REF/2005/1838

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

EMYR WYN REES

APPLICANT

and

THE NATIONAL TRUST FOR PLACES OF HISTORIC INTEREST OR NATIONAL BEAUTY

RESPONDENT

 

Property Address: Land at Lyn Y Gadair, Cadir Idris, Dolgellau

 

Title Number: WA267396

 

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Aberystwyth County Court, Edleston House, Queen’s Road, Aberystwyth, Ceredigion SY23 2LP

 

On: 5, 6 and 7 February 2007

 

Site inspection: 6 February 2007

 

 

Applicant’s Representation: Mr Rule of counsel.

Respondent’s Representation: Ms McQuail of counsel.

 

DECISION

 

Alteration of the register –rectification - mistake - neighbouring owners of sheep walk or mountain pasture ancillary to farms – applicant having earlier paper title – respondent registered with first title of part of applicant’s land – respondent relying upon earlier boundary agreement alternatively adverse possession - proprietor in possession not consenting to the alteration.

 

Cases cited: Neilson v Poole (1969) 20 P&CR 909, Epps v Esso Petroleum Co Ltd [1973] 1 WLR 1071, Whitby v Vince (1998) unreported, Burns v Morton [1999] 3 All ER 646, Jones v Stones (1999) 78 P&CR 293, Stephenson v Johnson [2000] EGCS 92, Joyce v Rigolli [2004] EWCA Civ 79, Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058 (Ch) and Albany Construction Company Ltd v Cunningham [2004] EWHC 3392 (Ch).

 

Introduction

 

1. This reference concerns an application by Mr Rees dated 22 June 2005 (“the original application”) to have an area of freehold land (“the overlapping land”) removed from the existing registered title of his neighbour, the National Trust, and added to his own first registered title. The overlapping land consists of some 17 acres of steep mountain side land at Lyn Y Gadair, Cadir Idris, Dolgellau. The land can be described as sheep walk or mountain pasture.

 

2. The National Trust was registered as first proprietor of the overlapping land, together with other land, in 1984 under title number WA267396. The basis of the original application is that at that time Mr Rees had a better paper title to the overlapping land by virtue of a conveyance dated 26 September 1900 (“the 1900 conveyance”) and that the National Trust was registered as first proprietor of the overlapping land by mistake. The National Trust cannot show an earlier paper title to the overlapping land.

 

3. Accordingly, it is said, the register should be altered pursuant to paragraph 5(a) of schedule 4 to the Land Registration Act 2002. This gives the registrar the power to alter the register for the purpose of correcting a mistake. The alteration would amount to rectification within paragraph 1 of schedule 4 to the Land Registration Act 2002, as the correction of the mistake would prejudicially affect the title of the registered proprietor, the National Trust.

 

4. The National Trust objected to the original application and the dispute has been referred to me under section 73(7) of the Land Registration Act 2002.

 

5. At the hearing the National Trust conceded that Mr Rees was entitled to be registered as the proprietor of about 65% of the overlapping land and the dispute narrowed to the remainder, being an area of about 6 acres (“the disputed land”). Notwithstanding that concession, the National Trust’s primary case in respect of the disputed land is that the plan and parcels clause in the 1900 conveyance are so vague that Mr Rees cannot demonstrate any mistake has been made and therefore the jurisdiction to alter does not even arise.

 

6. If that is wrong, the National Trust puts its case as follows:

 

(1) It has acquired title to the disputed land by virtue of a boundary agreement made between the parties’ predecessors in title in the 1920’s or 1930’s. The line of the boundary is marked by the old fence, which is described in paragraph 11 below.

 

(2) Alternatively, it has acquired title to the disputed land by adverse possession.

 

(3) Alternatively, if it has not acquired title to the disputed land in either of these ways, the National Trust relies on paragraph 6(2) of schedule 4 to the Land Registration Act 2002. This provides that, in cases of rectification, no alteration may be made without the proprietor’s consent in relation to land in his possession unless he has by fraud or lack of proper care caused or substantially contributed to the mistake or it would for any other reason be unjust for the alteration not to be made. The National Trust says that at the material time it was in possession of the disputed land.

 

The red land and the blue land

 

7. The National Trust purchased its land from Mr and Mrs Thomas in 1983. They in turn had purchased it in 1980. The National Trust’s registered title WA267396 does not exactly match the area conveyed by either the 1983 or the 1980 conveyances, but nothing turns on this. On the plan annexed the National Trust’s registered title is shown edged in red (“the red land”). It has been measured as 268.95 acres. The overlapping land, which Mr Rees says should not be included within the National Trust’s registered title, is at the western end of the red land.

 

8. On the plan annexed the land which Mr Rees says had been conveyed to his predecessor in title by the 1900 conveyance is edged in blue (“the blue land”). The amount of land conveyed was 132 acres 2 roods and 26 perches (132.66 acres). The overlapping land is at the eastern end of the blue land.

 

Tyn-Y-Ceunant and Dyffrydan

 

9. Historically, the blue land has been part of a farm called Tyn-Y-Ceunant lying immediately to the north and lower down the valley. Mr Rees’ grandfather, Mr John Jones, bought Tyn-Y-Ceunant and the blue land in 1930. After Mr John Jones’ death in 1963, Tyn-Y-Ceunant and the blue land were inherited by Mr Rees’ uncle, Mr Emrys Jones. Mr Rees, now aged 60, has farmed Tyn-Y-Ceunant since leaving school at the age of 16 in 1963. When Mr Emrys Jones died in 2004, Mr Rees inherited Tyn-Y-Ceunant and the blue land. Mr Rees has since been registered as proprietor of Tyn-Y-Ceunant and other land under title CYM225983, but the registration of the blue land within that title awaits the determination of this application.

 

10. Until Mr and Mrs Thomas sold the red land to the National Trust in 1983, the red land had been part of a farm lying immediately to the north and lower down the valley called Dyffrydan. Tyn-Y-Ceunant and Dyffrydan are neighbouring farms. Mrs Thomas, who is now 75 and a widow, remains the owner of Dyffrydan and she has had grazing rights over the red land since the sale of it to the National Trust in 1983. Mrs Thomas’ family had been tenants of Dyffrydan and the red land from the 1930’s. At that time Dyffrydan and most of the red land were owned by Mr Morris Edwards, although what claim he had to the overlapping land is unclear. His widow sold Dyffrydan and the red land to Mr Nightingale in 1949. Mr Nightingale died in 1977 and Dyffrydan and the red land were sold to Mr and Mrs Thomas in 1980.

 

The fences

 

11. Around 70-75 years ago a fence was erected running north to south within the overlapping land (“the old fence”). This had the practical effect of separating the sheep belonging to Tyn-Y-Ceunant which grazed on the blue land from the sheep belonging to Dyffrydan which grazed on the red land. After the erection of the old fence the sheep belonging to Tyn-Y-Ceunant grazed to the west of it, whilst the sheep belonging to Dyffrydan grazed to the east of it. The disputed land is the land to the east of the old fence but within the overlapping land. This is coloured orange on the plan annexed. It is now conceded that the land to the west of the old fence within the overlapping land should be registered within Mr Rees’ title.

 

12. Over the years the old fence became more and more decayed. In 2002 Mr Rees erected a new fence (“the new fence”) to the east of the old fence nearer to the eastern edge of the blue land but still short of the boundary. The new fence lies within the disputed land. Mr Rees had asked the National Trust to co-operate with him in the erection of a new fence but this request was refused as the National Trust was disputing where the boundary lay.

 

13. The National Trust says that the erection of the old fence was the result of a boundary agreement between the parties’ predecessors in title, whereby from that time on the old fence marked the correct boundary between the mountain pasture belonging to Tyn-Y-Ceunant and the mountain pasture belonging to Dyffrydan. Mr Rees says it would not be right to infer such an agreement on the limited evidence now available but that it was simply a practical arrangement as to where the fence should go in difficult mountain terrain and did not extend to altering the boundaries.

 

The issues

 

14. The issues I have to decide are as follows:

 

(1) Has Mr Rees shown there is a mistake on the register?

 

(2) If yes, has the National Trust title to the disputed land by virtue of either:

 

(a) a boundary agreement?

 

(b) adverse possession?

 

(3) If the National Trust has not acquired title in either of these ways, should the register be rectified in respect of the disputed land?

 

The expert witnesses

 

15. Mr John Jones, a chartered surveyor instructed by Mr Rees, prepared a report in 2002 and gave oral evidence. Mr Marsden, a chartered surveyor instructed by the National Trust, prepared a report in 2004. As Mr Marsden was abroad at the time of the hearing, Mr Edwards, who had plotted the overlapping land for purposes of Mr Marsden’s report, gave oral evidence. The expert evidence was extremely helpful to me and did not conflict in any material way.

 

The lay witnesses

 

16. Mr Rees gave oral evidence. The National Trust called:

 

(1) Mr Neale, a property manager employed by the National Trust, with responsibility for the area in which the disputed land is situated.

 

(2) Mr Arthur Thomas, the son of Mrs Thomas, who is now aged 54 and who has farmed Dyffrydan and the red land since leaving school at the age of 16 in 1968.

 

17. A witness statement was served from Mrs Thomas. Sadly she has recently experienced a very painful bereavement and felt unable to come to the hearing. I offered to take her evidence at Dyffrydan during the site visit but equally she did not feel up to this. Accordingly her evidence has been admitted under the Civil Evidence Act 1995.

 

Has Mr Rees shown there is a mistake on the register?

 

18. In my judgment Mr Rees has shown that there was a mistake made when the National Trust was registered with title to the overlapping land in 1984. At that time Mr Emrys Jones had a good paper title to the overlapping land by virtue of the 1900 conveyance and the National Trust was not then able to, and still cannot now, demonstrate a better title.

 

19. The history is as follows. Both Tyn-Y-Ceunant and the blue land were put up for sale as a single lot at auction in 1866. The blue land was then described as being 132 acres 2 roods and 26 perches (132.66 acres). There is a clear plan attached to the auction particulars showing the blue land at a scale of 8 chains to 1 inch. It is not known what happened at the auction but by the 1900 conveyance Tyn-Y-Ceunant and the blue land, together with another farm, were conveyed by the executors of Mr William Fooks QC to Mr William Jones.

 

20. The parcels clause in the 1900 conveyance refers to Tyn-Y-Ceunant and continues:

 

“but including therein and as part thereof One hundred and thirty two acres two roods and twenty six perches of land formerly part of Common and Waste land which were allotted to John Edwards by the Award made under or in virtue of the Dolgellau Enclosure Act made and passed in the fifty first year of the reign of George III Chap 162 and entitled An Act for inclosing lands in the parishes of Dolgelley and Llangelynin commonly called Celynin in the County of Merioneth …”

 

21. The land conveyed was said to be more particularly described in the schedule. The schedule includes a reference to a sheep walk or allotment coloured green on the plan of 132 acres 2 roods and 26 perches. The plan is identical to the one used at the auction in 1866, and the blue land is coloured in green at the lower right hand corner. However, the plan was said to be “for the purpose of reference only and without any guarantee by the Vendors as to the accuracy thereof delineated and coloured green and pink in the map or plan herewith annexed and referred to by the said Schedule”.

 

22. Despite Ms McQuail’s submissions, I do not see how that disclaimer can affect the accuracy of the plan if it can otherwise be shown that the plan was accurate. Mr Marsden has done just that. He has found 3 features on the 1900 conveyance plan which can be found on the Ordnance Survey 1/10,560 and 1/10,000 maps. These are the parish boundary, a stone wall and a triangular field with a rectangular building in it. By reducing the 1900 conveyance to 1/10,000 and by enlarging the 1/10,560 plan to 1/10,000, it is possible to overlay the plans and most of the features overlay. Moreover when the 1900 conveyance plan is scaled to 1/10,000, the blue land measures 132.96 acres, which is a discrepancy of less than 1%.

 

Has there been a boundary agreement?

 

23. As the issue of the boundary agreement emerged at the hearing, counsel were only able to cite a passage from Jourdan’s Adverse Possession and Lawtel headnotes of the Court of Appeal decisions in Whitby v Vince (1998) unreported and Stephenson v Johnson [2000] EGCS 92.

 

24. The passage from Jourdan (paragraph 33-07) reads as follows:

 

“Where adjoining owners agree on the location of a boundary, their agreement will be given effect to. A boundary agreement which takes the form of agreeing where boundaries are located is presumed not to convey land and therefore is not a “contract …to convey” within the meaning of the Land Charges Act 1925, s10(1). Such an agreement is treated as identifying on the ground what the documents describe in words or delineate on plans (Neilson v Poole (1969) 20 P&CR 909, Burns v Morton [1999] 3 All ER 646). Such an agreement need not, therefore, comply with the formalities required for contracts to create or dispose of an interest in land”.

 

25. I have since the hearing read Emmett on Title paragraph 17.011.1, Neilson v Poole, the full report of Whitby v Vince, Jones v Stones (1999) 78 P&CR 293, Burns v Morton, the full report of Stephenson v Johnson, Joyce v Rigolli [2004] EWCA Civ 79, Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058 (Ch) and Albany Construction Company Ltd v Cunningham [2004] EWHC 3392 (Ch).

 

26. In a number of these cases there is an issue as to whether the agreement reached was one for the conveyance of land or one which merely demarcated the boundary. But the dispute here is not really of that nature. The dispute is whether the agreement was concerned with the positioning of the boundary or simply with the location of a fence, which would not in itself be determinative of the boundary.

 

27. On one side of the line is Whitby v Vince which concerned a dispute as to the correct boundary between the gardens of 2 Suffolk cottages. The land had been in common ownership until 1948. The 1948 conveyance showed the boundary in a position which the defendant said was determinative. The claimant said that the position of the boundary was different and was along a line of conifers planted by agreement between the parties’ respective predecessors in title. The parties to this agreement gave evidence. The Court of Appeal held that those parties had not been engaged in or even purportedly engaged in resolving a dispute between them as to where their true boundary lay. Rather, they were engaged in a friendly neighbourly exercise of one neighbour taking over responsibility from the other of the task of clearing the brambles, compost and other muck in the area in question, and in the process planting a neat conifer hedge between the 2 pieces of land. Accordingly, the boundary was still as shown on the 1948 conveyance.

 

28. On the other side of the line is Stephenson v Johnson which concerned a dispute as to the correct boundary between 2 substantial properties in Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The defendants said that the position of the boundary was different and was along the line of a fence erected by the claimants’ predecessor, which boundary had been impliedly agreed by the parties’ respective predecessors in title. The Court of Appeal held that those parties must be taken to have agreed that the fence represented the boundary. The judge had been entitled to have regard to a number of matters, including certain fencing covenants in the conveyance to the defendants, the fact that members of the same family were involved with both properties and to the whole course of the parties’ conduct.

 

29. It is common ground that in the 1930’s an agreement was reached between Mr John Jones, the owner of Tyn-Y-Ceunant, and Mr Morris Edwards, the owner of Dyffrydan, as to the position of the old fence. It is also common ground that for many years after that the old fence was jointly maintained. The issue I have to decide 70-75 years later is whether that agreement was intended to position the boundary between these neighbouring properties along the old fence or was simply an agreement as to where the fence should conveniently be located without intending to affect the position of the boundary between these neighbouring properties.

 

30. A particular difficulty in this case is that the evidence as to exactly what happened is very sketchy and none of it is first hand.

 

31. Mrs Thomas says in her witness statement that in the 1930’s her father-in-law, Mr TA Thomas, leased land from Mr Morris Edwards the owner of Dyffrydan. In paragraph 4 she says:

 

“I can recall that my husband told me that the land was measured and the boundaries set in the 1930’s. He told me that a fence had been erected along the Dyffrydan mountain boundary.”

 

In paragraph 8 she says:

 

“The “old fence” was erected at some time in the 1920’s by Mr John Jones of Tyn-Y-Ceunant … and Mr Morris Edwards of Dyffrydan. At the time of the erection of the fence, Mr [John] Jones owned the land which is now farmed by Mr Emyr Rees, whilst Mr [Morris] Edwards owned the land now in the ownership of the National Trust. It would have been customary at this time for the fence to have been erected with the agreement of both the neighbouring land owners. It would, of course, be necessary for the land owners to agree the precise location of the boundary before constructing such a fence.”

 

32. Although Mrs Thomas refers to the old fence being erected in the 1920’s in one place and in the 1930’s in another, it is more likely to have been the 1930’s, as Mr John Jones did not become the owner of Tyn-Y-Ceunant until 1930. I do not understand it to be suggested that Mrs Thomas’ husband, Mr William Thomas, was old enough to have participated in what was taking place. The agreement was made between Mr Morris Edwards as owner of Dyffrydan and Mr John Jones. Mr William Thomas’ father, Mr TA Thomas, who leased Dyffrydan in the 1930’s, must have heard of the agreement from Mr Morris Edwards. Mr William Thomas must have heard of the agreement from his father, Mr TA Thomas. Mrs Thomas heard of the agreement from her husband, Mr William Thomas. If Mrs Thomas had given oral evidence this would have been treble hearsay. It has come to me as quadruple hearsay.

 

33. In his oral evidence Mr Rees said he treated the old fence as the boundary line. He said that his uncle, Mr Emrys Jones, always said that the old fence was a bit short of the boundary and thought that Mr Morris Edwards had moved the pegs in the 1930’s. But again, I do not understand it to be suggested that Emrys Jones was old enough to have participated at the time in what was taking place. Moreover, Mr Rees also said that fences on mountains are not erected in the same way that fences are erected in fields. Because of the nature of mountain land and the rocky terrain it is common knowledge amongst farmers that fences may not reflect the true boundary. In other words, they are put up in the most appropriate place topographically.

 

34. This was corroborated by Mr John Jones, the surveyor called by Mr Rees, in his oral evidence. He said that on a mountain one could not expect the fence to be on the exact line because of the topography. Whilst farmers agree to give and take, if they fell out you would have to seek the real boundary.

 

35. Mr Arthur Thomas started farming at Dyffrydan and on the red land in 1968 at the age of 16. At that time the old fence was still as stock proof as mountain fences ever are. He regarded it as a boundary fence and the cost of repairs were shared between Tyn-Y-Ceunant and Dyffrydan.

 

36. Ms McQuail submits that on these facts I should infer that a boundary agreement has been reached. She relied on Stephenson v Johnson. Mr Rule, on the other hand, says that we simply do not know why the fence had been put there. It would be unsafe to rely on Mrs Thomas’ evidence which is multiple hearsay and which has not been tested in cross-examination. It is at least as likely that the old fence was put up to separate the neighbours’ live stock in difficult terrain rather than to settle where the boundary lay.

 

37. Mr Rule relied upon the fact that in 1971, when Mr Nightingale was still the owner of Dyffrydan and the red land, Mr Nightingale had applied to be registered with rights of common over the red land and Mr Emrys Jones had objected to part of that application. The objection was on the basis that the disputed land was not common land at the date of registration. In 1976 the Commons Commissioner heard this objection and Mr Nightingale did not oppose the objection.

 

38. I do not consider that this in itself assists me as the question of the ownership of the disputed land. The dispute before the Commons Commissioner was far more esoteric in its nature, and it would not be right for me to draw any inferences from it.

 

39. Mr Rule made, however, a more powerful submission when he emphasised the amount of land in dispute. It is not likely that Mr John Jones would have simply given up ownership of about 6 acres of mountain. When this is borne in mind it is much more likely, he says, that the agreement was where to locate the fence in difficult topography.

 

40. I have come to the conclusion that Mr Rule’s submissions on this issue are to be preferred. On the evidence before me I conclude that the agreement was as to where a fence should be located and not to where the boundary should be.

 

Adverse possession

 

41. On my finding that the parties had agreed where the fence was to be located, any use made of the disputed land for grazing by the owners of Dyffrydan was with the consent of the owners of Tyn-Y-Ceunant, so no question of adverse possession arises.

 

Proprietor in possession

 

42. In cases of rectification, paragraph 6(2) of schedule 4 to the Land Registration Act 2002 provides that no alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless:

 

(a) He has be fraud or lack of proper care caused or substantially contributed to the mistake, or

 

(b) it would for any other reason be unjust for the alteration not to be made.

 

43. Section 131(1) of the Land Registration Act 2002 provides that land is in the possession of a proprietor of a registered estate in land if it is physically in his possession. By section 131(2), land in the possession of a tenant is to be treated for these purposes as in the possession of the landlord, and land in the possession of a licensee is to be treated for these purposes as in the possession of the licensor.

 

44. Mrs Thomas has at all relevant times until 2002 been either the tenant or the licensee of the National Trust in the possession of the disputed land. Until about the late 1970’s/early 1980’s the old fence had effectively separated the disputed land from the part of the blue land actually used by Tyn-Y-Ceunant. The evidence is that by the late 1970’s/early 1980’s the wire had become broken and some of the poles had gone. But Mrs Thomas continued to graze her sheep on the disputed land until 2002. She never discontinued her possession nor was she dispossessed prior to 2002. She says indignantly in paragraph 5 of her witness statement:

 

“The new fence which Mr Rees has put up means that he has pinched a lot of Dyffrydan mountain land …”.

 

45. I find that the National Trust was not the owner of the disputed land at the time of its registration as proprietor in 1984. But I accept Ms McQuail’s submission that until the new fence was erected in 2002 the National Trust was (through Mrs Thomas) in possession of the disputed land.

46. During closing submissions I suggested to Ms McQuail, having seen some of the 1983 conveyancing documents, that the National Trust might have contributed to the mistake. She rightly pointed out that this was not a point which had hitherto been taken against her, that such an allegation would normally be pleaded in advance and that she had not called the witnesses who could have dealt with such an allegation. I thereupon accepted that this was not a point to be taken against her for the first time in closing submissions.

 

47. I also accept, following the reasoning of Templeman J in Epps v Esso Petroleum Co Ltd [1973] 1 WLR 1071 at pages 1077H to 1078B, that I should ignore the erection of the new fence in deciding whether the National Trust is in possession.

 

48. Does the fact that Mr Rees has erected the new fence amount to a reason why it would be unjust for the alteration not to be made? As I understand it the new fence was erected with the assistance of grant monies and involved the materials being brought in by helicopter. Mr Rule argues that Mr Rees was driven by the need to make a living to act when he did and in the manner that he did.

 

49. Whilst I have a degree of sympathy for Mr Rees on this point, the fact remains that he took matters into his own hands before the issue had been determined judicially. He unilaterally moved the boundary when he knew from his own surveyor’s report that the National Trust had, albeit mistakenly, acquired title to the disputed land. He also knew there was a dispute with the National Trust.

 

50. In all the circumstances I do not consider that, in respect of the disputed land, it would be unjust for the alteration not to be made. So the register will be altered in respect of that part of the overlapping land conceded by the National Trust but not in respect of the disputed land.

 

Conclusion

 

51. I will therefore direct the Chief Land Registrar to give effect to the original application only in so far as it affects the overlapping land to the west of the old fence and not in so far as it affects the disputed land.

 

52. Costs usually follow the event. However, in this case each side has succeeded in part and I will invite each side to make representations as to what order for costs should be made. Such representations should be made in writing and served on the other party and the Adjudicator within 14 days of the receipt of this decision. At the request of the parties I shall extend the time for seeking permission to appeal until 14 days after receipt of my further decision as to who should bear the costs.

 

 

 

Dated this 5th day of March 2007

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY