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England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Byrne & Anor v Archer & Anor [2025] EWHC 1136 (Ch) (09 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/1136.html
Cite as: [2025] EWHC 1136 (Ch)

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Neutral Citation Number: [2025] EWHC 1136 (Ch)

Claim No: PT 2022 BHM 000107

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY

COURTS IN BIRMINGHAM

PROPERTY TRUSTS AND PROBATE LIST (ChD)

Priory Courts

33 Bull Street

Birmingham, B4 6DS

Date: 9 May 2025

BEFORE:

 

HIS HONOUR JUDGE RICHARD WILLIAMS

(Sitting as a Judge of the High Court)

 

BETWEEN:

 

 

(1) MR PAUL BYRNE

(2) MRS JULIE ANN BYRNE

Claimants

- and-

 

(1)  MR WILLIAM GEORGE JAMES ARCHER

(2)  MRS ROSEMARY ANN ARCHER

Defendants

- - - - - - - - - - - - - - - - - - - - -

 

The Claimants represented themselves

David Taylor (instructed by Nigel Davis Solicitors) for the Defendants

   

Site visit: 14 January 2025

Hearing dates: 15, 16, 17, 20, 21 January 2025, and 9 May 2025

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT


 

Introduction

 

  1. These proceedings in essence concern a dispute between neighbours over the ownership of 2 hedges. In summary, the Claimants claim that the hedges are jointly owned, whereas the Defendants counterclaim exclusive ownership. It is not disputed that the hedges belong to the persons in whose ground they are planted, and so I must decide where the disputed legal boundaries lie in relation to the stems of the hedges.  
  2.  

  3. On 30 September 2019, Mr Paul Byrne ("C1") and Mrs Julie Ann Byrne ("C2") (together "the Claimants") purchased a freehold residential property ("Hillsway") in the village of Dalbury Lees, Derbyshire.
  4.  

  5. Mr William George James Archer ("D1") and Mrs Rosemary Ann Archer ("D2") (together "the Defendants") own, and have done so for many years, the freehold residential property ("Brookfields"), which lies immediately to the south of Hillsway. In addition, D1 owns agricultural land, which lies to the west of Hillsway ("the Fields to the West").
  6.  

  7. Therefore, the parties share two common boundaries:
  8.  

    a.       the southern boundary of Hillsway ("the Southern Boundary"); and

     

    b.      the western boundary of Hillsway ("the Western Boundary").

     

  9. The disputed hedges are planted in the vicinity of those common boundaries.
  10.  

    Orientation

  11. For orientation purposes only:
  12.  

    a.       The following plan shows the layout of the parties' land with Hillsway outlined in blue, Brookfields outlined in green, and the Fields to the West outlined in red. The Western Boundary is marked between points A-B, and the Southern Boundary is marked between points B-C.  –

     

    A map of a farm land

Description automatically generated

     

    b.      The following plan identifies other parcels of land that were referred to in the evidence. They are 'Robinson Fields', which lie to the north of Hillsway, and the 'Allotment Gardens', which lie to the south of the rear garden of Brookfields. There are further hedges in the vicinity of the common boundaries between (i) Hillsway and Robinson Fields ("the Northern Hedge"), and (ii) Brookfields and the Allotment Gardens -

     

     

    A map of a farm

Description automatically generated

     

    c.       The following is a photograph (taken from the rear of Hillsway pointing eastwards) of the disputed hedge in the vicinity of the Southern Boundary ("the Southern Hedge") -

     

    A grass field with a house in the background

Description automatically generated

     

    d.      The following is a photograph (taken at the rear of Hillsway pointing southwards) of the disputed hedge in the vicinity of the Western Boundary ("the Western Hedge") -

     

    A grassy area with bushes and trees

Description automatically generated

     

              The claims and counterclaims

              Paper titles

     

  13. The Claimants claim that the original legal boundary lines were:
  14.  

    a.       the Southern Boundary line ran through the centre of the stems of the Southern Hedge, and

     

    b.      the Western Boundary line ran through the centre of the stems of the Western Hedge,

     

    with the result that Hillsway and Brookfields each own half of the Southern Hedge, and Hillsway and the Fields to the West each own half of the Western Hedge (together "the Disputed Hedges").

     

  15. The Defendants claim that the original legal boundary lines were:
  16.  

    a.       the Southern Boundary line ran along the outer edge of a depression ("the Alleged Southern Ditch") located on the far side of the Southern Hedge, and

     

    b.      the Western Boundary line ran along the outer edge of a depression ("the Alleged Western Ditch") located on the far side of the Western Hedge,

     

    with the result that the Disputed Hedges together with the strips of land occupied by the Alleged Southern Ditch and the Alleged Western Ditch (together "the Alleged Ditches") are owned by the Defendants as part of Brookfields and the Fields to the West respectively.

     

    Estoppel by deed

     

  17. The Claimants assert that, if the original boundary lines were originally as contended for by the Defendants, subsequent conveyances had the effect of transferring the boundary lines to the centre-lines of the Disputed Hedges.
  18.  

    Adverse possession

  19. The parties each assert that if they do not enjoy paper title up to the boundary lines for which they contend, they have nevertheless acquired title as the result of the adverse possession by their predecessors in title of land lying up to those boundary lines. Neither side relies upon a period of adverse possession that concluded after 13 October 2003, and so the adverse possession relied upon arises by operation of the Limitation Act 1980 and/or s. 75 Land Registration Act 1925.
  20.  

    Boundary agreements

     

  21. The parties each assert that, if they do not enjoy paper title or they have not acquired title as a result of adverse possession up to the boundary lines for which they contend, they have nevertheless acquired ownership of one or both the Disputed Hedges as a result of binding boundary agreements.
  22.  

  23. In 2005/2006 and in consequence of their planning application for the building of the house at Brookfields, the Defendants erected a fence and wall on the Brookfields' side of the Southern Hedge. The Claimants assert that in erecting the fence and wall the Defendants made a boundary agreement with the Claimants' predecessors in title to Hillsway (Joseph and Eva Morley) that the Southern Boundary line runs to the southern edge of the Southern Hedge such that it is now wholly owned by the Claimants ("the Alleged 2006 Boundary Agreement").
  24.  

  25. Prior to purchasing Hillsway and by way of pre-contract enquiries, the Claimants sought to challenge the information provided to them by the vendors (Rachel Morley and Anne Harvey-Bailey as personal representatives for the estate of their late mother, Eva Morley) regarding ownership of the Southern Hedge, the Western Hedge and the Northern Hedge. The Defendants assert that, in consequence of the Claimants' challenges, they met and agreed with Rachel Morley that the Disputed Hedges belong to the Defendants ("the Alleged 2019 Boundary Agreement").
  26.  

    Trespass

  27. The Claimants assert that D1 trespassed by:
  28.  

    a.       on or around 10 September 2020 and on 30 November 2021, cutting all the way across the top of the Western Hedge;

     

    b.      on 12 December 2021, his son Adam cutting all the way across the top of the Southern Hedge;

     

    c.       on 19 April 2022, causing damage and widening the gap in the Southern Hedge; and

     

    d.      on 20 April 2022, depositing topsoil and planting laurel hedges in the vicinity of the Southern Hedge.

     

    Nuisance

     

  29. The Claimants assert that the Defendants have committed an actionable private nuisance by:
  30.  

    a.       on 9 September 2020, D1 threatened on two occasions to chop down the Southern Hedge; and

     

    b.      holding open a "live neighbour dispute", which the Defendants knew would have to be disclosed to any potential buyer and which could affect the value of Hillsway in the event that the Claimants decided to sell their property.

     

    Deceit

     

  31. The Claimants assert that the Defendants have committed the tort of deceit by knowingly or recklessly making false statements of exclusive ownership of the Disputed Hedges.
  32.  

    Damages

     

  33. The Claimants seek aggravated damages for the alleged trespass, deceit and nuisance committed by the Defendants.
  34.  

    Injunction  

     

  35. The Claimants seek a final injunction to prohibit the Defendants from committing further acts of trespass.
  36.  

    Issues to be determined at trial

     

  37. The case management order dated 25 September 2023 provided (with my emphasis added) that:
  38.  

    "[30] The parties must agree and the Claimants must lodge at court... at least 7 days before the trial .... a trial bundle(s) containing:

     

    -          a succinct case summary;

     

    -          a chronology;

     

    -          a statement of issues to be determined by the Judge

     

    ........."

     

  39. Civil Procedure Rules ("CPR") r.1.3 provides that the parties are required to help the court further the overriding objective of dealing with the case justly and at proportionate cost, which includes dealing with the case in ways which are proportionate to the amount of money involved and the importance of the case.
  40.  

  41. Notwithstanding the mandatory terms in which the case management order was expressed, the parties chose to file separate case summaries and statements of issues together with an unagreed chronology.
  42.  

  43. The Claimants' statement of issues ran to 25 numbered items, and the Defendants' statement of issues ran to 22 numbered items.
  44.  

  45. The trial bundles ran to a total of 1961 pages.
  46.  

  47. The parties' opening skeleton arguments ran to a combined total of 75 pages (48 pages for the Claimants/27 pages for the Defendants), and notwithstanding that the Chancery Guide states that such skeleton arguments should not normally need to exceed 25 pages each.
  48.  

  49. The legal authorities bundles ran to a total of 1919 pages, and notwithstanding that the Chancery Guide states that excessive citation of authority should be avoided.
  50.  

  51. I am unable in the course of this judgment to refer to all the evidence and argument relied upon by the parties. In particular, if I do not make reference to a specific matter raised by or on behalf of the parties' then I have not considered it relevant to the cross claims that I must ultimately determine.
  52.  

    The witnesses

     

    For the Claimants

     

  53.  I read and heard evidence from:
  54.  

    a.       C1;

     

    b.      C2. Whilst C2 was supportive of her husband, she readily conceded in her oral evidence that she had left much of the detail regarding this dispute to C1, since she was working full time whilst her husband had retired; and

     

    c.       Stephen Willows, who was contracted to "cut the hedges of Hillsway... twice a year for about 10 years prior to 2019".

     

              For the Defendants

     

  55. I read and heard evidence from:
  56.  

    a.       D1;

     

    b.      D2;

     

    c.       Adam Archer, the Defendants' youngest son, who on occasion helped his parents with hedge cutting at Brookfield and at the Fields to the West;

     

    d.      Rachel Morley, who moved to live at Hillsway with her parents in 2001;

     

    e.       Christopher Robinson, whose father was a life long farmer. The farm included Robinson Fields. The father was in a nursing home for several years before he died on 13 July 2021. During that time, Mr Robinson managed Robinson Fields under a power of attorney granted for his late father's property and financial affairs;

     

    f.        Colin Timmins, whose role as Parish Councillor included managing the Allotment Gardens;

     

    g.      Mark Ferris, who has been cutting hedges locally with a tractor for about 30 years. He was contracted by D1 to cut all the hedges on the farm on one occasion between 2000 and 2004; and

     

    h.      Sam Archer, who is no relation of the Defendants, but who was contracted to cut the hedges in Robinson Fields and the Allotment Gardens.          

     

    Single Joint Expert ("SJE")

     

  57. I read and heard evidence from the SJE, Mr Stephen Priestley, who has "extensive experience in the compilation of heritage impact assessments, historic building surveys, archaeological desk-based assessments, battlefield surveys... and research projects on Grade 1 Listed buildings for Historic England... and the National Trust." The SJE was assisted by his colleague, Ellie Bishop. The report of the SJE was drawn "principally on a visual non-invasive assessment of the boundaries and detailed study of cartographic and documentary sources relating to them." The report concluded that "no definitive conclusions can be reached regarding the historic form and construction of the Western and Southern boundaries."
  58.  

    Findings of disputed facts

    Burden and Standard of proof

  59. The legal burden rests upon the party making a claim to prove the facts essential to that claim.
  60.  

  61. This is not a Criminal trial where the standard of proof is beyond reasonable doubt so that I must be sure before making a finding of fact. Rather, I must apply the lower civil standard of proof being the balance of probabilities. In other words, in making a finding of fact, I must be satisfied that more likely than not it is true. In Re B [2008] UKHL 35, Baroness Hale said
  62.  

    "[32.] In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof."

     

    Interference with memory

     

  63. The witnesses of fact were seeking to recall events and conversations that took place several years ago, which necessarily gives rise to particular problems. Apart from the fact that, quite understandably, it is often difficult for witnesses to remember accurately what happened or what was said, witnesses can easily persuade themselves that the accounts they now give are the correct ones. As a result, witnesses may be completely honest but nevertheless quite wrong in their recollections.   
  64.  

  65. In Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), Leggatt J, as he then was, made the following observations about the interference with human memory introduced by the court process itself:
  66.  

    "[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

     

    [20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."

     

  67. The principal witnesses of fact in this case were C1, the Defendants and Ms Morley, all of whom I found to be honest witnesses.  
  68.  

  69. However, none of the principal witnesses can be considered to be objective and detached observers being either the parties themselves or Ms Morley, who had ties of loyalty to the Defendants. They were subject to significant motivating forces and powerful biases, and so I have treated all their evidence with a degree of caution.
  70.  

  71. In particular, C1 appears to have lost all sense of objectivity and has become utterly consumed by this dispute. By way of illustration, C1 sent 84 emails or letters to the SJE over a 5 month period seeking to challenge the contents of the SJE's report and which resulted in the SJE taking the unusual step of seeking his own legal advice and thereafter threatening to make an application to the court for directions.
  72.  

    Importance of corroborating contemporaneous documents, if available

  73. In The Ocean Frost [1985] 1 Lloyd's Rep 1, Robert Goff LJ observed (and which observation was described as "salutary" by Lord Mance in Central bank of Ecuador v Conticorp SA [215] UKPC 11 at [164]):
  74.  

    "[57] .............. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."

             

  75. Similarly, in Gestmin SGPS SA v Credit Suisse (UK) Limited, Leggatt J, having commented upon the unreliability of human memory, concluded that:
  76.  

    "[22.] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."

     

              Southern Boundary line

     

              Paper title

              The starting point

     

  77. The Claimants argue that:
  78.  

    a.       The titles to Hillsway and Brookfields are registered. The process of registration would have necessitated the analysis of pre-registration title deeds, documents and the provision of assurances by legal representatives.

     

    b.      Therefore, given the formalities of registration, the starting point for the purpose of identifying the Southern Boundary line is an analysis of the instruments relied upon at the time of first registration.

     

    c.       In particular, those instruments included -

     

                                                                         i.       a conveyance of Brookfields by the Trustees for Sale under the Will of the late John Brassington to John Henry Powell dated 29 September 1896 ("the Brookfields' 1896 Deed"); and

     

                                                                       ii.      a conveyance of Hillsway by J B Clarke and others to Robert William Greensmith dated 6 April 1907 ("the Hillsway's 1907 Deed").

     

    d.      The parcel clauses of the Brookfields' 1896 Deed and the Hillsway's 1907 Deed define the land being conveyed by reference to Ordnance Survey maps ("the Relevant OS Maps").

     

    e.       The Relevant OS Maps, as filed plans, define the exact boundary lines in accordance with the core principles 1-3 cited in Acco Properties Limited v Severn and another [2011] EWHC 1362 (Ch) at para [11.]:

     

    "1.     Where, as in this case, the property in question is registered land, the filed plans show only general boundaries and not the exact line of the boundaries unless the property is said to be "more particularly described in the plan."

     

    2.       Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary. This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.

     

    3.       In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.

     

    ........"

     

    f.        The lines shown on an Ordnance Survey map mark the centre of any hedge, fence or wall.

     

    g.      The process of registration therefore crystallised the Southern Boundary line as the centre of the Southern Hedge.   

     

  79. At the time the titles to Hillsway and Brookfields were registered, the Land Registration Act 1925 ("the 1925 Act") applied. It provided (with my emphasis added):
  80.  

    "PART VI General Provisions as to Registration and the Effect therof

     

    ........

     

    [76.]  Description of registered land.

     

    Registered land may be described –

     

    (a)   by means of a verbal description and a filed plan or general map, based on the ordnance map; or

     

    (b)   by reference to a deed or other document, a copy or extract whereof is filed at the registry, containing a sufficient description, and a plan or map thereof; or

     

    (c)   otherwise as the applicant for registration may desire, and the registrar, or, if the applicant prefers, the court, may approve,

     

    regard being had to ready identification of parcels, correct descriptions of boundaries, and, so far as may be, uniformity of practice; but the boundaries of all freehold land and all requisite details in relation to the same, shall whenever practicable, be entered on the register or filed plan, or general map, and the filed plan, if any, or general map shall be used for assisting the identification of the land."

     

  81. In addition, the Land Registration Rules 1925 ("the 1925 Rules") provided:
  82.  

    "[276.] Fixed boundaries.

     

    If it is desired to indicate on the filed plan or General Map, or otherwise to define in the register, the precise position of the boundaries of the land or any parts thereof, notice shall be given to the owners and occupiers of the adjoining lands, in each instance, of the intention to ascertain and fix the boundary, with such plan, or tracing, or extract from the proposed verbal description of the land as may be necessary, to show clearly the fixed boundary proposed to be registered; and any question of doubt or dispute arising therefrom shall be dealt with as provided by these rules.

     

    .......

     

    [278.] General boundaries.

     

    (1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.

     

    (2) In such cases the exact line of the boundary will be left undetermined—as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.

     

    (3) When a general boundary only is desired to be entered in the register, notice to the owners of the adjoining lands need not be given.

     

    (4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, fence, road, stream, or other boundary is expressly included in or excluded from the title or that it forms the whole of the land comprised in the title."

     

  83. Therefore, I do not accept the Claimants' arguments that the starting point is an analysis of the filed plans. S.76 of the 1925 Act expressly provided that the boundary as shown on a filed plan of a title to registered property did not fix the exact line of the boundary. R.276 of the 1925 Rules enabled a registered proprietor to apply to fix the boundary, but in the absence of such an application r.278 headed 'General Boundaries' governed the boundaries of the relevant land. The rationale for this was explained as follows by Lord Hope in Alan Wibberley Building Ltd v Insley [1999] 2 All ER (at page 904):
  84.  

    "Any boundary dispute which leads to litigation as protracted as the dispute has been in this case is regrettable. But no workable system of conveyancing can be expected to eliminate entirely the opportunity for disputes to arise about boundaries. In most cases neighbours are content to accept that absolute precision is unattainable. They recognise that a certain amount of latitude must be given to whatever method has been used to fix the boundaries of their land. That also is the view which has been taken by the legislature. The original system of precise guaranteed boundaries under the Land Registry Act 1862 gave rise to considerable difficulty. It had to be abandoned in view of the expense which was involved in a survey of the precise boundaries and the many disputes which arose between neighbours who had been content until then to accept a certain amount of vagueness as to the precise line of their common boundary. The result, as my noble and learned friend Lord Hoffmann has explained, was the introduction of the general boundaries rule now contained in r 278 of the Land Registration Rules 1925, SR & O 1925/1093."

     

    In Wibberley v Insley the defendant successfully argued before the House of Lords that the application of the hedge and ditch presumption established his ownership of a hedge as well as the far side of the hedge, notwithstanding that ownership was inconsistent with the parcels clause of a 1975 conveyance, which stated that the land was "more particularly described' by reference to the Ordnance Survey field numbers. The title to the fields could be traced back to the seventeenth century. The House of Lords held that the first instance judge (upheld by the Court of Appeal) had wrongly decided that the hedge and ditch presumption had been displaced by the reference to the Ordnance Survey map such that the boundary lay along the middle of the hedge.

     

  85. I agree with Mr Taylor, on behalf of the Defendants, that the process of registration of Hillsway and Brookfields was concerned with broad questions of the titles to those properties, and not with the location of boundaries. A clear exposition of the law is given by Colin Sara on Boundaries & Easements (7th Ed.) at para 1-001 as follows:
  86.  

    "Whatever the date of registration, the primary source of the boundary line between any two properties is the conveyance whereby their ownership was divided, though subsequent conveyances may still be relevant if no original conveyance dividing the properties can be found. While many building plots have been laid out in recent years, there are also many boundaries which go back hundreds if not thousands of years. Nevertheless the first step when presented with a boundary dispute is to try to identify and inspect this first conveyance or transfer. This may seem obvious, but it is by no means universally practised. Many is the boundary dispute where the parties seem to think it enough to look at their own Land Certificate or conveyance without looking back further.

     

    Registration of title is not intended to change the boundary with adjoining properties. A boundary dispute may arise on first registration, or on a transfer or simply where an owner or occupier has decided to annex land in the belief that he is entitled to do so or even in the hope that he will get away with it. Even if the Land Certificate or Transfer appears to be plain, it may conflict with the neighbouring title. Therefore it may be necessary to go behind the registration to discover the true and original boundary..............[T]he basic principles are the same whether the land is registered or unregistered."

     

  87. Therefore, the starting point for determining the boundary between two parcels of land is the conveyance, if identifiable, by which the separate parcels were created. The Southern Boundary was created by an Inclosure Award dated 26 January 1854 ("the Inclosure Award") and which is therefore the starting point for determining the Southern Boundary line.
  88.  

    Interpreting the Inclosure Award


  89.  In Pennock v Hodgson [2010] EWCA Civ 873, Mummery LJ summarised the principles of how to construe a conveyance as follows:
  90.  

    [9.] ......the following points can be distilled as pronouncements at the highest judicial level:-

     

    (1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.

     

    (2) An attached plan stated to be "for the purposes of identification" does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

     

    (3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

     

    (4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.

     

    [10.] The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title to a small strip of land:-

     

    "We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties."

     

    [11.] Lord Parker said much the same thing in different words (see p913.) He also said:-

     

    "There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence..." (p. 909) "It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence..." (p. 912)

     

    [12.] Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey [2003] EWCA Civ 1883;[2004] 2P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. &C.R 909; Wigginton & Milner v. Winster Engineering Ltd [1978] 1WLR 1462; Scarfe v. Adams [1981] 1 All ER 843; Woolls v. Powling [1999] All ER (D) 125; Chadwick v. Abbotswood Properties [2004] All ER (D) 213 and Ali v. Lane [2006] EWCA Civ 1532 were also cited on the construction points.

     

    [13.] Before the judge and in this court it was agreed that the parties' subjective beliefs about the position of the disputed boundary in this case and about who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance: Investors Compensation Scheme Ltd v. West Bromwich BS [1998] 1 WLR 896 at 913. The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean.

     

  91. "The interaction between the (legal) construction of the conveyance in question, and the (factual) application of the conveyance so construed to the facts on the ground produces a mixed question of law and fact.........In so far as the question is one of law, no burden of proof lies on anyone. If, however, surrounding circumstances are relied on, they must be proved." - The Interpretation of Contracts (2023, 8th Ed) at paras 11.02 and 11.04.
  92.  

  93. So far as textual analysis is concerned, the Inclosure Award provided as follows:
  94.  

     

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    ..........

     

     

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    ..........."

     

     

  95. Therefore, the Inclosure Award awarded Allotment numbered 11 on the related map (Hillsway) to Dorothy Richardson, and Allotment numbered 12 on the related map (Brookfields and Talland together) to William Peach. The relevant extract from the related map ("the Inclosure Award Map")  was:
  96.  

     

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  97. The SJE was of the opinion that, notwithstanding the significant reliability of the Inclosure Award and the fair reliability of the Inclosure Award Map, the precise Southern Boundary line cannot be established solely by reference to those documents. The parties do not seriously suggest otherwise, and so in order to determine the boundary line it is necessary to consider extrinsic evidence and any inferences to be drawn from that evidence. Evidence as to subjective belief about the position of a disputed boundary is inadmissible in interpreting a conveyance. However, another source of extrinsic evidence which may assist in interpretation is evidence of subsequent conduct, if it is probative in determining what the parties to the conveyance intended - per Carnwath L.J in Ali v Lane [2007] 1 P&CR 26 at paras 36 - 38.
  98.  

  99. The Inclosure Award further provided that:
  100.  

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  101. Therefore, the allottee of Allotment 12 (Brookfields) was obliged to erect and maintain a fence along the Southern Boundary.
  102.  

  103. It is argued on behalf of the Defendants that:
  104.  

    a.       The SJE is of the opinion that the reference in the Inclosure Award to erecting a fence is to be interpreted as reference to planting a quickset hedgerow.

     

    b.      In Vowles v Miller (1810) 3 Taunt. 137, 138 Lawrence J explained -

     

    "The rule about ditching is this. No man, making a ditch, can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it..."

     

    c.       There is a ditch which runs along the northern side of the Southern Hedge. It was the evidence of -

     

                                                                         i.       D1 that the ditch was present when he and his father, in 1984, first bought the land upon which Brookfields was subsequently built. The ditch varies in depth along its length, although it was much deeper and far more obvious in 1984 than it is now. The ditch has slowly filled over time, although it remains very deep to the west of Hillsway where there has always been a 'little bridge' made of wooden planks over that part of the ditch. It was always D1's understanding that the whole of the width of the ditch and the hedge belonged to Brookfields applying the 'farming rule' that the hedge and ditch go together so that if the ditch is on the other side of the hedge then it belongs to you; and

     

                                                                       ii.      Ms Morley that, in 2001, she moved with her parents to live at Hillsway. On the Hillsway side of the hedge is a continuous ditch, which varied in depth along its length, but it was always fairly obvious and clearly recognisable as a ditch. For as long as she can remember, Ms Morley has known and used the 'countryside rule' that, where there is a hedge and ditch, the boundary is at the farthest edge of the ditch. For that reason, Ms Morley always thought that the whole width of the ditch and the hedge belonged to the Defendants.    

     

    d.      It is likely that this ditch was created in about 1854 as part of the required hedge planting under the Inclosure Award such that the ditch was dug upon land which formed part of Brookfields in accordance with Lawrence J's description of how ditching was traditionally carried out. This does not involve a strict application of the hedge and ditch presumption because the boundary was created by the Inclosure Award, and so had come into existence before the creation of the hedge and ditch. Rather it involves an assumption that the hedge and ditch would have been constructed in the way in which it is known that hedges and ditches were traditionally constructed.    

     

  105.  It is argued by the Claimants that:
  106.  

    a.       There is evidence that the Alleged Southern Ditch is a drainage channel, which was constructed to serve the amenity of Hillsway for surface water drainage after 1959 when Hillsway was constructed.

     

    b.      On 11 April 1999, the then owner of Hillsway wrote to the planning department objecting to the erection of Brookfields because -

     

    "[2)] Surface water from my land drains into a ditch along the side of the proposed plot and could be adversely affected by the proposed building."

     

    c.       On 15 April 2005, the then owner of Hillsway wrote to the planning department again objecting to the erection of Hillsway because -

     

    "[2.] Surface water from my land drains into a ditch along the side of the proposed plot and could be adversely affected by the proposed building."

     

  107. At the site visit, I observed a slight depression running along the northern side of the Southern Hedge but which became more pronounced at the western extent. However, for the following reasons, I am unable to conclude even on the balance of probabilities that this depression is in fact a ditch that was dug in about 1854 by the allottee of and upon Allotment 12 as part of the process of planting a hedge:
  108.  

    a.       Whilst I found D1 and Ms Morley to be honest witnesses, as already noted, honest witnesses can be genuinely mistaken as to their recollections. The reliability of the evidence of D1 and Ms Morley regarding the historic  presence of a deeper and more pronounced ditch was undermined by an internal inconsistency. It was their written and oral evidence that they had a longstanding shared belief that the Southern Hedge, and the ditch running alongside it, belonged to Brookfields by applying the farming/countryside rule. However, at least initially, they made no mention of the Alleged Southern Ditch during the pre-contract enquiries that took place prior to the Claimants purchasing Hillsway and when specifically seeking to clarify ownership of the boundary hedges. I will refer to those exchanges in more detail later in the judgment when considering the Alleged 2019 Boundary Agreement.

     

    b.      In any event, D1 (with his late father) purchased Brookfields in 1984, and Ms Morley moved to live at Hillsway in 2001. Neither D1 nor Ms Morley knew, or realistically could have known, whether the Alleged Southern Ditch was created some 150 years before they first came to the land.  

     

    c.       The SJE in his written evidence stated that:

     

    "No definitive conclusions can be drawn on the basis of these observations regarding the historic presence of a ditch along the southern boundary, though it is noted the depression may be indicative of an infilled feature or may be the result of maintenance to the hedgerow or other works associated with the development of Hillsway or Brookfields."

     

    d.      Indeed it was implicitly accepted on behalf of the Defendants that it was not possible to date the depression merely from a visual inspection, since the Defendants had proposed that the SJE undertake archaeological investigations by way of core sampling and/or trial trenching. However, the Claimants opposed any such destructive testing, which was not therefore undertaken.

     

    e.       There was some criticism by the parties of the SJE in advance of the trial. However, having heard the SJE give oral evidence, I found him to be a knowledgeable, careful and impressive witness.

     

    f.        Notwithstanding Lawrence J's description of how ditching was traditionally carried out, the SJE said in his oral evidence that there was no single typical method of hedge planting with significant variations between and within regions. Other methods did not involve digging a ditch, and it was impossible to know what particular method was used to plant the Southern Hedge.

     

  109. However, I do find, on balance and for the following primary reasons, that the Southern Hedge was planted by the allottee of Allotment 12 (Brookfields) in about 1854:
  110.  

    a.       Under the Inclosure Award, the allottee of Allotment 12 had been obliged within 12 months of the award to inclose the Southern Boundary. Whilst the  obligation was to erect "good and sufficient fences", the SJE in his written evidence stated that "by 'fences' it is meant that quickset hedgerows should be planted (Kain et al, 2004)...... As the award sets out, the boundary created must have included a hedgerow [although] it cannot be positively concluded whether a ditch was created in association with the hedgerow's construction."

     

    b.      The court order dated 25 September 2023 records by way of a recital (with my emphasis added):

     

    "AND UPON the Claimants having informed the court that they accept that the hedges which exist in the vicinity of both the eastern and western boundaries of their property are ancient hedges which, in the case of the western hedge was in existence prior to 1839, and in respect of the southern hedge came into existence in or about 1854."

     

  111. It is argued on behalf of the Defendants that:
  112.  

    "The allottee [of Allotment 12] was not entitled to plant the hedge upon [Allotment 11], for this would have amounted to a trespass upon land which had been allotted in favour of Dorothy Richardson. The allottee [of Allotment 12] therefore had to plant the hedge upon [their] own land."

     

  113. I find that reasoning compelling. Further, the Inclosure Award expressly obliged the owners to erect fences "on the sides ... on which sides respectively a star is marked or drawn thus * on the said Map." The Inclosure Award Map therefore marks the Southern Boundary fence to be erected on the Brookfields' side.
  114.  

  115. I conclude that more likely than not the Southern Hedge was planted at the extremity of Brookfields such that the original line of the Southern Boundary ran along the northern side of the Southern Hedge such that the hedge was in the sole ownership of Brookfields.
  116.  

    Has the original boundary line been altered by the provisions of subsequent conveyances?

     

  117. It is argued by the Claimants that:
  118.  

    a.       the Brookfields' 1896 Deed, and the subsequent conveyances of Brookfields to Alice Selfe dated 6 March 1906 ("the Brookfields' 1906 Deed") and to Curtis Knifton dated 19 January 1911 ("the Brookfields' 1911 Deed") all contained an identical parcels clause and which defined the land being conveyed by reference to the 1881 Ordnance Survey map.

     

    b.      Those descriptions are decisive, and so extrinsic evidence is not admissible to contradict them.

     

    c.       The boundary line shown on the 1881 Ordnance Survey map marked the centre of the Southern Hedge.

     

    d.      Relying upon Fisher v Winch [1939] 1 KB 666, the legal effect of the Brookfields' 1896 Deed, the Brookfields' 1906 Deed and the Brookfields' 1911 Deed (together "the Brookfields' Conveyances") was that the land conveyed did not extend beyond the centre line of the Southern Hedge.

     

  119.  In Fisher, the Court of Appeal held that the first instance judge had been wrong to determine the disputed boundary by reference solely to the hedge and ditch presumption and without first considering the true construction of the conveyance. Sir Wilfred Greene M.R. said:
  120.  

    "If an examination of those conveyances coupled with any evidence that is admissible for the purpose of construing them shows what the boundary is, there is no room at all for the operation of that presumption.....

     

    ... when the conveyance is looked at, the boundaries on which are traced by reference to the ordnance survey, and the acreage of which is fixed by reference to the ordnance survey, it is established beyond possibility of question what the boundary is...."

     

  121. The identical parcel clauses of the Brookfields' Conveyances were as follows:
  122.  

    "All that close piece or parcel of land situated at Dalbury Lees in the County of Derby and containing by estimation three roods and 27 perches or thereabouts and in the Ordnance Survey No.20 and containing by admeasurement three roods and 12 perches now in the occupation of John Harris which said piece of land was formerly in two parts containing by estimation 18 perches and three roods and 9 perches and by an Award bearing date 26th January 1854 under the hand of Thomas Miles the Valuer appointed under certain Acts of Parliament passed for inclosing Dalbury Lees Green and other waste lands in the Parish of Dalbury aforesaid was duly set out and allotted to one William Peach..."

     

  123. In my judgment, and unlike the conveyance considered in Fisher, the description in the parcel clauses of the Brookfields' Conveyances are on their face uncertain, unclear and ambiguous since they contain mixed descriptions by reference to two different sized areas of land such that the Brookfields' Conveyances from a purely textual analysis cannot properly be interpreted as conclusively defining the land being conveyed as meaning to the centre line of the Southern Hedge.
  124.  

  125. In Chadwick v Abbotswood Properties Ltd [2004] EWCH 1058, Lewison J (as he then was) said:
  126.  

    "[43.] The principles applicable to the interpretation of a transfer of real property are not open to serious doubt. A transfer, like any other contractual document, must be interpreted in the light of the background facts reasonably available to the parties...........

     

    [44.] The question is one to be answered objectively: what would the reasonable layman think he was buying?...."

     

  127. If the Claimants' proposed interpretation of the Brookfields' Conveyances was correct then this would have resulted in the retention of a narrow and worthless strip of land running from the centre of the Southern Hedge to its outer northern edge. In the absence of any good reason why that redundant strip should have been retained, it is most unlikely that it was intended that the Southern Boundary line be altered by the Brookfields' Conveyances as claimed by the Claimants. The improbability of such an interpretation has been emphasised by the higher courts:
  128.  

    a.       In Wibberley v Insley, Lord Hoffman said -      

     

    "It is said, however, that upon its true construction, the parcels of the 1975 conveyance gave Mrs. Burton the land only up to the midline of the hedge. I very much doubt whether this is correct. The language is confusing. The land is said to be 'more particularly' delineated on the plan but, almost in the same breath, the plan is said to be 'for the purposes of identification only'. It goes on to say that the land is 'more particularly described' by reference to the Ordnance Survey field numbers. I would regard this language as in itself fairly inconclusive as to whether the parties intended the boundary to be in the precise place which the Ordnance Survey map represented, namely in the middle of the hedge. When one looks at the background, this construction becomes very unlikely. If one examined the title of the vendor Mr. Beard, as the parties must have done, it would show that by virtue of the hedge and ditch presumption he owned the land up to the far side of the ditch. If, therefore, the 1975 conveyance drew the boundary along the middle line of the hedge, Mr. Beard would have been retaining a useless strip between that line and the far side of the ditch. This was most unlikely to have been the intention."

     

    b.      In Parmar v Upton [2015] 2 P&CR 18, Briggs LJ said -

     

    "[13.] ......if the conveyance appears at first sight to stop short of the pre-existing boundary then a common sense construction of it must ask the question whether the parties really intended to reserve to the seller an apparently useless strip along the edge of the land being transferred.

     

    .......

             

    [15.] ..... Landowners do not, in general, reserve narrow and inaccessible strips of land along the edge of property conveyed which abuts an established boundary with land in separate ownership, unless for some very good reason, such as the preservation of a ransom strip, designed to enable the seller to share in any subsequent development value which necessitates an access road or other services being constructed across the strip."

     

  129. In my judgment, the proper interpretation of the Brookfields' Conveyances is that it was intended that they convey the land up to existing Southern Boundary line, which had been established under the Inclosure Award and which I have found extended beyond the centre line of the Southern Hedge to its northern edge. The reasonable layman would have thought that he was buying all of the land of Brookfields that was owned by the seller.
  130.  

  131. Even if I am wrong about the language used in the parcel clauses of the Brookfields' Conveyances being inconclusive, that would not have changed my ultimate decision, since the modern approach to interpretation does not focus solely upon the words used, which must still be read in context. This modern approach has been explained in detail by the Supreme Court in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, Arnold v Britton and others [2015] UKSC 36, and Wood v Capita Insurance Services Ltd [2017] UKSC 24. In ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645, Carr LJ (as she then was) referred to those recent authorities, and helpfully summarised at [18.] the relevant general principles as follows:
  132.  

    "i) When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions;

     

    ii) The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision;

     

    iii) When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning;

     

    iv) Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made;

     

    v) While commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party;

     

    vi) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties."

     

  133. Therefore, the modern approach to interpretation means that "in a very unusual case" the court can and should adopt a contextual interpretation of a conveyance that accords with the reasonable man's view, even if that requires a departure from the literal meaning of the language used in the conveyance. For the reasons already given, the Claimants' proposed literal interpretation would produce an absurd result that defies all commercial common sense, and which the parties to the Brookfields' Conveyances could not objectively have intended.
  134.  

  135. Again, even if I am wrong about all that and the Brookfields' Conveyances did indeed convey the land only to the centre line of the Southern Hedge as the Claimants contend, that would not mean that the Claimants could establish paper title to the resulting residual strip of land, since that strip of land could not have been included in any of the conveyances of Hillsway. In Parmar , Briggs LJ explained:
  136.  

    "[13.] ..... if the conveyance of land on one side purports to convey land beyond the pre-existing boundary, then it is to that extent a brutum fulmen. The seller cannot convey that to which he has no title."

     

    Therefore, any transferor under a Hillsway conveyance would not have had title to the residual strip of land in any event such that it could be passed to any transferee.

     

  137. In my judgment, the Sothern Boundary line was not altered by the provisions of any subsequent conveyances.
  138.  

    Adverse possession

     

  139. The parties are in agreement that in order to establish adverse possession the following must be proved:
  140.  

    a.       Dispossession or discontinuance of possession of the paper owner;

     

    b.      Actual possession by the third party; and

     

    c.       The requisite intention to possess the disputed land.

     

  141. The Claimants contend in particular that they and their predecessors in title have acquired title to half the Southern Hedge by adverse possession, which can be inferred from the maintenance obligations referred to in certain documents. Those documents are:
  142.  

    a.       A tenancy agreement dated 10 April 1876 whereby Hillsway (together with other land comprising a total of some 138 acres) was let to Thomas and Charlotte Osborne. The tenancy agreement obliged the tenant to keep in good repair the hedges, fences, gates, stiles, ditches and drains.

     

    b.      The 1910 Land Valuation Survey, which records those maintenance obligations.

     

  143. However, the maintenance of an existing boundary feature such as a hedge is not an act which, by itself, indicates the assertion of exclusive control over land. The courts have generally attached little weight to the maintenance or repair of boundary features - Adverse Possession (Second Edition) at para 13-18. By way of illustration, in SS Global Ltd v Sava [2007] EWHC 2087 Peter Leaver QC, sitting as a Deputy High Court Judge, dismissed a claim for adverse possession and in doing so said:
  144.  

    "[66.] ... the mere maintenance of existing boundary features, such as a fence or a ditch or a hedge, is not an act which unequivocally asserts exclusive control over land. That is important in a case, such as the present, where the ditches and hedges that bordered the fields on the disputed land were all features that were present when [the claimant] moved onto the disputed land."

     

    This decision was upheld by the Court of Appeal, [2008] EWCA Civ 1308.  

     

  145. Even if, which I doubt, the Claimants were able to establish that (i) the repairing obligation under the tenancy agreement extended to the Southern Boundary features, and (ii) works of repair were actually carried out to the Southern Boundary features pursuant to any such obligations, that would in my judgment be insufficient to establish the required exclusive control to found a successful claim for adverse possession. Accordingly, the Claimants' claim for adverse possession in connection with the Southern Hedge is dismissed.
  146.  

    Original Western Boundary line


    Topographical features


  147. It has not been possible to identify a conveyance which resulted in the creation of the Western Boundary. Therefore, "[12.] [[i]n these circumstances, it is necessary to have regard to such evidence as exists of any topographical features marking the boundary between the properties, which it is inferred existed at the time of the conveyance when the land was divided into the two parcels" - Zacaroli J (as he then was) in Charlton & Another v Forrest & Others [2024] EWHC 1014 (Ch).
  148.  

  149. There are certain presumptions which assist the inferences which may be drawn from topographical features and which the Defendants seek to rely upon in the present case:
  150.  

    a.       In  Wibberley v Insley, Lord Hoffman described the hedge and ditch presumption as follows:

     

    ".... Perhaps the best known is the one which is drawn from the existence along the boundary of a hedge and a ditch. In such a case, it is presumed that the boundary lies along the edge of the ditch on the far side from the hedge. The basis of this presumption was explained by Lawrence J. in Vowles v. Miller (1810) 3 Taunt. 137, 138:

     

    "The rule about ditching is this: No man, making a ditch, can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it . . . ."

     

    It should be noticed that this rule involves two successive presumptions. First, it is presumed that the ditch was dug after the boundary was drawn. Secondly, it is then presumed that the ditch was dug and the hedge grown in the manner described by Lawrence J. If the first presumption is displaced by evidence which shows that the ditch was in existence before the boundary was drawn, for example, as an internal drainage ditch which was later used as a boundary when part of the land was sold, then there is obviously no room for the reasoning of Lawrence J. to operate."

     

    b.      In relation to natural watercourses, there is a presumption that the title of riparian owners extends to the centre line of the water - ad medium filum aquae.

     

    Such presumptions may be rebutted by evidence of surrounding circumstances.

             

              Hedge and ditch presumption

     

  151. The 1839 Tithe Map of the Parish of Dalbury ("the Tithe Map") is:
  152.  

    A close-up of a map

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  153. The whole of the eastern boundary of the Fields to the West (which included the Western Boundary) is represented on the Tithe Map by a single solid line. It is not disputed that the Western Hedge likely existed at the time of the Tithe Map.
  154.  

  155. However, the main point of dispute between the parties was whether or not there is a ditch running along the eastern side of the Western Hedge.
  156.  

  157. The Claimants sought to argue that the single solid line on the Tithe Map represented the existing hedge feature and not any alleged ditch. The SJE was of the opinion that, whilst the single solid line on the Tithe Map represented the boundary, in the absence of any key on the Tithe Map it was not possible to say whether the line denoted a hedge or a ditch.
  158.  

  159. From the site inspection, it was evident that there is a depression running along the eastern side of the Western Hedge, which is more pronounced than the depression running alongside the Southern Hedge, and has likely existed for a great many years. I am reinforced in that view by the fact that there is also a pronounced  depression along the western boundary to the Parish Allotments, consistent with the depression historically having run along the whole of the western boundary of Lees Green Common. C1 produced late in the trial a document headed "General Signs to be used in the Plans under the Act for the Commutation of Tithes in England and Wales." That document, which was not put to the SJE, does record that a single solid line symbolises a hedge. However, it is striking that the document also records that feather shading symbolises an embankment. That same shading appears on the Tithe Map along the whole of the western boundary of Lees Green Common, which is entirely consistent with a change in gradient and the pronounced depression then being present.
  160.  

  161. However, it is also striking in my judgment that the depression does not follow a straight line, which would likely be the case if it was a man-made channel, but rather follows the meandering boundary line as shown on the Tithe Map. Therefore, it seems to me highly improbable that the depression is a ditch that was dug out. It is more likely that the depression is a natural feature. I find that the hedge and ditch presumption does not arise.
  162.  

    ad medium filum aquae presumption

     

  163. In the Executive Summary of his report, the SJE stated:
  164.  

    "The Western boundary to Hillsway is defined by a continuous ditch of variable depth (partially waterfilled in its southern half while the northern half is largely obscured by dense undergrowth and partially infilled at its northern extent) and a treelined hedge bank - its course runs roughly north-south and meanders slightly along its length.  

     

    Cartographic evidence shows that it defined the western edge of Lees Green Common at least since the early 19th century (and probably earlier); its form and alignment suggest that it may represent a natural watercourse which was adapted to function as a drainage feature and the western boundary of the common prior to its inclosure in 1854, although the origins of this feature could not be positively confirmed based on the available cartographic, documentary and photographic records."

     

  165. Later in his report, the SJE stated:
  166.  

    "The 1839 Tithe Map of the Parish of Dalbury (otherwise Dalbury Lees) (fig. 2) shows a sinuous field boundary running continuously north to south along the western extent of Lees Green Common. This continuous boundary stretches from Long Lane in the north, dividing Lees Green Common (Plot 8) from the enclosed fields to its west. The common is recorded to be in the ownership of unspecified freeholders. Most relevant amongst the enclosed fields to the west are 'Big Cote Close' (Plot 7) and 'Far Plough Close' (Plot 90), both of which were in the ownership of William Peach and abut the later enclosed areas of the common now known as Hillsway and Brookfields. 

     

    Due to the fair reliability of this cartographic source, it can reasonably be concluded the western boundary to Hillsway existed at this date, being part of the meandering western boundary of Lees Green Common. Nothing about the form of this boundary can be concluded based on this source, as the tithe map does not explicitly show whether the boundary was defined by a watercourse, ditch or hedge; however, the sinuous, meandering form of the boundary may reasonably be interpreted to indicate a watercourse."

     

  167. There was a pond located in the north west corner of Robinson Fields being towards what was the north/west extent of Lees Green Common. The pond has now been infilled, but it was apparent at the site visit (and conceded on behalf of the Defendants) that the pond would have been on lower ground than the depression such that it is improbable that the depression was a natural watercourse. Therefore, I find that the ad medium filum aquae presumption does not arise.
  168.  

    'T' marks

     

  169. The Inclosure Award Map showed inward facing 'T' marks at intervals along the eastern boundary of the Fields to the West.
  170.  

  171. It was argued on behalf of the Defendants that;
  172.  

    a.       The potential significance of 'T' marks has been recognised by the courts. In Seeckts v Derwent [2004] EWCA Civ 393, the existence of inward-facing 'T' marks was held to be decisive as to ownership of a disputed boundary.

     

    b.      It is to be inferred that Thomas Miles, the valuer who made the award, was satisfied at the time of the Inclosure Award that ownership of (and therefore the responsibility for maintaining) the boundary features which existed along the eastern boundary of the Fields to the West rested with the owner of the Fields to the West. He therefore caused the 'T' marks to be marked upon the Inclosure Award Map to represent ownership of the existing hedge.

     

  173. In Lanfear & Another v Chandler [2013] EWCA Civ 1497 Patten LJ said this;
  174.  

    [13.] ....... in Seeckts v Derwent & Anor .....  the conveyance plan marked a boundary by a line which included "T" marks as well as some measurements marked in feet and inches from various points on the boundary to a building known as the Clock House. On the basis that the "T" marks indicated which of the adjoining parcels of land owned the boundary feature there was an inconsistency between the two means of identification. Carnwath LJ decided that the "T" marks should prevail over the measurements:

     

    "In my view, it is not possible to disregard the ordinary understanding of the T-marks. The natural implication is that they were intended to represent existing boundary features, and that those features were to belong to Clock House. This implication is consistent with the Judge's finding, for which there was evidence, that there was a "hedge" along the disputed boundary."

     

    [14.] In the subsequent case of Avon Estates Ltd v Evans & Anor [2013] EWHC 1635 (Ch) HH Judge Cooke (sitting as a judge of the Chancery Division) expressed the view that the presence of "T" marks on a plan is not necessarily conclusive of the ownership of the relevant boundary feature:

     

    "In my judgment, there is no single meaning or default meaning established by the evidence or authority that can be attached to T marks where a meaning cannot be ascertained by reference to the body of the conveyance or other admissible material. It may well be that the parties to the 1955 conveyance subjectively intended some meaning to be attached, but if they did, given the range of possibilities as to what it might be and the absence of any evidence to enable the court to identify what their intention might have been, that intention has not been carried into effect."

     

    [15.] A similar approach is recommended in the recent version of Land Registry Practice Guide 40 to plans and boundaries which states at [9] that:

     

    "The register will only show information concerning the ownership and/or maintenance of boundary features when this information is specifically referred to in the deeds lodged for registration. The most common marking on deed plans that relates to boundaries are 'T' marks. An entry referring to a 'T' mark is normally a statement concerning the ownership of a boundary structure or the liability to maintain and repair it.

     

    If the 'T' marks are expressly referred to in the deeds lodged for registration then we will reproduce them on the title plan and refer to them in the register. As an alternative, the boundaries affected by 'T' marks may only be described verbally in the register, for example "The 'T' mark referred to [in paragraph/clause...] affects the [north western] boundary of the land in this title".

     

    'T' marks on deed plans which are not referred to in the text of a deed have no special force or meaning in law and unless an applicant specifically requests that the 'T' marks be shown on the title plan, we will normally ignore them."

     

    [16.] Mr Smithers criticised the decision in Avon Estates as a watering down of the ratio in Seeckts that "T" marks raised a presumption of law that the siting of the "T" mark indicated ownership of the boundary feature. But I doubt whether Carnwath LJ intended to go that far. He recognised that there is a common and well-established practice of using "T" marks to identify the ownership of the wall or fence marking the boundary. That is undoubtedly a relevant factor to keep in mind when construing a conveyance by reference to a plan which incorporates "T" marks. But whether it is determinative of the boundary depends upon balancing it against the other relevant terms of the conveyance and the features of the plan coupled, when appropriate, with evidence of the position on the ground. The task of the court is to decide by reference to all these elements how the conveyance or transfer should be construed. All are relevant but none is necessarily conclusive. To say that the use of "T" marks raises a presumption of law (even a rebuttable one) that the boundary feature belongs to the adjoining landowner indicated by the use of the marks seems to me to be wrong in principle and in effect to pre-empt the process of construction on which the court is engaged."

     

  175. I am not persuaded that it can be properly inferred that the 'T' marks marked on the Inclosure Award Map represented ownership of the Western Hedge as asserted by the Defendants and for the following primary reasons:
  176.  

    a.       There is no single meaning or default meaning established by law that can be attached to 'T' marks where a meaning cannot be ascertained by reference to the body of the conveyance or other admissible material.

     

    b.      The Inclosure Award Map does not contain any description of the meaning of the 'T' marks. Nor does the Inclosure Award Map contain a legend which explains their significance.

     

    c.       The SJE stated in his report that 'T' marks are "noted by comprehensive, authoritative guides on Inclosure Maps/Awards and Tithe maps in England and Wales as indicating the ownership of that particular boundary." However, later in his report and again in his oral evidence, the SJE concluded that the 'T' marks on the Inclosure Award Map indicated only  responsibility for maintaining the Western Hedge.

     

    d.      Responsibility for maintaining a boundary feature does not necessarily imply ownership. As HH Judge Cooke said in Avon Estates:

     

    "Mr Powell ......expressed the view that this responsibility necessarily implied ownership, [but] it seems to me that is not necessarily so. It will no doubt commonly be the case that the appropriate person to maintain a feature is the owner of it, but the attribution of such responsibility is a matter for agreement between parties to a conveyance and there is nothing to stop them agreeing any terms they choose. One could envisage a range of rights or obligations that parties might agree in relation to a boundary feature depending on the circumstances; "maintenance" is an obvious one but even if that is intended, the exact content of the obligation is not necessarily self explanatory. In the present case for instance, it might be speculated that parties would have considered defining which of them should be responsible for replacing the stockproof fence running along the boundary, whether or not the existing fence was precisely on the boundary."

     

    Conclusion


  177. In my judgment, the most likely inference from the available evidence is that the Western Boundary was created by reference to the Western Hedge, which was planted along the edge of an existing depression, which was a natural, rather than artificial/man-made, feature. As such, I find that the original boundary line ran through the centre of the Western Hedge.
  178. Having determined that the depression was not man-made, the Defendants' claim for adverse possession based upon their predecessors in title having allegedly excavated the Alleged Western Ditch is dismissed.  
  179. The Alleged Boundary Agreements

    Applicable law

  180. In Neilson v Poole (1969) 20 P&CR 909 it was proposed that the boundary between two neighbouring properties be clarified before one of the properties was sold at auction. The boundary line was marked out and orally agreed. Megarry J held that the boundary agreement in that case was not void for want of registration pursuant to section 10(1) Land Charges Act 1925. He said this:
  181.  

    "..... A boundary agreement may, I think, be registrable, or it may not, depending on the nature of the agreement. The only suggested head of registration is as an estate contract, Class C (iv). By section 10 (1) of the Land Charges Act 1925, this is defined as:

     

    "any contract by an estate owner or by a person entitled at the date of the contract to have a legal estate conveyed to him to conveyor create a legal estate;"

     

    .......

     

    Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.

     

    In general, I think that a boundary agreement will be presumed to fall into this latter category. This view is supported by words of Lord Hardwicke L.C. in Penn v Lord Baltimore, a case concerning an agreement relating to the boundaries between Pennsylvania and Maryland. There the Lord Chancellor said:

     

    "To say that such a settlement of boundaries amounts to an alienation, is not the true idea of it; for if fairly made, without collusion . . ., the boundaries settled are to be presumed to be the true and ancient limits."

     

    This view is also supported by Lawrence v McDowall, where at page 444 Chipman C.J. followed Boyd's Lessee v Graves. That was a case in the Supreme Court in the United States in which it was held that a parol boundary agreement of the latter type was not within the Statute of Frauds 1677. For, as Duvall J. said at page 517, in delivering the judgment of the court:

     

    "It is not a contract for the sale or conveyance of lands. It has no ingredient of such a contract."

     

    There may, of course, be cases in which it is uncertain or doubtful whether a boundary agreement will convey any land. Thus, the configuration of the boundary may suggest that land will be conveyed, without demonstrating this beyond doubt. In such case, I would hold the agreement not registrable. Clause C (iv) applies to a "contract . . to convey," and not to a contract which leaves it uncertain whether or not any land is to be conveyed. In short, in my judgment, a boundary agreement is presumed not to convey land; the presumption may be rebutted, but unless it is, the agreement is not registrable; and to point to circumstances of doubt or uncertainty is not to rebut the presumption.

     

    In this case, the boundary on the conveyance, as I have construed it, coincides with the boundary on the agreement, and so the agreement is not registrable. If the two boundaries had not coincided, because, for example, the true construction of the conveyance yields a different boundary, then the agreement would have been an agreement whereby in fact it was agreed that land belonging to one should thenceforward belong to the other. Nevertheless, even in those circumstances, I should not hold that the agreement was registrable: for, in my judgment, it is not a "contract ... to convey" within clause C (iv). A contract merely to demarcate and confirm is not a contract to convey. No doubt the parties cannot go back on this agreement, and each in time will acquire a title by limitation to the land of the other which falls on his side of the agreed boundary. Even if each were to be entitled to demand a conveyance of that land from the other, I doubt whether the agreement would be registrable: for although the obligation to convey would no doubt arise out of their agreement to demarcate, the contract was merely a contract to demarcate and not a contract to convey.

     

    I must, too, bear in mind that a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law. I also bear in mind that many boundary agreements are of the most informal nature, and that the penalty of failure to register an estate contract is that the agreement will be void against a purchaser. These more general conditions, I think, support me in the view that I have expressed. In my judgment, no boundary agreement should be held to be registrable unless it can be seen with reasonable clarity to be an agreement to convey. Accordingly, whether or not I am right about the boundary shown by the conveyances, I hold that the boundary agreement is not void against the defendant for want of registration."

     

  182. S.2(1) Law of Property (Misc Provisions) Act 1989 ("the 1989 Act") provides that a contract for the sale or other disposition of an interest in land can only be made in writing and by incorporating all the terms which the parties have expressly agreed.
  183.  

  184. In Joyce v Rigolli [2004] All ER (D) 203 (Feb), and having staked out the ground,  neighbouring owners orally agreed the boundary line and whereby each side gave up a marginal amount of land. The Court of Appeal, applying Megarry J's reasoning in Neilson v Poole regarding registration, held that the agreement was merely to demarcate the boundary and did not purport to be a contract to convey any land such that s.2(1) of the 1989 Act did not apply. Arden LJ said this:
  185.  

    [31.] .......Megarry J's approach to the words "contract ... to convey" in section 10(1) of the Land Charges Act 1925 was essentially that, for a contract to be a contract to do something, the parties had to have as one of their purposes the intention to do that thing. Similar reasoning in my judgment applies to the words "contract for the sale or other disposition of an interest in land" in section 2 of the 1989 Act. As a matter of ordinary English usage, for a contract to be one 'for' selling or disposing of land, it must have been part of the parties' purposes, or the purposes to be attributed to them, in entering into such a contract that the contract should achieve a sale or other disposition of land. The fact that the effect of their contract is that land or an interest in land is actually conveyed, when that effect was neither foreseen nor intended nor was it something which ought to have been foreseen or intended, is not the acid test. Indeed, it would be a surprising result if section 2 applied merely because the effect of the contract was that an interest in land was transferred even if the parties had no intention to make any such transfer and could not have foreseen or intended that that would be the effect.

     

    [32.] In this case, however, Mr Rigolli consciously thought that he was giving up a small triangle of land round the cherry tree. (I am prepared to assume that he was in fact giving up some land and that Mrs Joyce was giving up some land too although on the evidence it would not appear that she or Mr Joyce consciously thought about this at the time of the boundary agreement). Even so, the area of land disposed of by both parties was of a very small amount. It would be unrealistic to require the parties to execute a transfer of the land given up by Mr Rigolli (still less of that unconsciously given up by Mrs Joyce). In both cases the land would also be quite difficult to define without the disproportionate expense of a survey. Further, to make the validity of a boundary agreement dependent on the preparation and execution of a written contract would be contrary to the important public policy in upholding boundary agreements so powerfully identified by Megarry J in Neilson v Poole. In those circumstances, I do not consider that Parliament, which after all enacted section 2 against the background of Neilson v Poole, could have intended section 2 to apply to transfers of land pursuant to boundary agreements  of Megarry J's latter type ("demarcating" agreements) simply because a trivial transfer or transfers of land were consciously involved."

     

  186. It is not seriously disputed in the present case that a boundary demarcation agreement, which also involves the trivial transfer of land whether consciously or not, does not offend the statutory requirement for signed writing. However, there was a dispute as to whether such a boundary demarcation agreement is binding upon successors in title:
  187.  

    a.       The Claimants argued that a boundary demarcation agreement is personal to the contracting parties and has no proprietary effect binding upon third parties. The Claimants relied in particular upon Gibson v New [2021] EWHC 1811 (QB) in which the first instance judge had found that a settlement agreement, which incorporated an expert determination provision, amounted to a boundary demarcation agreement. On appeal, Murray J said this:

     

    "[147] . . . the judge's conclusion that the Settlement Agreement together with the Stephenson Report prepared pursuant to the Settlement Agreement was a boundary agreement that does not provide for a conveyance of land is not wrong. It does not bind successors in title. Mr Wilmshurst's example of the local authority's compulsory purchase is based on a false premise. In light of the judge's conclusion at paragraph 53 of the Judgement, he is clearly correct to conclude at paragraph 55 that the Settlement Agreement fell outside the scope of section 2 of the 1989 Act.

     

    . . .

     

    [150] . . . I agree with Mr Loveday that the declaration simply establishes the contractual position as between the parties to the Settlement Agreement. It has no proprietary effect binding third parties . . ."

     

    b.      The Defendants argued that that Murray J's suggestion that boundary demarcation agreements do not bind successors in title was not part of the ratio of his decision, and even if it was it was per incuriam. A long line of binding authorities confirm that successors in title are bound including more recently Haycocks v Neville [2007] EWCA Civ 78 where Lawrence Collins LJ said this:

     

    "[25] ... an agreement to demarcate an unclear boundary is binding on the parties and binds successors entitled (sic) without the need for a written agreement: Neilson v Poole (1969) 20 P&CR 909, recently applied in Joyce v Rigolli [2004] EWCA Civ 79. The evidence was that the Wykes Plan had been drawn up to clarify the boundary following discussions between the Haycocks and the Campbells and was drawn at a scale of 1:200. If the Haycocks had pleaded and proved that they and the Campbells had agreed in 1992 that the Wykes Plan represented the boundary, then that would have been binding not only on them but on successors in title, such as the Nevilles."

     

  188. In between closing arguments and the handing down of this judgement, the Court of Appeal considered the point in White v Alder and Anor [2025] EWCA Civ 392. The Court of Appeal held a boundary demarcation agreement is binding upon successors in title even if they had no knowledge of it. Asplin LJ gave the lead judgment and after a detailed analysis of the relevant authorities, including Gibson v New and Haycocks v Neville  (both considered obiter dicta), said this:
  189.  

    "[53.] Where does that leave us? Drawing all of the authorities together, it seems to me that as Megarry J first explained, there are two types of boundary agreement. The first is an agreement the purpose of which is to move a boundary so as to transfer land from one neighbour to another. That first type is subject to the formalities necessary for the transfer of land. The second type is an agreement, the purpose of which is to define a previously unclear or uncertain boundary, even if it includes the conscious or unconscious transfer of a trivial amount of land. It is presumed that the land transferred is trivial unless the presumption is rebutted. This second type, a boundary demarcation agreement, binds the parties to it for the reasons explained by Briggs LJ in Nata Lee Ltd at [32]. The consideration for the agreement is the substitution of certainty for uncertainty and the avoidance of the risk of future disputes. Although in many cases, the parties will act upon the agreement, for example, by building a wall or erecting a fence, there is no need for anything more in order to render it binding as between them. That is clear, not only from Neilson v Poole itself which has been consistently endorsed in the Court of Appeal, but also from Stephenson where it was stated that it was unnecessary to consider the estoppel argument in addition to the implied boundary demarcation agreement, from the clear obiter dicta of Lawrence Collins LJ in Haycocks and the approach adopted by Briggs LJ in Nata Lee Ltd.

     

    [54.] Such an agreement has proprietary effect and, as a result, also binds successors in title. It does so because of its very nature. It defines and delineates the boundary between the properties as from the root conveyance or transfer. Such an agreement is, of its very nature, a delineation of the property transferred or conveyed and is so for all purposes. As no one is able to transfer or convey more than they own, such an agreement effectively "binds" successors in title whether or not they have knowledge of it. It does so because it defines what they purchase. As "Ruoff and Roper on the Law and Practice of Registered Conveyancing" explains at paragraph 5.020, a legal boundary does not move because the land is subsequently conveyed or transferred. The boundary demarcation agreement is ancillary to the conveyance or transfer. As Megarry J explained at 919 of Neilson v Poole, the boundaries established are, in the words of Lord Hardwick L.C. in Penn v Lord Baltimore, "presumed to be the true and ancient limits". In other words, a boundary demarcation agreement establishes on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary is presumed always to have been in that location.

     

    [55.] In the case of unregistered land, a vendor cannot convey to a purchaser more land than he owns. In the case of registered land, upon registration the purchaser is deemed to be the proprietor of the registered estate: section 58 of the Land Registration Act ("LRA 2002"). The boundary of that registered estate will, however, only be a general boundary unless exceptionally it has been determined under section 60(1) LRA 2002. A general boundary does not determine the exact line of the boundary: section 60(2) LRA 2002. The exact boundary of registered land may, therefore, be established by a boundary demarcation agreement.

     

    [56.] In either case, if the extent of the land owned by the vendor has been conclusively established by a boundary demarcation agreement, the purchaser cannot acquire title to more land than was owned by the vendor. If the effect of a boundary agreement is to define the extent of the parcels of land owned by the parties to it, it must logically continue to define the extent of those parcels when they are transferred to a successor in title.

     

    [57.] Although a boundary demarcation agreement which is implied may be more difficult to prove than an express agreement, there is nothing to suggest that the underlying principle should be different. In just the same way, the agreement defines the parcel of land and as a result, defines what is transferred to a successor in title. This is consistent with the decisions in Burns and Stephenson where the boundary agreement which bound successors in title was implied from the conduct of predecessors.

     

    [58.] None of the authorities, including those concerned with successors in title, turns upon or for that matter, makes mention of whether the person seeking to avoid the effect of the boundary agreement had notice or knowledge of it. That is not surprising. A boundary demarcation agreement is neither an equitable interest for the purposes of unregistered conveyancing nor an overriding interest for the purposes of registered land. It clarifies the border or boundary between the properties shown in the conveyance or transfer. It does not turn on knowledge, therefore.

     

    [59.] All of this is consistent with the public policy identified by Megarry J and reiterated in many of the Court of Appeal authorities to which I have referred. A boundary demarcation agreement is an act of peace which should be encouraged. It avoids uncertainty and the risk of litigation. It does not undermine the formalities for the transfer of land because its purpose is not to effect such a transfer. As Arden LJ pointed out in Joyce v Rigolli at [32], where trivial amounts of land are transferred it avoids the disproportionate expense of a survey and avoids the preparation and execution of a written contract which would be contrary to the principle of public policy identified by Megarry J in Neilson v Poole. It also avoids the time and expense involved in making a formal application for the determination of the exact line of a boundary pursuant to Rules 118 and 119 of the Land Registration Rules 2003.

     

    [60.] It seems to me, therefore, that public policy favours the binding nature of boundary demarcation agreements and that the uncertainties which might arise as to the existence of the agreement are no greater than the uncertainties surrounding the effect of the root conveyance itself. The difficulties in proving a boundary demarcation agreement, even if it is implied rather than express, are likely to be fewer than those encountered in delving back to the original conveyance.

     

    ......

     

    [61.] It follows that in my judgment, as a result of the very nature of a boundary demarcation agreement, a successor in title is bound by it even if they had no knowledge of it....."

     

  190. Before handing down this judgment, I emailed the parties with a link to the judgment in White v Alder and invited them to file any written submissions upon it.
  191.  

  192. The Claimants' written submissions extended to 23 pages. In summary:
  193.  

    a.       It is of critical importance that I listen to the discussion between Zacaroli LJ and counsel for the respondents during the hearing in White v Alder when Zacaroli LJ described as a purely contractual, and not proprietary, matter the hypothetical scenario of where the contracting parties to a boundary demarcation agreement knew that one of the properties was about to be sold. I was invited (but declined) to listen to that discussion on the You Tube Videos of the hearing attached to the Claimants' covering email.

     

    b.      As per Zacaroli LJ's scenario, Hillsway was being sold with the Defendants' full knowledge at the time of the Alleged 2019 Boundary Agreement. Pre-contract enquiries during this time allowed for and provided the opportunity for the Defendants and the sellers of Hillsway to effect provisions in the sellers' contract to restrain or restrict what was being sold - Powles & Anr v Reeves & Ors [2016] EWCA Civ 1375.

     

    c.       Each case is very fact specific. White v Alder is distinguishable on the particular facts of that case. Therefore, "because of the specific characteristics in this case precedent could be advanced further on his Lordship's own judgement having regard for the White Case as it will address some matters raised in the White Case but not determined give[n] the White Case facts or alternatively a judgement in this case would further endorse the nuances in the Neilson case."

     

    d.      Further, because Powles v Reeves was not considered in White v Alder, I am not necessarily bound by it.

     

  194. The boundary dispute in Wibberley concerned the "ownership of a tiny strip of garden in rural Staffordshire". Lord Hoffman began his judgment by saying this:
  195.  

    "Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army. It is therefore important that the law on boundaries should be as clear as possible."

     

  196. Bradford and another v James and others [2008] EWCA Civ 837 involved a boundary dispute "between neighbours over title to a cobbled area of land 3.7m wide". By way of introduction, Lord Mummery said this
  197.  

    "1. There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both."

     

  198. In Parmar Briggs LJ said this by way of introduction:
  199.  

    "[1.] This appeal is mainly about the application to a particular set of facts of the pair of rebuttable presumptions which conveyancers call the "hedge and ditch rule". While, to many modern (and in particular urban) lawyers, this rule might at first sight appear to be something of a quaint chancery conceit, it continues to serve a valuable purpose, not least as a means of enabling neighbouring owners of rural land to avoid what is almost always the wholly disproportionate cost and stress of having to litigate a boundary dispute. The blood, toil and sweat which has been devoted to this litigation would even have horrified Prince Hamlet who, watching Fortinbras march away with his army, observed:

     

    "...while, to my shame, I see
    The imminent death of twenty thousand men
    That, for a fantasy and trick of fame
    Go to their graves like beds, fight for a plot
    Whereon the numbers cannot try the cause,
    Which is not tomb enough and continent
    To hide the slain? O, from this time forth
    My thoughts be bloody, or be nothing worth!""

     

  200. CPR r.1.4 requires the court to further the overriding objective of dealing with cases justly and at proportionate cost by actively managing cases, which includes helping the parties to settle the whole or part of the case.  
  201.  

  202. Therefore, there are compelling public policy grounds for promoting legal certainty in order to facilitate settlement so that neighbours can avoid the potentially ruinous and wholly disproportionate costs associated with litigating trivial boundary disputes. The Claimants submit that I ought somehow to qualify the decision of the Court of Appeal in White v Alder and re-introduce uncertainty by finding that  boundary demarcation agreements are only binding on some, but not all, successors in title, and depending upon whether one of the contracting parties was, at the time of making the agreement, intending to sell their property and the other contracting party knew or ought to have known of that intended sale.     
  203.  

  204. I am not persuaded that the decision in Neilson v Poole is nuanced as suggested by C1. Long before the introduction of the CPR and the overriding objective, Megarry J made abundantly clear the compelling public policy grounds for upholding a boundary demarcation agreement:
  205.  

    "....a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law."

     

  206. The public policy grounds identified by Megarry J have been reiterated many times by the Court of Appeal including most recently in White v Alder:
  207.  

  208. I consider that White v Alder is of general application and binding upon me. It is the nature of the boundary demarcation agreement itself (and which by definition involves no more than the trivial transfer of land) that renders it binding upon successors in title and irrespective of their knowledge. It is irrelevant to the nature of the boundary demarcation agreement whether or not the contracting parties knew or ought to have known that one of the properties was to be sold. Indeed, in White v Alder the contracting parties made the boundary demarcation agreement shortly before, and no doubt in contemplation of, the sales of their respective properties:
  209.  

    [2.] The Appellant, Mr White, and the Respondents, Professor and Mrs Alder are neighbours. Mr White is the registered freehold proprietor of "Willow Cottage" Fuller Street, Fairstead, Chelmsford and the Alders are the registered freehold proprietors of the property next door, "The Old Stores". They purchased their respective properties at about the same time. The Alders purchased The Old Stores on 2 November 2005 and Mr White purchased Willow Cottage on 11 November 2005.

     

    [3.] On or about 18 October 2005 and no later than 22 October 2005, Mr White's predecessors in title, the Hobsons, and the Alders' predecessors in title, the Joneses, had orally agreed the location of the boundary between their respective properties...." 

     

    The Alleged 2006 Boundary Agreement

     

  210. The Claimant's pleaded claim is:
  211.  

    [33F].... by virtue of the Defendants own conduct in entering into a binding boundary agreement regarding the southern boundary as follows:-

     

    d. On 16 March 2005 the Defendants made a planning application to build

    Brookfields and as part of condition 5 boundary treatment the Defendants in

    May 2005 confirmed that the hedges were the boundaries having measured the site at 10m wide from the centreline of the hedges in accordance with their title deeds. The Defendants updated their plans with the boundary information.

    e. The Claimants predecessor's in title, Joseph and Eva Morley, alongside many other objectors, formally objected to the planning application on 15 April 2005, having objected previously in 2003. They highlighted concerns, as had their predecessors about the adverse effects on Hillsway surface water drainage and a ditch along the side of the proposed plot used for such a purpose.

    f. In June 2005 South Derbyshire District Council "SDDC" requested that the Defendants address the boundary conditions. On 10 August 2005 the Defendants confirmed that hedges exist on the side boundaries and a 1.8m high brick wall was to be erected such that the southern hedge to Hillsway was to be retained by the wall, thereby providing a right of support to Hillsway. There was further correspondence in November 2005 before on 02 February 2006 SDDC approved the 1.8m brick boundary wall and made the Defendants aware of their obligations under the Party Wall Act 1996 and the need to notify the neighbours. Later in November 2006 SDDC advised the Defendants that they were in breach of planning conditions including condition 5 as having changed the wall to a fence and dwarf wall they had not confirmed that the fencing to be erected should be 2m in height to protect the amenity of neighbouring properties and that the neighbouring hedges would be retained by the fencing and dwarf wall arrangement.

    g. The Defendants consulted Joseph and Eva Morley, the Hillsway owners in 2005/2006 in order to reach an agreement as to the boundary under planning condition 5. A compromise is "an agreement or settlement of a dispute" and in consequence given point 33C (b) there must have been a dispute with and a compromising agreement with the Hillsway Owners about the boundary arising from this consultation. The Defendants have admitted that they compromised. They did as a result enter into a boundary agreement with the Hillsway owners in accordance with their 10 August 2005 updated plans based upon the site being measured 10 m between the centreline of the hedges, that the 1.8m wall was to retain and provide a right of support to the southern hedge to Hillsway and the ownership of the ditch which provided surface water drainage amenity for the Hillsway bungalow and summerhouse. Save for changing the 1.8m wall for 2m high panel fencing with a dwarf wall which provided the aforementioned right of support the Defendants after approval of that change by SDDC in November 2006 did construct those features in the relevant positions in accordance with their boundary agreement with the Hillsway owners and planning condition 5.

    h. Over 15 years later and consistent with... the tort of deceit...., the Defendants, through their pleadings are seeking to resile from the planning conditions and the agreement which they acted on and so performed."

     

  212. In her written evidence, D2 stated:
  213.  

    "BROOKFIELDS

     

    [20.] I have refreshed my memory from the planning application documents in the 'List of Documents' section below.

     

    [21.] The idea to build Brookfields first came from Jim's parents. Their idea was to build a residential house to live in during their retirement. I think they made their planning application in about 1988, but it was refused. Instead, Jim's parents bought a place at Mercaston and they retired to live there in 1989.

     

    [22.] In 1999, our son Matthew made an application to build a residential house on the site. If he had been successful, it was our idea to gift him the land as a wedding present. However, his application was also refused.

     

    [23.] I do not think either of these previous applications was for a house for an agricultural worker.

     

    [24.] By 2003, I recall that we were really struggling to find staff to work at Trusley Wood Farm. Without a house to offer with the job, we could only attract workers who lived locally, and no-one suitable seemed to be available. So, Jim and I had the idea of making an application to build Brookfields for an agricultural worker.

     

    [25.] I was the 'project manager' for the planning application and the build. I discussed and agreed everything with Jim, but he was busy farming, so I was more involved than he was. The planning application was made in Jim's name.

     

    [26.] I do not remember much about the registration of Brookfields at HM Land Registry; I think Jim dealt with this, not me.

     

    [27.] Our 2003 planning application was for outline permission, but it was refused. We appealed, and our appeal was allowed in 2004. The planning permission for Brookfields has an agricultural occupancy condition.

     

    [28.] When the more detailed plans were drawn up by our surveyor in about 2005, I went round to Hillsway to show them to Joe Morley and his wife ('the Morleys'). We had known of the Morleys for a long time through the local farming community. Hillsway is on higher ground, Brookfields was going to be visible from there, so we felt it was only courteous to let them know what design we had in mind, and to talk about any concerns they might have.

     

    [29.] At that time, I am sure our idea was to remove the section of hedge alongside the house and replace it with a wall. Brookfields is a very narrow plot and Jim and I were worried about how close the hedge was to the house, especially the kitchen window; we thought a wall would be easier to maintain, we also thought a wall would give the house more privacy than the hedge.

     

    [30.] I know the plans I showed the Morleys only showed the wall because I remember Joe Morley ('Joe') saying he would prefer it if we kept the hedge. I cannot remember if he explained why, perhaps because he preferred to look out onto a green hedge than a brick wall? We discussed other things about the design too, like the colour and type of the house bricks and I remember Mrs Morley saying she did not want us to build a yellow house like Talland!

     

    [31.] I am sure Joe did not think the hedge was his; I remember him saying that if we kept it, we could cut it as often as we liked because it was ours.

     

    [32.] Jim and I decided to change the plans because we thought of a compromise that would give Brookfields privacy and give Joe a green hedge to look at. Our compromise was to keep the hedge and put a wall up along the house on our side of the hedge; we later changed the wall to a panel fence. We definitely did not change our plans because we thought any part of the hedge belonged to Hillsway.

     

    [33.] Jim and I have looked for the version of the surveyor's plan that just shows the wall, but cannot find it. I think it might have been submitted for approval, but I am not sure, it could just have been an early draft version. Our solicitor is checking if the planning department have a copy.

     

    [34.] None of the words and measurements used on our later surveyor's plans and letters mean that I thought Hillsway owned the hedge; I always thought it belonged to Brookfields.

     

    [35.] The builders started work on Brookfields as soon as we got full planning permission. We built the whole of the shell and then stopped. By then, Jim had found a farm worker who already lived locally, so the need to house an agricultural worker was not so urgent anymore.

     

    [36.] Years later, when Jim and I started to think about winding down for retirement, we begun work on the inside of Brookfields. We decided we would live there ourselves. It needed everything; stairs, electrics, plumbing, kitchen, bathroom and everything else. The house was finished by 2016 and we moved in."

     

  214. It is not seriously disputed that D2 took the lead in dealing with the planning applications. D2 was cross examined by C1 by reference to the planning documents. I found D2 to be an honest witness doing her best to assist the court. In addition, there were no indicators of unreliable witness evidence that undermined D2's reliability as a witness. However, D2 was seeking to recall conversations and events going back many years, and so I have nevertheless approached her evidence with a degree of caution. Ultimately, I am able to accept D2's recollections as likely accurate, since they are corroborated by the contents of the contemporary documents:
  215.  

    a.       On 14 June 2005, the planning authority wrote to the Defendants' architect:

     

    A yellow paper with black text

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    b.      10 August 2005, the Defendants' architect responded and confirmed that  the Southern Hedge would be retained -

     

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    c.       The attached plan also referred to retention of the Southern Hedge  –

     

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    d.      On 18 October 2006, D1 sent to the planning department a further plan again referring to retention of the Southern Hedge -

     

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    e.       On 27 October 2006, D1 wrote to the planning department emphasising retention of the Southern Hedge -

     

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    f.        On 3 November 2006 the planning department wrote to the Defendant's architect –

     

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  216. On 11 November 2006, the Defendant's architect submitted a further plan as requested and which again referred to retention of the Southern Hedge -
  217.  

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  218. The (i) promises by or on behalf of the Defendants to retain the Southern Hedge, and (ii) the planning authority (in "the interests of the appearance of the area") making that a condition of the planning permission that was granted to the Defendants, are entirely consistent with the then shared belief and understanding that the Southern Hedge was owned by and would continue to be owned by the Defendants. There is absolutely no evidence of any dispute then arising over ownership of the Southern Hedge, which would have necessitated a boundary demarcation agreement.
  219.  

  220. Therefore, the Claimants' claim in respect of the Alleged 2006 Boundary Agreement is dismissed.
  221.  

    The Alleged 2019 Boundary Agreement

     

  222. It was the written evidence of the Defendants and Ms Morley that, following the pre-contract queries raised by or on behalf of the Claimants, they met on 1 August 2019 to discuss the boundaries and when it was agreed that the Disputed Hedges  were owned by the Defendants.   
  223.  

  224. It was argued by the Claimants that there could be no such boundary demarcation agreement when there was no dispute, no intention to create legal relations, no review undertaken of the title deeds and plans, and no walking or marking out of the land. Further, the written and oral evidence of the Defendants and Ms Morley in this regard was internally inconsistent thereby undermining the reliability of that evidence.  
  225.  

  226. Whilst I found the Defendants and Ms Morley to be honest witnesses, for the reasons already stated, I have treated their evidence with a degree of caution and again place particular reliance upon the contents of the contemporary documents in determining this issue.
  227.  

  228. The Property Information Form ("the PIF") signed by Ms Morley and her sister in August 2018 as executors for their late mother's estate (the "Executors") records that:
  229.  

    a.       The Southern Hedge was owned/maintained/repaired by the "Neighbour".

     

    b.      The Western Hedge was owned/maintained/repaired 50/50 by the "Seller" and the "Neighbour".

     

    c.       The Northern Hedge was owned/maintained/repaired by the "Neighbour".

     

  230. The Northern Hedge included a gate giving access to Robinson Fields. On 23 July 2019, the Executors' conveyancing solicitors ("Freeths") advised the Claimants' conveyancing solicitors ("Pickerings") -
  231.  

    "Mr & Mrs Robinson own the land. They are elderly and in a nursing home. Your clients will have no access across their field - this was a gentleman's agreement with my client and the Robinsons. The gate will be removed before completion. This has been explained to your clients."

     

  232. On 25 July 2019, Pickerings responded -
  233.  

    "... we have reported to our clients and taken further instructions...

     

    .....

     

    ............ The [PIF] that your client completed indicates that the right-hand boundary is the responsibility of Mr and Mrs Robinson, and the left hand boundary is the responsibility of the owners of the Brookfields property, though we have not received any documentary evidence to support this. The information that has been received, namely the conveyance showing the property's former name...indicates boundary responsibility by way of the symbols on the conveyance plan which point inwards on the right-hand boundary and the rear of the property. These symbols indicate a border with open land and hedgerow boundary features.

     

    ... the information about boundary responsibilities in the [PIF] is incorrect. Our clients have reviewed the documents carefully and they feel that it is very unlikely that the boundary ownership and maintenance responsibilities of the hedgerow boundary features would contradict the information in the conveyance.

     

    .....

     

    Our clients maintain that the gate forms part of the hedgerow boundary features which are an integral part of the property.... Consequently, the gate should not be removed....

     

    .... our clients have no interest in having access over the land owned by Mr and Mrs Robinson and the enquiry was made in the event that they may need to consult Mr and Mrs Robinson or their representatives in the future.

     

    Our clients have confirmed that until such time as this issue is resolved they are not in a position to discuss the exchange of contracts and completion."

     

  234. On 26 July 2019, C1 emailed the fee earner at Freeths, copying in the chief executive, alleging breaches of Law Society guidance in relation to the PIF. In an email of the same date, C1 explained to Pickerings his rationale for the direct approach to Freeths as follows –
  235.  

    "Whilst you may need to maintain an on-going relationship with Freeth's, I don't and what is paramount for me is that the property features including boundary features are not tampered with during the sale process. This alerts the other side to our attentiveness on such matters.

     

    Peter Smith is the CEO by the way. Rebecca may be personally not happy about my sending this but it serves to ensure that she becomes under the spotlight in her own organisation to comply with the relevant guidelines as I personally think the responses have been somewhat dismissive and that is something that I am not prepared to tolerate in this process."  

     

  236. Having been initially focused upon ownership of a gate in the Northern Hedge and notwithstanding that C1 apparently had no interest in using it to access Robinson Fields, C1's attention then turned also to ownership of the Southern Hedge when in an email sent to Pickerings on 31 July 2019 (and forwarded to Freeths on the same day) C1 queried:
  237.  

    "My instructions are as follows and I want very clear answers to these questions before I can even consider exchanging:-

     

    ....

     

    Please can Mr Archer (Brookfield's) provide a copy of their title deeds that unequivocally confirm the sole ownership and maintenance responsibility for the left hand boundary features (ie. the hedge) to confirm the statements made by Ms Morley in the [PIF].

     

    .....

     

    Please can you ensure that the above instructions are conveyed to Freeths exactly as described above....."

     

  238. Freeths responded on 31 July 2019 –
  239.  

    "There is no obligation on the neighbours to provide the documents that your client is requesting....... and your client is not entitled to see these. There has been no conflicting information supplied in this respect. My clients have advised that the neighbouring properties have responsibility for the hedges and no title documents to the property suggest otherwise. Have you explained to your client that it is not uncommon for title deeds to be silent on this point?"                                               

     

  240. C1 remained unhappy with that response and emailed Pickerings on 1 August 2019 (again forwarded to Freeths on the same day) -
  241.  

    "• Whilst there may be no obligation on the neighbours to provide the title documents nor any legal entitlement for me to see these it is necessary for the Sellers to provide the information that supports the answers on the [PIF]. We have attached the title plans of Brookfields ie. the left hand boundary feature and the rear boundary feature which we have obtained from the land registry and these are silent on the boundary ownership and responsibilities;

    o In such circumstances convention would dictate in the absence of a strict boundary determination that the boundary features are a 50/50 joint ownership and maintenance responsibility;

    o Given that the land details attached consider the rear and left hand boundary features simultaneously therefore it follows that the rear boundary feature and the left hand boundary feature are joint owned and maintained.

    o This means that the statements made about the left hand boundary in the [PIF] by the Sellers is incorrect ie. the neighbours are not 100% responsible for ownership and maintenance but they are only 50% owned as per the rear boundary;

    o Given this information it is highly probable therefore that the right hand boundary features (the Mr & Mrs Robinson) side is also a joint ownership and maintenance responsibility thus meaning that the [PIF] is incorrect.

    • I think it is important to remind Freeths and the Sellers of their obligations as per the Law Society guidelines on the [PIF] that:-

    o If the seller does not know the answer to any question, the seller must say so and it is very important that the Sellers answers are accurate;

    o The Seller is supposed to answer the questions based upon information known to them.

    o The Seller is not expected to have expert knowledge of legal or technical matters.

    • We have requested information from the Seller to support their assertions in point 1.1 of the [PIF] and thus far the seller has been unwilling or unable to provide any evidential information which supports their assertions. In fact, to the contrary we have now provided further information in terms of title documentation that demonstrates that the rear and left hand boundary features are most likely by way of convention jointly owned and maintained given that the attached title documentation is silent on the issue in the same way that the Hillsway deeds are.

     

    Instructions

     

    [1.] In the light of the extra title documentation provided for land adjacent to Hillsway at the rear and to the left of Hillsway (Brookfield's) which are silent on the boundary ownership and maintenance responsibility the Sellers are required to either:-

     

    a. Acknowledge and confirm that they cannot categorically confirm who has the boundary ownership and maintenance responsibilities for the rear, left and right hand boundary features (hedgerows) given the silence on the title documentation ie. that 1.1 a) and 1.1 b) has be corrected to 50/50 or Not Known.

     

    OR

     

    b. Provide the specific evidential information neighbours title deeds or otherwise that supports the assertions made in [PIF] 1.1 a) and [PIF] 1.1 b) that the left and right hand boundary features are 100% neighbour responsibility. It is only necessary to see the title plan and information that refers to any boundary ownership and maintenance responsibilities."

     

    It is perfectly reasonable to request that the Seller provides this clarification or evidential information given the Seller's obligations on completing the [PIF].

     

    The answer to 1 will influence how the matter of the gate is handled. Until we get a clear response as either a or b from the Seller we cannot and will not move forward to exchange contracts. Clearly if Ms.Morley already a has rental agreement ready for signature pending exchange then it is important that this clarification or information is provided promptly to enable exchange to be considered otherwise she risks losing out on the property she has identified."

     

  242. On 1 August 2019, Ms Morley emailed Freeths to confirm that she had met with the Defendants that evening:–
  243.  

    "Thank you for the emails below.

     

    I had a meeting Mr & Mrs Archer tonight and I have left a message for Mr Chris Robinson to contact me - they are all busy people - not always available.

     

    .....

     

    I will be in touch again as soon as I receive any information from my neighbours."

     

  244. On 3 August 2019, and no doubt following their meeting with Ms Morley, the Defendants emailed her –
  245.  

    "Subject: Boundries between Hillsway and Brookfield

     

    In reply to Mr Brynes concern over the boundries between the above property's the hedge between Miss Morley and ourselves and the hedge along the bottom of the paddock are as we know the boundries belonging to our property and land."

                      

    The contents of that email were subsequently copied and pasted into an email sent by Freeths to Pickerings on 7 August 2019.

     

  246. On 5 August 2019, Mr Christoper Robinson, who held a lasting power of attorney for his father in respect property matters, emailed Freeths, and no doubt again at the request of Ms Morley, to confirm that -  
  247.  

    "The hedge to the right of Hillsway which includes the gate is in the ownership of Hillsway even though the field side and the top of the hedge are cut by ourselves annually."

                                           

    The contents of that email were also copied and pasted into a second email sent by Freeths to Pickerings on 7 August 2019. Mr Robinson also stated in his email, but not copied to Pickerings:

     

    "Finally I have to say that having seen some of the emails from the prospective purchaser I consider his attitude to be offensive, arrogant and downright rude. I cannot believe that this person is already causing friction and upset with his prospective neighbours before he moves in!"

     

  248. C1 emailed Pickerings on 9 August 2019 -
  249.  

    ".....regarding the 2 emails and the boundary clarifications etc my comments and instructions are as below:-

     

    .........

     

    Conclusions

     

    • As no evidence has been provided by the Archer's or the Robinson's that supports their assertions and the land registry title documentation for Brookfields, Archer's land (to the rear) and Hillsway is silent on boundary ownership then in keeping with boundary convention and the maintenance custom and practice observed it can only be concluded that the left, right and rear hedgerow boundary features are most likely to be jointly owned.

     

    Instructions

     

    • Please can you ensure that the copies of the title documents attached are provided to the Archer's as I am not sure whether they have reviewed these.

    • We are prepared to move to exchange of contracts if both the Archer's and Robinson's are able to accept the conclusion reached above and to operate in accordance with the obligations of joint ownership as has been evident in current maintenance custom and practice."

                      

                       That email was forwarded to Freeths.

     

  250. On 12 August 2019, Freeths responded -
  251.  

    "The Archers will have already seen their own title documents. My clients have advised that there is a ditch running along the hedge along the boundary with the Archers' property- the ditch is within the boundaries of Hillsway and so, applying the hedge and ditch presumption, the hedge belongs to the Archers.

     

    My clients do not believe that Mr Robinson will enter into any further discussion on this before completion. If your clients want to contact him after completion, they are obviously entitled to do so."

     

  252. C1 remained unhappy with that response and, on 13 August 2019, emailed the Executors direct:
  253.  

    "In response to the communication from my solicitor (See email below) I am unfortunately not receiving a clear answer to the questions I have raised so as to enable us to exchange. It follows that there will not be any completion if exchange does not take place as completion date is confirmed on exchange.

     

    There is one open issue and that relates to the boundaries but it seems from the response that the Archers and Robinsons have not even been consulted on my solicitors note.

     

    My comments are as follows:-

     

    1. If you want to exchange urgently then the reasonable questions and points I have put via my solicitor need to be actually answered urgently and this means actually engaging with the Archers and the Robinsons. It is the sellers responsibility to ensure that the [PIF] is accurate and so far the [PIF] 1.1 has been anything but accurate;

     

    2. The suggestion made by your solicitor that the Archer's will have seen their own documents is an assumption and suggests that you have not sent them the attached documents. We therefore do not know whether their opinion is formed from definitively having seen these documents which clearly indicates that the boundary responsibility is silent in their title documents;

     

    3. The reference to the ditch in respect of the Archers relates to the rear boundary alone and not the left hand boundary. The [PIF]1.1 stipulated that the rear boundary was 50/50% and not Archers owned. Are Freeth's now representing the Archer's in arguing a case having not consulted them or sticking to the original [PIF] on the rear of 50/50 ownership which is what I am suggesting but for the right, rear and left. Is the hedge and ditch argument for the rear actually being put forward by the Archer's or by your solicitor without any express authority to do so. Can I suggest that your solicitor sticks to her brief.

     

    4. There is no comment on the left boundary at all.

     

    For the avoidance of doubt we will not be exchanging until we get a clear and specific response acknowledging from the Archers and the Robinson's the possible conclusion regarding the legal boundary ownership I have put forward in the absence of any evidence to the contrary being provided :-

     

    • "As no evidence has been provided by the Archer's or the Robinson's that supports their assertions and the land registry title documentation for Brookfields, Archer's land (to the rear) and Hillsway is silent on boundary ownership then in keeping with boundary convention and the maintenance custom and practice observed it can only be concluded that the left, right and rear hedgerow boundary features are most likely to be jointly owned"

     

    Failing this then it would be necessary for you to obtain a boundary survey (at your cost) to get a boundary determination. I am trying to be reasonable and sensible about the situation considering custom and practice on the ground and the balance of probabilities here but now is not the time for ambiguous responses if exchange is actually going to take place in a timely manner. We are trying to work through this in a timely manner but our due diligence spending £557 k plus fees will not be compromised because of an exchange deadline that we did not create.

     

    This will also be formally communicated through the solicitors and I look forward to a fully considered and prompt response in due course having actually consulted the Archers and Robinsons."

     

  254. At Ms Morley's request, Freeths forwarded C1's email to the Defendants and to Mr Christopher Robinson, who replied as follows:
  255.  

    a.       Mr Robinson replied on 16 August 2019 -

     

    "Hi Rebecca , I am becoming extremely irritated by the attitude of Mr Byrne who I find rude and offensive. I am not prepared to accept joint ownership of a boundary for which my family has no responsibility as this could incur costs in the future and I'm certainly not going to entertain any liability for keeping the boundary "dog proof". Neither would I wish to have any dealings with Mr Byrne in the future. The ownership of the boundary is as both Rachel and I have stated and I have confirmed this with my Father. If Mr Byrne persists in claiming that our "assertions" are not true then I may well see my Solicitor but not for the purpose of proving the boundary. I really do not want to have this person as a future neighbour given his offensive attitude before he has even purchased the property.

     

    Perhaps a question for Mr Byrne. If he really wants me to prove that I am correct about the ownership of the boundary is he prepared to pay both the legal costs incurred and for my time being involved in a matter which is not of my concern. The best I would offer is a letter from the Solicitor confirming ownership as I do not believe that Mr Byrne has any right to inspect the deeds. I would require these costs to be paid in advance as I have no confidence that Mr Byrne would pay after I have proved that I am correct."

     

    b.      The Defendants replied on 18 August 2019 -

     

    "Rebecca, In response to your email received on 14th August, we most certainly do not agree to joint ownership of the boundary hedges, the boundaries have always been our responsibility[,] we have maintained them (as we have said before) since owning the land and intend do so in the future. We have viewed the documents of our land that Mr. Byrne enclosed and they are no different to the copies we have at home. There is no way we will agree to Mr Byrne viewing our deeds, and if he wishes to pursue this matter further causing us to engage our solicitor we will expect Mr Byrne to pay all costs. I do hope you find a solution to this unfortunate situation."

     

  256. The Defendants and Mr Robinson's positions were communicated to Pickerings on 19 August 2019. C1 responded on 23 August 2019:
  257.  

    "

    ......

     

    • It should not require any legal input from solicitors for the Archers and Robinson's to simply photocopy the relevant pages of their title deeds/documents that confirm their respective positions, failing that they should confirm by email response that their documents do not provide such evidence. This is a matter of the goodwill in their relationship with the Sellers in helping the Sellers sell their property or not as the case may be. I would suggest in the spirit of that transparency that the Sellers should be prepared to share their title documents/conveyancing documents with them as a gesture of that goodwill to enable things to fairly and transparently determined.

     

    • A. Please request from the Sellers the documentary evidence from the Archers and Robinsons that confirm their respective boundary statements that :-

     

    o The Archers have ownership and boundary responsibility for the left and rear Hillsway hedgerow boundary features;

     

    o The Robinsons do not have ownership and boundary responsibility for the right Hillsway hedgerow boundary feature;

                 

    OR

     

    • B. In the event of there being no evidence in the neighbours title deeds/documents that confirm their boundary ownership statements then the neighbours should provide an email response declaring that all their title deeds/documents do not confirm boundary responsibilities for the left, right and rear boundary hedgerows bordering Hillsway. Thereafter the Hillsway [PIF] document should be updated stating that the boundary responsibilities for the left, right and rear boundaries are "Not Known" given that Hillsway's own title and conveyancing documents are also silent on the matter.

     

    For the avoidance of doubt we will not be paying any associated legal or other costs that the Sellers or their neighbours consider necessary to reach a satisfactory conclusion to what a Seller should be expected to know, especially given that a simple photocopying and sharing of any relevant information/evidence will suffice save for confirming as per option B that the information held by the Archer's and Robinsons do not confirm boundary responsibilities for the left, right and rear Hillsway boundary hedgerows.

     

    We are standing ready with all the funds in place to proceed BUT as already advised we will not be exchanging contracts until we are satisfied on the answers in respect of boundary responsibilities between Hillsway, the Archers and the Robinsons and the ONLY answers that would enable us to move to exchange are the provision of confirmed verifiable documentary evidence in A or a neighbours declaration and updated [PIF] as per B above.

     

    Our position has not changed since we advised the same options on lst August 2019. In order for the Seller to confirm the boundary responsibility they are simply asking the Archers and Robinsons with whom I understand they have a good long standing relationship to photocopy relevant information and evidence their position (Option A) or  say that they cannot (Option B). If we receive a response other than A or B then it is clear that the Seller will have decided to end this process which could have resulted in exchange and completion of the £ 557,000 transaction in 1- 2 weeks time in favour of re-listing the property with a greater sales risk from boundary, asbestos and septic tank issues that any estate agent would have a duty to disclose."

     

  258. On 27 August 2019, Freeths emailed Pickerings:
  259.  

    "I have received instructions from my clients this morning who have spoken to the neighbours again.

     

    The neighbours are not willing to provide anything further.

     

    If your clients wish to proceed with this purchase, my instructions are that my clients require exchange of Contracts by 12pm on Thursday 29th August 2019 with completion on 30th September 2019; otherwise the property will be remarketed."

     

  260. Exchange of contracts took place on 29 August 2019.
  261.  

  262. An overall analysis of the contents of the contemporary documents points, in my judgment, decisively in favour of an express, or at the very least an implied, boundary demarcation agreement having been made between the Defendants and the Executors prior to exchange of contracts:
  263.   

    a.       Probate was granted to the Executors on 18 September 2017, which had the effect of vesting the title to Hillsway in the Executors pursuant to s.1(1) of the Administration of Estates Act 1925.

     

    b.      Consistent with my determination of the Southern Boundary line and the Western Boundary line, the PIF signed by the Executors stated that the Southern Hedge was owned by the Defendants and the Western Hedge was owned 50/50 between the Defendants and Hillsway. The PIF also stated that the Northern Hedge was owned by the neighbour.

     

    c.       C1 claimed that the contents of the PIF were not correct. Through pre-contract enquiries, C1 initiated and pursued with increasing vigour a dispute over the ownership of the boundary hedges and notwithstanding that he then had no legal or beneficial interest in Hillsway. He even insisted that the Executors involve the neighbours in seeking to resolve the dispute to his satisfaction (despite the fact that the boundary dispute was not of the neighbours' making and they were not parties to the sale of Hillsway) and which he also made a pre-condition of exchange of contracts.

     

    d.      At C1's insistence, Ms Morley, who unlike her sister and co-Executor remained living at Hillsway, met with or otherwise contacted the neighbours to seek to clarify ownership of the hedges –

     

                                                                         i.       The Defendants confirmed that they owned both the Southern Hedge and the Western Hedge; and

     

                                                                       ii.      Mr Robinson, on behalf of his parents, confirmed that Hillsway owned the Northern Hedge.

     

    e.       However, C1 remained unhappy with the very clarification that he had sought and insisted that (i) the neighbours concede that the disputed hedges were owned 50/50 as between Hillsway and the neighbouring properties, or (ii) the Executors (at their own cost) obtain a boundary survey and (in the absence of agreement) a determination by the Property Chamber, First-tier Tribunal. Despite C1 claiming to be acting reasonably, he was arguing over 50% ownership of the Southern Hedge and the Western Hedge, whilst at the same time conceding 50% ownership of the Northern Hedge. The overall amount of land in dispute was utterly trivial.  

     

    f.        Ms Morley again contacted her neighbours, who refused to make the concessions sought by C1.

     

    g.      C1 then insisted that the neighbours either (i) acknowledge that ownership of the boundary hedges was inconclusive or (ii) (at their own cost) prove to his satisfaction ownership of the boundary hedges as they claimed and by reference to the title documents in their possession, failing which the sale would not proceed. C1 also threatened that, if the sale did not proceed, Hillsway would have to be re-marketed and the Executors would then be under a duty to disclose the very boundary dispute that he had initiated at a time when he then had no legal or beneficial interest in Hillsway, and which disclosure he claimed would adversely impact upon the Executors' prospects of securing another buyer. By doing so, I consider that C1 was seeking to hold the Executors to ransom.

     

    h.      In light of C1's wholly unreasonable, disproportionate and threatening behaviour, the Executors were clearly motivated to enter into a boundary demarcation agreement as "an act of peace, quieting strife and averting litigation." In particular, where:

     

                                                                         i.       C1's behaviour was causing considerable annoyance to the neighbours and with whom Ms Morley had previously enjoyed good neighbourly relations; and

     

                                                                       ii.      C1 threatened to withdraw his offer and that the boundary dispute that he had initiated would have to be disclosed to prospective purchasers when Hillsway was re-marketed.  

     

    i.        As evidenced by the contents of the PIF, the Executors had agreed from the outset, and continued to agree during the pre-contract enquiries, that the Defendants owned the Southern Hedge. In relation to the Western Hedge, on 12 August 2019, Freeths emailed Pickerings to confirm the Executors' agreement that this hedge also belonged to the Defendants. C1 sought to argue that the Freeths' email "was [not] referring to the western hedge as what was being queried was the southern hedge and there is a ditch running along the hedge along the boundary with the Archer's property. This was a singular ditch and a singular boundary not boundaries plural and not boundaries plural as claimed by Ms Morley [in her witness statement]....The western hedge was not being disputed because the [PIF] stated 50/50. C was investigating the left boundary ie. the southern hedge..." However, I do not accept that argument since it is plainly not supported by the contents of the contemporary documents  –

     

                                                                         i.       In his preceding email dated 9 August 2019, C1 stated "The Archers have stated that the left hand and rear hedgerow boundary features are... in their ownership.......As no evidence has been provided by the Archer's or the Robinson's that supports their assertions and the land registry title documentation for Brookfields, Archer's land (to the rear) and Hillsway is silent on boundary ownership then in keeping with boundary convention and the maintenance custom and practice observed it can only be concluded that the left, right and rear hedgerow boundary features are most likely to be jointly owned." Clearly C1 was disputing the Defendants' claim to exclusive ownership of both the Western Hedge and the Southern Hedge.

     

                                                                       ii.      It makes no sense that Freeths in their response dated 12 August 2019 would be referring to the Southern Hedge by reference to a ditch when the most prominent depression lay alongside the Western Hedge.

     

                                                                    iii.       Indeed, C1 clearly understood that Freeths were there referring to the Western Hedge since, in his following email dated 13 August 2019 sent direct to the Executors, C1 stated (with my emphasis added) "[2.] The suggestion made by your solicitor that the Archer's will have seen their own documents is an assumption........ [3.] The reference to the ditch in respect of the Archers relates to the rear boundary alone and not the left hand boundary. The [PIF]1.1 stipulated that the rear boundary was 50/50% and not Archers owned. Are Freeth's now representing the Archer's in arguing a case having not consulted them or sticking to the original [PIF] on the rear of 50/50 ownership which is what I am suggesting but for the right, rear and left."

     

  264. For these reasons, I find that prior to the exchange of contracts, there was a boundary demarcation agreement made between the Executors and the Defendants that the Southern Hedge and the Western Hedge were owned by the Defendants.
  265.  

  266. I have already determined that the Southern Hedge was owned by the Defendants in any event, and so the effect of the boundary demarcation agreement was to transfer to the Defendants that narrow and trivial strip of land running from the centre of the Western Hedge to its eastern side.
  267.  

  268. In addition, applying White v Alder, that boundary demarcation agreement is binding upon the Claimants as successors in title and irrespective of whether or not they had knowledge of it (although in this particular case, and as evidenced by the extensive pre-contract enquiries, I consider that the Claimants knew or ought to have known of the boundary demarcation agreement and chose to proceed with the purchase of Hillsway in any event).
  269.  

  270. As noted at the beginning of this long judgment, this is in essence a dispute between neighbours over ownership of boundary hedges. Had the helpful clarification by the Court of Appeal in White v Alder that boundary demarcation agreements are binding on successors in title been given earlier, rather than shortly before the handing down of this judgment, I would have determined the Alleged 2019 Boundary Agreement first, which would have rendered much of this judgment academic - under CPR r.3.1(2) the court's general case management powers include "decid[ing] the order in which issues are to be tried". As observed by the Court of Appeal "The difficulties in proving a boundary demarcation agreement, even if it is implied rather than express, are likely to be fewer than those encountered in delving back to the original conveyance." Indeed, had White v Alder been decided prior to the costs and case management conference in the present case, the judge conducting that hearing may well have decided to list the Alleged 2019 Boundary Agreement to be determined as a preliminary issue in order potentially to avoid the significant costs incurred in delving back through the conveying history/ instructing the SJE. Under CPR r.3.1(2) the court's general case management powers also include "direct[ing] a separate trial of any issue."
  271.  

    Trespass and injunction

     

  272. Having determined that the Defendants owned the Disputed Hedges, the Claimants' claims (i) in trespass and (ii) for an injunction to prevent further trespass fall away.
  273.  

    Nuisance

     

  274. The Claimants' pleaded claims are:
  275.  

    "[7.] The Defendants, it is alleged, have and continue to materially and unreasonably interfere with the Claimants' comfort and convenience of living through actions in private nuisance as a consequence of :-

     

    a. Mr.Archer, on 9th September 2020, threatening on two separate occasions to chop down the B-C hedge with a chain saw in a malicious attempt to coerce the Claimants to acquiesce to the Defendants' false claim. The Claimants thereafter lived with the prospect of this threat being carried out. The Defendants, thirteen months later, admitted in a solicitor's letter of 27th October 2021 that such a threat had been made.

     

    b. Intentional conduct in holding open a "live neighbour dispute" and false claim after it was the confirmed by solicitor's letter of 27th October 2021 that the Defendants were not going to issue a Letter Before Claim or commence legal proceedings. The Defendants were fully aware that a "live neighbour dispute" is disclosable to a potential buyer and that this could affect the Hillsway property value should the Claimants decide to sell in the future."

     

  276. D1 admitted in evidence that when in conversation with C1 he had made a single threat to chop down the Southern Hedge. D1 said that the threat was borne out of frustration (a frustration apparently shared and articulated by Mr Robinson even before the Claimants purchased Hillsway), but he immediately withdrew the threat. D1 presented as a softly spoken and gentle man, who was visibly upset when taking the oath. It may be that C1 did not hear D1 withdrawing the threat, since it is evident from the video evidence that I have seen that C1 had a tendency to talk over D1; a tendency that continued during C1's cross examination of witnesses. However, ultimately, I do not consider that I have to decide this particular factual dispute between the parties as to whether there was a second threat and/or an  immediate withdrawal of the admitted threat, since it is not disputed that any threat(s) made was/were not carried out.
  277.  

  278. Clerk & Lindsell on Torts 24 Ed. says this
  279.  

    "Nuisance defined

    [19-01] The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. In ordinary speech, smells and smoke and a variety of different things may amount to a nuisance in fact, but whether they are actionable as the tort of nuisance will depend upon a variety of considerations and a balancing of conflicting interests...... Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of......his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.....

     

    Nuisance and trespass

    [19-02] The distinction between trespass and nuisance is the old distinction between trespass and case. Trespass is a direct entry on the land of another, and is actionable per se, without proof of special damage, but nuisance is the infringement of the claimant's interest in property without direct entry by the defendant, and generally actionable only on proof of special damage. For example, to build a wall partly on someone else's property is a trespass, but to build on one's own land a wall which, through disrepair, falls on to another's land is a nuisance. It is a trespass for A directly to discharge water on to B's land, but if water spills from A's land over intermediate land onto B's land this amounts to a nuisance. Such a distinction may be on certain facts an exceedingly fine one. However, the distinction will not normally become vital to the claimant's claim where he can allege and prove special damage. If he cannot prove special damage, then he will have to show an entry by way of trespass. It is a nuisance and not a trespass if the branches of a tree, whether planted or self-sown, growing on the land of one man, overhang his neighbour's land, or if the roots burrow into his land and damage his buildings."

     

  280. Private nuisance is a property-based tort, as opposed to harm to the person, and is concerned with the wrongful interference with the use/enjoyment of a claimant's land. I do not consider that threats to do something, but which are not actually carried out, can constitute an activity that unduly interferes with the use or enjoyment of land sufficient to constitute an actionable private nuisance. Such threats may constitute harassment, but there is no pleaded claim for harassment in the present case.
  281.  

  282. So far as the Claimants' claim that the Defendants held open the "live neighbour dispute", which the Defendants knew would have to be disclosed to any potential buyer and which could affect the value of Hillsway in the event that the Claimants decided to sell their property:
  283.  

    a.       I have already determined that it was C1, at a time when he had no legal or beneficial interest in Hillsway, who first threatened that, if he did not get his own way, the sale would not proceed, but the boundary dispute that he had initiated would have to be disclosed to any prospective purchasers thereby adversely impacting upon the Executors ability to re-market Hillsway.

     

    b.      On the 30 July 2021, and after the Claimants had purchased Hillsway, the Defendants' solicitors wrote to the Claimants:

     

    "...... If you do not accept the boundary analysis set out in our letter of 3 March 2021, please indicate which aspects remain in dispute, setting out your alternative position with full reasons and copies of all evidence on which you intend to rely (including the copy documents we have previously requested and which you have refused to give us).

     

    We also wish to take this opportunity to remind you that until the boundary position is determined, either by agreement between the parties or by order of the court, there remains a live neighbour dispute (which would be disclosable to any potential buyer of either party's land)....."

     

    c.       In his letter dated 13 September 2021, C1 responded (with my emphasis added):

     

    "Given the above circumstances we consider that your clients are completely wasting everybody's time with an absurd and embarrassing claim. It is naive to suggest given the background of your client's conduct, that as a result, engagement can be amicable given that your clients were the aggressor in initiating a claim which has no foundation based upon your client's own information and prior conduct. The impact of such a "live neighbour dispute" and the disclosure to any potential buyer is the consequence of such a claim but that is of no concern to us whatsoever given that we are fully aware of the Misrepresentation Act 1967 and we have no intention of selling our property since we have just retired to this location. Your clients should have given this matter more thought as to the possible consequences of their action. We would suggest given that Brookfields has an agricultural occupancy condition which already significantly reduces its market value then your clients claim would only make matters worse making it more difficult for your clients to remove the condition to improve Brookfields market value. We would further point out that the Limitations Act 1980 places a restriction of 6 years on an accrued cause of action pertaining to trespass."

     

    d.      It is clear from this exchange of pre-action correspondence that it was once again C1, who was seeking to use the fact that the ongoing boundary dispute would be disclosable to any potential purchaser as leverage to get his own way.

     

  284. For these reasons the claims in nuisance are dismissed.
  285.  

    Deceit

     

  286. Civil Fraud, 1st Ed says by way of introduction to the tort of deceit as follows:
  287.  

    "[1-001]

    The tort of deceit (sometimes known as fraudulent misrepresentation) is the actionable wrong most closely identified with the civil law concept of fraud. It is also an area in which "law and morality are inextricably interwoven." Indeed it has been said that "the very notion of deceit with its overtones of wickedness is drawn from the moral world." In essence the tort provides a basis for a person who has been lied to or otherwise deliberately misled to seek redress for harm he has suffered as a consequence.

     

    [1-002]

    The tort itself is reasonably straightforward in its description (though less so in its practical operation). It gives rise to what might be described as a free-standing, autonomous cause of action, which is not dependent on any pre-existing legal relationship between the parties, whether contractual, equitable, or statutory, and is not based on any assumption of responsibility such as to give rise to a common law duty of care. Thus it does not matter for the purposes of establishing a claim in deceit whether the defendant stands in a fiduciary or like relation to the claimant, or whether there can be said to be any sort of proximity between them; indeed, the claim can be made out even when the claimant is wholly unknown to the defendant.

     

    [1-003]

    In order for a claimant to succeed in the tort of deceit he must establish that:

     

    (1)The defendant made a representation which was false.

    (2)The defendant knew that the representation was made and that it was untrue, or was reckless as to its truth or falsity.

    (3)The defendant intended that the representation would induce the claimant to act or refrain from acting.

    (4)The claimant was in fact induced by the representation to act or refrain from acting.

    (5)The claimant thereby suffered loss.

     

    ......

     

    [1-011]

    The second aspect is that any allegation of fraud must be made clearly, unequivocally and with sufficient particularity so that the defendant understands the case he is required to meet. As we note below, the representation which is said to have been made fraudulently will need to be identified with precision (something that is particularly important where the representation is said to be implicit or derived from conduct). As to the mental element of the tort, these requirements do not necessarily mean that the word "fraud" or "dishonesty" has to be used, since the facts alleged may be consistent only with an allegation of fraud; but if those facts are also consistent with innocence, then the pleader must make it plain that fraud is alleged. It bears note that the common formula "the Defendant knew or ought to have known" is not sufficient for these purposes, since it is treated as being a composite allegation of constructive knowledge rather than an allegation of actual knowledge with an allegation of constructive knowledge in the alternative."

     

  288. The Claimants' pleaded claim is:
  289.  

    "[6.] The Claimants submit under tort of deceit that the Defendants have knowingly or recklessly, by emails of 7th and 19th August 2019 and solicitor letters of 17th December 2020 and 3rd March 2021, 29th June 2021 made false statements of fact and a false claim of exclusive ownership and maintenance of the B-C and A-B hedges contrary to the Defendant's knowledge of and reliance on specific title deeds certified in 1984 and 2003 land registrations.

     

    .......

     

    d. The Claimants aver that the Defendants, through the aforementioned false statements of fact...... knowingly and purposely intended and do currently intend to induce the Claimants into a boundary agreement which extends the Defendants rights in contradiction to both parties' title deeds and to the Claimants' detriment, either directly or through acquiescence to the Defendants actions on the ground."

     

  290. The Claimants' claim fails for the following primary reasons:
  291.  

    a.       An allegation of fraud is so serious and potentially harmful that a professional lawyer who advances such an allegation even on instructions, but without reasonably credible material to support the allegation, can be subject to regulatory action.

     

    b.      The Claimants advanced their allegations against the Defendants without any reasonably credible material to support those allegations. The Claimants contended that the Defendants must have knowingly or recklessly made false statements, since those statements contradicted the contents of the conveyances relied upon at the time of first registration of the titles to Brookfields and the Fields to the West. However, that contention is misconceived. For the reasons I have already given, the process of registration is concerned with broad questions of the title to properties, and not with the location of boundaries. Further, I have determined that the descriptions in the parcel clauses of the Brookfields' Conveyances were on their face inconclusive. So far as the Fields to the West, the Claimants relied upon the contents of the root of title conveyance dated 29 September 1896 that was used by D1 for first registration, but again in my judgment that conveyance was inconclusive as it also contained a mixed description by reference to two different sized areas of land. The Claimants' pleaded particulars of the alleged fraud amount to no more than an assertion that any view, which was contrary to their own view, must necessarily be fraudulent. 

     

    c.       As already stated, I found the Defendants to be honest witnesses doing their best to assist the court. It was the Defendants' evidence, which I accept, that the representations of exclusive ownership of the Disputed Hedges made by or on their behalf were made with an honest and genuine belief that those statements were true. The statements were not made recklessly or without caring whether they were true or not.

     

    d.      The statements made by or on behalf of the Defendants were not made with the intention that they should be relied upon. The Defendants' were asserting exclusive ownership in answer to the Claimants' own strenuous claims, made both before and after they had acquired Hillsway, that the Disputed Hedges were jointly owned.

     

    e.       In any event, the Claimants did not rely upon the Defendants' assertions of exclusive ownership of the Disputed Hedges, since they in fact declined to enter into a boundary demarcation agreement proposed by the Defendants' solicitor and chose instead to pursue this litigation claiming joint ownership.

     

    Overall conclusions

     

  292. I declare:
  293.  

    a.       The Southern Boundary line runs along the northern edge of the Southern Hedge such that the Southern Hedge is owned by the Defendants.

     

    b.      The Western Boundary line runs along the eastern edge of the Western Hedge such that the Western Hedge is owned by the First Defendant.

     

  294. The Claimants' claims are dismissed.
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