the square mesh fence.
70. Mr Smith submitted that the judge's finding in respect of the post was therefore flawed. He should not have found that it was in its original position, or therefore that the boundary was on its eastern side and followed the west side of the wooden shed. This part of the judge's inquiry required the conclusion that there was nothing to displace the inference that, at this point, the original fence had followed the red line, the true boundary. If that was the correct inference, there was nothing to justify the judge's findings as to the rest of the green line. First, if he was wrong as to its line in the area of the shed, for it to have been correct as to its remainder it would have required a significant kink. Secondly, there was anyway no sufficiently cogent evidence as to the line of the original fence. In particular, there was no evidence from any owner of No 38 between 1935 and 1979 or from any owner of No 39 between 1935 and 1985. There was at best evidence from an inhabitant of No 38 between 1935 and 1964, Gordon Dickman.
71. As regards the other features of the southern section of the fence to which the judge referred, Mr Smith pointed out that the large square mesh fencing that went through the elderberry tree, and had been tacked onto the shed, was not an original feature. The plastic coated chain link fencing that the judge found had been attached to certain of the concrete posts some time before 1985 was also not an original feature, and the judge did not even say to which posts it had been attached. Neither of these pieces of evidence provided any help in the identification of the line of the original post and wire fence.
72. As for the judge's finding that the first, second and third panels were on that line, it was wholly dependent on his prior finding that the eastern flank wall of the garage was on that line; and the judge proceeded on the basis that it was natural to infer that the present day boundary features replicated and replaced the same position of the former boundary features (see page 69). If, however, the line of the garage was not on the line of the original post and wire fence, then nor were those panels. The judge found that the first three panels were on the line of the original fence, but not the fourth. He arrived at that conclusion by placing a ruler along the line of the garage and panels. That showed that the flank wall and the first three panels were on the same line – held by the judge to be that of the original fence - but that the fourth panel was not: it was on No 38's side. But, said Mr Smith, the application of a longer ruler to the line of the flank wall of the garage resulted in the extended line going through the shed. The judge was thus compelled artificially to disapply his 'ruler' test in order to cater for his finding that the orphan post lay well to the west of the line that was produced by it. The 'ruler' test increased the divergence of the green line from the red line at the bottom of No 38 by two feet or more. It was, however, an irrationally selective test.
73. The judge's ultimate decision was therefore heavily dependent on his central finding that the eastern flank wall of the garage was on the line of the original boundary. The garage was constructed in 1967, which was after the concrete shed had been erected in 1950. The shed was constructed parallel to the flank wall of No 38, as was shown on the plan attached to the Particulars of Claim, which shows that it was set in from the later line of the flank wall of the garage (as the judge found) and almost, but not quite, on the same plane as that wall. The difference is that the flank wall of the garage veers more to the southeast. That difference was not however apparent to the Huntleys, at any rate until about 2005. They did not have the benefit of a bird's eye view and, in addition, from ground level the relative planes of the two buildings were made the more difficult to identify because of the considerable vegetation which by then surrounded and surmounted the shed.
74. The judge's finding that the flank wall of the garage was on the line of the original fence was dependent on Gordon Dickman's evidence, in particular his evidence that he had heard of no complaint by his father that the garage wall did not follow the line of the fence. He had also said that his father was 'the kind of man who would never have given or taken an inch of anybody else's land', the sense of which was clear even if the language was inexact. The judge found that, if the garage wall had not followed the line of the original fence, Frank Dickman would have known about it. Mr Smith pointed out, however, that Gordon Dickman did not give any evidence that he saw the garage being erected. The judge's reliance upon his evidence did not accommodate the possibility that there might have been a misunderstanding by the then joint owners as to the line of the wall of the new garage relative to that of the previous fence. In particular, it did not accommodate Gordon Dickman's positive evidence that the original post and wire fence followed a straight line – something that Gordon Dickman said he 'would have guaranteed', evidence to which the judge (on page 86) attached no weight and treated as in effect no more than an expression of opinion. If, however, the line of the eastern flank wall of the garage is projected southwards, I have explained how Mr Smith showed that it followed a line that diverged ever more into No 38 from the green line found by the judge. The judge's finding that the flank wall followed the line of the original fence resulted in the probability that, if he was right in that finding, the original fence was far from having been in a straight line from north to south.
75. Mr Smith pointed also to an apparent inconsistency in the judge's reliance on Gordon Dickman's evidence that Frank Dickman would not have taken an inch of anyone's land. His point was that, on the judge's findings, that is precisely what Frank Dickman did when he erected the concrete shed. I have explained how the judge said that the evidence proved an absence of any complaint when the shed was built in 1950, any more than there was any complaint when the garage was built in 1967. Yet if, as the judge inferred, all parties regarded the flank walls of both structures as following the line of the original fence, how was it that the western flank wall of the shed lay inside the line of the eastern flank wall of the garage? The judge's resolution of that question was that when Mr Dickman built his shed, he built it some four inches or so onto No 39's land, by taking the boundary line as the western sides of the fence posts. The judge thereby implicitly found that Gordon Dickman's statement about his father's attitude to property rights was unreliable. And how, it might be asked, did the judge satisfy himself that it was Mr Dickman who was trespassing in 1950 rather than Mr Truelove who was trespassing in 1967?
76. Mr Smith submitted that the judge's resolution of this problem demonstrated the fragility of his reliance on Frank Dickman's alleged property attitudes. The more natural conclusion, said Mr Smith, was that the garage was misaligned since its use as a guide to the projection of the boundary to the south produced such odd results. Mr Smith recognised that, on the Huntleys' case, the departure of the line of the garage's eastern flank wall from the red line was material: by some 20 inches at the northern end and by at least some 30 inches, perhaps more, at the southern end. But he submitted that that was something that could not easily be noticed at ground level. He also pointed out that, had the garage been correctly aligned along the red line, it would have sat uncomfortably close to the house.
77. Mr Smith submitted that the judge's error with regard to the eastern flank wall of the garage affected not only his decisions with regard to the four panels at the rear but also as to the line of the boundary to the north of the garage: he held that the northern section of the boundary ran from the northern starting point to the north-east corner of the garage. If he was wrong about the eastern flank wall of the garage being on the line of the original fence, he was wrong to treat that corner as a significant feature. Its adoption resulted in a boundary line that, overall, was twice kinked in the way that I have described. This is in stark comparison with the lines of the other fenced boundaries of Nos. 38 and 39, which both apparently follow straight lines. Why, asked Mr Smith, should the disputed boundary be different? Mr Smith's submission was that the judge made two material errors in the course of his findings: first, that the orphan post is in its original position; and second that the flank wall of the garage followed the line of the original fence. Those errors undermined the judge's finding that the original fence followed the green line. He should have held that that boundary was the red line.
78. In answer to these submissions, Mr Fetherstonhaugh rightly reminded us that we do not have the advantage that the judge did of seeing and hearing the witnesses and seeing the site. We also do not have a full transcript of all the oral evidence that the judge had; we were given merely a selection of it.
79. Dealing first with the orphan post, Mr Fetherstonhaugh said this was central to the Huntleys' argument. If they were wrong about it, it must be taken as marking almost the southern point of the boundary; and if a straight line is drawn from it to the agreed northern starting point, that line is virtually coincident with the green line, save only that it is at most about 12 inches out by the south-east corner of the garage.
80. Graham Huntley did not mention the post at all in his witness statement, whereas he did mention the mesh fencing in paragraph 37. He there referred to his mother telling him in February 2007 that Mr Armes had attached that fencing to the shed, and he referred to his own inspection of what Mr Armes had done. This was at a time when the dispute had blown up. Yet he made no mention of the fence post, which would have been an obvious thing to have done if that too was by then a new arrival on the scene. Nor, as the judge pointed out, did he refer to it in his letter of 19 March 2007. That letter specifically referred to the pinning of the new wire fencing to the shed, which Graham Huntley said his parents had shown him over the weekend; and it specifically alleged that Mr Armes had 'supported this encroachment by inserting some new wooden posts rather crudely in the ground'. The complaint was that the re-positioning of the wire fencing involved an eastward movement of 'some few (immaterial) inches'. Yet the Huntleys' complaint now is that the post – standing by the corner of the shed – is some three feet or so to the east of the red line, the boundary for which they contend. This letter was written just after Mrs Huntley claimed she had pointed the concrete post out to Graham Huntley. The position of the fence is now regarded as crucial, yet no mention was made of it. True it is that Graham Huntley was not cross-examined about that omission, but there was a good reason for that. None of the witnesses were clear as to when the post had been installed. Graham Huntley gave his evidence before Mrs Huntley, and it was only in her oral evidence that she came out, for the first time, with the account that she had first seen this post in March 2007; and Graham Huntley was not recalled to be cross-examined in the light of her evidence. He had of course given some general oral evidence about the post and had been cross-examined about it. The essence of it was that there was not originally a post next to the shed, but that there was one there now and he knew that no one at No 38 had put it there. He could not imagine that it had been put there by anyone other than Mr Armes or someone acting on his behalf.
81. Alan Huntley added little of precision to this particular issue, beyond asserting that the post was not in its present position when the shed was built but only appeared subsequently. Mrs Huntley's evidence was more specific, explaining in paragraph 28 of her witness statement that some time after the dispute blew up in 2005 she noticed that the post had been pushed up against the corner of the shed. She expanded on that in her oral evidence, explaining how it was not until March 2007 – before Mothers' Day – that she saw it for the first time, following the clearance of some vegetation in the area which she had had carried out in January. It was pointed out to her in cross-examination that Graham Huntley had not mentioned this in his letter of 19 March 2007, to which her response was 'No, that was terrible [sic] amiss of us. We didn't mention the post. We could have gone on forever mentioning things'.
82. Mr Fetherstonhaugh submitted that, whilst the judge did not say so in terms, the correct interpretation of his judgment was that he simply did not believe Mrs Huntley's evidence about her late discovery of this post in about March 2007 and of her informing Graham Huntley about it. The inference was that his preferred view was that Mrs Huntley was engaging in her oral evidence in an unreliable reconstruction of events in 2007 that did not in fact happen, a view which apparently caused him to question the overall reliability of the Huntleys' evidence that the post was not now in its original position. The judge also relied on the fact that, as the attempts to move the post at the site visit had shown, the post was very firmly embedded. As for Mr Smith's 'metalwork' point, namely that the ring was on the 'wrong' side for an intermediate post, the judge's finding on the site visit was that another original – and also intermediate - post on the boundary between Nos 37 and 38 was similarly aligned, with the bolt holes running north/south and the rings on the bolt side. His finding, on page 42, was that the purpose of the metalwork was to facilitate the fixing and tightening of the wire running between the posts. Mr Fetherstonhaugh also asked rhetorically what reason could Mr Armes have had to make a covert repositioning of the post and then do such a bad job of it as to leave it leaning towards No 39: he had already fixed the mesh fencing to the rear of the shed.
83. Moving to the wooden shed, Mr Fetherstonhaugh said that the relevance of the evidence relating to it was that it showed the inconsistency of the accounts given by the three Huntleys. Graham Huntley said in his oral evidence that when the shed was built, the area between the two gardens in that particular position 'was open'. There was clear space all around it. Alan Huntley said in his witness statement that the shed was about two feet or so from what appeared to be the boundary, whereas in cross-examination he said it was 'set back by about a foot from … what appeared to be the boundary', later adding that the boundary was almost non-existent. Mrs Huntley said in her witness statement that the shed was deliberately set back from 'what appeared to be the line established by the wires on the ground and the base of the vegetation, by about two feet at least.' The red line is, at that point, about 3'6" from the shed. How, given evidence of that nature, did the Huntleys know where the boundary was? All three witnesses were unanimous that there was virtually nothing there.
84. Moving to the concrete shed, it was built in 1950, when Gordon Dickman was 12, and it remained there for 55 years until 2005. Gordon Dickman said in paragraph 5 of his witness statement that it was built up to the boundary line. He was cross-examined as to that and repeated that it was 'built on to the edge of the boundary'. Mr Fetherstonhaugh submitted that it was implausible that it would have been built anywhere else; and he pointed out that the judge was plainly impressed by Gordon Dickman's evidence. As for the garage, it was built in 1967. The case now made by the Huntleys is that it was so built as to trespass on to No 38 to the extent of two feet from the red line at its northern end and three feet at its southern end. The western wall of the concrete shed was on the boundary; and at the southern end of the garage the original post and wire fence was still there. As the judge said, at page 67, any such trespass would have been 'completely obvious', although it may perhaps be that the garage was so built with perhaps a very slight deviation of no more than a few inches.
85. Mr Fetherstonhaugh turned to the four wooden fence panels. He made the same point that any replacement of the original fence by the placing of panels in a position involving a trespass of some three feet would again have been obvious. Graham Huntley's evidence in his witness statement was, however, merely that when the first and second panels were erected he and his parents 'felt that [they] may have been badly positioned by a few inches or so' (paragraph 14) and that he had later noticed that they had 'been moved a few more inches' (paragraph 15). A double trespass of 'a few inches or so' at a time is still well short of three feet. The judge anyway rejected that the erection of the first and second panels was otherwise than on the line of the original fence. He also found that the third panel was on the same line, but that the fourth panel diverted towards No 38.
86. By way of what he called an overview point, Mr Fetherstonhaugh said that over 104 feet, and drawing a straight line between both ends of the green line, the maximum deviation of the green line was about 12 inches at the southern end of the garage, with the deviation at the front being in millimetres. Moreover, Gordon Dickman's evidence was that No 39's garden was always wider than No 38's. In contrast, Graham Huntley said in cross-examination that he recognised that the plot of No 38 was wedge shaped, the rear boundary being wider than the front one. But his case was that the plot of No 39 was rectangular, a case that carried with it the assertion that No 38's garden was wider than No 39's. That apparently contradicted Gordon Dickman's evidence. Both accounts could not be right.
87. Finally, Mr Fetherstonhaugh turned to the alternative case that, if he was wrong as to the red line not being the boundary, the Huntleys' title to the disputed triangle had been extinguished by adverse possession. The judge's findings showed that the original fence remained in place for 15 years until 1950. The concrete shed was built in 1950, and itself formed an enclosure; and the garage was built in 1967. There was complete enclosure for the first 32 years, although in 1967 the section of the fence running from Simmil Road to the north-east corner of the garage was removed, after which there was no fencing in that section of the boundary apart from the various panels in disputed positions. As for the rear section of the properties, the judge found (at page 99) that Mr Armes maintained a single continuous fence at the rear of the properties from 1986 to date, albeit that in parts it was not substantial. The judge's finding was that the green line boundary was the physical boundary from the outset. If, however, the true boundary was the red line, it followed that by 1950 the paper title to the disputed triangle had been extinguished, a point that was pleaded and argued below, although the judge did not rule on it. The separate finding that the judge made as to the 'long flat triangle' made no difference: that was, on his findings, a failed attempt by Mr Armes to claim more land, but that failure did not deprive him of the title to that land which he, or his predecessors, had already acquired by adverse possession.

Discussion

88. We had the benefit of very able arguments on both sides, for which I would express my gratitude. The evidence before the judge, and the arguments before us, often – and necessarily - focussed on matters of detail, but it does appear to me that the resolution of the parties' differences can usefully be approached by standing back from the detail and considering the position from a more general standpoint.
89. First, the probabilities are that, whatever the precise identification of the line it followed, the original fence followed either a straight line or an approximately straight one. That is not only what one would expect upon the laying out of an estate of houses such as those built in Simmil Road in 1935, it is consistent with Gordon Dickman's evidence as to the line of fence. He could have 'guaranteed' that it was a straight line. That assessment was of course based on no more than what he saw, and not on the carrying out of any survey. It does not exclude the possibility that the line was not perfectly straight. But it does exclude the possibility that at any point or points along its route it apparently made any sharp turns one way or the other.
90. Secondly, whilst the relevant flank walls of the concrete shed and garage were not precisely in line one with the other (the former lying perhaps some four inches to the west of the latter), I consider that the judge was properly entitled to find that both followed the line of the original fence, the finding being that the flank wall of the shed followed the western sides of its posts and that the flank wall of the garage followed their eastern sides. It is possible that when either shed or garage was constructed, their flank walls did not follow such sides with immaculate precision; and that, in particular, the flank wall of the garage may have been aligned so that its south-east corner was marginally out of line. But on the Huntleys' case, that south-east corner trespassed by some three feet on No 38's land, a measurement made by reference to the red line. But if the original fence had followed the red line, it is inconceivable that Frank Dickman would not have noticed a trespass of such a dimension. The evidence was that the remaining section of the original fence running to the southern boundary remained in place and so the trespass would have been obvious and there for all to see. Yet the evidence was also to the effect that there was no discord about the siting of the garage. The only sensible inference is that that was because, as the judge found, its eastern flank wall was in line with that of southern section of the remaining original fence.
91. Thirdly, if that is the correct inference, the Huntleys' case that the orphan fence post was originally on the red line, as a remnant of a fence originally constructed on such line, makes no sense. For reasons just given, the original fence south of the garage cannot have been on the red line, because if it had been Frank Dickman would have been complaining about the position of the garage. And if the orphan post had, as the Huntleys asserted, originally been sited at some uncertain point to the west of its present position then, in order to meet up with it, the original fence must have made a noticeably sharp veer to the west at the south-east corner of the garage. It is highly improbable that that could have been the position since, if it had been, the fence would probably then have had to straighten up for the final section of its journey to the southern terminus (if it did not do so, but had continued in a straight line, it would have encroached into No 39 on the west of the red line). All this suggests to me that the judge's finding that the orphan post was in its original position is strongly in line with the probabilities. Admittedly, to link up with the post, the green line south of the garage has to make a slight kink towards it. But, as Mr Fetherstonhaugh pointed out, the maximum deviation from the straight along the whole length of the green line is some 12 inches at the south-east corner of the garage, which is not a major departure. It does seem to me to follow from all this (i) that it is impossible to fit into the known facts the notion that the original fence followed the red line, or any line close to it; and (ii) that the judge's finding that the original fence followed the green line is one that was consistent with what I would regard as the probabilities.
92. That is not a complete answer to Mr Smith's submissions, and he advanced a powerful challenge to the judge's finding that the orphan post was in its original position. I consider, with respect, that when the judge was making his findings about the alleged movement of the post, he ought to have dealt with the Huntleys' evidence about this more fully than he did, and to have there explained why he did not accept the Huntleys' evidence that the post had been moved. The only specific reason he gave at that point in his judgment was that it was inconceivable that, had Mrs Huntley told her son about the post on Mothers' Day, he would have omitted to mention it in his letter of 19 March 2007.
93. The judge was in my judgment fully entitled to make that observation, and I would respectfully agree that, had Mrs Huntley and Graham Huntley, discussed the allegedly novel emergence of this post on 18 March, the matter would obviously have been referred to by Graham Huntley in his letter of the following day. All that he did complain of in that letter was that, by pinning the wire mesh to the shed, Mr Armes had sought to gain 'some (immaterial) inches into number 38.' On the Huntleys' case, the movement of the fence post involved an encroachment of feet rather than inches; yet no mention of it was made.
94. It is, I consider, apparent that the judge simply did not believe Mrs Huntley's evidence about her discovery of the alleged arrival of this post in its present position; or therefore that she had told Graham Huntley about it on Mothers' Day. The Huntleys' evidence about the post was perhaps overall fairly remarkable. According to Alan Huntley, he claimed to have noticed the post at some uncertain time after 2003; and Graham Huntley claims to have seen it in about 2003. Taking Mrs Huntley's evidence at face value, the inference, however, is that neither of them told her about what they had seen and that there was no discussion about it. They left it to her to find out about it herself, which she claims she did not do until about March 2007. That suggests that neither Alan nor Graham Huntley had regarded their claimed earlier sitings of the post as significant; and Graham Huntley did not mention it in his pre-action correspondence or witness statement. The inference is that the post and its current position only later assumed importance in the Huntleys' dispute with Mr Armes.
95. On page 91 of his judgment, the judge did in fact expand materially upon his assessment of the Huntleys as witnesses, and he there provided a fuller explanation of why he had rejected their evidence about the alleged movement of the fence post. Put shortly, it was to the effect that they had become fixated by the rightness of their case that the true boundary was the red line and that it also marked the line of the original fence; and they had allowed that fixation to distort their views of the past. He said that they had lost all objective judgment in pursuit of the belief that the boundary line was equidistant between the properties; that any factor running counter to their theory had to be rejected; and that only the facts that supported it could be advanced. The judge gave as an example the collective insistence by the Huntleys that Mr Armes had drilled holes through the elderberry tree so as to enable him to pull the mesh fence through it, something that they did not see happen and which was, he said, no more than highly improbable theory. Another example was their conviction that Mr Armes had recently installed the orphan post in a new position. The judge acquitted all the Huntleys of having intended to mislead the court. But he found that they all so strongly believed that the boundary was equidistant between the properties that they had convinced themselves of the truth of their evidence about these (and other) matters. He found that they had deceived themselves.
96. Mr Smith was critical of this judicial assessment of his clients and said it was unfair. I do not, however, begin to understand how this court can question the judge's assessment. He saw and heard the Huntleys give evidence and he made his finding on the quality of their evidence. This court has not had the like advantage and is in no position to question the correctness of the judge's assessment in these respects. As between Mr Armes on the one hand and the Huntleys on the other, one or other side was wrong in the case that he or they were making in respect of the orphan post. It was the judge's task to resolve that difference and to find the facts. He did so and in my view his finding is unassailable in this court. It fundamentally undermines the Huntleys' challenge to the judge's finding that the original fence was on the green line. Given that the parties are agreed as to the northern starting point, and that the probabilities were that the original fence was a straight, or an approximately straight, one, the judge was in my judgment entitled, on the basis of the evidence before him, to find that it was on the green line.
97. As regards Mr Smith's specific challenge to the judge's finding that the flank wall of the garage followed the line of the original fence, it follows that I consider that the judge was entitled to find that it did. I consider that there is no basis for any conclusion that there was insufficient evidence to justify such a finding. I admit to a concern that the garage may have been slightly misaligned, with the consequence that its south-eastern corner was further east than it should have been, a misalignment resulting in the kinking of the green line at that point. Having uttered the concern, I do not, however, see how this court can conclude that the judge was in fact wrong to find that the flank wall of the garage ran up to the line of the extant fence that ran on to the southern boundary. The finding was, in my view, justified by the evidence.
98. The net result is that I would reject the Huntleys' challenge to the judge's finding that the original post and wire fence was on the green line. For reasons given earlier in this judgment, I would not regard the green line as the boundary identified by the 1935 conveyance. But for the reasons submitted by Mr Fetherstonhaugh, I regard it as clear that the owners of No 39 were in exclusive possession of the disputed triangle from 1935 onwards so that by about 1950 at the latest they had extinguished the title of the Huntleys' predecessors to that triangle by their adverse possession. Whilst I would respectfully disagree with the judge that the green line marks the original legal boundary between Nos 38 and 39, the judge was entitled to find – and ought to have found, had he addressed himself to the point - that, by the time the matter came before him, the consequence of the prior adverse possession was that the green line marked the present boundary between the properties. In my judgment, therefore, although for reasons not identical to those adopted by the judge, he came to the correct decision as to the line of the boundary.
99. I would dismiss the appeal.

Lord Justice Patten:

100. I agree.

Lord Justice Rix:

101. I also agree.