REF/2010/0205

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1) WILLIAM GARDINER PATON

and

(2) TINA SHARON PATON

 

APPLICANTS

 

and

 

ADRIAN TODD

 

RESPONDENT

 

Property Address: Plot 1, Glebe Yard, Northlew, Okehampton EX20 3PA

Title Number: DN514864

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

ALTERATION OF REGISTER- RECTIFICATION- WHETHER APPLICANTS HAVE PAPER TITLE TO DISPUTED STRIP- APPLICANTS NOT HAVING PAPER TITLE BUT RESPONDENT NOT SHOWING PRE-REGISTRATION TITLE TO THE DISPUTED LAND- WHETHER REGISTER SHOULD BE RECTIFIED

 

Cases referred to

 

Holmes v. Bellingham (1859) 7CBNS 329

Burton and Bamford v. Messrs Walker and Others Adjudicator to HMLR REF/2007/1124

 

 

 

1. Northlew is a charming village in the North Devon countryside. There are a number of old thatched cottages in the village, of which Clome Cottage is one. Mr and Mrs Paton live at Clome Cottage. Clome Cottage fronts onto Queen Street. Queen Street runs north-south and Clome Cottage is on the west side. Queen Street at its southern end joins Station Road. Clome Cottage is the most southerly house on the west side of Queen Street. To the rear of Clome Cottage there is a yard called Glebe Yard. It is owned by Mr Todd. Title to Glebe Yard was first registered at HM Land Registry on 2 December 2004. It is registered under title number DN514864. Mr Todd was registered as proprietor on 30^th June 2005. The transfer was made on 31 March 2005. There is an access to Glebe Yard from Queen Street over a strip of land to the immediate south of Clome Cottage. That strip is included in title number DN514864. Mr and Mrs Paton do not believe the strip should be included in that title. They say that it was conveyed to them with the conveyance of Clome Cottage on 1^st May 1981. Mr and Mrs Paton applied to HM Land Registry to rectify the register to title number DN514864 by removing the strip. The strip is shown on the plan accompanying the case summary prepared by HM Land Registry edged red.

 

2. The parties agreed that the Adjudicator should determine the matter without a hearing. I inspected the site in the presence of Mr and Mrs Paton and Mr Todd’s solicitor. I have had the benefit of written submissions from Mr and Mrs Paton and from Mr Todd’s solicitor. Both parties saw a draft of this Decision and made further written submissions following consideration of the draft. I have taken into account those further submissions when preparing this, the final version of the Decision.

 

3. Mrs Paton told me at the site visit that there is a dispute between the parties as to what is the exact line of the boundary between the strip and Clome Cottage. The boundaries shown on the title plan are general boundaries. A general boundary does not determine the exact line of the boundary – see section 60 Land Registration Act 2002. There is a procedure under that section for HM Land Registry to determine the exact line of the boundary but so far as I am aware, there has been no application to HM Land Registry to determine the exact line of the boundary. Certainly, no such application has been referred to the Adjudicator. In those circumstances, I am unable to resolve the dispute as to the exact line of the boundary.

 

4. The registrar has power under paragraph 5 of Schedule 4 to the Land Registration Act 2002 to alter the register. That power includes a power to alter the register for the purpose of correcting a mistake. Alteration of the register which involves the correction of a mistake and which would prejudicially affect the title of a registered proprietor is referred to in the schedule as “rectification”. Mr and Mrs Paton allege that there is a mistake; correction of that mistake would prejudicially affect the title of Mr Todd by removing from his title some land of which he was the registered proprietor. The application that Mr and Mrs Paton make is therefore one for rectification of the register. Paragraph 6 of Schedule 4 contains important provisions as to the power of the registrar to alter the register in a way which amounts to rectification. I shall refer to those provisions below.

 

5. The matters for me to determine are as follows,

(1)   whether there is a mistake on the register of title DN514864;

(2)   whether Mr and Mrs Paton would be entitled to be registered as proprietors of the strip but for the inclusion of the strip within title number DN514864;

(3)   if they are not, whether Mr and Mrs Paton are entitled to apply for rectification of title DN514864; and

(4)   if so, whether the register should be rectified having regard to the provisions of paragraph 6 of Schedule 4 to the Land Registration Act 2002.

 

History of Title to Clome Cottage

6. Mr and Mrs Paton produced an abstract of title of James Blatchford to land at Northlew. The abstract is not dated. It contains an abstract of an indenture dated 6^th October 1897 made between Robert, Agnes and Anna Bayly, Marianne Daman and Elizabeth Venning and James Blatchford whereby there was conveyed to James Blatchford

“All that close of land with the Dwellinghouse known as Clome Cottage Pigshouse and shed erected thereon numbered on the Ordnance Survey map part of 508 containing 4 perches of land or thereabout … for some years past in the occupation of the said James Blatchford as tenant”.

I have not been provided with a copy of the Ordnance Survey map for Northlew in existence as at October 1897.

 

7. The same land was conveyed to Stephen Blatchford by the personal representative of James Blatchford by an Indenture dated 7^th August 1911. This appears from an abstract of the title of Stephen Blatchford to Clome Cottage provided by Mr and Mrs Paton.

 

8. Stephen Blatchford conveyed Clome Cottage to Thomas Wooldridge by an Indenture made on 23^rd November 1918. The same description of the parcels conveyed was used as was used in the deed of 7^th August 1911 except that the following words were added

“(but not including in the assurance hereby made the piece of garden ground being a portion of Bolland Garden with the blacksmith shop erected thereon)”.

 

9. Thomas Wooldridge conveyed Clome Cottage by way of gift to Thomas John Wooldridge by conveyance made on 28^th June 1933. He used the same basic description of the land conveyed, the parcels clause reading

“All That close of land with the dwellinghouse known as Clome Cottage Pigs house and shed erected thereon numbered in the Ordnance Survey Map part 508 containing four perches of land or thereabouts … lately in the occupation of the Grantor”.

 

10. John Wooldridge conveyed Clome Cottage to Margaret Minnie Pook by a conveyance dated 4^th May 1950. The land conveyed was described in the same words as in the 1933 conveyance except that it was said to be in the occupation of R.B. Strong. The conveyance included the following recital

“The said property was on the first day of July One thousand nine hundred and forty eight and up to the date of these presents has continued to be used as a single private dwelling house with outbuildings and curtilage and for such other purposes as such user as aforesaid would authorise under or by virtue of the Town and Country Planning Act 1947”.

The consideration paid was £112 50/.

 

11. Margaret Minnie Pook conveyed Clome Cottage to Richard Westlake by a conveyance dated 21^st May 1950. The same form of description of the land conveyed was used except that the land was described as being “late in the occupation of Mrs Strong but now unoccupied”. The consideration paid on this occasion was £600.

 

12. Richard Westlake died on 27^th December 1954. His executor, Leslie Thomas Frank Mansfield assented to the property conveyed to Richard Westlake by the conveyance dated 21^st May 1951 vesting in Lilian Phoebe Beatrice Mansfield.

 

13. Lilian Phoebe Beatrice Mansfield conveyed Clome Cottage to Michael Challenger on 15^th September 1978. The parcels clause, instead of reading “all that close of land” as the earlier conveyances had read, stated as follows

“ALL THOSE pieces of land with the dwellinghouse known as Clome Cottage and the shed erected thereon situated in the village and Parish of Northlew in the said County of Devon being part of number 508 on the Ordnance Survey Map for the said Parish and for the purpose of identification only shown on the plan attached hereto and thereon edged in red”.

There is no mention of the pigsty or of the area of the land conveyed. The plan attached to the conveyance shows two rectangular areas edged in red. The plan is on a small scale but some rough information can be made out. The larger of the two rectangular areas is Clome Cottage and its immediate curtilage. The area does not appear to include the disputed strip. The second rectangular area appears to be the approximate site of a now demolished building.

 

14. Michael Challenger is the immediate predecessor in title of Mr and Mrs Paton. He conveyed to Mr and Mrs Paton by a conveyance dated 1^st May 1981

“FIRSTLY ALL THOSE pieces of land with the dwellinghouse known as Clome Cottage and the shed erected thereon situated in the village and Parish of Northlew in the said County of Devon being part of number 508 on the Ordnance Survey Map for the said Parish and for the purpose of identification only shown on the plan numbered 1 attached hereto and thereon edged in red”.

The plan with this conveyance is identical to the plan to the conveyance to Mr Challenger.

 

15. Mr Challenger also conveyed to Mr and Mrs Paton by the same conveyance a piece of land adjoining to the west the smaller of the two rectangular areas shown coloured red on the plan numbered 1 attached to the conveyance. This western piece of land is shown for identification purposes only on the plan numbered 2 attached to the conveyance. Measurements for this piece of land appear on that plan.

 

16. Mr Challenger acquired this western piece of land from Fernley Walter Ernest Bater by conveyance made on 10^th July 1980. Mr and Mrs Paton have produced an examined abstract of the title of Mr Bater to the western piece of land. Mr Bater acquired it as part of a larger area of land conveyed to him by Bryan William John Dufty and Walter Benjamin Dufty by a conveyance made on 9^th August 1967. Messrs Dufty acquired land measuring 17 acres and 36 perches, including the western piece of land from Clement Andrew by conveyance made on 15^th October 1960. As appearing from the abstract, this conveyance described the land conveyed as

“ALL THOSE pieces or parcels of land (formerly forming part of the Glebe Lands belonging to the Rectory of Northlew) with the buildings thereon situate in the Parish of Northlew in the County of Devon containing in whole 17 acres 36 perches or thereabouts and in the occupation of the Vendor ALL which property is more particularly described in the 1^st Schedule hereto and is for the purpose of identification only delineated on the plan annexed hereto and thereon edged with red such Schedule and plan being taken from or founded on the OS Map (.. Edn) 25 inch scale for the District of the said Parish”.

It is not clear whether the 1^st Schedule was abstracted in full. As it appears on the abstract, it mentions only an area of land estimated at .900 acres and forming “Pt.343”. The plan with the abstract does not appear to show all the 17 acres and the red line does not encircle any area of land. However, it does appear to be intended to delineate land including Glebe Yard but excluding the strip.

 

History of Title to Glebe Yard

17. The title to Glebe Yard, including the strip, was first registered on an application of the person representatives of the late Rita Eleanor Bater made on 1^st December 2004. The plan which accompanied the application for first registration showed the same area of land as appears on the title plan. The root of the title of Rita Eleanor Bater’s estate to Glebe Yard was the conveyance made on 17^th June 1966 between Bryan William John Dufty and Walter Benjamin Dufty as vendors and Fernley Walter Bater as purchaser. The land conveyed was described as follows

“ALL THOSE pieces or parcels of land situate in the Parish of Northlew in the County of Devon being part of the fields or closes of land numbered Three hundred and forty two and Four hundred and nineteen on the Ordnance Survey Map ( Edition) Twenty Five inch scale for the District of the said Parish of Northlew ALL which said pieces or parcels of land are for the purpose of identification only delineated on the plan hereto annexed and thereon coloured pink and brown”.

The plan to the conveyance is a sketch plan and obviously not a copy of any Ordnance Survey plan. The coloured area is shown as not including the strip but having as its eastern boundary what appears to be a representation of the rear or western wall of Clome Cottage and a straight line drawn between the south western corner of Clome Cottage and the north eastern corner of a building shown to the south, being a building to the west of the strip. “Part 342” is written on the eastern part of the coloured area and “Part 419” is written on the western part.

 

18. Title to Glebe Yard was vested in Mrs Bater by an assent made by the personal representatives of Fernley Walter Ernest Bater on 3^rd December 1991. The land was described in the schedule to the assent as follows

“ALL THAT piece or parcel of land or yard together with the barn erected thereof or on some part thereof and known as The Glebe Yard Northlew and shown coloured green on plan “A” annexed hereto” .

The area shown edged green on plan A (no area is coloured green) does not include the strip. The green edging runs along the rear of Clome Cottage and continues in a straight line to the south of Clome Cottage before turning east to delineate a small toe of land to the south of the strip, west of Queen Street and appearing to adjoin Station Road in the south east.

 

19. None of the documents produced to me show that the personal representatives of Mr Bater had a paper title to the strip at the time of first registration of Glebe Yard.

 

20. Mr Todd acquired a registered title to Glebe Yard by a transfer dated 31^st March 2005 from the first registered proprietors, the personal representatives of Mrs Bater.

 

Other Documentary Evidence

21. Mr and Mrs Paton produced a copy of the will of James Blatchford made on 12^th May 1910 and the grant of probate of that will dated 13^th January 1911. The will includes a devise to Stephen Blatchford of

“Clome Cottage and my Blacksmith Shop and my part of the Garden which adjoins my Blacksmith Shop at Lower Bolland”

They also produced a valuation of James Blatchford’s property made for the purpose of the Finance Act 1910. The document records that the property was inspected on 6^th July 1911 and the particulars, notes and description made on inspection read as follows

“Cottage (stone cob and thatch) in village of North Lew

Kitchen, back kitchen and larder with 2 rooms over

Two small outbuildings (one adjoins another property)

Pasture field Ord No. 239 – Area 2a. 2r.2p.

Blacksmith shop and strip of garden ground at rear”

 

Maps

22. Mr and Mrs Paton have produced copies of a number of maps.

(1) The first in time is dated 1843. It shows two attached buildings on Station Road, the eastern of the two being at the junction of Station Road and Queens Road. A line of the sort that appears elsewhere on the map to depict a fence, is drawn between the south western corner of what appears to be Clome Cottage and the northern wall of the eastern of the 2 buildings on Station Road.

(2) They also produced a copy of the Ordnance Survey map for 1885. It shows a building on the north side of Station Road near to the junction with Queens Road. That building is shown as made up of four parts. To the south there is a shallow section adjoining Station Road. Behind or to the north is a deeper section adjoining Glebe Yard. At the western end, is a narrow section running between Station Road and Glebe Yard. The eastern end of the building is a small section appearing roughly square in plan set back from Station Road and being much less deep than the section adjoining it to the west. The eastern section appears as a small rectangle similar in shape and location to the smaller of the two rectangles shown edged red on the plan of the conveyance to Mr Challenger made on 15^th September 1978. This structure is referred to in the written submissions made by the parties as the “cob shed” and I shall use that term in this decision. The map shows a gap between the north eastern corner of the wider section of this building and the south western corner of Clome Cottage. There appears to be a solid line drawn across this gap. Two parallel dashed lines indicating a track run from this gap in a westerly direction through Glebe Yard and then through a narrow strip of land before coming to an end at the boundary with parcel number 345. Glebe Yard and the narrow strip to the west through which the track runs is given the parcel number 342. The map appears to show the strip as part of an open area adjoining or even forming part of Queen Street.

(3) On the Ordnance Survey map for 1955 there is no material difference in the depiction of Clome Cottage, the strip and the eastern part of Glebe Yard from that on the 1885 map. The only difference is that the lines on the 1885 map showing a track through Glebe Yard do not appear on the 1955 map.

(4) There are some differences between the depiction of the area on the 1955 map and that on the 1977 Ordnance Survey map. On the 1977 map all that is shown as remaining of the building on Station Road is the shallow southern section adjoining Station Road and the cob shed. The eastern section appears to be free standing save that the southern corner adjoins the shallow southern section. A straight line is drawn between the south western corner of Clome Cottage and the north western corner of the cob shed. A curved single dashed line runs in an arc between the south eastern corner of the shallow building adjoining Station Road around land to the east of the cob shed to approximately the north western corner of that building.

 

Photographs

23. Mr and Mrs Paton produced a number of photographs.

(1) They produced an aerial photograph in the form of a postcard sent in about 1930. Part only of the side of Clome Cottage is visible in the photograph. Part of the chimney breast and the side to the right of the chimney breast is visible. The area to the right of the chimney breast is not visible at all. However, so much of the strip as can be seen, namely that part immediately adjoining Queen Street does appear to be covered in vegetation and there does appear to be an access from Clome Yard to the side of a building lying between Clome Yard and Station Road, though whether this opening gives access onto Station Road is obscured by the roof of a building on the other side of Station Road. Mr and Mrs Paton submitted that this photograph shows that there was no access at this time from Queen Street into Glebe Yard via the strip. I am unable to accept that the photograph, even when magnified, shows whether or not there was any such access. The vegetation might suggest that there was no access but it is consistent with there being an access that had not been used so as to greatly disturb the appearance of the vegetation in the period prior to the taking of the photograph. Mr and Mrs Paton also submitted that two straight lines are visible and are the wattle hurdle structure used to house pigs. Though I accept that it is possible to make out two straight lines at right angles to the side wall of Clome Cottage, it is not clear from the photograph what they are. To say that they represent wattle hurdles is mere speculation.

(2) A photograph in the form of a postcard sent in 1930 shows part of the side and the front of Clome Cottage. Mr and Mrs Paton submitted that the photograph showed at its the extreme left hand side the woven hurdle structure of housing for pigs. I do not accept that it is possible to tell from the photograph that what can be seen on the extreme left of the photograph is a woven hurdle. All that can be seen is a few twigs. Mr and Mrs Paton have said that the photograph does not show the gate or gatepost at the side of Clome Cottage that is shown in later photographs. However, the photograph does not show the area where the gate and gatepost are visible in the later photographs. The picture stops short of where the gatepost and gate appear in the later photographs. The photograph does show that an area of land at the front and to the side of the chimney breast of Clome Cottage was enclosed by a hedge and thereby separated from the strip. The surface of the ground to the side of the hedge running along beside the chimney breast and to the front corner of Clome Cottage is visible. It appears to be the same surface material as is visible in Queen Street, namely a rough stone and soil surface of the type often found on roads before tar macadam was laid.

(3) An aerial photograph taken by the RAF in 1946 shows part only of the strip apparently covered in vegetation. It appears to show some sort of structure, such as a wall, fence or gate, running between the south west corner of Clome Cottage and a building to the south. Part of the ground on each side of this structure is not covered in vegetation but is reflecting the sun light in a similar way to the roads visible in the photograph. Mrs Paton has written in an e-mail dated 16^th April 2009 that the photograph shows a wide wall going across the strip. I do accept that the photograph shows something across the strip but I do not accept that it shows a wide wall. It could be a gate or fence.

(4) Mr and Mrs Paton provided an aerial photograph taken by the RAF in 1948. They submitted that it shows clearly a boundary wall separating Clome Cottage from Glebe Yard, being a wall running across the strip. The photograph is not sufficiently clear to indicate that there was for certain a wall across the strip. What it does show is a line or mark running from the corner of Glebe Barn nearest Clome Cottage to a building on the far side of the strip. This is the line that Mr and Mrs Paton say is a wall but curiously, it does not run only from the southern corner of Clome Cottage but extends up to Glebe Barn. It also shows an area clear of vegetation on each side of the line said to be a wall.

(5) A photograph of Queen Street taken from Station Road in 1951 shows the front and southern side of Clome Cottage. There is a gatepost standing against the wall of Clome Cottage close to the south west corner with a narrow gate hanging on it. The surface of the Strip beside Clome Cottage appears to be the same as the surface of Queen Street, namely stone and gravel. The photograph also shows a tree trunk lying on the ground to the south of Clome Cottage and the stone and gravel section of the strip. This section appears to be wider than the narrow gate, though its full extent cannot be determined from the photograph because the edge of the photograph is beside the edge of the narrow gate. There is an animal which Mr and Mrs Paton say is a pig, lying near to the tree trunk. It is not possible to say for certain from the photograph what sort of animal it is. It could equally well be a dog as a pig. Mrs Paton wrote in an e-mail sent on 16 April 2009 that scarring left by the removal of a wide wall across the strip can be seen in this photograph on the side of Clome Cottage to the left of a window. What appears to be some scarring in the area around the gatepost is visible and the shape of the scarring is consistent with a wall having adjoined the side wall of Clome Cottage in that location. It is also consistent with a different size and type of gatepost or gate pillar having adjoined the side of Clome Cottage in that position.

(6) The gatepost can also be seen in photographs of the southern wall of Clome Cottage taken in about 1981/1982, 1988/1990, 1991/2, and 1994

(7) Aerial photographs taken in 1955 and 1962 show an area across the strip from Queen Street to the rear of Clome Cottage that is not covered with vegetation and reflects light in the same way as the roads in the photographs. It appears to be a track running across the strip and into Glebe Yard. I have viewed on a computer screen an electronic version of the 1955 photograph. I have been able to magnify the image on the screen. Just visible across the track in the 1955 and 1962 photographs is some form of narrow structure running across the width of the strip, Mr and Mrs Paton accept in their submissions that this structure is the narrow pedestrian gate visible in the 1951 photograph and what they call a “second wider field gate”. They suggest that the gateway for the “wider gate” was made after Mr Richard Westlake died on 27^th December 1954 but there is no evidence that this was the case. They submit that the 1962 photograph shows the wider gate closed and the narrower gate open. I do not accept that it is possible to see that clearly in the photograph, though there does appear to be visible a gatepost on the side of Clome Cottage. A building to the south of the strip can be seen in both photographs; it appears to be the cob shed. The building on Station Road can be seen in both photographs. The site of the former building adjoining to the immediate north the southern shallow building can be seen in the 1962 photograph.

(8) In an aerial photograph taken in 1963 a wooden 5 bar gate hung on a post a little distance to the west of the north-west corner of the cob shed is clearly visible. Some narrow structure, either a gate or a fence can be seen adjoining the south western corner of Clome Cottage and at the southern end of that structure there is a post for the five bar gate to close against.

(9) The cob shed can be seen in an aerial photograph taken in 1968 as can a large shed erected on the western part of Glebe Yard.

 

Mr and Mrs Paton’s Case

24. Mr and Mrs Paton’s case is that Mr Michael Challenger conveyed the strip to them by the conveyance of 1^st May 1981. They say that the conveyance to Michael Challenger by Lilian Phoebe Beatrice Manfield was the conveyance of the whole property owned by Ms Manfield. They submit that Ms Manfield owned the strip and that there was prior to about 1950 no access over the strip into Glebe Yard. They also say that the land conveyed to them by Michael Challenger included the area formerly occupied by a shed and conveyed to Michael Challenger by Fernley Walter Ernest Bater. Mr and Mrs Paton say that the personal representatives of Rita Eleanor Bater had no paper title to the strip and that it was a mistake for HM Land Registry to include the strip in the registered title to Glebe Yard.

Mr Todd’s Case

25. Mr Todd has not submitted that the personal representatives of Rita Eleanor Bater were able to show a paper title to the strip. However, he does not accept that Mr and Mrs Paton can show that the strip was conveyed to them or to Mr Michael Challenger or that it vested in Mrs Manfield or her predecessors in title.

 

Can Mr and Mrs Paton show title to the strip?

26. Mr and Mrs Paton cannot succeed in their application unless as a first step they show that the strip was conveyed to them. The only conveyance to them on which they rely is the conveyance by Mr Michael Challenger made on 1^st May 1981. The land conveyed to them by that conveyance is shown “for the purposes of identification only” edged red on the conveyance plan numbered one. A plan which is said to be “for the purposes of identification only” may be looked to for elucidation but not contradiction of a verbal description of the land in the parcels clause – see Wigginton & Milner Ltd. v. Winster Engineering Ltd. [1978] 1 WLR 1462. There is no contradiction between the verbal description and the plan in this case. The verbal description of the land firstly conveyed refers to “pieces of land” i.e. to more than a single piece of land. The plan shows two pieces of land edged red. The plan is thus consistent with the description of the land conveyed as being “pieces of land”. The verbal description refers to the pieces of land “with the dwellinghouse known as Clome Cottage and the shed erected thereon”. Clome Cottage stands on one of the pieces of land shown on the conveyance plan and a shed stood on the other piece. There is therefore no contradiction between the reference in the verbal description to Clome Cottage and the shed and the conveyance plan. Mr and Mrs Paton submitted that there is a contradiction between the plan and the description of the parcels as “a single private dwellinghouse with outbuildings and cartilage”. However, that verbal description is not part of the description of the land conveyed either to or by Mr Michael Challenger. It is a phrase taken from a recital to the conveyance by Mr Woolridge to Ms Pook dated 4^th May 1950.

 

27. The plan is on too small a scale and the red edging is too thick to show the exact extent of the land conveyed but the plan does indicate that the land conveyed is land lying on two sides of the strip and that it does not include the strip itself. There is nothing in the conveyance itself to indicate that the strip was included in the land conveyed. I also have regard to the physical features. I have no photographic or other evidence as to the details of the physical features as at the date of the conveyance. However, I have the photograph taken in 1968 and I have seen the ground as it is now. Nothing visible from the photograph or from the inspection of the ground indicates that the conveyance is to be read as including the strip.

 

28. Mr and Mrs Paton’s case appears to be that Mrs Lilian Phoebe Beatrice Mansfield owned the strip as well as the site of Clome Cottage and the piece of land on the other side of the strip and that Mrs Mansfield must have conveyed all that she owned, including the strip, to Mr Challenger and that he in turn must have conveyed all that he owned, including the strip. Even if Mrs Mansfield owned the strip, it does not follow that she must have conveyed it to Mr Challenger or that he in turn must have conveyed it to Mr and Mrs Paton. What was conveyed by Mrs Mansfield and Mr Challenger is to be determined by construing the conveyances. If the language and the plan to the conveyance by Mrs Mansfield do not include the strip then the strip does not pass under that conveyance, whether or not Mrs Mansfield could have conveyed the strip by the use of appropriate language in the conveyance.

 

29. Mr and Mrs Paton submitted that I must presume that the Strip was owned by Mr Challenger and his predecessors in title and that it was conveyed by Mr Challenger to them by reason of the presumptions (a) that the soil of a highway is owned to the mid-point by the owners of the land on each side and (b). that a conveyance of land adjoining a highway is to be presumed to include the conveyance of the soil of the highway up to the mid point. The presumption as to ownership applies to a private or occupation road as well as to a highway – see Holmes v. Bellingham (1859) 7CBNS 329. This argument is inconsistent with Mr and Mrs Paton’s argument that until the 1950s the Strip was not any form of road leading to Glebe Yard. I am not satisfied that the presumption of ownership applies in this case. The Strip is not a road in the usual sense; it is relatively short piece of land lying between the highway, Queen Street and Glebe Yard. Further, I consider that even if the presumption of ownership does apply, it is rebutted on the facts because the Strip is a relatively short piece of land providing access to Glebe Yard. Even if the presumption of ownership did apply, it would not give title to the whole of the Strip to Mr and Mrs Paton. The Strip is bounded by part of Glebe Yard as well as by land owned by Mr and Mrs Paton. If the presumption of ownership were to be applied, Mr Todd would be presumed to own part of the Strip by reason of his owning adjoining land.

 

30. As I have found that the strip was not conveyed to Mr Michael Challenger by Mrs Mansfield and no-one representing Mrs Manfield or her estate is a party to these proceedings, I do not consider it necessary or right to determine whether the strip was in fact conveyed to Mrs Manfield. If it were necessary for me to so decide whether Mrs Manfield had title to the strip, I would not be satisfied on the present evidence that the strip vested in Mrs Manfield under the assent to her of all the property conveyed to Mr Westlake by the conveyance dated 21^st May 1951. What land was conveyed to Mr Westlake falls to be determined by construction of the conveyance having regard to the background circumstances, including the physical features on the land. The argument that Mrs Lilian Mansfield owned the strip is based in substance on the use of the word “close” to describe the land conveyed to Mr Westlake and his predecessors in title. Mr and Mrs Paton submit the use of the word “close” indicates a single enclosed piece of land and since the close included land on both sides of the strip, it must have also included the land lying between those two pieces of land i.e. it must have included the strip. There is in fact no evidence that the land conveyed to Mr Westlake was a single enclosure. On the contrary, there is evidence in the form of the 1930 and 1951 postcards that the cottage and garden formed one enclosure, the garden being divided from the strip by the hedge along the front and side of the garden, as it still stands. The use of the word “close” cannot therefore be read as meaning in this context a single piece of land enclosed from the land around it. Further, I am not satisfied that the strip was used as the site to house a pig in 1930 or later. The photographs do not show that to be the case. The photographs do indicate, in my view, that there was access over the strip to Glebe Yard, as is shown by the appearance in the 1930 postcard of the surface of the land beside the side of Clome Cottage and in later aerial photographs. It seems to me that the part of the conveyance description which is of greater importance than the use of the word “close” is the reference to the area of the land conveyed as comprising “four perches or thereabout”. Though I have no expert evidence as to the area of the land claimed by Mr and Mrs Paton, Mr Todd has submitted that the area they claim is greatly in excess of 4 perches and is nearer to 8 perches. Mr and Mrs Paton seem to accept that the area they claim to own, including the strip, is substantially in excess of 4 perches. The area measurement cannot be ignored and provides a strong indication against the inclusion of the strip within the land conveyed to Mr Westlake.

Standing

31. As I have found that Mr and Mrs Paton have not established that the strip was conveyed to them but I have also found that the personal representatives of Mrs Bater did not have title to the strip, the question arises whether the registrar should entertain an application by Mr and Mrs Paton to rectify Mr Todd’s title by removing the strip. The question whether a person who does not himself have title to land in question has standing to apply to close the title to the land was considered fully by the Adjudicator to HM Land Registry, Mr Edward Cousins on a referred application to him, the reference to which is REF/2007/1124 and the parties being Peter Charles Burton and Susan Anne Bamford Applicants and Messrs Walker and Others, Respondents. After a careful and thorough consideration of the authorities and the statutory provisions, Mr Cousins decided that a party does not need to show standing in order to make such an application. There is in my judgment no material difference in this respect between an application to close a title and an application to remove from a title part of the land including in it. I adopt the reasoning of Mr Cousins in that case. In my judgment, Mr and Mrs Paton are entitled to apply for the rectification of the register by the removal of the strip from Mr Todd’s title notwithstanding that they do not themselves have title to the strip.

 

Should the title be rectified?

32. If Mr and Mrs Paton are entitled to seek rectification of the register by the removal of the strip from Mr Todd’s title, notwithstanding that they cannot show that the strip should be included in their title, then the question arises whether the registrar should rectify Mr Todd’s title.

 

33. Under the provisions of paragraph 6(2) of Schedule 4, the registrar is not to rectify the title of the proprietor in possession of a registered estate in land without the proprietor’s consent 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 meaning of the term “proprietor in possession” is defined by section 131(1) of the Land Registration Act 2002, which provides as follows

“For the purposes of this Act, land is in the possession of the proprietor of a registered estate in land if it is physically in his possession, or in that of a person who is entitled to be registered as the proprietor of the registered estate”.

Mr Todd is not in physical possession of the strip. When I inspected the strip, it was open to the public highway and showed no signs of being in the physical possession of anyone. Accordingly, the provisions of paragraph 6 of Schedule 4 do not apply.

 

34. Had Mr Todd been in physical possession of the strip at the time the application to rectify was made then I would have directed the registrar to cancel the application. There is no evidence at all that Mr Todd caused or contributed to the mistake on the register through fraud or lack of proper care. The mistake occurred when the title was first registered by the personal representatives of Mrs Bater. There is no evidence that Mr Todd played any part in the first registration of title to the strip. Following first registration, Mr Todd purchased and took a transfer of a registered title, which included the strip. It cannot be said that by taking a transfer of a registered title which mistakenly included the strip, Mr Todd caused or contributed to the mistake of the strip being registered. In those circumstances and in the absence of any other reason making it unjust for an alteration not to be made, the registrar would not have power to make the alteration to the register.

 

35. Paragraph 6(3) of Schedule 4 provides that if on an application for alteration of the register, the registrar has power to make the alteration then

“the application must be approved, unless there are exceptional circumstances”.

The question then is whether in this case there are exceptional circumstances justifying the registrar refusing the application to alter the register. I consider that there are in this case exceptional circumstances justifying the registrar refusing to alter the register. If the register is altered, the land will be left with no known owner. The task of tracking down the true owner is likely to be difficult. The rectification would be contrary to a general policy of the Land Registration Act 2002 which is to provide a register open to public inspection from which the proprietor of any particular piece of land can be identified. Rectification would serve no practical purpose. It would not give Mr and Mrs Paton the right to stop Mr Todd or his successors driving over the strip. It is unlikely to prevent Mr Todd from developing Glebe Yard. It is likely to serve only to benefit an insurance company from which Mr Todd would seek to purchase insurance against the true owner appearing and preventing him or his successors in title from crossing the strip. If the register is not altered and the person who would have title but for the registration appears, that person would be entitled to apply for rectification and if rectification is refused, then for an indemnity under Schedule 8 to the Land Registration Act 2002.

Conclusions

36. I shall direct the Chief Land Registrar to cancel the application of the Applicants to alter the title to Plot 1, Glebe Yard, Northlew, Okehampton EX20 3PA being Title Number: DN514864.

 

37. My preliminary view is that Mr and Mrs Paton must pay the costs of the proceedings before the Adjudicator, to be assessed on the standard basis, if not agreed. They have not succeeded in their application to alter the register and it is just that they should pay the costs. Any party who wishes to submit that I should make some different order as to costs may do so in writing by 14^th June 2011.

 

 

 

BY ORDER OF THE ADJUDICATOR

 

 

 

 

 

 

 

Dated this 1^st day of June 2011