England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GUILDFORD COUNTY COURT
His Honour Judge Reid QC
9GU00564, 9GU00613

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st February 2012

Lord Justice Patten:

1. The parties to this appeal are the owners of neighbouring houses in Chantry View Road, Guildford. Mr Kennerley is the owner of Old Westwick. This is a large Edwardian house built in 1906. Mr and Mrs Beech own Ruckstones which was built in 1955 on what had originally been part of the garden of Old Westwick.
2. In order to understand the issues on this appeal a brief description of the geography of the site is necessary. Prior to its division Old Westwick consisted of the house I have described built at the northern end of a site which slopes upwards from Chantry View Road (which runs along its southern boundary) to a road called Warwick's Bench which forms its northern boundary. The eastern boundary of the site is formed by a footpath running in a more or less straight line from Warwick's Bench to Chantry View Road. The western boundary is the line of a fence or hedge dividing Old Westwick from the neighbouring property. Nothing turns on this boundary for the purposes of this appeal.
3. At some point prior to 1953 a large part of the southern end of the garden of Old Westwick was sold off as a building plot on which a house called Quarry Bank was erected. This plot extends from Chantry View Road in the south to a line approximately parallel with the northern boundary of Old Westwick. The owners of Old Westwick retained a strip of land along their western boundary which continues to provide access from Old Westwick to Chantry View Road. This includes the area of the original drive to the house which runs north from Chantry View Road; then runs first east and then west; before finally turning east to reach a parking area in front of the main entrance to the house. Again the precise line of the boundary with Quarry Bank is not in issue.
4. The current dispute between the parties results from the further sub-division of Old Westwick in the 1950s. The house was sold at auction in 1953 to a Mr Peter Russell who divided it into four parts. On 27^th May 1954 the eastern part of the house was transferred to Mr Frederick Courtney together with part of the garden and a right of way along the drive to Chantry View Road. The title to this plot was registered at HM Land Registry under title number SY113647. The area of land sold is described in the transfer as the land coloured pink on the attached plan which is an architect's drawing of the ground and first floors of the house only part of which was included in the sale.
5. The plan also includes (on a very small scale) what appears to be a hand-drawn map of the house and its adjoining land. This shows the area of garden sold with this part of the house as including everything to the north and east of the house up to Warwick's Bench and the footpath. The plot extends as far south as a straight line approximately parallel to the northern boundary. This line runs from the footpath in the east to a point on the eastern side of the main drive. The remaining boundary of the plot runs from this point more or less diagonally to the main entrance of the house and then on to a point on the northern boundary at Warwick's Bench which is marked as being 57 feet from the north-eastern corner of the plot.
6. Although the western boundary of the land sold to Mr Courtney was shown as the diagonal line described above, the Land Registry proceeded to register the title on a quite different basis. The filed plan shows the western boundary extending north from a point well inside the eastern edge of the drive (rather than contiguous with it) and, instead of the diagonal line on the transfer plan, it is shown as curving (almost snake-like) up to the area in front of the entrance to the house thereby indicating that it follows the eastern edge of what the judge described as the wiggly path.
7. This path is the subject of the second issue on this appeal which is whether Mr Kennerley, as the owner of Old Westwick, still enjoys a right of way over it. But for present purposes it is enough to record that the path runs south from a point on the drive near to Old Westwick until it meets a pathway which runs or at least ran at right angles to it along the base of an embankment which marks the southern end of the garden land sold to Mr Courtney. I shall refer to this as the rope-edged path for reasons which I will explain later.
8. The first issue on this appeal is the location of the southern boundary of the land sold to Mr Courtney because this is the land which Mr Kennerley now owns. The hand-drawn plan attached to the transfer contains two sets of annotations on which this issue has turned. The first is a series of measurements. As already mentioned, the width of the northern boundary from its junction with the footpath to the east of Old Westwick is shown as 57 feet but nothing turns on this. What Mr Kennerley relies on is first the measurement given for the length of the plot along its eastern boundary with the footpath measured from its junction with Warwick's Bench. This is stated on the plan to be 171 feet. The other measurement relied on is the width of the plot from its south eastern corner to the point on the plan shown as contiguous with the drive. This is given as 138 feet.
9. The other set of annotations which the judge relied on as helping him to determine the line of the southern boundary of Mr Courtney's land is the series of small circles running along the boundary line which are referred to on the plan as "existing hedge". The same feature is repeated along the diagonal western boundary. The southern boundary is also marked with the letter 'T' which relates to a covenant by Mr Courtney in paragraph 9 of the Third Schedule to the transfer which provides that:

"The Purchaser shall within three months from the date hereof erect and for ever after maintain at his own expense a good and sufficient hedge or fence not less than three feet or more than six feet in height on the sides of the said property within the boundary lines marked 'T' on the said plan numbered one to the satisfaction in all respects of the Surveyor for the time being of the Vendor."

10. The effect of the sale of this plot to Mr Courtney was to leave in the ownership of Mr Russell an area of garden land between the plot's southern boundary and the northern boundary of Quarry Bank together with the drive and the remainder of the garden land lying to the west of Mr Courtney's land. It was part of this retained land that Mr Russell sold to a Mr Tucker as a building plot on which Ruckstones was subsequently built. The relevant transfer which is dated 5^th November 1954 indicates that Mr Tucker was then living in Flat 1 at Old Westwick which was one of two flats in the part of the house retained by Mr Russell. What Mr Tucker bought was a roughly 'L' shaped piece of land comprising as its northern end an area of land lying between the eastern side of the drive and the western boundary of Mr Courtney's plot. The foot of the 'L' shaped plot extends east for a distance from the southern end of the wiggly path along the southern boundary of Mr Courtney's land. It also includes the strip of land between the drive and the eastern boundary of Quarry Bank running down to Chantry View Road. In addition the transfer included a right of way along the drive.
11. The transfer plan is also hand-drawn and is therefore not an accurate representation of the relative positions of the driveway or the wiggly path. It also differs from the 27^th May transfer plan in that it indicates by two parallel lines what is, I think, agreed to be the rope-edged path running from the footpath on the eastern boundary of Old Westwick to a point adjacent to the drive. The land previously sold to Mr Courtney is shown as extending to the northern edge of the path which is also marked on the plan as representing "centre of hedge". The plan also contains a measurement of 47'6" between the south western corner of Mr Courtney's land adjacent to the end of the wiggly path and the point where the northern edge of the rope-edged path meets the drive.
12. As a result of this sale Mr Russell was left with the eastern part of the garden land lying between the plot sold to Mr Courtney and Quarry Bank; the remaining part of Old Westwick itself; the drive from Old Westwick to Chantry View Road and all the remaining land to the west of it. Curiously the transfer plan shows Mr Tucker as having purchased as part of the plot the thin strip of land lying between the eastern edge of the wiggly path and what is shown as the straight line western boundary of Mr Courtney's plot. This is inconsistent both with the delineation of Mr Courtney's western boundary as a diagonal line on the transfer to him and with the filed plan of his registered title showing him as owning all the land up to the eastern edge of the wiggly path. On one view Mr Russell had sold to Mr Tucker land he has already transferred to Mr Courtney. But an explanation may be that the November 1954 transfer plan anticipated the sale on 21^st March 1955 by Mr Courtney to Mr Tucker of that small irregular strip of land so as to create a straight line western boundary to Mr Courtney's property. This strip was registered under title number SY132009.
13. As a consequence the wiggly path now runs down the eastern side of the garden of what became Ruckstones. In the transfer of 5^th November 1954 Mr Russell had reserved to himself and his successors in title a right of way on foot only subject to a contribution towards the repair and upkeep of the pathway. In addition to owning the land sold to Mr Courtney, Mr Kennerley is also the successor in title to Mr Russell in respect of the land retained by Mr Russell at the time of this transfer including the retained part of the house and the drive itself. In the proceedings before the judge he maintained that the right of way was still exercisable. The judge's rejection of this claim is the second issue on this appeal.

The boundary dispute

14. Although the judge helpfully outlined the full conveyancing history in his judgment, it is not necessary to look beyond the transfers I have already mentioned in order to resolve this issue. Mr and Mrs Beech now own an additional part of the intermediate land between Old Westwick and Quarry Bank but this purchase has not affected the question of what is the southern boundary of Mr Kennerley's land. They have acquired no more than the area retained by Mr Russell following the sale to Mr Courtney and it is that transfer which fixed the line of the southern boundary.
15. In physical terms the issue between the parties is whether the boundary lies at the top or the bottom of the relatively steep bank at the southern end of the main lawn in Mr Kennerley's garden. This was once a tennis lawn and was presumably levelled out of the natural slope between Old Westwick and Chantry View Road. The bank varies in height between 2.4m at its western end near to the southern terminus of the wiggly path and 1.4m at its eastern end adjacent to the footpath. At the foot of the bank is what remains of the rope-edged path so described because of the traditional rope-edged tiles used to line and mark out each side of the path. Mr Kennerley's pleaded case at the trial was that the correct line of the boundary was the southern edge of this path but it was conceded during the trial that Mr and Mrs Beech had acquired a title by adverse possession to the surface area of the path but not to the bank itself. He therefore contended for the northern edge of the path as the boundary. Mr and Mrs Beech's case is that the paper title boundary followed a line along the top of the bank that was marked by a hedge. In the alternative they claimed to have acquired title to the bank by adverse possession based on such matters as their cultivation of plants and shrubs along the bank.
16. Each side called an expert to support their respective cases but the judge found this evidence to be of limited assistance. He complains in his judgment about the animosity which seems to have developed between the experts and their habit, as he put it, of attempting to score points off each other. Mr John Gordon MA FRICS, who was instructed on behalf of Mr Kennerley, produced a scaled plan as part of his main report based on the 5^th November transfer plan. This shows the south western corner of the garden of Old Westwick as point X3 immediately adjacent to the northern edge of the rope-edged path. This point is, according to the report, derived from measuring the 47'6" on the November transfer plan from a point marked on the ground near the drive by a stone step which is taken to be what he describes as the western gateway to the rope-edged path.
17. Of itself this measurement does no more than to establish the corner point of the western and southern boundaries of Old Westwick as shown on the November transfer plan which shows the land sold to Mr Courtney as extending to the northern edge of the rope-edged path. It is therefore primarily relevant to establish the line of the western boundary of that property following its re-alignment after the sale of the land comprised in title number SY132009. The line of the southern boundary of Old Westwick falls to be determined on the basis of the plan contained in the 27^th March transfer which does not include any reference to or representation of the rope-edged path and shows Mr Courtney's southern boundary as an established hedge.
18. But Mr Gordon went on in an addendum to his report to explain how he had attempted to reconcile the measurements scaled from the November plan with those shown on the 27^th March transfer plan. It will be recalled that this shows a measurement of 138' for the southern boundary of the land conveyed stretching from the footpath in the east to the drive in the west. Mr Gordon says in his addendum that this measurement is wrong insofar as it purports to state the distance between the footpath and the drive. The correct measurement using the northern side of the rope-edged path as a line is 56.58m (185'6"). But if one deducts 138' (42.1m) from this one is left with 47'6" (14.48m) which exactly corresponds to the measurement on the November transfer plan. From this he deduced that the northern edge of the path was the boundary in line with point X3 on the scaled plan.
19. Mr Alan Roberts FInstCES acted as an expert for Mr and Mrs Beech. In the last of his reports he expressed the view that the parallel lines along the southern boundary of Old Westwick shown on the 5^th November transfer plan were intended to mark a wide hedge, the centre of which was the boundary. He made a number of points about the position of point X3 on Mr Gordon's plan but his comments were directed to the position of the western boundary of Old Westwick (which was also in dispute between the parties) and not to the matters dealt with in the addendum to Mr Gordon's report.
20. The experts met and produced a statement of agreed and unagreed issues which was put before the judge. The points of agreement included agreement that the western boundary of Old Westwick was the north-south line marked between points X2 and X3 on Mr Gordon's plan if the court accepted that the 47'6" shown on the 5^th November transfer plan should be taken as indicating the distance between the driveway and that line. But they remained in disagreement both as to the position of the southern boundary and as to whether the parallel lines shown on the November plan indicated a path or a hedge.
21. The judge accepted (rightly) that the starting point must be the transfer of 27^th May 1954. He noted the inconsistencies between the shape of the land as sold to Mr Courtney as shown on the 27^th May transfer plan and the straight line boundary indicated on the November transfer plan which he described as amateurish. This plan appeared, he said, to have been produced by tracing from a block plan that was submitted to Guildford Borough Council as part of a planning application for the construction of Ruckstones.
22. He then turned to consider the issue of the southern boundary of Old Westwick and the correct interpretation of the November transfer plan with the two parallel lines and the annotation "Centre of Hedge":

"54. There was considerable debate as to what was signified by the uncoloured areas between the two sets of parallel lines. It was submitted on behalf of the Beeches that that the words "Centre of Hedge" meant what they said, and there had at the time been a hedge in existence, which it was intended should be the boundary. There was evidence of a hedge at the top of the bank along the disputed boundary, though not elsewhere at the bottom of the bank.

55. Mr. Gordon suggested that the fact that the "Centre of Hedge" area was uncoloured meant that it showed a pathway, which was retained in the ownership of Mr. Russell. He did not explain why the words "Centre of Hedge" should have been written on the plan if there what was delineated as in fact a path. The suggestion that the uncoloured areas between the parallel lines might represent paths retained by Mr Russell might have had some appeal: they would for example have been a means of access to the Square Land. It was not one that was adopted or pursued by counsel on behalf of Mr Kennerley. It is easy to see why. It would have involved arguing that there was a narrow strip across the middle of Ruckstones' garden still belonging to Mr Russell. There was no grant of any right of way across this strip and no easement of necessity could have arisen since it would have been possible to access the southern half of the garden by going out on to the drive way and round the end of the offending path.

56. On the balance of probabilities I am satisfied that the source of the plan on the transfer of Ruckstones was the block plan submitted to the Guildford Borough Council with the planning application for Ruckstones. On that plan as originally produced for its original purpose I have no doubt the lines were intended to indicate paths. It is expressly designated as "Path" and shown running out through a gap in the hedge alongside the drive into the driveway. At the point where the gap is indicated there is still a point in their hedge and there is a large flat stone which forms what Mr. Gordon described as a nosing stone to the driveway. The site plan forming part of that application shows a 4 inch drain running down the middle between the two lines, but that is not the end of it. The layout plan that also formed part of the application shows a hedge alongside the path as indicated by the part of the solid line to the west of the Wiggly Path on the Land Registry plans.

57. That does not answer the question whether the northern of those two lines was hijacked when the plan was adopted as a transfer plan to delineate a hedge. If the hedge alongside the path continued eastwards beyond the Wiggly Path there is no reason why when adapting the plan for the purpose of being a transfer plan the parties should not have decided to adopt the delineation of the path as the delineation of the adjoining hedge. On the balance of probabilities it is my view that they did so, making clear what they had done by writing in the words "Centre of Hedge" on the plan.

58. Mr. Gordon appears entirely to discount the words "Existing Hedge" on the May 1954 transfer plan. I am unable to see why he should do so. He could not explain why the words "Centre of Hedge" should have been written on the plan if the draftsman did not intend to indicate the presence of a hedge and that it was to be a boundary feature.

59. It is true that this does not fit in with his theory that the boundary ran along the rope-edged path, but that is no valid reason for rejecting clear words on a plan accepted at the time by parties who knew the property well. It would be remarkable if they had identified the boundary as being "Centre of Hedge" if there was no hedge and the intention was in fact that the boundary should be a path.

60. Matters were not simplified by Mr. Roberts' apparent refusal to recognise that the rope-edged path had ever existed. From my view of the property I am satisfied that in this regard Mr. Gordon is correct and there was a path (the course of which is still apparent on the ground) edged by rope-edged tiling (remnants of which can be seen) and that the path ran from the edge of the drive across from west to east along the south of the embankment.

61. In my judgment the words "Centre of Hedge" meant what they said and the boundary was intended to be the centre of a hedge. The November 1954 transfer was intended to fit in with the May 1954 transfer and provide for a boundary down the centre of a hedge. It would be remarkable if both the 27 May 1954 transfer and the 5 November 1954 transfer referred to a hedge as a boundary feature if there were no hedge or it was not intended that whatever hedge there was should be a boundary feature. It is unfortunate that what appears to have been an effort to avoid the fairly minor expenditure of having a proper plan for the two transfers has resulted in so much confusion over half a century later."

23. This seems to me to be a perfectly conventional approach to the construction of the relevant transfers. The 27^th May transfer (which is the governing instrument for the purposes of establishing the southern boundary) described the land sold by reference to the area "coloured pink on the plan" which showed the boundary line as that of an existing hedge. Neither side sought to place much reliance on the measurement of 171 feet for the eastern boundary of the plot. This is likely to have been affected by the topography of the site and the judge held that it was consistent with both sides' contentions as to where the boundary lay. It may also have been no more accurate than the 138 feet measurement between the footpath and the drive. Instead the judge concentrated on the description of the boundary line as the existing hedge which, as he held, must have been a visible feature on the ground at the time of the sale and was clearly adopted by the parties as identifying the limits of the area to be transferred.
24. Although the plan attached to the 27^th May transfer was not described as being for the purpose of identification, the smallness of its scale and the fact that it was hand drawn lead to the inevitable inference that the reference to the hedge was the key and determining feature of the boundary. The measurements on the plan, although doubtless intended to assist, are not capable of overriding the line of the hedge as the chosen boundary to the extent that they may be inconsistent with it.
25. The construction of the 27^th May transfer is also consistent with the reference to "Centre of Hedge" on the November transfer plan. In the paragraphs of his judgment quoted above the judge describes the different origins of the transfer plans which, of course, explain why the November plan contains the parallel lines based on the existing paths. But his finding that the parties have (to use his words) highjacked the lines to represent the hedge was an obvious inference from the material before him and not one which has been effectively challenged on this appeal.
26. It is, however, important to bear in mind that the November transfer plan has limited utility in relation to the construction of the 27^th May transfer. Its purpose was to identify the land sold to Mr Tucker; not to confirm the boundaries of what Mr Russell had already sold to Mr Courtney. At most it provides evidence of what Mr Russell (or those advising him) believed had been transferred on 27^th May. Even if this evidence is technically admissible (see Ali v Lane [2006] EWCA Civ 1532) as an exception to the general rule that subsequent conduct cannot be relied upon in order to ascertain the meaning of an earlier contract, there are obvious issues about its probative value. In the event, however, it confirms that the southern boundary was the centre line of a hedge.
27. Consequent on his interpretation of the 27^th May transfer, the issue for the judge was an essentially factual one as to where the hedge was situated at the time of the transfer. He considered this in paragraphs 101-107 of his judgment:

"101. The important one of the features on the 27 May 1954 transfer plan is the "Existing Hedge". There is no evidence of a hedge at the bottom of the bank. Nor (contrary to one caustic observation by Mr Gordon) did Mr Roberts suggest that there was one hedge at the top of the bank and one at the bottom. There was evidence of both a fence and hedge at the bottom of the tennis lawn.

102. A feature of the transfer 27 May 1954 is that by paragraph 9 of the Third Schedule Mr Courtney covenanted within three months from the date of the transfer to "erect and for ever after maintain at his own expense a good and sufficient hedge or fence not less than three nor more than six feet in height on the sides of the said property within the boundary lines marked 'T' on [Plan No.1]. The 'T' marks are on the southern boundary.

103. So far as material to this dispute, that means that one starts from the north east corner of the property where the public footpath meets Warwick's Bench. The 27 May 1954 transfer plan shows a measurement of 171 feet which must be taken south from that point along the boundary of the footpath. Mr. Gordon stated that the exact northern point of this line might be uncertain because approximately 0.5m of the northern corner of the brick wall on that boundary had been recently rebuilt (apparently following an incident with a motor vehicle) and that it was quite possible that the end of the wall was not rebuilt in exactly the same position. His view was that the measurement of 171 feet "nearly coincides with the eastward extension of the line of the lower embankment/east-west pathway", and that "it does so within 0.6m (2 ft)". This, he felt supported his view that the southern edge of the pathway represented the boundary.

104. Mr Gordon supported his view that the southern boundary of Westwick lay on the south edge of the rope-edged path by reference to measurements he had scaled from the title plan SY149666 from the northern edge of the path to the front door of Old Westwick was "approx 27.15m" while the distance to the solid line on that plan immediately to the north of the path was 26m. He refined the figures by measuring the embankment on site as having "an actual width of approx 1.25m" at this point and the distance from the wall at the side of the garden doorway at Old Westwick to the foot of the embankment retaining wall (ie the northern edge of the path) as 26.9m. This indicated to him that the solid line on the plan to SY149666 was intended to represent the top of the embankment and not Old Westwick's southern boundary.

105. Mr. Roberts disagreed. He took the view that the measurement of 171 feet, which he erroneously described as being 51.1m rather than 52.12m, (although in evidence he corrected this as a typographical error) ran down to the hedge which is identified on the May 1954 transfer plan. He pointed out that the distance from the north-east corner of Westwick to the centre of the parallel lines scaled on the file plan to the centre of the east-west parallel lines is 51.5m or 168 feet 11¹/₂ inches (give or take 0.2m or 7.87 inches). He noted that if one extended the fence line B2-B3 on Mr Gordon's Plan A (representing the line of the fence at the bottom of Westwick's tennis lawn and the top of the bank) to the eastern boundary wall, then the scaled distance from the north east corner was 51.8m or 169 feet 11.37 inches. These figures, in his view, were too close for coincidence and indicated that the hedge at the bottom of the tennis lawn and the top of the bank was the boundary.

106. In my judgment the boundary of the land transferred to Mr Courtney was the hedge which stood at the top of the embankment. The property transferred to Mr Tucker included the embankment and the paper title of the Beeches extends to the top of the embankment.

107. My primary reasons for this conclusion are as follows:

a. Both the May 1954 transfer plan and the November 1954 transfer plans show that the relevant boundary between Westwick and Ruckstones was to be a hedge.

b. The measurement of 171feet on the May 1954 transfer plan could be consistent with either the top of the bank or the edge of the path being the relevant boundary. Even putting aside any doubts as to whether that measurement was inch perfect, it does no more than provide material on which each side could found a respectable argument.

c. There was however a covenant by Mr Courtney to "erect and for ever after maintain … a good and sufficient hedge or fence…" along that boundary.

d. There was a hedge at the top of the bank and also a fence. There is nothing to suggest that there was ever either a fence or a hedge at the bottom of the bank.

e. While, as Mr. Gordon observed, there is a natural logic in retaining embankments for the purpose of maintenance to ensure that the upper land would not collapse, there is equally an interest in the owner of the land below in owning the embankment so as to be able to preserve his property from the collapse of the embankment. Mr Russell was in a position to determine what he would sell and what he would retain for his own benefit. The point does not assist Mr Kennerley: at best it is neutral."

28. Looked at on their own, these conclusions seem to me to be unassailable. The measurement of 171 feet is inconclusive as between the rival contentions and the judge's finding was that the hedge was situated at the top of the bank. There is no challenge to this finding and, on that basis, the appeal is quite hopeless. But the appeal against the judge's conclusions on the situation of the southern boundary does not depend upon challenging these findings of fact. Instead it concentrates on an alleged inconsistency between the judge's decision that the southern boundary lay along the top of the bank and his conclusions about the position and terminus of the straight line western boundary of Old Westwick.
29. This was also the subject matter of dispute at the trial the precise details of which do not matter. The line of this boundary is shown on the November transfer plan but it was, of course, the product of the sale of the thin strip of land by Mr Courtney to Mr Tucker on 21^st March 1955 referred to in paragraph 12 above.
30. As mentioned earlier, the experts were agreed that the western boundary of Old Westwick was the X2-X3 line shown on Mr Gordon's scale drawing provided that the court accepted that the 47'6" measurement on the November transfer plan was intended to indicate the distance between the edge of the drive and the western boundary. But they were not agreed about the line of the southern boundary and did not therefore agree that point X3 represented the south-western corner of the land sold to Mr Courtney.
31. The judge referred to Mr Gordon's point X3 in paragraph 73 of his judgment:

" Mr. Gordon was on stronger ground when he fixed point X3 on his plan. He derived this from measuring 47 feet 6 inches (14.48m) from his point E4, which was the northern edge of the stone slab at the edge of the driveway at the point where the east-west path met the driveway. I have already held that measurement of 47 feet 6 inches was intended to show the dimension between the edge of the driveway and the south west corner of the land which had been sold to Mr. Courtney by the transfer dated 27 May 1954. Although that transfer was ineffective in that it did not transfer to Mr. Tucker the sliver of land to the east of the Wiggly Path which had already been transferred to Mr. Courtney, once the subsequent transfer of the sliver of land in March 1955 had taken place it was possible to look back to the measurement of 47 feet 6 inches on the November 1954 transfer to assist in fixing the boundary line. "

32. He then went on to base his finding about the western paper title boundary to Old Westwick on the agreement between the experts to which I have referred:

"76. In one of the rare matters on which they did agree, Mr. Gordon and Mr. Roberts agreed that the north-south line showed marked X1 to X3 on Mr. Gordon's plan was correctly positioned if I accepted the annotated dimension of 47 feet 6 inches shown on the transfer plan as defining the boundary. As I have done so, it follows that the paper boundary between Ruckstones and Old Westwick is a straight line passing from point X3 on Mr Gordon's plan through X2 and onwards northwards until it meets the driveway."

33. What is now said is that the judge's finding about the position of the southern boundary is simply inconsistent with his apparent acceptance that the south western corner of Old Westwick was point X3 on Mr Gordon's scale plan. The two are only reconcilable if the southern boundary runs from point X3 (at the foot of the bank) up to the top of the bank and then along it. But nobody suggests that this was the line of the hedge. The judge's acceptance of point X3 as the corner point therefore undermines his finding about the position of the southern boundary which indicates that his construction of the May transfer must be wrong.
34. The difficulty I have about this argument is that it starts from the wrong point. The judge's finding that the November transfer plan (which contained the 47'6" measurement) involved adopting the line of the rope-edged path to represent the hedge means that the 47'6" measurement is irrelevant for the purpose of determining the position of the southern boundary of Old Westwick. This depends on the situation of the hedge at the relevant time. As mentioned earlier, the 47'6" was included on the plan as a measurement of the width of the plot sold to Mr Tucker and the judge relied on it as an aid to fixing the position of the north-south boundary between Ruckstones and Old Westwick.
35. Once it is established that the existing hedge runs across the top of the bank and that the depiction of the path on the transfer plan was used for reasons of economy to represent the line of the hedge then it becomes impossible in my view to use the physical line of the path on the ground (as Mr Gordon did) to seek to justify his case that the boundary ran along the bottom of the bank. The 138' shown on the May transfer plan (apart from being inaccurate in itself) was a measurement along the line of the existing hedge. Not a measurement along the path. And the 47'6" was not a feature of the May plan at all.
36. One also needs to bear in mind that the northern side of the rope-edged path was not where Mr Gordon in his main report considered the paper title boundary to lay. His view (as explained by the judge) was that the boundary was the southern edge of the path and this remained Mr Kennerley's pleaded case throughout. The northern edge of the path only became relevant once it was conceded that the Beeches would have acquired a title to the path by adverse possession.
37. Mr Morshead QC says, I think with some justification, that Mr Kennerley's present case that no measurement of 47'6" leading east from the driveway anywhere north of point E4 on the plan could have reached point X3, assumes that the drive as it now exists follows the same course as it did in 1954. This was never tested at trial because the northern line of the path was not the case advanced. But, as I have already explained, the site of point X3 assumes that the rope-edged path (where it lay) was intended to represent the line of the southern boundary on the November plan. For the reasons found by the judge, this is incorrect.
38. I do not therefore accept that one can use the combination of measurements derived from the May and November transfer plans to reject the clear indication on both plans that the southern boundary was the line of the hedge which, on the judge's findings, lay at the top of the bank. Nor do I accept that there was an inconsistency in the judge's reasoning on this point. He makes it clear in the passages I have quoted that he regarded the 47'6" measurement to point X3 on Mr Gordon's plan as relevant only to the fixing of the line of the western boundary of Old Westwick. Paragraph 73 of his judgment has to be read as a whole. The boundary line referred to at the end of the paragraph is obviously the western boundary line and his earlier reference to the 47'6" being intended to show the distance between the drive and the south western corner of Old Westwick has to be read in that context. This is reflected in the order that the judge made which treats the line X1 to X3 as the western boundary of Old Westwick down to the point at which it is bisected by the line G-H on Mr Roberts' plan which is a line along the top of the bank.
39. I would therefore affirm the decision of the judge in relation to the position of the southern boundary. In these circumstances, it is unnecessary to consider whether the judge was right to find in the alternative that Mr and Mrs Beech had acquired a title to the bank by adverse possession.

The right of way dispute

40. This point is more difficult. The reservation of the pedestrian right of way over and along the wiggly path is not limited in terms to any period of time or by reference to any stated purpose. But the judge had evidence in the form of a statutory declaration from a Mrs Hopegood (who lived in one of the flats at Old Westwick at the time) that her late husband had used the right of way for about 12 months in order to gain access to a kitchen garden on part of the land sold to Mr Tucker.
41. In her statement Mrs Hopegood said that:

"2 …My late husband used this right of way for approximately 12 months merely to gain access to the property to the purpose of cultivating the said kitchen garden.

3. A few months after the date of the said transfer my said husband commenced cultivation of a kitchen garden on my said property known as Old Westwick and from such time ceased to use the kitchen garden at Ruckstones and the right of way giving access thereto.

4. I can state from my own knowledge that since 1955 neither my late husband nor myself have ever used the said right of way across Ruckstones at any time."

42. The statutory declaration was obtained and used by Mr Tucker to assist him in the sale of Ruckstones to a Mr and Mrs Lacey in 1971. Although it was apparently intended for the benefit of Mr Hopegood, the reservation of the right of way was made in favour of the land retained and owned by Mr Russell which included the remaining part of Old Westwick and its drive which contained the flat occupied by Mr and Mrs Hopegood. This part of the house was (as mentioned earlier) subsequently acquired by Mr Kennerley.
43. The wiggly path ran south from the driveway near the entrance to Old Westwick until it reached the rope-edged path. The judge found (and there is no appeal against this) that what Mrs Hopegood described as the kitchen garden at Ruckstones in paragraph 3 of her statement was in fact situated on the area of land to the east of the Ruckstones plot and to the south of Old Westwick which Mr Russell had also retained following the sale to Mr Tucker. This means that in order to get to the kitchen garden Mr Hopegood had to pass across part of the garden of Ruckstones beyond the wiggly path in respect of which Mr Russell had reserved no right of way nor had it would seem any prospect or intention of acquiring one. Mr Hopegood's use of the temporary kitchen garden must therefore have depended on a licence from Mr Tucker to pass across the remaining part of his garden which would have terminated when Mr Hopegood started to use the kitchen garden on his own land.
44. The wiggly path and the right of way over it never therefore enabled Mr Russell or his tenant to access the kitchen garden land and so to achieve by itself the purpose for which the judge found it was granted. Its terminus ad quem was the end of the path. The most therefore that Mr Russell was entitled to do was to walk to the end of the path and then return. Even that is now difficult if not impossible. Doubtless encouraged by Mrs Hopegood's statutory declaration and the cessation of any use of the path after 1955, the Beeches or their predecessors in title have carried out work on the eastern side of Ruckstones in the area of the path including the excavation of the slope and the creation of a flat patio area. This has physically destroyed the northern part of the path and created a steep embankment which would have to be climbed down rather than walked across.
45. The judge found that successive owners of Ruckstones from the Laceys onwards have acquired the property on the basis that no right of way still exists over the wiggly path. On behalf of the Beeches, it was submitted to him that a right of way required a terminus ad quem in favour of a highway or other accessible property and could not exist without it. The right reserved in the November transfer therefore ceased to be exercisable at the latest when Mr Hopegood gave up the use of the kitchen garden. In the alternative, they contended that the right of way had been abandoned.
46. For Mr Kennerley, it was submitted that there had been a valid grant of a right of way and that the absence of a terminus ad quem of this kind was not fatal to its enforceability. The judge was referred to the decision of this court in Re Ellenborough Park [1956] 1 Ch 131 as an example of such a right of way. In relation to abandonment, it was said that the necessary intention to abandon the right could not be inferred from mere non-use even over a period of more than fifty years and that there was nothing more in this case to support that defence.
47. The judge dealt with these arguments as follows:

"136. So far as the contention on behalf of Mr. Kennerley that is the right of way could exist, in effect as a form of jus spatiandi, even without a terminus ad quem, it seems to me that point is without substance. The right was reserved as a right of way, not as in the Ellenborough Park case for the enjoyment of a pleasure ground. It was not expressed to be reserved for the purpose of enjoying Ruckstones' garden. At the time of the grant Ruckstones had not yet been built and in any event, the idea that a right might be granted to enable someone to wander into their neighbour's domestic garden for the purpose of enjoying it is so bizarre that it would require very plain words before the court would be persuaded of that construction.

137. So far as the suggestion is made that there would be an advantage to Mr. Kennerley in having the use of the path to inspect his property, at the time of the grant, the land running alongside the Wiggly Path was no longer owned by Mr. Russell, having already been sold to Mr. Courtney. It cannot have been the intention of the parties to reserve to Mr. Russell a right over the Wiggly Path for the purpose of inspecting property he had already sold.

138. In my judgment the right of way over the Wiggly Path was reserved by Mr. Russell for the benefit of Mr. Hopegood so that he could obtain access to his vegetable garden, and that when the vegetable garden was given up the right of way ceased to exist. In practical terms the line of the path continued to exist from the driveway down as far as Ruckstones for some time: Mrs Berry said she used a path which I think must be identified as the top end of the Wiggly Path when she went to see Mrs Phillips.

139. In these circumstances, I do not need to express a concluded view on the further point taken on behalf of the Beeches that the right of way had ceased to exist, by reason of non-user and the change in the land, however since the point was argued I will express my tentative conclusion.

140. The courts are extremely reluctant to hold that a party has lost a property right by abandonment. I was referred to Benn v Hardinge (1992) 66 P&CR 246 in which non-user for 175 years was not sufficient. In Gotobed v Pridmore (1971) EG 759, as quoted in Benn v Hardinge Buckley LJ said:

"To establish abandonment of an easement the conduct of the dominant owner must, in our judgement have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement… abandonment is not, we think, to be likely in the third owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding they may have no present a use for it."

141. In the present case not only did Mrs Hopegood, and before her husband, have no present use for the right of way, but there was no prospect of their ever having a need for the right of way. Furthermore Mr. Kennerley's predecessors in title had stood by, whilst the garden of Ruckstones was altered in such a way that is the northern part of the path had become obliterated and ceased to exist. This occurred between 1982 and 1984. The Phillips got professionals in to do the bulk of the work, creating a levelled paved area with a small retaining wall together with some landscaping. Mrs Phillips and her son James then did what she described as "tidying up" afterwards. The path and all trace of it was obliterated by these works. In those circumstances, had it been necessary. I would have held that this was one of those rare cases where the easement had been lost by abandonment."

48. It seems to me that the judge was plainly right to think that Mr Kennerley could not rely on the decision in Re Ellenborough Park. In that case the issue was whether a jus spatiandi was capable of existing as an easement under English law. It was not granted as a right of way simpliciter and issues such as whether it accommodated the dominant tenement fell to be considered in a different context. What the decision does demonstrate is that a grant to pass and repass over a specified area may take effect as a valid easement of the jus spatiandi-type regardless of whether it could exist as a right of way. This was how the court construed the grant in Duncan v Louch (1845) 6 QB 904 where, in an action for obstruction, the plaintiff pleaded a right of way between two stated termini whereas the right as granted was one to use a specified area adjacent to the River Thames. The case turned on whether the plaintiff could maintain an action based on a different kind of right which the court held was capable of existing as an easement.
49. In this case we are not concerned with an easement of this kind but with a conventional right of way along the length of the path. The principal grounds of appeal against the judge's finding in paragraph 138 that the right of way ceased to exist when Mr Hopegood gave up his use of the kitchen garden are either that he was wrong to reject the construction of the grant as a form of jus spatiandi or that he was wrong to hold that the right of way in that event ceased to accommodate Old Westwick. The notice of appeal also states that the judge wrongly construed the grant as if it were a personal licence for the benefit of Mr Hopegood and that he placed undue reliance on Mrs Hopegood's statement which contained a number of material inaccuracies. But the first of these latter points is really only a facet of the principal grounds of appeal and the second is easily rejected. The judge took into account the errors in the statement but was entitled, in my view, to rely upon the evidence which it contained about the purpose and use made of the right of way. No evidence was produced by Mr Kennerley to counter what Mrs Hopegood says about these matters. On the basis of a respondents' notice, Mr Morshead QC has questioned in his submissions whether the judge was right to reject Mrs Hopegood's stated recollection that the kitchen garden was on Mr Tucker's land as opposed to part of the garden land retained by Mr Russell to the south of Old Westwick but nothing really turns on this. Even if the kitchen garden was on part of the Ruckstones' plot there must, at the very least, have been the rope-edged path between the end of the wiggly path and the kitchen garden so that even on this basis the wiggly path terminated in a dead end. The issues therefore to be decided are whether the right of way as granted constituted a valid easement and, if so, whether the cesser of use by Mr Hopegood following his abandonment of the kitchen garden was sufficient to terminate the easement at that stage. The question of abandonment only arises if the Beeches are unsuccessful on those issues.
50. As mentioned earlier, the judge was, I think, correct not to treat the right granted as some form of jus spatiandi. It was in terms "a right of way on foot only over and along the pathway coloured pink and hatched black on the said plan annexed hereto the Vendor and his successors in title contributing from time to time towards the cost of the repair and upkeep of the said pathway in conjunction with the Purchaser". It was therefore exercisable over and along a defined path and was not, as the judge pointed out, a right to walk around the garden of Ruckstones whether for leisure or otherwise. The finding that it was granted so as to enable Mr Hopegood to reach the kitchen garden beyond Ruckstones is also destructive of any suggestion that it had any wider purpose.
51. There is a measure of dispute between the parties as to the basis on which the judge reached his decision that the easement was extinguished on the cessation of Mr Hopegood's gardening activities. The grounds of appeal were settled on the footing that the judge had found that the right of way either did not accommodate the dominant tenement or was not capable of forming the subject matter of a grant. These are, of course, the second and fourth of the necessary characteristics of an easement formulated by Dr Cheshire in his book on Modern Real Property and adopted by the Court of Appeal in Re Ellenborough Park. But Mr Morshead contends that the judge decided the case on a somewhat narrower basis: i.e. that the right of way was granted (even if not expressly) for the purpose of enabling Mr Hopegood to reach the kitchen garden and that when this purpose ended the easement was extinguished. In support of this principle, he relies in particular on the decisions of this court in Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163 and Jones v Cleanthi [2006] EWCA Civ 1712.
52. The judge gives no indication in his judgment of the reasons why he considered that the easement was extinguished when the use of the kitchen garden ceased but the only two objections taken to its continuing enforceability seem to have been either that a right of way reserved for the benefit of the owners of Old Westwick lacked the necessary terminus ad quem or that, once the purpose of the grant ceased, so did the right of way. Both arguments can be expressed in terms of the easement not accommodating the dominant tenement. But they raise very different issues in that respect. For the reasons explained earlier, the right of way never led anywhere beyond the end of the wiggly path and had no obvious prospect of doing so. If that was insufficient to constitute a terminus ad quem for the purposes of the grant then the right of way was invalid ab initio. But the second line of argument assumes a valid grant based on Mr Hopegood's use of the kitchen garden (albeit with the licence of Mr Tucker) and bases the subsequent extinguishment of the right of way on its later ceasing to accommodate the dominant tenement when the kitchen garden ceased to be used and the necessary licence was revoked. This raises the question of whether the second of Dr Cheshire's conditions for a valid easement falls to be tested at any time subsequent to the grant.
53. The starting point has to be whether the right of way reserved by the November transfer of the Ruckstones plot created an easement which accommodated the dominant tenement at the date of the grant. If this condition is not satisfied then the issues of subsequent extinguishment (including by abandonment) do not arise. This argument was formulated before the judge in terms of the right of way lacking the requisite terminus ad quem. But in my view this was too narrow an approach.
54. An easement of way is a right to pass and repass between two fixed points. Consistently with this, traditional statements that a right of way must have both a terminus a quo and a terminus ad quem mean no more than that the limits and direction of the right of way should be defined in the grant in order to give it the degree of certainty which the creation of a right over land requires and to identify the scope of the right granted. If the grant does not define the precise line of the right of way then the grantee must take the nearest or most direct route between the two points: see Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 362 at 369-70.
55. The issue in this case is not whether the right of way reserved over the wiggly path had a terminus ad quem. The limits of the grant are sufficiently defined. But the fact that the right of way leads only to the end of the path and no further raises the issue of whether, as granted, it ever accommodated the land retained by Mr Russell.
56. The contents of that requirement were spelt out authoritatively by the Court of Appeal in Re Ellenborough Park. Lord Evershed MR (at p. 170) approved the statement in Cheshire that:

"a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connexion therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties."

57. Enjoyment for these purposes means the normal enjoyment of the property comprised in the dominant tenement and may include a business carried on there: see Copeland v Greenhalf [1952] Ch 488 at p. 497. But it must benefit the dominant tenement in the sense of enhancing the grantee's ownership and occupation of the land rather than conferring some personal benefit on him: see Hill v Tupper (1863) 2 H & C 121.
58. It seems to me that the reservation of a right of way from the retained part of the house and drive at Old Westwick across Ruckstones to the retained garden land south of the land sold to Mr Courtney would undoubtedly have qualified as a valid grant. It would have provided Mr Russell with a right of way between two parcels of land in his ownership which were otherwise separated by the land sold to Mr Tucker and the ability to access the garden land in this way would undoubtedly have secured the better enjoyment of the retained part of Old Westwick by its owner. But the right of way reserved by the November transfer was not intended to and did not do this. It granted a right of way only to the end of the path and conferred no benefit on Mr Russell as the owner of the dominant tenement at all. The judge's finding (which is not under appeal) is that its only purpose was to assist Mr Russell's tenant to get to the kitchen garden. It was contended in the appellant's skeleton argument that it enabled Mr Russell to police the construction of Ruckstones and the compliance by Mr Tucker with the restrictive covenants entered into by him for the protection of Old Westwick. But on the judge's findings that was not the purpose of the reservation nor was the use of the path necessary for that purpose. This is confirmed by the fact that no use was made of the path once Mr Hopegood gave up the kitchen garden and that no use of the path is contemplated even now. The right of way was reserved in favour of Mr Russell solely to confer a benefit on Mr Hopegood which depended for its attainment on the grant of a licence by Mr Tucker. This was granted for a limited purpose and duration and was obviously personal to Mr Hopegood.
59. In these circumstances I consider that the respondents are correct in their submission that there was no valid grant of an easement of way along the wiggly path and the judge was correct to treat the reservation as conferring a personal benefit on Mr Hopegood rather than a right which was capable of permanently enhancing or benefiting the ownership of Old Westwick. Mr Hopegood's use of the kitchen garden was always precarious and Mr Russell (in whose favour the right was granted) never had any entitlement to travel beyond the end of the path. The legal consequence is that the grant of the right of way was contractual only and the right is accordingly not enforceable against Mr Tucker's successors in title.
60. This makes it unnecessary to consider whether the right of way terminated only when Mr Hopegood actively ceased to use the kitchen garden and I intend to resist the temptation to add what will be obiter dicta to the analysis of the issues raised in Huckvale v Aegean Hotels Ltd. It seems to me that the judge's explanation of the limited purpose and nature of the grant is, on a proper analysis, fatal to its validity. As Mr Rainey QC accepted, there was no change of circumstance between the date of the grant and the actual cesser of Mr Hopegood's use of the kitchen garden. For the reasons already explained, the right of way never conferred any benefit on Mr Russell as the owner of Old Westwick and the non-use of the path after 1955 merely seems to confirm this. On this basis the judge's findings mean that Mr Russell never enjoyed a permanent easement of way along the wiggly path and it is therefore unnecessary for the Beeches to rely either on the principle in Huckvale or on their defence of abandonment.

Conclusion

61. I would therefore dismiss this appeal.

Mr Justice Briggs :

62. I agree.

Lady Justice Arden :

63. I also agree.